Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law March 31, 2003
World
Health Organization (WHO) (Intergovernmental Negotiating
Body on the WHO Framework Convention on Tobacco Control):
Draft WHO Framework Convention on Tobacco Control, A/FCTC/INB6/5
(March 3, 2003)
The WHO Intergovernmental
Negotiating Body completed the WHO Framework Convention
on Tobacco Control ("Draft Convention"), which
will be presented to the World Health Assembly in May
for adoption. The Draft Convention's objective is
the protection of the "present and future generations
from the devastating health, social, environmental and
economic consequences of tobacco consumption and exposure
to tobacco smoke."
In order to achieve this objective,
the Draft Convention provides for a framework for tobacco
control measures, such as measures in the area of pricing,
taxation, packaging, labeling and advertising of tobacco
products. In addition to these, the Draft Convention
sets forth measures relating to the reduction of the supply
of tobacco, which relate to illicit trade in tobacco product,
their sales to and by minors, and support for economically
viable alternative activities for tobacco workers, growers
or sellers.
The Draft Convention requires
that future states parties implement tax and price policies
on tobacco products that facilitate the reduction of tobacco
consumption, and prohibit or restrict "sales to and/or
importations by international travelers of tax- and duty-free
tobacco products." The Draft Convention provides
for a period of three years after its adoption within
which the states parties would have to adopt and implement
effective measures to ensure that, inter alia,
tobacco product packaging and labeling does not present
a false, misleading, deceptive or erroneous impression
about tobacco products' characteristics, health effects,
hazards or emissions. Furthermore, the Draft Convention
mandates that future states parties "undertake a
comprehensive ban of all tobacco advertising, promotion
and sponsorship." If a state party is not in
a position to undertake the ban due to "its constitution
or constitutional principles," the Draft Convention
still requires that the state party in question applies
"restrictions" on all such activities.
As to the measures aimed against
illicit trade in tobacco products, the Draft Convention
provides that all states parties should mark these products
in such a way that their origin can be determined.
This would, inter alia, require marking the tobacco
products prepared for domestic sales with the following
statement: "Sales only allowed in (insert name of
the country, subnational, regional or federal unit)."
The Draft Convention also mandates that future state parties
adopt and implement appropriate measures to prohibit sales
of tobacco products to "persons under the age set
by domestic law, national law or eighteen."
The United States has published
the draft text of the U.S. Singapore-Free Trade Agreement.
According to the U.S. Trade Representative (“USTR”),
Robert B. Zoellick, “By releasing the texts well
before these agreements are signed, and months before
Congress will vote on them under TPA [Trade Practices
Act of 1974] procedures, the public and interested parties
will have ample time to review for themselves the results
of our negotiations.” According to the USTR’s
press release, “U.S. negotiators held more than
100 meetings with some 700 cleared advisors from business,
farm groups, labor unions, environmental groups, consumer
organizations, and state governments to discuss and seek
their advice, on U.S. negotiating positions.”
The draft agreement includes
provisions on rules for financial services, rules on eliminating
duties on bilateral trade, rules of origin, and a chapter
on investment. Article 15.19 of the draft investment chapter,
entitled “Conduct of the Arbitration,” provides
that “the tribunal shall have the authority to accept
and consider amicus curiae submissions from any
persons and entities in the territories of the Parties
and from interested persons and entities outside the territories
of the parties.” The draft text of the investment
chapter also contains a section entitled “Transparency
of Arbitral Proceedings” (Article 15.20) which provides
that “the tribunal shall conduct hearings open to
the public and shall determine, in consultation with the
disputing parties, the appropriate logistical arrangements.”
United States (U.S.) Court of Appeals
for the District of Columbia Circuit: Al Odah, et al.
v. USA, No. 02-5251 (March 11, 2003)
The D.C. Circuit denied the
petition for habeas relief brought by next friends on
behalf of aliens who were captured in Afghanistan by U.S.
military forces and are currently being held at Guantanamo
Naval Base in Cuba.
The petitioners sought relief
pursuant to 28
U.S.C. § 2242 for violations of the U.S. Constitution,
in addition to declaratory relief under the Alien Tort
Claims Act (“ATCA”), as incorporated in 28
U.S.C. § 1350.
The petitioners denied that the detainees
were “enemy combatants” or “enemy”
aliens. They further denied that the detainees were members
of Al-Qaeda or any other terrorist group. The petitioners
argued that the U.S. control over Guantanamo Bay gave
U.S. Courts territorial jurisdiction over the detainees,
thereby rendering habeas relief available to them as non-citizens
held on U.S. territory.
The court rejected the petitioners’
claim that U.S. control over the Guantanamo Naval Base
resulted in U.S. courts’ jurisdiction over the Guantanamo
territory. The D.C. Circuit noted that the base
has been under a lease with Cuba since 1903, and that
the United States has continued to recognize the ultimate
sovereignty of the Republic of Cuba over the naval base.
The court proceeded to analyze the habeas petition in
light of the Supreme Court’s decision in Johnson
v. Eisentrager, 339 U.S. 768 (1950), in which
German “enemy aliens,” detained by American
military authorities in Japan and later transferred to
a U.S. military prison in Germany, filed more than 200
habeas corpus petitions invoking the jurisdiction of the
Supreme Court. The Eisentrager court denied
the habeas petitions, finding that “the privilege
of litigation” had not been extended to the German
prisoners. The D.C. Circuit found the status of
the petitioners in this case to be indistinguishable from
those in Eisentrager.
Although the D.C. Circuit
acknowledged that habeas relief was available to non-citizens,
it held that “no court in this country has jurisdiction
to grant habeas relief” to the Guantanamo detainees,
stating further that it could not “see why, or how,
the writ may be made available to aliens abroad when basic
constitutional protections are not.”
The D.C. Circuit also denied
the petitioners’ request for injunctions and declaratory
relief pursuant to the ATCA. According to the court, Eisentrager
“dooms these additional causes of action even if
they deal only with conditions of confinement and do not
sound in habeas.” The court further stated
that “whatever other relief the detainees seek,”
that relief “necessarily rest[s] on alleged violations
of the same category of laws listed in the habeas statute,
and are therefore beyond the jurisdiction of the federal
courts.”
United States (U.S.) Court of Appeals
for the Ninth Circuit: Public Citizen v. Department
of Transportation, No. 02-70986 and 02-71249 (January
16, 2003)
The Ninth Circuit granted
the petitions for review of three regulations promulgated
by the United States Department of Transportation (“USDOT”)
that allowed Mexico-domiciled trucks to operate in the
United States beyond specified border zones. By
granting the petitions for review, the Ninth Circuit enjoined
the entry of Mexico-domiciled trucks beyond the border
zones pending the release of a full environmental impact
statement by the USDOT.
The USDOT regulations in
question were promulgated following a February 2001 decision
of an arbitration Panel formed under Chapter Twenty of
the North American Free Trade Agreement (NAFTA). At
issue before the Panel was whether the United States was
in breach of NAFTA Article 1202
(national treatment for cross border services) and/or
1203 (most favored
nation treatment for cross-border services) for failing
to phase out a USDOT moratorium on the processing of Mexican-owned
carrier applications for operating cross-border trucking
services beyond restricted border zones in the United
States. (United
States – In the Matter of Cross-Border Trucking
Services)
The petitioners claimed that
the USDOT failed to adequately examine the environmental
consequences of its regulations as required by the National Environmental
Policy Act of 1969 (“NEPA”) and by the
Clean Air Act of 1963 (“CAA”).
The petitioners challenged the USDOT’s “Environmental
Assessment for the Application and Safety Rules,”
in which the USDOT concluded that the proposed rules did
not “significantly affect the quality of the human
environment,” thereby issuing a “Finding of
No Significant Impact.” In particular, the California
Attorney General, as a co-petitioner, asserted that the
USDOT failed to take into account the more stringent environmental
standards of California state law.
The Ninth Circuit held that
the USDOT acted arbitrarily and capriciously for failing
to provide a full Environmental Impact Statement under
the NEPA and the CAA. Although the Ninth Circuit
did not purport to draw conclusions as to the validity
of the NAFTA, it stated that “[a]lthough we agree
with the importance of the United States’ compliance
with its treaty obligations with its southern neighbor,
Mexico, such compliance cannot come at the cost of violating
United States law.” It also noted that the
NAFTA, as enacted into U.S. law, provides under 19 U.S.C. §3312(a)(1)
that: “No provision of the Agreement ... which is
inconsistent with any law of the United States shall have
effect.”
United States (U.S.) Court of Appeals
for the Ninth Circuit: Blaxland v. Commonwealth Director
of Public Prosecutions, Nos. 00-56330 and 00-56376
(March 27, 2003)
The Ninth Circuit reversed
the U.S. District Court for the Central District of California's
("district court") denial of sovereign immunity
for two Australian government agencies, and affirmed the
district court's grant of sovereign immunity to two employees
of these agencies.
Mr. Christopher Blaxland sued
in Los Angeles the Australian Director of Public Prosecutions
(DPP) and the Australian Securities and Investments Commission
(ASIC), as well as two employees of these agencies, Mr.
Shaw and Mr. Barry, alleging, inter alia, that
they made false or misleading statements in affidavits
filed in support of securing his arrest in the United
States and his extradition to Australia. Mr. Blaxland,
a legal resident of the United States, filed this suit
after he had returned from Australia where he had been
tried and acquitted of a charge of making improper use
of his position as an officer of an Australian publicly-listed
company in the period between 1986-89.
The case was removed from
the Los Angeles Superior Court to the district court,
where the DPP, the ASIC, Mr. Show, and Mr. Barry ("Defendants")
filed a motion to dismiss for lack of subject matter jurisdiction
and claimed sovereign immunity under the provisions of
the Foreign Sovereign Immunities Act (FSIA). The
district court granted the motion with respect to Mr.
Shaw and Mr. Barry, but denied it as to the other two
Defendants.
The Ninth Circuit agreed with
Mr. Blaxland's argument that a foreign country's use of
U.S. courts can be sufficient to trigger the implied waiver
of sovereign immunity provided under Section 1605(a)(1)
of the FSIA. The Ninth Circuit held, however, that
this waiver must be "narrowly construed" and
implied only when there is a "'... direct connection
between the sovereign's activities in our courts and
the plaintiff's claims for relief," which had not
been the case in the course of Mr. Blaxland's extradition
proceedings. (Emphasis in original) The Ninth Circuit
opined that the nature of extradition proceedings is such
that the "foreign sovereign makes no direct request
of our courts, and its contacts with the judiciary are
mediated by the executive branch."
The Ninth Circuit opined that
the outcome is the same regardless of whether or not the
Defendants' use of extradition process was fraudulent.
The Ninth Circuit held that a foreign sovereign's responsibility
for documents filed in American courts in the course of
an extradition process cannot constitute an implied waiver
of sovereign immunity under Section 1605(a)(1) because
this would run contrary to the provisions of the FSIA
Section 1605(a)(5)(B), which excludes claims such as malicious
prosecution and abuse of process from the sovereign immunity
exception provided for in Section 1605(a)(1).
United
States (U.S.) Court of Appeals for the Sixth Circuit:
Rosales v. Holland, No. 99-5683, and Carballo
v. Luttrell, No. 99-5698 (March 5, 2003)
The Sixth Circuit reversed
the decision of two district courts that denied the habeas
corpus petitions brought by two Cuban nationals, Mario
Rosales-Garcia (“Rosales”) and Reynero Arteaga
Carballo (“Carballo”). Rosales and Carballo
formed part of the Mariel boatlift in 1980 in which 120,000
Cubans crossed by boat from Cuba, arriving undocumented
in the United States. Rosales and Carballo, although allowed
physical entry by means of the Attorney General’s
grant of immigration parole, were denied legal entry,
and therefore deemed “excludable” aliens under
the U.S. immigration laws. Rosales and Carballo
were subsequently convicted for various crimes that they
had committed in the United States. The Attorney General
ordered their removal from the United States; Cuba, however,
refused to repatriate them. Rosales and Carballo served
their sentences in U.S. prisons and have since been subject
to removal by the Immigration and Naturalization Service
(“INS”).
Carballo and Rosales filed
habeas corpus petitions in which they claimed that the
Attorney General lacked authority to detain them beyond
a reasonable time to effect their exclusion, and that
their continued detention violated their constitutional
and due process rights. The U.S. District Court
for the Eastern District of Kentucky denied Rosales’
habeas petition for violation of his due process rights,
on the grounds that,“[w]hatever the procedure
authorized by Congress is, it is due process as far as
an alien denied entry is concerned.” The U.S. District
Court for the Northern District of Texas similarly denied
Carballo’s habeas petition on the grounds that his
detention did not violate substantive due process. Carballo
requested that his case be heard together with Rosales’
case on appeal before the Sixth Circuit.
Before the Sixth Circuit,
the INS argued that the detention of excludable aliens
could not raise constitutional concerns because such detention
did not “implicate the Fifth Amendment.” In
response, the Sixth Circuit stated, “We could not
more vehemently disagree. Excludable aliens — like
all aliens — are clearly protected by the Due Process
Clauses of the Fifth and Fourteenth Amendments.”
The Sixth Circuit further stated:
“[i]f excludable aliens
were not protected by even the substantive component of
constitutional due process, as the government appears
to argue, we do not see why the U.S. government could
not torture or summarily execute them. Because we do not
believe that our Constitution could permit persons living
in the United States — whether they can be admitted
for permanent residence or not–to be subjected to
any government action without limit, we conclude that
government treatment of excludable aliens must implicate
the Due Process of the Fifth Amendment.”
The Sixth Circuit analyzed
the petitions in light of the Supreme Court’s decision
in Zadvydas
v. Davis, 533 U.S. 678, 682 (2001) (See also 40
ILM 1165 (2001)) which held that the provision of the
Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), authorizing the post-removal
detention of removed aliens, must be construed to contain
an “implicit ‘reasonable time’ limitation”
because the indefinite detention of aliens who are removable
on grounds of deportability “would raise serious
constitutional concerns.” The Sixth Circuit held
that, because there was no significant likelihood that
Rosales and Caballo would be removed in the reasonably
foreseeable future, and since the INS had detained them
longer than six months, “the INS’s detention
of Rosales and Caballo is no longer reasonable and is
therefore not authorized by IIRIA’s post-removal-period
detention provision.”
United
Nations (U.N.) Security Council: Resolution 1472 (Reinstating
the Oil for Food Program in Iraq), S/RES/1472 (March 28,
2003)
The U.N. Security Council
unanimously adopted Resolution 1472, authorizing technical
and temporary adjustments to the Oil for Food program
in Iraq. The Oil for Food Program was suspended on March
17, 2003, following the withdrawal of all U.N. personnel
from Iraq. The program allows Baghdad to use a portion
of its oil revenues for humanitarian supplies. The resolution
provides for adjustments in the locations for delivery,
re-direction of shipments, inspection andconfirmation
of humanitarian supplies, in addition to granting authorization
to the U.N. Secretary-General to determine priorities
for civilian needs.
The text of Resolution 1472 is not yet available via
internet. Click here for further information regarding
the Oil for Food Program.
International Law In Brief (ILIB) - Copyright 2003
- The American Society
of International Law (ASIL) Editors: Ruth Teitelbaum, Branislav A. Maric, Scott
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