International Law In Brief
Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
November 1 , 2006
©2006 American Society of International Law
(Educational copying is permitted with due acknowledgment)
| LEGISLATION | |
| | United States: Secure Fence Act of 2006 (P.L. 109-367) (President signed October 26, 2006) |
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RESOLUTIONS, DECLARATIONS, AND OTHER DOCUMENTS
United Nations Security Council Resolution 1718 (October 14, 2006)
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After the Democratic People's Republic of North Korea (DPRK) claimed that it had conducted a test of a nuclear weapon on October 6, 2006, the United Nations Security Council issued resolution 1718. In it, the Security Council expressed grave concern that such a test had been made and the threat that it poses to the Nuclear Non-Proliferation Treaty (NPT) and to international efforts to strengthen the global nuclear non-proliferation regime. It expressed profound concern that such testing escalated tensions in the region and beyond and therefore constituted a threat to international peace and security. Acting pursuant to Chapter VII, Article 41 of the United Nations Charter, it condemned the test and its violation of SCR 1695 (2006), and demanded that the DPRK refrain from conducting additional nuclear tests, and retract its announcement that it was withdrawing from the NPT. It called for the DPRK to return to the NPT and emphasized all state parties to continue complying with their treaty obligations. It decided that all member states must prevent the direct or indirect supply of arms and weapons to the DPRK, as well as any materials that could assist the DPRK in its production of nuclear weapons, and luxury goods. Member states are required to freeze the financial and other economic assets of the DPRK, and prevent persons responsible for promoting or supporting the DPRK's development of nuclear weaponry from entering or moving through their territories. The Security Council exempted monies needed for basic expenses, including payments for food, housing, and medicines and medical treatment. It also created a sanctions committee to monitor and report on implementation of the Chapter VII sanctions that it imposed upon the DPRK.
U.S. Presidential Executive Order: Blocking of and Prohibiting Transactions with the Government of Sudan (October 13, 2006)
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American President George Bush issued an Executive Order on October 13, 2006 restricting financial transactions with Sudan because of the threats posed to the U.S. national security and foreign policy by the deteriorating human rights situation there, particularly in the Darfur region, as well as the role of Sudan in the petroleum and petrochemical industries. The E.O. prohibits transactions relating to the petroleum and petrochemical industries in Sudan by U.S. persons. It prohibits property or interests in property of the Government of Sudan from being transferred, withdrawn, exported, or paid. The E.O. also precludes transactions by U.S. persons, or transactions occurring in the U.S. that attempt to evade its prohibitions. The E.O. specifically exempts transactions for the official business of the Federal Government, the United Nations, or the work of journalists. The E.O. was issued pursuant to the International Economic Powers Act (50 U.S.C. 1701 et seq. (IEPPA), the National Emergencies Act (50 U.S.C. 1601 et seq.) (NEA) and 3 U.S.C. § 301, and in recognition of the Darfur Peace and Accountability Act of 2006.
World Trade Organization Panel Final Report European Community Biotech Dispute (September 29, 2006)
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On September 29, 2006, the World Trade Organization (WTO) panel issued its final report on the European Community (EC) Biotechnology dispute. The issues before the panel included the ostensible failure of the European Communities to obtain ultimate resolution on the approval of biotech products from October 1998 to the creation of the panel in August 2003, the WTO uniformity of bans imposed by certain member States on biotech products after the EC approved them for Community-wide promotion.
Argentina, Canada, and the United States filed complaints with the WTO dispute settlement system in August 2003 protesting the EC moratorium on the approval of Genetically Modified Organisms (GMOs) from October 1998 to August 2003 as well as EC member states' prohibition on GMOs and genetically modified food. The panel found that the EC acted inconsistently with its obligations under Annex C(1)(a) of the Sanitary and Phyto Sanitary (SPS) Agreement and with its responsibilities under Article 8 of the SPS agreement when it applied a general de facto moratorium on approvals between June 1999 and August 2003. The panel found that while the moratorium was not a SPS measure within the contours of the SPS Agreement, it affected the functioning and use of the EC approval elements. The panel also found that the EC failed to rebut the presumption contained in Article 3.8 of the DSU which provides that "[i]n case where there is an infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairment." For that reason, the panel found that the EC acted incongruously with its obligations under the SPS Agreement, and it must be presumed to have nullified or impaired the benefits accruing to Argentina, Canada, and the United States under it. Argentina, Canada, and the United States also protested nine safeguard measures that a number of EC member states took to prohibit particular biotech products, contending that the safeguard measures were incompatible with EC WTO obligations. The WTO panel concurred and determined that the safeguard measures failed to meet the EC duties pursuant to the SPS Agreement. It noted that it had weighed whether the risk assessments that the EC scientific community assumed could provide reasonable support to prohibit the relevant biotech products but found that they could not.
The panel also found that there was undue delay in the EC's completion of the approval process for 24 of 27 biotech products and that the EC contravened its Article 8 and Annex C duties under the SPS agreement.
The WTO panel specifically enumerates the issues it did not analyze including the general safety of biotech products; whether, as the United States, Argentina, and Canada, claimed, biotech products were "like" their conventional counterparts; whether the EC could require pre-marketing approval of biotech products; whether the EC's authorization procedures are consistent with WTO duties; or the findings of EC scientific communities on the safety examination of certain biotech products.
JUDICIAL AND RELATED DOCUMENTS
European Court of Human Rights, Estamirov and Others v. Russia, (October 12, 2006).
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The European Court of Human Rights (ECHR) held that the Russian Federation violated Articles 2 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). It awarded pecuniary compensation in the amount of 7,751 Euros in lost wages, 225, 000 in non-pecuniary damages, and 11,637 Euros in costs and expenses including attorney's fees.
The relatives of five family members killed in Grozy, Chechnya, filed suit against the Russian Federation in August 2000, claiming that Russian servicemen killed their relatives in February 2000 in violation of Articles 2 ("[e]veryone's right to life shall be protected by law") and 13 of the Convention )[everyone whose rights and freedoms under the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by those acting in an official capacity).
One of the relatives found the applicant's nine-month pregnant sister-in-law, her one-year old son, uncle, father, and brother killed by gunshot wounds in or around their home on February 5, 2000. Some of the bodies were missing limbs and had been burned. Later that month another applicant requested the Prosecutor General to open a criminal inquiry into Russian troops for the killing of the family during the "mopping up" operation in Grozny, as well as the destruction of their property. In March 2000, the criminal investigation was closed because the military prosecutor lacked competence over Russian OMON troops who were under the jurisdiction of the Ministry of Defense and the Ministry of the Interior. In August 2000, two of the applicants filed a civil suit in the Supreme Court of Russia against the Ministry of Defence, the Ministry of the Interior, and the Ministry of Finance alleging that five family members had been killed and their home and car destroyed during the time when Russian forces controlled Grozny. The family members sought pecuniary and non-pecuniary damages. The Russian government asked that the ECHR proclaim the application inadmissible because the applicants failed to exhaust domestic remedies. The government contended that officials were conducting an investigation pursuant to domestic law, and the applicants could have applied to a district court to obtain relief. The applicants rejected that assertion, responding that their attempt to seek relief through criminal courts proved futile, and the Supreme Court of Russia dismissed their claim without consideration.
The ECHR held that the applicants were not required to exhaust their domestic remedies because the district courts would have been unable to proceed in a civil action without the results from the criminal investigation, and remedies were lacking for the applicant's claims. It similarly rejected Russia's claim that applicants would have had to exhaust domestic criminal remedies, noting that a criminal investigation continued for more than six years without results. It held that there was a violation of Article 2 of the Convention because the authorities failed to conduct a proper investigation: there were inexplicable delays as well as omissions of critical investigatory steps including no autopsies or forensic reports. The Court also found that the deaths of the applicant's relatives could be attributed to the State, in light of all the evidence regarding the Russian troop control of the region during the relevant time frame, and not contested by the document file.
The Court held that there was a violation of Article 13 of the Convention because there was an ineffective investigation into the killings, which in turn created an inability of the applicants to obtain other civil remedies.
European Court of Human Rights, Case of the Moscow Branch of the Salvation Army v. Russia (October 5, 2006)
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The European Court of Human Rights (ECHR) held that the Moscow Branch of the Salvation Army (Moscow Branch) was a "victim" and the Russian Federation violated its rights to freedom of religion, of association, and discrimination as a religious minority pursuant to Articles 34, 9, and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) when it refused to re-register it as a religious association. The ECHR awarded the Moscow Branch 10,000 euros (EUR) in damages.
In October 1997 a new law on Freedom of Conscience and Religious Associations ("the Religious Act") entered into force. It required all religious associations that had acquired status as a legal entity to re-register by December 31, 2000. In February 1999, the Moscow Branch submitted its application to the Moscow Justice Department. In August 1999, the Moscow Justice Department denied the Salvation Army's application to re-register because an insufficient number of founding members had been present at a meeting, no visas of foreign members had been provided, and the application branch of the Salvation Army was likely a representative office of a foreign religious organization in London. In September 1999, the Salvation Army contested the denial of its registration in a Moscow District Court. The Moscow Justice Department reiterated its previous reasons for the denial and added another: that the Russian Federation Presidential decree No. 310 of March 1995 prohibits the formation of paramilitary organizations, and the Salvation Army was a "paramilitary organization," because its members wear uniforms and perform service. In July 2000, the District Court upheld the refusal to reregister the Salvation Army because it was a part of an international religious organization and not an independent religious organization, the Constitution of the Russian Federation banned paramilitary formations, and the Moscow branch did not disclose its objectives. The Moscow City Court upheld this decision on appeal in November 2000. In May 2001, the Moscow Justice Department moved to dissolve the Moscow Branch and a Moscow District Court granted the Action. The Moscow Branch then challenged the dissolution in the Constitutional Court, which held in February 2002 that the re-registration of a religious organization could not be made contingent on requirements that did not exist at the time of the formation of the entity, in this case, 1992.
The Moscow Branch brought suit in the ECHR in May 2001 against the Russian Federation claiming that the Federation's denial of its registration as a legal entity violated Article 34 of the Convention, making it a "victim" for the purposes of the Convention. It alleged that the Federation's denial of its registration negatively impacted its ability to practice and worship its religion in contravention of Articles 9 and 11 of the Convention. Article 9 provides for freedom of thought, society, and religion. In its analysis, the ECHR noted that these rights are to be constrained only for the "interests of public safety, the protection of public order, health or morals, or for the protection of the rights and freedoms of others." Article 11 provides for the rights of freedom of assembly and of association. The ECHR emphasized that it had previously held in numerous cases that the freedom of thought, religion, and conscience is one of the crucial foundations of a democratic society. Citizens must be permitted to create a legal entity to work collaboratively. While States have the right to reassure themselves that an organization's goals comply with state legislation, this goal must be achieved while still complying with Convention obligations. The ECHR emphasized that any restrictions upon freedom of association must be based upon a "pressing social need." It found that there had been an interference with the freedom of association of the Moscow Branch. It found that the Government's arguments that the Moscow Branch had a foreign origin were neither germane nor adequate to refuse to re-register it. The ECHR also rejected the Government's argument that the Salvation Army uniforms meant that it was a paramilitary organization stating, "[i]t could not be seriously maintained that the applicant branch advocated a violent change of constitutional foundations or thereby undermined the integrity or security of the State." Because branches other than that of the Moscow Branch were permitted to re-register, the ECHR also found that Russia had treated the Moscow branch inequitably.
International Criminal Tribunal for the Former Yugoslavia : Prosecutor v. Seselj (Appeals Chamber) IT-03-67-AR73.3 (October 20, 2006).
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The Appeals Chamber granted the appeal and reversed the decision of the Trial Chamber to assign defense counsel to the accused without first providing him an explicit warning regarding restrictions on his right of self-representation. It nevertheless warned Seselj that his right to self-representation could be restricted if he uses it to substantially obstruct the proper and expeditious proceedings in the case.
The Appeals Chamber addresses two issues of first-instance to it: 1) whether a clear warning must be issued to an accused immediately before limiting the right to self-representation; and 2) whether the right to self-representation may be restricted at the pre-trial stage. It answers both issues in the affirmative.
Vojislav Seslej surrendered to the ICTY in February 2003. On August 21, 2006, the Trial Chamber ordered counsel to represent Seselj in his trial because his disruptive behavior and intimidation of the witnesses might "substantially and persistently obstruct the proper and expeditious conduct of a fair trial." Acting Counsel for Seselj appealed. The Appeals Chamber discussed that its standard of review is limited to whether the Trial Chamber correctly exercised its discretion to assign counsel. A party challenging this discretion must show that the Trial Chamber made a "discernible error" that prejudiced the party. Discernible errors which permit the Appeals Chamber to overturn the Trial Chamber's decision are: 1) an incorrect interpretation of governing law; 2) a patently incorrect conclusion of fact; or 3) a decision so unfair or unreasonable as to comprise an abuse of discretion. Article 21(4)(d) of the ICTY statute allows an accused to defend himself "in person" or through legal assistance of his "own choosing," which the Appeals Chamber in the Milosevic Defense counsel decision interpreted to mean the presumptive, but not absolute, right to self-representation. Trial Chambers may restrict the right when a defendant's self-representation "substantially and persistently obstructs the proper and expeditious conduct of his trial. Acting Counsel for Seselj argued that the Trial Chambers erred: 1) in its characterization of Seselj's behavior; 2) in its analysis of Articles 20 and 21(4)(d) of the ICTY statute and jurisprudence; and 3) the Trial Chamber's discretion in assigning counsel was unreasonable. The Appeals Chamber turned to Court rule 80(B), which allows a Trial Chamber to order the removal of an accused from the courtroom and continue proceedings in his absence if his disruptive behavior persists following a warning. The Appeals Chamber noted that the Trial Chamber erred by not providing Seselj with a warning indicating that if he persisted in his disruptive behavior his right to self-representation might be restricted, before assigning him counsel. The Appeals Chamber also faulted the Trial Chambers for applying the test whether Seselj's pre-trial behavior "provided a strong indication that self-representation may substantially and persistently obstruct the proper and expeditious conduct of the proceedings", when it should have satisfied itself that the behavior would in fact do so (emphasis added). The Appeals Chamber held that Acting Counsel failed to demonstrate that the Trial Chamber made a patently incorrect conclusion of fact when it considered Seselj's pre-trial behavior from his initial appearance in 2003 until 2006. The Appeals Chamber futher rejected the Acting Cousel's argument that the Trial Chambers did not follow the proportionality principle, and held that Acting Counsel failed to show how the Trial Chamber's decision to assign counsel to Seselj at trial was a disproportionate measure in light of his pre-trial behavior.
House of Lords, Secretary for the Home Department v. K (FC), [2006] UKHL 46 (October 18, 2006).
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At issue before the House of Lords was whether the appellants' well-founded fear of being persecuted for membership in a "protected social group" entitled them to refugee status pursuant to Article 1(A)(2) of the 1951 Convention Relating to the Status of Refugees (the Convention) and the 1967 Protocol.
The Convention defines a "refugee" as any person who "[o]wing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, outside the country of his nationality and is unable, or, owing to such fear, is unwilling to avail himself of the protection of that country. . . ." All of the Law Lords held that the appellants did fall within respective "particular social groups" and would allow appellants to appeal.
The first appellant is Iranian. After the arrest and disappearance of her husband in 2001, Revolutionary guards appeared at her home and raped her. She fled to the United Kingdom and claimed asylum. The Secretary of State denied her asylum claim and appellant appealed this decision to an adjudicator who held that she had a well-founded fear of persecution. The Secretary of State appealed this determination to an Immigration Appeal Tribunal that held that because the appellant's husband had not been persecuted for a Refugee Convention reason, the members of his family could not also be viewed as being so persecuted.
The second appellant is from Sierra Leone. She claimed asylum in March 2003, claiming that, if she returned to her home nation she would be subjected to female genital mutilation (FGM). The Secretary of State granted her limited leave to enter but denied her claim of asylum because he did not view girls at risk of FGM as a social group under the Refugee Convention. The second appellant appealed this determination to an Adjudicator, who held that the appellant's fear to return to her home nation was because of her membership in a particular social group: young, single Sierra Leonean women at risk of FGM. The Secretary of State appealed this determination to an Immigration Appeal Tribunal and the decision was reversed. The second appellant then appealed the challenged the Immigration Tribunal's decision.
In his opinion, the Lord Bingham of Cornhill noted that for refugees to obtain sanctuary under the Convention, they must fall within one of five categories: 1) race; 2) religion; 3) nationality; 4) political opinion; and 5) particular social group. At issue in this case is the fifth category. To help define what constitutes a "particular social group," for the purposes of the Convention, Lord Bingham analyzed the UNHCR and EU Council Directive 2004/83/ED. He emphasized that an individual is entitled to be treated as a refugee only where the persecutory treatment that the claimant fears is causally connected to a particular Convention category.
While the Lords concurred in permitting both appellants to appeal, their analyses and definitions of "particular social group" differ. Lord Bingham and Lord Rodger held that they would allow the first appellant's appeal, finding that her membership in her husband's family constituted a "particular social group," for the purposes of the Convention. Lord Bingham and Baroness Hale would allow the second appellant's appeal on the ground that she is a member of the particular group of uncircumcised women in Sierra Leone. Baroness Hale added that "[t]he answer in each case was so blindingly obvious that it must be a mystery to some why either of them had to reach this House," and she focused specifically upon the persecution the appellants faced because of their gender. Lord Craighead would avoid defining the second appellant in terms of whether she is likely to be persecuted, and instead focus on second appellant's status as an uninitiated woman in Sierra Leone. Lord Rodger would focus on both uninitiated and intact women forced to undergo FGM.
The Presbyterian Church of Sudan v. Talisman Energy, Inc., (S.D. N.Y., Sept. 12, 2006)
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The United States District Court for the Southern District of New York granted the defendant's motion for summary judgment in an Alien Tort Claims Act suit, finding that the plaintiffs failed to present sufficient admissible evidence of violations of international law to be able to proceed to trial on their claims.
Despite the court's granting of the motion for summary judgment, the case is nevertheless noteworthy as an example of a recent line of cases in which multi-national corporations are sued under the Alien Tort Claims Act (see for example, Doe I. v. Exxon Mobil Corp., 393 F. Supp. 2d 20 (D.D.C. 2005).
Plaintiffs, purporting to represent all of the non-Muslims Africans living near lands in Southern Sudan replete with oil reserves, residents of Sudan, brought a suit pursuant to the Alien Tort Claims Act (ATS), 28 U.S.C. § 1350, against Talisman, Inc., a Canadian oil and gas exploration company, and the Republic of Sudan, for having conspired with the government, or aided the government in committing genocide, war crimes, and crimes against humanity. Talisman moved for summary judgment. The plaintiffs opposed the motion for summary judgment. They argued that Talisman engaged in a conspiracy to forcibly remove the non-Muslim Africans from the lands with the oil reserves and are therefore liable for the other acts of the co-conspirators. The District Court disagreed under the holding of the United States Supreme Court in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2719, 159 L.Ed. 718 (2004). In Sosa, the United States Supreme Court ruled that for an ATS claim to be cognizable, it must be "norm of international character accepted by the civilized world and defined with specificity comparable to the features of the 18th century paradigms" that Congress envisioned when it enacted the ATS. The District Court noted that international law extends conspiratorial liability only to conspiracies to commit genocide and to the waging of aggressive war, and not to the crimes against humanity claims contemplated by the plaintiffs. In doing so, the court disagreed with the Eleventh Circuit in Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir. 2005). The court also held that the plaintiffs had not identified requisite evidence to raise a material question of fact the Talisman could be found liable for aiding and abetting the Sudanese government in the commission of genocide, crimes against humanity, or war crimes, because plaintiffs were unable to demonstrate that Talisman committed an act that could be deemed to constitute "substantial assistance" to the government in contravention of international law. The court dismissed claims brought by the Nuer Community Development Services (NCDS) because NCDS is not an alien and therefore is not able to bring suit under the ATS.
International Criminal Tribunal for Rwanda (ICTR), Prosecutor v. Bagosora (ICTR-98-41-T) (October 6, 2006).
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The Trial Chamber denied the defense motion to subpoena Kofi Annan, Iqbal Riza, Shaharyar Khan, and Michael Hourigan.
Kofi Annan and Iqbal Riza were officials in the Department of Peacekeeping Operation (DPKO) in New York in 1994. The defense moved to require Mr. Annan to submit to an interview, and Mr. Riza appear at the tribunal. The Office of Legal Affairs at the United Nations challenged the defense motion contending that the defense did not enunciate the factual and legal bases for the appearance of the witnesses or for Mr. Annan to be interviewed. The defense argued that as officials of the DPKO, Mr. Annan and Mr. Riza lacked information in the months before April 1994 showing that there was any plan or conspiracy to commit genocide, as had been claimed in the indictment. In its analysis of the motion, the Trial Chamber followed the jurisprudence of both the ICTR and the ICTY requiring an applicant for a subpoena to demonstrate that: 1) reasonable attempts have been made to obtain the voluntary cooperation of the witness; 2) the witness's testimony can materially assist the applicant in respect of clearly identified issues; and 3) the witness's testimony must be necessary and appropriate for the conduct and fairness of the trial. The Trial Chamber noted however, that the UN Office of Legal Affairs offered to continue to cooperate with the defense and provide it with a statement rather than oral testimony, so that the necessary prerequisite for obtaining a subpoena, the exhaustion of reasonable attempts to obtain the voluntary cooperation of the witness, had not been met.
Shaharyar Kahn became the Special Representative of the Secretary-General (SRSG) in Rwanda and served in Kigali from July 1994 until March 1996. The defense sought to subpoena him regarding a letter he wrote in 1995 in which he indicated that neither the DPKO nor UNAMIR had warning of forthcoming genocide before April 1994. Mr. Kahn also ostensibly drafted the first list of war crimes suspects in the summer of 1995 and omitted the name of the accused, which the defense argued was an important fact. The Trial Chamber did not view Mr. Khan's purported information as justifying the issuance of a subpoena because the defense failed to indicate whether this data provided anything that was not already contained in other documents. The court viewed the omission of the accused on Mr. Kahn's list of possible subjects of war crimes investigations, as of only limited value.
Michael Hourigan, was a former investigator in the Office of the Prosecutor. The defense sought to obtain his testimony regarding the shooting down of the Rwandan Presidential airplane on the evening of April 6, 1994. Because the accused was not charged with crimes relating to conspiracy to attack the Presidential airplane, and because the responsibility for the shooting down of the Presidential airplane did not make the crimes alleged to have been committed by the accused and his subordinates any less likely, the Trial Chamber denied the motion to subpoena him as well.
United States: Secure Fence Act of 2006 (President signed October 26, 2006).
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The "Secure Fence Act of 2006" (P.L. 109-367)("the Act") is designed to "establish operational control over the international land and maritime borders of the United States." The Act calls for the Secretary of Homeland Security to take all actions he deems necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the U.S. including systematic surveillance, and physical infrastructure enhancements to "prevent unlawful entry by aliens" into the United States. He is to report to Congress annually on the progress made in obtaining and preserving operational control of the border of the United States. The Act amends the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to permit the installation of hundreds of miles of reinforced fencing and an interlocking surveillance camera system. It calls for a study to be conducted to examine the feasibility, necessity, and economic impact of implementing a state of the art infrastructure security system along the northern international land and maritime border of the United States, and for a report to be issued a year from the date of the signing of the Act containing the findings of the study.
International Law In Brief (ILIB) - Copyright 2006 - The American Society of International Law (ASIL)
Editor: Susan A. Notar
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