International Law In Brief
Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
January 11, 2008
©2008 American Society of International Law
(Educational copying is permitted with due acknowledgment)
| JUDICIAL AND SIMILAR PROCEEDINGS· | |
| Federal Court of Canada: Canadian Council for Refugees v. The Queen (November 29, 2007) | |
TREATIES, AGREEMENTS AND RELATED DOCUMENTS
German Bundestag Commits to the European Union and the United States Agreement on the Processing and Transfer of Passenger Name Record Data by Air Carriers (December 20, 2007)
Click here for document. (Approximately 7 pages)
The German Bundestag signed the agreement between the European Union and the United States regarding the processing and transfer of passenger name record data (2007 PNR Agreement) December 20, 2007. The EU and US entered into the PNR Agreement in July 2007. It permits the United States Department of Homeland Security (DHS) to obtain PNR data contained in the reservation systems of European Union air carriers. PNR data includes the names of the travelers, the dates that a reservation was made and of travel, all available contact and billing information, frequent flier data, and seat information. The DHS uses this data to fight terrorism and organized crime that is transnational in nature, as well as to prevent flights from warrants or custody for related offenses.
JUDICIAL AND SIMILAR PROCEEDINGS
Federal Court of Canada: Canadian Council for Refugees v. The Queen (November 29, 2007)
Click here for document. (Approximately 121 pages).
The Federal Court of Canada (Court) held that the United States does not meet the prerequisites for Canada to enter into a "Safe Third Country" Agreement (STCA) because it fails to comply with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture (CAT). Further, the Court held that Canada has also failed to conduct the parliamentary-mandated periodic reviews that the STCA requires to ensure that the U.S. met its Refugee Convention and CAT obligations.
The Canadian Council for Refugees (CCR), the Canadian Council of Churches (CCC), Amnesty International (AI), and John Doe, a Columbian refugee in the U.S., brought suit challenging the STCA between the U.S. and Canada. They alleged that the STCA was invalid because the U.S. failed to meet its obligations of complying with Article 33 of the Refugee Convention regarding the non-refoulement (return) provisions of the Refugee Convention and the CAT. The STCA precludes, with some exceptions, a foreign national from a designated country who attempts to enter Canada from claiming refugee status. Canada and the U.S. signed the STCA in 2002 and it entered into force December 29, 2004. Regulations incorporated the STCA into domestic Canadian law in the Immigration Refugee Protection Act (IRPA). Article 4(1) of the STCA requires the country of last presence to investigate the refugee status claim of any person arriving at a land border port of entry (not sea or air) who makes such a claim. The STCA operated so that when someone traveled through the U.S. to reach Canada by land and attempted to claim refugee status, Canadian authorities had to return the individual to the U.S. without considering his claim.
The Court articulated the central issue as being whether the regulation designating the U.S. as a safe third country was ultra vires Parliaments power to create it. Section 102 of the IRPA conditioned entry into a STCA upon the government determining that the other nation met the requirements of the Refugee Convention and the CAT. The Court applied a standard of review of reasonableness to find that because the U.S. did not comply with international law, the government had no power to designate the country as safe for the purposes of the STCA. In its discussion of the U.S. failure to comply with the non-refoulement provisions of the Refugee Convention and the CAT, the Court found particularly persuasive the U.S. legislative requirement that asylum applications must be filed within one year after arrival in the U.S. or be time-barred. In Canada delay is never determinative of an asylum claim. The Court thus held that this requirement is not consistent with the Refugee Convention and CAT. The Court was also troubled by the expansion that the USA PATRIOT Act made to the definition of terrorist activities with the result that duress or coercion may no longer be considered a defense to engaging in material support of terrorists for the purpose of asylum claims. It contrasted the absolute prohibition against removal to torture contained in both Article 3 of the CAT and Canadian law with the practice in the U.S. where it is not an absolute bar for deportation.
In its examination of applicants claim that the government failed to conduct periodic reviews to determine whether the U.S. met its Refugee Convention and CAT obligations as a necessary condition for the STCA, the Court noted that while the legislation does not mention a specific timeframe for the reviews, it does indicate that they should be continuous and regular. The Court held that the fact that the government failed to conduct a single review in two years violates this provision.
RESOLUTIONS, DECLARATIONS, AND OTHER DOCUMENTS
The Sudan Accountability and Divestment Act of 2007 (S.2271) (December 31, 2007)
Click here for document. (Approximately 10 pages).
President George W. Bush signed the Sudan Accountability and Divestment Act (the Act) into Law December 31, 2007. Section 3 of the Act permits state and local governments to divest from, and prohibit the investment in, business operations in Sudan in a variety of sectors including power production, mineral extraction, and the fabrication of military equipment. It exempts business operations that are able to demonstrate that they have a license from the Office of Foreign Assets Control, those which are providing good or services to marginalized persons in Sudan, peacekeeping forces, and humanitarian organizations from having to comply with the provisions of the Act. Section 6 of the Act requires government contractors to certify to the heads of executive branch agencies that they are not conducting business in Sudan in violation of the Act. The President may waive this requirement on a case-by-case basis by writing to the appropriate Congressional committee and indicating that it is in the national interest to do so. The Act permits the heads of executive branch agencies to suspend or debar contractors from eligibility for Federal contracts for up to three years for a false certification that they are complying with the mandates of the Act. It requires the Security and Exchange Commission to promulgate regulations mandating that registered investment companies disclose their divestment pursuant to the Act. It expresses the Sense of Congress that the President should continue to work with others in the international community to help bring about the immediate deployment of the peacekeeping force in Sudan, as well as support multilateral sanctions against Sudan in the UN Security Council for the acts of genocide against the people in Darfur.
JUDICIAL AND SIMILAR PROCEEDINGS
President George W. Bush Signing Statement to the Sudan Accountability and Divestment Act of 2007 (December 31, 2007)
Click here for document. (Approximately 121 pages).
In his signing statement to the Act, President Bush emphasized that while it authorizes state and local governments to divest from companies doing business in Sudan, and thus could potentially be interpreted as immunizing state divestment actions from Federal oversight, the Constitution nevertheless vests the executive with authority to conduct foreign relations and the Act should be interpreted consistently with that authority.
United Nations General Assembly Adopts Two-year Budget (December 23, 2007)
Click here for document.
The United Nations General Assembly adopted a $4.17 billion budget for the United Nations by a vote of 142-1 with the United States the sole negative vote. The spokesman for Secretary-General Ban Ki Moon noted that the Secretary-General found this lack of unanimity with respect to the budget for the first time in twenty years lamentable, and urged member nations to return to consensus decision-making and to demonstrate a greater sense of flexibility and compromise, beyond individual national interests and in the common cause of multilateralism for the good of humankind.
United Nations General Assembly Approves Sixth Committee Report on Criminal Accountability of United Nations Officials and Experts on Mission (November 19, 2007)
Click here for document. (Approximately 121 pages).
In December 2006 the UN General Assembly created an Ad Hoc Committee on Criminal Accountability of United Nations Officials and Experts on Mission. In November 2007, the General Assembly adopted a resolution in which its expresses its appreciation for the committees work and urges all member states to take all suitable steps to punish the crimes that UN officials commit, as permissible within their privileges and immunities and in accord with international human rights standards. The resolution strongly urges all member states that have not already done so, to pass legislation criminalizing acts that their nations commit while serving as UN officials or experts on missions. It urges member states to cooperate with each other and the UN in the investigation and prosecution of UN officials.
United Nations General Assembly Approves Sixth Committee Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law (November 20, 2007)
Click here for document. (Approximately 5 pages).
Noting that a better knowledge of international law will help to strengthen international peace and security the United Nations (UN) General Assembly adopted a resolution which takes a number of steps to reach that goal. It authorizes the Secretary-General to award a number of international law fellowships in 2008-2009 including at least one under the auspices of the Hamilton Shirley Amerasinghe Memorial Fellowship on the Law of the Sea. It appointed twenty-five representatives from member states to serve on the Advisory Committee on the Programme of Assistance to serve four year terms beginning January 1, 2008. The resolution also thanks the Secretary-General, the Office of Legal Affairs, and others, for their work to advance international law and update UN international law publications. Its expresses its appreciation to The Hague Academy of International law for its efforts to study and advance international law scholarship and urges member states to increase their financial contributions to the Academy.
International Law In Brief (ILIB) - Copyright 2008 - The American Society of International Law (ASIL)
Author: Susan A. Notar, Esq.
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To comment on this publication, send an e-mail message to Susan Notar, ILM Managing Editor at snotar@asil.org