Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
May 16, 2008

©2008 American Society of International Law
(Educational copying is permitted with due acknowledgment)

JUDICIAL AND SIMILAR PROCEEDINGS·
	World Trade Organization Report of the Appellate Body: United States'Final Anti-Dumping Measures on Stainless Steel from Mexico (April 30, 2008).
	Extraordinary Chambers in the Courts of Cambodia: Decision on Civil Party Participation in Provisional Detention Appeals (March 20, 2008).
	Atamirzayeva v. United States (May 7, 2008)
	Baran v. Beaty (11th Cir., May 2008)

TREATIES, AGREEMENTS, AND RELATED DOCUMENTS·
	United States and Canada: Memorandum of Understanding between Environment Canada and the United States Department of the Interior for the Conservation and Management of Shared Polar Bear Populations (May 8, 2008)

Briefly Noted: Ukraine becomes member of World Trade Organization·

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JUDICIAL AND SIMILAR PROCEEDINGS

World Trade Organization Report of the Appellate Body: United States'Final Anti-Dumping Measures on Stainless Steel from Mexico (April 30, 2008).

Click here for document. (Approximately 70 pages).

An Appellate Body of the World Trade Organization (WTO) reversed the Panel's findings and held that simple "zeroing" in periodic reviews is inconsistent with Article VI:2 of the GATT 1994 and Article 9.3 of the Anti-dumping agreement. It also reversed the Panel's findings and held that the U.S. acted inconsistently with Article VI:1 and VI:2 of the GATT 1994 and Articles 2.1, 2.4, and 9.3 of the Anti-Dumping Agreement by using simple zeroing in the five periodic reviews at issue in the case.. It recommended that the Dispute Settlement Body (DSB) ask the United States to bring its measures into conformity with its obligations under the GATT 1994 and the Anti-Dumping Agreement.

The dispute arose out of Mexico's January 31, 2008 appeal of the Panel Report, United States' Final Anti-Dumping Measures on Stainless Steel from Mexico, WT/DS344/R (December 20, 2007). Specifically Mexico contested the "simple zeroing" practice of the United States in which U.S. Department of Commerce officials in periodic reviews compare individual export transactions against average normal values and do not take into consideration comparisons when the export price is greater than the average normal value in aggregate sums to calculate the exporter's margin of dumping. The Appellate Body noted that this results in a levy of an anti-dumping duty that is greater than the exporter's margin of dumping and inconsistent with Article VI:2 of the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement. The Appellate Body criticized the Panel's use of an importer and transaction specific approach to dumping and margin of dumping and noted that it found no textual or contextual basis for such an approach.

In its decision, the Appellate Body noted that it has examined whether the zeroing methodology is WTO-consistent in the context of original investigations, periodic reviews, new shipper reviews, and sunset reviews, and in each context has found the practice WTO inconsistent with GATT 1994 and the Anti-Dumping Agreement (see for example US-Zeroing (Japan); and US-Zeroing (EC). Mexico argued that the Panel acted inconsistently with Article 11 of the DSU by failing to follow Appellate Body jurisprudence. The Appellate Body emphasized that while its reports are not binding except to resolve the particular dispute between the parties, subsequent panels are nonetheless not at liberty to disregard their legal interpretations, particularly as they become part of the acquis of the WTO dispute settlement system, helping to ensure "security and predictability." While it expressed its concern over the failure of the Panel to follow Appellate Body reports on the same issue, and the implications this poses for the WTO dispute settlement system, it nonetheless did not find a violation of Article 11 because it attributed the Panel's failure from its "misguided understanding of the legal provisions," in the case.

Extraordinary Chambers in the Courts of Cambodia: Decision on Civil Party Participation in Provisional Detention Appeals (March 20, 2008)

Click here for document. (Approximately 20 pages).

The Pre-Trial Chamber in the Extraordinary Chambers in the Courts of Cambodia (ECCC) refused Nuon Chea's (the accused) request to preclude participation by "Civil Parties" in provisional detention proceedings.

ECCC Internal Rule 23 permits victims to be designated as "Civil Parties" to permit them to participate in criminal proceedings against accused persons by supporting the prosecutor to seek collective and moral reparations. This must be balanced with ECCC Internal Rule 21(1)(a) which requires the proceedings to be conducted fairly and in an adversarial nature to preserve the rights of the parties. Counsel for the accused contended that the scope of Internal Rule 23 allowed Civil Parties to participate only at the merits stage of trials but not in pre-trial proceedings. By contrast, the international co-prosecutor asserted that Rule 23 did not limit Civil Parties' participation to the merits stage, and he cited evolving international criminal law practice and the Lubanga decision in the International Criminal Court (ICC), which permitted a group of victims to participate in a pre-detention appeal. Counsel for the Civil Parties claimed that they had the right to participate in the proceedings from their commencement. On February 12, 2008, the Pre-Trial Chamber issued an order for the parties and amici curiae to file briefs on the issue of balancing a fair trial for the accused with the rights of Civil Parties to participate.

In its analysis the Pre-Trial Chamber examined ECCC internal rules 21 and 23, Cambodian Procedure and Practice and international standards. It discussed the United Nations General Assembly (GA) Resolution 40/34 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power Principle 6 which endeavors to improve judicial responsiveness to the needs of victims by allowing victims' views and concerns to be considered at "appropriate stages of the proceedings" without prejudice to the accused. It examined Article 68(3) of the Rome Statute which substantially repeats the language of the GA Resolution and allows the ICC to permit the views of victims to be presented at "appropriate stages" and in a manner that is not prejudicial to the rights of the accused. It further weighed Articles 80, 81, and 82 of the Provisional Criminal Procedure Code of Kosovo which allows injured parties to propose evidence at all stages of the proceedings. The Pre-Trial Chamber thus found that to read Internal Rule 23(1) as encompassing Civil Parties' participation in proceedings of appeals against detention orders was consistent with international guidelines and the procedural rules of international criminal tribunals and must be regarded as generally complying with fair trial principles.

Atamirzayeva v. United States (Fed. Cir. May 7, 2008)

Click here for document. (Approximately 17 pages).

The U.S. Court of Appeals for the Federal Circuit (Court) affirmed the Court of Federal Claim's dismissal of Ms. Zoya Atamirzayeva's Takings claim pursuant to the Fifth Amendment to the U.S. Constitution, holding that she lacked a sufficient relationship with the United States to bring suit under the takings clause as a foreign national for an extraterritorial taking of property.

Ms. Zoya Atamirzayeva is a citizen of Uzbekistan who resides in Tashkent and owned a cafeteria next to the U.S. Embassy. She claimed that in December 1999 officials from the U.S. Embassy asked Uzbeki authorities to raze the cafeteria to improve the security of the embassy. The next day local authorities seized the cafeteria and destroyed it. Ms. Atamirzayeva sought compensation from the local authorities and the U.S. Embassy without success. She then brought suit pursuant to the Takings Clause of the Fifth Amendment to the U.S. Constitution at the Court of Federal Claims. It dismissed, holding that Ms. Atamirzayeva pleaded no connection to the United States to permit her to obtain compensation under the Takings Clause.

Baran v. Beaty (11th Cir., May 2008)

Click here for document. (Approximately 28 pages).

The United States Court of Appeals for the Eleventh Circuit (Court) affirmed the decision of the District Court denying the petition of Gareth Baran for return of his son to Australia.

Gareth Baran is an Australian citizen. He and Susan Beaty, A U.S. citizen from Alabama lived together and had a son, Samuel, in March 2006. After sustaining injuries in an automobile accident Baran was unable to work. Beaty cared for him and Samuel. Baran became depressed and began drinking heavily and regularly threatened and beat Beaty. On August 20, 2006, Beaty took Samuel and fled to Alabama. On September 21, 2006 Baran applied for a return of Samuel pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the Convention), and he filed a petition in federal District court seeking Samuel's return February 16, 2007. The District Court held on March 28, 2007, that although Beaty had wrongfully removed Samuel from Australia without Baran's permission, Samuel risked grave harm if he were returned to Australia to be with his father (see Baran v. Beaty, 479 F.Supp. 2d 1257 (S.D. Ala. 2007). Baran appealed.

The U.S. became a party to the Hague Convention on the Civil Aspects of Child Abduction in 1980 and implements it through the International Child Abduction Remedies Act of 1988 (ICARA) 42 U.S.C. §11603(b). The Convention is designed to protect children from the negative consequences of their wrongful removal or retention and to create measures to ensure their timely return to their "habitual residence." In its discussion the Court first examined whether Beaty's removal of Samuel was "wrongful." If so, the Convention provides the non-abducting parent the ability to have the child returned. While Beaty admits that she wrongfully removed Samuel, she raised the defense that Samuel would risk grave harm pursuant to Article 13(b) of the Convention were he to be returned to Baran in Australia. Baran by contrast, claimed that the District Court erred by failing to show that his alleged conduct was grave enough to deny his return petition. Under ICARA, the party opposing a child's return must demonstrate the "grave risk" exception by clear and convincing evidence. The Court rejected Baran's argument that Beaty must not only demonstrate a grave risk of harm but also that the Australian Courts were unable or unwilling to safeguard the child. The Court likewise rejected Baran's contention that the District Court erred by denying the return without allowing him to present evidence of possible "undertakings," or court imposed measures, to help protect Samuel. The Court noted that Baran bore the burden of demonstrating undertakings which would help protect Samuel, but he was unable to do so at trial. It thus affirmed the decision of the District Court, holding that it fell within its discretion to deny Baran's petition for return.

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TREATIES, AGREEMENTS, AND RELATED DOCUMENTS

United States and Canada: Memorandum of Understanding between Environment Canada and the United States Department of the Interior for the Conservation and Management of Shared Polar Bear Populations (May 8, 2008)

Click here for document. (Approximately 4 pages).

Environment Canada through the Canadian Wildlife Service, and the U.S. Department of the Interior through the U.S. Fish and Wildlife Service (the Participants) entered into a Memorandum of Understanding (MOU) May 8, 2008 regarding the protection of polar bear populations. On May 14, 2008, the U.S. Secretary of the Interior declared polar bears a "threatened species" under the Endangered Species Act, a decision which the territorial government of Nunavut condemned.

The preambular language of the MOU notes that the United States, Canada, Norway, Denmark (for Greenland), and the Russian Federation, are parties to the 1973 Agreement for the Conservation of Polar Bears.

The purpose of the MOU is to help improve collaboration and the development of partnerships between the Participants and other interested parties regarding the conservation and management of polar bears and to implement both an immediate and a long-term strategy addressing specific elements of the polar bear population. The MOU creates a Bilateral Oversight Group comprised of the United States and Canadian governments as well as Native and Aboriginal peoples of both nations with expertise on polar bears. The MOU specifies that it will operate in accord with international treaties and conventions in force. The Participants agree to create a cooperative polar bear conservation plan; identify key polar bear habitats; share information on current conservation work; model efforts for an Artic Species Conservation Initiative; develop tools to increase research as well as draw upon Aboriginal knowledge of polar bears; and establish baseline data on polar bear populations as well as which data are needed to link demographic changes to fluctuations in sea ice.

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Briefly Noted: Ukraine becomes 152nd Member of World Trade Organization

Click here for document.

Director General Pascal Lamy welcomed Ukraine as the 152nd member of the World Trade Organization May 16, 2008. Ukraine began its accession negotiations fifteen years ago in 1993. It ratified its accession package April 16, 2008.

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