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

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

2000 International Law Update, Volume 6, Number 4 (April).

AVIATION

In matter of first impression, Second Circuit holds that Death on High Seas Act does not apply to TWA crash that took place about eight nautical miles from New York shoreline

On July 17, 1996, TWA Flight 800 left New York's John F. Kennedy International Airport bound for Paris and Rome. A few minutes later, the aircraft seemed to blow up in midair and drop into the Atlantic Ocean about eight nautical miles off the south shore of Long Island, New York. None of the 230 persons aboard survived.

Relatives and estate representatives of 213 passengers and crew members brought suits in various federal courts against TWA, the Boeing Company and Hydro-Aire, Inc., the latter having manufactured the aircraft's fuel pumps. The Judicial Panel on Multidistrict Litigation transferred all wrongful death cases arising from the accident to the Southern District of New York for combined pretrial proceedings in February 1997.

In July of that year, defendants filed a motion under Fed.R.Civ.P. 12(b)(6) to dismiss plaintiffs' claims for nonpecuniary damages for failure to state a claim. Movants contended that the Death on the High Seas Act (DOHSA) applied to the case and restricted recovery to pecuniary damages. In June 1998, the district court, in a written opinion, denied defendants' motion. See In re Air Crash off Long Island, New York, on July 17, 1996, 96 Civ. 7986 (June 2, 1998).

The court reasoned that Congress intended by the term "high seas" in DOHSA to limit the Act to non-sovereign waters or "international waters not subject to the dominion of any single nation." Therefore, DOHSA's damage limitations did not apply to this incident since it took place more than a marine league, but less than twelve nautical miles, from the shoreline. If DOHSA does not apply, plaintiffs may be entitled to nonpecuniary damages, e.g., for pre‑death pain and suffering and survivor's grief. Under the Interlocutory Appeals Act, 28 U.S.C. Section 1292(b), defendant secured appellate review. As a matter of first impression, a panel of the U.S. Court of Appeals for the Second Circuit affirms in a divided opinion.

The Court of Appeals first points out that the Supreme Court's view was that the historical absence of a common law claim for wrongful death on land meant that no such claim existed within general admiralty jurisdiction. For a substantial period, the federal courts engaged in a confusing effort to expand state wrongful death statutes or to make use of foreign law to provide for recovery on the high seas. It was well into the twentieth century before the Supreme Court recognized such an admiralty claim with its unanimous opinion in Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970).

Unhappy about the pre-Moragne law on wrongful death, the Maritime Law Association (MLA) went to work drafting a statutory remedy that ultimately became DOHSA. In the wake of litigation over the Titanic disaster, Congress debated its early draft that would have set up a wrongful death remedy "on the high seas, the Great Lakes, or any navigable waters of the United States."

To avoid potential conflict with state remedies, however, the 1916 version eliminated DOHSA's reach over navigable waters within state jurisdiction. Thus, it limited its applicability to deaths that took place beyond a marine league [three nautical miles] from the shore. When DOHSA became law in 1920, it created an action for wrongful death "occurring on the high seas beyond a marine league from the shore of any state..."

The key question is the scope of the term "high seas" in DOHSA. Since the 1790s, the U.S. had claimed no more than one marine league from shore as federal territorial waters while noting that it could arguably extend its reach to 20 miles. The Court notes that up until 1920, the Supreme Court generally equated the high seas with "international waters" over which no sovereign has control. DOHSA's legislative history repeatedly invoked the definition of high seas found in these cases, pointing powerfully to the meaning that Congress intended for that phrase.

The Court also refers to the Convention on the High Seas [April 29, 1958, 13 U.S.T. 2312, T.I.A.S. No. 5200] which the U.S. had ratified in 1961. Article 1 declares that: "the term 'high seas' means all parts of the sea that are not included in the territorial sea or in the internal waters of a state."

In addition, plaintiffs' explanation for the seeming tautology in DOHSA's statutory language appears to meet with the Court's approval. It is that the "marine league" language expresses a geographical boundary while the term "high seas" refers to a political boundary.

"While the geographical and political boundaries were coterminous in 1920, there was no reason to think that would always be the case. At the time DOHSA was enacted, the 'minimum limit of the territorial jurisdiction of a nation,' (cit.) was a marine league. 'The void that existed in maritime law up until 1920 was the absence of any remedy for wrongful death on the high seas. Congress, in acting to fill that void, legislated only to the three‑mile limit because that was the extent of the problem.' Moragne, 398 U.S. at 398." [Slip op. 7]

Defendants relied upon a series of lower court cases applying DOHSA to deaths in foreign territorial waters to show that DOHSA's "high seas" are not coterminous with "international waters." Such cases have applied DOHSA to accidents in the territorial waters of India and Scotland and even to a Peruvian river and a lake in Venezuela. The Court spurns the argument.

"Obviously, we are not faced here with a wrongful death claim arising out of an accident in the territorial waters of a foreign nation. We take no position on what courts should do when faced with the difficult question of whether to apply DOHSA in foreign territorial waters, where plaintiffs might otherwise be left with only foreign remedies in foreign courts."

"The decisions applying DOHSA to foreign territorial waters seek to provide a remedy in federal court for survivors of those killed in maritime accidents. (Cits.) These decisions do not require ‑‑ or even suggest ‑‑ the application of DOHSA to the territorial waters of the United States, where plaintiffs already have a state or federal remedy." [Slip op. 12]

In the context of DOHSA, therefore, there were, for 68 years, no federal territorial waters beyond three marine leagues from shore, so that neither federal nor state prescriptive jurisdiction reached beyond that distance. In 1988, however, Presidential Proclamation No. 5928 [54 Fed. Reg. 777 (1988)] declared that "[t]he territorial sea of the United States henceforth extends to 12 nautical miles from the baselines of the United States determined in accordance with international law." Both sides concede that, prior to the Proclamation, DOHSA would have applied to an air crash 8 miles from an American shore. The Court agrees with the district court that Proclamation No. 5928 moved the starting point for the application of DOHSA out to 12 nautical miles from shore.

Finally, the Court rejects defendants' claim that the lower court's ruling had established a "no-man's land" between three and 12 miles from the shores of coastal states and had undermined uniformity. "But it would be more inconsistent, and more arbitrary, to impose one remedial scheme over certain federal territorial waters (up to three miles) and a different remedial scheme over other federal territorial waters (from three to 12 miles)."

"The core purpose of DOHSA was to provide a remedy where one did not exist before, not to oust either a Moragne‑type remedy or state law remedies. The remedies available to plaintiffs for wrongful death in the federal territorial waters in which the crash occurred may prove better suited to this case than DOHSA's statutory requirements. ... [W]e leave for the district court to resolve the conflict of law questions in determining which remedies are available. We hold only that the Death on the High Seas [Act] does not apply to federal territorial waters." [Slip op. 15]

Citation: In re Air Crash off Long Island, New York, on July 17, 1996, No. 98-9622 (2d Cir. March 29, 1999).

CHOICE OF LAW

In international patent litigation, Illinois district court rules that, based on comity, U.S. courts should apply attorney-client privilege law of nations where confidential communications with foreign patent attorneys and agents were made

McCook Metals L.L.C. sued Alcoa, Inc., in an Illinois federal court on contract and antitrust claims, as well as on a claim that two of Alcoa's patents were invalid. During discovery, McCook asked for production of 2,478 pages of documents which Alcoa refused to disclose on grounds of attorney-client privilege, work product doctrine, or both. The U.S. Magistrate Judge grants in part and denies in part McCook's motion to compel.

According to one school of thought, the attorney-client privilege was historically less protective in the patent area than in other areas of the law. In 1963, however, the Supreme Court found that several aspects of the preparation and prosecution of patent applications constituted the practice of law. Sperry v. Florida, 373 U.S. 379 (1963). Later cases hesitated to grant patent attorneys the full scope of the privilege, typically treating the patent attorney as a mere "conduit" between the inventor and the Patent Office.

The Knogo Corp. v. U.S., 1980 U.S. Ct. Cl. LEXIS 1262 (1980) line of cases, on the other hand, privileges almost all confidential communications between a client and his or her patent attorney because their relationship is a cooperative effort. The Federal Circuit has expressly accepted Knogo. Since the issue is open in the Seventh Circuit, the Magistrate Judge concludes that the Knogo line of cases is more persuasive.

Here, Alcoa claims the attorney-client privilege for communications between its in-house counsel and foreign patent attorneys and patent agents pertaining to patent prosecutions in foreign patent offices. The countries include Canada, France, Germany, Japan, and the United Kingdom.

In Burroughs Wellcome Co. v. Barr Laboratories, Inc., 143 F.R.D. 611, 616 (E.D.N.C. 1992), the court declared that generally "no communications from patent agents, whether American or Foreign, are subject to the attorney-client privilege in the United States ... [T]he privilege may extend to communications with foreign patent agents related to the foreign patent activities if the privilege would apply under the law of the foreign country and that law is not contrary to the law of this forum." In other words, if the attorney-client privilege applies in a foreign country, then comity requires the U.S. court to apply that country's law to the documents at issue."

"Regarding communications for the French patent prosecution, Alcoa used the French firm of Cabinet Lavoix. French law provides that 'communications between patent agents and clients are confidential,' however, communications between foreign attorneys and the French Patent Office are not confidential. ..."

"Regarding the prosecution of the German patents, Alcoa used [a] German patent attorney firm.... Under German law, attorney-client privilege protects 'all communications between a German patent attorney and his client which occur in the rendition of legal services for the client, the client and the attorney may refuse to disclose such communications in a court proceeding.' ... [H]owever, communications from the attorney to the German Patent Office are not privileged." [Slip op. 34]

Alcoa has the burden of persuading the court that the documents are privileged. Thus, Alcoa must disclose all requested documents unless it (1) provides the Court with English translations of the documents (if applicable) and (2) furnishes an affidavit of a licensed attorney learned in the laws of the country at issue that explains the attorney-client privilege law of that country and shows why the privilege applies to each document. [Editorial Note: Fed. R. Civ. P. 44.1 governs the proof of foreign law in federal courts.]

Citation: McCook Metals L.L.C. v. Alcoa, Inc., 99 C 3856 (N.D. Ill. March 2, 2000).

COMPETITION

As result of Sherman Act investigations of international vitamin cartel, Antitrust Division, U.S. Department of Justice announces plea agreements by German and Swiss executives of BASF and Hoffman-LaRoche that involve prison sentences and substantial fines

On April 6, 2000, the U.S. Department of Justice (DOJ) filed four separate criminal cases in a Dallas federal court charging defendants with conspiring between 1990 and 1999 to fix, raise and maintain prices and to allocate the sales volumes of vitamins sold in the U.S. and elsewhere. The conspiracy affected the vitamins most often used as nutritional supplements or to enrich human food and animal feeds. The four defendants included two Swiss nationals, Andreas Hauri and Dieter Suter, and two German citizens, Reinhard Steinmetz and Hugo Strotmann. These four have agreed to submit to the jurisdiction of the Dallas court.

The indictment charges one or more of the executives with conspiring among themselves and with unnamed co-conspirators to engage in the following four types of illegal activities at various times during the 1990s. First, they agreed to fix and increase prices on vitamins A, B2, B5, C, E, and beta carotene as well as on vitamin premixes for food enrichment. Second, they contracted to allocate among themselves the volumes of sales and market shares of these products. Third, they conspired to divide contracts to supply vitamin premixes to U.S. customers and to rig the bids for those contracts. Finally, defendants took part in conferences and discussions aimed at overseeing and enforcing the price and market share arrangements. According to the DOJ, these executives were key actors in setting up and continuing the most far-reaching cartel it has ever prosecuted.

"Steinmetz was President of BASF's Fine Chemicals Division at the beginning of the conspiracy in January 1990 and remained involved in the conspiracy until his departure from the company in March 1996. Suter succeeded Steinmetz as President of the Fine Chemicals Division and continued BASF's participation in the vitamin conspiracy until February 1999. Strotmann joined the ongoing conspiracy in January 1995 in his capacity as BASF's Group Vice President responsible for marketing vitamins for the Fine Chemicals Division. His participation continued until February 1999. Hauri, Hoffman-LaRoche's Director of Worldwide Marketing in the Fine Chemical and Vitamin Division, was involved in the vitamin cartel from its inception in January 1990 until February 1999."

 On May 20, 1999, the Hoffmann-LaRoche company had pled guilty to the same criminal conspiracy and the court had sentenced it to pay a record $500,000,000 fine. That same day, Dr. Kuno Sommer, a Swiss citizen and another Hoffmann-LaRoche executive, pled guilty to taking part in the vitamin cartel and lying to DOJ investigators in 1997 by way of an attempted coverup. The court sentenced him in July 1999 to serve four months in prison and to pay a $100,000 fine. In October 1999, a federal court sentenced Dr. Roland Broennimann of Switzerland to five months in prison and a fine of $150,000 on his plea of guilty to cartel involvement. As the third Hoffmann-LaRoche executive charged with taking part in the vitamin cartel, defendant Hauri has agreed to serve four months in prison and to pay a $350,000 fine.

On September 17, 1999, BASF had pleaded guilty to taking part in the vitamin conspiracy and the judge had sentenced it to pay a criminal fine of $225,000,000. The three BASF executives have also entered guilty pleas in the instant case. Steinmetz has consented to serve a prison term of three and one-half months and to pay a fine of $125,000. Suter and Strotmann have each agreed to accept three months of imprisonment and the payment of a $75,000 fine.

The DOJ's criminal investigations into the $5,000,000,000 vitamin industry worldwide have also led to convictions of Canadian and Japanese firms. There have also been convictions against American executives some of whom are either in federal prison or anticipating potential jail sentences along with heavy fines.

Citation: U.S. Department of Justice, Antitrust Division, Press Release, April 6, 2000; Testimony of Joel I. Klein, Assistant Attorney General, Antitrust Division, before House Judiciary Committee, April 11, 2000, 2000 WL 19302622.

COMPETITION

German State Supreme Court in Stuttgart holds that attorneys' use of "vanity" telephone numbers is anticompetitive and misleading because it distinguishes an attorney through advertising "hype" rather than by professional achievements

Three lawyers of a Geislingen law firm filed a suit that challenged the issuance of "vanity" telephone numbers that refer to "lawyer" or "law firm," such as the telephone number 0800-RECHTSANWALT (Editorial Note: The U.S. analogue would be "1-800-LAWYER"). Plaintiffs alleged that this kind of telephone number causes or promotes anticompetitive behavior on the part of lawyers. The Ulm district court enjoined lawyers' use of such telephone numbers. Defendants appealed to the State Supreme Court in Stuttgart.

This Court has held that attorney advertising with a vanity telephone number breaches Section 43 b of the Federal Regulation of Attorneys (Bundesrechtsanwaltsordnung, BRAO). The Court affirms in this case also, holding that the lower courts correctly barred defendant from offering or actually assigning such telephone numbers to lawyers. Section 43 b of the BRAO restricts lawyer advertising to general and rational statements that do not specifically solicit a client.

A vanity number, however, does not impart factual information about lawyerly achievements or activities, but simply amounts to a marketing gimmick to distinguish the advertiser. These numbers resemble an advertisement in the Yellow Pages containing exaggerated claims of success or skill; it lures clients to a lawyer by improper marketing.

Although viewing the direct solicitation of clients as anticompetitive, German ethical rules do allow for mass mailings that provide general information about the lawyer or the law firm. Whether certain advertising constitutes impermissibly specific solicitation depends on the impression received by the public.

Citation: Oberlandesgericht Stuttgart, Urteil vom 22. Oktober 1999, 2 U 52/99 - 0800-RECHTSANWALT.

CONSUMER PROTECTION

German State Supreme Court in Hamburg holds that internet auctions involving cooperation of random consumer groupings of varying sizes supposedly to reduce purchase prices violate Price Discount Law

The plaintiff in this case manufactures recreational electronic appliances. The defendant sells products through the internet by way of "powershopping." Plaintiff complained that defendant's "powershopping" arrangements contravened the German Price Discount Law (Rabattgesetz, RabattG) (GPDL). Defendant denied this, claiming that the program beneficially increases consumers' buying power and lowers prices.

The defendant described "powershopping" as follows: "The Powershopping price level shows you the sales price, for example, for a bicycle. Depending on the number of purchasers, the bicycle costs between 300 and 500 German Marks. If there are less than 21 people to purchase the bicycle for 500 German Marks, then they will purchase it for 500 German Marks. If there are more than 20 buyers who are willing to buy it for 450 or 500 German Marks, then every buyer will receive it for 450 German Marks ..." (As quoted by Court in opinion).

The district court denied the plaintiff's motion for a preliminary injunction. Upon plaintiff's appeal, the State Supreme Court of Hamburg grants the injunction.

The Court concludes that the defendant's pricing system does violate the GPDL. The defendant does not offer goods at "regular prices." Instead, it sets the "highest price" as the "regular price" and then grants certain discounts depending on a fortuitous number of interested buyers.

This scheme also misleads consumers into believing that they are getting a quantity discount. In fact, the defendant is simply offering the goods at varying prices. Furthermore, this kind of pricing does not depend on economic factors but on the arbitrary actions of a random number of internet buyers. Under the GPDL, however, a real quantity discount exists when the lower price itself leads to higher sales volume. Therefore, the defendant's pricing program is illegal. [Editorial Note: This Court does not, as other German courts have done in similar cases, address whether this kind of internet auction also violates German Competition Law.]

Citation: Hanseatisches Oberlandesgericht, Urteil vom 18. November 1999, 3 U 230/99 - powershopping.

ENVIRONMENT

U.S. Supreme Court unanimously holds that Washington state laws designed to reduce risk of oil spills in Puget Sound region invaded several fields occupied by federal legislation and regulations related to international maritime conventions

The State of Washington includes some of the Nation's most significant waters and coastal regions. Its seacoast largely consists of "wave-exposed rocky headlands separated by stretches of beach." The inland sea of Puget Sound constitutes 2,500 square miles of inlets, bays and channels supporting fisheries as well as plant and animal life of great value to the Nation and to the world.

The Strait of Juan de Fuca divides Washington from the Canadian Province of British Columbia and provides access from the high seas not only to the U.S. ports of Seattle and Tacoma but also to the Canadian port of Vancouver. The international boundary runs down the center of the Strait. Pursuant to the Agreement for a Cooperative Vessel Traffic Management System for the Juan de Fuca Region [32 U.S.T. 377, T.I.A.S. No. 9706], all inbound ocean commerce sails through Washington's waters while the outbound ships use Canadian territorial waters. U.S. flag ocean-going tankers from Alaska's North Slope reserve and foreign-flag tankers, e.g., from Venezuela and Indonesia, bring large quantities of crude oil to refineries adjacent to Puget Sound.

During World War II, tankers averaged about 16,000 tons but by the mid 1970s, 366 tankers on the world's oceans exceeded 175,000 tons. Between 1955 and 1998, the number of tankers afloat went up from 2,500 to 6,739. The vast amounts of oil carried by these (sometimes underpowered) vessels with only a few inches of metal separating the oil from the sea create serious pollution risks to Washington waters.

In 1967, the supertanker "Torrey Canyon" had spread crude oil along the coast of England. This sparked Congress to enact the Port and Waterways Safety Act of 1972 (PWSA). Similarly, the State of Washington passed stricter regulations for tankers and afforded a wider range of remedies in the case of an oil spill. After the "Exxon Valdez" ran aground in Alaska and brought about the largest oil spill in U.S. history (about 11,000,000 gallons), both Congress and Washington state took further regulatory actions. At the federal level, there was the Oil Pollution Act of 1990 (OPA). Washington state set up a new agency charged with coming up with standards to furnish the "best achievable protection" (BAP) from oil spill damages.

The International Association of Independent Tanker Owners (Intertanko) is a trade association of 305 tanker operators whose ships carry about 60% of the oil imported into the United States. It brought suit in federal court seeking declaratory and injunctive relief against Washington state and local officials responsible for carrying out the BAP regulations. The district court upheld the state regulations, spurning Intertanko's contentions that the BAP norms trespassed on regions long pre-empted by the Federal Government.

Before the U.S. Court of Appeals for the Ninth Circuit, the United States intervened on Intertanko's side and urged that the district court had erred in undervaluing the substantial foreign affairs interests of the Federal Government. For the most part, however, the Ninth Circuit upheld the district court [see 148 F.3d 1053]. The U.S. Supreme Court granted certiorari and unanimously reverses and remands the dispute for further consideration by the lower courts.

In support of its pre-emption arguments, the United States cited the web of international treaties and maritime agreements that deal with the licensing, manning and operation of vessels. For example, the U.S. is party to the International Convention for the Safety of Life at Sea, 1974 [32 U.S.T. 47, T.I.A.S. No. 9700], the International Convention for [the] Prevention of Pollution from Ships, 1973 [12 U.S.T. 2989; T.I.A.S. No. 4900], and the International Convention of [sic] Standards of Training, Certification and Watchkeeping for Seafarers, With Annex, 1978 (STCW), Sen. Treaty Doc. No. 96‑1, C.T.I.A. No. 7624. The United States also represented that these agreements work on the principle of reciprocity or mutual certification of compliance with the conventions.

"The United States argues that these treaties, as the supreme law of the land, have pre‑emptive force over the state regulations in question here. We need not reach that issue at this stage of the case because the state regulations we address in detail below are pre‑empted by federal statute and regulations. The existence of the treaties and agreements on standards of shipping is of relevance, of course, for these agreements give force to the longstanding rule that the enactment of a uniform federal scheme displaces state law, and the treaties indicate Congress will have demanded national uniformity regarding maritime commerce." [1145]

The Court's opinion next stresses the historic federal interest in maritime matters going back to the dawn of the Republic and the need for the nation to speak with one voice in international affairs. It then provides several illustrations of the field pre-emption rule that surrounds PWSA Title II and 46 U.S.C. Section 3703(a).

First, imposing a series of training requirements on a tanker's crew goes beyond matters unique to Washington waters into the domain of the staffing, operation and manning of a tanker outside of those waters. Section 3703(a) pre-empts Washington's training and drill requirements since they have to do with "operation" and "personnel qualifications."

Secondly, requiring a tanker's crew to be fluent in the English language is not merely a regional traffic matter or a local peculiarity. Not only Section 3703(a) but also 33 U.S.C. Section 1228(a)(7) occupies the field here. The latter, for example, merely demands that any vessel operating in U.S. waters have at least one licensed deck officer on the navigation bridge who can clearly understand English.

Moreover, in requiring that the navigation watch amount to at least two licensed deck officers, a helmsman and a lookout, the Washington rules are trying to regulate the "operation" and "manning" of a tanker -- areas already covered by Section 3703(a). Finally, when the state rules demand that ships in Washington waters report on certain marine casualties world-wide they run afoul of U.S. Coast Guard regulations in the same area. Pursuant to 46 U.S.C. Sections 6101, 3717(a)(4), Congress had in mind that these alone would define a vessel's reporting duties.

Citation: United States v. Locke, 120 S.Ct. 1135 (2000).

ENVIRONMENT

French Conseil d'Etat upholds ban on pesticide containing imidaproclid pending determination whether, when applied to sunflower seeds, it kills honey bees that feed on mature sunflowers

On January 22, 1999, the French Ministry of Agriculture put out a ban on the use of Bayer's "Gaucho" pesticide wherever sunflowers grew. Bee farmers had complained to the government that the rampant use of Gaucho on sunflower crops had caused a serious reduction in the size of honeybee swarms.

Supporting the bee raisers, environmentalists pointed out that bees died after feeding on sunflowers whose seeds the growers had treated with Gaucho. Imidaproclid is the controversial active ingredient not only in Gaucho but also in other crop control products marketed worldwide, such as "Admire" and "Provado." The Ministry's ban was to gain time to scientifically determine the actual effect of the chemical on French honey bees.

Several large agro-industrial producers of sunflower seeds such as Societe Force Limagrain S.A., Monsanto and Novartis joined Bayer in challenging the ban in court. Eventually they ended up in the Conseil d'Etat, the highest tribunal in matters involving French governmental and administrative actions.

The parties contended that the Ministry had exceeded its powers by banning not only the product but also the treated seeds. They also claimed that some unidentified virus or bacteria must have harmed the bees, not Gaucho. Bayer also argued that Gaucho's innovation was its direct application to the seeds. This safeguarded the plant from feeding insects while cutting down on the needed dosage and hence on the contamination of soil and water tables.

They failed, however, to convince the Conseil d'Etat. It upholds the Ministry's action as according with the public interest on the principle that "precaution must prevail in matters of environmental protection."

Citation: Conseil d'Etat Decision No. 206687, 2007303, December 29, 1999, as reported in Daily Environmental Report (BNA), Vol. 23, No. 3, February 2, 2000.

IMMIGRATION

Eleventh Circuit preliminarily enjoins departure of Elian Gonzalez from U.S. pending decision on merits of asylum case

After six-year-old Elian (plaintiff) arrived in U.S. territorial waters clinging to a raft six months ago, he applied for asylum in at least one document he signed personally. When his Cuban father sought to have it withdrawn, the Immigration and Naturalization Service (INS) determined that Plaintiff was too young to make an independent request and refused to consider it.

With the aid of his temporary legal custodian, Lazaro Gonzalez, Plaintiff then sued in federal court challenging this action but that court denied his claim. On appeal, the U.S. Court of Appeals for the Eleventh Circuit grants Plaintiff's motion for an injunction against his physical removal from U.S. jurisdiction pending the decision of his appeal which is to be argued early in May.

The Court first balances the equities. "The equities, in this case, weigh heavily in favor of issuing an injunction pending appeal. Apart from concerns about what might happen to this child if he is returned to Cuba (which we do not address), if Plaintiff leaves the United States during the pendency of his appeal, his case will likely become moot. Our failure to issue an injunction pending appeal, therefore, could strip the Court of jurisdiction over this case and deprive Plaintiff forever of something of great value: his day in a court of law. That circumstance alone presents a significant risk of irreparable harm to Plaintiff." [Slip op. 2]

Nor would an interim injunction offend the interests of the INS. As to the public interest, the INS pointed to the plenary power of the political branches over immigration matters. "But we fail to see how an injunction in this case infringes upon the congressional power; after all, the heart of Plaintiff's appeal is that the INS by refusing to consider Plaintiff's asylum application, has disregarded the command of Congress. And we doubt that protecting a party's day in court, when he has an appeal of arguable merit, is contrary to the public interest." [id.]

Plaintiff has a substantial argument on the merits since 8 U.S.C. Section 1159(a)(1) provides that "any alien who is physically present in the United States... may apply for asylum." Moreover, INS's own regulations and guidelines provide for the "active and independent" participation of minors in asylum proceedings and "contemplate that a minor, under some circumstances, may seek asylum against the express wishes of his parents." [Slip op. 3]

There is also support for the notion that testimonial competency rather than contractual competency should be the proper test for minors in asylum cases. Finally, despite indications that Plaintiff does not want to leave the U.S., INS officials have never tried to interview him about his own wishes.

Even if the INS is right that Plaintiff needs an adult to apply for asylum, it is not obvious that Plaintiff's father was the only proper representative or that Lazaro Gonzalez, Plaintiff's great-uncle by blood, whom the INS had designated as his representative and care-giver, was a legally inappropriate person to have submitted the asylum request on plaintiff's behalf. "Lazaro's interests, to say the least, are not obviously hostile to Plaintiff's interests." [Slip op. 4]

[The Associated Press reports that, just before dawn on April 22, federal agents armed with automatic weapons and using tear gas on the crowd, broke into the home where Elian had been staying and forcibly removed him over his cries and screams. There are indications that government agents may have transferred Elian into his father's custody at Andrews Air Force Base just south of Washington, D.C.]

Citation: Gonzales v. Reno, Case No. 00-11424-D (11th Cir. April 19, 2000); Associate Press Newswires, Sat. April 22, 2000, under byline of Alan Clendenning.]

IMMIGRATION

In case of Filipino asylum-seeker threatened for exposing political corruption in his home country, Ninth Circuit concludes that whistle blowing against government officials may give rise to "well-founded fear of persecution" of political nature

Dionesio Calunsag Grava, a citizen of the Philippines, entered the U.S. illegally in 1991. When the Immigration and Naturalization Service (INS) began deportation proceedings against him, he petitioned for asylum. According to his testimony, Grava had been working as a policeman and customs officer. On several occasions, he exposed the official corruption and misdeeds of his supervisors.

Grava claims to have suffered mistreatment as a result. For example, someone had poisoned his dog and his monkey, and he had received several threatening telephone calls. If sent back to the Philippines, Grava fears further persecution from several Philippine groups, including Marcos Loyalists, the police force and Communist insurgents.

The immigration judge denied Grava's petition for asylum. On appeal, the Board of Immigration Appeals (BIA) affirmed, inter alia, because Grava's alleged persecution was not based on his "political" opinions. The U.S. Court of Appeals for the Ninth Circuit reverses. It rules that whistle blowing may constitute an expression of political opinion and may lead to a sufficiently "well-founded fear of persecution" to justify granting asylum.

"Whistle blowing against one's supervisors at work is not, as a matter of law, always an exercise of political opinion. However, where the whistle blows against government officials, it may constitute political activity sufficient to form the basis of persecution on account of political opinion. ..."

"Refusal to accede to government corruption can constitute a political opinion for purposes of refugee status. ... Thus, official retaliation against those who expose and prosecute governmental corruption may, in appropriate circumstances, amount to persecution on account of political opinion." [1181] The Court therefore remands to the BIA for consideration of whether Grava has proven a well-founded fear of persecution from his whistle blowing activities.

Citation: Grava v. Immigration and Naturalization Service, 205 F.3d 1177 (9th Cir. 2000).

IMMIGRATION

Ninth Circuit decides that INS lacks authority to indefinitely detain criminal aliens whose home countries refuse repatriation

The following case addresses the problem of criminal aliens (including "permanent residents" of the U.S.) who have been detained by the Immigration and Naturalization Service (INS) but cannot be repatriated, thus resulting in their perpetual detention.

Petitioner Kim Ho Ma came from his native Cambodia to the U.S. as a refugee at the age of two. He became a permanent resident (that is, he received a "green card") at age six. Unfortunately, he had bad company, got involved in a gang shooting, and was convicted of manslaughter at age 17.

After completing his prison sentence, the INS ordered him removed (previously called "deported") from the U.S. and took him into custody. Cambodia does not have a repatriation agreement with the U.S. and refused to take him back.

Ma filed a petition for habeas corpus. More than 100 similarly situated petitioners filed in the same court. Similar cases have arisen in Nevada and other California districts.

The district court held that Ma's continued detention violates his substantive due process rights under the Fifth Amendment. The INS appeals the court's decision to grant habeas corpus and release Ma from custody.

The issue in this case is whether, in light of the absence of such a repatriation agreement, the Attorney General has the authority to hold Ma in detention indefinitely.

The U.S. Court of Appeals for the Ninth Circuit affirms the district court, but on a different basis. The Court finds that the INS lacks authority under the immigration laws, and particularly 8 U.S.C. Section 1231(a)(6), to detain an alien who has entered the U.S. for more than a reasonable time beyond the normal 90 day statutory period authorized for removal.

Section 1231(a)(6) allows the INS to detain aliens with criminal convictions "beyond" 90 days but is silent as to how long such detention is authorized.

"[W]e construe the statute as providing the INS with authority to detain aliens only for a reasonable time beyond the statutory removal period. In cases in which the alien has already entered the United States and there is no reasonable likelihood that a foreign government will accept the alien's return in the reasonably foreseeable future, we conclude that the statute does not permit the Attorney General to hold the alien beyond the statutory removal period. Rather, the alien must be released subject to the supervisory authority provided in the statute.

We adopt our construction of the statute for several reasons. First, and most important, the result we reach allows us to avoid deciding whether or not INS's indefinite detention policy violates the due process guarantees of the Fifth Amendment. Second, our reading is the most reasonable one - it better comports with the language of the statute and permits us to avoid assuming that Congress intended a result as harsh as indefinite detention in the absence of any clear statement to that effect. Third, reading an implicit 'reasonable time' limitation into the statute is consistent with our case law interpreting a similar provision in a prior immigration statute. Finally, the interpretation we adopt is more consonant with international law." [Slip op. 15-16].

Specifically, in cases such as this one where there is no reasonable likelihood that the alien will be removed anytime soon, the Court holds that the INS may not detain the alien beyond that statutory removal period. The Court therefore does not decide the constitutional questions raised in this case.

As for international law, the Court has accepted that "a clear international prohibition" exists against prolonged and arbitrary detention. The Court's construction of the statute renders it consistent with the "Charming Betsy" rule of statutory construction, which requires courts to construe congressional legislation in a way to avoid violations of international law.

Citation: Ma v. Reno, No. 99-35976 (9th Cir. April 10, 2000).

TERRORISM

Ninth Circuit holds that AEDPA read in light of First Amendment bans U.S. citizens from giving financial or other material support to foreign terrorist organizations but does not bar citizens from verbally supporting them

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) [Pub. L. No. 104-132, 110 Stat. 1214] authorizes the Secretary of State "to designate an organization as a foreign terrorist organization" if the organization was engaging in terrorist activities that threatened the security of U.S. citizens or the national security of the U.S. Two designated organizations are the "Kurdistan Workers' Party" (PKK) and the "Liberation Tigers of Tamil Eelam (LTTE). Illegal support to such organizations may result in criminal prosecution.

The plaintiffs in this suit against the Attorney General are six organizations and two U.S. citizens who wish to provide material support to those two groups for humanitarian and political purposes. The plaintiffs argued that the AEDPA's ban on that support interferes with their associational rights under the First Amendment.

The district court denied plaintiffs' request to enjoin the Act as a whole. It did conclude, however, that the Act's prohibition on providing "personnel" and "training" was overly vague, and thus banned the enforcement of those provisions. Both sides appealed.

The U.S. Court of Appeals for the Ninth Circuit affirms. In analyzing the plaintiff's First Amendment claim, the Court applies intermediate, rather than strict, scrutiny because the Act does not interfere with the expressive component of their conduct but with giving material support to terrorist groups.

"First, the federal government clearly has the power to enact laws restricting the dealings of United States citizens with foreign entities ... Second, the government has a legitimate interest in preventing the spread of international terrorism, and there is no doubt that that interest is substantial. (Cit.). Third, this interest is unrelated to suppressing free expression because it restricts the actions of those who wish to give material support to the groups, not the expression of those who advocate or believe the ideas that the group supports."

"So the heart of the matter is whether AEDPA is well enough tailored to its end of preventing the United States from being used as a base for terrorist fundraising. Because the judgment of how best to achieve that end is strongly bound up with foreign policy considerations, we must allow the political branches wide latitude in selecting the means to bring about the desired goal." [1135-36]

Here, Congress specifically noted in the Statute that criminal conduct so taints foreign terrorist organizations that any financial contribution facilitates their conduct. For example, the fungibility of money means that ostensible support for non-violent activities frees up more resources for terrorist acts. Therefore, the Court reasons, Congress had properly tailored the AEDPA to achieve its goals.

The Court, however, does agree with plaintiffs that the terms "training" and "personnel" in the definition of "material support" are unduly vague. Thus, there may be instances where the AEDPA might actually interfere with protected speech. For example, the Act might be taken to bar someone from instructing members of a designated group how to petition the United Nations. In the Court's view, therefore, the district court did not abuse its discretion in issuing its limited preliminary injunction.

Citation: Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000).

VIENNA CONVENTION (CONSULAR RELATIONS)

In case of Mexican national arrested on drug charges by U.S. authorities who failed to inform Mexican government as required by Vienna Convention on Consular Relations, Ninth Circuit sitting en banc rules that suppression of his inculpatory statements is not appropriate remedy

Agents arrested Jose Lombera-Camorlinga, a Mexican national, when he arrived in California with 39.4 kilograms of marijuana in his vehicle. Although the officers did warn him of his Miranda rights, they neither informed him about his rights under the Vienna Convention on Consular Relations [April 24, 1963, 21 U.S.T. 77] nor notified Mexican authorities of his arrest. Under Article 36 of the Convention law enforcement officials "shall inform" arrested foreign nationals of their Convention rights. Lombera-Camorlinga later moved to suppress his incriminating post-arrest statements because agents had obtained them in violation of Article 36.

An appellate panel held that a defendant's post-arrest statements made before being advised of his Convention rights are inadmissible in a later criminal prosecution if the defendant can show prejudice. [See 1999 Int'l Law Update 40.] The Court later withdrew the opinion and reheard the case en banc. Ultimately, the U.S. Court of Appeals for the Ninth Circuit, in a divided opinion, decides that suppression of the evidence is not an appropriate remedy.

The Court finds nothing in the language or operation of the Convention to suggest that Article 36 was intended to create an exclusio­nary rule with protections similar to Miranda. (The Court declines to decide whether the Convention creates individual rights that are judicially enforceable in other ways such as by suits for damages or equitable relief.)

The Court rejects defendant's assumption that the Vienna Convention was intended to serve the same purposes as Miranda. In the first place, when the U.S. had signed the Convention, the Supreme Court had not yet decided Miranda. Secondly, there is no other reason to think that the drafters of the Convention had this uniquely American exclusionary remedy in mind.

In addition, the Court notes, the U.S. Department of State filed a statement opining that suppression would be an inappropriate remedy. Generally, a court should give substantial weight to an executive branch position paper dealing with diplomatic relations. See Restatement (Third) of Foreign Relations, Section 326, reporters' note 2. The Department declared that no other Convention party has suppressed evidence under similar circumstances, and that the courts of Italy and Australia have expressly refused to do so.

Citation: United States v. Lombera-Camorlinga, 206 F.3d 882 (9th Cir. 2000).

WORLD TRADE ORGANIZATION

WTO Dispute Settlement Panel rules that U.S. Anti-Dumping Act of 1916 is not only inconsistent with WTO trading rules but also with GATT Anti-Dumping Agreement

In June 1998, the European Communities (EU) requested consultations with the U.S. before the WTO regarding Title VIII of the U.S. Revenue Act of 1916 [39 Stat. 756, 15 U.S.C. Sections 71-74, Antidumping Act of 1916 or 1916 Act]. The consultations having been unsuccessful, the WTO set up a Dispute Settlement Panel (DSP) in February 1999.

The Antidumping Act of 1916 (the Act) provides, in essence, that an importer must not "commonly and systematically" sell foreign products at a "substantially" lower price than in the country of origin "with the intent of destroying or injuring an industry in the Uni­ted States." Several subsequent U.S. laws build on, or relate to, the Act. These are the Tariff Act of 1930 and the 1936 Robinson-Patman Act. Before the 1970s, only one reported case dealt with the Act. No court has ever imposed the Act's criminal sanctions.

The EU contended that the 1916 Act does not square with Articles 1 and 18.1 of the Anti-Dumping Agreement because these provisions make anti-dumping duties the exclusive remedy for dumping. The U.S. objected to the Panel's consideration of these arguments because the EU had failed to include them in its request to set up a Panel.

The Panel disagrees. First of all, the WTO Anti-Dumping Agreement is closely linked to GATT. Furthermore, the WTO Agreement is a single treaty instrument. As for the interpretation of such a treaty, the Vienna Convention on Treaties Article 31(2) provides in part that "the context for the purpose of the interpretation of a treaty shall comprise, [...] the text [of the treaty], including its preamble and annexes ..." The Panel, therefore, must consider these points under general interpretative principles of public international law. (Paragraph 6.195)

The 1916 Act, in the Panel's view, is at war with several provisions of the WTO trading rules and the Anti-Dumping Agreement. For example, the Act fails to comply with Article VI:1 GATT 1994 by not providing for an "injury" test. In allowing remedies other than anti-dumping duties, such as treble damages, fines or imprisonment, the Act does not square with Article VI:2 GATT 1994. (Paragraph 6.207). In addition, the Act lets "any person injured" sue. Failure to require the plaintiff to at least minimally represent the U.S. industry in question does not comport with Article 4 of the Anti-Dumping Agreement. (Paragraph 6.213) Finally, in omitting to require notice to the governments concerned, the Act is inconsistent with Article 5.5 of the same Agreement. (Paragraph 6.216)

The Panel concludes that these violations of GATT 1994 and the Anti-Dumping Agreement nullify and impair benefits to the EU. It therefore recommends that the U.S. bring the 1916 Act into compliance with the WTO Agreement.

Citation: United States - Anti-Dumping Act of 1916 (WT/DS136/R) (31 March 2000).

WORLD TRADE ORGANIZATION

In petition brought by U.S., WTO Panel finds that Australia failed to timely comply with Panel Report finding that export subsidy to automotive leather manufacturer was improper

On June 16, 1999, a Panel adopted the Report in the U.S.-Australia dispute over Australian subsidies to Howe and Company Proprietary Ltd., an automotive leather manufacturer. The original proceeding disapproved an A$ 30 million grant to the automotive leather producer which was contingent on export performance. The WTO Panel had held that full repayment of the banned subsidy was necessary to effectively "withdraw the subsidy" in this case.

Australia informed the WTO Dispute Settlement Body (DSB) last September that it had the company repay A$8.065 million (approximately 27%) of the grant which it considered the grant's "prospective portion." The same day, however, Australia announced a new A$ 13.65 million loan to Howe's parent company. The U.S. then asked the DSB to evaluate Australia's compliance.

As for the grant, the Panel considers full repayment necessary in this case to "withdraw" the prohibited subsidies. The Panel notes that new loans are not necessarily at war with WTO rules. Here, however, the loan covers the repayment of the grant and therefore there has been no effective withdrawal of the subsidy (Paragraph 6.51). In sum, the Panel finds that Australia has failed to comply with the Panel's recommendation.

Citation: Australia - Subsidies Provided to Producers and Exporters of Automotive Leather, Recourse to Article 21.5 of DSU by United States (WT/DS126/1) (21 January 2000). [WTO Panel Report is available on WTO website www.wto.org; U.S. Trade Representative press release 00-04 (January 27, 2000).]

WORLD TRADE ORGANIZATION

In dispute between U.S. and Mexico over anti-dumping investigation of U.S. corn syrup, WTO Dispute Settlement Panel finds irregular procedures and errors of substantive law on part of Mexican agency and rules in favor of U.S.

On January 28, 2000, a Dispute Settlement Panel of the World Trade Organization (WTO) circulated its Report in the U.S.-Mexico dispute regarding Mexico's anti-dumping investigation of high-fructose corn syrup (HFCS) from the U.S., grades 42 and 55. HFCS is a sweetener used for soft drinks and other food products.

At the request of the Mexican National Chamber of Sugar and Alcohol Industries, the Mexican Secretariat of Commerce and Industrial Development (SECOFI) began its anti-dumping investigation of U.S. HFCS in 1997. In its final determination published on January 23, 1998, Mexico inflicted definitive anti-dumping measures on HFCS imports from the U.S. Specifically, it exacted duties ranging from U.S.$ 63.75 to U.S. $100.60 per metric ton of HFCS grade 42, and U.S.$ 55.37 to $175.50 per metric ton of HFCS grade 55.

The U.S. brought its WTO complaint on May 8, 1998, challenging the anti-dumping investigation and the anti-dumping duties imposed. The U.S. challenge also focused on Mexico's inadequate showing of injury to the Mexican sweetener industry.

The Panel agrees with the U.S. that the Mexican investigative procedures failed to comply with the WTO Anti-Dumping Agreement. Moreover, it finds that Mexico's anti-dumping measures clashed with the Anti-Dumping Agreement in several substantive respects.

In the first place, Mexico failed to adequately consider the impact of dumped imports on its domestic industry. For example, it determined the threat of material injury based only on that part of the domestic production sold in the industrial sector rather than through­out the whole economy.

Moreover, in its ruling on the probability of substantially increased importation, its faulty evaluation of the potential effect of the alleged restraint agreement transgressed Articles 3.1, 3.2, 3.4, 3.7 and 3.7(I). The Panel also found that Mexico's extension of the provisional measure was inconsistent with Article 7.4 and that its retroactive application of anti-dumping duties ignored Article 10.2.

Finally, Mexico's failure to promptly release bonds and/or cash deposits collected under the provisional measure did not square with Article 10.4. Finally, the Mexican government strayed from Articles 12.2 and 12.2.2 when it failed to provide findings or conclusions about the retroactive application of the final anti-dumping measure.

Citation: Mexico-Anti-Dumping Investigation of High-Fructose Corn Syrup (HFCS) from the United States (WT/DS132/R) (28 January 2000). [Panel Report is available on WTO website www.wto.org; U.S. Trade Representative press release 00-05 (January 27, 2000)].

Landmark protocol on damages for hazardous waste spills is open for signature. The Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal [28 I.L.M. 657 (1989)] have approved a Protocol on Liability and Compensation. The EU and 139 nations [not including the U.S.] have ratified the main Convention which entered into force on May 5, 1992. Article 6 of the main Convention requires that contracting states or their waste exporters notify interested governments about proposed shipments. Under the Protocol, persons who comply with Article 6 are exposed to potential liability for spill damages until the disposer gets possession of the waste. The Protocol also imposes liability for a spill caused by failure to comply with the Convention or by any person's wrongful, intentional, reckless or negligent behavior. In addition, the Protocol imposes insurance requirements on shippers of waste. Depending on the quantity of waste involved, minimum damages may range from $1,380,000 to $41,400,000. The Protocol is said to create the first legally binding machinery on damages in the international environmental field. Ratification by twenty countries will bring it into force. Citation: BNA Daily Environmental Law Report, Vol. 23, No. 6, Wed. March 15, 2000 at 225; Byline of Mr. Daniel Pruzin [For texts and background, see http://www.basel.int].

U.S. eliminates sanctions against Niger. On February 23, 2000, U.S. Secretary of State Albright signed a determination that Niger has established a democratically elected government. Therefore, Section 508 of the Foreign Operations, Export Financing and Related Programs Appropriation Act (110 Stat. 3009-166 to 3009-167) no longer bars bilateral aid to Niger. Citation: U.S. Department of State Press Statement (March 7, 2000).

German district court enjoins Microsoft from using lock devices in Windows. A district court in Munich, Germany, has issued an injunction against Microsoft regarding its Windows operating systems. It prohibits Microsoft from distributing the operating systems Windows 95, 98, 2000 and NT with lock devices that tie the use of the software to specific hardware components. Citation: Landgericht Muenchen I, Einstweilige Verfuegung vom 21. Februar 2000, 7O 3111/00 - OEM Software.

Deportation of former member of Nazi killing unit upheld. The Board of Immigration Appeals (BIA) has approved the deportation from the U.S. to Lithuania of Juozas Naujalis, a retired machinist living in Chicago. During World War II, Naujalis was a member of the 2nd Lithuanian Schutzmannschaft Battalion that murdered thousands of Jews, suspected communists, and Soviet military prisoners. Naujalis came to the U.S. in 1949 but never became a U.S. citizen. His deportation resulted from investigations conducted by the Justice Department's Office of Special Investigations (OSI). Citation: U.S. Department of Justice press release (February 29, 2000); The Jerusalem Post, March 3, 2000, page 8A.

EU again revises list of inadmissible persons from Yugoslavia and suspends flight ban. The EU has suspended the air traffic ban imposed on Yugoslavia for six months, and has again revised its list of inadmissible persons from the Federal Republic of Yugoslavia. The persons that may not enter the EU include Yugoslav President Slobodan Milosevic and his immediate family, as well as government members and other supporters. — In a related matter, the EU has suspended the flight ban between the EU and Yugoslavia (other than Montenegro and Kosovo) until August 28, 2000. Citation: 2000 O.J. of the European Communities (L 56) 1, 2, 1 March 2000 (inadmissible persons) & (L 73) 4, 22 March, 2000 (flight ban).

French court finds major tobacco company partially liable in smoker's death. In 1996, Paul Gourlain, a French citizen who had long been smoking three packs per day of the unfiltered Gauloises brand of cigarettes, filed a landmark $430,000 suit against SEITA, a major French tobacco company, in Montargis, a city south of Paris. He alleged that defendant, with 38% of the French market, had failed to warn the public on the dangers of smoking and had lured consumers into addiction. Plaintiff died during 1999 at age 49 but his family continued the action. Defendant countered that plaintiff had brought his premature death upon himself since French newspapers have long been carrying stories about the link between tobacco and cancer. On December 8 last, the court found that SEITA was accountable for plaintiff's illness and death from cancer but only during two periods of his life: (1) from 1963-69 when plaintiff started to smoke and (2) between 1969-76 when smoking defendant's product began to have adverse effects on his health. During phase (2), the court said it could hold defendant 40% responsible for plaintiff's injuries. It will hear from medical experts before determining the amount of damages. A regional branch of CPAM, France's national health insurance agency, had sought to join the action against SEITA with its own claim for $160,000 but the court had dismissed its request. Attorneys for both plaintiff and defendant were dissatisfied with the verdict and appeals seem likely. The national committee against tobacco smoking, however, praised the court's decision, noting that it was the first of its kind in France. French Ministry of Health figures show that tobacco use causes one out of every nine deaths in France. Moreover, 35% of French grownups and 60% of eighteen-year-olds are smokers. Citation: Agence France Press (English Wire), December 8, 1999, 18:49 BST.

U.S. and Colombia agree on increased aviation - U.S. reaches Open Skies agreements with Ghana and Turkey. After talks in Washington, D.C., March 13-15, the U.S. and Colombia have initialed an amendment to the current aviation agreement between the two countries. The amendment liberalizes air traffic, for example by increasing the number of passenger and cargo flights and the range of destinations. Both countries will apply the new agreement immediately on the basis of comity and reciprocity pending its official entry into force. — In a related matter, the U.S. has reached agreement with Ghana and Turkey regarding so-called "Open Skies" aviation agreements that will permit unrestricted air traffic. Citation: U.S. Department of State Press Statement (March 16, 2000) (Colombia) & (March 17, 2000) (Ghana) & (March 22 & 23, 2000) (Turkey).

U.S. further implements Chemical Weapons Convention. The U.S. Department of Commerce, Bureau of Arms Control, has issued a final rule implementing provisions of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destructions (Chemical Weapons Convention) [32 I.L.M. 800], and the Chemical Weapons Implementation Act of 1998 [22 U.S.C. 6701]. The rule provides for the taking of samples at suspicious sites and for the enforcement of record-keeping requirements and inspections at potential manufacturing sites for such weapons. The effective date of the rule is December 30, 1999. Citation: 64 Federal Register 73811 (December 30, 1999).

EU terminates anti-dumping proceeding aimed at U.S. TV camera systems. In 1998, the EU Commission began an anti-dumping investigation of U.S. television camera systems, the only U.S. exporter to the EU being Sony Professional Products Company of Boca Raton, Florida. Sony then announced that it would cease its production in the U.S. and transfer it to the EU before the end of 1999. Commission representatives have visited the U.S. manufacturing facility and are satisfied itself that Sony is in fact phasing out its U.S. production. Therefore, the Commission saw no need to continue the investigation. Citation: 2000 O.J. of the European Communities (L 25) 24, 1 February 2000.

China opens market to U.S. farm products. The U.S. Trade Representative has announced that China has issued new rules for the import of U.S. citrus, meat, poultry and wheat. The Chinese Government has promulgated these rules in the form of "circulars" to implement the Agreement on U.S.-China Agricultural Cooperation signed on April 10, 1999. According to the Agreement, China will reduce its phytosanitary restrictions and accept the U.S. certification system for meat and poultry. Citation: U.S. Trade Representative press release 00-20 (March 22, 2000).