Legal Analyses written by Mike Meier,
Attorney at Law. Copyright 2017 Mike Meier. www.internationallawinfo.com.
1999 International Law Update, Volume 5, Number 1
(January).
"ACT OF STATE" DOCTRINE
In civil action by finder against Ferdinand Marcos for
converting gold plundered and buried by General Yamashita in Philippines
during World War II, Hawai'ian Supreme Court rejects "act of state"
defense since defendant failed to prove that Marcos had seized treasure for other than private
purposes
While he was working as a locksmith in Baguio City, the
Philippines in 1961, Roger Domingo Roxas ran into two individuals who claimed
to know where Japanese General Tomoyuki Yamashita had buried large amounts of
gold and other valuables looted from conquered nations during World War II.
During 1970, after 7 months of digging near a General
Hospital, the Roxas team broke through into tunnels where they found a one-ton
golden buddha statute and a thousand cubic feet of boxes containing gold bars.
To finance a more complete exploration, Roxas sold some of the gold bars and
tried to sell the buddha.
In April 1971, men in military uniforms raided Roxas'
house, seizing the buddha, the diamonds, and the gold bars. Roxas complained to
Judge Pio Marcos who said he had signed the warrant on the orders of Ferdinand
Marcos.
Two weeks later, three "civilians" again
arrested Roxas. Later, soldiers unsuccessfully demanded that Roxas sign a
cooperation agreement. The soldiers then tortured him with electric shocks,
burned him with cigarettes and beat him unconscious. Roxas escaped, however,
and told his story at a Philippine senate hearing on June 30, 1971.
After Roxas came out of hiding in July 1972, two men
arrested him and confined him in a Naval stockade. Upon his release in November
1974, Roxas observed the military excavating for the treasure near the General
Hospital but turned down their requests for help. He then moved to another town
where, for ten years, he had no more to do with the treasure.
Meanwhile, a hospital attendant and a military cook
reported that they saw soldiers carrying large heavy wooden boxes out of a
tunnel near the Hospital during 1974 and 1975 and placing them in guarded
trucks. Their uniforms bore a "PSC" [Presidential Security Command]
insignia. The cook estimated that, over a one year period, they were loading
about ten boxes per day containing gold-colored bars.
In late 1974, a presidential confidante appro-ached
Robert Curtis, a Nevada metals refiner, and asked him if would resmelt and
remark some gold bars, changing their composition so as to defeat later
identification. After Curtis had begun designing and building a gold refinery,
threats on his life persuaded him to flee the Philippines. Various foreign
businessmen and an ex-policeman reported secret efforts to use them to
"launder" large amounts of Marcos gold on the world markets. Several
persons personally observed vast stores of gold hidden on Marcos properties.
In February, 1986, the U.S. government transported a
deposed Ferdinand and Imelda Marcos to Hawai'i. Roxas then had a Georgia friend
incorporate the Georgia Budha Company (GBC) and hired an attorney to press his
claims against the Marcoses.
Roxas and GBC sued Ferdinand and Imelda in Hawai'i in
February 1988 for damages for Roxas' detention and torture and for various acts
of converting the Yamashita hoard. Defendants moved to dismiss, inter alia,
based on "head-of-state" immunity, and the "act of state"
doctrine. In April 1989, the court denied the motions. [See below on issues of
"head-of-state" immunity and choice of law.
After a jury trial, the court entered a judgment
awarding plaintiffs over $22,000,000,000. From this judgment both sides
appealed on a variety of issues. The Supreme Court of Hawai'i affirms in part
and reverses in part.
In denying the Marcoses motion to dismiss, the lower
court had rejected defendants' claim that the "act of state" doctrine
based on international comity precluded litigation of the case. Under the
classic statement of this doctrine, the courts of one sovereign state will not
sit in judgment on the acts of another state carried out within its own
territory.
In Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964),
the Supreme Court made clear that the doctrine was also bound up with the
constitutional separation of powers at the federal level. While the doctrine is
not irrevocably jurisdictional, "[i]t arises out of the basic relationships
between branches of government in a system of separation of powers. It concerns
the competency of dissimilar institutions to make and implement particular
kinds of decisions in the area of international relations." [Slip op. 36]
Nevertheless, the doctrine is also a federal limitation on state courts.
As to this case, defendants contended that, regardless
of whether the government's action was unlawful under international or local
law, the act of state doctrine warranted dismissal. The Hawai'ian court
disagrees. It cites analogous civil actions against the Marcoses where the
Ninth and Second Circuits gave little or no weight to the doctrine since a
deposed ruler or government was invoking it to bar recovery of plunder by the
successor government.
"The act of state doctrine is supple, flexible, ad
hoc. [It] is meant to facilitate the foreign relations of the United States,
not to furnish the equivalent of sovereign immunity to a deposed leader."
[Slip op. 38]. Nor does the doctrine apply to the “private” acts of a head of
state, i.e., actions taken for the leader's own selfish interests. The Court
is more than a little dubious about defendants' claim that Roxas had found
treasure on public property and had wrongfully appropriated some of it for his
personal use rather than for the public good. This is not enough to meet the
defense burden of proving that Marcos' dealings with Roxas amounted to
"public" acts.
"First, the testimony of Olsson, Doel, and O'Brien
regarding (1) the storage of gold in Ferdinand's 'summer palace' and at the
Malacanang and (2) Ferdinand's surreptitious attempts to sell it, combined
with (3) Hirschfield's testimony regarding Ferdinand's post‑presidential
attempts to use the gold as security for a personal loan, was sufficient for
the circuit court to reasonably infer, ... that Ferdinand had converted the
treasure strictly for his benefit, rather than for that of the state. ...
[Moreover], [t]he circuit court could reasonably have inferred that [Roxas']
detention and torture were carried out at Ferdinand's personal command and
effectuated in order for Ferdinand personally to appropriate the
treasure." [Slip op. 40]
Finally, the apparent illegality of the Marcos
conversion of the treasure found by Roxas is significant. "... Congress
has expressly exempted confiscations of personal property that are illegal
under international law from the scope of the act of state doctrine. This
provision, variously referred to in the case law as the 'Sabbatino amendment'
and the 'Hickenlooper amendment,' was enacted in response to the Supreme
Court's decision in Sabbatino. Despite its 'constitutional underpinnings,' the
power of Congress to limit the act of state doctrine has been upheld by virtue
of its peculiarly prudential character." [id.]
Citation: Roxas v. Marcos, No. 20606 (Supreme Court of Hawai'i,
November 17, 1998).
AVIATION
In injury case against foreign airline arising out of
intrusive security search, U.S. Supreme Court concludes that Warsaw Convention
provides exclusive remedies for accidental injuries arising in course of
international air travel
On May 22, 1993, Tsui Yuan Tseng arrived at J.F.K.
airport in New York bound for Tel Aviv on El Al Israel Airlines. When she gave
"illogical" answers to routine questions, guards classified her as
a "high risk" passenger and had her undergo a "security
search."
This required her to remove her jacket and sweater and
to lower her blue jeans to mid-hip level. By hand and security wand, a female
guard then spent fifteen minutes searching plaintiff's entire body outside her
clothing, including her breasts and groin area. According to El Al, it had
adopted these procedures pursuant to F.A.A. regulations. Cleared of being a
security risk, a ruffled Tseng boarded her flight.
A year later, Tseng sued El Al for personal (but
nonbodily) injuries in New York state court. As an "agency or
instrumentality of a foreign state" under § 1603(a) of the F.S.I.A., the
airline removed the case to federal court. The district court, however,
dismissed her personal injury claims based on the body search as not amounting
to an "accident" that caused physical injury as required by the
Warsaw Convention.
The U.S. Court of Appeals for the Second Circuit
affirmed in part and reversed in part [122 F.3d 99; see 1997 Int'l Law Update
74]. The Court held that the body search did not constitute an
"accident" giving rise to liability for bodily injury under Article
17 of the Warsaw Convention [49 Stat. 3000, T.S. No. 876 (1934), reprinted in
49 U.S.C. § 40105 note]. In the Court's view, the term "accident"
does not include those typical events to which a passenger has presumably
consented, i.e., those injuries that take place in the normal operation of the
aircraft. Though inconvenient and embarrassing at times, their goal is to preserve
airline security for all.
The Court, however, next held that the Convention is
not the exclusive remedy for personal injuries sustained in the course of
international air travel. The exclusivity provisions of Article 24(2) of the
Convention clearly bar resort to local laws only where Article 17
"covers" the incident. As to the treaty's goal of uniformity, the
Second Circuit read Zicherman v. Korean Air Lines Co., 516 U.S. 217 (1996) [see
1996 Int'l Law Update 15] as teaching specifically that the Convention
expresses no interest in uniformity so compelling that it would warrant
displacing an otherwise applicable body of law.
Based on a division among the Circuits, the Supreme
Court of the United States granted certiorari. Over one dissent, the Court
reverses. In its view, the Warsaw Convention does bar a passenger from
maintaining an action for personal injury damages under local law when her
claim fails to satisfy the conditions for liability demanded by the Convention.
At the outset, the Court said that it must give the
specific words of a treaty a meaning consistent with the contracting parties'
shared expectations. Moreover, the Court has traditionally considered the
negotiating and drafting history (travaux preparatoires) and the understandings
of the contracting parties under the treaty regime as guides to treaty
interpretation. Here, the Executive Branch as amicus curiae also favors the
exclusivity approach.
Noting the Convention's complete scheme of liability rules
and its textual emphasis on uniformity, the Court finds it hard to infer that
the Warsaw delegates intended to subject air carriers to the distinct,
nonuniform liability rules of the individual signatory nations. The Second
Circuit thus misread Zicherman. It merely decided that the Warsaw drafters
meant the Treaty to resolve whether there is liability. It then left to
domestic law (the local law identified by the forum under its choice of law
rules or approaches) all matters dealing with the compensatory damages
available to the suitor.
Articles 17, 22, and 24 of the Convention sought to
balance the interests of passengers seeking recovery for personal injuries,
against the interests of air carriers seeking to limit potential liability. The
Second Circuit's construction, however, would encourage artful pleading by
plaintiffs seeking to opt out of the Convention's liability scheme when local
law promised a higher recovery than that set out in the treaty. Such a reading
would hardly promote the predictability that adherence to the treaty has
brought about worldwide.
The U.S. has recently approved Montreal Protocol No. 4.
Clarifying the Convention's exclusivity, it prospectively amends Article 24 to
provide, in relevant part: "In the carriage of passengers ..., any action
for damages ... can only be brought subject to the conditions and limits set
out in this Convention ...."
Plaintiff admits that this preemptive language would be fatal if applied
to her case.
Plaintiff then argued that federal courts generally
disfavor federal preemption of state law especially in matters of health and
safety. The Court notes, however, that the Convention focuses upon the nation‑state,
not subdivisions within one nation. Thus U.S. courts should not mechanically
apply a domestic preemption analysis in determining the nation's international
obligations. Finally, the Court finds comfort in the decisions of other
signatory courts, including the House of Lords, that consistently uphold the
exclusivity of the Convention.
The dissenting Justice summarizes his views as follows.
"Everyone agrees that the literal text of the treaty does not preempt
claims of personal injury that do not arise out of an accident. It is equally
clear that nothing in the drafting history requires that result. On the
contrary, the amendment to the title of the Convention made in response to the
proposal advanced by the Czechoslovak delegation, suggests that the parties
assumed that local law would apply to all nonaccident cases. I agree with the Court
that that inference is not strong enough, in itself, to require that the
ambiguity be resolved in the plaintiff's favor. It suffices for me, however,
that the history is just as ambiguous as the text. I firmly believe that a
treaty, like an Act of Congress, should not be construed to preempt state law
unless its intent to do so is clear." [Slip op. 14]
Citation: El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, No.
97-475 (U.S. Supreme Court, January 12, 1999).
CHOICE OF LAW
In civil action against Marcoses over conversion of
buried war treasure found by plaintiff, Supreme Court of Hawai'i agrees that
Philippine law would govern survival or abatement of suit but declines to
"judicially notice" that law for failure of parties to present
evidence of its content
[For background facts, see "Act of State"
above] An important issue in this case involved the law applicable to the
survival of Roxas' claim against Marcos who died before the court had finally
determined the merits. Under Hawai'ian law [HRS § 634-61 (1993)], the death of
a defendant does not prevent the continuation of the suit against a properly
substituted party. On several substantive issues, the lower court had applied
the law of the Philippines as the jurisdiction with the most significant
relationship to the parties and the subject matter. It applied HRS § 634-61,
however, to the abatement issue. This posed the problem of whether the
appellate court could or should "judicially notice" Philippine law on
this point.
The Court first points out that acting as forum
furnished the only Hawai'ian link to the subject matter of the suit. All other
factors invoked the interests of the Philippines. Thus, the lower court had
properly applied Philippine law to the substantive claims.
"In light of the foregoing, it would have made
sense for the circuit court to have applied Philippine law as to the survival
or abatement of those claims for relief. However, as far as we can discern, the
parties never addressed Philippine law, if there is any, on the question at
trial, and their appellate briefs are silent on the issue. This court may take
judicial notice of the law of foreign countries. See Hawai'i Rules of Evidence
(HRE) Rule 202(c)(5) (1993). ... [On proof of foreign law, see] HRCP Rule 44.1
(1996) ..."
"In the present matter, we need not directly
address whether it is generally appropriate for courts in this jurisdiction to
ascertain foreign law ex officio because reliable sources of Philippine law are
not available. Under such conditions, it is eminently sensible to cast the
burden of apprising the court regarding foreign law on the parties, and, where
they fail to meet their burden, to assume acquiescence in the application of
local law. Accordingly, we apply HRS § 634‑61 to our analysis." [Slip op.
22, note 16]
[Editorial Note. Rule 201 of the Federal Rules of
Evidence restricts judicial notice to "adjudicative facts." Though a
few states, such as Hawai'i, have added a Rule 202 to deal with other matters
deemed appropriate for judicial notice, the Advisory Committee's Note to
federal Rule 201 specifically characterizes proof of foreign law as
"procedural" and thus, within Fed.R.Civ.Pro. 44.1]
Citation: Roxas v. Marcos, No. 20606 (Supreme Court of Hawai'i,
November 17, 1998) [See also under Immunity (Head of State), below].
COPYRIGHT
Argentina amends Intellectual Property Law to permit
licensee to copy programs for personal use
With a law promulgated on November 11, 1998, the
Argentine Congress has modified the Argentine Intellectual Property Law (Ley
No. 11.723 sobre Propiedad Intelectual) to permit software licensees to make
copies of computer programs for personal use.
It provides that someone who has properly acquired
certain software may make copies of the original software without the express
consent of the licensor. These copies may only be used to replace the original
in case of loss or inability to function (Article 9). The amendment also adds
computer software and databases to the definition of protected works in the
Intellectual Property Law (Article 1).
Citation: Ley No. 25036, Modificacion de la Ley No. 11.723
(Approved October 14, 1998, promulgated November 11, 1998).
ECONOMIC SANCTIONS
Fourth Circuit reverses dismissal of criminal charges
for violating export ban to Iran holding that term “export” not ambiguous
despite lack of definition in Iranian Transactions Regulations
A federal grand jury indicted Mohammad Reza Ehsan for
shipping equipment to Iran in violation of export restrictions imposed on Iran
based on an Executive Order and its implementing regulations [Exec. Order No.
12959, 60 Federal Register 24757 (1995), 31 C.F.R. §§ 560-203-.205, .406
(Iranian Transactions Regulations)]. President Clinton had issued that
Executive Order to counter Iran’s threat to U.S. national security, foreign
policy, and economy. It bans most imports, exports, and transshipments of goods
between the U.S. and Iran. The implementing regulations issued by the Office of
Foreign Assets Control bar any exports, or financing thereof, to Iran.
In 1996, Ehsan had ordered "Transformer Oil Gas
Analysis Systems" (TOGASs) for shipment to Dubai, United Arab Emirates
(U.A.E.), though the ultimate destination was Iran. TOGASs were not subject to
export license application requirements at that point and were exempt from the
reexportation ban. Customs Agents created a dummy package for a controlled
delivery. Authorities arrested Ehsan after the package reached the U.A.E.
Pointing to the absence of definitions in the Executive
Order’s and regulations' lack of definitions, Ehsan argued that his planned
shipment of the goods to Iran was a permissible "reexport," not an
impermissible "export" or "transshipment." The district
court agreed with Ehsan that the provisions were ambiguous. Under the rule of
lenity, the court dismissed counts two and three of Ehsan’s indictment that
charged violations of the export ban.
The U.S. Court of Appeals for the Fourth Circuit
reverses and remands to reinstate counts two and three of Ehsan's indictment.
Even though the regulations do not define "export," its ordinary
meaning is clear. It merely involves the transit of goods from one country to
another for the purpose of trade. If Ehsan had intended to sell the products in
Iran, then the shipment plainly amounted to an "exportation" to Iran.
This view is consistent with the purpose of the
Executive Order, which is to isolate Iran from trade with the U.S. Absent a
severe ambiguity, to apply the rule of lenity would take this important foreign
policy decision out of the hands of the Executive and put it into those of the
courts.
"Ehsan's transaction may indeed have constituted a
reexport, if he shipped the TOGAS with the purpose of joining them with the
commerce of the U.A.E. and then shipped them from the U.A.E. with the intent to
join them with the commerce of Iran. ... This, however, is a question for the
jury, not an ambiguity in the regulatory scheme. Ehsan also places great
weight on the fact that the TOGAS cleared customs in Dubai. Once the shipment
cleared customs, he argues, the ‘export’ to the U.A.E. was complete. Customs
clearance, however, is simply another fact for the jury to weigh in determining
whether Ehsan intended to export the goods to Dubai or to Iran – just as bills
of lading, his purchase orders, and the situs of his ultimate customer
certainly will be.” [Slip op. 12]
Citation: United States v. Ehsan, No. 98-4036 (4th Cir. December
15, 1998).
HUMAN RIGHTS
In case of first impression, Florida federal court rules
that International Covenant on Civil and Political Rights does not bar United
States from prosecuting persons already convicted for same crime in another
country
In June 1982, a federal grand jury indicted Rene Benitez
and Jose Duarte‑Acero for assaulting two special agents of the United States
Drug Enforcement Administration ("DEA"). This assault allegedly took
place in February of 1982, outside of Cartagena, Colombia. The U.S. next sought
to extradite them for trial on the present offense. The Colombian government,
however, declined to do so. In 1987, in fact, the Colombian Supreme Court
annulled the extradition treaty between that nation and the U.S.
In 1995, by some "informal" means other than
extradition, someone brought defendant Benitez from South America to the U.S.
and, in 1997, the same thing happened to defendant Duarte‑Acero. U.S.
authorities arrested and arraigned the two men on the DEA assault charge. Defendants
alleged [but have not yet proven] that before their excursion to the United
States, the Colombian government had tried, convicted, and incarcerated them in
Colombia for the present offense.
Moving to dismiss, defendants claimed that, because of
their Colombian convictions, the U.S. cannot prosecute them again for the same
offense. They rely mainly on the International Covenant on Civil and Political
Rights (ICCPR) (December 16, 1966, 999 U.N.T.S. 171).
The district court denies the motion. The Court first
remarks that whether the ICCPR bars a second prosecution for an offense for
which another nation has convicted defendant seemingly is a matter of first
impression.
In September 1992, the President ratified the ICCPR
subject to a number of reservations, declarations and understandings. As its
preamble shows, the ICCPR aims to provide international protection for the
civil and political rights of the individual, as well as certain economic,
social and cultural rights.
Article 14(7) of the ICCPR provides, "No one shall
be liable to be tried or punished again for an offence for which he has already
been finally convicted or acquitted in accordance with the law and penal
procedure of each country." [emphasis added] According to defendants' reading, the ICCPR
bans a prosecution of X by one national government for an offense for which
another national government has already either convicted or acquitted X. The
Court disagrees with Defendants, however,and finds that the ICCPR, Article
14(7), bars only successive internal prosecutions by the same government.
By its language, the ICCPR does not purport to regulate
affairs between nations. Rather, the ICCPR is an international agreement
mandating how each state party is to treat individuals within its jurisdiction.
"In a document that Defendants provided to the Court, the Human Rights Committee‑‑created
under Article 20 of the ICCPR‑‑states that the ICCPR is not a mere exchange of
obligations between States, but rather, a human rights treaty which is 'for the
benefit of persons within their jurisdiction.'" [Slip op. 2]
Moreover, in A.P. v. Italy, Communication No. 204/1986,
the same Committee held that the ICCPR did not bar Italy, as a signatory
nation, from prosecuting an individual for the same offense for which
Switzerland had previously convicted and sentenced him.
Finally, the Court declares, "In ratifying the
ICCPR, the Senate [sic] stated that the United States 'understands the
prohibition upon double jeopardy in paragraph 7 to apply only when the judgment
of acquittal has been rendered by a court of the same government unit, as is
seeking a new trial for the same cause.' 138 Cong. Rec. S4781‑01, S4783. The
import of this qualification is that the Senate understood this paragraph to
apply to a nation's internal prosecutions." [Slip op. 3]
[Editorial Note: The Court could also point out that one
of the Senate's reservations was that the ICCPR was not self-executing within
the United States.]
Citation: Benitez v. United States, No. 82-292-CR-Gonzalez
(S.D.Fla., November 4, 1998).
IMMUNITY (HEAD OF STATE)
Where finder of buried World War II treasure sued
deposed Philippine President Marcos for converting hoard to his personal use,
head-of-state immunity does not apply to former leader’s actions
[For background facts, see "Act of State" above]
Imelda Marcos (as substituted defendant) also argued that her husband was
immune from suit in Hawai'i under the "head of state" doctrine.
The Court first notes that this type of immunity stems
from customary international law and seeks to advance international comity and
respect among sovereign nations. It does this by making sure that leaders are
free to perform their governmental duties without being subject to detention,
arrest, or embarrassment in a foreign country's legal system. It generally
holds that a head of state is not subject to the jurisdiction of foreign
courts, at least as to official acts taken during the ruler's term of office.
The Court concludes that this form of immunity does not
apply here. "In any case, other than the nineteenth century New York
decision cited by Imelda, we have found no other authority that applies head of
state immunity to former heads of state. Modern authority is to the contrary.
As the plaintiffs‑appellees have observed, Ferdinand has repeatedly and unsuccessfully
claimed head of state immunity in various lawsuits around the country. ...
Accordingly, we hold that Ferdinand is not protected by head of state
immunity." [Slip op. 42]
Citation: Roxas v. Marcos, No. 20606 (Supreme Court of Hawai'i,
November 17, 1998). [For another branch of this complex case, see "Choice
of Law" above].
IMMUNITY (SOVEREIGN)
In suit against Libya arising out of Pan Am 103 bombing,
Second Circuit rejects constitutional challenge to new anti-terrorist amendment
to Foreign Sovereign Immunities Act since Libya already on State Department’s
list at time of enactment
This is another case in the saga of the Pan Am 103
flight that a bomb blew out of the sky over Lockerbie, Scotland, in December
1988. The representatives of the victims brought suit against Libya because it
had allegedly sponsored the terrorists who had planted the bomb. Libya argued
that the applicable jurisdictional section of the Foreign Sovereign Immunities
Act (FSIA), 28 U.S.C. Section 1605(a)(7), is an unconstitutional delegation of
the power to determine the jurisdiction of the federal courts. It essentially
allows the U.S. Department of State to determine judicial jurisdiction by
designating a foreign state as a sponsor of terrorism.
[New York federal courts have dismissed several previous
cases based on the same facts for lack of subject matter jurisdiction. In 1996,
Congress amended the FSIA with the Antiterrorism and Effective Death Penalty
Act (AEDPA) by adding paragraph (7) to § 1605(a). Under this new section,
foreign nations that the State Department has designated as state sponsors of
terrorism have no immunity from damage actions for personal injury or death
resulting from torture, murder, aircraft sabotage, or hostage taking.]
The district court denied Libya’s motion to dismiss,
reasoning that Section 1605(a)(7) does not confer jurisdiction but simply
deprives Libya of the affirmative defense of sovereign immunity. Libya filed
an interlocutory appeal. The U.S. Court of Appeals for the Second Circuit
affirms in part and dismisses in part.
The U.S. Secretary of State designates state sponsors of
terrorism under 50 U.S.C. App. § 2405(j) or 22 U.S.C. § 2371, for export and
foreign aid purposes. Under the new FSIA section 1605(a)(7), this designation
also affects federal court jurisdiction over actions against foreign states.
The Court finds that 28 U.S.C. §1605(a)(7) is constitutional, but its reasoning
differs from that of the district court. In this case, there simply was no
unconstitutional delegation of powers because, when enacting Section
1605(a)(7), Congress knew that Libya was already on the list of state sponsors
of terrorism.
"The issue of delegation [however] might be presented
if another foreign sovereign – one not identified as a state sponsor of
terrorism when § 1605(a)(7) was passed – was placed on the relevant list by the
State Department and, on being sued in federal court, interposed the defense
that Libya now raises. It might also arise if a state on the list when §
1605(a)(7) was enacted was later dropped from the list. In that scenario, a
plaintiff could put forth a claim of unduly delegated authority. But Libya has
no similar complaints in the case before us. For that reason, we need not now
express any opinion on whether such hypothetical cases would ... implicate the
doubts expressed by the Seventh and Eleventh Circuits. As here applied to
Libya, § 1605(a)(7) creates jurisdiction directly at the behest of Congress and
without any intervening decision by another body. Accordingly, we find no delegation
of legislative power and, necessarily, no unconstitutional delegation
either." [Slip op. 41-42]
Citation: Rein v. Socialist
People's Libyan Arab Jamahiriya, Libyan External Security Organization, No.
98-7467 (2d Cir. December 15, 1998).
IMMUNITY
44 nations agree to restitution guidelines for art
looted by Nazis
During a conference organized December 1-3, 1998, by the
U.S. Department of State and the Holocaust Memorial Museum, 44 nations and 13
NGOs discussed restitution practices and policies. The participants agreed to
guidelines for the restitution of works of art looted during the German Third
Reich by the National-Socialist regime. The "Washington Principles On
Nazi-Confiscated Art" call for the:
- Opening of all records and archives where information
may be found,
- Identification of looted works of art,
- Establishment of a central registry of such
information,
- Claimants to come forward, and
- "Just and fair" solutions.
The participating countries pledge to implement the
guidelines into their national laws even though these guidelines do not have
the force of an internationally binding treaty. Russian officials indicated
that they would follow the guidelines except when confiscated, previously
state-owned "trophy art" is concerned.
Citation: Washington
Conference Principles On Nazi-Confiscated Art (December 3, 1998), available on
the U.S. Department of State's website at www.state.gov/www/regions/eur/holocausthp.html;
Washington Post, December 4, 1998, page A2.
TECHNOLOGY TRANSFER
U.S. and 32 other nations that take part in
"Wassenaar Arrangement" agree in Vienna to restrictions on
international transfers of data-scrambling technologies
On December 3, 1998 in Vienna, the U.S. and 32 other
countries agreed to restrict the international transfer of encryption
technology. The member countries of the so-called Wassenaar Arrangement, which
coordinates export policies for "dual use" goods that have both civil
and military uses, fashioned the arrangement.
Under Dual-Use List Category 5, Part 2 ("Information
Security"), countries will allow the license-free export of commercially
available encryption systems that do not contain "symmetric
algorithms" with a key length exceeding 64 bits, or a "symmetric
algorithm" exceeding 56 bits (Editorial Note: The more bits a key contains,
the more difficult it is to extract the encrypted information). Commercial
software for broad audiences – such as internet browsers or e-mail programs –
may use up to 64-bit keys.
There will be no restrictions on encrypting
entertainment products such as video transmissions.
Some important parties are the U.S., Australia, Japan,
Russia and the UK. Notably absent from the Agreement are China and Israel.
In a related matter, the U.S. Department of Commerce
recently clarified the law on exports of encryption technology with an interim
rule [see 1998 Int'l Law Update 135]. In addition, on December 30, 1998, the U.S.
Department of Commerce published an amendment to the Export Administration
Regulations (EAR) with a request for comments. The amendments would virtually
abolish restrictions on "scrambling" products sent to foreign
subsidiaries of U.S. corporations. They also do away with the license
requirement for encryption technology up to 56 bits or equivalent strength.
Citation: Washington Post, December 4, 1998, page D1; 63 Federal
Register 72156 (December 31, 1998). U.S. Department of Commerce, Bureau of
Export Administration press release of December 30, 1998 [Commerce Updates
Export Controls on Encryption Products]. [Detailed information is available on
website of Wassenaar Agreement at "www.wassenaar.org", including
Public Statement on meeting and summary of changes in regulated items].
TRADE
According to U.S. Department of Commerce, WTO Panel
sides mostly with U.S. in U.S.-Korea dispute over U.S. antidumping measures
imposed on Korean semiconductors
The U.S. Department of Commerce has issued statements on
the Report of the Dispute Settlement Panel of the WTO in the U.S.-Korea
dispute over the U.S. antidumping order on "dynamic random access memory
semiconductors" (DRAMs) from Korea (WT/DS99/1). [Editor's Note: The
Report has not yet been officially published].
Under current Commerce Department regulations, the
Department can revoke an antidumping order only when future dumping is
"not likely" to take place. The Commerce Department has not revoked
the anti-dumping duty on DRAMs despite Korea's claim that Korean manufacturers
have not dumped their products for more than three- and-a-half consecutive
years.
The Panel Report found only one aspect of the Commerce
Department antidumping rules that did not square with the WTO Antidumping
Agreement. The Panel considered the "not likely" test at odds with
the Article 11.2 of the WTO Antidumping Agreement. It requires that national
authorities determine whether antidumping orders remain “necessary to offset
dumping." In the Panel's view, the U.S. regulations tended to foster the
continuation of dumping duties rather than their revocation.
According to the statements released by the U.S.
Department of Commerce, however, the Panel did agree with the U.S. on several
key points:
- A nation can use prospective analysis in determining
whether to cancel or maintain an antidumping order.
- But it does not have to show to a mathematical
certainty that dumping will recur to keep up an antidumping order.
- The mere absence of dumping for three years does not
require authorities to self-initiate an injury review of such an order.
- The Commerce Department's regulation setting a 0.5%
rather the WTO's 2% de minimis standard for the post-investigation phase of an
antidumping proceeding is consonant with the WTO Antidumping Agreement.
Also, the Report does not require the U.S. to rescind
its antidumping order on DRAMs. There is a "range of possible ways"
in which the U.S. can implement the Panel's recommendations.
Citation: U.S. Department of Commerce, International Trade
Administration, ITA NewsBytes, December 10, 1998; United States Department of
Commerce News, December 8, 1998. [The WTO Panel Report will become available on
the WTO's website at www.wto.org.]
TRADE
U.S. plans to retaliate against EU banana regime by
imposing 100% duties on certain EU products except those from Netherlands and Denmark
The U.S. has long castigated the EU's favorable
treatment of French and British banana companies, compared to the burdensome
import policies it imposes on other Latin American bananas. In May 1997, a WTO
Dispute Settlement Panel ruled that the EU's banana regime failed to comply
with WTO rules.
The subsequent Appellate Body report essentially agreed
with the Panel. According to a statement of the U.S. Trade Representative, the
U.S. will increase tariffs for certain EU products in response to EU's
continued discriminatory banana policies [see 1998 Int’l Law Update 23 &
123].
The U.S. Trade Representative has prepared a list of European
products on which the U.S. is planning to impose 100% duties beginning between
February 1 and March 3, 1999. The additional duties will apply to imports from
EU countries except the Netherlands and Denmark. The latter nations had opposed
the EU banana regime.
Citation: U.S. Trade Representative press release 98-113
(December 21, 1998) [includes the preliminary list of EU products that are
subject to additional duties]; European Union News press release No. 106/98
(December 21, 1998).
TRADE
U.S. and Canada agree to open Canadian agricultural
markets more widely to U.S. products
On December 4, 1998, U.S. Trade Representative Charlene
Barshefsky and Secretary of Agriculture Dan Glickman announced an agreement on
U.S.-Canada Agricultural Market Opening Measures. The purpose is to further
open Canadian markets to American agricultural products.
In the grain sector, the Agreement does two things.
First, it allows Montana and North Dakota farmers to ship grain directly to 27
Canadian elevators near the border [before, U.S. growers could only sell to
Canadian end users after the testing of each shipment]. Second, it will do away
with burdensome testing for the plant disease "Karnal bunt" in grain
from the 14 states that are free from it.
The Agreement will also achieve two major objectives in
the livestock sector. First, it will oust the Canadian 30-day quarantine for
U.S. live hogs from 33 states. Second, within 30 months, Canada agrees to
overhaul its animal health regulations as applied to U.S. livestock.
Other parts of the Agreement deal with cattle trade
data, harmonization of pesticide registration and animal drug registration, as
well as continued consultations on potato trade.
Citation: U.S. Trade Representative press release 98-107
(December 4, 1998). [Along with this press release, the USTR provides a Fact
Sheet on the Agreement.]
- U.S. and Mozambique sign bilateral investment treaty. On December 1, 1998, U.S. Trade
Representative (USTR) Charlene Barshefsky and Mozambican Foreign Minister Simao
signed a bilateral investment treaty (BIT). According to the USTR's press
release, the Treaty will provide fair treatment for both countries' investors;
guarantee the free transfer of capital, profits and royalties; grant access to international
arbitration; and set internationally recognized standards for expropriation and
compensation. -- Of the seven BITs that have been signed with African countries,
this one is the fifth with a sub-Saharan African country. Citation: U.S.
Trade Representative press release 98-105 (December 1, 1998).
- ICJ holds that it lacks jurisdiction in Canada-Spain
fisheries dispute.
The International Court of Justice (ICJ), in a 12-5 vote, has declared its lack
of jurisdiction over the case brought in 1995 by Spain against Canada regarding
Fisheries Jurisdiction. Spain’s complaint was based on the Canadian seizure of
the Spanish vessel Estai on the high seas [see 1995 Int'l Law Update, October,
page 5]. Canada pointed out that it had acted pursuant to its Canadian Coastal
Fisheries Protection Act. On the other hand, Spain argued that this case
concerned a sovereignty issue since Canada had seized a Spanish ship on the
high seas. The ICJ, however, agreed with Canada that it lacked jurisdiction.
Canada's 1994 reservation said that it would not accept ICJ jurisdiction for
fisheries measures in the Northwest Atlantic Fisheries Organization's
regulatory area. Since the dispute originated from Canada's amendments to its
laws to protect coastal fisheries, the dispute thus falls within the terms of
Canada's jurisdictional reservation. Citation: International Court of
Justice Communique No. 98/41 & No. 98/41bis (December 4, 1998).
- U.S. and Sweden resolve WTO dispute regarding
intellectual property protection in Sweden. Under the WTO Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS Agreement), members must provide
enforcement mechanisms for violations of intellectual property rights. In 1997,
the U.S. brought a case before the WTO over Sweden's alleged lack of enforcement.
On November 25, 1998, Sweden amended its Copyright Act, Trademarks Act, Patents
Act, Design Protection Act, and other laws, to provide provisional remedies in
civil cases involving infringement of intellectual property rights effective
January 1, 1999. The measures provide for a court-issued warrant to search for
incriminating evidence of infringement. On December 3, 1998, the parties
jointly notified the WTO that they had resolved their dispute. Citation:
U.S. Trade Representative press release 98-106 (December 3, 1998).
- ICJ removes case of Paraguay v. U.S. regarding Vienna
Convention from the docket. At the request of Paraguay, the International Court of Justice has
removed the case that Paraguay had brought against the U.S. regarding alleged
violations of the Vienna Convention on Consular Relations from its docket. The
U.S. had executed the Paraguayan citizen Angel Francisco Breard, though
Paraguay claimed that the U.S. had failed to properly inform Paraguayan authorities
of the case as the Convention demanded. The U.S. subsequently issued an apology
[see 1998 Int'l Law Update 136]. Citation: International Court of
Justice Communique No. 98/36 (November 11, 1998).
- EU issues EURO conversion rates. On December 31, 1998, the EU
issued the official conversion rates for the new currency EURO. The conversion
rates are fixed and irrevocable, effective January 1, 1999. For example, 1 EURO
equals 1.95583 German Marks or 6.55957 French Francs. Citation: Council
Regulation (EC) No 2866/98 ..., 1998 O.J. of the European Communities (L 359)
1, 31 December 1998.
- New panel of House of Lords to rehear Pinochet's
appeal. On a
request for extradition from a Spanish court, British authorities arrested
General Augusto Pinochet, the former dictator of Chile on October 16, 1998. In
November, the House of Lords ruled 3 to 2 that head-of-state immunity did not
shield Pinochet from charges of crimes against humanity. The ruling cleared a
path for U.K. proceedings relating to his possible extradition to Spain for
trial. A month later, the House set aside that judgment when Pinochet's lawyers
successfully argued that it should rehear the case. Apparently, one of the
lords who had ruled against Pinochet had ties to Amnesty International. A new
panel of seven law lords will hear arguments on the issues beginning on January
18, 1999. Citation: Material on the Pinochet case is available on the
website of the House of Lords at
www.parliament.the-stationary-office.co.uk/pa/Id/Idhome.htm; Los Angeles Times,
January 15, 1999, page B1 (under byline of Ms. Anne-Marie O'Connor).
