International Law in Brief

International Law In Brief

Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
March 31, 2003


TREATIES, AGREEMENTS AND RELATED DOCUMENTS

JUDICIAL AND SIMILAR PROCEEDINGS

BRIEFLY NOTED

TREATIES, AGREEMENTS AND RELATED DOCUMENTS

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."

Click here for the draft text.

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U.S.-Singapore Free Trade Agreement (Draft Text) (March 7, 2003)

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.?

Click here for draft agreement.

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JUDICIAL AND RELATED DOCUMENTS

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.?

Click here for the decision.

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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.?

Click here for the decision.

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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).

Click here for the decision.

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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.?

Click here for decision.

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BRIEFLY NOTED

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 and confirmation 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.

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International Law In Brief (ILIB) - Copyright 2003 - The American Society of International Law (ASIL)
Editors: Ruth Teitelbaum, Branislav A. Maric, Scott Smith