Legal Analyses written by Mike Meier,
Attorney at Law. Copyright 2017 Mike Meier. www.internationallawinfo.com.
1998
International Law Update, Volume 4, Number 11 (November).
CONSTITUTIONAL
LAW
Irish
Supreme Court rejects challenge to State payment of salaries to Catholic and
Protestant chaplains in community schools
In
the Irish Republic, the State pays the salaries of the 76 chaplains appointed
to certain post-primary schools known as community schools. The chaplains’ role
is to provide for religious worship and to teach religion to the students in that
school. The chaplain also carries out a pastoral role by furnishing guidance
and counselling on matters dealing with general welfare, both spiritual and
non-spiritual. There are Catholic and Protestant chaplains both clerical and
lay in this group. Under modern conditions, the chaplains accomplish their
ministries by personal contact with individual students, by class contact,
through religious worship, and by maintaining a lively interest in
recreational, cultural and apostolic activities.
An
organization calling itself the Campaign to Separate Church and State filed
suit against the Minister of Education and others challenging the
constitutionality of the arrangement. The parties agreed that if the Irish
State did not fund the salaries of these chaplains, the churches involved would
find it essential to pay the chaplains themselves. According to plaintiffs, the
payments breached Article 42.2.2o in which the State guaranteed not to “endow
any religion.” In January 1996, the court of first instance ruled that the
challenged payments did not violate the Constitution and plaintiffs filed an
appeal.
The
Supreme Court of Ireland, however, dismisses the appeal. After noting that
religious principles permeate Irish society, the Court first rules that State
granting of aid on a neutral basis to a denominational school for education
purposes does not constitute an endowment of religion, although the school may
have a “religious ethos.”
In
providing for the right of parents to provide for the religious and moral
education of their children in State-established schools, Article 42 includes
their right to have religious education in the schools their children attend.
To help provide this added dimension to their children's religious education is
the chaplain’s role. Thus, the State’s payment of the salaries of chaplains in
community schools represents a modern adaptation of principles approved by
Articles 44 and 42 of the Constitution.
Two
qualifications are appropriate, however, in the Court’s view. First, the
official funding of chaplains’ salaries applies to all community schools of
whatever denomination on an equal basis in keeping with their needs. Secondly,
the Constitution does not allow a chaplain to instruct a child in a religion
other than its own without parental consent.
Citation: Campaign to Separate Church and State Ltd v.
Minister for Education, [1998] 2 ILRM 81.
COPYRIGHT
EU
issues Directive for legal protection of designs to harmonize diverse laws in
various EU Member States
To
harmonize the legal of protection of designs within the EU and to address
urgent industry needs, the EU has issued Directive 98/71/EC on the legal
protection of designs. The Directive only harmonizes those national laws and
regulations that directly affect the EU market, such as the definition of
“design” and “novelty.” Therefore, it
leaves registration procedures, enforcement, remedies and enforcement in the
hands of the particular EU Member States. The Directive applies to design
rights registered (or applied for) with the industrial property offices in the
Member States, the Benelux Design Office, or through international arrangements
with effect in a Member State.
The
Directive defines “Design” as “the appearance of the whole or a part of a
product resulting from the features of, in particular, the lines, contours,
shape, texture and/or materials of the product itself and/or its
ornamentation.” (Article 1(a)). A design is “novel” only “if no identical
design has been made available to the public before the date of filing the
application for registration or, if priority is claimed, the date of priority.”
(Article 4).
The
Directive does not protect features that are merely the result of particular
technical functions (Article 7). The scope of protection encompasses “any
design which does not produce on the informed user a different overall
impression.” (Article 9). Once registered, the law protects the design for
5-year periods for a total of up to 25 years (Article 10). Under Article 17,
the copyright law of a particular Member State may also safeguard a design
protected under this Directive.
The
Member States must implement this Directive into national law no later than
October 29, 2001.
Citation: Directive 98/71/EC ... on the legal protection
of designs, 1998 O.J. of the European Communities (L 289) 28, 28 October 1998.
EXTRADITION
In
ruling on UK extradition request for individuals involved in Northern Ireland
conflict, Ninth Circuit rejects arguments that executive branch role in
extradition scheme makes it unconstitutional
In
the 1970s, the United Kingdom (UK) enacted emergency legislation to control
violence resulting from the Northern Ireland conflict. Among other things, the
legislation provided abbreviated trial procedures and relaxed evidentiary
standards.
Pol
Brennan, Kevin John Artt, and Terence Damien Kirby (appellants) are Catholics
from Northern Ireland who were convicted of offenses such as explosives and
weapons possession under the emergency legislation. The three escaped from
prison in 1983 and came to the U.S., where authorities arrested them between
1992 and 1994.
The
appellants now appeal the district court’s certification for their extradition
to the UK, pursuant to 18 U.S.C. § 3184 and the Extradition Treaty Between the
Government of the United States of America and the Government of the United
Kingdom of Great Britain and Northern Ireland [entered into force on January
21, 1977, 28 U.S.T. 227], as modified by the Supplementary Treaty Concerning
the 1977 Treaty of June 25, 1985 [reprinted in S.Exec. Rep. No. 17, 99th Cong.,
2d Sess., 15-17 (1986)]. They argue that the U.S. extradition scheme violates
the doctrine of separation of powers and therefore cannot be the basis for
extradition. Alternatively, they argue that the district judge misapplied the
extradition treaties.
The
U.S. Court of Appeals for the Ninth Circuit reverses and remands. The
appellants raise several issues of first impression in the Ninth Circuit.
First,
the appellants argue that the U.S. extradition scheme exposes judicial
decisions to executive branch review, and requires judges to act in an
extrajudicial capacity. The Court disagrees. Under § 3184, once the extradition
judge certifies the charges in an extradition request, the Executive Branch
makes the ultimate decision whether to actually extradite. The Second and
Seventh Circuit have addressed similar questions, but this case is different
because of the Supplementary Treaty.
Under
Article 3(a) of the Supplementary Treaty, “judicial authority” may make a
limited inquiry into the motivation for the extradition request and the system
of justice to which the extraditee will be returned. These findings are largely
findings of fact. Article 3(b) allows appeals of Article 3(a) findings to the
district court or court of appeals.
The
Court does not accept that these provisions subject courts to Executive Branch
review. “Even if we are acting as an Article III court when we review the
district judge’s Article 3(a) findings on appeal, there is no indication that
our decision is subject to Executive Branch ‘review’ such that the doctrine of
separation of powers is violated. On this point, we find the Seventh Circuit’s
decision in DeSilva v. DiLeonardi, 125 F.3d 1110 (7th Cir. 1997) particularly
instructive. The DeSilva court concluded that section 3184 did not violate the
doctrine of separation of powers because, like a search warrant or an order
approving deportation, ‘it authorizes, but does not compel, the executive
branch of government to act in a certain way.’ ... The court reasoned that
section 3184 consequently does not require Article III courts to give advisory
opinions that are subject to Executive Branch review ...” [Slip op. 21-22]
The
Court also rejects the argument that § 3184 unconstitutionally requires
judicial officers to act in an extrajudicial capacity. As the Second Circuit
noted in a similar context, federal judges have adjudicated extradition
complaints under § 3184 for nearly 150 years without adverse consequences. An
extradition proceeding is essentially a neutral endeavor where judicial
participation is especially appropriate.
The
Court does agree, however, that the district court made several errors in
applying the Supplementary Treaty to the offenses at issue. Among them is the
erroneous construction of the first clause of Article 3(a) (the so-called
Aquino clause, named after Ninoy Aquino who was assassinated following his
extradition to the Philippines). It bars extradition if a foreign state has
requested the extradition to in fact punish the extraditee on account of race,
religion, nationality, or political opinions. Artt and Kirby claim that false
confessions led to their convictions as well as an Anti-Catholic bias in the
Northern Ireland justice system.
The
proper construction of the Aquino clause is also an issue of first impression
in the Ninth Circuit. The district court did inquire whether the convictions
were intended to punish the appellants for protected conduct. The district
court, however, required the evidence to be “directly related” to the
appellants -- the court forbade any generalized inquiries into the justice
system under the UK emergency legislation.
“We
believe that the district judge defined the scope of inquiry under the Aquino
clause too narrowly. The existence of bias is not always readily apparent from
an individualized inquiry, particularly where, as in Northern Ireland, procedural
safeguards have been eliminated. After all, a trial judge or detective is
unlikely to memorialize the fact that his or her decisions were motivated by
political or religious bias. ... Absent an opportunity present more generalized
evidence of bias, the defendant shoulders the impossible burden of identifying
clear signs of individualized prejudice with the opaque procedures employed
by the Northern Ireland justice system. [...] ... [W]e hold that, if a
potential extraditee establishes prima facie that significant procedural abuses
occurred before or during trial, he or she may present evidence of systemic
bias within Northern Ireland’s justice system during the relevant time period.”
[Slip op. 41-43]
The
Court therefore remands for a determination of whether Artt and Kirby have
made such a prima facie showing, and to evaluate Brennan’s extradition under
the 1977 Treaty.
The
dissenter would affirm the district court. As for Artt and Kirby, the majority
reaches beyond its limited power to review extradition requests under Article
3(b) and fails to set a specific standard for a prima facie case. Further, in
admitting generalized evidence regarding the justice system, the majority
overstates the U.S. Supreme Court position. Finally, in light of the
overwhelming evidence of the appellants’ guilt, the generalized evidence of
systemic bias cannot lead to a different result.
Citation: In the Matter of the Requested Extradition of
Kevin John Artt, 158 F.3d 462 (9th Cir. 1998).
FORUM
NON CONVENIENS
Second
Circuit reverses dismissal of lawsuit against Texaco for causing environmental
damage in Ecuador on forum non conveniens and comity grounds because court had
not required Texaco to submit to jurisdiction in Ecuador
Two
sets of class action plaintiffs brought the following action against Texaco,
Inc., for alleged environmental damage in Ecuador’s Oriente region and
downstream in Peru. From 1964 to 1992, Texaco was allegedly dumping toxic by-products of oil drilling thus
polluting the rain forests and rivers. The plaintiffs built their case on
theories such as negligence, strict liability, and the Alien Tort Claims Act
(ATCA) [28 U.S.C. Section 1350]. Texaco argued it acted only through a
fourth-level subsidiary, that the Republic of Ecuador increasingly took part in
the oil drilling through the national oil agency PetroEcuador, and that Texaco
was completely out of the picture by 1992. On Texaco’s motion, the New York
federal court dismissed both actions on grounds of forum non conveniens,
international comity, and failure to join an indispensable party (the Republic
of Ecuador).
The
U.S. Court of Appeals for the Second Circuit finds error in the forum non
conveniens dismissal. Texaco itself is not amenable to suit in Ecuador.
Therefore, the district court should not have dismissed the case without a
commitment by Texaco to submit to the jurisdiction of Ecuadorian courts for
purposes of this action.
The
plaintiffs also argued that to dismiss an ATCA claim would frustrate Congress’
intent to provide a federal forum for aliens suing domestic entities for
violations of the law of nations. The Court, however, expresses no view on
whether the plaintiffs have actually alleged conduct on Texaco’s part that
violates the law of nations. Nor does it reach the question of whether an alien
may bring an ATCA suit for environmental misconduct against a non-governmental
entity.
Furthermore,
the dismissal on comity grounds was also wrong absent a condition requiring
Texaco to accept jurisdiction in Ecuador. “When a court dismisses on the ground
of comity, it should normally consider whether an adequate forum exists in the
objecting nation and whether the defendant sought to be sued in the United
States forum is subject to or has consented to the assertion of jurisdiction
against it in the foreign forum. That is the approach usually taken with a
dismissal on the ground of forum non conveniens ... Though extreme cases might
be imagined where a foreign sovereign’s interests were so legitimately
affronted by the conduct of litigation in a United States forum that dismissal
is warranted without regard to the defendant’s amenability to suit in an
adequate foreign forum, this case presents no such circumstances.” [Slip. Op.
21-22]
Citation: Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir.
1998).
HUMAN
RIGHTS
In
3 to 2 vote, British House of Lords reverses ruling that General Pinochet was
immune from extradition to Spain to be tried for crimes against humanity that
allegedly took place under General’s regime in Chile
On
October 16, 1998, British authorities acted on a an extradition request from a
Spanish court and arrested 83-year-old Gen. Augusto Pinochet while he was in
England for medical treatment. A Spanish court wished to put the General on
trial in Spain for various violation of the international human rights not
only of Chilean citizens during his seventeen-year regime but also of Spanish
citizens. [A Spanish court found that it would have jurisdiction to try
Pinochet on October 29]. Pinochet went to the English courts to have them
quash his arrest warrant on the grounds that, as a former head of the Chilean
state, he was expressly immune from prosecution under the State Immunity Act of
1978.
The
British High Court granted Pinochet relief on October 28. The Court concluded
that, under English law, a former head of state of a foreign country was
entitled to immunity as a former sovereign from the criminal and civil process
of the English courts. This immunity even extended to systematic murder,
torture, "disappearance", illegal detention and forcible transfer in
foreign countries.
The
Court also rejected the argument that such crimes could never be part of the
sovereign functions of a head of state. It pointed out that history shows that
it has indeed sometimes been state policy to exterminate or to oppress particular
groups. The Court found no justification in the immunity statute for finding
any limitation based on the nature of the crimes committed.
The
Spanish representative and English prosecutors next sought an appeal in the
House of Lords. On November 25, 1998, the House votes 3 to 2 to reverse the
lower court. The press quotes Lord Justice Donald Nicholls as writing in an
opinion supporting the majority that "[i]t hardly needs saying that
torture of his own subjects or of aliens would not be regarded by international
law as a function of a head of state."
According
to a Chilean government “truth commission” report, Pinochet’s agents murdered,
tortured, and made 3,179 persons disappear. Many others survived torture and
supplied information as to their experiences.
The
ruling gave Pinochet until December 2 to appear in court in opposition to the
requests from Spain and several other European countries for his extradition
and trial on charges of serious violations of international human rights. Even
if the courts find that Pinochet is legally extraditable under the terms of
the extradition treaty between the U.K. and the requesting countries, the law
vests Home Secretary Jack Straw with discretion as to whether or not his
government will surrender Pinochet for trial elsewhere.
Citation: Associated Press Report of 11:27 am, EST as
reported in New York Times online web site www.nytimes.com on November 25,
1998.
INTERNATIONAL
ORGANIZATIONS
In
wife’s case seeking garnishment of husband’s income, D.C. Circuit affirms
immunity of employees of Inter-American Development Bank under International
Organizations Immunity Act
Janet
Atkinson sought to garnish the wages of her former husband, who works at the
Inter-American Development Bank, in order to enforce two state court judgments
for child support and other matters related to their divorce. The Bank alleged
immunity under the International Organizations Immunities Act (IOIA) [codified
as amended at 22 U.S.C. § 288 (1994)]. The IOIA grants certain international
organizations the same immunity as foreign governments receive, unless they
choose to waive the immunity.
Atkinson
then sought a declaratory judgment in district court that the Bank had waived
its immunity or, alternatively, is not immune from garnishment proceedings.
The district court dismissed the case.
The
U.S. Court of Appeals for the District of Columbia Circuit affirms. As for the
waiver issue, the D.C. Circuit has held that the purpose of the immunity of
international organizations is to enable them to fulfill their functions. Therefore,
such organizations will presumably not waive their immunity without receiving a
corresponding benefit that would further their goals. That is not the case
here.
As
for the issue of immunity itself, the Court rejects Atkinson’s arguments for a
de minimis waiver for issues such as garnishment, or the application of the
“commercial activity” exception under the Foreign Sovereign Immunities Act
(FSIA).
“...[T]he
IOIA sets forth an explicit mechanism for monitoring the immunities of
designated international organizations: the President retains authority to
modify, condition, limit, and even revoke the otherwise absolute immunity of a
designated organization. See 22 U.S.C. § 288. It seems, therefore, that
Congress was content to delegate to the President the responsibility for
updating the immunities of international organizations in the face of changing
circumstances. [...] In light of this text and the legislative history, we think
that, despite the lack of a clear instruction as to whether Congress meant to
incorporate in the IOIA subsequent changes to the law of immunity of foreign
sovereigns, Congress’ intent was to adopt that body of law only as it existed
in 1945 -- when immunity of foreign sovereigns was absolute.” [Slip op. 18-20]
Citation: Atkinson v. The Inter-American Development
Bank, 156 F.3d 1335 (D.C. Cir. 1998).
JURISDICTION
(PRESCRIPTIVE)
Singapore
Court of Appeal holds that, where U.S. citizen instigates Singapore citizen to
violate Singapore anti-corruption statute by his conduct in Hong Kong and
Australia, Singapore courts can enforce statute against own citizen
The
Singapore public prosecutor charged respondent Taw Cheng Kong, a Singapore
citizen, with acts that violated § 37(1) of the Prevention of Public Corruption
Act (PCA). Based in Hong Kong, respondent was the Asia-Pacific regional manager
of the Government of Singapore Investment Corporation, Ltd. The charge was that
he had accepted "incentive fees" from Kevin Lee of Rockefeller &
Co. Inc. of New York to make GIC purchases of certain counters in Hong Kong and
Australia at Lee's instigation.
After
a hearing, the trial court acquitted respondent. In addition to finding the
evidence insufficient, the court held on extraterritoriality grounds that §
37(1) of the PCA was unconstitutional and was ultra vires the powers of the
Singapore legislature.
According
to the judge, when the Republic of Singapore Independence Act of 1965 (RSIA)
vested the legislative powers of the Malaysian Parliament in the legislature,
the omission of Part VI of the Malaysian Constitution, took away the power to
apply criminal statutes extraterritorially. Moreover, the government's
jurisdictional reliance upon respondent's citizenship was unreasonable and
inadequate to fill the gap.
On
the latter two legal issues, the Attorney General sought a criminal reference
to the Court of Appeal. That Court disagrees with the trial judge.
The
Court first took it as well established that, within its enumerated powers, a
dominion or a colony could make laws that operated extraterritorially. A
fortiori, when Singapore became independent in August 1965, its Parliament
possessed unlimited legislative powers like any sovereign state. This comprised
the power to pass laws that could affect persons and things outside of its
territory.
In
transferring plenary Malaysian legislative power to the Singapore Parliament,
the RSIA also bound over the power to legislate extraterritorially. None of the
technical lacunae could have changed this result. Thus, the extraterritorial
provision in § 37(1) of the PCA was not ultra vires unless it exceeded the
constitutional grants of power on a different basis.
Nor
was § 37(1)'s classification based on Singapore citizenship arbitrary or
unreasonable. The permissibility of the classification, however, raises two
subquestions: (1) did the classification rest on intelligible differentia? and
(2) did the differentia bear a rational relationship to the purpose of the
statute? In the Court's view, only the
latter question raises any difficulty.
To
be sure, the legislature did write § 37(1) quite broadly: its language
encompasses all corrupt acts by Singapore citizens outside the country,
regardless of whether these acts produced adverse effects within its confines.
On the other hand, courts usually construe domestic legislation to be
inapplicable to acts performed by foreigners outside of the borders of the
enacting sovereign.
"That
was a rule based on international law by which one sovereign power was bound to
respect the subjects and the rights of all other sovereign powers outside its
own territory. It was with this similar consideration of comity in view that
non‑citizens were left out of s 37(1) of the PCA by Parliament. As a result,
when it came to determining the rationality of the classification, the
objective of the Act had to be balanced against Parliament's intention to
observe international comity. ... In view of the all‑encompassing ambit of s
37(1), which would have captured all corrupt acts independently of harmful
consequences in Singapore, it was rational to draw the line at citizenship and leave out non‑citizens
so as to observe international comity and the sovereignty of other
nations." [Slip op. 12-13]
The
challenger had the burden of showing that the statute was plainly arbitrary on
its face. In this, he failed. Concocting possible examples of arbitrariness is
seldom helpful in rebutting the presumption of constitutionality. It hardly
gives effect to the premise that Parliament knew best for its people, that it
directed its laws at problems made manifest by experience, and hence that it
based its differentiation on adequate grounds.
Citation: Public Prosecutor v. Taw Cheng Kong, 1998-2
S.L.R. 410 (Sing. Ct. App. 1998).
MARITIME
LAW
Seafaring
powers agree to improve conventions having to do with measures to reduce
maritime pollution and to upgrade agreements designed to further safety of life
at sea
On
July 1, 1998, several sets of amendments entered into force with respect to
multilateral conventions having to do with antipollution measures and steps to
improve maritime safety. The U.S. is a party to these conventions and has
agreed to the amendments.
In
the first category are changes to several codes found in the International
Convention for the Prevention of Pollution from Ships of 1973, as modified by
the protocol of 1978. On July 1, 1998, two sets of 1996 amendments entered into
force.
The
first have upgraded the International Code for the Construction and Equipment
of Ships Carrying Dangerous Chemicals in Bulk (the IBC Code). At the same time,
the parties agreed to modernize that part of the 1978 Protocol that sets forth
the Code for the Building and Equipment of Ships that Carry Dangerous
Chemicals in Bulk (the BCH Code).
On
July 1, 1998, a number of provisions amending international agreements designed
to increase maritime safety also entered into force. All make changes in
various parts of the 1974 International Convention for the Safety of Life at
Sea.
One
group of amendments update the International Code for the Construction and
Equipment of Ships Carrying Liquefied Gases in Bulk (IGC) Code. Another set
modernizes the International code for the Construction and Equipment of Ships
Carrying Dangerous Chemicals in Bulk (IBC Code).
Regular
inspections are a vital part of safety enforcement at sea. Thus there are
amendments that improve the guidelines on the enhanced inspections during
surveys of bulk carriers and oil tankers. Finally, the Titanic disaster continually
reminds us of the importance of adequate and functioning life saving
appliances. The recent amendments include improvements to the International
Life Saving Appliance (LSA) Code.
Citations: U.S. State Department Bulletins, June-October
1998.
PATENTS
In
proceeding to obtain Australian patent on HIV medicine, Australian federal
court upholds Commissioner's grant of permission to U.S. lawyers to make oral
submissions under direction of local counsel
Emory
University applied for an Australian Letters Patent # 658136 to cover a
chemical compound used to treat HIV, the causative agent of AIDS. Biochem
Pharma Inc. opposed the application. Emory contended that the issues involved
were "subtle and complex" and had to do with the state of
stereochemistry during 1989-90.
For
these reasons, Emory asked for leave to let two attorneys from the United
States make submissions on its behalf during the opposition hearing. Both
attorneys had substantial expertise and experience in dealing with the specific
biochemical issues raised by the application. Both had taken part in the
contested application for patents on this substance in the United States as
well as in applications for foreign equivalent patents.
Biochem
opposed the application. After a hearing, the Deputy Commissioner granted
Emory's request on September 23, 1997.
The
Commissioner found that the mere making of oral submissions under the direction
of Australian attorneys did not amount to carrying on the business of being a
patent attorney in violation of the patent attorney statute. Relying on the
broad procedural discretion vested in administrative tribunals, the
Commissioner held that she should grant this type of relief rarely and she
requires that Australian counsel take responsibility for all submissions made.
Biochem
sought judicial review in the Federal Court for New South Wales. It argued that
even oral submissions by the Americans would amount to "conducting"
opposition proceedings in a patent matter in violation of the statute governing
patent attorneys. This put the matter beyond the authorization power of the
Commissioner.
The
Federal Court agrees with the Commissioner. It first notes that the statute
sets up the patent application procedures and defines the powers of the
Commissioner. One provision requires that the Commissioner has to give the
applicant and the opponent a reasonable chance to be heard before he or she
decides the case.
"In
my view, the submission that the leave given would involve the United States
attorneys in conducting the case is misconceived. In so deciding I place
emphasis upon the role of the Deputy Commissioner hearing the case to ensure
that the role of the United States attorneys does not expand to such an extent
that they can be said to 'conduct' the proceedings. It is also important to
ensure that at all times the Australian counsel in fact act to 'conduct' the
proceedings." [Slip op. 8]
Moreover,
the American attorneys would not be "practising" patent law in
Australia by a submission at a single proceeding. It would lack the elements of
repetition or continuity implicit in the notion of practice. Nor would the
Americans be acting as patent counsel under the circumstances.
Once
the Court decides that the procedure would not contravene the applicable
statute, the rest is discretion. The Federal Court is unable to find an abuse
of its powers for the Commissioner to avail herself of the expertise of the
American attorneys on a matter of extreme complexity.
Citation: Biochem Pharma Inc. v. Commissioner of Patents,
BC9800569 (Fed. Ct. Aust., New South Wales, 11 March 1998).
TECHNOLOGY
EU
ratifies science and technology cooperation agreement with U.S.
On
December 5, 1997, the EU and the U.S. signed an Agreement for scientific and
technological cooperation between the European Community and the Government
of the United States of America [see 1998 International Law Update 9]. The
purpose of the Agreement is to encourage, develop, and facilitate joint scientific
research and technological development.
The
areas of cooperative activity include the environment (including climate
research), agriculture, engineering research, biotechnology, and non-nuclear
energy (Article 4). For example, the joint activities may take the form of
coordinated research projects, joint studies, training of scientists, as well
as visits and exchanges of experts (Article 5). An Annex describes the
treatment of intellectual property created or furnished under this Agreement.
With
a Decision, the Council approved the Agreement on behalf of the European
Community on October 13, 1998.
Citation: Council Decision ... concerning the conclusion
of the Agreement for scientific and technological cooperation between the
European Community and the Government of United States of America (98/591/EC),
1998 O.J. of the European Communities (L 284) 35, 22 October 1998. The
Agreement itself is annexed to the Decision.
TRADE
U.S.
and EU conclude Joint Action Plan for Transatlantic Economic Partnership
The
U.S. and the EU have agreed to a “Joint Action Plan” to further the
Transatlantic Economic Partnership initiative that the U.S.-EU London Summit
set up on May 18, 1998. The purpose of the Transatlantic Economic Partnership
is to promote U.S.-EU trade in goods and services.
The
Joint Action Plan specifies key areas where the parties will immediately
address trade issues, including services, agriculture, government procurement,
intellectual property, technical barriers to trade, environmental issues, and
competition policy. Among the specific U.S.-EU projects are:
-
Broadening their current Mutual Recognition Agreement for technical conformity
to new sectors. The negotiations will begin before the end of the year
[Editors’ Note: In a related matter, the U.S. Food and Drug Administration has
issued a final rule on the Mutual Recognition of pharmaceutical practices and
standards between the U.S. and the EU, see 63 Federal Register 60122 (November
6, 1998)].
-
Negotiating a framework for general principles and objectives for mutual
recognition agreements regarding specific services sectors.
-
Establishing a biotechnology group to monitor technical issues.
-
Establishing a Transatlantic Economic Partnership Environment Group to
negotiate a joint environment workplan.
The
EU Foreign Ministers formally approved the Joint Action Plan on November 9,
1998.
Citation: U.S. Trade Representative press release 98-99
(November 9, 1998); The European Union Press Releases No.95/98 (November 9,
1998). [The Joint Action Plan is available on the website of the U.S. Trade
Representative at www.ustr.gov].
TRADE
European
Community and Canada conclude Agreement on Mutual Recognition of Technical
Conformity
On
May 14, 1998, the European Community (EC) and Canada signed an Agreement on
mutual recognition of technical conformity for specified goods. In essence, the
Agreement facilitates the trade of technical items by accepting the technical
conformity testing done in the exporting party’s territory.
Each
party designates the competent “conformity assessment bodies” whose technical
conformity testing will be mutually accepted. The parties will set up a Joint
Committee to monitor the functioning of the Agreement. The Agreement does not,
however, affect the laws on civil liability of manufacturers, distributors,
regulatory authorities and others regarding the specified goods.
The
EU Council approved the Agreement by Council Decision 98/566/EC on July 20, 1998.
The various “sectoral annexes” of the Agreement address:
-
Telecommunications terminal equipment. This annex contains the general
conformity rules, the applicable laws in the EC and Canada (Attachment 1), and
covered items such as ISDN telephony (Attachment 2).
-
Medical devices. This annex lists the regulatory/designating authorities that
are taking part in the Agreement, such as the Sundhetsministeriet in Denmark
and the Therapeutic products programme of Health Canada, as well as the assessment
guidelines.
The
other, similarly organized “sectoral annexes” concern:
-
Electromagnetic compatibility (EMC),
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Electrical safety,
-
Recreational craft, and
-
Good manufacturing practices.
The
Official Journal of the European Communities has now officially published the
Agreement. It entered into force on November 1, 1998.
Citation: Council Decision 98/566/EC and the Agreement on
mutual recognition between the European Community and Canada are published in
1998 O.J. of the European Communities (L 280), 16 October 1998.
TRADE
U.S.
and South Korea resolve dispute regarding U.S. access to Korean motor vehicle
market
According
to a press release of the U.S. Trade Representative, the U.S. and Korea have
resolved the Super 301 action that the U.S. had brought against Korea last
October to open the Korean market to U.S. and other foreign vehicles. Currently,
the foreign share in the Korean vehicle market is less than 1%.
The
parties announced the agreement [in the form of a Memorandum of Understanding,
MOU] on October 20, 1998. Most importantly, it will eliminate or revise
burdensome Korean technical standards and certifications, as well as reduce
tariffs and taxes.
The
new MOU follows a 1995 MOU concluded between the U.S. and Korea on the same subject.
It amends the previous MOU by:
-
Broadening coverage to include minivans and sport utility vehicles,
-
Addressing onerous Korean standards and certifications, for example by
introducing a U.S.-style system of self-certification by the year 2002,
-
Reducing the tax burden on vehicles by about $4,000 over the life of a vehicle,
for example, by cutting the Special Consumption Tax and the Annual Vehicle
Registration Tax,
-
Reducing tariffs on vehicles to 8%, and
-
Introducing secured financing so that Korean consumers can easily finance their
purchases.
Citation: U.S. Trade Representative Press Release 98-93
(October 20, 1998). A Fact Sheet on the MOU is attached to the press release.
- EU
imposes anti-dumping duty on U.S. poly-sulphide polymers. In March 1998,
the EU imposed a provisional anti-dumping duty on U.S.-made polysulphide
polymers (CN code ex 4002 99 90), a material used for adhesives, sealants etc.
In the EU, the material is mostly used as an insulated glass sealant. The EU
has now imposed a definitive anti-dumping duty of 13.2%. The EU considers
Morton International, Inc., Chicago, responsible for the entire U.S.
production of that material. Citation:
Council Regulation (EC) No 1965/98 ... 1998 O.J. of the European Communities
(L 255) 1, 17 September 1998.
- U.S. Department of Commerce clarifies
controls on exports of encryption technology. Effective September 22, 1998, the U.S. Department of Commerce,
Bureau of Export Administration, has published an interim rule to clarify the
provisions on the export and re-export of encryption items (EI) on the
so-called Commerce Control List [15 C.F.R. 732, 734, 740, 742, 743, 748, 750,
752, 770, 772, 774]. The rule implements new licensing policies for general
purpose, non-recoverable, non-voice encryption items or software for
distribution to banks and financial institutions in listed countries. The rule
clarifies that letters of assurance required for exports of restricted
technology and software may be in the form of a letter from the importer or
even a facsimile [740.6]. It also authorizes exports and re-exports of
encryption software for financial applications, except for the countries of
Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria [740.8]. Citation:
63 Federal Register 50516 (September 22, 1998).
- EU
brings action before ECJ against 8 Member States over their “open skies”
agreements with U.S. The European
Commission has brought legal proceedings (under Article 169 of the EU Treaty)
in the European Court of Justice against the following EU Member States: Austria,
Belgium, Denmark, Finland, Germany, Luxembourg, Sweden, and the United
Kingdom. These Member States have
concluded “open skies” aviation agreements with the U.S. All EU Member States have given the
Commission a mandate to negotiate a comprehensive EU-U.S. aviation arrangement.
The Commission, however, considers these individual agreements detrimental to
EU carriers and to the negotiation of a common approach to the U.S. for the
entire EU. Citation: The European Union Press Releases, No. 90/98
(October 30, 1998).
- U.S.
and Hong Kong to cooperate in combatting illegal textile transshipments.
On September 17, 1998, the U.S. and the Hong Kong Special Administrative Region
agreed to additional steps to prevent illegal circumvention of textile and
apparel quota. The parties will cooperate in factory observation visits,
information sharing, and enhanced enforcement. Also, the U.S. will no longer
require original signatures by manufacturers and sub-contractors on U.S.
textile importer declarations and certifications. Citation: U.S. Trade
Representative press release 98-84 (September 17, 1998).
- U.S.
and EU conclude high-level bilateral consultations on the Environment. On October 22, 1998, the U.S. and the EU held
their regular High Level Bilateral Consultations on the Environment in
Brussels. Both parties are already cooperating in environmental enforcement by
exchanging inspectors, jointly investigating environmental crimes, and
exchanging information on best practices. Among the more substantive results
are that the parties will (1) intensify technical discussions on eco-labels for
selected products, and (2) cooperate in chemical management issues, for
example, to further a globally binding agreement on persistent organic pollutants
(POPs) under auspices of the United Nations Environment Programme (UNEP). Citation:
U.S. Department of State Press Statement (October 28, 1998).
- U.S.
issues apology to Paraguay for execution of Breard. On April 14, 1998, the State of Virginia
executed the Paraguayan national Angel Breard despite intervention of the
International
Court
of Justice. The U.S. Supreme Court had
denied his request for habeas corpus [see 1998 International Law Update 41].
Through the U.S. Embassy in Paraguay, the U.S. has issued an apology. Breard
was not informed that Paraguay consular officials could be notified of his
arrest as provided by the Vienna Convention on Consular Relations. The U.S.
acknowledges the violation of the Vienna Convention in this case and is taking
steps to educate officials of the consular notification requirements upon the
arrest of foreign nationals. Citation: U.S. Department of State Press
Statement (November 4, 1998).
- EU
issues new tariff and statistical nomenclature and Common Customs Tariff. With Regulation 2261/98, the EU has issued a
new combined nomenclature and Common Customs Tariff (amending Regulation
2658/87) to implement GATT requirements. It classifies all products for EU
import purposes (such as “Mineral Pro-ducts” and “Machinery”), and lists the
corresponding conventional duty rates applicable from July 1, 1999, on. Citation:
Commission Regulation (EC) No 2261/98 ..., 1998 O.J. of the European Communities
(L 292) 1, 30 October 1998.
