International Law in Brief

International Law In Brief

July 26 - 30, 1999
Developments in international law, prepared by the
Attorney-Editors of
International Legal Materials
The American Society of International Law


Judicial and Other Decisions

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

Back to the top


Briefly Noted

Croatia has filed a claim against FR Yugoslavia at the International Court of Justice, alleging violations of the Genocide Convention. http://www.icj-cij.org/icjwww/ipresscom/iPress1999/ipresscom9938_19990702.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

 

Back to the top

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.