2005 International Law Update, Volume 11, Number 7 (July)

2005 International Law Update, Volume 11, Number 7 (July)

Legal Analyses published by Mike Meier, Attorney at Law. Copyright 2017 Mike Meier. www.internationallawinfo.com. 

ARBITRATION

In dispute over enforceability of international arbitration award, D.C. Circuit holds that district court had jurisdiction over Ukrainian state entity by virtue of FSIA’s arbitration exception and because “minimum contacts” requirements of Due Process Clause do not apply to entities that are identical with foreign state itself

TMR Energy Ltd. (TMR) is a Cyprus-based corporation. It brought an action in the District of Columbia federal court to confirm an arbitration award it had obtained in Sweden against the State Property Fund of Ukraine (SPF).

The dispute arose after the Ukraine had declared its independence in 1991. The State-owned Lisichansk Oil Refining Works (LOR) entered into a joint venture called Lisoil with a Swiss company to modernize an oil refinery in eastern Ukraine.

The Swiss company later assigned its interest in Lisoil to TMR. As part of its privatization program, the Ukranian government converted LOR into a joint stock company called Linos. SPF held 67 percent of Linos shares on behalf of the Ukraine.

In 1997, Linos ran into economic problems and stopped shipping crude oil to the Lisoil refinery. Three years later, TMR started arbitration proceedings in Sweden against SPF, Linos, and the State of Ukraine. The arbitrators found that SPF had failed to comply with its contract duties and awarded TMR $36.7 million in damages.

In the present suit, TMR is seeking to enforce that award. The district court later entered judgment in favor of TMR, and SPF appealed. The U.S. Court of Appeals for the District of Columbia Circuit, however, affirms.

SPF argued that the district court should have dismissed the case because SPF lacked the required minimum contacts with the U.S. The appellate Court disagrees.

It first rules that there is personal jurisdiction over SPF based on the arbitration exception to the Foreign Sovereign Immunities Act (FSIA) (28 U.S.C. Section 1605(a)(6)(B)). This section recognizes an exception from immunity for a foreign state in the enforcement of an arbitration award that “is or may be governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards.” See Convention on the Recognition and Enforcement of Foreign Arbitral Awards (June 7, 1959, 21 U.S.T. 2517; T.I.A.S. 6997; 330 U.N.T.S. 3), often referred to as the “New York Convention.”

To get around this clear exception, the Ukraine argued that the Due Process Clause of the Fifth Amendment to the U.S. Constitution requires a nexus with the forum where enforcement is sought. SPF claims to lack the requisite “minimum contacts” because it lacks any significant relationship to the District of Columbia. The Court, however, is unpersuaded.

“This court rejected a similar argument in Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82 (D.C. Cir. 2002). There we held a foreign state is not a ‘person’ as that term is used in the due process clause. ... We noted first that, ‘in common usage, the term ‘person’ does not include the sovereign,’ and went on to observe that it would make no sense ‘to treat foreign sovereigns more favorably that ‘States of the Union,’ which are decidedly not ‘persons’ within the meaning of the due process clause. ...”

“That is not to say [that] a foreign state is utterly without recourse but only that, ‘[u]nlike private entities, foreign nations [being] the juridical equals of the government that seeks to assert jurisdiction over them,’ have available ‘a panoply of mechanisms in the international arena through which so (sic) seek vindication or redress’ if they believe they have been wrongly haled into court in the United States .... In short, it is not to the due process clause but to international law and to the comity among nations, as codified in part by the FSIA, that a foreign state must look for protection in the American legal system.” [Slip op. 4-5]

In the Court’s view, this principle may apply to government-controlled entities as well. The question there is whether the entity at issue has a constitutional status different from that of the State itself. “If the State of Ukraine exerted sufficient control over the SPF to make it an agent of the State, then there is no reason to extend to the SPF a constitutional right that is denied to the sovereign itself.”

“The record in this case shows that the State of Ukraine has plenary control over the SPF. ... [T]he SPF’s chairman is ‘appointed and discharged by the President of the Ukraine ... [T]he SPF’s expenses are paid from the budget of the State of Ukraine. From these structural features it is apparent that the SPF is an agent of the State, barely distinguishable from an executive department of the government, and should not be treated as an independent juridical entity. Therefore, the SPF – like its principal, the State of Ukraine – is not a ‘person’ for purposes of the due process clause and cannot invoke the minimum contacts test to avoid personal jurisdiction of the district court.” [Slip op. 6]

The Court also rejects SPF’s contention that customary international law also requires “minimum contacts” with the forum. “Never does customary international law prevail over a contrary federal statute. ... In this case, the controlling federal statute is 28 U.S.C. Section 1330(b): ‘Personal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have jurisdiction under subsection (a) where service has been made under section 1608 of this title.’ That provision clearly expresses the decision of the Congress to confer upon the federal courts personal jurisdiction over a properly served foreign state - and hence its agent - coextensive with the exceptions to foreign sovereign immunity in the FSIA.”

“We therefore reject the SPF’s attempt to condition the jurisdiction of the courts of the United States upon the ‘minimum contacts’ purportedly required under customary international law; we hold the district court properly asserted personal jurisdiction over the SPF based solely upon the requirements of the FSIA.” [Slip op. 6]

Citation: TMR Energy Ltd. v. State Property Fund of Ukraine, 411 F.3d 296 (D.C. Cir. 2005).

CHILD CUSTODY

Where mother of minor child whose habitual residence is Saudi Arabia wishes to retain child with her in England indefinitely, House of Lords unanimously rules that trial court acted within its discretion in allowing them to remain in England since cardinal criteria for court to apply centers on welfare of child not on stricter provisions of Hague Abduction Convention since Saudi Arabia is not party thereto

J, the five-year-old boy in question, had a father (F) who was a Saudi Arabian citizen. The mother (M) had dual Saudi Arabian and British nationality, having been born in the U. K. to Iraqi Kurdish parents who had come there as refugees. F and M married in 1999 in Saudi Arabia, but were divorced there two years later. M bore J in April 2000 while in the United States for medical treatment, thus granting U.S. citizenship to J. The parties remarried in 2002. Later that year, M and J sojourned in England with F’s concurrence. The visit started out as a holiday but F later went along with their staying in Britain so that M could complete a one‑year master’s degree course.

During this period, M filed a petition for divorce in the English Family Court. She also applied to the Muslim Council in London to obtain a divorce according to Shariah law derived from the Koran. F then applied for a specific issue order to have J summarily sent back to Saudi Arabia. F did not deny that the marriage was over, and that M should continue to care for J. On the other hand, he urged that the court order both of them to live in Saudi Arabia.

The first instance judge held that, except for one factor, J’s return to Saudi Arabia would seemingly be in his best interests in the sense that his future might best be determined according to the norms of his own society. The decisive contrary elements were (1) that F had raised (and then withdrawn) charges about M’s having an affair with another man and (2) that these allegations would have a disastrous impact on M and J under Saudi Arabian Shariah law. The judge therefore exercised his discretion to decline to make the order F had asked for.

The Court of Appeal (Civil Division) held that there could be no criticism of the judge’s flawless direction on the applicable legal principles. Nevertheless, it allowed F’s appeal, ruling that the judge had a much greater concern that F might again bring up M’s alleged misconduct in the Shariah court than the evidence warranted.

M appealed to the House of Lords. In an opinion by Baroness Hale of Richmond, the Lords of Appeal reverse the Court of Appeal and reinstate the trial judge’s ruling.

In addition to the proper extent of the trial judge’s discretion, the issue arose as to how, if at all, it was relevant that the laws and procedures in Saudi Arabia differed from those that would apply if an English court were to determine J’s future. F argued for a strong presumption that it was very likely to be in the best interests of a child subject to unauthorized removal or retention to be sent back to his country of “habitual residence” so that its courts could determine any remaining issues.

Saudi Arabia, however, is not a party to the 1983 Convention on the Civil Aspects of International Child Abduction [T.I.A.S. 11670]. Technically, had this been a Convention case, M’s action would probably have amounted to a wrongful retention of J, though far removed from the popular picture of a “kidnaping” or even an “abduction.”

The Lords of Appeal decide that the Court of Appeal had gone too far in tampering with the exercise of the trial judge’s discretion. If there was a discretion in which various factors were relevant, the weighing of those factors rested upon the trial judge. Only if his decision was so plainly wrong that he had assigned far too much weight to a particular factor was the appellate court supposed to interfere.

If trial judges come to believe that, even if they directed themselves impeccably on the law and made findings of fact based on the evidence, an appellate court was liable to set aside their decisions unless they reached a particular conclusion, they will soon conclude that they did not in effect have any choice or discretion in the matter.

The Lords point out that under English statutes and common law, its courts should try to determine what is in the best interests of the child as the cardinal criterion in child custody matters. “[On the other hand] the application of the welfare principle may be specifically excluded by statute; one example is the Child Abduction and Custody Act 1985, passed to give effect in domestic law to two international treaties, the Hague Abduction Convention [cited above] ... and the European Convention on the Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children.”

“Both treaties were motivated by the belief that it is in the best interests of children for disputes about their future to be decided in their home countries, and that one parent should not be able to take a child from one country to another, either in the hope of obtaining a tactical advantage in the dispute or to avoid the effects of an order made in the home country. Instead of deciding the dispute itself, therefore, the country to which the child was taken agreed that, with very few exceptions, it would either send the child back or enforce the order made in the home country.”

“This necessarily meant that the receiving country might on occasion have to do something which was not in the best interests of the individual child involved. The States which became parties to these treaties accepted this disadvantage to some individual children for the sake of the greater advantage to children in general. Parents would be deterred from moving their children across borders without consent. States which sent other countries’ children back could expect that other States would send their own children back in return. The obligations were mutual and reciprocal.” [¶ 20]

“The [Hague] Convention is widely regarded as a great success, particularly in combating the paradigm case which its authors had in mind: the child who was living with one parent but snatched or spirited away by the other. Currently the Convention is in force between the United Kingdom and the [United States and the 73 other] Contracting States listed in Schedule 2 to the Child Abduction and Custody (Parties to Convention) Order 1986 (SI 1986/1139), as amended.”

“In at least three Contracting States, Turkey, Turkmenistan and Uzbekistan, the predominant religion practiced by their populations is Islam. Obviously, the cultures and legal systems of the Contracting States will differ widely from one another. All are prepared to accept these differences for the sake of the reciprocal benefits which membership can bring. But one group of States is conspicuous by its absence. These are States which adopt some form of Shariah law.” [¶ 21]

“There is no warrant, either in statute or authority, for the principles of the Hague Convention to be extended to countries which are not parties to it. Section 1(1) of the 1989 Act, ... is of general application. This is so even in a case where a friendly foreign state has made orders about the child’s future.” [¶ 22]

“Hence, in all non‑Convention cases, the [English] courts have consistently held that they must act in accordance with the welfare of the individual child. If they do decide to return the child, that is because it is in his best interests to do so, not because the welfare principle has been superseded by some other consideration. ... Hence, the first two propositions set out by [the trial judge] in this case were entirely correct: the child’s welfare is paramount and the specialist rules and concepts of the Hague Convention are not to be applied by analogy in a non‑Convention case.” [¶ 25]

Citation: Re J (a child), [2005] U.K.H.L. 40 [2005] All E.R. (D) 150 (Jun), (House of Lords, June 16)(Approved judgment).

ENDANGERED SPECIES

United States approves inability of Japan and other pro-whaling nations to succeed in their bids to ease commercial whaling restrictions at 2005 International Whaling Commission meeting

During the 57th Annual Meeting of the International Whaling Commission (IWC) June 20-24, 2005 in Ulsan, Republic of Korea, Japan and other pro-whaling nations lost several important votes. Japan mainly called for allowing its northern coastal communities to resume limited hunts of Minke whales. The Commission members voted down this bid in a 29-26 vote, far short of the three-fourths requirement needed under IWC rules.

The Japanese government has long maintained the view that whale meat remains a food delicacy and is part of traditional Japanese culture. Since the ban on commercial whaling in 1986, Japan has continued to hunt a limited number of whales supposedly to study them. Critics have called this practice a 19-year-old loophole in the ban of commercial whaling. Under IWC rules, Japan has to sell the whale meat once the research is over. Critics claim that most of this whale meat ends up for sale in Japanese delicacy stores and upscale restaurants.

Japan also claims that it needs to kill a limited amount of whales to learn the specifics of their diet by analyzing their stomach contents. At the recent meeting, Japan argued for an expansion of its existing research program to almost double its annual catch from 440 Minke whales per year and, after a two-year feasibility study, to include 50 Humpback and 50 Fin whales.

In response to Japan’s plan, Australia moved to criticize Japan’s expansion of its research program. The Australian proposal said the Japanese should withdraw their plan unless they could carry out the new research without killing the whales; it also called for the Commission to look into Japan’s current research program.

The IWC voted in favor of the Australian proposal on June 23. Though the vote has no binding effect on the Japanese research program, it does deal a further blow to Japan’s hopes of expanding commercial whaling. See IWC Resolution on JARPA II (Resolution 2005-1).

On June 24, 2005, the U.S. Department of State issued a Press Statement. In part, it declared: “The United States is pleased that, at its 57th annual meeting that concluded today in Uslan, South Korea, the International Whaling Commission passed a resolution defeating Japan’s proposal to greatly expand its lethal whale research program in the Southern Ocean. ... The United States is disappointed that Japan has indicated it will proceed with the program, despite this expression of opposition.”

Citation: Press Release and Resolutions of International Whaling Commission’s Annual Meeting available at its website “www.iwcoffice.org”; “Japan loses new bid to hunt whales,” AP press release of June 23, 2005, published at www.cnn.com; “Japan pressed over whale-kill hike,” Reuters press release of June 21, 2005, published at www.cnn.com; “Pro-whaling nations eye taking control of IWC,” Reuters repress (sic) release of Monday, June 20, 2005; U.S. Federal News (HT Syndication), June 25, 2005.

FORFEITURE

Ninth Circuit holds that U.S. seafood importer could not assert “Innocent Owner” defense in Lacey Act forfeiture proceedings against crab originally caught in violation of Russian Fishing Regulations

This interlocutory appeal arises out of the U.S. District Court for the Western District of Washington’s rejection of an importer’s “innocent owner” defense in forfeiture proceedings brought by the U.S. to seize about 144,774 pounds of the importer’s blue king crab. Two Russian vessels had harvested the crabs within the Russian Exclusive Economic Zone (EEZ). Deep Sea Fisheries, Inc. (Deep Sea) later acquired the shipment but when it tried to import the crab into the U.S. at Blaine, Washington, U.S. Customs officials seized the shipment.

The United States brought the forfeiture action under the Lacey Act [16 U.S.C. Section 3372(a)(2)(A)]. The Act makes it unlawful for any person “to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce — any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law.”

The U.S. alleged that Deep Sea had taken, possessed, transported, and sold the crabs in violation of Russian fishing and resource-protection laws. Russian authorities backed these claims, declaring that, if the fishing vessels had captured the crabs in its EEZ without reporting their loading or transportation, they had contravened Russian law.

Deep Sea answered the complaint raising, inter alia, the “innocent ownership” defense under the Civil Asset Forfeiture Reform Act (CAFRA), 18 U.S.C. Section 983(d). CAFRA provides that: “(1) An innocent owner’s interest in property shall not be forfeited under any civil forfeiture statute. The claimant shall have the burden of proving that the claimant is an innocent owner by a preponderance of the evidence.”

“(2)(A) With respect to a property interest in existence at the time the illegal conduct giving rise to forfeiture took place, the term ‘innocent owner’ means an owner who -- (I) did not know of the conduct giving rise to forfeiture; or (ii) upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property.”

The Government countered that Deep Sea could not invoke the “innocent owner” defense because CAFRA Section 983(d)(4) states that “no person may assert an ownership interest under this subsection in contraband or other property that it is illegal to possess.”

The district court granted partial summary judgment to the U.S. On interlocutory appeal, Deep Sea argued that CAFRA Section 983(d)(4) does not preclude its “innocent owner” defense because it was not inherently illegal to possess the crab. Moreover, Deep Sea noted that the district court’s construction of the term “contraband” to include illegally imported goods would result in disparate treatment between fish caught in violation of domestic law and fish caught contrary to international law.

The U.S. Court of Appeals for the Ninth Circuit affirms. It explains that: “The Lacey Act ... has a strict liability forfeiture provision: All fish or wildlife or plants imported, exported, transported, sold, received, acquired, or purchased contrary to the provisions of section 3372 of this title (other than section 3372(b) of this title), or any regulation issued pursuant thereto, shall be subject to forfeiture to the United States notwithstanding any culpability requirements for civil penalty assessment or criminal prosecution included in section 3373 of this title.” [Slip op. 4] (Emphasis added).

Additionally, the Court rejects Deep Sea’s assertion that, for the purposes of CAFRA Section 983(d)(4), “property that it is illegal to possess” refers only to property whose possession is inherently illegal, i.e., contraband. “As the government argues, the fact that ‘contraband’ and ‘other property that it is illegal to possess’ are separated by an ‘or’ signifies that Congress intended them to mean two separate things...”

“Deep Sea’s proposed construction, that property that it is illegal to possess’ has an identical definition to ‘contraband,’ which it defines as contraband per se, contravenes our duty to give independent meaning to both phrases in the statute. We believe that the phrase ‘other property that it is illegal to possess’ includes property that becomes illegal to possess because of extrinsic circumstances.” [Slip op. 5]

The Court next decides that, when someone catches crabs in violation of Russian law, this makes the crabs “illegal to possess” under U.S. Law. “Deep Sea asserts that the possession of crab is not in itself illegal. Rather, the crab at issue is merely tainted by the associated violations of Russian law¼ We disagree. We do not find dispositive the fact that the government must prove that the crab here is the product of violations of Russian law in a forfeiture proceeding before it is determined to be ‘illegal to possess.’” [Slip op. 5-6]

Analogizing this case to the law on unstamped cigarettes, the Court points out that, though possessing the cigarettes is not intrinsically illegal, the government can lawfully ban them if it has not pre-approved them for tax exemption. “We hold that Deep Sea may not raise an innocent owner defense here because, if the government can establish that the crab was taken, possessed, transported, or sold in a way that rendered it illegal under Russian law, the crab is ‘property that it is illegal to possess’ for the purposes of 18 U.S.C. Section 983(d)(4). It is illegal to posses [sic] not because crab is inherently unlawful, but because this particular shipment of crab allegedly was received and acquired in a way that rendered it illegal under the Lacey Act, 16 U.S.C. Section 3372(a).” [Slip op. 6]

Citation: United States v. 144,774 Pounds of Blue King Crab, 410 F.3d 1131 (9th Cir. 2005).

FORUM NON CONVENIENS

British Columbia Court of Appeal rules that, where U.S. court had affirmatively claimed jurisdiction over same contract dispute, comity dictated that Canadian court should stay its parallel proceeding to avoid inconsistent results and useless multiplication of expense

On January 17, 2005 Ingenium Technologies, Corp. (plaintiff) filed this action against McGraw‑Hill Companies, Inc. (defendant) in the British Columbia Supreme Court. A month later, defendant filed a complaint against plaintiff in a New York federal court.

Plaintiff applied for a summary dismissal of the New York action on jurisdictional grounds. It also applied for a declaration that the British Columbia Supreme Court had jurisdiction over the dispute. The New York court denied plaintiff’s motion for summary dismissal. The B. C. lower court then heard and granted the application for a declaration in respect of jurisdiction.

Plaintiff explained why it had gotten this declaration by pointing out that, while it accepted that the New York court would end up trying defendant’s complaint, plaintiff preferred to seek the same relief through the B. C. action. In granting the declaration, the lower court judge ruled that B. C. has jurisdiction simpliciter [not challenged on appeal] and also was the forum conveniens proper to resolve the dispute.

Defendant appealed and the B. C. Court of Appeal, in a divided opinion, allowed the appeal. The agreement between plaintiff and defendant as to the latter’s distribution and promotion of plaintiff’s web‑based software stated that the courts should interpret it under B. C. and Canadian law and should look upon it as a “B.C. contract.” Substantially all of plaintiff’s services under the contract took place in B. C., although the present site of the servers that customers used to access data is in New York. The agreement was to expire at the end of the month, but the parties could not agree on which party had control of the relationship with customers who had bought and used the software.

“The lower court judge was correct in concluding that the existence of parallel proceedings did not trump all other factors in determining the more appropriate forum for the litigation of a dispute. Rather, it must be considered in accordance with the principle of comity. She concluded, rightly in my view, that the existence of parallel proceedings ... must be considered in accordance with the principle of comity and that there will necessarily be cases where parallel proceedings will not carry the day.”

“But ... the lower court judge erred in attaching no significance to the fact that the United States District Court had positively asserted jurisdiction. The fact that the agreement involved was governed by the law of British Columbia was not a conclusive factor.”

The Court of Appeal holds that jurisdiction simpliciter was clear and that it should decide based on applying the Canadian approach to the nature of comity. “‘Comity’ in the legal sense is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws ...’ [Hilton v. Guyot, 159 U.S. 113 (1895), at pp. 163‑64, as cited by Estey J. in Spencer v. The Queen, [1985] 2 S.C.R. 278 at p. 283].” [¶ 11].

“I conclude then that comity requires that this action be stayed and I find it unnecessary to rule on McGraw‑Hill’s application to adduce fresh evidence. There is no suggestion that the [New York] District Court’s refusal to dismiss McGraw‑Hill’s complaint was made on anything other than a forum non conveniens basis that the courts of this province should respect in keeping with the principle of comity as defined by the Supreme Court of Canada.”

“Given that the action in the District Court will be tried there, I can see no purpose being served in Ingenium being permitted to advance, and ultimately try, its action here when it can do the same by prosecuting its counterclaim in New York. To do so would raise the real potential for conflicting decisions in the resolution of the dispute and markedly increase the cost of the litigation, all to no avail.” [¶ 26]

Citation: Ingenium Technologies Corp. v. McGraw‑Hill Companies, Inc., [2005] B.C.J. No. 1442; 2005 B.C.C.A. 358 (June 29).

HABEAS CORPUS

U.S. Supreme Court decides (1) that its previous holding in Zadvydas v. Davis applies to removable aliens like Cuban habeas corpus petitioners who are deemed inadmissible to United States, (2) that government cannot confine them indefinitely and (3) that it must release them

An immigration official has a duty to inspect every alien who arrives in the United States. Unless the official concludes that the alien is “clearly and beyond a doubt entitled to be admitted,” he or she generally has to undergo removal proceedings to determine admissibility. Meanwhile, the U.S. may detain the alien, subject to the Secretary of Home Security’s (Secretary’s) discretionary authority to parole him into the country.

If, at the end of removal proceedings, the tribunal finds the alien inadmissible and to be removed, the law provides that the Secretary “shall remove the alien from the United States within a period of 90 days,” 8 U.S.C. Section 1231(a)(1)(A). The instant cases deal with the extent, if any, of the Secretary’s authority to continue to detain an inadmissible alien subject to a removal order after the statutory 90‑day removal period is over.

Respondent, Sergio Suarez Martinez, and petitioner, Daniel Benitez, arrived in the U.S. from Cuba in June 1980 as part of the Mariel boatlift (Cuban exiles assembled fleet of fishing and pleasure vessels in Cuban port of Mariel and succeeded in bringing more than 120,000 Cubans to the U.S.), see Palma v. Verdeyen, 676 F.2d 100, 101 (C.A.4 1982) (describing circumstances of Mariel boatlift), and the Attorney General (AG) paroled them into the U.S. pursuant to his statutory authority.

By the time they had applied for an adjustment of their status, both men had become inadmissible because of prior criminal convictions while on parole. When Martinez sought adjustment in 1991, for example, Rhode Island had already convicted him of assault with a deadly weapon and California had found him guilty of burglary. By the time Benitez had sought the same relief in 1985, Florida had convicted him of grand theft.

Moreover, both men committed additional felonies after the denial of their adjustment applications. Martinez’s convictions included petty theft with a prior conviction in 1996, assault with a deadly weapon in 1998, and attempted oral copulation by force in 1999. Benitez’s rap sheet listed two counts of armed robbery, armed burglary of a conveyance, armed burglary of a structure, aggravated battery, carrying a concealed firearm, unlawful possession of a firearm while engaged in a criminal offense, and unlawful possession, sale, or delivery of a firearm with an altered serial number.

The AG revoked Martinez’s parole in December 2000. The Immigration and Naturalization Service (INS) then took Martinez into custody and filed removal proceedings against him. An Immigration Judge found him inadmissible because of his prior convictions, and lack of sufficient documentation; accordingly, he ordered him sent back to Cuba. Martinez did not appeal. Since his physical return to Cuba was not reasonably foreseeable, the INS kept him in custody beyond the 90‑day removal period where he stayed until the habeas court ordered his release.

Benitez’s parole was revoked by the AG in 1993 and the INS straightaway started removal proceedings. In December 1994, an Immigration Judge ordered him deported. Benitez did not seek further review. When his state prison term was over, the INS took him into custody looking toward removal to Cuba. Since that was not reasonably foreseeable, he remained confined after the 90‑day removal period had run out.

Both men filed federal habeas corpus petitions in different federal courts to contest the lawfulness of their ongoing detention. In Martinez’s case, the court ruled that removal was not reasonably foreseeable and ordered him set free under appropriate conditions. The Ninth Circuit later affirmed. Although another court also found that Benitez’s removal could not take place in the foreseeable future, it denied his habeas petition. The Eleventh Circuit affirmed. The Supreme Court granted certiorari in both cases and, in a 7 to 2 vote, affirms the Ninth Circuit, reverses the Eleventh Circuit and remands both cases.

Justice Antonin Scalia, author of the majority opinion, preliminarily explains that 8 U.S.C. Section 1231(a)(6) provides, in relevant part, as follows: “An alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the [Secretary] to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3).”

This provision applies to three classes of aliens: (1) those ordered removed who are inadmissible under Section 1182, (2) those ordered removed who are removable under Section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4), and (3) those ordered removed whom the Secretary determines to be either a risk to the community or a flight risk.

“In Zadvydas v. Davis, 533 U.S. 678 (2001), the Court interpreted this provision to authorize the Attorney General (now the Secretary) to detain aliens in the second category only as long as ‘reasonably necessary’ to remove them from the country. The statute’s use of ‘may,’ the Court said, ‘suggests discretion,’ but ‘not necessarily ... unlimited discretion. In that respect, the word ‘may’ is ambiguous.’ Id., at 697.”

“In light of that perceived ambiguity and the ‘serious constitutional threat’ the Court believed to be posed by indefinite detention of aliens who had been admitted to the country, the Court interpreted the statute to permit only detention that is related to the statute’s ‘basic purpose [of] effectuating an alien’s removal. ... [O]nce removal is no longer reasonably foreseeable, continued detention is no longer authorized.’ The Court further held that the presumptive period during which the detention of an alien is reasonably necessary to effectuate his removal is six months; after that, the alien is eligible for conditional release if he can demonstrate that there is ‘no significant likelihood of removal in the reasonably foreseeable future.’ Id., at 701.”

“The question presented by these cases, ... is whether this construction of Section 1231(a)(6) that we applied to the second category of aliens covered by the statute applies as well to the first ‑‑ that is, to the category of aliens ‘ordered removed who are inadmissible under [Section ]1182.’ We think the answer must be yes.”

“The operative language of Section 1231(a)(6), ‘may be detained beyond the removal period,’ applies without differentiation to all three categories of aliens that are its subject. To give these same words a different meaning for each category would be to invent a statute rather than interpret one. As the Court in Zadvydas recognized, the statute can be construed ‘literally’ to authorize indefinite detention, id., at 689, or (as the Court ultimately held) it can be read to ‘suggest [less than] unlimited discretion’ to detain, id., at 697. It cannot, however, be interpreted to do both at the same time.” [722-23]

The Government, joined by the dissent, maintained that the statutory purpose and the constitutional concerns that swayed our statutory construction in Zadvydas are not present for aliens, such as Martinez and Benitez, who have not been admitted to the United States. “Be that as it may, it cannot justify giving the same detention provision a different meaning when such aliens are involved. It is not at all unusual to give a statute’s ambiguous language a limiting construction called for by one of the statute’s applications, even though other of the statute’s applications, standing alone, would not support the same limitation. The lowest common denominator, as it were, must govern. [Cites].” [723-24]

“In other words, when deciding which of two plausible statutory constructions to adopt, a court must consider the necessary consequences of its choice. If one of them would raise a multitude of constitutional problems, the other should prevail ‑‑ whether or not those constitutional problems pertain to the particular litigant before the Court.”

“The dissent takes issue with this maxim of statutory construction on the ground that it allows litigants to ‘attack statutes as constitutionally invalid based on constitutional doubts concerning other litigants or factual circumstances’ and thereby to effect an ‘end run around black‑letter constitutional doctrine governing facial and as‑applied constitutional challenges.’”

“This accusation misconceives ‑‑ and fundamentally so ‑‑ the role played by the canon of constitutional avoidance in statutory interpretation. The canon is not a method of adjudicating constitutional questions by other means. See, e.g., NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) (...) ; see also Vermeule, Saving Constructions, 85 Geo. L. J. 1945, 1960‑1961 (1997) (providing examples of cases where the Court construed a statute narrowly to avoid a constitutional question ultimately resolved in favor of the broader reading).”

“Indeed, one of the canon’s chief justifications is that it allows courts to avoid the decision of constitutional questions. It is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts. [Cites]. The canon is thus a means of giving effect to congressional intent, not of subverting it.”

“And when a litigant invokes the canon of avoidance, he is not attempting to vindicate the constitutional rights of others, as the dissent believes; he seeks to vindicate his own statutory rights. We find little to recommend the novel interpretive approach advocated by the dissent, which would render every statute a chameleon, its meaning subject to change depending on the presence or absence of constitutional concerns in each individual case. Cf. Harris v. United States, 536 U.S. 545, 556 (2002) (rejecting ‘a dynamic view of statutory interpretation, under which the text might mean one thing when enacted yet another if the prevailing view of the Constitution later changed’).” [724-25]

Citation: Clark v. Martinez, 125 S.Ct. 716 (S. Ct. 2005).

POLITICAL QUESTION DOCTRINE

Based on political question doctrine, D.C. Circuit dismisses lawsuit against former National Security Advisor and Secretary of State, Henry Kissinger, for his alleged role in death of Chilean army general during 1970 overthrow

The plaintiffs in the following case are the children and personal representative of the Chilean general, Rene Schneider, who died during the 1970 coup d’Etat in Chile. In 2001, they sued the U.S. Government and former National Security Advisor, Henry Kissinger, in the District of Columbia federal court, alleging that the U.S. had a role in the abduction, torture and death of General Schneider.

According to plaintiffs, Socialist candidate Dr. Salvador Allende won a plurality of the vote in Chile’s 1970 presidential election. To prevent Allende from becoming president, U.S. “policymakers” considered a military coup. President Richard Nixon allegedly authorized $10 million toward such a goal. The then-U.S. Ambassador in Chile considered General Schneider an obstacle and recommended that he be “neutralized.”

The district court granted the Government’s motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) [lack of subject matter jurisdiction] and 12(b)(6) [failure to state a claim]. The U.S. Court of Appeals for the District of Columbia Circuit affirms, ruling that the claims raise non-justiciable political questions.

The Court first outlines the doctrine’s legal framework. “Contemporary application of the Political Question Doctrine ... draws on the analysis set forth in Baker v. Carr, 369 U.S. 186 (S. Ct. 1962). The Baker Court first recognized that ‘the political question doctrine is ‘primarily a function of the separation of powers.’”

“‘ ... In Baker, the Supreme Court enumerated six factors that may render a case nonjusticiable under the Political Question Doctrine: ‘... [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment of multifarious pronouncements by various departments on one question.’ Baker, 369 U.S. at 217 ... The Baker analysis lists the six factors in the disjunctive, not the conjunctive. To find a political question, we need only conclude that one factor is present, not all.” [Slip op. 3]

With respect to the first factor, the Constitution commits the conduct of foreign relations to the Executive and Legislative Branches. Courts should not review such political matters. The second factor supports dismissal under Fed.R.Civ.P. 12(b)(1), because the court would have to determine whether it was proper 35 years ago to support covert action against a socialist regime. The Judicial Branch does not have intelligence sources, spies, or policy advisors, and is thus ill-equipped to review such decisions.”

“As for the third factor, the Court opines that it would have to evaluate the potential Allende Government in 1970 and then judge the Executive’s policy-based decision to use covert action to prevent Allende from becoming President. As for the fourth factor, this matter has already been investigated by Congress.”

As a result, at least the first four Baker factors suggest that this case involves non-reviewable political questions and is thus beyond the courts’ prudential jurisdiction.

Citation: Schneider v. Kissinger, 2005 WL 1513083 (D.C. Cir. June 28, 2005).

POLITICAL QUESTION DOCTRINE

Following remand from U.S. Supreme Court, D. C. Circuit affirms dismissal of non-Japanese plaintiffs’ complaint against Japan for their sexual enslavement as “comfort women” in 1940s because review would entail interpretation of treaties to which U.S. does not belong thus involving political questions

The following case involves compensation claims by 15 Asian women from China, Taiwan, South Korea and the Philippines whom the Japanese army allegedly forced into sexual slavery before and during the Second World War.

The plaintiffs sued Japan in 2000 under the Alien Tort Claims Act (28 U.S.C. Section 1350) (ATCA). The district court for the District of Columbia dismissed the action based on foreign sovereign immunity and the “political question” doctrine. The U.S. Court of Appeals for the District of Columbia Circuit affirmed. The U.S. Supreme Court granted certiorari, vacated the judgment, and remanded. For further consideration in light of Republic of Austria v. Altmann, 541 U.S. 677 (2004), See 2004 International Law Update 91 & 169. See Hwang Geum Joo v. Japan, 124 S. Ct. 2835 (2004).

At the outset, the Court of Appeals here holds that it does not have to determine subject-matter jurisdiction before applying the political question doctrine. Here, the complaint does present a non-justiciable political question. Thus, the Court affirms the dismissal of the action.

The Court first rejects the plaintiffs’ argument that Japan’s acts fall under the “commercial activity” exception of the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. Section 1605(a)(2). Deeming it unnecessary to make the subject-matter jurisdiction determination of whether Japan is entitled to sovereign immunity, the Court turns to the political question issue.

Here, the treaties that Japan concluded after World War II foreclose the plaintiffs’ claims. Article 14 of the 1951 Treaty of Peace between Japan and the Allied Powers [3 U.S.T. 3169], for example, expressly waived all claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in furtherance of the war. Plaintiffs, however, contended that their respective governments were not parties to the 1951 Treaty.

“Even if we assume ... that the 1951 Treaty does not of its own force deprive the courts of the United States of jurisdiction over [the plaintiffs’] claims, it is pellucidly clear [that] the Allied Powers intended that all war-related claims against Japan be resolved through government-to-government negotiations rather than through private tort suits.”

“Indeed, Article 26 of the Treaty obligated Japan to enter into ‘bilateral’ peace treaties with non-allied states ‘on the same or substantially the same terms as are provided for in the present treaty,’ which indicates the Allied Powers expected Japan to resolve other states’ claims, like their own, through government-to-government agreement.”

“To the extent the subsequent treaties between Japan and the governments of the [plaintiffs’] countries resolved the claims of their respective nationals, the 1951 Treaty at a minimum obliges the courts of the United States not to disregard those bilateral resolutions.” [Slip op. 4]

As for the plaintiffs’ home countries, the Philippines was, in fact, one of the Allied Powers. The other countries signed their own peace treaties with Japan which failed to allow for individual claims. The key question is whether the treaties’ failure to deal with individual claims preserved them for later enforcement. That issue, however, is not for a U.S. court to resolve.

“... The United States is not a party to the treaties the meaning of which is in dispute, and the Executive does not urge us to adopt a particular interpretation of those treaties. Rather, the Executive has persuasively demonstrated that adjudication by a domestic court not only ‘would undo’ a settled foreign policy of state-to-state negotiation with Japan, but also could disrupt Japan’s ‘delicate’ relations with China and Korea, thereby creating ‘serious implications for stability in the region.’”

“Consider: According to the [plaintiffs], the Republic of Korea does not agree with Japan’s understanding that the treaty between [sic] extinguished the [plaintiffs’] claims against Japan. ... Is it the province of a court in the United States to decide whether Korea’s or Japan’s reading of the treaty between them is correct, when the Executive has determined that choosing between the interests of two foreign states in order to adjudicate a private claim against one of them would adversely affect the foreign relations of the United States? Decidedly not. ...”

“We hold that the [plaintiffs’] complaint presents a nonjusticiable political question, namely, whether the governments of the [plaintiffs’] countries resolved their claims in negotiating peace treaties with Japan. In so doing we defer to ‘the considered judgment of the Executive on [this] particular question of foreign policy.’ ... For the court to disregard that judgment, to which the Executive has consistently adhered, and which it persuasively articulated in this case, would be imprudent to a degree beyond our power.” [Slip op. 6-7]

Citation: Joo v. Japan, 2005 WL 1513014 (D.C. Cir. June 28, 2005). [Further background information is available on website www.comfort-women.org.]

WORLD TRADE ORGANIZATION

Generally agreeing with U.S. positions, WTO Appellate Body substantially reverses Panel Report dealing with U.S. imposition of countervailing duty on Korean Computer Chips

The Appellate Body of the World Trade Organization (WTO) has reversed most of the Panel Report in the U.S.-Korea dispute over Dynamic Random Access Memory Semiconductors (DRAMS). The dispute arose when the U.S. Department of Commerce (USDOC) imposed a countervailing duty of 44.29 percent on Korean memory chips.

The earlier Panel Report of February 2005 found that the U.S. had failed to back up its claims that Korea’s Hynix Semiconductor, Inc., was getting illegal subsidies. In particular, the Panel held that the USDOC’s “Final Subsidy Determination,” the U.S. International Trade Commission’s “Final Injury Determination,” as well as the “Final Countervailing Duty Order” based thereon, were inconsistent with Articles 1, 2 and 15.5 of the Subsidies and Countervailing Measures (SCM) Agreement. See 2005 International Law Update 29.

The U.S. successfully appealed. In essence, the Appellate Body leaves the U.S. measures in place, but does not endorse their legality. In particular, the Appellate Body holds that the Panel erred in three respects. First, it mistakenly failed to examine the USDOC’s evidence in its totality and instead demanded that individual pieces of evidence each establish the Korean Government’s role in subsidizing Hynix.

Secondly, it declined to consider certain evidence in the record of the underlying investigation which the USDOC did not cite in its published determination. Finally, the Panel failed to apply the proper standard of review, and thus failed to comply with Article 11 of the Dispute Settlement Understanding (DSU).

The bottom line is that the Appellate Body sets aside the Panel’s findings that: the USDOC’s benefit determination conflicts with Article 1.1(b) of the SCM Agreement, and that the USDOC’s finding of specificity, as far as it relates to subsidies provided indirectly by the Korean Government’s influencing Hynix’s creditors to bail the company out, is inconsistent with Article 2 of the SCM Agreement.

Citation: United States - Countervailing Duty Investigation on Dynamic Random Access Memory Semiconductors (DRAMS) from Korea (WT/DS296/AB/R) (27 June 2005); U.S. Trade Representative press release of June 27, 2005; The Washington Post, June 8, 2005, page D5.

“Group of Eight” agrees to forgive international indebtedness of 18 poorer nations. On June 11, 2005, during a 2-day summit in London, the world’s most prosperous nations, known as the Group of Eight (G8), formally agreed to cancel at least $40 billion of debt owed to international agencies by 18 of the world’s poorest lands, the majority of them in Africa. The beneficiaries are Benin, Bolivia, Burkina Faso, Ethiopia, Ghana, Guyana, Honduras, Madagascar, Mali, Mauritania, Mozambique, Nicaragua, Niger, Rwanda, Senegal, Tanzania, Uganda and Zambia. Part of the arrangement is for poor countries to use the money instead for health, education or the relief of poverty. The U.S. had been urging the other members ‑ Britain, Germany, France, Italy, Canada, Japan and Russia ‑ that the best solution to poor countries’ indebtedness was to forgive their debt burden entirely rather than merely to lighten it by taking over interest repayments. The U.S. Treasury Secretary said that the Saturday agreement would immediately affect some $40 billion in debt, including servicing costs. The amount it will actually cost the Group of 8 to compensate the international lenders, however, is $16.7 billion. Overall, it is said the 18 states owe international lenders some $55.6 billion. Citation: The New York Times (online), London, Sunday, June 12, 2005 (byline of Alan Cowell); CBS News report of June 11, 2005, available at www.cbsnews.com; The Washington Post, June 11, 2005.

Roman Polanski wins libel action in London court. On July 22, 2005, a London jury awarded movie mogul, Roman Polanski, £50,000 damages in a libel action. Polanski, 71, had sued over a July 2002 Vanity Fair story which alleged that he had made a pass at a Swedish model in Elaine’s restaurant in New York just after the August 1969 murder of his pregnant wife, Sharon Tate, by the Manson Gang. See 2005 International Law Update 39. The jury concluded that the magazine publisher, Conde Nast, had not proved that the words complained of were substantially true. The plaintiff did not appear in his own trial except on video from France because he was afraid of being extradited to the U.S. He had fled the U.S. in 1978 before he could be sentenced on a California conviction for having had sex with a 13‑year‑old girl. Citation: The Liverpool Daily Post & Echo, Ltd., Liverpool, Thursday, July 23, 2005 at page 4.

India and United States agree to work together on civilian use of nuclear power. On July 18, 2005, President Bush welcomed India into the circle of international nuclear powers, referring to it as “a responsible state” that “should acquire the same benefits and advantages as other such states”. After talks in Washington with Manmohan Singh, India’s prime minister, Mr. Bush said he would ask Congress to end more than four decades of sanctions which had prevented full U.S. co‑operation with India on civilian nuclear energy programs. Mr. Bush also promised to bring about “full civil nuclear energy co‑operation”, in return for India’s consent to oversight of its nuclear program sites by international agencies and for its pledge to help check nuclear proliferation. Specifically, India would voluntarily put its civilian nuclear facilities under International Atomic Energy Agency (IAEA) safeguards. It would also submit itself to additional measures under the IAEA Protocol and would co‑operate in measures to halt the spread of enrichment and reprocessing technologies. In return, the U.S. has agreed to work on securing “supplies for safeguarded nuclear reactors at Tarapur”; this is an atomic power station near Mumbai at risk because of waning stocks of fuel‑enriched uranium from Russia. India has been pondering the development of a $4.5 billion gas pipeline to Iran, which Washington opposes. The nuclear power agreement was one of more than a dozen initiatives disclosed, ranging from economic reform to space exploration. Citation: Financial Times (London), Washington, D.C. , Tuesday, July 19, 2005; (London Edition) at page 3 (bylines of Edward Alden and Caroline Daniel).