International Law In Brief
Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
December 7 , 2004
©2004 American Society of International Law
(Educational copying is permitted with due acknowledgment)
- Treaty Between the United States of America and the Federal Republic of Germany on Mutual Legal Assistance in Criminal Matters (signed on October 14, 2003, referred to the Senate Committee on Foreign Relations and ordered to be printed for the use of the Senate on November 16, 2004)
Treaty Between the United States of America and the Federal Republic of Germany on Mutual Legal Assistance in Criminal Matters (signed on October 14, 2003, referred to the Senate Committee on Foreign Relations and ordered to be printed for the use of the Senate on November 16, 2004)
The Treaty Between the United States of America and the Federal Republic of Germany on Mutual Legal Assistance in Criminal Matters (“the treaty”) is one of several mutual legal assistance treaties being negotiated by the United States. Article 1(2) provides that assistance shall include: locating or identifying persons or items, serving documents, taking the testimony or statements of persons, transferring persons in custody for testimony or other purposes, providing documents, records, and other items, executing searches and seizures, special investigative techniques such as telecommunications surveillance, undercover investigations, and controlled deliveries. Article 15 addresses conditions related to refusing assistance and to the use of evidence. Article 15 sections (2) and (3) state that the Requesting State shall not use any evidence or information obtained under this Treaty for any other purpose than that described in the request without the prior consent of the Central Authority of the Requested State, except (1) for any other purpose for which assistance under the Treaty would be available; (2) for preventing the commission of serious criminal offenses; (3) in a non-criminal judicial or administrative proceeding related to a purpose otherwise specified in Article 15 and (4) for averting substantial danger to public security. The treaty is accompanied by an exchange of notes relating to Articles 9, 10 and 11 and forming an integral part of the treaty. The treaty is self-executing.
Document provided to the ILM office.
The dispute concerned a complaint filed by Argentina against a U.S. Commerce Department expedited sunset review of a 1.36 percent antidumping duty order imposed on oil country tubular goods from Argentina in 1995.
The Appellate Body upheld some of the Panel's earlier findings, including its finding that Section 751(c)(4)(B) of the Tariff Act of 1930 and Section 351.218(d)(2)(iii) of the U.S. Department of Commerce Regulations are inconsistent with Article 11.3 of the Anti-Dumping Agreement. Argentina successfully contended that the waiver provisions violate WTO rules by obliging the U.S. Commerce Department to conclude that continued dumping is likely without carrying out a substantive review to determine whether the earlier circumstances of dumping still exist.
The Appellate Body also found that the Panel did not err in its interpretation of the term "injury" in Article 11.3 of the Anti-Dumping Agreement, or in its analysis with respect to the factors that an investigating authority is required to examine in a likelihood-of-injury determination.
The Appellate Body further determined that the text of Article 11.3 does not establish any requirement for the investigating authority to specify the time frame on which it bases its determination regarding injury. It also concluded that sunset reviews are not subject to the detailed disciplines of Article 3 of the Anti-Dumping Agreement.
Click here for WTO Appellate Body reports.
The U.S. District Court for the Southern District of New York (“the Court”) dismissed the plaintiffs’ claims against several multinational corporations that engaged in business in apartheid South Africa.
Three groups of plaintiffs led by Lungisile Ntsebeza (“the Ntsebeza plaintiffs”), Hermina Digwamaje (“the Digwamaje plaintiffs”) and the Khulumani Support Group (“the Khulumani plaintiffs”) filed actions in district court on behalf of all persons living in South Africa between 1948 and the present and who suffered damages as a result of apartheid. The defendants named in the complaints supplied resources such as technology, money and oil to the South African government or to entities controlled by the South African government under apartheid. During the time the defendants were providing services and receiving funds from the apartheid government, the United Nations passed resolutions urging South Africa to dismantle apartheid policy, and the U.N. General Assembly called apartheid a “crime against humanity”, G.A. Res. 3068, U.N. GAOR, 28th Sess. Supp. No. 21, at 75, U.N. Doc. A/9030 (1974). The U.N. Security Council also declared that “all States shall cease forthwith any provision to South Africa if arms and related material of all types,” U.N. Security Council Resolution 418, U.N. SCOR, 32d Sess., U.N. Doc. S/INF/33 (1977).
The Ntsebeza plaintiffs sought equitable relief including production of defendants’ documents, creation of an international historical commission, affirmative action and educational programs in addition to injunctive relief which would prevent the defendants from destroying documents related to their investment in apartheid South Africa. They further sought monetary relief including restitution and disgorgement of all monies that could be linked to aiding, conspiring with, or benefiting from apartheid South Africa. The Digwamaje plaintiffs sought equitable, injunctive and monetary relief, in addition to compensatory and punitive damages in excess of $400,000,000,000. They brought their action on behalf of the Khulumani Support Group and its 32,700 members, as well as individual plaintiffs who suffered from the crimes of the apartheid regime. They sought relief in the form of disclosure of defendants’ documents related to their activities in South Africa, in addition to compensatory and punitive damages.
The plaintiff’s actions alleged, inter alia, that the defendants violated international law and are therefore subject to suit in United States federal district court. They claimed that pursuant to the Alien Torts Claims Act (“ATCA”), which provides that “district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”, they could bring claims concerning forced labor, genocide, torture, sexual assault, unlawful detention, extrajudicial killings, war crimes and racial discrimination.
The Court found that the plaintiffs failed to show that the defendants engaged in state action by acting under color of law in perpetrating the acts alleged. Citing Bigio v. Coca-Cola Co., 239, F.3d 440 (2d Cir. 2001), the Court concluded that an indirect economic benefit from unlawful state action was insufficient to establish state action. Having found an absence of state action on the part of the defendants, the Court then turned to the question of whether either aiding and abetting international law violations or doing business in apartheid South Africa are violations of the law of nations that are in accordance with the Supreme Court’s definition in Sosa v. Alvarez Machain as “accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms” such as piracy and crimes against ambassadors. The Court noted that the rulings of international criminal tribunals, including those of the Nuremberg trials, are not binding sources of international law. The Court also observed that the Apartheid Convention, which dealt with the criminal repercussions for aiding apartheid was not ratified by the major world powers, including the United States, Great Britain, France, Canada and Japan. It concluded that “[w]ithout the backing of so many major world powers, the Apartheid Convention is not binding international law.”
The Court observed that “[a]lthough it is clear that the actions of the apartheid regime were repugnant, and that the decisions of the defendants to do business with that regime may have been morally suspect or “embarrassing”, it is ths Court’s job to apply the law and not some normative or moral ideal.” The Court relied on considerations set forth by Sosa v. Alvarez Machain, namely (1) “any new claim under the ATCA must ‘rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized’”; (2) that courts “should be averse to innovate without legislative guidance”; (3) “that courts should be wary of creating private rights of action from international norms because of the collateral consequences such a decision would have”; (4) “courts must consider the foreign relations consequences of finding that conduct is encompassed by the ATCA, since entertaining such suits can impinge on the discretion of the legislative and executive branches of this country as well as those of other nations” and (5) “courts must be mindful of the absence of a ‘congressional mandate to seek out and define new and debatable violations of the law of nations.’”
The Court further found that the plaintiffs could not rely on the UN Charter and General Assembly resolutions as they could not give rise to an action under the ATCA.
Decision available on LEXIS.
The Tribunal found that it had jurisdiction over GAMI’s claims, and dismissed all of them.
GAMI Investments, Inc. (“GAMI”) is a US investment corporation which owns 14.18% of the shares of Grupo Azucarero México SA de CV (“GAM”). GAM is a Mexican holding company whose remaining shareholders are Mexican. The Mexican government formally expropriated twenty-two sugar mills by a decree published on September 3, 2001. The decree, which had been enacted on grounds of public purpose identified in the Ley de Expropriación of 1997 (“the expropriation law”) included all five of GAM’s mills. GAM challenged the constitutionality of the expropriation law and decree before a Mexican court, which decided in February 2004 in favor of GAM. The Mexican court found the expropriation to be unlawful and ineffective as to three mills.
GAMI did not claim that its shares in GAM were expropriated by the Mexican government. Rather, it contended that Mexico’s expropriation of GAM’s mills rendered GAMI’s investment worthless since the mills were substantially all of GAM’s productive assets. It further claimed that as a result of Mexico’s poor administration of the sugar industry and its failure to implement regulations pertaining to the sugar industry, the value of GAMI’s shares were impaired. Such impairment, GAMI claimed, was tantamount to expropriation.
At the jurisdiction stage, the United States made an Article 1128 submission which referred to the Barcelona Traction case of the International Court of Justice (ICJ) as authority for the principle that shareholders may assert claims only for injuries to their interests and not for injuries to the corporation. The Tribunal disagreed with this position, finding that the Barcelona Traction case established a rule that does not extend beyond the issue of the right of espousal of diplomatic protection. In this regard, the Tribunal cited the ELSI case of the ICJ among others and further concluded that “[i]t is difficult to see why GAMI’s position under NAFTA should be impaired because the controlling shareholder caused GAM to seek redress in the Mexican courts...”
On the merits, the Tribunal found that GAMI failed to quantify the alleged impairment to its investment or even attempt to present a theoretical financial analysis of the extent of the damage to its investment. Although GAMI demonstrated that Mexico’s sugar regulations were not carried out in accordance with their terms, the connection between these failures and damage to GAMI’s investment was not made. GAMI proceeded on the basis that the entire value of its investment had been destroyed, yet the Tribunal observed that GAMI’s shareholding in GAM remains intact, GAM’s principal productive assets have either been restored to it or are subject to negotiations concerning compensation and operation of the sugar industry in Mexico has generally improved.
Click here for the decision.
Members of the Tribunal
Jan Paulsson, President
Julio Lacarte Muró
W. Michael Reisman
The Tribunal declined to issue a supplementary decision sought by Raymond Loewen pursuant to Article 58 of the ICSID Additional Facility Rules. Raymond Loewen contended that the Tribunal’s award of June 26, 2003 failed to address his Article 1116 claim (Claim by an Investor of a Party on its own behalf). The Tribunal held that its dismissal on June 23, 2003 of all claims “in their entirety” did encompass his claim. It also decided that the parties would bear their own costs.
Click here for the decision.