DUSA01

Table of Contents i

DIGEST OF

UNITED STATES PRACTICE

INTERNATIONAL LAW

2002

ii DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Table of Contents iii

DIGEST OF

UNITED STATES PRACTICE

INTERNATIONAL LAW

2002

Sally J. Cummins

David P. Stewart

Editors

Ofﬁce of the Legal Adviser

United States Department of State

INTERNATIONAL LAW INSTITUTE

iv DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The Digest of United States Practice in International Law is pub-

lished by the International Law Institute under agreement with

the United States Department of State, Ofﬁce of the Legal Adviser.

The contents of the Digest, including selection of documents and

preparation of editorial commentary, are entirely under the aus-

pices of the Ofﬁce of the Legal Adviser.

INTERNATIONAL LAW INSTITUTE

For nearly ﬁfty years the International Law Institute has addressed

issues of interest to the international legal community through

research, publishing, training, and technical assistance. For infor-

mation on the activities of the Institute:

Publishing Ofﬁce

International Law Institute

The Foundry Building

1055 Thomas Jefferson St., NW

Washington, DC 20007

202-247-6006

202-247-6010 (fax)

e-mail: [email protected]

Internet: www.ili.org

Commentary prepared by the editors and the format and organ-

of the book may be reproduced, stored, or transmitted in any

form or by any means, including mechanical, electronic, or photo-

copying without prior written permission from the International

Law Institute.

ISBN 0-935328-95-5

Table of Contents v

Table of Contents

PREFACE xxi

INTRODUCTION xxiii

NOTE FROM THE EDITORS xxv

Chapter 1

NATIONALITY, CITIZENSHIP AND IMMIGRATION 1

A. NATIONALITY AND CITIZENSHIP 1

1. Effect of Dual Nationality on U.S. Security Clearance 1

2. Revocation of U.S. Citizenship 5

3. Child Citizenship Act 8

4. Citizenship Claim under former Section 320 INA 9

5. In Vitro Conception 10

B. PASSPORTS 11

1. Two-Parent Consent Requirement for Passport Issuance 11

a. Special court order 11

b. Exception where mother reclaiming children

abducted by father 12

2. Denial of Passport for Non-Payment of Child Support 13

3. New Passport for Escaped U.S. Prisoner 16

4. Denial or Limitation of Passports 17

C. IMMIGRATION AND VISAS 18

1. Applicability of 1949 Convention on Road Trafﬁc 18

2. Compliance with U.S.-Cuba Migration Accords:

Report to Congress 20

3. Suspension of Entry: Zimbabwe 22

D. ASYLUM AND REFUGEE STATUS AND

RELATED ISSUES 24

1. Vietnamese Montagnard Refugees in Cambodia 24

2. Haitian Refugees 25

3. U.S.-Canada Agreement Covering Third-Country

Asylum Claims at the Border 31

4. North Korean Refugees 35

vi DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Chapter 2

CONSULAR AND JUDICIAL ASSISTANCE AND

RELATED ISSUES 39

A. CONSULAR NOTIFICATION, ACCESS AND

ASSISTANCE 39

1. Consular Notiﬁcation and U.S. Criminal Prosecution 39

a. In U.S. courts: Javier Suarez Medina 39

b. Gerardo Valdez 45

2. Inter-American Commission on Human Rights:

Case of Ramon Martinez Villareal 48

B. CHILDREN 52

1. International Child Abduction 52

a. Visa ineligibility for international child abduction 52

b. Deﬁnition of “custody” under Hague Convention

on the Civil Aspects of International Child

Abduction 54

c. International Parental Kidnapping Crime Act 56

(1) Constitutional challenge under Commerce

Clause 56

(2) Constitutional challenge under the Fifth

Amendment 58

2. Consular Assistance for Children 59

Chapter 3

INTERNATIONAL CRIMINAL LAW 61

A. EXTRADITION AND OTHER RENDITIONS, AND

MUTUAL LEGAL ASSISTANCE 61

1. New Bilateral Extradition, Mutual Legal Assistance,

and Stolen Vehicle Treaties 61

2. Other Rendition 77

3. Other Mutual Legal Assistance Issues 79

a. U.S.-Russia 79

b. American Institute in Taiwan-Taipei Economic and

Cultural Representative Ofﬁce in the United States 79

c. U.S.-Europol 80

B. INTERNATIONAL CRIMES 85

1. Terrorism 85

a. Foreign Terrorist Organizations 85

(1) Legal criteria for designations 85

(2) Litigation by designated FTOs 91

(3) Constitutionality of application in criminal

law 93

Table of Contents vii

b. Asset freezing under IEEPA and Executive

Order 13224 94

(1) Applicability to entity chartered within

the United States 94

(2) Constitutionality 98

c. Delisting designated entities 101

d. Terrorist exclusion list 102

e. Review of the Convention for the Suppression of

Unlawful Acts Against the Safety of Maritime

Navigation, 1988, and its Protocol 104

f. Verdict in Libya terrorist case: Pan AM 103 111

g. Inter-American Convention against Terrorism 112

h. United States of America-ASEAN Joint Declaration

for Cooperation To Combat International

Terrorism 118

i. APEC leaders’ statement 119

j. “Smart border” initiatives with Mexico and Canada 121

k. G8 Recommendations on Counter-Terrorism 121

2. Narcotrafﬁcking 122

a. Modiﬁcations to U.S. narcotics certiﬁcation process 122

(1) Temporary modiﬁcation for 2002 122

(2) Permanent legislative change 124

b. International Narcotics Control Strategy Report 125

c. Money laundering 126

3. Jurisdiction in U.S. Courts 131

a. Crime occurring in Mexican territorial waters 131

b. Crime occurring on high seas 133

(1) Violence against maritime navigation 133

(2) Maritime Drug Law Enforcement Act 134

C. INTERNATIONAL CRIMINAL TRIBUNALS 137

1. Ad Hoc Tribunals and Related Issues 137

a. International Criminal Tribunal for Rwanda 137

(1) Reward for information leading to the

apprehension of Felicien Kabuga 137

(2) Rewards concerning persons associated with

the Congo region 139

b. International Criminal Tribunal for Yugoslavia 142

(1) Anticipated conclusion of ICTY work 142

(2) Cooperation by Federal Republic of

Yugoslavia 145

c. Sierra Leone 147

d. Extraordinary chambers in Cambodia 148

viii DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

2. International Criminal Court 148

a. U.S. decision not to become party to Statue of Rome 148

(1) Notiﬁcation of decision to UN 148

(2) Explanation of decision 149

b. UN Security Council Resolution 1422 157

(1) U.S. efforts to obtain protection 157

(2) Adoption of UN Security Council Resolution

1422 161

c. Bilateral agreements under Article 98 of the

Rome Treaty 165

d. Congressional action 168

(1) American Servicemembers’ Protection Act 168

(2) Understandings to treaties 174

Chapter 4

TREATY AFFAIRS 177

A. CAPACITY TO MAKE 177

B. CONCLUSION, ENTRY INTO FORCE, RESERVATIONS,

APPLICATION, AND TERMINATION 177

1. Choice of Form: International Arms Control Agreements 177

2. Ratiﬁcation of Protocols Where United States Not Party

to Underlying Convention 183

3. Provisional Application through Memorandum of

Understanding 186

4. Application to States of the United States 190

5. Termination 198

a. Litigation concerning role of U.S. Congress 198

b. Treaties terminated by the President 202

6. Reservation Practice: Iceland Whaling 206

C. ROLE IN LITIGATION 212

No Private Right of Action 212

a. Agreements between Mexico and the United States 212

b. U.S.-Iran Treaty of Amity, Economic Relations

and Consular Rights 219

CHAPTER 5

FEDERAL FOREIGN AFFAIRS AUTHORITY 227

A. FOREIGN RELATIONS LAW OF THE

UNITED STATES 227

1. Agreement with Russia Concerning Documentation

of U.S.-Soviet Relations 227

2. Alienage Diversity Jurisdiction 227

Table of Contents ix

3. Availability of Intelligence and Foreign Relations

Information 231

4. Reciprocal Access to National Courts 236

5. Foreign Policy Issues in U.S. Legislation 242

6. American Institute in Taiwan 245

B. CONSTITUENT ENTITIES 246

Northern Mariana Islands: Control of

“Submerged Lands” 246

Chapter 6

HUMAN RIGHTS 261

A. GENERAL 261

1. Country Reports on Human Rights Practices 261

2. Inter-American Commission on Human Rights:

Authority to Adopt Precautionary Measures 261

3. Argentina Declassiﬁcation Project 270

B. DISCRIMINATION 271

1. Race 271

a. Resolutions in Resumed 56

Session of UN

General Assembly Third Committee 271

b. Resolutions in 57

Session of UN General Assembly 274

2. Gender 275

a. Women, peace, and security 275

b. Convention on the Elimination of All Forms of

Discrimination Against Women 277

(1) U.S. domestic procedures 277

(2) UN resolutions 279

3. Religion 280

4. Persons with Disabilities 283

C. CHILDREN 285

1. U.S. Participation in Treaties Protecting Children 285

2. U.S. Ratiﬁcation of Protocols to Convention on

Rights of the Child 293

a. Children in Armed Conﬂict 294

Senate advice and consent 294

b. Sale of children, child prostitution, and child

pornography 297

Senate advice and consent 297

3. Special Session of the UN General Assembly

on Children 300

4. Rights of the Child 302

5. The Girl Child 304

x DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

D. ECONOMIC, SOCIAL AND CULTURAL ISSUES 304

1. Development 304

a. Right to development 304

b. Development initiatives 307

(1) Millennium Challenge Account 307

(2) G-8 Action Plan for Africa 307

(3) U.S.-Middle East Partnership Initiative 308

2. Abortion and Involuntary Sterilization 308

3. Right to Food 310

a. World Food Summit: ﬁve years later 310

b. UN General Assembly Resolution 57/226 311

4. Intangible Cultural Property 311

E. TORTURE 313

F. DETENTIONS 315

G. JUDICIAL PROCEDURE, PENALTIES AND

RELATED ISSUES 316

1. Capital Punishment 316

2. References to International Criminal Court in Human

Rights Resolutions 318

a. UN General Assembly Resolutions 318

(1) Extrajudicial, summary, or arbitrary

executions 318

(2) Enforced or involuntary disappearances 320

(3) Other 320

b. Resolutions in Organization of American States

General Assembly 321

3. Alien Tort Statute and Torture Victims Protection

Act 323

a. Scope 324

(1) Tachiona v. Mugabe 324

(2) Sarei v. Rio Tinto PLC 333

(3) Doe v. Unocal 343

(4) Flores v. Southern Peru Copper Corp. 344

(5) Abdullahi v. Pﬁzer, Inc. 345

(6) Other Cases 346

b. Liability for indirect participation in human rights

abuses 351

c. Forum non conveniens 355

d. Effect on U.S. foreign policy interests 357

H. INDIGENOUS PEOPLE 363

1. UN Economic and Social Council 363

2. Organization of American States 364

Table of Contents xi

3. Inter-American Commission on Human Rights:

Petition of Mary and Carrie Dann 367

I. RULE OF LAW AND DEMOCRACY PROMOTION 382

1. Community of Democracies 382

2. Hong Kong: Article 23 of the Basic Law 384

3. Democracy in Venezuela 385

J. TERRORISM 387

Chapter 7

INTERNATIONAL ORGANIZATIONS AND

MULTILATERAL INSTITUTIONS 389

A. GENERAL 389

Enforcement of Obligations Under the Paris

Convention for the Protection of Industrial Property 389

B. UNITED NATIONS 391

1. Report of the Special Committee on the Charter of

the United Nations and on Strengthening of the

Role of the Organization 391

2. Report of the International Law Commission 393

3. Reform and Payment of U.S. arrears 396

a. Modernizing UN management 396

b. U.S. legislation governing payment of arrears 398

C. UNITED NATIONS ORGANIZATIONS 403

1. United States Rejoins UNESCO 403

2. Observer Status at the World Health Organization:

Taiwan 405

Chapter 8

INTERNATIONAL CLAIMS AND STATE

RESPONSIBILITY 407

A. GOVERNMENT-TO-GOVERNMENT CLAIMS 407

Claims Against Iraq: United Nations Compensation

Commission 407

B. CLAIMS OF INDIVIDUALS 408

1. Terrorist Victim Compensation 408

a. Proposed compensation fund for victims of

terrorist attacks 408

b. Use of blocked assets for terrorist victims

compensation 410

2. Claims by Vietnamese Employees 413

3. Claims by Victims of the Nazi Era and Victims’ Heirs:

Insurance Claims 415

xii DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

a. Constitutionality of California Holocaust Victims

Insurance Relief Act 415

b. Agreement concerning Holocaust era insurance

claims 430

4. Claims by Persons Held as Prisoners of War by

Japan 434

a. California state law 434

(1) American soldiers as prisoners of war:

Mitsubishi Materials Corp. v. Superior

Court 435

(2) Korean claimant: Taiheiyo Cement

Corporation 440

b. Legislation to create federal cause of action 456

c. Applicability of statute of limitations in suit

against the United States for Fifth Amendment

taking 460

5. Other Claims Against the United States:

Kenyan Claims from Embassy Bombing 461

Chapter 9

DIPLOMATIC RELATIONS, SUCCESSION AND

CONTINUITY OF STATES 463

A. AFGHANISTAN 463

B. EAST TIMOR 463

Chapter 10

IMMUNITIES AND RELATED ISSUES 465

A. SOVEREIGN IMMUNITY 465

1. Scope of Application 466

a. Deﬁnition of foreign state 466

b. European Police Ofﬁce 467

2. Suits Against Government Ofﬁcials 469

a. Doe v. Liu Qi; Plaintiff A v. Xia Deren 469

b. Kato v. Ishihara 477

c. Park v. Shin 478

3. Agencies and Instrumentalities: Tiering and Timing 479

a. In re Ski Train Fire 479

b. Dole Food Company v. Patrickson 480

4. No Jus Cogens Exception to FSIA 491

a. Boshnjaku v. Federal Republic of Yugoslavia 491

b. Garb v. Republic of Poland 492

Table of Contents xiii

5. Retroactive Application of the FSIA 494

a. Hwang Gum Joo v. Japan 494

b. In re Republic of Austria, Dorotheum GMBH

& CO KG, and Osterreischische Industrieholding,

AG 503

c. Cruz v. U.S. 511

d. Garb v. Republic of Poland 513

6. Exceptions to Immunity 516

a. Waiver 516

b. Commercial activity 517

c. Tort 522

d. Acts of terrorism 522

(1) Roeder v. Islamic Republic of Iran 523

(2) Weinstein v. Islamic Republic of Iran 527

(3) Stethem v. Islamic Republic of Iran 528

(4) Ungar v. Islamic Republic of Iran 529

(5) Cronin v. Islamic Republic of Iran 529

(6) Price v. Socialist People’s Libyan Jamahiriya 534

7. Effect of Tax Treaty under FSIA 534

8. Collection of Judgments 535

a. Jung Tang v. Chinese Cultural Center 535

b. Flatow v. Islamic Republic of Iran 545

B. HEAD OF STATE IMMUNITY 547

1. Wei Ye v. Jiang Zemin 547

2. Rhanime v. Solomon 552

C. DIPLOMATIC AND CONSULAR PRIVILEGES

AND IMMUNITIES 552

1. Ahmed v. Hoque 552

2. Vienna Convention on Diplomatic Relations:

Saudi Arabian Embassy Documents 567

D. INTERNATIONAL ORGANIZATIONS 570

1. Immunity from Suit of United Nations 570

2. U.S. International Organizations and Immunities Act 572

E. THE ACT OF STATE DOCTRINE 573

F. OTHER ISSUES OF STATE REPRESENTATION 576

1. Location of Diplomatic and Consular Buildings 576

2. Real Property Taxes 576

a. Libyan mission tax lien 576

b. New York State transfer tax: Egyptian Mission 579

3. Service of Process on Visiting Foreign Ofﬁcials 581

a. Feng Suo Zhou v. Li Peng 581

b. Wei Ye v. Jiang Zemin 585

xiv DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Chapter 11

TRADE, COMMERCIAL RELATIONS, INVESTMENT,

AND TRANSPORTATION 597

A. TRANSPORTATION BY AIR 597

1. Bilateral Open Skies Agreements 597

a. New bilateral Open Skies agreements 597

b. European Court of Justice ruling 598

2. 1955 Hague Protocol 600

B. INTERNATIONAL CONVEYANCES 607

Presidential Permits 607

C. NORTH AMERICAN FREE TRADE AGREEMENT 607

1. Claims under Chapter 11 against the United States 607

a. Award in Mondev International Ltd. v.

United States 607

(1) Relevance of pre-Nafta events 609

(2) Interpretation of NAFTA Article 1105(1) 611

b. Partial award in Methanex Corporation v.

United States 616

c. The Loewen Group, Inc. and Raymond L. Loewen

v. United States of America 623

d. ADF Group Inc. v. United States 641

(1) Rejoinder on Competence and Liability,

March 29, 2002 642

(2) Post-Hearing Submission of June 27, 2002 648

(3) Post-Hearing Submission of August 1,

2002 659

2. Claim under Chapter 11 against Canada 661

3. State-to-State Arbitration under Chapter 20: Operation

in the United States of Motor Carriers Owned or

Controlled by Persons of Mexico 666

a. Presidential determination modifying moratorium 666

b. Litigation in U.S. courts 670

D. WORLD TRADE ORGANIZATION 670

1. WTO Cases Involving the United States 670

a. U.S. anti-subsidy law involving steel 670

b. Challenge to U.S. trademark provision 672

c. Foreign Sales Corporation Dispute 677

(1) Final Report of WTO Dispute Settlement

Body 677

(2) Decision of the arbitrator on amount of

sanctions 692

d. Establishment of panels related to safeguard

measures on imports of certain steel products 693

Table of Contents xv

(1) U.S. deﬁnitive safeguard measures on imports

of certain steel products 693

(2) EC steel restrictions 697

2. U.S. Proposals in World Trade Organization

Negotiations 697

a. Request for public comment 697

b. Proposals submitted to WTO 698

(1) Zero tariffs on all consumer and industrial

products 698

(2) Agriculture 701

(3) Export Credits 707

(4) Transparency in WTO Dispute Settlement

Proceedings 711

(5) U.S. moratorium on dispute settlement

regarding medicines for HIV/AIDS and other

health crises in absence of WTO consensus 715

E. OTHER TRADE AGREEMENTS AND RELATED ISSUES 719

1. Trade Promotion Authority 719

a. Legislation enacted 719

b. Agreements to be negotiated 722

c. Agreements to be concluded 723

d. Negotiation in progress: Free Trade Area of

the Americas 724

2. U.S.-Cambodia Textile Agreement 725

F. OTHER ISSUES 726

1. Export-Import Bank Reauthorization Act of 2002 726

2. OECD Guidelines for Multinational Enterprises 727

3. Rough Diamonds: Kimberley Process Certiﬁcation

Scheme 728

Chapter 12

TERRITORIAL REGIMES AND RELATED ISSUES 731

A. LAW OF THE SEA AND RELATED ISSUES 731

1. United Nations Convention on Law of the Sea 731

2. Outer Limits of Extended Continental Shelf 732

3. Rights and Freedoms of International Community

in Navigation 737

4. Litigation Concerning Submerged lands off the Coast

of Alaska 738

a. Historical waters 739

b. Juridical bays 747

5. Prohibition on Alien Crewmen Performing Longshore

Work 756

xvi DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

B. OTHER BORDER ISSUES: U.S.-MEXICO AGREEMENT

ON DELIVERY OF RIO GRANDE WATER TO

UNITED STATES 757

C. OUTER SPACE 759

Chapter 13

ENVIRONMENT AND OTHER TRANSNATIONAL

SCIENTIFIC ISSUES 765

A. ENVIRONMENT 765

1. World Summit on Sustainable Development 765

a. U.S. goals for summit 766

b. U.S. interpretation of summit declaration 768

2. Pollution and Related Issues 771

a. Stockholm Convention on Persistent Organic

Pollutants 771

(1) Transmittal to Senate for advice and consent

to ratiﬁcation 771

(2) Implementing legislation 777

b. Stratospheric ozone depletion 777

c. Climate change 777

(1) Clear skies and global climate change initiatives 777

(2) UN Framework Convention on Climate Change 781

d. Disposal of hazardous wastes 783

3. Protection of the Marine Environment and

Marine Conservation 785

a. Oceans 785

b. Particularly Sensitive Sea Areas 788

c. South Paciﬁc Regional Environment Programme

Agreement 790

d. Marine wildlife 792

(1) Protocol to Amend 1949 Convention on

Establishment of an Inter-American Tropical

Tuna Commission 792

(2) 1990 Protocol Concerning Specially Protected

Areas and Wildlife 792

(3) Dolphin-safe tuna 794

(4) Cooperation in ﬁsheries and aquaculture 796

4. Other Conservation Issues 798

a. Antarctica: Environmental Protocol Annex V 798

b. U.S.-Russia Agreement on the Conservation and

Management of the Alaska-Chukotka Polar Bear

Population 800

Table of Contents xvii

B. MEDICAL AND HEALTH ISSUES 805

1. HIV/AIDS: Global Fund to Fight AIDS, Tuberculosis

and Malaria 805

2. Cloning 807

C. OTHER TRANSNATIONAL SCIENTIFIC ISSUES 810

Plant Genetic Resources 810

Chapter 14

EDUCATIONAL AND CULTURAL ISSUES 813

INTERNATIONAL CULTURAL PROPERTY

PROTECTION 813

Cyprus 814

Chapter 15

PRIVATE INTERNATIONAL LAW 817

A. COMMERCIAL LAW 817

1. Overview 817

2. Secured Transactions: Harmonization and

Modernization 822

3. UNCITRAL Transport Convention 829

4. Inter-American Specialized Conference on Private

International Law 833

5. Electronic Commerce 834

6. Enforcement of Foreign Tax Claims in U. S. Courts 837

B. FAMILY LAW 841

International Recovery of Child Support and Other

Forms of Family Maintenance 841

a. Reciprocating countries for enforcement of family

support obligations 841

b. Hague Conference negotiation of new child

support convention 842

C. INTERNATIONAL CIVIL LITIGATION IN THE

UNITED STATES 859

1. Concurrent Proceedings in Foreign Courts 859

a. International comity-based abstentions 859

b. Anti-suit injunctions 864

(1) Restrictive approach 865

(2) Liberal approach 871

2. Recognition and Enforcement of Foreign Arbitral

Awards 873

3. Evidence: Discovery for Use in a Foreign Tribunal 875

4. Service of Process Abroad 877

xviii DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Chapter 16

SANCTIONS 881

MODIFICATION OR LIFTING OF SANCTIONS 881

1. Terrorism-Related Measures 881

a. Taliban-controlled territory 881

(1) Modiﬁcation of Executive Order 13129 882

(2) Termination of emergency 882

(3) International Trafﬁc in Arms Regulations 884

b. Continued Sanctions: UN Security

Council Resolution 1390 885

c. Guidelines for the 1267 Committee 886

d. Exceptions for basic expenses and other

extraordinary expenses: UN Security Council

Resolution 1452 887

e. International cooperation in disruption of terrorist

ﬁnancing 888

2. Iraq Oil-for-Food Program 894

a. UN Security Council Resolution 1409 894

b. Revisions in UN Security Council Resolution

1454 895

3. Unblocking of Assets of the Federal Republic of

Yugoslavia (Serbia & Montenegro) 897

Chapter 17

INTERNATIONAL CONFLICT RESOLUTION

AND AVOIDANCE 901

A. GENERAL 901

Role of International Law in Resolving Conﬂict and

Controlling Violence 901

B. SPECIFIC COUNTRIES AND REGIONS 910

1. Middle East 910

a. Statement by President Bush 910

b. General Assembly resolutions on

Israeli-Palestinian conﬂict 914

c. Joint Statement by the Quartet 916

2. Sudan 919

a. Proposals by Special Envoy 919

b. Sudan Peace Act 922

3. Eritrea/Ethiopia Boundary Commission 925

4. Haiti 926

a. Adoption of OAS Resolutions 806 and 822 926

b. Status of implementation 930

Table of Contents xix

Chapter 18

USE OF FORCE AND ARMS CONTROL 933

A. USE OF FORCE 933

1. Iraq 933

a. Congressional authorization of use of force

against Iraq 933

b. UN Security Council resolution on Iraq 937

(1) Adoption of Security Council Resolution

1441 937

(2) Explanation of U.S. vote 940

(3) Iraqi violations of relevant resolutions 943

(4) Declaration by Iraq 945

2. Preemptive Action in Self-Defense 947

a. National Security Strategy 947

b. Military intervention 952

3. Military Commissions 957

a. Promulgation of procedures 957

b. Commentary on military commissions: fair trials

and justice 972

4. Enemy Combatants Held by the United States 976

a. Status of enemy combatant detainees 976

(1) Determination by President Bush 976

(2) Fact sheet on detainees 978

b. Habeas corpus litigation in the United States

concerning enemy combatant detainees 980

(1) Access to U.S. courts in habeas proceedings

by detainees at Guantanamo 980

(2) Constitutional rights of U.S. citizens being

detained in the United States 986

(i) Hamdi v. Rumsfeld 986

(ii) Padilla v. Bush 998

c. Other litigation involving enemy combatant status 1001

d. Consideration by Inter-American Commission

on Human Rights 1008

B. ARMS CONTROL 1017

1. Agreements with Russia 1017

a. Moscow Treaty 1017

b. Congressional testimony on Moscow Treaty 1022

c. Joint Declaration on the New Strategic

Relationship 1023

d. Anti-Ballistic Missile Treaty and START II 1027

2. Open Skies Treaty 1028

xx DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

3. Compliance with Arms Limitation and Disarmament

and Non-proliferation Agreements 1032

4. Biological Weapons Convention 1035

a. Fifth Review Conference of States Parties 1035

b. U.S. position on Protocol to the Biological

Weapons Convention 1037

C. NON-PROLIFERATION 1039

1. U.S. National Strategy to Combat Weapons of

Mass Destruction 1039

2. Initiatives Aimed at Preventing the Proliferation of

Weapons of Mass Destruction 1039

a. U.S.-Russia: strengthening nuclear material

protection 1039

b. U.S.-Serbia 1041

c. Russian Federation Debt for Nonproliferation

Act of 2002 1042

3. North Korean Nuclear Program 1044

a. Violation of Agreed Framework 1044

b. U.S. support for KEDO reaction 1047

c. U.S. views on status of KEDO agreement and

relations with North Korea 1048

d. Trilateral Statement: United States, Republic of

Korea and Japan 1050

e. IAEA Resolution 1052

f. Shipment of Scud missiles to Yemen 1052

4. U.S.-IAEA Additional Protocol 1057

5. International Code of Conduct against Ballistic Missile

Proliferation (“ICOC”) 1062

6. Nonproliferation Sanctions Imposed by the

United States 1066

a. Missile proliferation 1066

b. Iran Nonproliferation Act of 2000 1067

(1) Chinese entities 1067

(2) Armenian, Chinese, and Moldovan entities 1069

c. Iran-Iraq Arms Non-Proliferation Act of 1992 and

chemical/biological nonproliferation provisions of

the Arms Export Control Act and the Export

Administration Act of 1979 1070

7. 2005 Non-Proliferation Treaty Review Conference 1071

TABLE OF CASES 1075

INDEX 1091

Table of Contents xxi

Preface

I welcome this volume of the Digest of United States Practice

in International Law for the calendar year 2002, following the

successful publication of the volumes for 2000 and 2001 and,

most recently, for 1989–1990. We await the volumes for 1991–

1999 with anticipation, and the regular publication for the calendar

year 2003 and all subsequent years.

Don Wallace, Jr.

Chairman

International Law Institute

xxi

Allie

Introduction

Calendar year 2002 gave rise to a broad range of signiﬁcant and

sometimes novel issues of international law. Many developments

again highlighted the need to protect our national security against

a different kind of enemy through the use of force in self-defense,

non-proliferation and arms control efforts, the detention of unlaw-

ful enemy combatants and establishment of military commissions,

continued counter-terrorism efforts, the imposition of sanctions,

and the freezing of governmental assets, sometimes made available

for payment of claims by individuals against terrorist states. At the

same time, there were notable developments in non-confrontational

contexts, including the ﬁelds of human rights, trade and investment,

law of the sea, international claims and state responsibility, treaty

practice, and international crime.

This volume continues the commitment of the Ofﬁce of the

Legal Adviser to make readily available some of the most signiﬁcant

documents reﬂecting the practice of the United States in the ﬁelds

of public and private international law. We believe that there is

considerable beneﬁt to the continued development of international

law in annually collecting and publishing representative briefs,

statements, judicial decisions and similar documents relating to the

relevant positions, practices, and procedures of the United States.

This volume is the fourth to be published since the Digest pro-

ject was resurrected a short three years ago. While moving ahead

with current-year volumes, our co-editors have also reached back

to ﬁll in the years since publication of the Digest was suspended

following completion of the 1981–88 volumes, produced by our

colleague Marion Nash Leich in 1995. The 1989–90 Digest volume

has already been published this year, and we expect to complete

and publish a multi-volume set covering the years 1991–99 some-

time in 2004, along with the annual volume for calendar year 2003.

xxiii

xxiv DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

In the current volume, both the content and the organization of

the Digest have undergone continued reﬁnement. Additional efforts

have been made to identify and include documents prepared by

other departments and agencies of the U.S. Government, as well

as other changes. Most importantly, we continue to welcome feed-

back from readers in order to make this publication even more

useful in the future.

The Digest is a collective undertaking involving the sustained

effort of many members of the Ofﬁce of the Legal Adviser. Among

the volunteers whose signiﬁcant contributions to the current volume

deserve to be acknowledged are Gilda Brancato, Harold Burman,

Ashley Deeks, Carol Epstein, Monica Gaw, Katherine Gorove,

Steven Hill, Duncan Hollis, Andrew Keller, Melanie Khanna, Jeff

Klein, Richard Lahne, Mary Catherine Malin, Denise Manning,

Michael Mattler, Mary McLeod, Steve McCreary, Eric Pelofsky,

Ash Roach, Heather Schildge, John Schnitker, Walt Sulzynsky,

Wynne Teel, and Kathleen Wilson. Once again, a special note of

thanks goes to the Ofﬁce’s assistant law librarian, Joan Sherer.

Contributions by interns Anna Conley and Ryika Hooshangi, and

support from Tricia Smeltzer have been invaluable. The co-editors

of the Digest, Sally Cummins and David Stewart, also deserve

special recognition for the leadership, guidance, and stamina they

bring to this monumental project.

Our collaboration with the International Law Institute con-

tinues to be the cornerstone of this effort. The Institute’s director

of publishing, Peter Whitten, and its chairman, Prof. Don Wallace,

Jr., again have our sincere thanks for their superb support and

guidance.

William H. Taft, IV

The Legal Adviser

Department of State

Table of Contents xxv

Note from the Editors

With this Digest of United States Practice in International Law for

calendar year 2002, we are pleased to publish the fourth volume in

the series since we resumed publication with Digest 2000. This past

August, Digest 1989–1990, the ﬁrst installment in our project to cover

the years 1989–1999 when publication of the Digest was suspended,

was released. Last year saw the arrival of the volume for 2001.

We want to add our thanks to those of the Legal Adviser for

the assistance of those in the Ofﬁce of the Legal Adviser and from

other ofﬁces and departments in the U.S. Government who made

this cooperative venture possible. Once again, we thank our col-

leagues at the International Law Institute, Peter B. Whitten, director

of publishing, and Professor Don Wallace, Jr., chairman, for their

valuable support and guidance.

This volume continues the organization and general approach

adopted for Digest 2000. In order to provide broad coverage of

signiﬁcant developments as soon as possible after the end of the

covered year, we rely in most cases on the text of relevant docu-

ments introduced by brief explanatory commentary to place the

document in context.

Each year we reﬁne the organization and presentation based

both on the nature of the materials to be covered in the volume and

on experience from the previous year. In Digest 2001, for instance,

we created a special Chapter 19 in order to present material relating

to the U.S. response to the terrorist attacks of September 11, 2001,

in a way that would be most useful to the reader. Events and issues

in future years may again occasion special chapters of one or more

years’ duration. Developments in 2002, however, seemed best

suited to the standard organization, with issues covered in Chapter

19—terrorism, sanctions, and use of force—returned to chapters

3, 16, and 18, respectively.

xxv

xxvi DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

As in previous volumes, we have attempted to provide internet

citations to full texts of most documents excerpted in this volume.

We realize that internet citations are subject to change, but we

have provided the best address available at the time of publication.

Where documents are not readily available elsewhere, we have

placed them on the State Department website, at www.state.gov/

s/l/c8183.htm.

For documents that are available from multiple public sources,

both in hard copy and from various online services, such as pub-

lished government documents and court opinions, we have not

provided an internet address. A number of government publica-

tions, including the Federal Register, Congressional Record, U.S.

Code, Code of Federal Regulations, and Weekly Compilation of

Presidential Documents, as well as congressional documents and

reports and public laws, are available at www.access.gpo.gov. As

an example of changing web addresses, this website has recently

been reorganized: Senate Treaty Documents, containing the Pre-

sident’s transmittal of treaties to the Senate for advice and con-

sent, with related materials, are now available at www.gpoaccess.

gov/serialset/cdocuments/index.html. Senate Executive Reports,

containing the Senate Committee on Foreign Relations reports

of treaties to the Senate for vote on advice and consent, are now

available at www.gpoaccess.gov/serialset/creports/index.html. The

government’s “ofﬁcial web portal” is www.ﬁrstgov.gov, with

links to a wide range of government agencies and other sites.

While court opinions are most readily available through com-

mercial services, some materials are available through links to

individual federal court web sites provided at www.uscourts.gov/

links.html. The ofﬁcial Supreme Court web site is maintained at

www.supremecourtus.gov.

Selections of material in this volume were made based on judg-

ments about the signiﬁcance of the issues, their possible relevance

for future situations, and their likely interest to scholars and other

academics, government lawyers, and private practitioners. We

welcome suggestions from readers and users.

Sally J. Cummins

David P. Stewart

Nationality, Citizenship and Immigration 1

CHAPTER 1

Nationality, Citizenship and Immigration

A. NATIONALITY AND CITIZENSHIP

1. Effect of Dual Nationality on U.S. Security Clearance

On March 2, 2002, the Department provided guidance in

a telegram to all diplomatic and consular posts concerning

the possible effect of dual citizenship of Department em-

ployees and applicants for employment on security clearance

determinations. As explained in excerpts below from the tele-

gram, dual citizenship would be considered as one factor in

making a determination that access to classiﬁed information

“is clearly consistent with national security.”

The full text of the telegram is available at www.state.gov/

s/l/c8183.htm.

****

3. Security clearance evaluations/determinations must assure

that access to classiﬁed information for a speciﬁc individual is

“clearly consistent with the interests of national security.” Under

the adjudicative guidelines, “any doubt as to whether access to

classiﬁed information is clearly consistent with national security

will be resolved in favor of the national security.” When making

such a determination, DS [the Bureau of Diplomatic Security] must

consider all available information, both positive and negative.

This is the “whole person” concept. Dual nationality is a relevant

element in some cases. While U.S. citizenship is a basic eligibility

2 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

requirement to be considered for access to classiﬁed information,

it does not automatically confer the right to a security clearance.

Dual citizenship must be considered in the context of other circum-

stances in an individual’s background.

4. The Department has not implemented, and does not intend

to implement, any “blanket rule” regarding dual citizenship. In

making security clearance determinations, DS will continue to

evaluate dual citizenship issues on a case-by-case basis . . .

5. Facts about any subject’s conduct and behavior developed

through required background investigation are weighed against

criteria in the government-wide adjudicative guidelines. DS must

be able to determine that granting access to classiﬁed information

is clearly in the national security interest. A fundamental adjudica-

tive principle is that the mere absence of derogatory information

is not sufﬁcient grounds to grant a security clearance. The govern-

ment must, through an appropriate investigation and evaluation,

establish a personal and professional history that positively afﬁrms

the individual’s judgment, reliability, trustworthiness and loyalty

to the United States. If there is any doubt about unquestioned

preference for and allegiance to the United States, unencumbered

by any undue foreign inﬂuence, DS must render a determination

in favor of the national security and determine that individual

ineligible for access. These same adjudicative principles are used

in all federal personnel security programs.

6. The evaluation element presented by dual citizenship is that

it could raise an issue of possible divided loyalty to the United

States. Title 32 C.F.R. 174.5, Adjudicative Guideline C, Foreign

Preference, provides:

(a) The concern. When an individual acts in such a way as to

indicate a preference for a foreign country over the United States,

then he or she may be prone to provide information or make

decisions that are harmful to the interests of the United States.

(b) Conditions that could raise a security concern and may be

disqualifying include:

(1) the exercise of dual citizenship;

(2) possession and /or use of a foreign passport;

(3) military service or a willingness to bear arms for a foreign

country;

Nationality, Citizenship and Immigration 3

(4) accepting educational, medical or other beneﬁts, such as

retirement and social welfare, from a foreign country;

(5) residence in a foreign country to meet citizenship

requirements;

(6) using foreign citizenship to protect ﬁnancial or business

interests in another country;

(7) seeking or holding political ofﬁce in the foreign country;

(8) voting in foreign elections;

(9) performing or attempting to perform duties, or otherwise

acting, so as to serve the interests of another government in prefer-

ence to the interests of the United States.

(1) dual citizenship is based solely on parents’ citizenship or

birth in a foreign country;

(2) indicators of possible foreign preference (e.g., foreign mil-

itary service) occurred before obtaining United States citizenship;

(3) activity is sanctioned by the United States;

(4) individual has expressed a willingness to renounce dual

citizenship.

7. . . . While not all inclusive, the following examples give an

indication of how such factors are evaluated and determinations

made:

Example A. A subject derived foreign citizenship from his

or her parents. In this case, DS would examine whether or

not the subject has exercised the foreign citizenship: by

accepting educational, medical or social welfare beneﬁts for

himself/herself or family; possessing and using the foreign

passport; serving in the foreign military; working for the

foreign government; etc. In the absence of the subject’s

exercising foreign citizenship, and if subject’s current and

past actions consistently demonstrated preference for and

allegiance to the United States, then dual citizenship would

not preclude a security clearance.

Example B. A subject only recently became a naturalized

U.S. citizen through marriage and has no previous ties to

the United States. In this case, DS could not likely grant

4 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

an immediate security clearance, since the demonstrated

loyalty requirement could not be satisﬁed immediately. Elig-

ibility for access could be reconsidered after a passage of

time during which the subject would have the opportunity

to clearly demonstrate preference for and unquestioned

allegiance to the United States, and the absence of any

undue conﬂicting inﬂuence, as required by the referenced

guidelines.

Example C. A subject was born in the U.S. as the child of

foreign visitors. The subject left the U.S. in infancy, never

returned and has no ties or history which indicate a pre-

ference for and allegiance to the United States. DS would

not have the background information required to grant a

security clearance.

Example D. A subject is a naturalized U.S. citizen and dual

national who is willing to relinquish his foreign passport

but is not/not willing to renounce foreign citizenship of

birth. The subject explains that the reason for this position

Is: (1) so that children can continue to enjoy free foreign

education beneﬁts; (2) for possible future employment

opportunities; and (3) for foreign inheritance purposes.

DS would not be able to clearly determine the individual’s

preference for the United States, sufﬁcient to grant a security

clearance.

****

10. Dual citizenship also presents an issue in the assignment

of staff to overseas posts. For example, the Vienna Convention on

Diplomatic Relations does not provide diplomatic privileges and

immunities for dual nationals; most countries do not unilaterally

grant such privileges and immunities. Absent extraordinary circum-

stances, the Department will not assign an employee to a country

where he or she is a citizen.

****

Nationality, Citizenship and Immigration 5

2. Revocation of U.S. Citizenship

During 2002 U.S. federal courts revoked U.S. citizenship of

two persons found to have participated in Nazi atrocities

during World War II. In U.S. v. Demjanjuk, 2002 U.S. Dist.

LEXIS 6999, the U.S. District Court for the Northern District

of Ohio Eastern Division, revoked the citizenship of John

Demjanjuk, ruling that he had served the Nazi regime during

World War II as a “willing” guard at Nazi camps “for more

than two years.” In U.S. v. Gorshkow No. 02–186, Slip op.

(N.D. Fla. Aug. 7, 2002), the U.S. District Court for the

Northern District of Florida based the revocation of citizen-

ship on Gorshkow’s participation in the mass murder of

Jews and other civilians in 1942 and 1943 during the Nazi

occupation of Belarus while serving in the Gestapo, the Nazis’

secret state police.

These revocations were the result of investigations and

prosecution by the Ofﬁce of Special Investigations in the

Criminal Division of the U.S. Department of Justice (“OSI”).

A press release issued by the Department of Justice concern-

ing Gorshkow explains the work of the ofﬁce:

The proceedings to denaturalize Gorshkow are a result

of OSI’s ongoing efforts to identify and take legal action

against former participants in Nazi persecution residing

in this country. Gorshkow is the 70th Nazi persecutor

stripped of U.S. citizenship since OSI began operations in

1979. Additionally, 56 such individuals have been removed

from the United States, and 165 suspected Nazi persecu-

tors have been stopped at U.S. ports of entry and barred

from entering the country. More than 160 U.S. residents

are currently under active investigation by OSI.

available at www.usdoj.gov/opa/pr/2002/July/02_crm_446.htm.

Revocation of citizenship in these cases results from

ﬁndings of unlawful immigration to the United States. In

each case, Demjanjuk and Gorshkow were found to have

lied on visa applications to conceal their involvement in

6 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Nazi persecutions. Excerpts below from the district court’s

conclusions of law in Demjanjuk explain the legal analysis in

that case.*

****

31. Where there has not been “strict compliance” with all

congressionally imposed prerequisites to the acquisition of citizen-

ship, naturalization is illegally procured. See Fedorenko, 449 U.S.

at 505–06; Dailide, 227 F.3d at 389.

32. Where naturalization is “illegally procured,” a grant of

citizenship must be revoked. 8 U.S.C. § 1451(a); Fedorenko, 449

U.S. at 506; Dailide, 227 F.3d at 389.

33. As a prerequisite to obtaining naturalization, an indi-

vidualmust have entered the United States under a valid visa. See,

e.g., Fedorenko, 449 U.S. at 514–15; see also 8 U.S.C. § 1427(a)(1).

35. An individual seeking to enter the United States under the

Displaced Persons Act of 1948, Pub. L. No. 80–774, ch. 647,

62 Stat. 1009, as amended, June 16, 1950, Pub. L. No. 81–555,

* The Press Release by the Department of Justice provides the following

brief description of the long history of the proceedings against Demjanjuk:

Demjanjuk was ﬁrst tried on allegations of Nazi persecution in 1981.

A federal court found that Demjanjuk was “Ivan the Terrible,” a gas

chamber operator at the Treblinka extermination camp. He was

extradited to Israel in 1986, convicted of crimes against humanity by an

Israeli trial court, and sentenced to death. However, after the Israeli

Supreme Court found that reasonable doubt existed as to whether Dem-

janjuk was Ivan the Terrible, he was released and returned to the United

States. In 1998, Chief Judge Matia vacated the original denaturalization

order, ﬁnding that the government recklessly failed to produce potentially

exculpatory evidence to Demjanjuk in the original proceedings, but he

authorized the government to reinstitute denaturalization proceedings

if it had evidence supporting other charges against Demjanjuk. The

government ﬁled new charges in 1999, relying in large part on evidence

that had come to light following Demjanjuk’s conviction in Israel, when

the collapse of the Soviet Union led to the release of Nazi records that

had been captured by the Soviet army. (www.usdoj.gov/opa/pr/2002/

February/02_crm_094.htm.)

See also discussion in Cumulative Digest 1981–1988 at 532–534 and 729–

737.

Nationality, Citizenship and Immigration 7

64 Stat. 219 (“DPA”), ﬁrst had to be deemed “of concern” to the

International Refugee Organization (“IRO”). . . .

36. Annex I, Part II of the IRO Constitution identiﬁed certain

categories of persons who were not “the concern” of the IRO,

including, “Any . . . persons who can be shown: (a) to have assisted

the enemy in persecuting civil populations of countries . . .” (62

Stat. 3051, 3052). . . .

37. Under the DPA, visas could not be granted to anyone who

assisted in the persecution of any person because of race, religion,

or national origin. 64 Stat. 219, 227. . . .

****

43. An individual’s service in a unit dedicated to exploiting

and exterminating civilians on the basis of race or religion consti-

tutes assistance in persecution within the meaning of the DPA. . . .

****

45. The Government has proven by clear, convincing, and

unequivocal evidence that Defendant assisted in the persecution

of civilian populations during World War II.

46. Because of his assistance in persecution, Defendant was

ineligible for a visa pursuant to DPA § 13, 64 Stat. 219. His entry

to the United States for permanent residence in 1952 on the basis

of a visa issued under the DPA was therefore unlawful and his

naturalization as a United States citizen was illegally procured.

****

56. [In addition, b]ecause of his membership and participation

in a movement hostile to the United States, Defendant was ineligible

to immigrate to the United States pursuant to DPA § 13. His entry

to the United States for permanent residence in 1952 was therefore

unlawful and his naturalization as a United States citizen was

illegally procured. . . .

57. Section 10 of the DPA barred from immigration any person

who willfully misrepresented material facts to gain admission to

the United States as a displaced person. 62 Stat. at 1013. . . .

****

8 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

60. A willful and material misrepresentation to a United States

Vice Consul, made to gain admission to the United States, is

actionable per se under Section 10 of the DPA. . . .

61. When applying for IRO assistance, Defendant misrepres-

ented and concealed his wartime residences and activities, which

constituted misrepresentations and concealments of his wartime

employment and residences for the purpose of gaining admission

into the United States.

****

68. Because of his knowing misrepresentation of material facts

to the IRO, which were relied on by the DPC, and because of his

knowing misrepresentation of material facts to the DPC and Vice

Consul, Defendant was ineligible to immigrate to the United States

pursuant to DPA § 10. His entry to the United States for permanent

residence in 1952 was therefore unlawful and his naturalization as

a United States citizen was illegally procured and must be revoked.

****

3. Child Citizenship Act

The Child Citizenship Act of 2000, Pub. L. No. 106–395, 114

Stat. 1631, amended and repealed Sections 320–322 of the

Immigration and Nationality Act, 8 U.S.C. § 1431, to facilitate

acquisition of U.S. citizenship by children of U.S. citizens born

abroad in certain circumstances. See discussion in Digest 2001

at 3–6. On April 15, 2002, the U.S. Court of Appeals for the

Eleventh Circuit held that the Act did not operate retroactively

to provide citizenship for persons who were older than 18

on the effective date of the statute, February 27, 2001. U.S. v.

Arbelo, 288 F.3d 1262 (11th Cir. 2002). The court noted that

“[t]he Act speciﬁed that its amendments to prior law “shall

take effect 120 days after the date of the enactment of this

Act and shall apply to individuals who satisfy the requirements

as in effect on such effective date.” Id. at 1263. Accord, Nehme

v. INS, 252 F.3d 415 (5th Cir. 2001); Hughes v. Ashcroft, 255

F.3d 752 (9th Cir. 2001).

Nationality, Citizenship and Immigration 9

4. Citizenship Claim under former Section 320 INA

In response to a request from the American consulate general

in Hong Kong, the Department of State provided guidance

concerning acquisition of citizenship under § 320 of the Immi-

gration and Nationality Act (“INA”) before it was amended

by the Child Citizenship Act, discussed supra. In that case, a

woman born in Hong Kong in 1973, and admitted to the

United States for the purpose of adoption in 1983, had been

adopted in 1985 by a U.S. mother and a father who had

become a naturalized U.S. citizen two months before the

adoption. In a telegram of May 10, 2002, the Department

concluded that the person in question had automatically

acquired citizenship at the time of her adoption, as explained

in excerpts from the telegram set forth below.

****

[1] . . . Former Section 320 INA allows for automatic acquisi-

tion of U.S. citizenship for a child born overseas [with one]

American citizen parent through the naturalization of the alien

parent, provided that the child is residing in the U.S. at the time of

naturalization of the alien adoptive parent, is in the custody of the

adoptive parents pursuant to a lawful admission for permanent

residence, while under the age of 18 and unmarried. Provided all

other requirements of former Section 320 INA have been met,

post has asked whether the adoption must have been ﬁnalized at

the time the adoptive alien parent was naturalized.

2. It is the opinion of the Department that all the requirements

of Section 320 INA need not be met sequentially, provided all the

requirements are met prior to age 18. Therefore, Department con-

siders that [the person in question] acquired U.S. citizenship on

September 11, 1985, upon the completion of the ﬁnal requirement

set forth in former Section 320 INA, that is, upon the ﬁnalization

of her adoption.

10 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

5. In Vitro Conception

In January 2002 the Department responded to a request

for guidance from the American embassy in Seoul, Republic

of Korea, concerning the citizenship of twins conceived in

vitro. The twins were born in Seoul to a naturalized American

citizen mother and a father who was a citizen of the People’s

Republic of China (“PRC”). The PRC national father was the

sperm donor. The egg donor was not the American citizen

mother, however, and no assumption could be made that

the egg donor was an American citizen. On these facts, the

Department concurred with the embassy’s conclusion that

the applicant had not demonstrated the existence of a blood

relationship between her and the children, as required by

law, and that the children had therefore not acquired U.S.

citizenship. Excerpts below from a telegram of January 8

provide the analysis of the statutory provision applicable to

the case.

The full text of the telegram is available at www.state.gov/

s/l/c8183.htm.

1. . . . In order to establish a claim to U.S. citizenship under

Section 301(g) [of the Immigration and Nationality Act (“INA”)],

the INA requires, among other things, that a blood relationship

exist between the child and the U.S. citizen parent.

2. Based on the information presented . . . and the fact that

the [American citizen] surrogate mother was not the egg donor,

the applicant has not/not demonstrated the existence of a blood

relationship between her and the children. As a result, the child-

ren have not acquired U.S. citizenship. Additionally, no/no

assumption can be made that the egg donor was a U.S. citizen. If

the egg donor is identiﬁable and is a U.S. citizen, that individual

must meet the requirements to transmit citizenship, and must

cooperate in the documentation of the citizenship claim. When a

surrogate mother who is not the egg donor gives birth to a child,

the case should be adjudicated as if the child had been born out of

wedlock.

Nationality, Citizenship and Immigration 11

3. Please explain that we are in no way questioning the legal

relationship between the child and the U.S. citizen mother. . . .

4. Department notes that in the alternative, the child could

receive an [immigrant visa (“IV”)]. . . .

****

B. PASSPORTS

1. Two-Parent Consent Requirement for Passport Issuance

In an effort to deter parental child abduction, the Department

of State does not issue passports to children under age 14

unless both parents signed the passport application, except

in certain limited circumstances. See 22 U.S.C. § 213n. The

statute provides, for instance, that one parent may execute

the application if he or she provides “documentary evidence

that such person (i) has sole custody of the child. . . .” As

authorized by the statute, implementing regulations provide

for waiver in cases of exigent circumstances. 66 Fed. Reg.

29,904 (June 4, 2001). See also Digest 2001 at 8–9.

a. Special court order

In 2002 the Department provided advice to a U.S. post

abroad on the signiﬁcance of a special court order permitting

the mother to travel and establish her domicile abroad with

the child. As set forth in excerpts below from the telegram of

May 15, 2002, the court order in this case provided the basis

for issuing a passport on the mother’s signature alone.

The full text of the telegram is available at www.state.gov/

s/l/c8183.htm.

****

2. . . . The two-parent consent statute requires that “the person

executing the application must provide documentary evidence that

such person-(i) has sole custody of the child.” The parents in the

12 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

case at hand share joint custody; the mother has primary physical

custody, the father visitation. Primary physical custody in a joint

custody situation is not the same as the statutory requirement of

sole custody. However, a court order permits the applying parent

to domicile the child in a foreign country.

3. Because the court order permits the mother to travel and

establish domicile with the child in a foreign country, it comes

within the purview of 22 CFR 51.27(iii)(f), which implements the

two-parent consent requirement and provides that documentary

evidence in support of a passport application may include “an

order of a court of competent jurisdiction speciﬁcally permitting

the applying parent’s or guardian’s travel with the child.” A court

order such as the one presented to post authorizing domicile obvi-

ously authorizes the applying parent’s travel with the child. A

narrow interpretation of 22 CFR 51.27 or the statute’s sole custody

provision would cause great hardship to [American citizen] families

overseas. . . .

b. Exception where mother reclaiming children abducted by father

In a telegram of November 13, 2002, the Department of State

authorized a U.S. post abroad to issue a passport for children

without the signature of the father where the mother was

traveling to that country to reclaim the children who had

previously been abducted by the father and left in the foreign

country. Excerpts from the telegram set forth below provide

the Department’s view on the legal issue presented. The

telegram also requested that the post provide assistance to

the mother and to verify the location and condition of the

children in advance of the mother’s arrival.

The full text of the telegram is available at www.state.gov/

s/l/c8183.htm.

****

3. Department has reviewed the circumstances of the [XXX]

case and authorizes post to issue passports for [XXX’s three chil-

dren] . . . on the basis of Mrs. XXX’s single signature and without

Nationality, Citizenship and Immigration 13

the approval of the taking parent. . . . Mrs. XXX is currently in

possession of a Writ of Attachment issued by the Dallas County

District Court in Texas, ordering the return of the children to

their mother’s custody. In addition, the children’s father is in the

United States and subject to a bond prohibiting his departure

pending a hearing on kidnapping charges. The court order,

Mr. XXX’s present bond status, and the children’s current welfare

. . . meet the criteria for the exigent circumstances exception to

the two-parent signature requirement. Post should issue passports

for the three children, provided they are otherwise qualiﬁed.

****

2. Denial of Passport for Non-Payment of Child Support

The Secretary of State is required to deny (or, as appropriate,

revoke, restrict or limit) passports of persons owing child

support arrearages in excess of $5,000. The denial is triggered

when the case is certiﬁed by the Secretary of Health and

Human Services, on the basis of an underlying certiﬁcation

of a state agency. Personal Responsibility and Work Oppor-

tunity Reconciliation Act of 1996, Pub. L. No. 104–193, § 370,

110 Stat. 2105 at 2251, 42 U.S.C. § 652(k). The Department

of State promulgated implementing regulations at 22 C.F.R.

§ 51.70(a)(8) (2001).

On August 23, 2002, the U.S. Court of Appeals for the

Ninth Circuit afﬁrmed a district court ruling rejecting a

constitutional challenge to the denial of a passport under

these authorities. Eunique v. Powell, 302 F.3d 971 (9th Cir.

2002). In that case, the father had been awarded custody of

the children and the mother was ordered to pay child support.

At the time the case came before the court of appeals she

admitted to owing between $28,000 and $30,000. The court

of appeals decision is excerpted below (footnotes deleted.).

See also Digest 2001 at 9–13.

****

14 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Eunique argues that there is an insufﬁcient connection between

her breach of the duty to pay for the support of her children, and

the government’s interference with her right to international travel.

Thus, she argues, her constitutional rights have been violated. We

disagree.

Eunique asserts that she has a constitutional right to inter-

national travel, which is so fundamental that it can be restricted

for only the most important reasons, and by a narrowly tailored

statute. It is undoubtedly true that there is a constitutional right

to international travel. See Kent v. Dulles, 357 U.S. 116, 125, 78

S. Ct. 1113, 1118, 2 L. Ed. 2d 1204 (1958). However, as the Sup-

reme Court has said, “the right of international travel has been

considered to be no more than an aspect of the liberty protected

by the Due Process Clause of the Fifth Amendment. As such this

right, the Court has held, can be regulated within the bounds of

due process.” Haig v. Agee, 453 U.S. 280, 307, 101 S. Ct. 2766,

2782, 69 L. Ed. 2d 640 (1981) (citations and internal quotation

marks omitted); see also Zemel v. Rusk, 381 U.S. 1, 14–15, 85

S. Ct. 1271, 1279–80, 14 L. Ed. 2d 179 (1965); Aptheker v. Sec’y

of State, 378 U.S. 500, 505, 84 S. Ct. 1659, 1663, 12 L. Ed. 2d

992 (1964). In that respect, it differs from “the constitutional

right of interstate travel [which] is virtually unqualiﬁed.” Haig,

453 U.S. at 307, 101 S. Ct. at 2782 (internal quotation marks and

citations omitted). The difference means that we do not apply

strict scrutiny to restrictions on international travel rights that do

not implicate First Amendment concerns.

At an early point in the development of Supreme Court juris-

prudence in this area, the Court seemed to suggest that restrictions

upon travel must be looked upon with a jaded eye. See Aptheker,

378 U.S. at 507–514, 84 S. Ct. at 1664–68. However, it was then

dealing with a law which touched on First Amendment concerns

because it keyed on mere association. Id. at 507–08, 84 S. Ct.

at 1664–65. The Court has not been as troubled in cases which

do not directly involve those concerns. See Haig, 453 U.S. at

306–08, 101 S. Ct. at 2781–82; Zemel, 381 U.S. at 14–15, 85

S. Ct. at 1279–80. Rather, as I see it, the Court has suggested that

rational basis review should be applied.

****

Nationality, Citizenship and Immigration 15

. . . [W]e must presume § 652(k) to be valid, and we must up-

hold it “if it is rationally related to a legitimate government

interest.” Rodriguez v. Cook, 169 F.3d 1176, 1181 (9th Cir. 1999).

The statute easily passes that test. There can be no doubt that

the failure of parents to support their children is recognized by

our society as a serious offense against morals and welfare. It “is

in violation of important social duties [and is] subversive of good

order.” Braunfeld v. Brown, 366 U.S. 599, 603, 81 S. Ct. 1144,

1146, 6 L. Ed. 2d 563, 17 Ohio Op. 2d 241 (1961). It is the very

kind of problem that the legislature can address.

Moreover, the economic problems caused by parents who fail

to provide support for their children are both well known and

widespread. They can be exacerbated when the non-paying parent

is out of the state, as, of course, a parent traveling internationally

must be. . . .

****

All of this not only illustrates the rationality of Congress’s

goal, but also demonstrates its rational connection to the passport

denial in question. Surely it makes sense to assure that those who

do not pay their child support obligations remain within the coun-

try, where they can be reached by our processes in an at least

relatively easy way. Notably, even when the Court iterated the

constitutional right to travel in Kent, 357 U.S. at 127, 78 S. Ct.

at 1119, it, without disapproval, took notice of a long-standing

policy of denying passports to those who were “trying to escape

the toils of the law” or “engaging in conduct which would violate

the laws of the United States.” A person who fails to pay child

support may well attempt to escape the toils of the law by going

abroad, and may even be violating the laws of the United States.

See, e.g., 18 U.S.C. § 228; see also Cal. Penal Code § 270.

****

We hold that, without violating Eunique’s Fifth Amendment

freedom to travel internationally, Congress (and the State Depart-

ment) can refuse to let her have a passport as long as she remains

in substantial arrears on her child support obligations. . . .

****

16 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

3. New Passport for Escaped U.S. Prisoner

On May 3, 2002, the Department of State provided guidance

to a U.S. post abroad on issuing a new passport to an

American citizen who had escaped from custody in another

country. In that case, the American citizen had been arrested

in Accra, Ghana for drug possession. She had escaped,

traveled to Nigeria and applied for a new passport at the

U.S. Consulate General in Lagos. Although she indicated on

her passport application that her passport was misplaced

in Nigeria, it was in fact being held by Ghanaian authorities.

Agents of the Department of State’s Ofﬁce of Diplomatic

Security were seeking an arrest warrant in the United States

for violation of 18 U.S.C. § 1542 (false statement in application

for a passport) but no warrant had been issued at the time

of the passport application. Excerpts below from the telegram

relaying the Department’s advice provide its reasons for

concluding that in these circumstances there was no legal

ground for denying a new passport. As noted in a similar

case in December 2002, “there is no provision [under U.S.

law] for denial of passport services on the basis of foreign

criminal charges.” The Department nevertheless authorized

issuance only of a limited validity passport.

****

3. Grounds for Denial of Passport: 22 C.F.R. 51.70 provides

limited circumstances in which a passport can be denied. Such

circumstances include 1) when the applicant is the subject of an

outstanding Federal warrant of arrest for a felony; 2) when the

applicant is subject to a criminal court order, condition of proba-

tion, or condition of parole, any of which forbids the departure

from the United States; 3) when the applicant is the subject of a

request for extradition or provisional arrest for extradition which

has been presented to the government of a foreign country by the

United States; or 4) when the Secretary determines that the

national’s activities abroad are causing or are likely to cause serious

damage to the national security or the foreign policy of the United

Nationality, Citizenship and Immigration 17

States. Section 51.71 provides for denial of passport to certain

convicted drug trafﬁckers. This section generally applies only in

cases in which the applicant is subject to imprisonment or super-

vised release as a result of a felony conviction for a Federal or

state drug offense if the individual used a U.S. passport or otherwise

crossed an international border in committing the offense.

4. [The American citizen in this case (“Amcit”)] is not the sub-

ject of an outstanding federal warrant, a criminal court order, or a

request for extradition by the U.S. The provisions of 51.71 do not

apply. While the Department strongly opposes the illegal activities

alleged in this instance, it does not consider subject’s activities

likely to cause serious damage to the national security of the U.S.

5. Lacking legal grounds for denial of passport services, and

assuming subject wishes to travel immediately, ConGen Lagos

should issue a one-year, limited validity passport to subject, using

endorsement code 103. Prior to issuance, post should inform

subject that it is aware of the current disposition of her passport

and, per 7 [Foreign Affairs Manual (“FAM”)] 462(f), ask that

she provide a new statement accurately portraying the disposition

of said passport and the details of her departure from Ghana and

entry into Nigeria. However, post should issue Amcit a passport

even if she declines to provide a new statement.

6. Per 7 FAM 1371.3(d) and 7 FAM 462(e), following issuance

of the passport, ConGen Lagos should contact Embassy Accra

and ask that it request the return of subject’s previous passport

from Ghanaian authorities.

****

4. Denial or Limitation of Passports

On June 11, 2002, the Department of State provided general

guidance in a telegram to all U.S. diplomatic and consular

posts abroad on denial or limitation of passports in law

enforcement and mental illness cases, excerpted below.

The full text of the telegram is available at www.state.gov/

s/l/c8183.htm.

****

18 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

2. Law enforcement—Passport regulations (22 C.F.R. 51.70)

provide for the denial or revocation of a passport in any case

where the Secretary determines or is informed by competent author-

ity that the applicant is the subject of an outstanding federal war-

rant of arrest for a felony. The regulations also provide for denial

of a passport if the applicant is the subject of a criminal court

order, condition of probation or condition of parole. . . .

****

4. Posts do not have authority to deny or limit a passport,

unless for citizenship or identity reasons, solely on the basis of

suspicions or allegations of illegal foreign or domestic activities. . . .

****

7. Mental conditions—In instances where post is contacted

regarding passport denial to an individual who may be suffering

from a mental illness, the caller also should be referred to the De-

partment. Denial of passport services for mental illness is speciﬁc-

ally provided for in 22 C.F.R. 51.70(a)(3), [which] limits denial of

passport services to individuals who are the subject of a court

order committing him or her to a mental institution. . . .

8. Mental illness cases as described above should not be

confused with the medical assistance cases on which posts routinely

work (7 FAM 360). In the cases described para 7 above, a court

has determined that the individual is not competent to handle his/

her own affairs and has appointed a guardian. The guardian has

requested the passport restriction based on the court order.

****

C. IMMIGRATION AND VISAS

1. Applicability of 1949 Convention on Road Trafﬁc

On April 12, 2002, Catherine W. Brown, Assistant Legal

Adviser for Consular Affairs, U.S. Department of State,

responded to an inquiry concerning the 1949 Convention on

Road Trafﬁc (“CRT”), 3 U.S.T. 3008, T.I.A.S. No. 2487. The

Nationality, Citizenship and Immigration 19

inquiry, from the Prosecuting Attorney’s Council of Georgia,

concerned applicability of the CRT to a foreign national in

the United States without authority. The letter from the

Department is set forth in full below.

I have been asked to respond to your January 10, 2002, letter

to the Legal Adviser concerning the interpretation of the 1949

Convention on Road Trafﬁc (“CRT”), TIAS 2487, published in

3 UST 3008. Speciﬁcally, you noted that Article 24(1) of the

CRT requires the United States in certain circumstances to permit

“any driver admitted to its territory” to drive using a driver’s

license issued by another country. You asked whether Article 24(1)

“applies to either a foreign national who has either entered the

United States without authority or one who remains in the United

States without authority.”

We do not believe that the CRT requires that federal or state

authorities recognize the foreign driver’s license of a driver who

has entered the United States without authority. We understand

“admitted to its territory” to mean an alien driver that the receiving

state—in this case, the United States—has afﬁrmatively authorized

to be in its territory. The word “admitted” implies such an afﬁrma-

tive action granting authorization and in our view is not intended

to encompass a person merely found or present in the territory of

the receiving state without having been allowed to enter through

an afﬁrmative act of “admission” by the receiving state.

This view is consistent with Section 101(a)(13) of the Immi-

gration and Nationality Act (“INA”), which now provides that

“[t]he terms ‘admission’ and ‘admitted’ mean, with respect to an

alien, the lawful entry of the alien into the United States after

inspection and authorization by an immigration ofﬁcer.” While

the CRT is a multilateral international agreement that can be

interpreted independently of the INA, in this case we believe that

the INA reﬂects a generally accepted understanding of the concept

of “admission” and one that the United States can reasonably

apply in administering the CRT in its territory.

We do not recall previously addressing your second question,

relating to persons who have been admitted to the United States

20 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

but who have violated the conditions of admission, particularly

by exceeding their authorized period of stay. We note, however,

that Article 1 of the CRT provides that, “No Contracting State shall

be required to extend the beneﬁt of the provisions of this Conven-

tion to . . . any driver having remained within its territory for a

continuous period exceeding one year.” Consistent with this, the

International Driving Permit (“IDP”) provided for in Annex 10 of

the CRT is valid for only one year. We also note that the IDP

expressly states that “this permit shall in no way affect the obliga-

tion of the holder to conform strictly to the laws and regulations

relating to residence which are in force in each country through

which he travels.”

Reading these provisions as a whole, we believe that the State

of Georgia, consistent with the CRT, (1) must permit an alien to

drive in Georgia using a foreign driver’s license issued by a country

party to the CRT only if the alien has been lawfully admitted to

the United States; (2) must permit a lawfully admitted alien to drive

in Georgia using a foreign driver’s license of a CRT party only

during the ﬁrst year after the alien’s admission; and (3) may, in

accordance with Georgia’s residency laws, require an alien resident

in Georgia to obtain a Georgia driver’s license as a condition for

continued authorization to drive. By the same token, nothing in

the CRT would prevent the State of Georgia from applying more

liberal rules with respect to the driving privileges of aliens.

2. Compliance with U.S.-Cuba Migration Accords:

Report to Congress

In 1994 and 1995 the United States and Cuba reached agree-

ment on certain issues relating to migration from Cuba,

referred to as the Migration Accords. The September 9, 1994,

Joint Communiqué commits the United States to permit

the legal migration to the United States of 20,000 Cuban

nationals each year (not including immediate relatives of

United States citizens). The May 2, 1995, Joint Statement

provides for the return to Cuba of Cuban nationals who are

interdicted at sea by the U.S. Coast Guard while attempting

Nationality, Citizenship and Immigration 21

to enter the United States, or who enter the U.S. Naval Base

at Guantanamo Bay, and who do not have protection con-

cerns. Under this Joint Statement, Cuba and the United States

pledged to “ensure that no action is taken against those

migrants returned to Cuba as a consequence of their attempt

to immigrate illegally.”

Pursuant to § 2245 of the Omnibus Consolidated and

Emergency Supplemental Appropriations Act, 1999, Pub. L.

No. 105–277, 112 Stat. 2681 at 2681–824, the Department of

State submits a semi-annual report to Congress concerning

the methods employed by the Government of Cuba to enforce

the 1994 Joint Communiqué and its treatment of persons

returned to Cuba pursuant to the 1995 Joint Statement. The

introduction to the October 2002 report notes that the

Migration Accords “aim to promote ‘safe, legal, and orderly’

migration as an alternative to illegal immigration,” and states:

U.S. Government efforts under the Migration Accords

have curbed the Government of Cuba’s pre-1995 practice

of retaliating against individuals who have exited Cuba

illegally. However, returned migrants, as well as other

individuals who express an interest in immigrating to

the United States, continue to report difﬁculties in pursu-

ing their desire to leave.

The excerpts below provide the October report’s conclusions.

The full text of the report is available at www.state.gov/s/

l/c8183.htm.

Conclusion

The United States remains committed to fully implementing the

Migration Accords, as an effective tool to encourage safe, legal,

and orderly migration.

Despite the overheated commentary of President Castro, the

Cuban government takes appropriate actions to stem illegal

migration from Cuba and is complying with the Migration Accords.

22 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

There are still areas of concern, which the U.S. Government

has raised, with the GOC [Government of Cuba]. Implementa-

tion could be improved and the Migration Accords could be

more effective if the GOC were willing to take the following

actions:

• Discontinue the denial of Cuban exit permits to individuals

with valid U.S. travel documents, whether obtained through

the in-country refugee program, immigrant visa issuance,

the Diversity Visa Lottery, or the Special Cuban Migration

Program (a.k.a. “The Lottery”).

• Ensure that the policy of not taking action against indi-

viduals who express an interest in emigrating to the United

States, or those returned to Cuba by the U.S. Coast Guard

after an irregular departure, is fully implemented by all

levels of the Cuban government.

• Permit continued technical discussions between U.S. con-

sular and INS ofﬁcials, and their Cuban counterparts, on

document fraud prevention issues.

• Insist that local authorities allow all persons who have

departed irregularly to resume their former employment,

if they have not committed a criminal offense in addition

to leaving Cuba illegally. If another person has been hired

in their absence, returning migrants should be allowed to

seek and obtain comparable employment.

• Ensure that medical screening of prospective migrants

complies with guidelines established by the U.S. Public

Health Services requirements.

3. Suspension of Entry: Zimbabwe

On February 22, 2002, President George W. Bush issued a

proclamation suspending entry into the United States of per-

sons responsible for actions that threaten Zimbabwe’s demo-

cratic institutions and transition to a multi-party democracy.

67 Fed. Reg. 8,857 (Feb. 26, 2002). Excerpts below from the

proclamation explain the basis for the suspension of entry.

Nationality, Citizenship and Immigration 23

In light of the political and humanitarian crisis in Zimbabwe

and the continued failure of President Robert Mugabe, Zimbab-

wean government ofﬁcials, and others to support the rule of law,

and given the importance to the United States of fostering demo-

cratic institutions in Zimbabwe, I have determined that it is in the

interest of the United States to take all available measures to restrict

the international travel and to suspend the entry into the United

States, as immigrants or nonimmigrants, of senior members of the

government of Robert Mugabe and others detailed below who

formulate, implement, or beneﬁt from policies that undermine or

injure Zimbabwe’s democratic institutions or impede the transition

to a multi-party democracy.

NOW, THEREFORE, I, GEORGE W. BUSH, President of the

United States of America, by the authority vested in me by the Con-

stitution and laws of the United States, including Section 212(f)

of the Immigration and Nationality Act of 1952, 8 U.S.C. 1182(f),

and Section 301 of title 3, United States Code, hereby ﬁnd that the

unrestricted immigrant and nonimmigrant entry into the United

States of persons described in Section 1 of this proclamation would,

except as provided for in Sections 2 and 3 of this proclamation, be

detrimental to the interests of the United States.

I therefore hereby proclaim that:

Section 1. The entry into the United States, as immigrants or

nonimmigrants, of the following persons is hereby suspended:

(a) Senior members of the government of Robert Mugabe and

other Zimbabwe nationals who formulate, implement, or beneﬁt

from policies that undermine or injure Zimbabwe’s democratic

institutions or impede the transition to a multi-party democracy;

(b) Persons who through their business dealings with Zimb-

abwe government ofﬁcials derive signiﬁcant ﬁnancial beneﬁt from

policies that undermine or injure Zimbabwe’s democratic institu-

tions or impede the transition to a multi-party democracy; and

above.

Sec. 2. Section 1 of this proclamation shall not apply with

respect to any person otherwise covered by Section 1 where entry

of such person would not be contrary to the interest of the United

States.

24 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Sec. 3. Persons covered by Sections 1 and 2 of this proclamation

shall be identiﬁed by the Secretary of State or the Secretary’s

designee, in his or her sole discretion, pursuant to such procedures

as the Secretary may establish under Section 5 of this proclamation.

D. ASYLUM AND REFUGEE STATUS AND RELATED ISSUES

1. Vietnamese Montagnard Refugees in Cambodia

On January 21, 2002, the UN High Commissioner for

Refugees (“UNHCR”) and the governments of Vietnam and

Cambodia entered into a trilateral agreement covering repa-

triation to Vietnam, reintegration assistance, and monitoring

of some 1,100 Montagnard asylum seekers. Montagnards,

meaning mountain people, is the collective name applied to

several ethnic minority tribes living in the central highlands

of Vietnam, many of whom fought alongside Americans there

during the Vietnam War. The Montagnards began ﬂeeing to

Cambodia in February 2001, after general unrest in the wake

of demonstrations regarding land disputes and religious strife

in the Central Highlands in May and June 2001. The UNHCR

established two camps to which the asylum seekers were

admitted. On March 21, 2002, the State Department issued

a press statement reﬂecting its concern with conﬁrmed

reports “that the Vietnamese government sent 12 tour buses

with over 400 individuals to the UN High Commission for

Refugees camp in Cambodia’s Mondolkiri province on March

21 to persuade Montagnard refugees to return to Vietnam.

Cambodian ofﬁcials admitted the visitors to the camp over

the objections of the UNHCR.” The press statement indicated

that the United States “continues to support repatriation as

one choice for this population, so long as it adheres to the

core principle that all repatriations must be voluntary, based

on credible, meaningful pre- and post-repatriation inspec-

tions, and counseling by UNHCR.”

On March 26, 2002, the Department of State issued a

further press release, excerpted below, formally offering to take

Nationality, Citizenship and Immigration 25

in all qualifying Montagnard refugees in Cambodia who wished

to be resettled, and requesting that the Cambodian govern-

ment facilitate the move. At the end of March, the Cambodian

government agreed to the U.S. resettlement proposal. Some

200 Montagnards voluntarily returned to Vietnam. Approx-

imately 900 were moved by the UNHCR to Phnom Penh for

processing for resettlement in the United States. At the end

of 2002 most had been resettled in the United States.

The full texts of the March 21 and March 26 press releases

are available at www.state.gov/r/pa/prs/ps/2002/8871.htm and

www.state.gov/r/pa/prs/ps/2002/9009.htm.

****

The UN High Commissioner for Refugees has concluded on

the basis of March 21 and other incidents that, unfortunately,

conditions that would allow for a satisfactory voluntary repatria-

tion of the Montagnard population do not exist at this time.

In light of the urgent humanitarian needs of these asylum-

seekers, the United States has formally offered resettlement in the

United States to all among this group who qualify and wish to be

resettled. We request that the Royal Government of Cambodia

respond to this offer as quickly as possible.

We continue to support voluntary repatriation to Vietnam as

one of several durable solutions for this population. In this case

the solution should adhere to the core principle that all repatriations

must be voluntary, based on credible, meaningful, pre- and post-

repatriation inspections and counseling by the UN refugee agency.

We urge Cambodian and Vietnamese authorities to work with the

UN to establish a framework which would permit voluntary re-

patriation under these conditions. However, voluntary repatriation

on these terms is not now available and we urge the Cambodian

government to facilitate resettlement for those who seek it.

2. Haitian Refugees

In letters of October 3 and November 7, 2002, Congress-

woman Ileana Ros-Lehtinen requested information from the

26 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Department of State regarding U.S. policy toward Haitian

refugees. Excerpts from the responses of the Department

are set forth below.

The full text of the Department’s responses is available

at www.state.gov/s/l/c8183.htm.

Q: 1) Under U.S. law, aliens must show a well-founded fear that,

if returned home, they will be persecuted based on one of ﬁve

characteristics. Two of these categories are: political opinion or

membership in a particular social group. Could you elaborate on

what group of Haitians would not ﬁnd themselves in fear of

persecution on the basis of these two categories? How does the

Department evaluate “persecution” on these grounds? Please ela-

borate on what, in the Department’s assessment, would constitute

“credible fear”? What evidence is required to substantiate or meet

the “credible fear” requirement?

A: The Immigration and Naturalization Service (INS [or “Service”])

is responsible for making determinations on which asylum seekers

meet the U.S. deﬁnition of refugee. Such determinations are made

on an individual, case-by-case basis; it would thus be inappropriate

to say which groups of Haitians would or would not qualify for

asylum in the United States.

A fundamental question in any protection assessment is whether

the harm that an applicant has suffered amounts to persecution, a

term that has developed meaning through the common law process,

but that is not currently deﬁned in international treaties, domestic

statutes, or regulations. In December 2000, the Service and the

Department of Justice published a proposed regulation that offered

a regulatory framework for deﬁning “persecution.” The supplement

to that proposed rule describes in great detail how the Service and

Justice Department envisioned that the term “persecution” should

be evaluated. See 65 Fed. Reg. 76588 (Dec. 7, 2000). While that

proposed rule has not become effective by publication of an interim

ﬁnal rule, the section relating to the deﬁnition of persecution is

largely a summary of current case law, rather than a modiﬁcation

of or departure from current law.

The term “credible fear” means that “there is a signiﬁcant poss-

ibility, taking into account the credibility of the statements made

Nationality, Citizenship and Immigration 27

by the alien in support of the alien’s claim and such other facts as

are known to the ofﬁcer, that the alien could establish eligibility

for asylum under Section 208.” See 8 USC 1225(b)(1)(B)(v); 8 CFR

208.30. Furthermore, the Immigration Ofﬁcer Academy’s Asylum

Ofﬁcer Basic Training Course (June 21, 2002) offers the following

general considerations on how an asylum ofﬁcer should apply the

credible fear standard:

1. The standard of proof required to establish a credible fear

of persecution is lower than the standard of proof required

to establish past persecution or well-founded fear of future

persecution.

2. The ofﬁcer should draw all reasonable inferences in favor

of the applicant. The ofﬁcer is to accord the “beneﬁt of the

doubt” to the applicant.

3. When there is reasonable doubt regarding an issue, that

issue should be decided in favor of the applicant. When

there is reasonable doubt regarding the decision, the

applicant should be determined to have a credible fear

of persecution.

4. Disputed, close, or novel questions of law should be re-

solved in the manner most favorable to the applicant.

5. Where there is disagreement among the United States

Circuit Courts of Appeal as to the proper interpretation

of a legal issue, or where the claim otherwise raises an

unresolved issue of law, the interpretation most favorable

to the applicant is used when determining whether the

applicant meets the credible fear standard.

6. Questions as to how the standard is applied should be re-

solved by considering that it is a low-threshold test designed

to screen all persons who could qualify for asylum into the

hearing process.

Q: 2) The Foreign Relations Authorization Bill Conference Report

which the President signed into law September 30, makes per-

manent the prohibition on the involuntary return of refugees and

goes on to refer to a process genuinely calculated to identify and

protect refugees. Do you believe that the interviews conducted by

asylum ofﬁcers on board Coast Guard cutters meet the criteria of

28 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

a “process genuinely calculated to identify and protect refugees?”

Do you believe that asylum ofﬁcers on board these Coast Guard

cutters have the necessary background and expertise regarding the

situation in Haiti to be able to make an informed decision on the

status of Haitian refugees?

A: Yes. We believe that any interviews conducted by asylum ofﬁcers

on board Coast Guard cutters are “genuinely calculated to identify

and protect refugees.” We note that on-board screenings generally

use the “credible fear” standard, which is signiﬁcantly more gener-

ous than the refugee standard. If an asylum seeker meets the cred-

ible fear standard, they are generally transferred to a location on

land where a more in-depth refugee determination is done. Asylum

ofﬁcers receive extensive training on international and U.S. refugee

law and standards. They are also trained in effective interviewing

techniques and how to use country conditions information in

making their decisions. Up-to-date information about country con-

ditions in Haiti is made available to any asylum ofﬁcer respons-

ible for the screening of Haitian asylum seekers. The Department

of State also regularly offers additional information that may be

relevant to any such claim. In interdiction cases, the asylum ofﬁcer

recommends a decision, which must be reviewed in headquarters.

Q: Is it possible that Haitians who meet the criteria of refugees

are being returned to Haiti because they are unaware of the legal

requirements concerning refugees and do not voice their fear of

persecution when interdicted? Do you agree or disagree with the

proposal raised by one of the briefers on the second panel that,

at a minimum, in-country processing in Haiti should be rein-

stated? What challenges or obstacles exist to the renewal of such

an effort?

A: We are not aware of any interdicted Haitians who meet the

refugee deﬁnition but were returned to Haiti by the United States.

At this time, we do not believe that in-country processing for

Haitians would be appropriate, as current country conditions do

not warrant such action. In-country processing is an extraordinary

undertaking that requires, among other things, a special deter-

mination by the President. We do not believe that the current

circumstances for Haitians require renewal of such an effort.

Nationality, Citizenship and Immigration 29

Q: What steps does the U.S. take to monitor the status of those

Haitians returned to Haiti? What efforts, if any, are undertaken

to ensure that they are not subject to reprisal or persecution upon

their return?

A: The U.S. Embassy in Port-au-Prince does not currently monitor

the status of individual Haitians returned to Haiti; the Embassy,

however, continues to monitor political and social conditions

throughout the country. The Embassy’s work in this regard is

enhanced by its strong contacts with Haitian human rights organ-

izations, which would alert the Embassy if interdicted migrants

were being subjected to reprisals or persecution upon return.

Q: 3) Section 243(b)(3) of the Foreign Relations Authorization

Bill Conference Report which the President signed into law Sep-

tember 30 requires reporting on “the extent to which the United

States currently provides opportunities for resettlement in the

United States of individuals who are close family members of

citizens or lawful residents of the United States . . .” Is such an

opportunity afforded to Haitian refugees? In light of this provision,

will the Department be working with INS to address requests

such as those articulated by one of the briefers on the second

panel, that Haitian refugees be released locally to their families if

they have family members here in the United States?

A: Access to the U.S. refugee program is determined by categories

called Priorities established by the Department of State. Like all

others, Haitians are eligible for this program under the Priority

One category, which requires that either UNHCR or an Embassy

refer the person to the program. The criteria for access to the U.S.

refugee program are distinct from the criteria used by INS to

determine whether to release from detention an asylum-seeker in

the United States. The former involves determining whether an

individual is in need of immediate resettlement to the United States,

while the latter requires determining, under Section 212(d)(5) of

the Immigration and Nationality Act, whether to release an alien.

Q: 4) The United Nations High Commissioner for Refugees, Ruud

Lubbers, said in a statement earlier this year that U.S. domestic

policy regarding the treatment of Haitian refugees “amounts to

arbitrary detention” and that it goes against “the norms and

30 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

principles of international law.” Given the Department’s role in

reporting U.S. adherence to international agreements and stand-

ards, how would you rate the current detention policy?

A: The Department of State believes that INS detention practices

comply with all applicable international agreements and standards

regarding refugees and asylum seekers.

Q: In light of reports of rapes, for example, by INS guards of

Haitian women at the Krome Detention Center, and the key role

the U.S. played in pressing for an investigation on sexual exploita-

tion of refugees in West Africa, what efforts has the Department

undertaken with INS to address this grave matter and ensure the

safety and well-being of the detainees? Given the U.S. role in

working toward a code of conduct to be implemented by UN

personnel and NGOs involved in refugee work, is the Department

working with the INS toward such a code of conduct for the

treatment of refugees in the U.S.?

A: The Department of State is in regular communication with INS

regarding the standards and procedures for the treatment of asylum

seekers and refugees in the United States. The INS has adopted

guidelines governing the detention of asylum seekers and believes

that these guidelines appropriately address issues relating to their

treatment in detention. These detention standards mandate that

each facility have a grievance procedure whereby detainees are

able to ﬁle formal complaints and appear before a committee to

present their case. In addition, when a detainee makes an allegation

of serious ofﬁcial misconduct, such as rape, the INS Ofﬁce of

Internal Audit must be notiﬁed as well as the Ofﬁce of the Inspector

General of the Department of Justice. These ofﬁces are responsible

for conducting investigations of alleged misconduct.

Q: Please describe the role of U.S. personnel stationed at our

Caribbean posts in providing for the safety of Haitian refugees in

these third countries. Please describe both bilateral efforts with

the host governments, as well as the relationship with UNCHR

personnel in these countries.

A: Providing for the safety of Haitian refugees in third countries is

normally the responsibility of the authorities in those countries. U.S.

personnel stationed at our Caribbean posts engage with the host

Nationality, Citizenship and Immigration 31

governments on a broad range of issues, including refugees, human

rights, and migrant populations when there are issues of concern.

We are not aware of any signiﬁcant numbers of Haitian re-

fugees or applicants for political asylum in other Caribbean nations.

There are, however, signiﬁcant numbers of Haitian migrants in

the Dominican Republic and the Bahamas. These countries deter-

mine who among these populations are refugees according to their

domestic legislation and international agreements and standards.

UNHCR covers refugee protection issues in the Caribbean from

its ofﬁce in Washington: UNHCR recently sent a Washington repre-

sentative to the Dominican Republic for six weeks to look into the

condition and circumstances of Haitians there. It also has a group

of “honorary liaisons” (private persons who report to UNHCR

relevant developments on refugees) throughout the region. The

Department, through the Bureau of Population, Refugees and Mi-

gration, is in regular contact with the UNHCR ofﬁce in Washington

regarding the treatment of Haitians and other non-citizens, who

may be asylum seekers or refugees in a Caribbean host country.

****

3. U.S.-Canada Agreement Covering Third-Country Asylum

Claims at the Border

On December 5, 2002, the United States and Canada signed

the Agreement for Cooperation in the Examination of Refugee

Status Claims from Nationals of Third Countries. The agree-

ment provides that each country may return to the other

country individuals claiming refugee status at a land border

port of entry. As a result, third-country nationals arriving at

the U.S. land border from Canada may, with certain excep-

tions, be returned to Canada and vice versa. The country to

which the individual is returned will then adjudicate the

refugee status claim. The agreement includes, consistent

with U.S. humanitarian tradition, a broad exception to such

return for the purpose of promoting family reuniﬁcation,

especially for those who are transiting the United States to

join families in Canada.

32 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Under U.S. law the agreement is consistent with the

Immigration and Nationality Act, which provides an exception

to the right of an alien to apply for asylum where, pursuant

to a bilateral or multilateral agreement, the alien may be

removed to a country where the alien’s life or freedom would

not be threatened on account of one of ﬁve grounds for

granting asylum and where the alien would have access to a

“full and fair procedure for determining a claim to asylum.”

8 U.S.C. § 1158(a)(2)(A). Both the United States and Canada

have such procedures, which fully comply with requirements

of the 1967 Protocol Relating to the Status of Refugees for

determining claims for refugee status and for observing the

obligation not to return refugees to a country where they

would face persecution (non-refoulement). In addition, Article

6 of the agreement provides that either country may at its

own discretion examine any refugee status claim made to

that country where it determines that it is “in its public

interest to do so.” Excerpts below set forth other key articles

of the agreement.

The full text is available at www.state.gov/s/l/c8183.htm.

****

Article 1

1. In this Agreement,

A) “Country of Last Presence” means that country, being

either Canada or the United States, in which the refugee

claimant was physically present immediately prior to mak-

ing a refugee status claim at a land border port of entry.

****

D) “Refugee Status Claimant” means any person who

makes a refugee status claim in the territory of one of the

Parties.

E) “Refugee Status Determination System” means the sum

of laws and administrative and judicial practices employed

Nationality, Citizenship and Immigration 33

by each Party’s national government for the purpose of

adjudicating refugees’ status claims.

****

2. Each Party shall apply this Agreement in respect of family

members and unaccompanied minors consistent with its

national law.

Article 2

This Agreement does not apply to refugee status claimants who

are citizens of Canada or the United States or who, not having

a country of nationality, are habitual residents of Canada or the

United States.

Article 3

1. In order to ensure that refugee status claimants have access

to a refugee status determination system, the Parties shall

not return or remove a refugee status claimant referred by

either Party under the terms of Article 4 to another country

until an adjudication of the person’s refugee status claim has

been made.

2. The Parties shall not remove a refugee status claimant returned

to the country of last presence under the terms of this

Agreement to another country pursuant to any other safe third

country agreement or regulatory designation.

Article 4

1. Subject to paragraphs 2 and 3, the Party of the country of last

presence shall examine, in accordance with its refugee status

determination system, the refugee status claim of any person

who arrives at a land border port of entry on or after the

effective date of this Agreement and makes a refugee status

claim.

2. Responsibility for determining the refugee status claim of

any person referred to in paragraph 1 shall rest with the Party

34 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

of the receiving country, and not the Party of the country of

last presence, where the receiving Party determines that the

person:

(a) Has in the territory of the receiving Party at least one

family member who has had a refugee status claim granted

or has been granted lawful status, other than as a visitor,

in the receiving Party’s territory; or

(b) Has in the territory of the receiving Party at least one

family member who is at least 18 years of age and is not

ineligible to pursue a refugee status claim in the receiving

Party’s refugee status determination system and has such a

claim pending; or

(d) Arrived in the territory of the receiving Party:

(i) With a validly issued visa or other valid admission

document, other than for transit, issued by the receiving

Party; or

(ii) Not being required to obtain a visa by only the receiving

Party.

3. The Party of the country of last presence shall not be required

to accept the return of a refugee status claimant until a ﬁnal

determination with respect to this Agreement is made by the

receiving Party.

4. Neither Party shall reconsider any decision that an individual

qualiﬁes for an exception under Articles 4 and 6 of this

Agreement.

Article 5

In cases involving the removal of a person by one Party in tran-

sit through the territory of the other Party, the Parties agree as

follows:

(a) Any person being removed from Canada in transit through

the United States, who makes a refugee status claim in the

United States, shall be returned to Canada to have the

refugee status claim examined by and in accordance with

the refugee status determination system of Canada.

Nationality, Citizenship and Immigration 35

(b) Any person being removed from the United States in transit

through Canada, who makes a refugee status claim in

Canada, and:

(i) whose refugee status claim has been rejected by the

United States, shall be permitted onward movement

to the country to which the person is being removed;

(ii) who has not had a refugee status claim determined by

the United States, shall be returned to the United States

to have the refugee status claim examined by and

in accordance with the refugee status determination

system of the United States.

****

4. North Korean Refugees

On June 21, 2002, Arthur E. Dewey, Assistant Secretary of

State for the Bureau of Population, Refugees and Migration,

testiﬁed before the Senate Judiciary Subcommittee on Immi-

gration. His testimony, excerpted below, addressed concerns

about China’s actions regarding thousands of North Koreans

crossing into China searching for food or work or ﬂeeing

persecution. He also addressed the challenges posed by

North Koreans seeking refuge in embassies and consulates

and explained that U.S. diplomatic personnel cannot grant

asylum on a U.S. diplomatic compound. Asylum in the United

States can be requested only by an applicant who is physically

present in the United States or at a U.S. border.

The full text of Assistant Secretary Dewey’s testimony

is available at http://usinfo.state.gov/regional/ea/easec/

dewey.htm.

****

As you know, the Democratic People’s Republic of Korea (DPRK)

is among the most repressive regimes in the world. . . .

****

36 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Accordingly, we remain extremely concerned about the

thousands of North Koreans who have crossed into China in search

of food and work or to ﬂee persecution. We are aware that China

has historically allowed the presence of North Koreans in China

and recognize that many seek only temporary shelter in China and

then return voluntarily to North Korea. That said, we are also

aware that all unauthorized border crossing are crimes that

leave returnees vulnerable to persecution. Because of this, we are

troubled by China’s refusal to grant the UN High Commissioner

for Refugees (UNHCR) access to the region to determine who

among the DPRK migrants may require protection as refugees.

We are particularly concerned by continuing reports that North

Korean are being forced back from China to North Korea where

they may face harsh punishment and according to some reports,

execution. In recent days, we, as well as other nations, are also

faced with a new phenomenon where North Koreans have begun

taking desperate measures, including scaling walls of embassies

and consulates in Beijing and Shenyang, seeking refuge. Given the

heightened security situation throughout the world, you can see

how these desperate measures further exacerbate an already

distressing and dangerous situation. But I feel it’s important to

reiterate that there are no guarantees for North Koreans who seek

refuge in third country diplomatic compounds and they are putting

themselves at great risk. In a post 9–11 world, no diplomatic

compound will tolerate unidentiﬁed persons breaking through

security for any reason. Moreover, it’s also important to note that

U.S. diplomatic personnel are not authorized to grant asylum to

asylum seekers entering a U.S. compound. Under U.S. law, asylum

in the United States can be requested only by an applicant who is

physically present in the United States or at a U.S. border. It cannot

be requested on an individual’s behalf, or by a third party. The

U.S. does not grant “diplomatic asylum,” which the United States

does not recognize as a rule of international law.

That said, we are pleased that most cases involving North

Koreans have been resolved through bilateral negotiations with

the Government of China for onward resettlement to South Korea,

where they are entitled to citizenship. Nonetheless, 20 still remain

in the South Korean Embassy awaiting safe passage to South Korea

Nationality, Citizenship and Immigration 37

and 2 remain in the Canadian Embassy. One person forcibly

removed from the South Korean Embassy remains in Chinese

hands.

We are also extremely concerned that Chinese police entered

uninvited onto the premises of the South Korean Embassy in

Beijing. We regard the inviolability of diplomatic and consular

premises as a bedrock principle that is essential to the conduct of

international relations, and we expect all nations to abide abso-

lutely by their solemn legal obligations regarding such inviolability

under the Vienna conventions.

Under normal circumstances where the host government has

made it possible for people to claim asylum in-country, and/or

allowed UNHCR access to persons of concern to conduct refugee

status determinations, a person seeking resettlement in a third

country should contact UNHCR, the lead UN organization that

handles refugee protection. In most situations, the host government

and/or UNHCR are able to address asylum requests, grant refugee

status (if warranted), and ensure protection is provided to asylum

seekers until their claims have been adjudicated. If third country

resettlement is needed, in most cases U.S. policy is to accept from

UNHCR referrals of cases which are then adjudicated by the U.S.

Immigration and Naturalization Service (INS) to determine if the

person is a refugee and admissible under our law. For security

reasons, however, U.S. ofﬁcials in the ﬁeld will not consider

UNHCR resettlement referrals of North Koreans without prior

Department of State and INS approval. This policy has been in

effect since the mid-1990s.

The Ofﬁce of the High Commissioner in Beijing has the mand-

ate to determine what protection or assistance these people may

need while in the PRC. We are continuing to urge China to adhere

to their international obligations in the 1967 Protocol relating to

the status of refugees and to cooperate with the UNHCR to ensure

protection for those DPRK migrants that may qualify for refugee

status. The Department is also currently in the midst of a policy

review on North Koreans in China.

As far as our refugee admissions program is concerned, I believe

you are aware that it was hard hit in the aftermath of September

11, as we made the difﬁcult adjustments to assure its integrity and

38 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

to ensure our security as a nation. Nonetheless, even in the context

of the current war, this Administration remains committed to

keeping the door open to refugees.

****

Consular and Judicial Assistance and Related Issues 39

CHAPTER 2

Consular and Judicial Assistance

and Related Issues

A. CONSULAR NOTIFICATION, ACCESS, AND ASSISTANCE

1. Consular Notiﬁcation and U.S. Criminal Prosecution

a. In U.S. courts: Javier Suarez Medina

Javier Suarez Medina, a Mexican national, was arrested in

December 1988 for killing an undercover narcotics ofﬁcer with

an Uzi submachine gun during a controlled drug transaction.

He was tried in 1989, convicted of murder in the course of

committing or attempting to commit a robbery, and sentenced

to death. The Government of Mexico ﬁrst contacted the

Department of State concerning Mr. Suarez in 1997, stating

that it had not learned of Mr. Suarez’s case until after his

conviction. On December 12, 1997, David R. Andrews, then

Legal Adviser to the U.S. Department of State, wrote to

George W. Bush, then governor of Texas, transmitting a

diplomatic note received from the Government of Mexico

asserting that Suarez, a Mexican national, had not been

informed of his right to have a Mexican consular ofﬁcial

notiﬁed of his detention, in violation of Article 36 of the

Vienna Convention on Consular Relations and Article VI of

the Consular Convention in effect between Mexico and the

United States of America.

Suarez’s execution was postponed and ultimately

rescheduled for August 14, 2002. In the meantime, the

40 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

International Court of Justice had issued its decision in

LaGrand (Germany v. U.S.), 1999 I.C.J. 28 (March 5), regarding

remedies in certain cases involving violations of Article 36 of

the Vienna Convention. See Digest 2000 at 43–93; Digest 2001

at 21–24.

Following a further exchange of diplomatic notes between

the Embassy of Mexico and the U.S. Department of State,

William H. Taft, IV, Legal Adviser for the U.S. Department of

State, wrote to Gerald Garrett, chairman of the Texas Board

of Pardons and Paroles, which was then considering a

clemency petition on behalf of Suarez. The letter, dated

August 5, 2002, requested that the Board give speciﬁc

attention to the failure of Texas authorities to advise Mr.

Suarez of the right to have consular ofﬁcials notiﬁed of his

arrest and to representations made by the Government of

Mexico on Suarez’s behalf. The letter noted the ICJ decision

in LaGrand and stated that “a careful consideration” by the

Board of the conviction and sentence of Suarez in light of

the rights set forth in the Vienna Convention would be

consistent with the “review and reconsideration” of such

rights described by the ICJ in LaGrand. The letter attached

a copy of a Mexican diplomatic note of July 17, 2002 and

the LaGrand decision. The text of the letter is set forth below

in full.

****

The Department of State understands that the Board is

currently considering a clemency petition on behalf of Javier

SUAREZ Medina, a Mexican national scheduled for execution on

Wednesday, August 14, 2002.

The Government of Mexico has written the Department about

this case to express its concern that Mr. Suarez was not advised

at the time of his arrest of his right to have a Mexican consular

ofﬁcial notiﬁed of his detention. Under Article 35(1)(b) of the

Vienna Convention on Consular Relations (“Vienna Convention”),

a treaty to which the United States and Mexico are parties, a

foreign national who is arrested or detained must be so notiﬁed

Consular and Judicial Assistance and Related Issues 41

“without delay.” The Department of State places great importance

on our consular notiﬁcation obligation, the reciprocal observance

of which serves to protect all Americans who travel or live abroad.

We have worked closely with the State of Texas in recent years to

improve compliance with this obligation by state and local ofﬁcials.

We have also been in touch with the Ofﬁce of the Governor

for the State of Texas about this case since 1997, when it ﬁrst

came to our attention. According to information we received from

the Governor’s ofﬁce in 1998, arresting and detaining ofﬁcials in

Dallas learned that Mr. Suarez was a Mexican citizen shortly after

his 1988 arrest, in the course of his tape-recorded confession. We

understand that Mr. Suarez nevertheless was not advised of his

right to request consular assistance from Mexican consular ofﬁcials

at any time prior to his trial. The information available to us at

this time indicates that Mexican consular ofﬁcials ﬁrst learned

about Mr. Suarez’s case shortly after his sentencing.

The information we have received from Texas authorities

indicates that there was a failure to comply with the consular

notiﬁcation obligation of Article 36(1) of the Vienna Convention.

If Mr. Suarez had been so advised, in accordance with the Con-

vention’s requirements, and then requested that Mexican consular

ofﬁcials be notiﬁed, it would have been incumbent upon Texas

authorities to notify the nearest Mexican consulate of the fact of

Mr. Suarez’s detention, so that the consulate could have provided

whatever consular assistance it deemed appropriate. In view of

the above facts, the Department of State will convey to the Govern-

ment of Mexico on behalf of the United States the Department’s

deepest regrets over the failure of consular notiﬁcation in this

case.

In addition, we understand that the Board has before it a

pending clemency request for Mr. Suarez that raises the issue of

consular notiﬁcation. We respectfully request that, in the course

of its careful consideration of this petition, the Board give speciﬁc

attention to the failure of authorities to provide Mr. Suarez

with consular notiﬁcation pursuant to Article 36 of the Vienna

Convention. We further request that the Board also give speciﬁc

consideration to the representations made by the Government of

Mexico on Mr. Suarez’s behalf.

42 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

In this regard, we also wish to call the Board’s attention to the

decision of the International Court of Justice in Germany v. United

States (LaGrand), a case in which the Federal Republic of Germany

contended that the United States violated Article 36 of the Vienna

Convention in connection with the arrest trial and execution by

the State of Arizona of the two LaGrand brothers, who were

German nationals. In that case, as in the case of Mr. Suarez, it

was not disputed that the United States had not acted in accordance

with the requirements of Article 36(1). In its decision, the Court

also stated that, under the circumstances presented, Article 36(2)

was violated “by not permitting the review and reconsideration,

in the light of the rights set forth in the Convention, of the con-

victions and sentences of the LaGrand brothers. . . .”

It is with these points in mind that the Department respectfully

requests that, as part of the Board’s consideration of Mr. Suarez’s

petition, it speciﬁcally consider in light of the rights set forth in

the Vienna Convention, the conviction and sentence of Mr. Suarez.

We believe that, in light of the unique role of the Texas Board of

Pardons and Paroles, a careful consideration of this issue by the

Board would be consistent with the “review and reconsideration”

described by the International Court of Justice in its decision

construing the Vienna Convention in LaGrand. We recommend

that, in rendering its decision, regardless of the outcome, the Board

consider preparing a written statement setting out the Board’s

consideration of this issue. Such a written statement would be

useful in establishing that the Board in fact reviewed and

reconsidered Mr. Suarez’s conviction and sentence in light of the

failure of consular notiﬁcation, should that be necessary in any

subsequent legal proceedings.

I enclose copies of the correspondence the Department has

received from the Government of Mexico and the Court’s decision

in LaGrand. At the suggestion of your staff, we are providing

copies of this letter separately to all Board members.

Thank you for your careful attention to this important issue.

Also on August 5, Mr. Taft sent a copy of the letter and

attachments to Governor Rick Perry. On August 6, 2002,

Consular and Judicial Assistance and Related Issues 43

Mr. Taft forwarded to the Board a copy of a further diplomatic

note received that day from the Government of Mexico in

which the Government of Mexico detailed the efforts of its

consular ofﬁcials to learn the nationality of Mr. Suarez and

urged a stay of execution.

In a letter of August 14, 2002, excerpted below, the chair-

man of the Texas Board of Pardons and Paroles responded

to the Legal Adviser. The letter described the power of the

Board and the information reviewed by the Board in reaching

its decision by a vote of 17 to 0 not to recommend to the

governor of Texas a commutation or lesser penalty, and by

16 to 1, not to recommend a 90-day reprieve of execution.

Mr. Suarez was executed as scheduled on that date.

The full texts of the communications between the Legal

Adviser and the Board and Governor Perry are available at

www.state.gov/s/l/c8183.htm.

****

. . . Under Article 4, Section 11 of the Texas Constitution, the

Board has broad authority to review all information relevant to

an individual’s conviction and sentence and to recommend that

the Governor grant inter alia a full pardon, pardon for innocence,

reprieve of execution, or commutation of sentence to a lesser

penalty (including time served.)

Under the Texas Constitution, the Board of Pardons and

Paroles by a written vote of a majority of all the Board members

(17 at present) may recommend that the Governor grant clemency.

In death penalty cases, without the written recommendation of

the Board members, the Governor is limited to granting a one-

time, 30-day reprieve of execution.

In furtherance of exercising that authority, the Board members

may consider any and all information provided, even information

that was not available to the courts or that was not considered by

the courts at trial or on appeal. The Board does not place any

limitations on the information which may be submitted by the

inmate or interested parties, and by law solicits input from the

state prosecutor, the trial judge, and law enforcement, and survivors

44 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

of the victim of the crime. The Board members also consider letters

of support and protest from other interest groups and from the

general public.

In this instance, Javier Suarez Medina had requested through

his attorney Lydia Brandt a commutation of the death sentence to

a lesser penalty or a 90-day reprieve of the execution date. The

petition was received on July 22, 2002. The Board members on

August 13, 2002, completed their review of Mr. Medina’s clemency

petition and decided by a vote of 17 to 0 not to recommend to the

Governor a commutation of the sentence to a lesser penalty. The

Board members also decided by a vote of 16-1 not to recommend

that the Governor issue a 90-day reprieve of execution.

The Board members have been provided authority under the

Texas Constitution to recommend that the Governor grant relief

if they decide it is appropriate, for example, if Javier Suarez Medina

had been prejudiced by the apparent failure of Dallas County law

enforcement ofﬁcials to inform him of his right to request Mexican

Consular assistance.

The Board has in place a process for full consideration of

petitions for clemency from death row inmates (see 37 TAC

§§ 45.43 and 143.57), which include full opportunity for the inmate

or attorney to present information in writing (including video-

tapes) to the Board. Those rights include an interview with a

Board member designated by the Chair. Mr. Medina’s attorney

requested such an interview for him. A Board member interviewed

Mr. Medina, and a summary was distributed to each Board

member for consideration.

In this particular case, Mr. Medina and his attorney had a full

opportunity to provide all available information to the Board

members. As indicated in my prior letter, the Board members had

before them and carefully evaluated information from not only

Javier Suarez Medina through his attorney, Lydia Brandt, but also

from the Mexican Consular Ofﬁcials, presented through their attor-

ney Sandra Babcock, on the requirement of consular notiﬁcation

under Article 36 of the Vienna Convention on Consular Relations.

Other information was received and considered as well as

from the Dallas County Criminal District Attorney, the judge of

the Dallas County Criminal District Court Number Two, the Dallas

Consular and Judicial Assistance and Related Issues 45

County Sheriff, and the Dallas Chief of Police, as well as many

letters of support and protest from interest groups and the public.

On August 8, 2002, along with the Board’s General Counsel

and Clemency staff, I met in my ofﬁcial capacity with Mexican

Consular Ofﬁcials and Ms. Babcock. From representations

made, this meeting was requested with the full knowledge and

consent of Mr. Medina’s attorney, Lydia Brandt. Mexican Consular

Ofﬁcials present at the meeting were Mr. Francisco Javier Alejo,

Consul General, and Mr. Vicente Sanchez, Deputy Consul, both

from Austin. Also present was Ms. Sandra Babcock, their Legal

Counsel.

During the meeting, which lasted over one hour, Mr. Alejo

and Ms. Babcock made detailed oral presentations, and provided

supporting documentation, including afﬁdavits, with emphasis and

speciﬁc discussion on the concerns of the Mexican Government

regarding the apparent violation of the consular notiﬁcation

requirement of Article 36 of the Vienna Convention on Consular

Relations.

Following the meeting, I requested that Ms. Babcock submit a

synopsis of her presentation on behalf of the Mexican Government

at the meeting. She did submit this letter, and Board members

were provided a copy. They reviewed and considered the

supplemental information. In addition, following the meeting, in

order to give the Board members adequate time to review and

consider the material submitted on the consular notiﬁcation issue,

I made the decision to extend the earlier request for written . . .

submissions to Tuesday, August 13 (from Monday, August 12).

In summary, all 17 Board members received and carefully

reviewed information from attorneys for Mr. Medina and from

ofﬁcials of the Mexican Consulate, including the materials

regarding consular notiﬁcation under Article 36 of the Vienna

Convention on Consular Relations.

****

b. Gerardo Valdez

In 2001, William H. Taft, IV, Legal Adviser of the Department

of State, wrote to the Oklahoma Pardon and Parole Board

46 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

and Governor Frank Keating of Oklahoma concerning con-

sideration of a petition for clemency on behalf of Gerardo

Valdez, a Mexican national convicted of murder and

sentenced to death. Valdez v. Oklahoma, Okla. Crim. App.

No. PCD-2001-1011. Valdez had been arrested in July 1989

and, according to the ofﬁce of the Attorney General of

Oklahoma, arresting and detaining ofﬁcials had learned that

he was a Mexican citizen within a day of his arrest. The

Government of Mexico contacted the Department of State

indicating that it had only become aware of Valdez’s detention

in April 2001.

In a letter to Governor Keating of June 13, 2001, Mr. Taft

drew attention to the lack of consular notiﬁcation in violation

of the Vienna Convention on Consular Relations (“VCCR”)

and requested that he give careful consideration to a pending

clemency request by Valdez. In a subsequent letter of July 11,

2001, following the decision by the ICJ in LaGrand, Mr. Taft

speciﬁcally requested the governor to consider whether the

VCCR violation had had any prejudicial effect on Mr. Valdez’s

conviction or sentence. After a full consideration of all factors,

including the lack of consular notiﬁcation, Governor Keating

denied clemency on July 20, 2001, and explained his decision

in a letter to the President of Mexico. See Digest 2001 at

24–31.

On August 22, 2001, Valdez ﬁled a second petition for

post-conviction relief in the Court of Criminal Appeals for

the State of Oklahoma. The court granted an accompanying

motion of the Mexican government to ﬁle an amicus brief

and stayed the order of execution pending the outcome of

the post-conviction proceedings. On May 1, 2002, the court

granted the petition and remanded the case to the District

Court of Grady County for resentencing. 46 P.3d 703 (Okla.

Crim. App. 2002). In doing so, the court rejected Valdez’s

claims that, under the ICJ decision in LaGrand, rules of

procedural default could not be applied in the case. In the

court’s view, this argument was foreclosed by the U.S.

Supreme Court’s per curiam decision in Breard v. Greene, 523

U.S. 371 (1998). The Oklahoma court concluded, however,

Consular and Judicial Assistance and Related Issues 47

that new evidence provided by the Mexican government

on Valdez’s social, mental, and health history provided a

basis for concluding that Valdez had been denied effective

assistance of counsel in his criminal case. Resentencing was

pending at the end of 2002. Excerpts below from the court

of appeals opinion provide its analysis.

****

The 1995 Amendments to the Capital Post-Conviction

Procedure Act greatly circumscribed this Court’s power to apply

intervening changes in the law to post-conviction applications.

(citation omitted). Now under the Act, for an alleged intervening

change in the law to constitute sufﬁcient reason for raising a claim

in a subsequent proceeding to secure relief, a petitioner must show

the intervening change in the law was unavailable at the time of

his direct appeal or his direct appeal or his original application.

22 O.S. 2001 § 1089(D)(9). This Petitioner cannot do.

****

. . . Whether the treaty creates individually enforceable rights

or not, the United States Supreme Court in Breard [v. Greene,

523 U.S. 371 (1998) ] speciﬁcally rejected the contention that the

doctrine of procedural default was not applicable to provisions of

the Vienna Convention and until such time as the supreme arbiter

of the law of the United States changes its ruling, its decision in

Breard controls this issue. Petitioner cannot be afforded review

under our statues on the ground that the ICJ’s interpretation of

the Convention in LaGrand constitutes a new rule of constitutional

law.

****

. . . It is evident from the record before this Court that the

Government of Mexico would have intervened in the case, assisted

with Petitioner’s defense, and provided resources to ensure that he

received a fair trial and sentencing hearing.

While we have no doubt the evidence discovered with the

assistance of the Mexican Consulate could have been discovered

48 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

earlier, under the unique circumstances of this case, it is plain that

the evidence was not discovered due to trial counsel’s inexperience

and ineffectiveness. . . .

Although this Court has addressed claims relating to trial

counsel’s effectiveness in his prior appeals, in those appeals, this

Court was not presented with a claim that trial court failed to

discover evidence relating to Petitioner’s social, mental, and health

history. This Court was not presented with a claim that trial counsel

did not inform petitioner he could have obtained ﬁnancial, legal

and investigative assistance from his consulate. We believe trial

counsel, as well as representatives of the State who had contact

with Petitioner prior to trial and knew he was a citizen of Mexico,

failed in their duties to inform Petitioner of his right to contact his

consulate. In hindsight, and so many years following Petitioner’s

conviction and direct appeal, it is difﬁcult to assess the effect

consular assistance, a thorough background investigation and

adequate legal representation would have had. However, this Court

cannot have conﬁdence in the jury’s sentencing determination and

afﬁrm its assessment of a death sentence where the jury was not

presented with very signiﬁcant and important evidence bearing

upon Petitioner’s mental status and psyche at the time of the

crime. Absent the presentation of this evidence, we ﬁnd there is a

reasonable probability that the sentencer might “have concluded

that the balancing of aggravating and mitigation circumstances

did not warrant death.” Strickland [v Washington.] 466 U.S. [668]

at 695.

****

2. Inter-American Commission on Human Rights:

Case of Ramon Martinez Villareal

On October 15, 2001, the Inter-American Commission on

Human Rights issued a preliminary report with respect to

Ramon Martinez Villareal, pertaining to his conviction and

sentencing to capital punishment. Commission Report

No. 114/01. The United States submitted comments on the

preliminary report, dated December 26, 2001. In that sub-

mission, set forth in full below, the United States argued

Consular and Judicial Assistance and Related Issues 49

that the petition should be dismissed and the preliminary

report withdrawn. It also addressed the Report’s conclusion

that the petitioner’s conviction and sentence were inherently

ﬂawed because of lack of consular notiﬁcation at the time of

his arrest.

The United States has reviewed the Commission’s Report

No. 114/01, including the two recommendations included therein.

As the United States has previously indicated, the petition submitted

in Case No. 11.753 should have been deemed inadmissible for,

inter alia, the following reasons:

1. The American Declaration on the Rights and Duties of Man

(“Declaration”) is no more than a recommendation to the

American States that does not create legally binding obligations.

Therefore, the Declaration cannot be “violated” as that term

is used in the Report.

2. Even if it were possible for a State to “violate” the Declaration,

the petition does not state facts that would constitute a violation

of any provision of the Declaration.

3. The meaning and extent of U.S. obligations pursuant to the

Vienna Convention on Consular Relations does not fall within

the competence of the Commission.

On this basis, the United States respectfully requests that the

Commission reconsider the legal basis of its conclusions and

recommendations, withdraw Report No. 114/01, and order the

petition dismissed.

The United States notes that this case concerns a petitioner

who has raised numerous arguments as to why he allegedly did

not receive a fair trial or due process in connection with his

conviction and sentence of capital punishment for two murders

committed in the course of a robbery. The Petitioner does not

claim that he did not kill the two victims involved. His claims,

including claims that he did not understand the proceedings against

him and that his due process rights were violated, have been fully

reviewed by the courts of the United States. The question of his

50 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

mental competency has been carefully reviewed by the courts

of the United States. He continues to seek relief through domestic

procedures available to him.

Notwithstanding the extensive protections petitioner has been

accorded, the Report concludes that petitioner’s conviction and

sentence are inherently ﬂawed because he was not advised at the

time of his arrest that he could request consular assistance from

Mexico. Such notiﬁcation was required under Article 36 of the

Vienna Convention on Consular Relations. The United States ﬁnds

the reasoning of the Report in this respect unpersuasive and

unsupported by relevant precedent. To the extent that the Report

adopts the views of the Inter-American Court of Human Rights

expressed in that Court’s advisory opinion OC-l6, the Commission

should be aware that the United States fundamentally disagrees

with the Court’s reasoning and conclusions in that proceeding.

Accordingly, the United States does not agree with the Report

insofar as it is premised on the assumption that any beneﬁts

accruing to Mr. Villareal under Article 36(1)(b) of the Vienna

Convention on Consular Relations “constituted a fundamental

component of the due process standards to which he was entitled

under Articles XVIII and XXVI of the American Declaration.”

Likewise, the United States does not agree with the Report’s

conclusion that the failure to advise Mr. Villareal of his right

to consular notiﬁcation in accordance with Article 36(1)(b) of

the Vienna Convention “constituted [a] serious violation[] of

Mr. Martinez Villareal’s rights to due process and to a fair trial

under these provisions.”

As noted in the United States’ submission before the Inter-

American Court of Human Rights in OC-l6, as well as previous

submissions to the Commission in this case, the consular

notiﬁcation obligation of the Vienna Convention establishes neither

a prerequisite for the observance of human rights in criminal cases,

nor an independent source of individual human rights. The

Commission itself concedes in Paragraph 59 of its Report that it

“does not consider that it has competence to adjudicate upon the

State’s responsibility for violations of the Vienna Convention

on Consular Relations per se.” To the extent that the Report

nevertheless suggests that a violation of the obligations of Article

Consular and Judicial Assistance and Related Issues 51

36 of the Vienna Convention requires that a criminal defendant

be accorded a new trial or set free, it is unsupported by competent

legal authority and beyond the appropriate scope of the Com-

mission’s competence.

The United States nevertheless reiterates that it takes its

obligations under the Vienna Convention regarding consular

notiﬁcation and access very seriously. Since 1998, the United States

has undertaken an intensive effort to improve compliance by

Federal, state and local government ofﬁcials. That effort is ongoing

and has been permanently institutionalized. The Department of

State has published a 72-page booklet (Consular Notiﬁcation and

Access: Instructions for Federal, State and Local Law Enforcement

and Other Ofﬁcials Regarding Foreign Nationals in the United

States and the Rights of Consular Ofﬁcials to Assist Them, 1998),

a pocket card reference card for arresting ofﬁcials, and a training

video to assist with this effort, and continues to work closely with

state as well as federal ofﬁcials to ensure compliance with consular

notiﬁcation obligations.

On October 10, 2002, the Inter-American Commission

on Human Rights issued its ﬁnal report in the case.

Commission Report No. 52/02, Case No. 11.753. The IACHR

ratiﬁed its conclusion and reiterated its recommendations

set forth in the preliminary report, that the United States:

1. Provide Mr. Martinez Villareal with an effective

remedy, which includes a re-trial in accordance with

the due process and fair trial protections prescribed

under Articles XVIII and XXVI of the American

Declaration or, where a re-trial in compliance with

these protections is not possible, Mr. Martinez

Villareal’s release.

2. Review its laws, procedures and practices to ensure

that foreign nationals who are arrested or committed

to prison or to custody pending trial or are detained

in any other manner in the United States are informed

without delay of their right to consular assistance

and that, with his or her concurrence, the appropriate

52 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

consulate is informed without delay of the foreign

national’s circumstances, in accordance with the due

process and fair trial protections enshrined in Articles

XVIII and XXVI of the American Declaration. 

Villareal’s sentence in Arizona was commuted to life

imprisonment.

B. CHILDREN

1. International Child Abduction

a. Visa ineligibility for international child abduction

In a telegram of October 28, 2002, the Department of

State provided guidance to all diplomatic and consular

posts abroad to remind posts of visa ineligibility provi-

sions pertaining to aliens involved with international child

abductions to countries with whom the United States

does not have a treaty relationship under the Hague

Convention on the Civil Aspects of International Child

Abduction, T.I.A.S. 11670 (“Hague Convention”). Excerpts

below set forth the legal requirements to deny visas in

certain circumstances.

The full text of the telegram is available at www.state.gov/

s/l/c8183.htm.

****

2. VISA INELIGIBILITY AND CHILD ABDUCTION: As

posts are aware, the Department of State is committed to the

principle that the removal from or retention of a child outside

his or her country of habitual residence is wrong. When avail-

able, we rely on the Hague Convention on the Civil Aspects

of International Child Abduction (“Hague Convention”) to

facilitate the return of abducted children. The [Immigration

and Nationality Act (“INA”)] is designed to use visa ineligibility

Consular and Judicial Assistance and Related Issues 53

to help persuade abductors and others to return abducted child-

ren to the U.S. in situations where the Hague Convention is

unavailable.

3. INADMISSIBILITY UNDER 10(C): An alien may be in-

eligible for a visa under the INA’s section 212(a)(10)(C) (“10(C)”)

for one of four reasons. First, 10(C)(i) makes inadmissible any

alien who detains or withholds custody of an Amcit child out-

side the United States in violation of a custody order issued by

a U.S. Court. Second, 10(C)(ii)(I) makes inadmissible persons

known by the Secretary of State to have intentionally assisted

such an alien. Third, 10(C)(ii)(II) applies to persons known by

the Secretary of State to have intentionally provided material

support or safe haven to such an alien. Finally, 10(C)(ii)(III)

permits the Secretary of State to designate as inadmissible spec-

iﬁed relatives or agents of such an alien. Each of these provi-

sions is subject to the exceptions contained in 10(C)(iii) relating

to certain government ofﬁcials and cases covered by the Hague

Convention.

4. STRICT RULE UNDER 10(C)(i): Once post determines

that an alien who is applying for or is in possession of [a non-

immigrant visa] falls within the provisions of 10(C)(i), and that

none of the exceptions apply, post must ﬁnd the alien inadmissible.

This means that posts must refuse the visa or initiate visa revoca-

tion, unless the ineligibility is waived. Post may not condition a

determination of inadmissibility under 10(C)(i) on any considera-

tions other than whether the alien as a matter of fact is subject to

the ineligibility.

5. DEPARTMENTAL AUTHORITY UNDER 10(C)(II): The

INA’s sections 10(C)(ii)(I)&(II) require that the Secretary of State

know that a visa applicant described in these provisions has

intentionally assisted or provided safe haven or support to a child

abductor described in 10(C)(i) before the visa applicant can be

declared inadmissible. The authority to make this factual deter-

mination has not been delegated to consular ofﬁcers. Therefore,

posts are not authorized to determine alone whether an alien is

ineligible under these two subsections. Similarly, 10(C)(ii)(III)

permits the Secretary of State to designate as inadmissible aliens

who are related to or are agents of child abductors. Only the

54 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Secretary has discretionary authority to designate aliens inelig-

ible for visas under 10(C)(ii)(III); posts cannot make eligibility

determinations with respect to these applicants.

****

7. WAIVERS: The Department recognizes that there will be

occasions when issuing a visa to an alien otherwise inadmissible

under 10(C) might help secure return of an abducted child. In

such a case, post may consider either a [INA §] 212(d)(3)(A) waiver

or humanitarian parole; post cannot, however, decline to make an

inadmissibility determination that is required by law.

****

b. Deﬁnition of “custody” under Hague Convention on the Civil

Aspects of International Child Abduction

On November 20, 2002, the U.S. Court of Appeals for the

Ninth Circuit rejected assertion of custodial rights by a left-

behind parent under the Hague Convention on the Civil

Aspects of International Child Abduction (“Hague Con-

vention”) on the basis of a “ne exeat clause” in a Mexican

custody agreement. Arce Gonzalez v. Gutierrez, 311 F.3d 942

Cir. 2002). The couple in this case, both Mexican citizens,

were married in Mexico in 1992 and had two children. The

couple remained in Mexico; they separated in November

1998 and were divorced in 2000. The divorce agreement

provided that the children would “remain under the custody

and care” of their mother and that the father would have

certain visitation rights. It also provided that the father “must

grant full authorization according to law, until they reach

adult age, on every occasion that his minor children . . . seek

to leave the country accompanied by their mother . . . or any

other person.” According to the court of appeals, the parties

agreed that this ne exeat clause was to be construed as

“prohibiting Gutierrez [the mother] from taking the children

out of the country without Arce’s [the father’s] permission.”

In February 2001 Gutierrez took the children from Mexico to

Consular and Judicial Assistance and Related Issues 55

the home of her sister in San Diego, without the father’s

permission. Arce ﬁled a petition for the return of the children

under the International Child Abduction Remedies Act

(“ICARA”), 42 U.S.C. §§ 11601–11610, which implements the

Hague Convention in the United States. The U.S. District

Court for the Southern District of California found that the

children had been wrongfully removed in violation of the

father’s custody rights under the Convention and that no

afﬁrmative defenses to return had been established. It there-

fore ordered the children to be returned to Mexico. On appeal,

the Ninth Circuit reversed, explaining its analysis of the custody

issue as set forth in excerpts below (footnotes omitted).

****

The “key operative concept” of the [Hague] Convention is

that of “wrongful” removal. . . . Under the terms of the Convention,

a child’s removal is wrongful only if one of the parent’s custody

rights are breached.

Article 3 provides that a removal is wrongful if:

a) it is in breach of rights of custody attributed to a person,

an institution or any other body, either jointly or alone,

under the law of the State in which the child was habitually

resident immediately before the removal or retention; and

b) at the time of the removal or retention those rights were

actually exercised, either jointly or alone, or would have

been so exercised but for the removal or retention.

Convention, art. 3. Since no wrongful removal exists without

the possession ofcustodial rights by the parent seeking the child’s

return, the central questionwe must decide is whether Arce

possesses custodial rights as understood underthe Convention.



1. Text

Our inquiry begins with the text. . . . The Convention creates

an explicit distinction between rights of custody and rights of

access. Speciﬁcally, article 5 provides that:

56 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

For the purposes of this Convention—

a. “rights of custody” shall include rights relating to the care

of the person of the child and, in particular, the right to

determine the child’s placeof residence;

b. “rights of access” shall include the right to take a child for

a limited period of time to a place other than the child’s

habitual residence.

Convention, art. 5. Only a parent with rights of custody may

petition a courtfor an order of return as provided in article 12,

and as implemented in American law by ICARA. Convention,

art. 12; 42 U.S.C. § 11603(b). Although an order of return is not

available to him, a parent who holds only access or visitationrights

does not lack a remedy. He may, under article 21, “submit an

application to make arrangements for organizing or securing the

effective exercise of rights of access” to the Central Authority of

the State to which the child has been taken.

Here, Arce argues that he has custodial rights under the

Convention because the ne exeat clause of the divorce agreement

constitutes “the right to determine [his children’s] place of

residence.” We reject the argument. The “right” granted under a

ne exeat clause is, at most, a veto power. Croll v. Croll, 229F.3d

133, 140 (2d Cir. 2000). A parent with custodial rights has the

afﬁrmative right to determine the country, city, and precise location

where the child will live. This is one of the primary rights of a

custodial parent. By contrast, a ne exeat clause serves only to

allow a parent with access rights to impose alimitation on the

custodial parent’s right to expatriate his child.

****

c. International Parental Kidnapping Crime Act

(1) Constitutional challenge under Commerce Clause

The International Parental Kidnapping Crime Act (“IPKCA”),

18 U.S.C. § 1204, criminalizes the “remov[al] of a child from

Consular and Judicial Assistance and Related Issues 57

the United States or ret[ention] of a child (who has been in

the United States) outside the United States with intent to

obstruct the lawful exercise of parental rights.” In this case a

father took two of his children by a prior marriage to Germany

to live with him and his wife by a subsequent marriage. At

the time, he had temporary custody of one of the children

and no custody order pertaining to the second child. A

German court denied the mother’s petition pursuant to the

Hague Convention to return the children. Subsequently, the

father was indicted for four counts of kidnapping under

the IPKCA and entered a conditional guilty plea to the two

counts relating to retention in a foreign country. On appeal,

the father argued that the retention provision of the IPKCA

was unconstitutional because it did not fall within the Com-

merce Clause of the U.S. Constitution. The court of appeals

upheld the conviction. U.S. v. Cummings, 281 F.3d 1046 (9

Cir. 2002). Excerpts below provide the court’s analysis

upholding the constitutionality of the statute.

****

. . . The Commerce Clause gives Congress the power to

“regulate Commerce with foreign Nations, and among the several

States, and with the Indian Tribes.” U.S.Const. art. 1, § 8, cl. 3.

****

The district court held that 18 U.S.C. § 1204(a) fell within

Congress’sability to regulate the channels of commerce [one of

three categories set forth in U.S. v. Lopez, 514 U.S. 549, 558–559

(1995)] Speciﬁcally, the statute criminalizes the actions of one

who “removes a childfrom the United States or retains a child

(who has been in the United Sates) outside the United States with

intent to obstruct the lawful exercise of parental rights.” 18 U.S.C.

§ 1204(a). By its terms, a child retained in a foreign country has

to have been taken from the United States to another country if

§ 1204(a) is to apply. Cummings could not wrongfully retain his

children in Germany without traveling there by some means of

foreign commerce.

58 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Congress’s power to regulate the use of the channels of

commerce is well-established. . . .

[The father] argues that these principles do not speak to the

constitutionality of the retention portion of § 1204(a) because

they target conduct directly involved in the movement of people

or things in commerce. He argues that once the movement ceases,

the channels of commerce are no longer affected. . . . We are

unpersuaded. The cessation of movement does not preclude

Congress’s reach if the person or goods traveled in the channels

of foreign commerce. . . . We aresatisﬁed that Congress can act

to prohibit the transportation of speciﬁed classes of persons in

foreign commerce and thus proscribe conduct such as retention of

those persons, even though transportation is complete.

Not only does 1204(a) target activity after the use of channels

of foreign commerce is complete, but it also removes an impediment

to the use of those channels. If a child is wrongfully retained in

a foreign country, he or she cannot freely use the channels of

commerce to return.

****

(2) Constitutional challenge under the Fifth Amendment

On February 13, 2002, the U.S. District Court for the District

of Massachusetts denied a motion to dismiss an indictment

against an Indian national father who was charged with

violating the IPKCA by taking his two minor children to India.

The court rejected the father’s claim that the IPKCA violated

his right to equal protection under the Fifth Amendment to

the U.S. Constitution on the ground that it criminalizes his

conduct because of his nation of origin. The father argued

that, because he is from India, a country not party to the

Hague Convention, he cannot take advantage of the fact

that the statute encourages use of civil remedies under the

Hague Convention. Section 1204(d), on which the challenge

relied, provides “This section does not detract from The

Hague Convention on the Civil Aspects of International

Consular and Judicial Assistance and Related Issues 59

parental Child Abduction, done at The Hague on October

25, 1980.” The district court concluded:

Of course, it would be the preferred route in these painful

international child custody disputes to attempt a civil,

rather than criminal, resolution. However, with countries

(like India) that are not signatories, an international civil

remedy through the Hague Convention’s mechanisms is

not available, and criminal prosecution is an effective

recourse to deter child kidnapping. IPKCA is a rational

tool for fulﬁlling the “enforcement-gap-closing” function.

[U.S. v. Amer,] 110 F.3d 873, 882 (2d Cir. 1997).

2. Consular Assistance for Children

In a telegram of August 28, 2002, the Department of State

provided guidance concerning consular assistance for an

American citizen mother and child, possibly living on the

streets in Brussels, Belgium. As set forth in excerpts below

from the telegram, the Department also requested the post,

if necessary, to report concerns to appropriate Belgian

authorities to provide assistance and protection.

****

2. Post should attempt to contact [the mother] and verify her

and [the daughter’s] well-being. Please explore prospects for

locating appropriate housing for the two, and schooling for [the

daughter]. Post should explain to [the mother] the types of consular

services available. If Post cannot locate the two, or after speaking

with [the mother], is concerned that [the daughter] may be at risk

of physical harm or neglect, Post should contact an appropriate

child protective services agency and request that it investigate

and, if necessary, provide assistance and protective services for

[the two].

3. The role of consular ofﬁcers in protecting children is re-

cognized in the Vienna Convention on Consular Relations (VCCR),

60 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

to which the U.S. and Belgium are parties. Article 5(h) of the VCCR

speciﬁcally provides that consular functions include, “safeguarding

. . . the interests of minors who are nationals of the sending state,

particularly where any guardianship or trusteeship is required with

respect to such persons.”

****

Cross Reference

International recovery of child support, Chapter 15.B.

International Criminal Law 61

CHAPTER 3

International Criminal Law

A. EXTRADITION AND OTHER RENDITIONS, AND

MUTUAL LEGAL ASSISTANCE

1. New Bilateral Extradition, Mutual Legal Assistance, and

Stolen Vehicle Treaties

On September 19, 2002, the Senate Committee on Foreign

Relations held a hearing to consider nine law-enforcement

treaties that had been transmitted by the President for advice

and consent to ratiﬁcation. The group included extradition

treaties with Lithuania, S. Exec. Rep. 107–13 (2002), and Peru,

S. Exec. Rep. No. 107–12 (2002), and a protocol amending

the extradition treaty with Canada, S. Exec. Rep. 107–19

(2002); ﬁve mutual legal assistance treaties (“MLATs”), with

Belize, India, Liechtenstein, Ireland and Sweden, S. Exec.

Rep. 107–15 (2002); and one treaty with Honduras on the

return of stolen or embezzled vehicles and aircraft, S. Exec.

Rep. 107–11 (2002). The Senate Foreign Relations Committee

recommended that the Senate take favorable action on eight

of the treaties before it and the Senate provided advice and

consent to their ratiﬁcation on November 14, 2002. 148

CONG.REC. S11,057–S11,059 (2002). The committee took no

action with respect to the MLAT with Sweden due to concerns

expressed over parental child abduction. In approving the

other treaties, the Senate attached an understanding to

the new extradition treaty with Peru and to all of the MLATS

62 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

concerning cooperation with the International Criminal Court.

See C.2.d.(2). below.

Excerpts below from prepared statements of Samuel M.

Witten, Deputy Legal Adviser, U.S. Department of State, and

Bruce C. Swartz, Deputy Assistant Attorney General, Criminal

Division, U.S. Department of Justice, describe the signiﬁcance

of the treaties at issue.

The full text of the hearing and of answers to ques-

tions for the record following the hearing are available in

S. Hrng. 107–721, Law Enforcement Treaties: Hearing Before

the Senate Comm. On Foreign Relations, 107

Cong. (2002)

at www.access.gpo.gov/congress/cong017.html.

Mr. Witten:

. . . The treaties, which have been transmitted to the Senate for

advice and consent to ratiﬁcation, fall into three categories:

— extradition treaties with Lithuania and Peru and a Second

Protocol amending the U.S.-Canada Extradition Treaty;

— mutual legal assistance treaties—or “MLATs”—with Belize,

India, Ireland, Liechtenstein and Sweden;

— a treaty for the return of stolen vehicles and aircraft with

Honduras. The Department of State greatly appreciates this oppor-

tunity to move toward ratiﬁcation of these important assistance

treaties ﬁrst, followed by the stolen vehicle and aircraft treaty.

The growth in transborder criminal activity, especially terror-

ism, violent crime, drug trafﬁcking, arms trafﬁcking, trafﬁcking in

persons, the laundering of proceeds of criminal activity, including

terrorist ﬁnancing, organized crime and corruption, generally has

conﬁrmed the need for increased international law enforcement

cooperation. Extradition treaties and MLATs are essential tools

in that effort. The negotiation of new extradition and mutual

legal assistance treaties is an important part of the Administration’s

many efforts to address international crime, and in particular the

heightened incidents of international terrorism. One important

measure to better address this threat is to enhance the ability of

U.S. law enforcement ofﬁcials to cooperate effectively with their

overseas counterparts in investigating and prosecuting international

International Criminal Law 63

criminal cases. Replacing outdated extradition treaties with modern

ones and negotiating such treaties with new partners is necessary

to create a seamless web of mutual obligations to facilitate the

prompt location, arrest and extradition of international fugitives.

Similarly, mutual legal assistance treaties are needed to provide

witness testimony, records and other evidence in a form admissible

in criminal prosecutions. The instruments before you today will

be important tools in achieving this goal.

Extradition Treaties

I will ﬁrst address the pending extradition treaties. As you know,

under U.S. law, fugitives can only be extradited from the United

States pursuant to authorization granted by statute or treaty. The

two new treaties and one protocol pending before the Committee

will update our existing treaty relationships with two law enforce-

ment partners and create a new treaty relationship with one

partner. This is part of the Administration’s ongoing program to

review and revise older extradition treaty relationships, many of

which are seriously outdated and do not include many modern

crimes or modern procedures.

The new extradition treaty with Peru, signed at Lima July 26,

2001, will replace an outdated treaty signed in 1899. The new

treaty represents a major step forward in law enforcement coopera-

tion between the two countries. Certain features of the treaty are

worth noting. First, the new treaty obligates each country to

extradite its own nationals, a high priority for U.S. law enforcement

authorities. For many years, Peruvian law prohibited the extradi-

tion of Peruvian nationals. Second, the new treaty replaces the old

“list” of extraditable offenses with the modern “dual criminality”

approach. Extraditable offenses are deﬁned as those punishable

under the laws in both countries by a sentence of more than

one year or a more severe penalty. This modern approach allows

extradition for a broader range of offenses and encompasses new

ones, e.g., cyber crime, as they develop in the two countries,

without having to amend the treaty.

The new extradition treaty with Lithuania, signed in October,

2001, is the ﬁrst such treaty concluded with one of the Baltic

64 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

states since the dissolution of the Soviet Union a decade ago. The

new extradition treaty, and an MLAT with Lithuania that entered

into force in 1999, together constitute a fully-modernized bilateral

law enforcement relationship that will be particularly valuable in

combating organized crime.

Like the Peru treaty, the new treaty with Lithuania contains

an obligation to extradite nationals to face justice in each other’s

courts, thereby overcoming the preexisting bar in Lithuania’s

criminal code. Lithuania is to be commended for becoming the

most recent European country to recognize that the time has come

to remove this historic obstacle in extradition relations with the

United States.

The second protocol to the extradition treaty with Canada,

signed at Ottawa January 12, 2001, allows for the temporary

surrender of persons to stand trial in one State while still serving a

sentence in the other State. This mechanism can be an important

law enforcement tool in cases where an individual has committed

serious crimes in both countries. Temporary surrender allows for

the prompt trial of an accused person while witnesses and evid-

ence are still available. Such a mechanism has become a standard

feature in recent U.S. bilateral extradition treaties, and will be a

useful addition to the 1971 treaty with Canada and the 1988

protocol, which addresses other issues. The second protocol will

also streamline authentication requirements to take advantage of

changes in Canadian law regarding the admissibility of extradition

documents.

****

Stolen Vehicle Treaty

The stolen vehicle treaty with Honduras is substantially the same

as the ﬁve similar stolen vehicle treaties approved by this Committee

two years ago in October 2000. Its negotiation had not yet been

completed when those treaties—with Belize, Costa Rica, the

Dominican Republic, Guatemala and Panama—were approved,

so it could not be considered at that time.

Like those treaties, the Honduras treaty establishes procedures

that can be used for the recovery and return of vehicles that are

International Criminal Law 65

documented in the territory of one party, stolen within its territory

or from one of its nationals, and found in the territory of the

other party. Like the parallel treaties already in force with Mexico,

Costa Rica, Guatemala, and Panama, the Honduran treaty also

provides for the return of stolen aircraft.

The U.S. insurance industry strongly supports these treaties,

since U.S. insurers are typically subrogated to the ownership

interests of U.S. citizens or businesses whose vehicles have been

stolen and taken overseas. In fact, insurance industry repres-

entatives have informed us that these stolen vehicle treaties provide

discernible improvements in the cooperation of the foreign

authorities. The treaty should signiﬁcantly improve and facilitate

the return of U.S. vehicles from Honduras. Thank you, Madam

Chairman. I will be pleased to answer any questions you or other

members of the Committee may have.

Mr. Swartz:

The ﬁve MLATs before this Committee will expand the United

States’ complement of law enforcement mechanisms designed to

strengthen our ability to obtain evidence and other forms of

assistance from overseas in support of our criminal investigations

and prosecutions. I realize the Committee has become acquainted

with the signiﬁcant beneﬁts MLATs provide to the international

law enforcement community since the ﬁrst such treaty came into

force in 1977. Accordingly, I will brieﬂy review only some of

those beneﬁts in this statement. Our practical experience with

MLATs over the years has demonstrated that they are far more

efﬁcient than other formal means of international legal assistance,

speciﬁcally including letters rogatory, as MLAT requests do not

require a court order and they are not routed through diplomatic

channels. MLATs establish a direct channel of communica-

tion between Central Authorities—usually contained within the

respective treaty partners’ Departments of Justice—and they confer

a binding legal obligation to provide assistance if the requirements

of the treaty are met. MLATs are broad in scope, and provide

for assistance at the investigatory stage, usually without the

requirement of dual criminality. These treaties pierce bank secrecy

and provide a mechanism for addressing legal and policy issues

66 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

such as conﬁdentiality, admissibility requirements for evidence,

allocation of costs, confrontation of witnesses at foreign depositions

and custodial transfer of witnesses. Signiﬁcantly, MLATs provide

a framework for cooperating in the tracing, seizure and forfeiture

of criminally-derived assets.

Despite these and other beneﬁts, we realize that MLATs in

themselves are not the solution to all aspects of law enforcement

cooperation. They are similar to extradition treaties in that their

success depends on our ability to implement them effectively,

combining comprehensive and updated legal provisions with

the competence and political will of our treaty partners. Our

recognition of the importance of effective treaty implementation

led to the development of a consultation clause that we include in

our MLATs, to ensure that we will have regular dialogues with

our treaty partners on the handling of our cases.

While all the MLATs before the Committee share certain

standard features, the speciﬁc provisions vary to some extent.

The technical analyses and transmittal packages explain these

variations, which are the result of negotiations over a period of

years with a range of countries, each of which has a different legal

system and each of which represents a different law enforcement

priority for the United States. I would like to highlight how each

of the MLATs before the Committee reﬂects our international law

enforcement priorities:

• Belize MLAT: The MLAT will join the new extradition treaty

with Belize to form the basis of a modern law enforcement

relationship between our two countries. Both U.S. and Belizean

negotiators viewed the MLAT as an instrument to enhance

efforts to combat narcotics trafﬁcking, which efforts will be

carried out, in part, through assistance in freezing and seizing

criminally-derived assets. In addition, as Belize is an off-shore

ﬁnancial jurisdiction, an exchange of diplomatic notes accom-

panies the treaty to memorialize the parties’ intent to cover

assistance in criminal tax matters.

• India MLAT: The MLAT with India will, similarly, join

with a new extradition treaty to update and enhance our

law enforcement relationship. We expect the MLAT to be of

International Criminal Law 67

particular assistance in investigating and prosecuting criminal

matters relating to terrorism, narcotics trafﬁcking, economic

crimes and organized crime.

• Ireland MLAT: The Ireland MLAT will enhance our network

of such treaties with member states of the European Union

and will facilitate our requests to Ireland for assistance in a

variety of cases, including those related to money laundering,

transnational terrorism and organized crime.

• Liechtenstein MLAT: This treaty represents an important

breakthrough in our ability to pierce bank secrecy laws in

Liechtenstein, a major off-shore ﬁnancial center, and is the

ﬁrst MLAT for Liechtenstein. Liechtenstein has agreed to

provide assistance in investigations and prosecutions involving

tax fraud offenses and, through an exchange of notes accom-

panying the treaty, conduct which is deemed tax evasion under

U.S. law clearly will be covered.

• Sweden MLAT: This MLAT will facilitate our requests to

Sweden—another European Union state—for assistance in a

variety of criminal cases, including those related to terrorism,

fraud, tax, computer crime, money laundering and homicide.

The hearing record also included questions and answers

submitted for the record. The excerpts provided below

address the Stolen Vehicle Treaty with Honduras, role of

death penalty assurances, parental child abduction, Peruvian

justice system and Swedish cooperation in child abduction

cases.

From Senator Biden:

****

Question. What is the current state of law enforcement coopera-

tion, in general, with Honduras?

Answer. Our law enforcement cooperation relationship with

Honduras is functional, and we hope it becomes more extensive

in the future.

68 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The extradition treaty between the United States and Honduras

was signed in 1909, entered into force in 1912, and was modiﬁed

by a supplementary convention of 1927. Although Honduras’

recent record with respect to extradition under the treaty leaves

room for improvement, the country has responded to U.S. requests

by deporting fugitives to the United States where possible. We

have as a long-term goal the negotiation of a modern extradition

treaty with that country. Honduras does not have an MLAT

relationship with the United States, but cooperates with U.S. law

enforcement agencies on law enforcement matters in the absence

of an MLAT. Question. What has been the experience to date

under the stolen vehicle treaties which entered into force since

the Senate approved several such treaties in 2000? Answer. In

2000, the Senate gave its advice and consent to ratiﬁcation of ﬁve

stolen vehicle treaties. Three of the ﬁve treaties have entered into

force: the Dominican Republic treaty (entered into force August

3, 2001), the Panama treaty (entered into force September 13,

2001), and the Belize treaty (entered into force August 16, 2002).

The Costa Rica and Guatemala treaties are in the ﬁnal stages of

approval and entry into force, and we hope to bring them into

force soon.

The Belize treaty only came into force on August 16, and

we have not yet had any experience under that treaty. We have

begun making requests for the return of vehicles from Panama

and Belize. We have thus far only made one request to Panama

and are awaiting action on that request. Our Embassy in the

Dominican Republic has made approximately 10 requests for the

return of U.S. stolen vehicles. Dominican ofﬁcials have already

made six of these vehicles available for return, and the Embassy

expects the remaining four vehicles to be available for return next

month.

Question. Which of the countries concerned by these law

enforcement treaties have concluded so-called Article 98 bilateral

agreements with the United States to protect American ofﬁcials

and service members from surrender to the International Criminal

Court? For those which have not, when will such agreements be

concluded?

International Criminal Law 69

Answer. The United States and Honduras concluded an Article 98

agreement on September 19. We are continuing our efforts to

conclude Article 98 Agreements with as many countries as possible,

including with the countries concerned by these law enforcement

treaties.

From Senator Helms

****

Question. Have any of these countries (Belize, Canada, India,

Ireland, Liechtenstein, and Sweden) ever declined ofﬁcially or

informally to provide law enforcement assistance of any kind to

the United States in a terrorism case without assurance that the

death penalty or life imprisonment would not be imposed?

Answer. No, none of these countries has refused for any reason to

assist the United States in terrorism-related extradition or mutual

assistance cases.

Question. Do any of the indicated treaties explicitly require that

the requested law enforcement assistance be provided to the United

States, without “assurances”, in a terrorism case even if the death

penalty or life imprisonment could be imposed?

Answer. Both the Lithuania and Peru extradition treaties, like

most recent extradition treaties, allow requests for assurances that

the death penalty will not be imposed or carried out. The United

States agrees to include such a provision because in many countries,

including Lithuania and Peru, the death penalty has been outlawed,

and extradition to the United States in some extremely serious

cases would, as a practical matter, be impossible unless there is

a mechanism for assurances. The Second Protocol to the Canada

extradition treaty does not address these kinds of issues. The

existing extradition treaty with Canada, however, also allows for

death penalty assurances, in cases where the offense involved

is not punishable by death in the Requested State. Neither these

extradition treaties nor the Canada extradition treaty contemplate

the possibility of assurances that life imprisonment will not be

imposed or carried out.

Unlike extradition treaties, U.S. mutual legal assistance treaties

in general, including the ﬁve (Belize, India, Ireland, Liechtenstein

70 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

and Sweden) before the Senate, do not include death penalty

assurance provisions. The issue of death penalty assurances has

rarely arisen in this context, but a small number of countries

recently have raised the potential of capital punishment for crimes

as in connection with U.S. requests for legal assistance (whether

the requests are made under treaty or as a matter of international

comity and reciprocity). In these cases we have argued that the

potential punishment in a U.S. proceeding should not be a factor

in whether assistance should be granted.

The issue of U.S. life imprisonment provisions has not arisen

to our knowledge in the mutual assistance context.

From Senator Boxer:

Question. Does the dual criminality provision in the treaties before

us today ensure that child abduction is a covered crime? Is the

U.S. making an effort to update aged extradition treaties with

those nations where child abduction problems are most common?

Answer. We expect that parental child abduction will be an

extraditable offense under these two new treaties. Extradition is

required under the new treaties with Lithuania and Peru if the

offense is punishable by a period of more than one year or by a

more severe penalty. (Lithuania Treaty, Art. 2(1); Peru Treaty,

Art. II(1)). Parental child abduction is punishable in the United

States by a period of more than one year. Because we understand

that the conduct constituting parental child abduction is also

punishable in both Lithuania and Peru by more than one year, we

expect it will be an extraditable offense under both of these treaties.

With respect to other U.S. extradition treaties, all of the U.S.

Government’s extradition treaties agreed upon since 1980 are dual

criminality treaties similar to the Lithuania and Peru treaties.

Parental child abduction is thus an extraditable offense under these

treaties if our treaty partner has also criminalized the conduct.

While many countries still treat parental child abduction solely as

a civil and family law matter, an increasing number are providing

for serious criminal penalties. As noted in the question, our older

extradition treaties (generally those signed before 1980) are

most typically “list” treaties that did not include “parental child

abduction” or “parental kidnapping” or a similar phrase or concept

International Criminal Law 71

among the list of extraditable offenses. This is because at the time

the treaties were negotiated parental child abduction was not a

criminal offense, including in the United States. Normally, the

interpretation of “list” treaties would simply evolve to reﬂect the

evolution of new aspects of crimes that are identiﬁed in the list

treaties. In this instance, however, the U.S. view that extradition

list treaties did not include parental child abduction had been

widely disseminated, including by publication in the Federal

To remedy this situation, the State and Justice Departments

brought this issue to the attention of Congress in 1997. These

consultations led to Public Law 105–323 (The Extradition Treaties

Interpretation Act of 1998), which addresses the matter by

clarifying that “kidnapping” in extradition list treaties may include

parental kidnapping, thus reﬂecting the major changes that have

occurred in this area of criminal law in the last 20 years. With this

clariﬁcation, the Executive Branch is now in a position to make

and act upon the full range of possible extradition requests dealing

with parental kidnapping under list treaties that include the

word “kidnapping” on such lists. This will help achieve the goal

of enhancing international law enforcement in this area. The United

States would, however, adopt this broader interpretation only

once it has conﬁrmed with respect to a given treaty that this would

be a shared understanding of the parties regarding the inter-

pretation of the treaty in question. In this respect, as other countries

criminalize parental child abduction, we will have an increasing

number of extradition treaty relationships that cover this offense.

After Public Law 105–323 was enacted, this change in the

U.S. practice of interpreting extradition list treaties was announced

in the Federal Register on January 25, 1999 (Vol. 64, No. 15,

pages 3735–36). As Senator Boxer’s question reﬂects, however,

the relevant passage discussing extradition list treaties in the State

Department’s web site and in the State Department’s brochure on

parental child abduction similarly needs to be updated to reﬂect

this change in practice. We will change the relevant sentences

in the web site and in future editions of the print version of the

brochure. We appreciate the Committee’s bringing this issue to

our attention.

72 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Question. If conﬁdence among the Peruvian public in the judiciary

is low, why should the United States have conﬁdence that a suspect

extradited by the United States to Peru will receive a fair trial?

Doesn’t Peru’s appeal of the Commission’s decision to the Inter-

American Court show an unwillingness to acknowledge problems

with its judicial system?

Answer. Since the downfall of the Fujimori government in

November 2000, Peru has made many strides to correct deﬁciencies

in its judicial system. At the end of 2000, Peru abolished the

executive committees through which former president Fujimori

had exercised control over the judiciary, restored the powers of

the National Magistrates Council (CNM) to evaluate judges and

prosecutors, and created transitory councils to remove corrupt

judges. In late 2000, the Peruvian government established a new

Pardons Commission to examine the cases of persons imprisoned

for terrorism under the Fujimori government. As of October 2001,

90 persons had been released from prison. Along with over 600

persons pardoned between 1996 and 2000, a total of over 700

persons were pardoned and released after being accused unjustly

of terrorism. In August 2001, President Toledo nearly doubled the

salaries of tenured judges and prosecutors to make working in the

judiciary more attractive and to reduce corruption incentives. Thus,

while much work remains to be done, Peru is taking active steps

to reform its judicial system.

Under U.S. extradition law and practice, once a fugitive has

been found extraditable by a U.S. court, the Secretary of State (or

Deputy Secretary) must review the case and issue a surrender

warrant before that person could be extradited to Peru or any

other country with which we have an extradition treaty. As part

of that review and decision-making process, the Secretary takes

into account any information available that may affect the

defendant’s ability to receive a fair trial.

With respect to the case of Lori Berenson, Peru’s Supreme

Court in 2001, in an unprecedented action, nulliﬁed Ms. Berenson’s

original conviction by a military court and ordered a civilian

re-trial. During her civilian trial, Ms. Berenson was allowed to

confront the witnesses against her and present evidence in her

defense.

International Criminal Law 73

The civilian court found Ms. Berenson guilty of terrorist

collaboration. She appealed her sentence, which was upheld by

the Peruvian Supreme Court. The case is now in the Inter-American

Human Rights system. The Inter-American Commission on Human

Rights, based here in Washington, issued non-binding recom-

mendations ﬁnding Ms. Berenson had not received due process.

As a party to the American Convention on Human Rights, Peru

exercised its right under Article 51 to ask the Inter-American

Court of Human Rights, in San Jose, Costa Rica, to review the

case. The decisions of the Court are legally binding, and we have

every expectation that Peru will comply with whatever decision

the Court renders.

Meanwhile, U.S. consular ofﬁcials continue to monitor the

situation closely and visit Ms. Berenson regularly. They will

continue to make every effort to ensure that the Government of

Peru provides her with humane living conditions and appropriate

medical care while she is in conﬁnement.

Question. On October 2, 2001 Mexico’s Supreme Court of Justice

ruled that in order for any extradition to proceed, the Requesting

State must provide assurances that life imprisonment will not be

imposed. The ruling has the potential to impact all extradition

cases between the U.S. and Mexico-and this severely impacts

California. Is this a problem that is limited to just Mexico or the

beginning of a larger trend?

Answer. A worldwide trend does not appear to exist with respect

to seeking life imprisonment assurances. In addition to Mexico, a

handful of other countries have raised life imprisonment assurances

issues (e.g., Colombia, where extradition takes place under its

national extradition law), but as to those other countries, there

has not been a signiﬁcant adverse effect on our ability to extradite

fugitives. This is not the case with Mexico, where we have

experienced a severe impact on our ability to secure the surrender

of our most serious criminal offenders.

The Department of Justice has corresponded with Los Angeles

District Attorney Steve Cooley concerning his Mexican extradition

cases, as well. We continue to work closely with D.A. Cooley’s

ofﬁce, as well as with federal and state prosecutors throughout

74 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

the country, in an attempt to provide Mexico with assurances

that are consistent with U.S. law and serve the ends of justice.

In addition, we continue to raise the assurances issue with the

Government of Mexico. In fact, Secretary Powell explicitly raised

the issue in his meeting on September 30, 2002 with Mexican

Foreign Minister Jorge Castaneda. We will also raise the issue

again at a meeting of senior U.S. and Mexican law enforcement

ofﬁcials at the end of October.

****

Question. Why should the United States enter into an MLAT

relationship with Sweden when it is not living up to its com-

mitments under other treaties?

Answer. The United States should enter into this MLAT relation-

ship because it is in the United States’ interest to do so. Moreover,

Sweden is in fact generally living up to its commitments under

other treaties.

It is the Administration’s position that the MLAT is a valuable

law enforcement tool, and that it should be approved on its merits

as such. The experience of this last year has only underscored

the international character of the crimes most threatening to our

citizens, and thus, our responsibility to provide U.S. prosecutors

and investigators the means to secure evidence from abroad.

The proposed MLAT with Sweden will enhance bilateral

cooperation in law enforcement matters. The Administration plans

to use this treaty to obtain assistance in connection with our efforts

to ﬁght terrorism, narcotics trafﬁcking, organized crime, violent

crime, money laundering, and terrorist ﬁnancing and other crimes

where Sweden has evidence that could assist us in our criminal

investigations and prosecutions.

The United States and Sweden already cooperate on a broad

range of law enforcement issues, and we have received assistance

from Sweden on judicial assistance requests on a case-by-case

basis. However, formal requests may require the burdensome and

time-consuming process of letters rogatory, and there is no bind-

ing obligation on Sweden’s part to assist the United States. The

proposed MLAT will require Sweden to provide us assistance and

International Criminal Law 75

only permits Sweden to decline to assist us in very speciﬁc instances.

The treaty also designates a central authority to facilitate action

under such requests, thereby improving the ability of both coun-

tries to obtain the necessary judicial assistance to prosecute and

investigate crimes.

Moreover, although no relationship with any country is without

its disagreements, we consider Sweden a good treaty partner that

generally complies with its treaty obligations. In fact, the United

States and Sweden have many bilateral treaties and agreements in

force. According to the January 1, 2002 Treaties in Force, we

currently have in force over 45 bilateral treaties or agreements

with Sweden on a wide variety of topics including with respect to

atomic energy, aviation, customs, defense, environmental coop-

eration, scientiﬁc cooperation, social security, space cooperation

and taxation—the most recent agreement being a defense agreement

that entered into force on December 20, 1999, and the earliest an

agreement with respect to mapping entered into force on April 1,

1885.

In the area of law enforcement in particular, Sweden has a

proven track record in cooperating with us in connection with our

existing law enforcement treaty—the Extradition Treaty between

the United States and Sweden—has been in force since 1963. In

the last two years, Sweden has extradited three defendants to the

United States (one wanted for rape, one for fraud, and the other

for narcotics offenses). All were provisionally arrested promptly

at our request. In the same period, we have extradited two fugitives

to Sweden (one was an accused murderer, the other was wanted

for parental child kidnapping and requested that she be extradited

after she was arrested). We have provisionally arrested another

fugitive from Sweden for serious narcotics offenses.

To the extent the question is directed at Sweden’s compliance

under the Hague Convention, the problem of international parental

child abduction, and of compliance with the Hague Convention

by treaty partners including Sweden, are matters of serious concern

to the State and Justice Departments.

Assisting the victims of international parental child abduction

has long been a priority for the Department of State and is an

76 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

important activity of State’s Bureau of Consular Affairs. In 1994,

the Bureau created the Ofﬁce of Children’s Issues. The Abduction

Unit of this ofﬁce now employs 17 ofﬁcers and staff devoted

exclusively to working with parents to resolve the cases of their

abducted children. The Ofﬁce currently handles approximately

1,100 international parental child abduction cases yearly, including

abductions to and from the United States. We have active child

abduction cases in many countries and in every region of the

world.

We have designated a speciﬁc point of contact at each of our

Embassies and Consulates worldwide to facilitate our work on

abduction cases. Additionally, in 1998 the Secretary of State and

Attorney General established an inter-agency policy group to

improve the federal response to this issue. This policy group created

a speciﬁc action plan and established an inter-agency working

group, chaired by the Director of the Ofﬁce of Children’s Issues to

implement this plan.

In connection with Sweden in particular, as discussed more

fully in our response to the September 16 questions, while certain

long-standing cases remain troubling, we believe Sweden’s record

under the Hague Convention—a convention governing the civil

aspects of international parental abduction—has been steadily

improving. The positive trend has been noted in our compliance

reports to Congress and has been reinforced by recent experience

involving Sweden. Notwithstanding these encouraging develop-

ments, we will continue to seek further improvement with Sweden,

as with other countries, because compliance with the Hague

Convention is a serious matter in its own right. However, these

concerns need not and should not be linked to questions relating

to the MLAT. The MLAT is a law enforcement tool. The wisdom

of the Foreign Relations Committee in approving dozens of similar

MLATs over the years has been well illustrated by the numerous

cases—now including investigations related to the attacks of

September 11th—in which the Department of Justice has been

able to use MLATs to obtain evidence critical to the investigation

and prosecution of serious crimes against the United States and its

citizens. Accordingly, we urge the Committee to recommend advice

and consent to ratiﬁcation of the MLAT with Sweden.

International Criminal Law 77

2. Other Rendition

On August 15, 2002, the U.S. Court of Appeals for the Fourth

Circuit dismissed an appeal by Mir Aimal Kasi from denial of

a writ of habeas corpus by the U.S. District Court for the

Eastern District of Virginia. Kasi v. Angelone, 300 F.3d 487

Cir. 2002). In that case, Kasi had been convicted in a

Virginia state court of capital murder, murder, malicious

wounding, and related ﬁrearm charges arising out of the

slaying of two Central Intelligence Agency employees and

the wounding of three others on January 25, 1993. He was

sentenced to death. The Virginia Supreme Court upheld the

convictions and denied his petition for habeas relief. Kasi v.

Commonwealth, 508 S.E.2d 57 (Va. 1998). The U.S. Supreme

Court denied his petition for writ of certiorari from both

decisions of the Virginia Supreme Court. Kasi v. Virginia, 527

U.S. 1038 (1999) and Kasi v. Angelone, 531 U.S. 894 (2000).

In his effort to appeal the denial of habeas relief, Kasi

argued, among other things, that the state trial court lacked

personal jurisdiction over him because he was illegally

abducted and forcibly removed from his home country of

Pakistan by FBI agents in violation of a 1931 extradition treaty

between the United States and the United Kingdom, which

the parties agreed was in force between the United States

and Pakistan. Excerpts below from the decision of the court

of appeals explain the basis for its dismissal of his appeal.

****

. . . [A]lthough the terms of an extradition treaty might limit

a court’s ability to prosecute a defendant who has been returned

to the United States by virtue of the treaty in certain circumst-

ances, the Court has plainly held that an extradition treaty does

not divest courts of jurisdiction over a defendant who has been

abducted from another country where the terms of the extradition

treaty do not prohibit such forcible abduction. See Alvarez-

Machain, 504 U.S. at 670. . . .

****

78 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

. . . Kasi now contends that Alvarez-Machain does not control

because, unlike in that case, the United States government had

initiated extradition proceedings with the Pakistani government

pursuant to the treaty. Once the extradition process was initiated

by the United States under the Extradition Treaty, Kasi argues,

the United States was prohibited from ignoring that process in

favor of forcible abduction. And, according to Kasi, the government

was required to complete the formal extradition process set forth

in the treaty with the Pakistani government.

****

The evidence Kasi seeks to rely upon in his federal habeas

claim demonstrates, at most, that the United States issued a formal

extradition request to the Pakistani government in April 1993,

immediately after the crimes were committed and Kasi was indicted.

However, it remains undisputed that nothing happened pursuant

to the extradition process. Kasi’s seizure in Pakistan and his return

to the United States in 1997—four years after the supposed request

was issued—was not accomplished pursuant to an extradition

request or otherwise pursuant to the Extradition Treaty relied

upon by Kasi to challenge jurisdiction. Rather, Kasi was located

and abducted by FBI agents operating in Pakistan, an act that was

not prohibited by the Extradition Treaty and that did not divest

the Virginia state court of jurisdiction to try Kasi for the offenses

committed in Virginia.

****

Having considered Kasi’s jurisdictional challenge, with and

without the new evidence sought to be introduced, we are conﬁdent

that the Virginia Supreme Court’s rejection of Kasi’s jurisdictional

challenge was not contrary to nor an unreasonable application of

relevant Supreme Court precedents. Kasi was forcibly abducted

by United States ofﬁcials and returned to this country, perhaps with

the acquiescence of the Pakistani government or other Pakistani

citizens, but not in violation of the terms of the Extradition Treaty

between the two countries. Accordingly, Kasi is not entitled to

federal habeas relief on this basis.

****

International Criminal Law 79

3. Other Mutual Legal Assistance Issues

a. U.S.-Russia

On January 31, 2002, Secretary of State Colin Powell and

Russian Ambassador to the United States Yuriy Ushakov

signed the Protocol on Exchange of Instruments of Ratiﬁca-

tion to bring into force a mutual legal assistance treaty

between the United States and Russia. It replaced the U.S.-

Russia Mutual Legal Assistance Agreement, signed in 1995.

See www.state.gov/r/pa/prs/ps/2002/7734.htm.

b. American Institute in Taiwan-Taipei Economic and Cultural

Representative Ofﬁce in the United States

On March 22, 2002, the American Institute in Taiwan (“AIT”)

and the Taipei Economic and Cultural Representative Ofﬁce

in the United States (“TECRO”) signed an Agreement on

Mutual Legal Assistance in Criminal Matters. Under the

Taiwan Relations Act (P.L.96–8, 93 Stat. 14, 22 U.S.C. 3301

et seq), transactions carried out by any agency of the U.S.

Government with respect to Taiwan are carried out through

AIT, a nonproﬁt corporation incorporated under the laws of

the District of Columbia. TECRO is the unofﬁcial instru-

mentality established by the people on Taiwan to take actions

on behalf of Taiwan in accordance with the Taiwan Relations

Act.

As speciﬁed in Article 1(3), AIT and TECRO are the Parties

to the agreement. Article 2(1) of the mutual legal assistance

agreement provides that

The Parties shall provide mutual assistance through the

relevant authorities of the territories they represent, in

accordance with the provisions of this Agreement, in

connection with the investigation, prosecution, and

prevention of offenses, and in proceedings related to

criminal matters. (emphasis added.)

80 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

c. U.S.-Europol

On December 6, 2001, the United States and the European

Police Ofﬁce (“Europol”) entered into an agreement creating

an overall institutional framework for cooperation between

U.S. law enforcement authorities and Europol. 2001 U.S.T.

LEXIS 67. Europol is an organization created by the European

Union to assist member states’ police forces in combating

trans-border serious crime. The 2001 agreement regulated

the exchange of technical and strategic information but did

not authorize the transmission of data relating to particular

persons. The exchange of personal data was reserved for

further examination and possible inclusion in a supplemental

agreement. See Digest 2001 at 936. During 2001 the European

Council of Ministers had expanded Europol’s mandate

substantially to include additional serious crimes includ-

ing kidnapping, hostage-taking, computer crime, and arms

trafﬁcking.

On December 20, 2002, the United States and Europol

signed the Supplemental Agreement on the Exchange of

Personal Data and Related Information. Key provisions of

the agreement are set forth below. See chapter 10.A.1.b. for a

letter responding to questions from Europol concerning the

extent to which it could be held liable for damages in U.S.

courts based on its transmission of information to the United

States under the agreement.

The full texts of the documents excerpted in this section

are available at www.state.gov/s/l/c8183.htm.

****

Article 1

Purpose

The purpose of this agreement is to enhance the cooperation

of the Member States of the European Union, acting through

International Criminal Law 81

Europol, and the United States of America, in preventing, detect-

ing, suppressing, and investigating criminal offenses within the

respective jurisdiction of the Parties, in particular by facilitating

the reciprocal exchange of information, including personal data.

Article 2

Deﬁnitions

For purposes of this Agreement:

(a) “personal data” means any information relating to an identiﬁed

or identiﬁable natural person;

(b) “identiﬁable natural person” means a natural person who can

be identiﬁed, directly or indirectly, by reference to, in particular,

an identiﬁcation number or to one or more factors speciﬁc to

his physical, physiological, mental, economic, cultural or social

identity;

operations which is performed upon such data, whether or not

by automatic means, such as collection, recording, organization,

storage, adaptation or alteration, retrieval, combination, use,

disclosure by transmission, dissemination or otherwise making

available, alignment or combination, blocking, erasure or

destruction.

****

Article 4

Communications between the Parties

****

4. A Party may, without prior request, forward to the other Party

information when it considers that disclosure of such informa-

tion might assist the receiving Party. A brief statement of the

reasons for forwarding the information shall be provided to

the extent feasible and necessary, or to the extent required by

the applicable legal framework of the forwarding Party.

82 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Article 5

General terms and conditions

1. (a) Transmission of information under this agreement to, and

its further processing by, the receiving Party shall be for

the purposes set forth in the request, which shall be deemed

to include the prevention, detection, suppression, investiga-

tion and prosecution of any speciﬁc criminal offenses, and

any speciﬁc analytical purposes, to which such information

relates. Where the receiving Party seeks the use of such

information for other purposes, it shall ask for the prior

consent of the Party that furnished the information.

(b) Notwithstanding subparagraph (a), nothing in this Agree-

ment shall prevent the receiving Party from:

(i) disclosing in its proceedings, information or evidence

that tends to exculpate an accused person. In this situ-

ation, the receiving Party shall notify the transmitting

Party in advance of disclosure, or, in an exceptional

case in which advance notice is not possible, without

delay thereafter.

(ii) using without restriction information or evidence that

has been made public as a normal result of having

been provided.

****

Article 6

Transmission of special categories of personal data

Personal data revealing race, political opinions, or religious

or other beliefs, or concerning health and sexual life, may be

provided only upon the transmitting Party’s determination that

such data is particularly relevant to a purpose set forth in Article

5, paragraph 1.

****

International Criminal Law 83

Article 7

Authorities competent to receive information

1. (a) Information supplied by Europol under this Agreement

shall be available to competent U.S. federal authorities for

use in accordance with this Agreement.

(b) Such information shall also be available for use by com-

petent U.S. state or local authorities provided that they

agree to observe the provisions of this Agreement, in

particular Article 5, paragraph 1.

2. Europol shall ensure that information supplied by the United

States under this Agreement will only be made available to the

competent law enforcement authorities of the Member States

of the European Union or for use within Europol.

3. Onward transmission of information to international institu-

tions, or to third States, will only take place with the prior

written consent of the Party that supplied the information,

unless already in the public domain.

****

An exchange of letters dated December 20, 2002, between

Mark M. Richard, Counselor for Criminal Matters, United

States Mission to the European Union, and Willy Bruggeman,

Deputy Director, European Police Ofﬁce, set forth agreed

ampliﬁcations on certain points, excerpted below.

****

4. Article 4

With respect to paragraph 4 the United States takes note that under

Europol’s legal framework, it may only forward without prior

request personal data under the Supplemental Agreement where it

is necessary in individual cases for the prevention or combating

of criminal offences for which Europol is competent. In the event

that Europol shall ﬁnd itself unable to directly forward such

information to the United States it shall endeavour to obtain the

84 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

consent of a Member State to transmit the information to U.S.

authorities itself.

5. Article 5

The Parties agree that the phrase “prevention, detection, suppres-

sion, investigation and prosecution of any speciﬁc criminal offences

and for any analytical purposes to which such information relates”

as used in Article 5, paragraph 1 sub (a), includes, inter alia, ex-

change of information pertaining to immigration investigations and

proceedings, and to those relating to in rem or in personam seizure

or restraint and conﬁscation of assets that ﬁnance terrorism or form

the instrumentalities or proceeds of crime, even where such seizure,

restraint or conﬁscation is not based on a criminal conviction.

The United States takes note of the fact that under its legal

framework, Europol may not presently authorise usage for other

purposes than those included in paragraph 1.

The United States also takes note of the fact that under its

legal framework, Europol may not presently transmit to the United

States data that were transmitted to it by a Member State under

this agreement without that Member State’s prior consent.

Article 5, paragraph 4, of the Supplemental Agreement is to

be understood not to permit the imposition of generic restrictions

with respect to the sharing of personal data, additional to the

express requirements of the Agreement, as a precondition to be

imposed by either Europol or one of its Member States.

****

7. Article 7

With respect to paragraph 1, Parties note that “competent

authorities” shall mean those authorities who are responsible for

functions relating to the prevention, detection, suppression, in-

vestigation and prosecution of criminal offences.

With respect to paragraph 3, the United States takes note of

the fact that under its legal framework Europol is not allowed

to provide authorisation for onward transmission beyond that

reﬂected in this Agreement; conversely this Agreement shall not be

International Criminal Law 85

relied upon as authority for Europol or its Member States to cause

the onward transmission of data supplied by the U.S. except as

authorised by this Agreement.

****

B. INTERNATIONAL CRIMES

1. Terrorism

a. Foreign Terrorist Organizations

(1) Legal criteria for designations

On October 23, 2002, the Ofﬁce of Counterterrorism, U.S.

Department of State, issued a fact sheet explaining the legal

criteria and process for designation of entities as foreign

terrorist organizations under section 219 of the Immigration

and Nationality Act, 8 U.S.C. § 1189. The fact sheet is set

forth below. See also Digest 2001 at 918.

Foreign Terrorist Organizations are foreign organizations that

are designated by the Secretary of State in accordance with section

219 of the Immigration and Nationality Act (INA), as amended.

FTO designations play a critical role in our ﬁght against terror-

ism and are an effective means of curtailing support for terrorist

activities and pressuring groups to get out of the terrorism business.

Identiﬁcation

The Ofﬁce of the Coordinator for Counterterrorism in the State

Department (S/CT) continually monitors the activities of terrorist

groups active around the world to identify potential targets for

designation. When reviewing potential targets, S/CT looks not

only at the actual terrorist attacks that a group has carried out,

but also at whether the group has engaged in planning and pre-

parations for possible future acts of terrorism or retains the

capability and intent to carry out such acts.

86 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Designation

Once a target is identiﬁed, S/CT prepares a detailed “administrative

record,” which is a compilation of information, typically including

both classiﬁed and open sources information, demonstrating that

the statutory criteria for designation have been satisﬁed. If the

Secretary of State, in consultation with the Attorney General and

the Secretary of the Treasury, decides to make the designation,

Congress is notiﬁed of the Secretary’s intent to designate the

organization and given seven days to review the designation, as

the INA requires. Upon the expiration of the seven-day waiting

period, notice of the designation is published in the Federal

tion designated as an FTO may seek judicial review of the

designation in the United States Court of Appeals for the District

of Columbia Circuit not later than 30 days after the designation is

published in the Federal Register.

FTO designations expire automatically after two years, but

the Secretary of State may redesignate an organization for

additional two-year period(s), upon a ﬁnding that the statutory

criteria continue to be met. The procedural requirements for

designating an organization as an FTO also apply to any redesigna-

tion of that organization. The Secretary of State may revoke a

designation or redesignation at any time upon a ﬁnding that the

circumstances that were the basis for the designation or redesigna-

tion have changed in such a manner as to warrant revocation, or

that the national security of the United States warrants a revocation.

The same procedural requirements apply to revocations made by

the Secretary of State as apply to designations or redesignations.

A designation may also be revoked by an Act of Congress, or set

aside by a Court order.

Legal Criteria for Designation

(Reﬂecting Amendments to Section 219 of the INA in the USA

PATRIOT Act of 2001)

1. It must be a foreign organization.

2. The organization must engage in terrorist activity, as

deﬁned in section 212 (a)(3)(B) of the INA (8 U.S.C.

International Criminal Law 87

§ 1182(a)(3)(B)),* or terrorism, as deﬁned in section

140(d)(2) of the Foreign Relations Authorization Act, Fiscal

* Section 212(a)(3)(B) of the INA deﬁnes “terrorist activity” to mean:

“any activity which is unlawful under the laws of the place where it is

committed (or which, if committed in the United States, would be unlawful

under the laws of the United States or any State) and which involves any of

the following:

(I) The highjacking or sabotage of any conveyance (including an

aircraft, vessel, or vehicle).

(II) The seizing or detaining, and threatening to kill, injure, or continue

to detain, another individual in order to compel a third person

(including a governmental organization) to do or abstain from doing

any act as an explicit or implicit condition for the release of the

individual seized or detained.

(III) A violent attack upon an internationally protected person (as deﬁned

in section 1116(b)(4) of title 18, United States Code) or upon the

liberty of such a person.

(IV) An assassination.

(V) The use of any—

(a) biological agent, chemical agent, or nuclear weapon or device, or

(b) explosive, ﬁrearm, or other weapon or dangerous device (other

than for mere personal monetary gain), with intent to endanger,

directly or indirectly, the safety of one or more individuals or

to cause substantial damage to property.

(VI) A threat, attempt, or conspiracy to do any of the foregoing.”

Other pertinent portions of section 212(a)(3)(B) are set forth below:

(iv) Engage in Terrorist Activity Deﬁned

As used in this chapter [chapter 8 of the INA], the term “engage in terrorist

activity” means in an individual capacity or as a member of an organization—

to commit or to incite to commit, under circumstances indicating an intention

to cause death or serious bodily injury, a terrorist activity;

1. to prepare or plan a terrorist activity;

2. to gather information on potential targets for terrorist activity;

3. to solicit funds or other things of value for—(aa) a terrorist activity;

(bb) a terrorist organization described in clause (vi)(I) or (vi)(II); or

(cc) a terrorist organization described in clause (vi)(III), unless the

solicitor can demonstrate that he did not know, and should

not reasonably have known, that the solicitation would further

the organization’s terrorist activity;

II. to solicit any individual—

(aa) to engage in conduce otherwise described in this clause;

(bb) for membership in terrorist organization described in clause (vi)(I)

or (vi)(II); or

(cc) for membership in a terrorist organization described in clause

(vi)(III), unless the solicitor can demonstrate that he did not know,

88 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Years 1988 and 1989 (22 U.S.C. § 2656f(d)(2)),** or retain

the capability and intent to engage in terrorist activity or

terrorism.

and should not reasonably have known, that the solicitation would

further the organization’s terrorist activity; or

III. to commit an act that the actor knows, or reasonably should know,

affords material support, including a safe house, transportation,

communications, funds, transfer of funds or other material ﬁnancial

beneﬁt, false documentation or identiﬁcation, weapons (including

chemical, biological, or radiological weapons), explosives, or training—

(aa) for the commission of a terrorist activity;

(bb) to any individual who the actor knows, or reasonably should know,

has committed or plans to commit a terrorist activity;

(cc) to a terrorist organization described in clause (vi)(I) or (vi)(II); or

(dd) to a terrorist organization described in clause (vi)(III), unless the

actor can demonstrate that he did not know, and should not

reasonably have known, that the act would further the

organization’s terrorist activity.

This clause shall not apply to any material support the alien afforded to an

organization or individual that has committed terrorist activity, if the Secretary

of State, after consultation with the Attorney General, or the Attorney

General, after consultation with the Secretary of State, concludes in his sole

unreviewable discretion, that that this clause should not apply.”

“(v) Representative Deﬁned

As used in this paragraph, the term ‘representative’ includes an

ofﬁcer, ofﬁcial, or spokesman of an organization, and any person

who directs, counsels, commands, or induces an organization or its

members to engage in terrorist activity.

i. Terrorist Organization Deﬁned

As used in clause (i)(VI) and clause (iv), the term ‘terrorist

organization’ means an organization—

I. designated under section 219 [8 U.S.C. § 1189];

II. otherwise designated, upon publication in the Federal Register,

by the Secretary of State in consultation with or upon the request

of the Attorney General, as a terrorist organization, after ﬁnding

that the organization engages in the activities described in

subclause (I), (II), or (III) of clause (iv), or that the organization

provides material support to further terrorist activity; or

III. that is a group of two or more individuals, whether organized

or not, which engages in the activities described in subclause

(I), (II), or (III) of clause (iv).

** Section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal

Years 1988 and 1989 deﬁnes “terrorism” as “premeditated, politically

motivated violence perpetrated against noncombatant targets by subnational

groups or clandestine agents.”

International Criminal Law 89

3. The organization’s terrorist activity or terrorism must

threaten the security of U.S. nationals or the national

security (national defense, foreign relations, or the economic

interests) of the United States.

Legal Ramiﬁcations of Designation

1. It is unlawful for a person in the United States or subject

to the jurisdiction of the United States to knowingly provide

“material support or resources” to a designated FTO. (The

term “material support or resources” is deﬁned in 18 U.S.C.

§ 2339A(b) as “currency or monetary instruments or

ﬁnancial securities, ﬁnancial services, lodging, training,

expert advice or assistance, safehouses, false documentation

or identiﬁcation, communications equipment, facilities,

weapons, lethal substances, explosives, personnel, trans-

portation, and other physical assets, except medicine or

religious materials.”)

2. Representatives and members of a designated FTO, if they

are aliens, are inadmissible to and, in certain circumstances,

removable from the United States (see 8 U.S.C. §§ 1182

(a)(3)(B)(i)(IV)–(V), 1227 (a)(1)(A) ).

3. Any U.S. ﬁnancial institution that becomes aware that it

has possession of or control over funds in which a design-

ated FTO or its agent has an interest must retain possession

of or control over the funds and report the funds to the

Ofﬁce of Foreign Assets Control of the U.S. Department

of the Treasury.

Other Effects of Designation

1. Supports our efforts to curb terrorism ﬁnancing and to

encourage other nations to do the same.

2. Stigmatizes and isolates designated terrorist organizations

internationally.

3. Deters donations or contributions to and economic trans-

actions with named organizations.

90 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

4. Heightens public awareness and knowledge of terrorist

organizations.

5. Signals to other governments our concern about named

organizations.

Background

• In October 1997, then-Secretary of State Madeleine K.

Albright approved the designation of the ﬁrst 30 groups

as FTOs.

• In October 1999, Secretary Albright redesignated 27 of these

groups as FTOs but determined that three organizations

should not be redesignated.

• Secretary Albright designated one additional FTO in 1999

(al-Qa’ida) and another in 2000 (Islamic Movement of

Uzbekistan).

• Secretary of State Colin L. Powell designated two additional

FTOs (Real IRA and United Self-Defense Forces of

Colombia) in 2001.

• In October 2001, Secretary Powell redesignated 25 of the

28 FTOs whose designations were due to expire, combining

two previously designated groups (Kahane Chai and Kach)

into one.

• Secretary Powell has designated ﬁve additional FTOs (Al-

Aqsa Martyrs Brigade, Asbat al-Ansar, Jaish-e-Mohammed,

Lashkar-e Tayyiba and Salaﬁst Group for Call and Combat)

between October 2001 and July 2002.

[Editor’s note: the following actions were also taken in

2002: two new entities, the Communist Party of the Philippines/

New People’s Army (CPP/NPA) and Jemaah Islamiya Organ-

ization (JI), were designated, 67 Fed. Reg. 53,379 (Aug. 15, 2002)

and 67 Fed. Reg. 65,168 (Oct. 23, 2002); the Islamic Move-

ment of Uzbekistan (IMU) was redesignated, 67 Fed. Reg. 60,

27 (Sept. 25, 2002) and the alias Kurdistan Freedom and

Democracy Congress (KADEK) was added to the Kurdistan

Workers’ Party (PKK) designation. 67 Fed. Reg. 72, 017 (Dec. 3,

2002).]

International Criminal Law 91

(2) Litigation by designated FTOs

On June 14, 2002, the U.S. Court of Appeals for the District

of Columbia Circuit denied a petition for judicial review of

the designation of three Irish political organizations pursuant

to 8 U.S.C. § 1189: the 32 County Sovereignty Committee and

its successor entity, the 32 County Sovereignty Movement,

and the Irish Republican Prisoners Welfare Association. 32

County Sovereignty Comm. v. Dep’t of State, 292 F.3d 797 (D.C.

Cir. 2002). In its opinion the court referred to Nat’l Council

of Resistance of Iran (“NCRI”) v. Dep’t of State, 251 F.3d 192

(D.C. Cir. 2001) and People’s Mojahedin Org. of Iran v. Dep’t

of State, 182 F.3d 17 (D.C. Cir. 1999). Nat’l Council of Resistance

of Iran, discussed in Digest 2001 at 109–117, held that the

groups in that case were entitled to limited due process

rights in the designation process because the NCRI (which

was designated as an alias of the People’s Mojahedin of Iran

(“MEK”)) maintained an ofﬁce in Washington, D.C., and

had certain additional contacts with the United States.* The

court of appeals in 32 County Sovereignty Committee found

contacts with the United States in that case to be insufﬁcient

to support a claim of constitutional due process protections,

and rejected claims based on the fact that the designation

* The court of appeals in that case did not vacate the existing

designations but remanded the matter to the Secretary of State for

reconsideration after further administrative procedures. On remand, the

Secretary provided the MEK with an opportunity to respond to the

unclassiﬁed evidence in the record against it, as directed by the court. On

September 24, 2001, the Department of State notiﬁed the MEK that the

Secretary had decided not to vacate its 1999 designation as a foreign terrorist

organization. In addition, on October 5, 2001, the Secretary redesignated

the MEK, based on a new record compiled in 2001. 66 Fed. Reg. 51,088

(2001). The MEK has challenged the determinations in the D.C. Circuit, and

the case was pending at the end of 2002. People’s Mojahedin Organization

of Iran v. Dep’t of State, No. 01-1465 (D.C. Cir.). As of December 31,

2002, the Secretary was still considering administratively whether to leave in

place the 1999 designation and the 2001 redesignation of the NCRI as an

MEK alias. The NCRI has also challenged its 2001 designation in the D.C.

Circuit, but that case is stayed pending the Secretary’s ﬁnal administrative

decision.

92 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

was supported largely by information received from foreign

countries. Excerpts from the decision are set forth below.

****

Turning to the merits, we think it clear that People’s Mojahedin,

rather than National Council, governs this case. In People’s

Mojahedin we held that “[a] foreign entity without property or

presence in this country has no constitutional rights, under the

due process clause or otherwise.” 182 F.3d at 22. 32 County and

the Association have demonstrated neither a property interest

nor a presence in this country. They cannot “rightly lay claim to

having come within the United States and developed substantial

connections with this country.” National Council, 251 F.3d at

202. Even the unclassiﬁed record in National Council revealed

that the designated organizations had “an overt presence within

the National Press Building . . . and . . . claim[ed] an interest in

a small bank account.” Id. at 201. In contrast, the afﬁdavits

petitioners submitted in this case demonstrate only that some of

their American “members” personally rented post ofﬁce boxes

and utilized a bank account to transmit funds and information to

32 County and the Association in Ireland. The afﬁdavits do not

aver that either organization possessed any controlling interest in

property located within the United States, nor do they demonstrate

any other form of presence here. The Secretary therefore did not

have to provide 32 County or the Association with any particular

process before designating them as foreign terrorist organizations.

With respect to the substance of the Secretary’s action against

petitioners, the administrative record (including the classiﬁed

information relied upon by the Secretary) furnishes substantial

support for the Secretary’s designation of 32 County and the

Association as foreign terrorist organizations. We are satisﬁed that

“the Secretary, on the face of things, had enough information

before [him] to come to the conclusion that [32 County and the

Association] were foreign and engaged in terrorism.” People’s

Mojahedin, 182 F.3d at 25; see National Council, 251 F.3d at

198–99. The petition for judicial review is therefore denied.

****

International Criminal Law 93

(3) Constitutionality of application in criminal law

On June 21, 2002, the U.S. District Court for the Central

District of California found the statute providing for

designation of Foreign Terrorist Organizations, 8 U.S.C.

§ 1189, unconstitutional on its face in the context of a criminal

indictment based on the designation. U.S. v. Rahmani, 209

F. Supp. 2d 1045 (C.D.Cal. 2002). Defendants in this case

had been indicted for violation of 18 U.S.C. § 2339B(a)(1),

which prohibits persons within the United States or subject

to its jurisdiction from “knowingly” providing “material

support or resources” to any designated foreign terrorist

organization. The district court dismissed the indictment

against them, holding that the designation statute violated

due process.

The foreign terrorist organization at issue in the case

was the MEK, discussed supra in (2). The district court ruled

more broadly, however, ﬁnding that the designation statute

was unconstitutional on its face. It held that “designation

pursuant to Section 1189 is a nullity since it is the product

of an unconstitutional statute. When a statute is found to

be violative of the Constitution, any action taken thereunder,

i.e., a designation of a status authorized by such statute,

must likewise fail. . . . Defendants have a vested legal right

not to be deprived of liberty or property without due process

of law.” 209 F. Supp. 2d at 1058–1059. It should be noted

that, despite this broad rationale, the decision applied only

to the indictment before the district court and did not vacate

or otherwise invalidate any designations or the criminal

prohibition on providing material support. Nor did the court’s

decision constitute binding precedent in future cases. At the

end of 2002 an appeal to the U.S. Court of Appeals for the

Ninth Circuit was pending.

The constitutionality of 18 U.S.C. § 2339B itself had been

generally upheld by the U.S. Court of Appeals for the Ninth

Circuit. Humanitarian Law Project v. Reno, 205 F.3d 1130 (9

Cir. 2000), cert. denied, 532 U.S. 904 (2001). In that case,

the district court had denied a preliminary injunction sought

94 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

on broad constitutional grounds, except that it did prelimin-

arily enjoin two provisions of the statute as unconstitution-

ally vague—those concerning provision of “training” and

“personnel” to foreign terrorist groups. 9 F. Supp. 2d 1176,

1205 (C.D. Ca. 1998). The court of appeals afﬁrmed the district

court’s decision, ﬁnding the statutory provision constitutional,

with the possible exception of the terms “personnel” and

“training.” The Ninth Circuit also addressed 18 U.S.C. § 1189

in that case. It held that the statute “does not grant the

Secretary unfettered discretion in designating the groups to

which giving material support is prohibited,” because the

Secretary must have reasonable grounds to believe that the

organization engaged in terrorist acts before it can be design-

ated. The court noted that, “because the regulation involves

the conduct of foreign affairs, we owe the executive branch

even more latitude than in the domestic context.” 205 F.3d

at 1137. On remand, the district court ruled that the terms

“personnel” and “training” were unconstitutionally vague and

issued a permanent injunction as to that aspect of the statute,

while upholding the remainder of the prohibition. 2001 U.S.

Dist. LEXIS 16729 (C.D. Cal. 2001). At the end of 2002

Humanitarian Law Project was on appeal for the second time.

See also U.S. v. Lindh, 212 F. Supp. 2d 541 (E.D.Va. 2002),

denying dismissal of counts based on 2339B against John

Walker Lindh, for conspiracy to provide and providing

material support and resources to al Qaeda in Afghanistan.

b. Asset freezing under IEEPA and Executive Order 13224

(1) Applicability to entity chartered within the United States

On December 31, 2002, the U.S. Court of Appeals for the

Seventh Circuit afﬁrmed the denial of a preliminary injunction

against application of Executive Order 13224 to freeze assets

of Global Relief Foundation, Inc. (“GRF”) and block its

designation as a Specially Designated Global Terrorist. Global

Relief Foundation, Inc. v. O’Neill, 315 F.3d 748 (7

Cir. 2002).

The court of appeals remanded the case to the district court

International Criminal Law 95

for consideration of whether the agency record supported

GRF’s designation.

Executive Order 13224 was issued by President George

W. Bush on September 23, 2001, pursuant to authorities

including the International Emergency Economic Powers

Act, 50 U.S.C. § 1701 et seq. (“IEEPA”). 66 Fed. Reg. 49,079

(Sept. 25, 2001). Section l(d)(i) of the order blocked the

assets of groups that “assist in, sponsor, or provide ﬁnancial,

material, or technological support for, or ﬁnancial or other

services to or in support of ” certain acts of terrorism, as

determined by the Secretary of the Treasury, in consultation

with the Secretary of State and the Attorney General. Groups

ofﬁcially designated under this provision were to be referred

to as Specially Designated Global Terrorists. See Digest 2001

at 881–893.

As described by the court of appeals, GRF is an “Illinois

charitable corporation that conducts operations in approxim-

ately 25 foreign entities, including Afghanistan, Albania,

Bosnia, Kosovo, Iraq, Lebanon, Pakistan, Palestine (West

Bank and Gaza), Russia (Chechnya and Ingushetia), Somalia,

and Syria.” Its assets were provisionally blocked under section

1702 of IEEPA on December 14, 2001. The relevant subsection

provides that the Secretary of Treasury (as delegated by the

President in E.O. 13224) may

investigate, block during the pendency of an investigation,

regulate, direct and compel, nullify, void, prevent or

prohibit, any acquisition, holding, withholding, use,

transfer, withdrawal, transportation, importation or

exportation of, or dealing in, or exercising any right,

power, or privilege with respect to, or transactions

involving, any property in which any foreign country or a

national thereof has any interest by any person, or with

respect to any property, subject to the jurisdiction of the

United States [emphasis added].

50 U.S.C. § 1702(a)(1)(B).

While the suit was pending, on October 18, 2002, the

Secretary of the Treasury designated GRF as a Specially

96 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Designated Global Terrorist under E.O. 13224. As the court

of appeals explained: “Designation did not change the status

of GRF’s assets and records, which remain in Treasury’s

control. But it does affect the scope of arguments available

on appeal. . . . To the extent that GRF was attacking the factual

support for the interim order, time has passed that issue by;

the right question now is whether the designation of October

18 is supported by adequate information, and that question

cannot be resolved until the district court has assembled a

new record. . . .”

The court of appeals rejected GRF’s contention that the

IEEPA did not apply to corporations that hold charters issued

within the United States. GRF argued that it was a U.S.

corporation and thus all property, including bank accounts,

was owned by a U.S. corporation and could not be “property

in which any foreign country or a national thereof has any

interest” for the purpose of § 1702(a)(1)(B). The court also

rejected GRF’s constitutional arguments, including challenges

based on separation of powers, use of classiﬁed evidence

considered ex parte by the district court, characterization of

IEEPA as an ex post facto law, and entitlement to notice and

a pre-seizure hearing.

Excerpts below set forth the court’s reasoning in rejecting

GRF’s arguments concerning the meaning of §1702(a)(1)(B)

and its entitlement to notice and pre-seizure hearing.

****

. . . GRF reads the word “interest” in § 1702(a)(1)(B) as

referring to a legal interest, in the way that a trustee is legal owner

of the corpus even if someone else enjoys the beneﬁcial interest.

See Navarro Savings Association v. Lee, 446 U.S. 458, 64 L. Ed.

2d 425, 100 S. Ct. 1779 (1980). The legal interest in GRF’s

property lies in the United States, but we need to know whether

§ 1702(a)(1)(B) refers to legal as opposed to beneﬁcial interests.

The function of the IEEPA strongly suggests that beneﬁcial rather

than legal interests matter. The statute is designed to give the Pres-

ident means to control assets that could be used by enemy aliens.

International Criminal Law 97

When an enemy holds the beneﬁcial interest in property, that is

a real risk even if a U.S. citizen is the legal owner. Consider for a

moment what would happen if Osama bin Laden put all of his assets

into a trust, under Illinois law, administered by a national bank. If

the trust instrument directed the trustee to make the funds avail-

able for purchases of weapons to be used by al Qaeda, then foreign

enemies of the United States would have an “interest” in these

funds even though legal ownership would be vested in the bank.

The situation is the same if al Qaeda incorporated a subsidiary in

Delaware and transferred all of its funds to that corporation—

something it could do without any al Qaeda operative setting foot

in the United States. What sense could it make to treat al Qaeda’s

funds as open to seizure if administered by a German bank but

not if administered by a Delaware corporation under terrorist

control? Nothing in the text of the IEEPA suggests that the United

States’ ability to respond to an external threat can be defeated so

easily. Thus the focus must be on how assets could be controlled

and used, not on bare legal ownership. GRF conducts its operations

outside the United States; the funds are applied for the beneﬁt of

non-citizens and thus are covered by § 1702(a)(1)(B).

****

A foreign beneﬁcial interest does not automatically make the

funds subject to freeze. We have nothing to say here about whether

GRF supports terrorism (as Treasury has concluded) or instead

provides humanitarian relief (as it describes itself). That question

is open to review in the district court, on the record compiled by

the agency before it named GRF as a Specially Designated Global

Terrorist. What we hold is that the phrase “property in which

any foreign country or a national thereof has any interest” in

§ 1702(a)(1)(B) does not offer GRF a silver bullet that will ter-

minate the freeze without regard to the nature of its activities.

None of GRF’s constitutional arguments has that effect either.

****

[T]he Constitution [does not] entitle GRF to notice and a

pre-seizure hearing, an opportunity that would allow any enemy

to spirit assets out of the United States. Although pre-seizure

98 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

hearing is the constitutional norm, postponement is acceptable in

emergencies. See, e.g., Gilbert v. Homar, 520 U.S. 924, 930, 138

L. Ed. 2d 120, 117 S. Ct. 1807 (1997); FDIC v. Mallen, 486 U.S.

230, 240 (1988). . . .

(2) Constitutionality

On August 9, 2002, the U.S. District Court for the District of

Columbia dismissed a challenge by Holy Land Foundation

for Relief and Development (“HLF”) to its designation as a

Specially Designated Terrorist and a Specially Designated

Global Terrorist and the resulting blocking of its assets. Holy

Land Foundation for Relief and Development v. Ashcroft, 219 F.

Supp. 2d 57 (D.D.C. 2002). The Secretary of the Treasury

had designated HLF, and the Ofﬁce of Foreign Assets Control

of the United States Department of the Treasury (“OFAC”)

had blocked all of its assets on December 4, 2001, pursuant

to the International Emergency Economic Powers Act, 50

U.S.C. § 1701 et seq. (“IEEPA”), and Executive Orders 13224

and 12947.** Among other things, HLF argued that the

blocking order violated the First, Fourth and Fifth Amend-

ments of the U.S. Constitution and the Religious Freedom

Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”).

The Secretary of the Treasury had determined that HLF

was subject to Executive Orders 12947 and 13224 because it

“acts for or on behalf of ” Hamas, which had been designated

under the two orders on January 23, 1995, and October 31,

2001.

The court found that the administrative record supported

actions designating HLF and blocking its assets, rejecting

** E.O. 13224 is discussed supra, b.(1). HLF was designated a

“Specially Designated Terrorist” under E.O. 12947, issued January 23, 1995,

based on the ﬁnding that “grave acts of violence committed by foreign

terrorists who threaten to disrupt the Middle East peace process” constitute

an “unusual and extraordinary threat to the national security, foreign policy,

and economy of the United States.” 60 Fed. Reg. at 5079. This Order has

been renewed annually since 1995, most recently in 67 Fed. Reg. 3033 (2002).

International Criminal Law 99

HLF’s claim that the actions were “arbitrary and capricious”

in violation of the Administrative Procedure Act. The court

also rejected Holy Land’s other statutory and constitutional

claims, with the exception of that based on the Fourth Amend-

ment. The court denied plaintiff ’s request for preliminary

injunction, concluding that plaintiff had not demonstrated a

substantial likelihood of success on any of its claims:

First . . . [a]lthough the Court has ruled that HLF has

stated a constitutional claim on its Fourth Amendment

claim and will be afforded an opportunity to prove it, the

Court is not prepared to determine that HLF has a

substantial likelihood of success on those allegations

in light of the strong arguments advanced by the

Government in support of its position. As to Plaintiff ’s

likelihood of success on the APA, RFRA, and remaining

constitutional claims, the Court has already concluded

that they have no merit.

Second, it is also clear that the injury to the Government

and the public interest weigh against granting the

preliminary injunction. Both the Government and the

public have a strong interest in curbing the escalating

violence in the Middle East and its effects on the security

of the United States and the world as a whole. Milena

Ship Mgmt. Co. Ltd v. Newcomb, 804 F. Supp. 846, 854

(E.D.La. 1992) (denying motion for preliminary injunction

to unblock assets, despite showing of irreparable harm,

because “the public interest overarches all else because

of the world backdrop against which OFAC’s action was

taken”). Blocking orders are an important component of

U.S. foreign policy, and the President’s choice of this tool

to combat terrorism is entitled to particular deference.

Excerpts below from the court’s opinion address plaintiff ’s

claim to a right to a pre-seizure hearing, distinguishing the

case at hand from NCRI, noted at B.1.a.(2) supra, and

plaintiff ’s claims that the blocking of its assets constituted

an unconstitutional taking. At the end of 2002 an appeal by

100 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Holy Land was pending in the U.S. Court of Appeals for the

District of Columbia Circuit.

****

. . . NCRI does not control this case. Here, the agency action

was taken pursuant to the IEEPA-based sanctions program. Action

under that program ﬂows from a Presidentially declared national

emergency. Thus, this case differs signiﬁcantly from NCRI where

neither a declaration of war (as required by the [Trading with the

Enemy Act (TWEA) ] ) nor a Presidentially declared national

emergency (as required by the IEEPA) existed to justify the absence

of notice and an opportunity to be heard.

****

. . . [T]he OFAC designation and blocking order served the

important government interest, set forth in the Executive Orders

issued by President Bush and President Clinton, of combating

terrorism by cutting off its funding. See Haig v. Agee, 453 U.S.

280, 307, 69 L. Ed. 2d 640, 101 S. Ct. 2766 (1981). At the time of

HLF’s designation, less than three months hadpassed since the

September 11, 2001 terrorist attacks on United States soil; President

Bush had recently declared a national emergency in Executive Order

13224 to deal with the threat of future attacks and the need to

curtail the ﬂow of terrorist ﬁnancing; President Clinton had issued

Executive Order 12947 ﬁnding that the acts of violence committed

by terrorists disrupting the Middle East peace process constituted

an extraordinary threat to the United States; and the violence in

the Middle East was escalating.

Second, prompt action by the Government was necessary to

protect against the transfer of assets subject to the blocking order.

Money is fungible, and any delay or pre-blocking notice would

afford a designated entity the opportunity to transfer, spend, or

conceal its assets, thereby making the IEEPA sanctions program

virtually meaningless. . . .

****

. . . The case law is clear that blockings under Executive

Orders are temporary deprivations that do not vest the assets in

International Criminal Law 101

the Government. Therefore, blockings do not, as a matter of law,

constitute takings within the meaning of the Fifth Amendment.

Accordingly, courts have consistently rejected these claims in the

IEEPA and TWEA context. . . .

. . . It is clear . . . that the current deprivation has not “gone

too far,” so as to constitute a taking, even though Plaintiff may

some day have a more viable claim. . . .

****

In sum, the Court concludes that HLF has sufﬁciently stated a

Fourth Amendment violation based on the Government’s physical

entry onto its premises and removal of its property without a

warrant. HLF has not, however, stated a claim as to the freezing

of its assets, which does not constitute a Fourth Amendment

seizure.

c. Delisting designated entities

In August 2002 the United States determined that certain

individuals and entities that had been designated under

Executive Order 13224 should be “delisted” because

additional information established that they had no prior

knowledge of the relevant group’s involvement in terrorism

and each had taken certain remedial actions to sever any

ties with entities providing funds to support terrorism.

The U.S. determination was reached after the committee

established pursuant to UN Security Council Resolution

1267 removed the same individuals and entities from its

consolidated list of individuals and entities associated with

Usama bin Laden and the members of al Qaida and the

Taliban. For further discussion of the delisting procedures

adopted by the 1267 Committee, see Chapter 16.1.c.

At the end of 2002, litigation brought by two of the

delisted businesses challenging their designation was pending

in the U.S. District Court for the District of Minnesota. Aaran

Money Wire Service Inc. v. U.S., No. 02-CV-789 and Global

Services International, Inc. v. U.S., No. 02-CV-790.

102 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

d. Terrorist exclusion list

On December 5, 2001, the Secretary of State, in consultation

with the Attorney General, designated 39 groups as “terrorist

organizations” under § 212(a)(3)(B)(vi)(II) of the Immigra-

tion and Nationality Act, 8 U.S.C. § 1182(a)(3)(B)(vi)(II), as

amended by section 411 of the USA PATRIOT Act of 2001.

See Digest 2001 at 921–923. A fact sheet issued by the Ofﬁce

of the Coordinator for Counterterrorism, U.S. Department

of State, on November 15, 2002, explained the designation

process and its legal effects. Excerpts are provided below.

The full text of the fact sheet, including names of those

designated, is available at www.state.gov/s/ct/rls/fs/2002/

15222.htm.

Section 411 of the USA PATRIOT ACT of 2001 (8 U.S.C.

§ 1182) authorized the Secretary of State, in consultation with

or upon the request of the Attorney General, to designate terrorist

organizations for immigration purposes. This authority is known

as the “Terrorist Exclusion List (TEL)” authority. A TEL designa-

tion bolsters homeland security efforts by facilitating the USG’s

ability to exclude aliens associated with entities on the TEL from

entering the United States.

Designation Criteria

An organization can be placed on the TEL if the Secretary of State

ﬁnds that the organization:

• commits or incites to commit, under circumstances indicat-

ing an intention to cause death or serious bodily injury, a

terrorist activity; prepares or plans a terrorist activity;

• gathers information on potential targets for terrorist activ-

ity; or

• provides material support to further terrorist activity.

Under the statute, “terrorist activity” means any activity that

is unlawful under U.S. law or the laws of the place where it was

committed and involves: hijacking or sabotage of an aircraft, vessel,

International Criminal Law 103

vehicle or other conveyance; hostage taking; a violent attack on

an internationally protected person; assassination; or the use of

any biological agent, chemical agent, nuclear weapon or device,

or explosive, ﬁrearm, or other weapon or dangerous device (other

than for mere personal monetary gain), with intent to endanger,

directly or indirectly, the safety of one or more individuals or to

cause substantial damage to property. The deﬁnition also captures

any threat, attempt, or conspiracy to do any of these activities.

Designation Process

The Secretary of State is authorized to designate groups as

TEL organizations in consultation with, or upon the request of

the Attorney General. Once an organization of concern is identiﬁed,

or a request is received from the Attorney General to designate a

particular organization, the State Department works closely with

the Department of Justice and the intelligence community to

prepare a detailed “administrative record,” which is a compilation

of information, typically including both classiﬁed and open sources

information, demonstrating that the statutory criteria for designa-

tion have been satisﬁed. Once completed, the administrative record

is sent to the Secretary of State who decides whether to designate

the organization. Notices of designations are published in the

Federal Register.

Effects of Designation

Legal Ramiﬁcations

Individual aliens providing support to or associated with TEL-

designated organizations may be found “inadmissable” to the U.S.,

i.e., such aliens may be prevented from entering the U.S. or, if

already in U.S. territory, may in certain circumstances be deported.

Examples of activity that may render an alien inadmissible as a

result of an organization’s TEL designation include:

• membership in a TEL-designated organization;

• use of the alien’s position of prominence within any country

to persuade others to support an organization on the TEL

list;

104 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

• solicitation of funds or other things of value for an

organization on the TEL list; and

• solicitation of any individual for membership in an

organization on the TEL list commission of an act that the

alien knows, or reasonably should have known, affords

material support, including a safe house, transportation,

communications, funds, transfer of funds or other material

for ﬁnancial beneﬁt, false documentation or identiﬁcation,

weapons (including chemical, biological, or radiological

weapons), explosives, or training to an organization on

the TEL list.

(It should be noted that individual aliens may also found in-

admissible on the basis of other types of terrorist activity unrelated

to TEL-designated organizations; see 8 U.S.C. § 1182(a)(3)(B).)

Other Effects

1. Deters donation or contributions to named organizations.

2. Heightens public awareness and knowledge of terrorist

organizations.

3. Alerts other governments to U.S. concerns about organiza-

tions engaged in terrorist activities.

4. Stigmatizes and isolates designated terrorist organizations.

****

e. Review of the Convention for the Suppression of Unlawful

Acts Against the Safety of Maritime Navigation, 1988,

and its Protocol

In November 2001 the International Maritime Organization

(“IMO”) agreed at its 22

Assembly to undertake a review

to determine whether relevant IMO instruments needed to

be updated to enhance ship and port security and avert

shipping from becoming a target of international terrorism.

Resolution A.924(22).

On March 22, 2002, the United States submitted a

proposal to the IMO for amendments to the Convention for

International Criminal Law 105

the Suppression of Unlawful Acts Against the Safety of

Maritime Navigation, 1988, and its Protocol of 1988 Relating

to Fixed Platforms Located on the Continental Shelf, entered

into force for the United States March 6, 1995, 1698 U.N.T.S.

201, 27 I.L.M. 668 (1988) (“SUA Convention and Protocol”).

On May 7, 2002, the Legal Committee of the IMO accepted

the U.S. proposal to establish a correspondence group,

headed by the United States, to address the revision of the

SUA Convention and Protocol. LEG 84/14. Annex 2 to the

Report established terms of reference for the SUA correspond-

ence group “to propose necessary amendments for the two

instruments in order to facilitate, strengthen and expand

international co-operation and co-ordination as a means of

combating unlawful acts, including terrorist acts.” The Legal

Committee speciﬁcally noted the proposals made by the

United States and Turkey. The United States proposal is set

forth below.

The full text of the U.S. proposal is available at

www.uscg.mil/legal. For relevant IMO documents, see

www.imo.org.

****

Review Process

4. The United States has reviewed the SUA Convention and

Protocol while keeping in mind the objective of the review, as

stated in resolution A.924(22). During the review, the United States

noted the United Nations’ recognition

that terrorism now operates

globally, and therefore anti-terrorism efforts must be expanded

from the currently fragmented domestic or regional approaches to

a global approach. Fully endorsing the importance of international

cooperation, the United States proposals set forth below reﬂect

the goal of seeking ways to facilitate, strengthen and expand

See U.N. S/RES/1373 (2001); U.N. A/RES/49/60 (Dec. 1994); and

U.N. Sec-Gen speech 24 Oct. 1996.

106 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

international cooperation and coordination as a means of com-

bating terrorism.

5. The United States review included soliciting input from

interested sectors in the United States. Also, since the SUA Con-

vention was drafted some fourteen years ago, and to introduce

some systematic methodology in the review, the United States

compared the SUA Convention to the most recently-drafted

multilateral treaty relating to extradition and combating terror-

ism that has entered into force, the United Nations International

Convention for the Suppression of Terrorist Bombings

(STB

Convention).

Adding Offences to Article 3

6. The tragic events of 11 September 2001 expanded the range

of violent acts that now must be considered as realistic terrorist

tactics. With that in mind, the United States has identiﬁed potential

additional offences that should be considered for incorporation

into the SUA Convention.

Harmful substances

7. The STB Convention explicitly addresses actions that use

biological agents, toxic chemicals, radiation or radioactive materials

to cause harm (see Article I, paragraph 3,b). In contrast, the SUA

Convention currently does not clearly address the use of such

harmful substances against the crew or passengers if the act does

not endanger the safe navigation of the ship. The United States

U.N. International Convention for the Suppression of Terrorist

Bombings, opened for signature 12 January 1998, UN doe. A/RES/52/164,

S. TREATY Doe. No. 106-6, 37 I..L.M. 249 (entered into force 23 May

2001), available at <www.un.org/terrorism..>

The U.N. International Convention for the Suppression of the

Financing of Terrorism was also reviewed; however, since it was open for

signature from 10 January 2000 to 31 December 2001 and will not be in

force until 10 April 2002, the U.S. will only refer to the STB Convention in

the main text of this document.

International Criminal Law 107

suggests adding language to article 3 of the SUA Convention that

explicitly creates an offence of intentionally and unlawfully

releasing harmful substances (such as biological agents, chemicals,

or radiological materials) that have the capacity to cause death or

serious bodily injury to the ship’s crew or passengers but does not

endanger the safe navigation of the ship.

Transportation of persons or supplies for committing

SIUA Offences

8. The SUA Convention currently does not speciﬁcally prohibit

knowingly and unlawfully providing international maritime

transportation to persons who are known or suspected to have

committed acts prohibited by the SUA Convention or other terror-

ism conventions. The SUA Convention also does not speciﬁc-

ally prohibit knowingly and unlawfully providing international

maritime transportation for supplies and other cargo that support

acts prohibited by the SUA Convention or other terrorism

conventions. The United States suggests supplementing article 3

with language that will clearly address these types of activities.

Non-proliferation

9. The United States suggests considering whether the SUA

Convention should be amended to address the issue of trans-

portation of items related to weapons of mass destruction and

their means of delivery in violation of applicable international

non-proliferation agreements, possibly including the creation of a

new offence under the Convention. Because of the risk that such

items could come into the possession of international terrorist

organizations, the United States. believes that such consideration

is warranted.

The ship as a weapon

10. As a direct result of the September 11 attack, the United

States suggests adding to article 3 of the SUA Convention an offence

that speciﬁcally criminalizes using the ship or its cargo as a weapon.

108 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Covered acts could include intentionally and unlawfully ramming

the vessel into another vessel, structure, facility or object. The

United States acknowledges that article 3, paragraph 1(a) could

be interpreted to cover some such scenarios, but the gravity of

using a ship or its cargo as a weapon, similar to the way civil

aircraft were used on September 11th, warrants coverage in a

separate offence.

Organizer conspiracy

11. While paragraph 2(b) of article 3 of the SUA Convention

covers anyone who abets the committing of the offence or is

otherwise an accomplice to the offence (which obviously should

include anyone who instigated, directed, organized or otherwise

knowingly assisted in the commission of an offence), the STB

Convention articulates more clearly the broad base of culpability

of those who act as abettors and accomplices by speciﬁcally listing

those who organize or direct others to commit such an offence as

well as those who contribute to the commission of an offence by a

group of persons acting with a common purpose (see article 2,

paragraph 3).

Utilizing the more recent formulation used in the

STB would better ensure that all who contribute to the commission

of offences are clearly recognized to be covered tinder t e existing

SUA Convention. Therefore, the United States suggests adding a

subparagraph to article 3, paragraph 2 that expressly mentions

that an act of an organizer or director of any of the offences listed

in paragraph 1 of article 3 will be considered an offence. The

United States also suggests adding another provision that further

clariﬁes the culpability provisions of the SUA Convention by

expressly mentioning the language, “knowingly assisting in a

group’s undertaking to commit an article . . . offence,” found in

the STB.

The U.N. International Convention for the Suppression of the Financ-

ing of Terrorism also contains an even clearer expression of culpability (See

Article 2, paragraph 5).

International Criminal Law 109

Piracy and armed robbery at sea

12. 1MO

and the United Nations General Assembly

have, as

part of their global campaign to suppress acts of violence against

persons on ships, repeatedly urged States that have not done so

to consent to be bound by the SUA Convention. In considering

this matter at IMO, some States have noted that not all acts of

violence against persons on ships arc covered by article 3.

Any

lacuna could possibly be remedied by appropriate amendment

to article 3.

Updates Reﬂecting Evolving Multilateral Anti-Terrorism

Treaty Concepts

13. Comparing the SUA Convention to the STE Convention

reveals several other matters warranting consideration by the

Committee.

Political exception

14. Article 11 of the STB Convention explicitly states that the

offences set forth in the STB Convention will not be regarded as

political offences for the purpose of extradition or mutual legal

assistance. Article 11 continues by stating that a request for

extradition or mutual legal assistance “may not be refused on the

sole ground that it concerns a political offence.” The STB

Convention expressly precludes the exercise of the political offence

exception and reﬂects the gradual narrowing of differences of

opinion on deﬁning terrorism. The United States suggests

incorporating this concept into the SUA Convention.

Most recently in IMO Assembly resolution A.922 (22), and annexed

Code of Practice for the investigation of the Crimes of Piracy and Armed

Robbery against Ships, para. 3.2.

Most recently in U.N. General Assembly Resolution A/RES/56/12,

para. 32, 27 Nov. 2001.

See, e.g., MSC 73/21, paras. 14.9, 14.20–14.25.

110 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Transfer

15. Article 13 of the STB Convention establishes various

conditions for the temporary transfer of a person in custody of

one State Party to another State Party for the purpose of render-

ing assistance under the STB Convention (e.g. for testimony to

assist prosecution of an offence). This temporary transfer language

is also found in the U.N. Convention Against Transnational

Organized Crime

(TOC Convention) in Article 18, paragraphs

10–12. The TOC Convention also explicitly applies the concept

of transfer in the context of transfer of criminal proceedings, in

Article 21, and transfer of sentenced persons, in Article 17. The

United States suggests incorporating this concept into the SUA

Convention.

Action requested of the Legal Committee

16. The Committee is invited to consider the suggestions

contained in this document as well as other proposals that may be

made prior to or at LEG 84 or thereafter, and to comment as it

deems appropriate with a view toward moving forward in its review

of the SUA Convention pursuant to resolution A.924(22). If the

Committee decides to amend the SUA Convention accordingly,

the U.S. respectfully requests the Committee convene an inter-

sessional correspondence group to pursue this objective, which

the U.S. is prepared to lead.

17. Any adjustments made to the SUA Convention should

also be considered for the Protocol for the Suppression of Unlawful

Acts Against the Safety of Fixed Platforms Located on the Con-

tinental Shelf, to the extent applicable.

****

U.N. Convention Against Transnational Organized Crime opened

for signature 12 Dec. 2000, UN docs. A/55/383, A/RES/55/25, and located

at 40 I.L.M. 335 (remains open for signature until 12 Dec. 2002), available

at http://www.odccp.orp/palermo/theconvention.html.

International Criminal Law 111

f. Verdict in Libya terrorist case: Pan AM 103

On March 14, 2002, the Scottish High Court of Justiciary

sitting in the Netherlands upheld the conviction of Abdel Al-

Megrahi in the bombing of Pan Am Flight 103 over Lockerbie,

Scotland, on December 21, 1988, killing 270 persons. Megrahi

v. Her Majesty’s Advocate, 2002 S.C.C.R. 509. It upheld a

judgment of January 31, 2001, by a Scottish court sitting in

the Netherlands that had been established expressly for the

purpose of trying Al-Megrahi and Al-Amin Khalifa Fahima.

Both the United States and United Kingdom had sought

the two men for prosecution. The court had concluded it

lacked sufﬁcient evidence to convict Fahima. For background

of the case and the U.S. role in it, see Digest 2001 at 98–99.

Excerpts from a press statement from the White House

concerning the decision and related issues, dated March 14,

2002, are set forth below.

The full text of the press statement is available at

www.whitehouse.gov/news/releases/2002/03/20020314-1.html.

****

The United States Government welcomes the decision of the

Scottish High Court of Justiciary sitting in the Netherlands to

uphold the conviction of Abdel Al-Megrahi.We reiterate the

need for the Government of Libya to move quickly to satisfy its

remaining obligations under UN Security Council resolutions

related to the bombing of Pan Am Flight 103. The completion

of the appeal does not end UN sanctions against Libya, but

should spur Libya to take quick action to fully comply with the

requirements of the UN Security Council.

We again express our deepest sympathy to the families of those

lost in the bombing of Pan Am Flight 103.As we have stated

previously, nothing can undo the suffering this act of terrorism

has caused.However, we hope that all of those who lost loved-

ones in this tragic attack will ﬁnd some solace in the measure of

justice achieved by today’s decision.

112 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

This decision afﬁrming the conviction of a Libyan agent for

the bombing of Pan Am Flight 103 represents a vindication of

efforts by successive U.S. administrations.It also underlines the

unshakable determination of the United States not to forget, but

to hold terrorists accountable for their acts.

****

g. Inter-American Convention against Terrorism

On November 12, 2002, President George W. Bush trans-

mitted the Inter-American Convention Against Terrorism,

done at Barbados, signed June 3, 2002, to the Senate for

advice and consent to ratiﬁcation. S. Treaty Doc. No. 107–18

(2002). Excerpts below from the President’s transmittal letter

and from the accompanying report by the Secretary of State

to the President describe the structure of the Convention

and its importance in regional efforts to counter terrorism.

LETTER OF TRANSMITTAL

The White House, November 12, 2002.

To the Senate of the United States:

With a view to receiving the advice and consent of the Senate

to ratiﬁcation, I transmit herewith, the Inter-American Convention

Against Terrorism, adopted at the Thirty-Second Regular Session

of the OAS General Assembly meeting in Bridgetown, Barbados,

on June 3, 2002, and opened for signature on that date. At that

time it was signed by 30 of the 33 members attending the meeting,

including the United States. It has subsequently been signed by

another two member states, leaving only two states that have not

yet signed. In addition, I transmit herewith, for the information

of the Senate, the report of the Department of State.

The negotiation of the Inter-American Convention Against

Terrorism (the “Convention”) was a direct response to the terrorist

attacks on the United States on September 11, 2001. At that time,

the OAS was meeting in Lima, Peru, to adopt a Democratic Charter

International Criminal Law 113

uniting all 34 democracies in the hemisphere. The OAS member

states expressed their strong commitment to assist the United States

in preventing such incidents from occurring again anywhere in

our hemisphere. Within 10 days, the foreign ministers of the OAS

member states, meeting in Washington, D.C., endorsed the idea of

drafting a regional convention against terrorism. Argentina, Peru,

Chile, and Mexico played particularly important roles in the

development and negotiation of the Convention.

****

In sum, the Convention is in the interests of the United States

and represents an important step in the ﬁght against terrorism.

I therefore recommend that the Senate give prompt and favorable

consideration to the Convention, subject to the understanding that

are described in the accompanying report of the Department of

State, and give its advice and consent to ratiﬁcation.

George W. Bush.

LETTER OF SUBMITTAL

Department of State,

Washington, October 7, 2002.

The President,

The White House.

****

Essential Elements of the Convention

The Convention is designed to build upon the multilateral and

bilateral instruments already in force and to which the United

States is a Party by enhancing cooperation in preventing, punishing,

and eradicating terrorism. It does so by elaborating for regional

use a variety of legal tools that have proven effective against

terrorism and transnational organized crime in recent years.

Following the model of the 1999 International Convention for

the Suppression of the Financing of Terrorism, the Convention

114 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

incorporates by reference the offenses set forth in ten counterterror-

ism instruments listed in paragraph 1 of Article 2 of the Con-

vention. Negotiators chose this approach because of the breadth

of converge already provided by these prior instruments (all crimes

ordinarily recognized as terrorism-related offenses are covered,

including hijackings, bombings, attacks on diplomats, and the

ﬁnancing of terrorism) and the OAS’s desire to respond rapidly to

the events of September 11 and the continuing threat of terrorism

in the region.

All Parties are required under the Convention to “endeavor to

become a party’’ to the ten prior [counterterrorism] instruments

(the United States is already a Party to all of the instruments). In

addition to facilitating implementation of the Convention, this

obligation also advances implementation of UNSCR 1373, which

“calls upon” states to become Parties to these same instruments “as

soon as possible.” Thus, we would hope that all Parties to the Con-

vention will have become Parties to those instruments by the time

they deposit their instruments of ratiﬁcation for this Convention.

However, so as not to delay a state from becoming a Party to

this Convention, and in order to preserve the prerogatives of the

legislative bodies in becoming Parties to the instruments listed in

the Convention, the Convention provides that a state may declare

that the obligations contained in the Convention do not apply to

the offenses set forth in any one of the counterterorism instruments

listed in Article 2 if it is not yet a Party to that instrument or if it

ceases to be a Party. This procedure provides a high degree of

ﬂexibility for states that are considering becoming Parties to this

Convention, without undermining the U.S. interest in having all

states become Parties to all of the other international instruments

relating to terrorism.

In addition to incorporating the offenses from prior counter-

terrorism instruments, the Convention adopts elements from prior

conventions and initiatives, in some cases expanding the scope of

these elements and in other cases converting voluntary measures

into legally binding ones. For example, Article 11 of the Convention

prohibits Parties from denying extradition or mutual legal assist-

ance requests on the sole ground that an offense covered by the Con-

vention is or concerns a political offense. This provision appears

International Criminal Law 115

in the more recent counterterrorism instruments and, by incorpor-

ating it into the Convention, its scope will be expanded to include

offenses set forth in prior conventions and protocols as well.

Another example is the Convention’s requirement in paragraph

1 of Article 4 that Parties institute a legal and regulatory regime to

prevent, combat, and eradicate the ﬁnancing of terrorism. A similar

requirement can be found in UNSCR 1373, but the Convention

goes further by requiring that the regime include speciﬁc elements

drawn from the forty recommendations of the Financial Action

Task Force on Money Laundering (FATF), an inter-governmental

body whose purpose is to develop and promote policies to combat

money laundering. In fulﬁllment of one of its requirements, the

United States will notify the OAS Secretary General, upon the

deposit of its instruments of ratiﬁcation, the national authority

designated to be its ﬁnancial intelligence unit.

In addition, paragraph 2 of Article 4 of the Convention

mandates that, when establishing their legal and regulatory regimes,

Parties must use as “guidelines” the recommendations developed

by specialized international and regional entities, in particular the

FATF and, as appropriate, the Inter-American Drug Abuse Control

Commission, the Caribbean Financial Action Task Force, and the

South American Financial Action Task Force, which are likewise

inter-governmental bodies that develop policies relating to money

laundering within their respective areas. Because the recommenda-

tions of these entities can change over time, the Convention requires

that Parties use the recommendations of FATF, as well as the

recommendations of the other entities, as “guidelines” in imple-

menting paragraph 1 of Article 4, rather than requiring that the

Parties implement all of those recommendations in full.

Other measures incorporated into the Convention include:

expanding the basis for seizure and forfeiture of funds and other

assets; expansion of predicate offenses for money laundering;

enhancing cooperation on border controls and among law

enforcement authorities; establishment of a mechanism for

transferring persons in custody for identiﬁcation, testimony or

other types of assistance; and denial of refugee status in cases

where there are serious reasons for considering that the person

has committed an offense covered by the Convention.

116 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The Convention facilitates the implementation of many of the

mandatory measures called for in UNSCR 1373 by establishing

mechanisms for cooperation in the region, and by mandating

that Parties take speciﬁc, concrete steps that will advance their

implementation of the more general measures set forth in that

resolution. Those measures include: freezing funds or assets that

are used in or form the proceeds of terrorist offenses; measures

relating to the denial of refugee or asylum status; affording other

Parties the greatest measure of assistance in connection with

criminal investigations or criminal proceedings relating to terrorist

acts; and detecting and preventing the movement of terrorists and

terrorist groups by effective border controls and controls on the

issuance of travel and identity documents.

Article 10 establishes a procedure whereby persons in custody

may be transferred to another party for the purpose of providing

assistance in obtaining evidence for the investigation or prosecution

of any of the listed offenses. Under this Article, the transfer would

take place with the person’s consent and the agreement of the

states sending and receiving the person. This provision is found in

most modern U.S. mutual legal assistance treaties and in prior

conventions relating to terrorism, in particular the 1997 Inter-

national Convention on the Suppression of Terrorist Bombings

and the 1999 International Convention on the Suppression of the

Financing of Terrorism. As in those other legal instruments, it is

not meant to be the exclusive means of transferring persons in

custody but rather creates one possible modality for such transfers.

While implicit, it may be useful in the context of the Convention

to underscore this point, and I therefore recommend that the

following understanding be included in the United States instrument

of ratiﬁcation:

The United States of America understands that, as in other

treaties with such provisions, nothing in Article 10 or in this

Convention precludes the involuntary transfer of persons

pursuant to applicable domestic or international law.

Article 15 conﬁrms that the Convention’s implementation will

take place with full respect for the rule of law, human rights, and

International Criminal Law 117

fundamental freedoms. In addition, “international humanitarian

law’’ is included among the other rights and obligations of states

and individuals under international law that are not affected by

this Convention. In this respect, the term “international hum-

anitarian law” is used in this Convention in the same context as it

is used in the 1999 International Convention on the Suppres-

sion of the Financing of Terrorism and the 1997 International

Convention on the Suppression of Terrorist Bombings. This term

is not used by United States armed forces and could be subject to

varied interpretations.

As was the case for those two earlier instruments, it is the

United States’ intention, in the context of this Convention, to

interpret the term consistently with our understanding of the term

“law of war.” To conﬁrm the U.S. understanding on this point.

I recommend that the following understanding to Article 15,

paragraph 2, be included in the United States instrument of

ratiﬁcation:

The United States of America understands that the term

“international humanitarian law” in paragraph 2 of Article

15 of the Convention has the same substantive meaning as

the term “law of war.”

Recent precedents exist for the conclusion of law enforcement-

related treaties within the OAS framework. For example, the Inter-

American Convention Against Corruption done at Caracas on

March 29, 1996, was signed by the United States on June 2, 1996,

and that Convention entered into force for the United States on

October 29, 2000. The United States also signed the Inter-American

Convention on Mutual Assistance in Criminal Matters done at

Nassau on May 23, 1992, and a related Optional Protocol done

at Managua on June 11, 1993, on January 10, 1995, and that

Convention and its Optional Protocol entered into force for the

United States on June 24, 2001.

****

Respectfully submitted,

Colin L. Powell.

118 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

h. United States of America-ASEAN Joint Declaration for

Cooperation To Combat International Terrorism

On August 1, 2002, in Brunei, the United States and the

Association of Southeast Asian Nations (“ASEAN”) reached

agreement on the Joint Declaration for Cooperation to

Combat International Terrorism, signed by U.S. Secretary of

State Colin L. Powell for the United States and by Mohamed

Bolkiah, Minister of Foreign Affairs, Brunei Darussalam, for

ASEAN. At a joint press conference of ASEAN foreign

ministers on the same day, Secretary of State Powell described

the declaration as “focus[ing] on such issues as exchanging

information, exchanging intelligence, building the capacity

to do this in a more effective way and strengthening our

bilateral ties. It is a political declaration of things ASEAN

and the United States [can do] together in a more intimate

relationship, and we will use this declaration in the months

and years ahead to do more work together.” In May the

United States and Malaysia signed a similar declaration of

cooperation. Excerpts from the joint declaration with ASEAN

are provided below.

The full text of the joint press conference is available at

www.state.gov/secretary/rm/2002/12410.htm. The joint declara-

tion is available at www.state.gov/p/eap/rls/ot/12428pf.htm.

The Governments of Brunei Darussalam, the Kingdom of

Cambodia, the Republic of Indonesia, the Lao People’s Democratic

Republic, Malaysia, the Union of Myanmar, the Republic of the

Philippines, the Republic of Singapore, the Kingdom of Thailand,

the Socialist Republic of Viet Nam, member countries of the

Association of Southeast Asian Nations (ASEAN), and the United

States of America (hereinafter referred to collectively as “the

participants”);

****

Solemnly declare as follows;

****

International Criminal Law 119

Scope and Areas of Cooperation

3. The participants stress their commitment to seek to imple-

ment the principles laid out in this Declaration, in accordance

with their respective domestic laws and their speciﬁc circumstances,

in any or all of the following activities:

I. Continue and improve intelligence and terrorist ﬁnancing

information sharing on counter-terrorism measures, including the

development of more effective counter-terrorism policies and legal,

regulatory and administrative counter-terrorism regimes.

II. Enhance liaison relationships amongst their law enforcement

agencies to engender practical counter-terrorism regimes.

III. Strengthen capacity-building efforts through training

and education; consultations between ofﬁcials, analysts and ﬁeld

operators; and seminars, conferences and joint operations as

appropriate.

IV. Provide assistance on transportation, border and immigra-

tion control challenges, including document and identity fraud to

stem effectively the ﬂow of terrorist-related material, money and

people.

V. Comply with United Nations, Security Council Resolutions

1373, 1267, 1390 and other United Nations resolutions or

declarations on international terrorism.

VI. Explore on a mutual basis additional areas of cooperation.

Participation

4. Participants are called upon to become parties to all 12 of

the United Nations conventions and protocols relating to terrorism.

5. The participants are each called upon to designate an

agency to coordinate with law enforcement agencies, authorities

dealing with countering terrorism ﬁnancing and other concerned

government agencies, and to act as the central point of contact for

the purposes of implementing this Declaration.

****

i. APEC leaders’ statement

On October 26, 2002, the Asia Paciﬁc Economic Cooperation

forum (“APEC”) released a statement of its leaders, Fighting

120 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Terrorism and Promoting Growth, at the conclusion of the

annual APEC leaders’ meetings in Los Cabos, Mexico.

President George W. Bush joined leaders from other countries

in agreeing to speciﬁc, additional joint actions “to fully

implement the broad commitments” of the 2001 Shanghai

Counter-Terrorism Statement. In issuing the statement,

the leaders “endeavor[ed] to ensure that key Paciﬁc Rim

infrastructure in the areas of trade, ﬁnance and information

systems” is protected. A fact sheet released by the White

House on the same day described the results as follows:

In a show of unity by economies representing 60 percent

of global GDP and one quarter of the world’s Muslim

population, APEC Leaders agreed on a U.S.-proposed plan

to protect key transport, ﬁnance and information systems

from terrorists by enhancing secure trade, choking off

terrorist ﬁnancing, and promoting cyber security. This plan

complements the “Smart Border” programs President

Bush has launched with Mexico and Canada.

A key component of the undertaking is referred to as

Enhancing Secure Trade in the APEC Region (“STAR”). As

indicated in the fact sheet:

APEC economies account for 21 of the world’s top

seaports, and 23 of the world’s busiest airports. Today,

APEC members committed to accelerated action on

pre-screening people and cargo, increasing security on

ships and planes, and enhancing security in airports and

seaports.

****

. . . APEC-wide efforts to strengthen transport security

are complemented by the U.S. bilateral Container Security

Initiative (CSI), which revolutionizes border management

through pre-screening of cargo containers. The CSI has

been expanded to include key APEC megaports in Canada,

Hong Kong, Japan and Singapore. Earlier this week the

Untied States announced that China had become the

newest CSI participant.

International Criminal Law 121

The full text of the fact sheet is available at www.state.gov/

p/eap/rls/14705.htm.

j. “Smart border” initiatives with Mexico and Canada

On December 6, 2002, the White House released an

updated report on U.S. efforts to work with Canada to

implement a smart-border action plan to enhance security

along the border shared by the two countries, available

at http://usinfo.state.gov/topical/pol/terror/02120601.htm. The

plan, signed by President Bush and Canadian Prime Minister

Jean Chrétien in December 2001, aims to secure the cross-

border ﬂow of goods and people, protect infrastructure, and

improve information-sharing and coordination to enhance

these objectives.

A summary of the status, as of March 21, 2002, of a

twenty-two point U.S.-Mexico Border Partnership Action

Plan is available at www.whitehouse.gov/infocus/usmxborder/

22points.html.

k. G8 Recommendations on Counter-Terrorism

The G8, an informal group of eight countries, consisting of

Canada, France, Germany, Italy, Japan, Russia, the United

Kingdom, and the United States, held a summit meeting

in June 2002 at Kananaskis, Alberta, Canada. The foreign

ministers’ meeting of the G8, June 12–13, 2002, adopted

revised recommendations on counter-terrorism, “compris[ing]

standards, principles, best practices, actions and relationships

that the G8 views as providing improvements to the mechan-

isms, procedures and networks that exist to protect our

societies from terrorist threats. They are intended as commit-

ments by the G8, which we commend as guiding principles

to all States.” G8 Recommendations on Counter-Terrorism,

available at www.library.utoronto.ca/g7/foreign/fm130602f.htm.

The document also took note of the revised recommenda-

tions of the G8 crime group, known as the Lyon Group. The

122 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

revised Lyon Group Recommendations, entitled the G8

Recommendations on Transnational Crime, endorsed by G8

Ministers of Justice and the Interior (Mont-Tremblant, May

13–14, 2002), is available at www.g8j-i.ca/english/doc1.html.

2. Narcotrafﬁcking

a. Modiﬁcations to U.S. narcotics certiﬁcation process

(1) Temporary modiﬁcation for 2002

Section 591 of the Foreign Operations, Export Financing,

and Related Programs Appropriations Act (“FOAA”), FY 2002,

Pub. L. No. 107–115, 115 Stat. 2118, modiﬁed the narcotics

certiﬁcation procedures during ﬁscal year 2002 for countries

on the list of major illicit drug producing or drug-transit

countries. Under pre-existing law, § 490 of the Foreign

Assistance Act of 1961, as amended, 22 U.S.C. § 2291j, the

President was required to provide a list of such countries by

November 1 of each year, and to withhold 50 percent of

most forms of foreign assistance allocated to them pending

ﬁnal certiﬁcation of their compliance with their international

counternarcotics obligations. The President was required to

certify by March 1 of the following year that each country on

the list had cooperated fully or taken adequate steps on its

own to achieve full compliance with the goals and objectives

established by the UN Convention against Illicit Trafﬁc in

Narcotic Drugs and Psychotropic Substances, UN Doc.

No. UNE/CONF.82 (092)/UN2. Countries that were not so

certiﬁed could not receive most forms of ﬁnancial assistance

unless the President certiﬁed that the vital national interests

of the United States required the assistance to be provided.

Under § 591, for FY 2002 only, the President was required

to submit a report no later than 45 days after the Act was

enacted (i.e., it was to be submitted by February 24, 2002)

that identiﬁed each country that the President had determined

to be a major drug-transit or major illicit drug producing

country. Section 591 also required the President to identify

International Criminal Law 123

any country on the list that had “failed demonstrably . . .

to make substantial efforts” during the previous 12 months to

adhere to international counternarcotics agreements and to

take certain counternarcotics measures set forth in U.S. law.

U.S. assistance appropriated under the authority of the FOAA

for FY 2002 could not be provided to any country designated

as having “failed demonstrably” unless the President deter-

mined that the provision of such assistance was vital to U.S.

national interests or that the country, at any time after the

President’s initial report to Congress, had made “substantial

efforts” to comply with the counternarcotics conditions in

the legislation. In reaching this determination, the President

was required to consider each country’s performance in

areas such as stemming illicit cultivation, extraditing drug

trafﬁckers, and taking legal steps and law-enforcement

measures to prevent and punish public corruption that

facilitates drug trafﬁcking or impedes prosecution of drug-

related crimes. The President was also required to consider

efforts taken by these countries to stop the production and

export of, and reduce the domestic demand for, illegal drugs.

The prohibition on assistance did not affect humanitarian

and counternarcotics assistance, nor certain other types of

assistance that are authorized to be provided notwithstanding

any other provision of law.

On February 23, President Bush identiﬁed Afghanistan,

Burma, and Haiti as having failed demonstrably to make sub-

stantial efforts against illegal drug production and trafﬁcking

during the previous 12 months. U.S. assistance under the

FOAA could be provided to these countries only if the

President determined and reported to Congress that pro-

vision of such assistance to these countries was vital to the

national interests of the United States, notwithstanding

their counternarcotics performance. The President made

this determination with respect to Afghanistan and Haiti,

but not as to Burma. 67 Fed. Reg. 8,889 (Mar. 5, 2002).

Excerpts from the memorandum from the President to

the Secretary of State under section 591 are provided below.

124 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

This report is submitted under section 591 of the Kenneth

H. Ludden Foreign Operations, Export Financing and Related

Programs Appropriations Act, 2002 (P.L. 107–115) (the “FY 2002

FOAA”).Pursuant to section 591 of the FY 2002 FOAA, I hereby

identify the following countries as major drug-transit or major

illicit drug producing countries: Afghanistan, The Bahamas,

Bolivia, Brazil, Burma, China, Colombia, Dominican Republic,

Ecuador, Guatemala, Haiti, India, Jamaica, Laos, Mexico, Nigeria,

Pakistan, Panama, Paraguay, Peru, Thailand, Venezuela, and

Vietnam.I previously identiﬁed these same countries as major

drug-transit or major illicit drug producing countries on November

1, 2001, pursuant to section 490(h) of the Foreign Assistance Act

of 1961, as amended (the “FAA”).

Pursuant to section 591 of the FY 2002 FOAA, I hereby

designate Afghanistan, Burma and Haiti as countries that failed

demonstrably, during the previous 12 months, to adhere to their

obligations under international counternarcotics agreements

and to take the counter-narcotics measures set forth in section

489(a)(1) of the FAA.I have attached a justiﬁcation for each of

the countries so designated, as required by section 591.

Pursuant to section 591(3), I hereby also determine that pro-

vision of United States assistance to Afghanistan and Haiti in FY

2002 under the FY 2002 FOAA is vital to the national interests

of the United States.

****

(2) Permanent legislative change

On September 30, 2002, President George W. Bush signed

into law the Foreign Relations Authorization Act for Fiscal

years 2002 and 2003, Pub. L. No. 107–228, 116 Stat. 1350.

Section 706 of that act provided new drug-control certiﬁcation

procedures as a permanent change in law, 22 U.S.C. § 2291j–

1. The new legislation was similar to that in effect temporarily

for 2002, discussed in part (i) supra, with some additional

changes. Section 706 requires that the President submit to

Congress a report identifying major drug transit and illicit

International Criminal Law 125

drug producing countries no later than September 15 of each

year. The President is to designate any of the countries

identiﬁed on this list that have “failed demonstrably” during

the previous twelve months to make adequate efforts to ﬁght

narcotrafﬁcking, triggering limitations on assistance for the

subsequent ﬁscal year. The act also authorizes the President

to apply the current permanent legislation, found in section

490(a) through (h) of the Foreign Assistance Act of 1961, as

amended, instead of these new procedures.

b. International Narcotics Control Strategy Report

The amendments effective for 2002 did not alter the

requirement for an International Narcotics Control Strategy

Report to be ﬁled by March 1, 2002. The excerpt below from

the introduction to the report ﬁled on that date describes

the legal basis and purpose of the annual report.

The full text of the report is available at www.state.gov/g/

inl/rls/ncrcpt/2001.

The Department of State’s International Narcotics Control

Strategy Report (INCSR) has been prepared in accordance with

section 489 of the Foreign Assistance Act of 1961, as amended

(the “FAA,” 22 U.S.C. § 2291). The 2002 INCSR is the sixteenth

annual report prepared pursuant to the FAA. In addition to

addressing the reporting requirements of section 489 of the FAA

(as well as sections 481(d)(2) and 484(c) of the FAA and section

804 of the Narcotics Control Trade Act of 1974, as amended), the

INCSR provides the factual basis for the designations contained

in the President’s report to Congress on the major drug-transit or

major illicit drug producing countries pursuant to section 591 of

the Kenneth M. Ludden Foreign Operations, Export Financing,

and Related Programs Appropriations Act, 2002 (P.L. 107–115)

(the “FOAA”).

The FAA requires a report on the extent to which each country

or entity that received assistance under chapter 8 of Part I of the

126 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Foreign Assistance Act

in the past two ﬁscal years has “met the

goals and objectives of the United Nations Convention Against

Illicit Trafﬁc in Narcotic Drugs and Psychotropic Substances” (the

“1988 UN Drug Convention”). FAA § 489(a)(1)(A).

Although the Convention does not contain a list of goals and

objectives, it does set forth a number of obligations that the parties

agree to undertake. Generally speaking, it requires the parties to

take legal measures to outlaw and punish all forms of illicit drug

production, trafﬁcking, and drug money laundering, to control

chemicals that can be used to process illicit drugs, and to cooperate

in international efforts to these ends. The statute lists action by

foreign countries on the following issues as relevant to evaluat-

ing performance under the 1988 UN Drug Convention: illicit

cultivation, production, distribution, sale, transport and ﬁnancing,

and money laundering, asset seizure, extradition, mutual legal

assistance, law enforcement and transit cooperation, precursor

chemical control, and demand reduction.

In attempting to evaluate whether countries and certain entities

are meeting the goals and objectives of the 1988 UN Drug Con-

vention, the Department has used the best information it has

available. The 2002 INCSR covers countries that range from major

drug producing and drug-transit countries, where drug control is

a critical element of national policy, to small countries or entities

where drug issues or the capacity to deal with them are minimal.

The reports vary in the extent of their coverage. For key drug-

control countries, where considerable information is available, we

have provided comprehensive reports. For some smaller countries

or entities where only sketchy information is available, we have

included whatever data the responsible [U.S. diplomatic] post could

provide.

****

c. Money laundering

Section 311 of the USA PATRIOT Act, Pub. L. No. 107–56,

115 Stat. 272, 31 U.S.C. § 5318A, authorizes the Secretary of

the Treasury to designate a foreign jurisdiction, ﬁnancial

International Criminal Law 127

institution operating outside the United States, class of

transactions, or type of account as being of “primary money

laundering concern” and to impose one or more of ﬁve

“special measures” with respect to such jurisdiction, insti-

tution, class of transactions, or type of account. In order to

designate a jurisdiction under this provision, the Secretary

of the Treasury is required to consult with the Secretary of

State and the Attorney General. The Secretary of the Treasury

delegated his authority under this section to the Under

Secretary of the Treasury (Enforcement). On December 20

the Under Secretary exercised this authority for the ﬁrst

time. A Notice of Designation issued that day designated

the jurisdictions of Nauru and Ukraine as primary money-

laundering concerns. 67 Fed. Reg. 78,859 (Dec. 26, 2002).

Excerpts below provide background on the designations;

analysis of each of the two countries is also provided in the

Federal Register notice.

****

II. Imposition of Special Measures

The Department of the Treasury places these jurisdictions, and

those with whom they have dealings, upon notice of its intent,

after appropriate consultation, to follow this designation with the

imposition of special measures authorized by section 5318A(a).

With respect to Nauru, Treasury intends to impose the special

measure described in section 5318A(b)(5), which will prohibit

ﬁnancial dealings by U.S. ﬁnancial institutions with any Nauru

licensed institution, unless otherwise excepted. Under the terms of

section 5318A(a)(2)(C), this special measure can be imposed only

by promulgation of a rule. Treasury intends to initiate a rulemaking

shortly.

With respect to Ukraine, Treasury intends to impose one or

more of the information-gathering and record-keeping require-

ments of the special measures described in section 5318A(b)(1)

through (4). Those special measures can be imposed by an

order, which is limited in duration to 120 days, and which may

be extended indeﬁnitely through a rulemaking (see section

128 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

5318A(a)(2) and (3)). Treasury intends to issue an order while

simultaneously initiating a rulemaking to impose special measures

on Ukraine.

****

IV. Background

On October 26, 2001, the President signed into law the USA

PATRIOT Act. Title III of the Act makes a number of amendments

to the anti-money laundering provisions of the Bank Secrecy Act

(BSA), which are codiﬁed in subchapter II of chapter 53 of title

31, United States Code. These amendments are intended to make

it easier to prevent, detect, and prosecute international money

laundering and the ﬁnancing of terrorism.

BSA section 5318A, as added by section 311 of the Act,

authorizes the Secretary of the Treasury (Secretary) to designate

a foreign jurisdiction, institution, class of transactions or type

of account as being of “primary money laundering concern,” and

to impose one or more of ﬁve “special measures” with respect to

such a jurisdiction, institution, class of transactions, or type of

account. The Secretary has delegated his authority under section

5318A to the Under Secretary of the Treasury (Enforcement).

Section 5318A speciﬁes those factors that the Secretary must

consider before designating a jurisdiction, institution, transaction,

or account as of “primary money laundering concern.” The

evaluation of these factors against the summary of the administrat-

ive record, as subsequently set forth in this designation, has resulted

in the conclusion that both jurisdictions are of primary money

laundering concern.

Once the Secretary has considered the factors,

The following factors, in accordance with the requirements of section

5318A(c)(2)(A), are considered to be potentially relevant factors in evaluating

the necessity of designating Nauru and Ukraine. Nauru and Ukraine meet the

majority of these factors. First, whether organized criminal groups, inter-

national terrorists, or both, have transacted business within the designated

jurisdiction. Second, with respect to its banking practices, Treasury must

also evaluate (1) the extent to which the jurisdiction or ﬁnancial institutions

operating in the jurisdiction offer bank secrecy or special regulatory advant-

ages to nonresidents or nondomiciliaries of the jurisdiction; (2) the substance

and quality of administration of the bank supervisory and counter-money

International Criminal Law 129

consulted with the Secretary of State and the Attorney General (or

their designees), and made a ﬁnding that a jurisdiction is a pri-

mary money laundering concern, the Secretary is authorized to

impose one or more of the ﬁve “special measures” described in

5318A(b). These special measures can be imposed individually,

jointly, or in combination with respect to a designated “primary

money laundering concern.” Four of the special measures impose

information-gathering and record-keeping requirements upon those

domestic ﬁnancial institutions and agencies dealing either directly

with the jurisdiction designated as one of primary money

laundering concern, or dealing with those having direct dealings

with the designated jurisdiction.

Those four measures require:

(1) keeping records and ﬁling reports on particular transactions,

including the identities of the participants in the transactions

and the beneﬁcial owners of the funds involved; (2) obtaining

information on the beneﬁcial ownership of any account opened or

maintained in the United States by a foreign person or a foreign

person’s representative; (3) identifying and obtaining information

about customers permitted to use, or whose transactions are routed

through, a foreign bank’s “payable-through” account; or (4) iden-

tifying and obtaining information about customers permitted to

use, or whose transactions are routed through, a foreign bank’s

“correspondent” account.

Under the ﬁfth special measure, a domestic ﬁnancial institu-

tion or agency may be prohibited from opening or maintaining in

laundering laws of the jurisdiction; (3) the relationship between the volume

of ﬁnancial transactions occurring in the jurisdiction and the size of the

economy of the jurisdiction; and (4) the extent to which the jurisdiction

is characterized as an offshore banking or secrecy haven by credible interna-

tional organizations or multilateral expert groups. Third, with respect to its

enforcement mechanisms, Treasury must evaluate whether the United States

has a mutual legal assistance treaty with the jurisdiction, and determine the

experience of United States law enforcement ofﬁcials and regulatory ofﬁcials

in obtaining information about transactions originating in, or routed through

to, such jurisdiction. Finally, Treasury must evaluate the extent to which the

jurisdiction is characterized by high levels of ofﬁcial or institutional corruption.

Treasury is currently examining the extent of the applicability of

these requirements on those ﬁnancial institutions enumerated under the USA

PATRIOT Act.

130 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

the United States a correspondent account or a payable-through

account for or on behalf of a foreign ﬁnancial institution if the

account involves the designee.

In selecting which special measures to impose, the Secretary

must consider a number of factors.

In addition, imposition of

special measures (1) through (4) requires consultation with the

Chairman of the Board of Governors of the Federal Reserve System,

any other appropriate Federal banking agency (as deﬁned in sec-

tion 3 of the Federal Deposit Insurance Act), the Secretary of State,

the Securities and Exchange Commission, the Commodity Futures

Trading Commission, the National Credit Union Administration

Board, and any other agencies and interested parties as the Secretary

may ﬁnd appropriate. Imposition of special measure (5) requires

consultation with the Secretary of State, the Attorney General and

the Chairman of the Board of the Federal Reserve System.

The Treasury intends, after consultation as provided above, to

impose the ﬁfth special measure with respect to Nauru, and actions

under special measures one through four with respect to Ukraine.

Section 5318A lists several factors that the Secretary must consider,

in consultation with the Secretary of State and the Attorney

General, before imposing these special measures. Pursuant to

section 5318A, any of these ﬁrst four special measures can be

imposed by order, regulation or as otherwise permitted by law.

Special measures imposed by an order can be effective for not

more than 120 days, unless subsequently continued by a regulation

promulgated before the end of the 120-day period.

In determining generally what special measures to select and to impose,

the Secretary, in consultation with the agencies and “interested parties” set

forth immediately above, must consider the following factors: (1) whether

similar action has been or is being taken by other nations or multilateral

groups; (2) whether the imposition of any particular special measure would

create a signiﬁcant competitive disadvantage, including any undue cost or

burden associated with compliance, for ﬁnancial institutions organized or

licensed in the United States; (3) the extent to which the action or the timing

of the action would have a signiﬁcant adverse systemic impact on the

international payment, clearance, and settlement system, or on legitimate

business activities involving the particular jurisdiction, institution or class of

transactions; and (4) the effect of the action on United States national security

and foreign policy.

International Criminal Law 131

The ﬁfth special measure can only be imposed through the

issuance of a regulation. The issuance of the ﬁfth measure also

requires consultation with the Chairman of the Federal Reserve.

****

3. Jurisdiction in U.S. Courts

a. Crime occurring in Mexican territorial waters

On November 20, 2002, the U.S. Court of Appeals for the

Ninth Circuit afﬁrmed the conviction of a man for sexual

contact with a minor in violation of 18 U.S.C. § 2244(a)(3)

occurring in Mexican territorial waters on a cruise ship

departing from and returning to an American port. U.S. v.

Neil, 312 F.3d 419 (9

Cir. 2002). Section 2244(a)(3) of title

18 of the U.S. Code criminalizes such sexual contact “in the

special maritime and territorial jurisdiction of the United

States.” That term is deﬁned, as relevant here, to include “to

the extent permitted by international law, any foreign vessel

during a voyage having a scheduled departure from or arrival

in the United States with respect to an offense committed by

or against a national of the United States.” 18 U.S.C. § 7(8).

Excerpts below from the court of appeals decision

describe the court’s application of the two-part inquiry under

U.S. law in upholding the exercise of jurisdiction in this case.

Internal citations have been omitted.

****

We hold that the United States properly exercised jurisdiction.

The Constitution does not bar extraterritorial application of United

States penal laws. However, acts of Congress generally do not

have extraterritorial application unless Congress clearly so intends.

We undertake a two-part inquiry to determine whether

extraterritorial jurisdiction is proper. First, we look to the text of

the statute for an indication that Congress intended it to apply

extraterritorially. Second, we look to the operation of the statute

132 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

to determine whether the exercise of extraterritorial jurisdiction

complies with principles of international law. Because the statute

in question here explicitly applies outside the United States and

because exercising jurisdiction does not offend any principle of

international law, we hold that extraterritorial jurisdiction is

proper.

****

Congress has deﬁned the “special maritime and territorial

jurisdiction of the United States” as including, “to the extent

permitted by international law, any foreign vessel during a voyage

having a scheduled departure from or arrival in the United States

with respect to an offense committed by or against a national of

the United States.” 18 U.S.C. § 7(8). The criminal sexual contact

between Neil and the victim occurred on a foreign vessel that

departed from and arrived in the United States, and the victim

was a United States national. This conduct thus falls squarely into

the deﬁnition of special maritime and territorial jurisdiction set

out in § 7(8).

****

International law clearly supports extraterritorial jurisdic-

tion in this case. Two principles of international law permitting

extraterritorial jurisdiction are potentially relevant: the territorial

principle and the passive personality principle. Under the territorial

principle, the United States may assert jurisdiction when acts

performed outside of its borders have detrimental effects within

the United States. The sexual contact occurred during a cruise

that originated and terminated in California. Neil’s conduct

prompted an investigation by the FBI, and an agent arrested Neil

in the United States. The victim was an American citizen who lives

and goes to school in the United States, and who sought counseling

in this country after the attack. These facts are enough to support

jurisdiction under the territorial principle.

Extraterritorial jurisdiction is also appropriate under the passive

personality principle. Under this principle, a state may, under

certain circumstances, assert jurisdiction over crimes committed

International Criminal Law 133

against its nationals. We have previously sustained jurisdiction

based on the passive personality principle.

****

. . . By contrast [with U.S. v. Vasquez-Velasco, 15 F.3d 833

Cir. 1994), interpreting 18 U.S.C. § 1959, which “does not

explicitly state that it applies extraterritorially”], § 2244(a)(3) relies

on § 7(8), which invokes the passive personality principle by

explicitly stating its intent to authorize extraterritorial jurisdiction,

to the extent permitted by international law, when a foreign vessel

departs from or arrives in an American port and an American

national is a victim. We conclude that the passive personality

principle is appropriately invoked to justify the exercise of

extraterritorial jurisdiction in the circumstances speciﬁed in the

statute.

****

b. Crime occurring on high seas

(1) Violence against maritime navigation

On April 4, 2002, a federal grand jury indicted a national of

the People’s Republic of China for allegedly killing two

persons in connection with his seizure of control over a

ﬁshing vessel Full Means No. 2 by force and threat. The Full

Means No. 2 was a Taiwanese-owned vessel ﬂying the ﬂag of

the Republic of Seychelles. The U.S. Coast Guard intercepted

the vessel and boarded with the authorization of the

Seychelles. The crew had overpowered the alleged murderer

and had detained him in a stateroom. The United States

obtained authorization from the Seychelles government

to exercise jurisdiction over the vessel and the alleged

assailant. The indictment charged violations of 18 U.S.C.

§ 2280(a)(1)(A), (B), (G) and (H), implementing U.S. obliga-

tions under the Convention for the Suppression of Unlawful

Acts Against the Safety of Maritime Navigation, 1988 (“the

Convention”). Section 2280(b)(1)(C) establishes jurisdiction

134 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

over activities prohibited if “the offender is later found in the

United States after such activity is committed.”

Persons being held as material witnesses in the case

moved to quash the indictment for lack of jurisdiction. On

April 18, 2002, the U.S. District Court for the District of

Hawaii denied the motion, explaining that under Article 8 of

the Convention, the master of a ship may deliver a person

suspected of violating the Convention to any state party,

which is then obligated to either extradite or prosecute the

alleged offender under its laws. U.S. v. Yan Long Xiong, Misc.

02-00044 SOM-LEK. The court noted that the Convention

“clearly contemplates situations where suspects will be

brought involuntarily by the ship’s master to a state having

no connection with the offense for the purpose of extradition

or prosecution.” The litigation was pending at the end

of 2002.

(2) Maritime Drug Law Enforcement Act

On May 14, 2002, the U.S. Court of Appeals for the Fifth

Circuit upheld jurisdiction in U.S. federal court over the

captain of a ship with no apparent connection with the United

States charged with conspiracy to violate the Maritime Drug

Law Enforcement Act (“MDLEA”), 46 U.S.C. app. § 1901 et

seq. U.S. v. Suerte, 291 F.3d 366 (5

Cir. 2002). As described

in the court of appeals opinion, the defendant, a Philippine

national and resident of Colombia, was captain of a freighter

registered in Malta and owned by a member of a Colombian/

Venezuelan drug trafﬁcking organization. The United States

boarded the ship on the high seas with permission from

Malta. Subsequently, Malta waived objection to the enforce-

ment of U.S. law over the freighter and its crew. Suerte was

arrested and indicted for conspiracy to possess, with intent

to distribute, more than ﬁve kilograms of cocaine on board a

vessel subject to U.S. jurisdiction, in violation of the Maritime

Drug Law Enforcement Act, 46 U.S.C. app. § 1903. Section

1903(c)(1)(C) deﬁnes a “vessel subject to the jurisdiction

of the United States” to include “a vessel registered in a

International Criminal Law 135

foreign nation where the ﬂag nation has consented or waived

objection to the enforcement of United States law by the

United States.”

The court of appeals ﬁrst found no violation of the Due

Process Clause of the U.S. Constitution. Noting that the

Constitution expressly provides that “the Congress shall

have power . . . to deﬁne and punish Piracies and Felonies

committed on the high Seas, and Offenses against the Law

of Nations” (Piracies and Felonies Clause), U.S. CONST.

art. I, sec. 8, cl. 10, the court concluded:

. . . [W]e hold that, for the MDLEA issue at hand, and

to the extent the Due Process Clause may constrain

the MDLEA’s extraterritorial reach, that clause does not

impose a nexus requirement, in that Congress has

acted pursuant to the Piracies and Felonies Clause. Again,

that clause is “the only speciﬁc grant of power to be

found in the Constitution for the punishment of offenses

outside the territorial limits of the United States.”

[CONGRESSIONAL RESEARCH SEVICE, LIBRARY OF

CONGRESS, THE CONSTITUTION OF THE UNITED

STATES, ANALYSIS and INTERPRETATION, S. Doc.

No. 103–6, at 04 (Johnny H. Killian & George A. Costello

eds., 1992)].

The court then turned to a consideration of requirements

under international law, concluding that it imposed no nexus

requirement. Excerpts below provide the court’s analysis of

the international law applicable to the case.

****

Malta, under whose ﬂag Suerte’s vessel was registered,

consented to the boarding and search of his vessel, as well as to

the application of United States law. A ﬂag nation’s consent to

a seizure on the high seas constitutes a waiver of that nation’s

rights under international law. See United States v. Williams, 617

F.2d 1063, 1090 (5th Cir. 1980) (en banc). “Interference with a

ship that would otherwise be unlawful under international law

136 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

is permissible if the ﬂag state has consented”. RESTATEMENT

(THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED

STATES § 522 cmt. e (1987); see also Robinson, 843 F.2d at 4.

Along this line, and as noted, the MDLEA provides “[A] ‘vessel

subject to the jurisdiction of the United States’ includes . . . a vessel

registered in a foreign nation where the ﬂag nation has consented

or waived objection to the enforcement of United States law by

the United States”. 46 U.S.C. App. § 1903(c)(1)(C). This codiﬁes

the above-described generally accepted principle of international

law: a ﬂag nation may consent to another’s jurisdiction. See

RESTATEMENT (THIRD) § 522 reporters note 8 (the MDLEA

“conﬁrmed the practice” of relying on informal grants of consent

by ﬂag nations (emphasis added)); THOMAS J. SCHOENBAUM,

ADMIRALTY AND MARITIME LAW § 3–12 n.41 (3d ed. 2001)

(the principle that ﬂag-nation consent satisﬁes international law

requirements “is conﬁrmed by the MDLEA” (emphasis added)).

Such an agreement between the United States and a ﬂag nation

to apply United States law on a ﬂag-nation vessel may be made

informally. Robinson, 843 F.2d at 4; see also RESTATEMENT

(THIRD) § 301 & cmt. b. (international agreements need not be

formalized, nor need they be in writing).

****

Again, the power “to deﬁne and punish Piracies and Felonies

committed on the high seas, and Offenses against the Law of

Nations” is “the only speciﬁc grant of power to be found in the

Constitution for the punishment of offenses outside the territorial

limits of the United States”. S. DOC. NO. 103–6, at 304 (emphasis

added).  The MDLEA represents an extremely limited exercise of

that power. For certain persons not aboard United States vessels

or in United States customs waters, it proscribes drug trafﬁcking

only aboard a stateless vessel or, as in the case at hand, a vessel

whose ﬂag nation consents to enforcement of United States law.

Enforcement of the MDLEA in these circumstances is neither

arbitrary nor fundamentally unfair (the due process standard agreed

upon by Suerte and the Government). Those subject to its reach

are on notice. In addition to ﬁnding “that trafﬁcking in controlled

substances aboard vessels . . . presents a speciﬁc threat to the security

International Criminal Law 137

and societal well-being of the United States”, Congress has also

found that such activity “is a serious international problem and is

universally condemned”. 46 U.S.C. App. § 1902 (emphasis added).

Along this line, the United Nations Convention Against Illicit Trafﬁc

in Narcotic Drugs and Psychotropic Substances, opened for signa-

ture 20 Dec. 1988, 28 I.L.M. 493, to which Malta and the United

States are signatories, provides as its purpose: “to promote coop-

eration among the Parties so that they may address more effectively

the various aspects of illicit trafﬁc in narcotic drugs and psycho-

tropic substances having an international dimension”. Id. art.2.

C. INTERNATIONAL CRIMINAL TRIBUNALS

1. Ad Hoc Tribunals and Related Issues

a. International Criminal Tribunal for Rwanda

(1) Reward for information leading to the apprehension

of Felicien Kabuga

On June 12, 2002, Ambassador Pierre-Richard Prosper, Ofﬁcer

of War Crimes issues, U.S. Department of State, speaking

in Nairobi, Kenya, announced a reward program aimed at

persons indicted by the International Criminal Tribunal for

Rwanda. The initial step in this program was the offer of a

reward for information leading to the apprehension of Felicien

Kabunga, as explained in excerpts from the press release

below.

The full text of the press release is available at

www.state.gov/s/wci/rls/rm/2002/11012.htm.

Today, the United States of America is announcing the

beginning of an aggressive and targeted campaign to apprehend

key persons indicted by the United Nations International Criminal

Tribunal for Rwanda for serious violations of international

humanitarian law, including genocide, crimes against humanity

and war crimes. . . .

138 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

As many of you know, the United States has been a leader

in seeking accountability for grave violations of international

humanitarian law. Our Rewards for Justice program has been an

indispensable tool in our effort to bring perpetrators to justice.

We have used this program in the war on terror and in the former

Yugoslavia in pursuit of notorious persons indicted for war crimes,

including Slobodan Milosevic, Radovan Karadzic, and Ratko

Mladic. Today we are bringing this tool to bear on those individuals

who have been indicted by the ICTR for serious violations of

international humanitarian law, that is, those most responsible

and most wanted for the Rwandan genocide. Our goal is to search

for each key indicted individual one by one until they are

apprehended and brought into the custody of the Tribunal. This

effort is done under the authority of Public Law 106–277 (October

2000) sponsored by Senator Feingold (D-WI).

We begin our campaign today in search of a man accused of

being the main supporter and ﬁnancier of the Interahamwe militia

who were behind the massacre of over 800,000 of Rwanda’s men,

women, and children in 100 days of terror. The name of this

fugitive from justice is Félicien Kabuga.

Mr. Kabuga is a wealthy businessman who is accused of using

his vast assets to propel the Rwandan massacres, ﬁrstly, by

affording a platform to disseminate the message of ethnic hatred

through the radio station, Radio Télévision Libre des Mille Collines

(RTLM), and secondly, by providing logistic support such as

weapons, uniforms, and transportation to the Interahamwe militia

group of the Mouvement Républicain National pour le Démocratie

et le Développement (MRND) and the militia of Coalition pour la

Défense de la République (CDR).

Félicien Kabuga is accused of planting the seeds of the massacre

by propagating extremist Hutu ideology and its message of ethnic

hatred and violence, and thus, contributing to the genocidal

indoctrination of the Rwandan people. As an example of his

commitment to this evil, when asked to stop broadcasting mess-

ages inciting inter-ethnic hatred, Félicien Kabuga defended and

continued the broadcasts on the radio station he dedicated to

“Hutu Power,” according to the indictment.

International Criminal Law 139

Félicien Kabuga is accused of exercising considerable inﬂuence

over the MRND and CDR members, militiamen, and the local

authorities as their main ﬁnancier and backer. It is these local

authorities and militiamen, in complicity with members of the

military, who massacred the Tutsi population and moderate Hutu

throughout the Rwandan territory.

Félicien Kabuga is also accused of distributing weapons with

the intent to exterminate the Tutsi population and eliminate its

“accomplices.” Through his company Félicien Kabuga is alleged

to have made massive purchases of machetes, hoes, and other

agricultural implements knowing that they would be used as

weapons of murder.

For these alleged acts, Mr. Kabuga is indicted for genocide,

crimes against humanity, and violations of the Geneva Convention.

It is now time to bring him to justice. It is time for Mr. Kabuga to

come out of hiding and face the charges against him. It is time for

those who have information to come forward and time for those

who are harboring Félicien Kabuga to cease their protection.

Félicien Kabuga is believed to frequent Kenya, Europe, and

other countries such as Madagascar and Gabon. Through this

advertising campaign, and with the help of the Kenyan ofﬁcials

and citizens, we will begin the search for him here in Kenya. . . .

****

We ask all governments to meet their international obliga-

tion and join us in our effort. We ask all governments to lend

full assistance to this campaign and assist in the apprehension

of fugitives hiding from the International Criminal Tribunal for

Rwanda. To combat atrocities and end abuses and inhumanity we

must stand together.

****

(2) Rewards concerning persons associated with the Congo region

On July 29, 2002, Ambassador Prosper announced a further

step in the effort to bring fugitives indicted by the Inter-

national Criminal Tribunal for Rwanda to justice. Speaking in

140 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Kinshasa, Democratic Republic of the Congo, he announced

rewards for information leading to the apprehension of eight

persons known to have spent time in the Democratic Republic

of the Congo and other states in the region. Excerpts below

also address the role of this initiative in bringing peace to

the region.

The full text of Ambassador Prosper’s statement is

available at www.state.gov/s/wci/rls/rm/2002/12279.htm.

We come here today at a deﬁning moment for the Great Lakes

region of Africa. An agreement is in the process of being concluded

that, if fulﬁlled, will bring stability to an embattled region. The

United States welcomes the understanding reached last week

between Congolese and Rwandan envoys in South Africa to help

resolve the conﬂict in the Congo and believes it is an important

step forward in the peace process. We are presented with a unique

opportunity to strive to secure hope and prosperity for the future.

Today, I announce the expansion of our aggressive and targeted

initiative to bring to justice persons indicted for the worst acts

of inhumanity. Persons whose presence here in the Congo and

elsewhere has been a major source of instability and despair for

ordinary citizens. Joining me today in making this announcement

is the Congolese Minister of Human Rights, Ntumba Luaba. . . .

The United States is offering up to ﬁve million U.S. dollars to

anyone who has information that will lead to the arrest and transfer

of persons indicted by the International Criminal Tribunal for

Rwanda. We are expanding this “Rewards for Justice” campaign

to the Congo region as part of the larger effort to bring peace to

the Great Lakes region of Africa. Let me be clear. The citizens of

this country have suffered greatly. A key to ending the suffering is

ending the conﬂict. A key to ending the conﬂict is bringing fugitives

of the Tribunal to justice. With the recent understanding for peace,

the Democratic Republic of the Congo and Rwanda put to paper

an agreement to work together to track and dismantle the ex-Far

and Interahamwe forces, some committed genocide, all continue

to ﬁght. It is our ﬁrm belief that with the removal of the key

International Criminal Law 141

ﬁgures of this group an environment will be created that will see

Rwanda withdraw its troops from the Congo, thousands of

refugees return to their country, and allow us to address the issues

and problems that have plagued this nation east to west for almost

a decade. The time now has come to draw the net tightly around

war criminals. We are here to help.

****

. . . This is a critical moment in history, where there is a choice

between leaving these fugitives and other negative elements to

fester and foment ongoing conﬂict or making a strong effort to

apprehend them, thus bringing to end the bitter war. Let me stress

that we are only seeking those indicted by the UN Tribunal; those

who are in positions of leadership. Those not indicted, the foot

soldiers, can be disarmed, demobilized and repatriated to Rwanda.

These are the fugitives of justice who have been indicted by the

UN Tribunal and must be called to account: Augustin Bizimana.

Jean-Baptiste Gatete. Augustin Bizimungu. Idelphonse Hatege-

kimana. Augustin Ngirabatware. Idelphonse Nizeyimana. Protais

Mpiranya and Callixte Nzabonimana. They are reported to have

spent time here in the Democratic Republic of the Congo, as well

as next door in Congo-Brazzaville, Gabon, Angola and other states

in this region. There are others here and elsewhere who are not

pictured here but who we intend to name in the near future.

All these fugitives have been indicted for genocide, crimes

against humanity, and violations of the Geneva Conventions and

continue to play a destructive role. We are determined to ﬁnd

these fugitives. I am pleased that President Kabila has given

his personal assurance to pursue these individuals as an effort to

bring peace, justice and improve the lives of his citizens. Their

apprehension, however, will require a broad effort on behalf of

the international community, the regional governments, and the

citizens of the Congo. We urge all governments in the region – the

Republic of the Congo, Angola, the Central African Republic,

Zambia, Gabon – to join us in this campaign. We ask the citizens

of the Congo, anyone and everyone who possesses knowledge as

to the whereabouts of those wanted, to come forward to help

142 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

their country. In order to truly secure peace, the people of the

Congo must do their part. . . .

****

b. International Criminal Tribunal for Yugoslavia

(1) Anticipated conclusion of ICTY work

In remarks to a conference of the Organization for Security

and Cooperation in Europe conference in Belgrade, Federal

Republic of Yugoslavia, on June 15, 2002, Pierre-Richard

Prosper, Ambassador-at-Large for War Crimes Issues, U.S.

Department of State, addressed the goal of completing all

ﬁrst-instance trials before the International Criminal Tribunal

for the Former Yugoslavia (“ICTY”) by 2008. Excerpts below

also address the importance of increased cooperation with

the Tribunal by the regional states and the eventual transfer

of responsibility back to Yugoslavia for prosecutions in its

domestic courts.

The full text of the speech is available at www.state.gov/

s/wci/rls/rm/2002/11287pf.htm.

****

War Crimes Overview

****

[The United States] vision was to work together with all

parties to spread and share the responsibility in the global effort

to bring to justice those responsible for heinous atrocities and war

crimes. We believe that as part of this objective, the Tribunal, the

international community and the regional states share a collective

interest in reaching a successful conclusion to trials of war crimes

by 2008. In this effort, everyone has a part to play and success is

only possible if all fulﬁll their responsibilities. The Tribunal must

remain focused in its prosecutions of the political and military

leaders most responsible for war crimes. The regional states must

International Criminal Law 143

cooperate fully with the Tribunal and accept their responsibil-

ity to hold war criminals accountable. And the international

community must support the Tribunal and the regional states in

their efforts to secure an end to impunity.

Tribunal’s Role

The ﬁrst of these three parties, the ICTY, is on its way to a

successful completion of its mandate to bring to justice those most

responsible for serious violations of international humanitarian

law. The Tribunal is now focusing its investigations and pro-

secutions primarily on the major political and military leaders and

the trials of key ﬁgures are now underway. The Tribunal’s work

has played a crucial role in securing peace and stability in the

Balkans region and in reestablishing the standard that crimes

against humanity are intolerable. In this effort the Tribunal is a

part of a larger goal: being the catalyst to reestablish a culture of

accountability in the regional states so that such a Tribunal will

never again be needed.

Yugoslavia’s Cooperation with the ICTY

As the result of our collective efforts we also see progress

within the regional states. Last year 17 persons indicted for war

crimes went to The Hague from the Balkan states—more than the

previous2 years combined. Many of these individuals went as the

result of their voluntary surrender and many came from Yugoslavia.

In the Federal Republic of Yugoslavia, the level of cooperation with

The Hague and recognition of international obligations increased.

This year in Yugoslavia that increase continued. We saw further

voluntary transfers to The Hague. We saw the passage of a law on

cooperation with The Hague Tribunal by the Federal Republic.

We saw further action towards full cooperation with the Tribunal

with the creation of a National Council on Cooperation with the

ICTY. The Council has taken steps to put in place procedures

to facilitate the Tribunal’s access to documents, suspects and

witnesses. Since the passage of the law on cooperation with the

ICTY, the government has facilitated additional voluntary transfers

144 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

of six indictees and the arrest of Ranko Cesic, who we hope will

be transferred to The Hague soon. These actions led Secretary of

State Colin L. Powell to determine on May 21 that the Federal

Republic of Yugoslavia was cooperating with the ICTY.

Yugoslavia Accepting Responsibility To Adjudicate

andInternational Support

The events of the past year are signs of a truly monumental shift.

They show that we are moving in the direction of a return to full

state sovereignty for the Federal Republic of Yugoslavia. With

this shift comes responsibility. This responsibility demands initiative

by Yugoslavia and strong political will. Now, more than ever, we

must continue to work cooperatively to coordinate our shared

commitment to justice.

The Tribunal’s goal of reaching a successful conclusion by

2008 is not an end to justice efforts, but rather a transfer of the

primary responsibility for holding war criminals accountable

back to Yugoslavia and the regional governments. Yugoslavia and

the other regional states are the entities that have the greatest

right and most pressing interest to hold abusers accountable. If

Yugoslavia is to accept this challenge it must do its part to ensure

that investigation, prosecution, and adjudication are undertaken

in accordance with a credible, just, impartial, and effective legal

system. This will require changes, and, in some cases, difﬁcult

political choices—choices that are a part of any true democracy.

Steps for Domestic Adjudication

Therefore, we should strive to build a system that will enable

the free and fair prosecution of war crimes cases in Yugoslavia’s

domestic jurisdictions. This does not, however, require an overhaul

of the entire judicial system. Rather, it requires targeted, strategic

assistance from the international community to augment existing

structures.

It is imperative that these cases be insulated from political

inﬂuence, that there be sufﬁcient security to protect the witnesses

and other trial participants, and that the outcomes are untainted

International Criminal Law 145

by corruption. Specialized chambers are one mechanism for achiev-

ing this. We should consider creating a specialized approach within

the Yugoslav domestic system. Select prosecutors, judges, and other

ofﬁcials should be appointed to sit in these specialized chambers

and vetted to ensure they are well-qualiﬁed and impartial. Inter-

national participants can be added to provide expertise as needed.

****

We are prepared to begin by assisting the government in the

training of practitioners here, with the goal of generating a force

multiplier that will propel positive action by subordinate jurists. We

also encourage the ICTY to add to this training if requested and

assign one person as the point of contact to facilitate the transfer

back to the state. The International Criminal Tribunals for the

Former Yugoslavia and Rwanda offer a unique and illuminating

body of experience and expertise in the adjudication of war crimes

that should not be ignored. We envision close collaboration be-

tween the ICTY and Yugoslavia to deﬁne expectations and under-

standings for the transfer of cases and for support in meeting

these standards. This support would include, where feasible, shared

access to case ﬁles and evidence databases. We anticipate practi-

tioner to practitioner exchanges between states to build valuable

long-term contacts that will strengthen a collective rule of law.

We suggest adding to the overall effort a truth revealing process

to address lower-level offenders. It may not be feasible for every

perpetrator to be prosecuted in a formal court of law. However,

this need not mean that the culpable should escape accountability.

A good faith adjudication in a truth and reconciliation commission,

or in other locally based mechanisms of justice must point the

ﬁnger of accusation to ensure that the wrongdoer understands his

or her transgressions.

****

(2) Cooperation by Federal Republic of Yugoslavia

As noted above, the cooperation of the Federal Republic

of Yugoslavia with the International Criminal Tribunal for

146 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Yugoslavia is essential to bringing fugitives to justice. Sec-

tion 584 of the Foreign Operations, Export Financing and

Related Programs Appropriations Act, FY 2002, imposed re-

strictions on assistance to Serbia after March 31, 2002, unless

the Secretary of State certiﬁed that the Government of the

FRY was taking certain actions with respect to the ICTY,

the Dayton Accords, minority rights and rule of law. Pub.L.

No. 107–115, 115 Stat. 2118 (2002).

On April 1, 2002, the Department of State deferred that

decision, announcing that “[a]lthough Yugoslavia made

signiﬁcant progress with respect to the certiﬁcation criteria,

the Secretary has determined that it would be premature to

certify at this point. We have communicated our decision

to Belgrade authorities, and have reiterated to them our

desire to see further progress on certiﬁcation issues.” See

www.state.gov/r/pa/prs/ps/2002/9104.htm.

On May 21, 2002, Secretary of State Colin L. Powell made

the required certiﬁcation. The Secretary explained his decision

as set forth below.

The full text of the Secretary’s remarks is available at

www.state.gov/secretary/rm/2002/10347.htm.

I [certiﬁed] on the basis of new laws that have been passed

in Belgrade, voluntary surrenders that have taken place, and

indictments that have been issued to those who remain still outside

the jurisdiction of the Tribunal. I also noted Kosovar Albanians

released and other actions that have been taken on the part of the

government in Belgrade that demonstrated to me that cooperation

has improved.

There is still more that we will have to do in the months

ahead. . . . [W]e are very anxious to work with them to see if

Mr. Mladic can be brought to justice.

But I think this is an important step forward in relations

between our two countries. We are also interested in improving

things economically as well, so we will be taking actions through

our OFAC branch at the Treasury Department to begin the process

International Criminal Law 147

of unfreezing assets that had been previously frozen, start the

thawing process. It takes a while.

c. Sierra Leone

On January 16, 2002, the Government of Sierra Leone and the

UN signed an agreement establishing the Special Court, which

will have jurisdiction over those individuals who bear the gre-

atest responsibility for violations of international humanitarian

law and relevant Sierra Leone law, since November 30, 1996.

The United States welcomed the development in a press

statement issued by the Department of State, set forth in

full below. See www.state.gov/r/pa/prs/ps/2002/7348.htm.

By the end of 2002 the Prosecutor for the Special Court

had begun instituting investigations, and judges had been

sworn in.

The United States welcomes the signiﬁcant events this week,

which signal tangible progress in putting an end to the long bloody

civil war in Sierra Leone. The United States strongly supports

concrete steps toward a just and lasting peace.

We applaud the signature on January 16 by the Government

of Sierra Leone and the UN of an agreement establishing the Special

Court. The Court will investigate, indict and try those persons,

whoever they may be, who bear the greatest responsibility for

violations of international humanitarian law and relevant local

law in Sierra Leone. The United States has contributed $5 million

for its establishment and ﬁrst year of operation.

On January 17, representatives of the Government of Sierra

Leone, the Revolutionary United Front and the United Nations

Mission in Sierra Leone (UNAMSIL) held the last of a series of

meetings of a Tripartite Commission that had reviewed the status of

the country’s disarmament program. They agreed that the process

was now complete. Since May 2001 more than 45,000 former

members of the Revolutionary United Front, pro-government

148 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

militias and other ﬁghting groups have turned in their weapons to

the UN.

****

d. Extraordinary chambers in Cambodia

On December 18, 2002, the UN General Assembly adopted

a resolution calling for renewed discussion of establishment

of a mechanism to bring war criminals in Cambodia to trial.

UN Doc. NO. A/RES/57/228 (2002). Nicholas Rostow, U.S.

Counsel, welcomed the resolution, noting that “[t]he United

States has been and remains a strong supporter of the

establishment of a credible Tribunal to bring to justice

those most responsible for atrocities committed during

the period of Democratic Kampuchea.” The full text of the

statement is available at www.un.int/usa/02_202.htm.

2. International Criminal Court

a. U.S. decision not to become party to Statue of Rome

(1) Notiﬁcation of decision to UN

On May 6, 2002, the United States notiﬁed the United

Nations that it did not intend to become a party to the

Statute of Rome establishing the International Criminal Court,

UN Doc. No. A/CONF.183/9 (July 17, 1998) (“Rome Statute”),

41 I.L.M. 1014 (2002), and that there were therefore no legal

obligations arising from its signature of December 31, 2000.

The full text of the letter to UN Secretary General Koﬁ Annan

from John R. Bolton, Under Secretary of State for Arms

Control and International Security, is set forth below, available

at www.state.gov/r/pa/prs/ps/2002/9968.htm.

This is to inform you, in connection with the Rome Statute of

the International Criminal Court adopted on July 17, 1998, that

International Criminal Law 149

the United States does not intend to become a party to the treaty.

Accordingly, the United States has no legal obligations arising from

its signature on December 31, 2000. The United States requests

that its intention not to become a party, as expressed in this letter,

be reﬂected in the depositary’s status lists relating to this treaty.

(2) Explanation of decision

On the same day, Marc Grossman, Under Secretary of State

for Political Affairs, explained the U.S. decision concerning

the International Criminal Court in a speech to the Center

for Strategic and International Studies, Washington, D.C. In

his prepared remarks, set forth below, Under Secretary

Grossman explained why the International Criminal Court

does not advance principles in which America believes and

the need to take this ofﬁcial step to make U.S. objections

clear and remove any expectations of U.S. involvement with

the court. He also emphasized the U.S. belief that those

who commit the most serious crimes of concern to the

international community should be punished.

The full text of Under Secretary Grossman’s remarks is

available at www.state.gov/p/9949.htm.

****

Here’s what America believes in:

• We believe in justice and the promotion of the rule of law.

• We believe those who commit the most serious crimes of

concern to the international community should be punished.

• We believe that states, not international institutions are

primarily responsible for ensuring justice in the inter-

national system.

• We believe that the best way to combat these serious

offenses is to build domestic judicial systems, strengthen

political will and promote human freedom.

We have concluded that the International Criminal Court does

not advance these principles. Here is why:

150 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

• We believe the ICC undermines the role of the United

Nations Security Council in maintaining international peace

and security.

• We believe in checks and balances. The Rome Statute

creates a prosecutorial system that is an unchecked power.

• We believe that in order to be bound by a treaty, a state

must be party to that treaty. The ICC asserts jurisdiction

over citizens of states that have not ratiﬁed the treaty. This

threatens US sovereignty.

• We believe that the ICC is built on a ﬂawed foundation.

These ﬂaws leave it open for exploitation and politically

motivated prosecutions.

President Bush has come to the conclusion that the United

States can no longer be a party to this process. In order to make

our objections clear, both in principle and philosophy, and so as

not to create unwarranted expectations of U.S. involvement in the

Court, the President believes that he has no choice but to inform

the United Nations, as depository of the treaty, of our intention

not to become a party to the Rome Statute of the International

Criminal Court. This morning, at the instruction of the President,

our mission to the United Nations notiﬁed the UN Secretary

General in his capacity as the depository for the Rome Statute

of the President’s decision. These actions are consistent with the

Vienna Convention on the Law of Treaties.

The decision to take this rare but not unprecedented act was

not arrived at lightly. But after years of working to ﬁx this ﬂawed

statute, and having our constructive proposals rebuffed, it is our

only alternative.

Historical Perspective

Like many of the nations that gathered in Rome in 1998 for the

negotiations to create a permanent International Criminal Court,

the United States arrived with the ﬁrm belief that those who per-

petrate genocide, crimes against humanity, and war crimes must

be held accountable—and that horrendous deeds must not go

unpunished.

International Criminal Law 151

The United States has been a world leader in promoting

the rule of law. From our pioneering leadership in the creation

of tribunals in Nuremberg, the Far East, and the International

Criminal Tribunals for the former Yugoslavia and Rwanda, the

United States has been in the forefront of promoting international

justice. We believed that a properly created court could be a useful

tool in promoting human rights and holding the perpetrators of

the worst violations accountable before the world—and perhaps

one day such a court will come into being.

A Flawed Outcome

But the International Criminal Court that emerged from the Rome

negotiations, and which will begin functioning on July 1 will not

effectively advance these worthy goals.

First, we believe the ICC is an institution of unchecked power.

In the United States, our system of government is founded on the

principle that, in the words of John Adams, “power must never

be trusted without a check.” Unchecked power, our founders

understood, is open to abuse, even with the good intentions of

those who establish it.

But in the rush to create a powerful and independent court

in Rome, there was a refusal to constrain the Court’s powers in

any meaningful way. Proposals put forward by the United States

to place what we believed were proper checks and balances on the

Court were rejected. In the end, despite the best efforts of the U.S.

delegation, the ﬁnal treaty had so many defects that the United

States simply could not vote for it.

Take one example: the role of the UN Security Council. Under

the UN Charter, the UN Security Council has primary responsibility

for maintaining international peace and security. But the Rome

Treaty removes this existing system of checks and balances, and

places enormous unchecked power in the hands of the ICC pro-

secutor and judges. The treaty created a self-initiating prosecutor,

answerable to no state or institution other than the Court itself.

In Rome, the United States said that placing this kind of

unchecked power in the hands of the prosecutor would lead to

152 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

controversy, politicized prosecutions, and confusion. Instead, the

U.S. argued that the Security Council should maintain its responsib-

ility to check any possible excesses of the ICC prosecutor. Our argu-

ments were rejected; the role of the Security Council was usurped.

Second, the treaty approved in Rome dilutes the authority of

the UN Security Council and departs from the system that the

framers of the UN Charter envisioned.

The treaty creates an as-yet-to-be deﬁned crime of “aggression,”

and again empowers the court to decide on this matter and lets

the prosecutor investigate and prosecute this undeﬁned crime. This

was done despite the fact that the UN Charter empowers only the

Security Council to decide when a state has committed an act of

aggression. Yet the ICC, free of any oversight from the Security

Council, could make this judgment.

Third, the treaty threatens the sovereignty of the United States.

The Court, as constituted today, claims the authority to detain

and try American citizens, even though our democratically-elected

representatives have not agreed to be bound by the treaty. While

sovereign nations have the authority to try non-citizens who have

committed crimes against their citizens or in their territory, the

United States has never recognized the right of an international

organization to do so absent consent or a UN Security Council

mandate.

Fourth, the current structure of the International Criminal

Court undermines the democratic rights of our people and could

erode the fundamental elements of the United Nations Charter,

speciﬁcally the right to self defense.

With the ICC prosecutor and judges presuming to sit in

judgment of the security decisions of States without their assent,

the ICC could have a chilling effect on the willingness of States to

project power in defense of their moral and security interests.

This power must sometimes be projected. The principled pro-

jection of force by the world’s democracies is critical to protecting

human rights—to stopping genocide or changing regimes like the

Taliban, which abuse their people and promote terror against the

world.

Fifth, we believe that by putting U.S. ofﬁcials, and our men

and women in uniform, at risk of politicized prosecutions, the

International Criminal Law 153

ICC will complicate U.S. military cooperation with many friends

and allies who will now have a treaty obligation to hand over U.S.

nationals to the Court—even over U.S. objections.

The United States has a unique role and responsibility to

help preserve international peace and security. At any given time,

U.S. forces are located in close to 100 nations around the world

conducting peacekeeping and humanitarian operations and ﬁghting

inhumanity.

We must ensure that our soldiers and government ofﬁcials

are not exposed to the prospect of politicized prosecutions and

investigations. Our President is committed to a robust American

engagement in the world to defend freedom and defeat terror; we

cannot permit the ICC to disrupt that vital mission.

Our Efforts

The President did not take his decision lightly.

After the United States voted against the treaty in Rome, the

U.S. remained committed and engaged—working for two years to

help shape the court and to seek the necessary safeguards to prevent

a politicization of the process. U.S. ofﬁcials negotiated to address

many of the concerns we saw in hopes of salvaging the treaty.

The U.S. brought international law experts to the preparatory

commissions and took a leadership role in drafting the elements

of crimes and the procedures for the operation of the court.

While we were able to make some improvements during our

active participation in the UN Preparatory Commission meetings

in New York, we were ultimately unable to obtain the remedies

necessary to overcome our fundamental concerns.

On December 31, 2000, the previous administration signed

the Rome Treaty. In signing President Clinton reiterated “our

concerns about the signiﬁcant ﬂaws in the treaty,” but hoped the

U.S. signature would provide us inﬂuence in the future and assist

our effort to ﬁx this treaty. Unfortunately, this did not prove to

be the case.

On April 11, 2002, the ICC was ratiﬁed by enough countries

to bring it into force on July 1 of this year. Now we ﬁnd ourselves

154 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

at the end of the process. Today, the treaty contains the same

signiﬁcant ﬂaws President Clinton highlighted.

Our Philosophy

While we oppose the ICC we share a common goal with its

supporters—the promotion of the rule of law. Our differences are

in approach and philosophy. In order for the rule of law to have

true meaning, societies must accept their responsibilities and be

able to direct their future and come to terms with their past. An

unchecked international body should not be able to interfere in

this delicate process.

For example: When a society makes the transition from

oppression to democracy, their new government must face their

collective past. The state should be allowed to choose the method.

The government should decide whether to prosecute or seek

national reconciliation. This decision should not be made by

the ICC.

If the state chooses as a result of a democratic and legal process

not to prosecute fully, and instead to grant conditional amnesty,

as was done in difﬁcult case of South Africa, this democratic

decision should be respected.

Whenever a state accepts the challenges and responsibil-

ities associated with enforcing the rule of law, the rule of law is

strengthened and a barrier to impunity is erected. It is this barrier

that will create the lasting goals the ICC seeks to attain. This

responsibility should not be taken away from states.

International practice should promote domestic accountability

and encourage sovereign states to seek reconciliation where feasible.

The existence of credible domestic legal systems is vital to

ensuring conditions do not deteriorate to the point that the

international community is required to intercede.

In situations where violations are grave and the political will

of the sovereign state is weak, we should work, using any inﬂuence

we have, to strengthen that will. In situations where violations

are so grave as to amount to a breach of international peace

International Criminal Law 155

and security, and the political will to address these violations is

non-existent, the international community may, and if necessary

should, intercede through the UN Security Council as we did in

Bosnia and Rwanda.

Unfortunately, the current framework of the Rome treaty

threatens these basic principles.

We Will Continue To Lead

Notwithstanding our disagreements with the Rome Treaty, the

United States respects the decision of those nations who have

chosen to join the ICC; but they in turn must respect our decision

not to join the ICC or place our citizens under the jurisdiction of

the court.

So, despite this difference, we must work together to promote

real justice after July 1, when the Rome Statute enters into force.

The existence of a functioning ICC will not cause the United

States to retreat from its leadership role in the promotion of

international justice and the rule of law.

The United States will:

• Work together with countries to avoid any disruptions

caused by the Treaty, particularly those complications in

US military cooperation with friends and allies that are

parties to the treaty.

• Continue our longstanding role as an advocate for the

principle that there must be accountability for war crimes

and other serious violations of international humanitarian

law.

• Continue to play a leadership role to right these wrongs.

• The armed forces of the United States will obey the law of

war, while our international policies are and will remain

completely consistent with these norms.

• Continue to discipline our own when appropriate.

• We will remain committed to promoting the rule of law

and helping to bring violators of humanitarian law to

justice, wherever the violations may occur.

156 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

• We will support politically, ﬁnancially, technically, and

logistically any post-conﬂict state that seeks to credibly

pursue domestic humanitarian law.

• We will support creative ad-hoc mechanisms such as the

hybrid process in Sierra Leone—where there is a division

of labor between the sovereign state and the international

community—as well as alternative justice mechanisms such

as truth and reconciliation commissions.

• We will work with Congress to obtain the necessary

resources to support this global effort.

• We will seek to mobilize the private sector to see how and

where they can contribute.

• We will seek to create a pool of experienced judges and

prosecutors who would be willing to work on these projects

on short-notice.

• We will take steps to ensure that gaps in United States’

law do not allow persons wanted or indicted for genocide,

war crimes, or crimes against humanity to seek safe haven

on our soil in hopes of evading justice.

And when violations occur that are so grave and that they

breach international peace and security, the United States will

use its position in the UN Security Council to act in support of

justice.

We believe that there is common ground, and ask those nations

who have decided to join the Rome Treaty to meet us there.

Encouraging states to come to face the past while moving into the

future is a goal that no one can dispute. Enhancing the capacity of

domestic judiciaries is an aim to which we can all agree. The

United States believes that justice would be best served in creating

an environment that will have a lasting and beneﬁcial impact on

all nations across the globe. Empowering states to address these

challenges will lead us to a more just and peaceful world. Because,

in the end, the best way to prevent genocide, crimes against

humanity, and war crimes is through the spread of democracy,

transparency and rule of law. Nations with accountable, democratic

governments do not abuse their own people or wage wars of

conquest and terror. A world of self-governing democracies is our

best hope for a world without inhumanity.

International Criminal Law 157

b. UN Security Council Resolution 1422

By April 2002 over sixty countries had notiﬁed the depositary

that they had completed ratiﬁcation procedures to become

parties to the Rome Statute. Under the terms of Article 126,

the Rome Statute therefore entered into force on July 1,

2002. In anticipation of this event, the United States, as

a non-party, undertook to protect U.S. troops involved in

peacekeeping forces from exposure to the claimed jurisdiction

of the International Criminal Court.

(1) U.S. efforts to obtain protection

Following several unsuccessful efforts in the intervening

months to have its concerns addressed by the UN Security

Council, on June 30, 2002, the United States vetoed a

resolution in the Council concerning the renewal of the

mandate for the UN peacekeeping mission in Bosnia and

Herzegovina. Excerpts below from the statement by John D.

Negroponte, U.S. Permanent Representative to the UN,

afﬁrmed the continuing U.S. commitment to peace and

stability in the Balkans and explained the relationship between

U.S. participation in peacekeeping activities and the Inter-

national Criminal Court.

The full text of Ambassador Negroponte’s statement is

available at www.un.int/usa/02_087.htm.

The longstanding commitment of the United States to peace

and stability in the Balkans is beyond question. We have also

been clear and consistent about our concerns on the ICC, in

particular the need to ensure our national jurisdiction over our

personnel and ofﬁcials involved in UN peacekeeping and coalition-

of-the-willing operations.

As you are well aware, this is not the ﬁrst time we have raised

this issue in the Council. I explained these concerns when we

dealt with UNMISET [United Nations Mission of Support in East

158 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Timor] in May. The United States voted in favor of the East

Timor resolution with the expectation that the Council would

address our concerns before the ICC came into effect July 1.

In East Timor only three U.S. soldiers participate in the UN

peacekeeping mission; we intend to withdraw them absent a

solution to the ICC issue.

It is with great regret that the United States ﬁnds itself on the

eve of that date, despite our best efforts, without a solution.

The United States has contributed – and will continue to

contribute – to maintaining peace and security in the Balkans and

around the globe. . . .

Some contend that our concerns are unwarranted. With our

global responsibilities, we are and will remain a special target and

cannot have our decisions second-guessed by a court whose

jurisdiction we do not recognize.

With the court coming into being, this problem must be

resolved—but in a way that takes account of two hard facts: the

United States wants to participate in international peacekeeping;

but the United States, a major guarantor of peace and security

around the globe and a founding member of the United Nations,

does not and will not accept the jurisdiction of the ICC over the

peacekeepers that it contributes to UN-established and-authorized

operations.

****

It strikes us as more than perplexing that others who are

parties to the ICC can use the provision of the treaty to exempt

their forces for an extended period from the purview of the court

for war crimes and then suggest that our attempt to use other

provisions of the treaty similarly to provide protection for our

forces either violates their treaty obligations or does unacceptable

damage to the spirit of the treaty.

The United States will vote against this resolution with great

reluctance. This decision is not directed at the people of Bosnia. We

will stand by them and by our commitment to peace and stability

in the Balkans. The fact that we are vetoing this resolution in the

face of that commitment, however, is an indication of just how

serious our concerns remain about the risks to our peacekeepers.

International Criminal Law 159

On July 10, 2002, Ambassador Negroponte, again addressed

the Security Council on the U.S. commitment to peacekeeping

and the U.S. proposed solution to issues concerning the

ICC.

The full text of his statement is available at www.un.int/

usa/index.htm.

****

Mr. President, as our record demonstrates, the United States

believes in justice and the rule of law, and in accountability for

war crimes, crimes against humanity, and genocide. We accept the

responsibility to investigate and prosecute our own citizens for

such offences should they occur. And we do not shirk from public

and private protest—here in New York, in the Human Rights

Commission in Geneva, or wherever our voice can be heard—

whenever and wherever such outrages are committed.

****

In Bosnia, the U.S. has more than 2,000 troops and nearly

50 civilian police. The senior UN ofﬁcial is an American citizen,

on loan from my government. With such a record, it is clear that

our veto of the UNMIBH [United Nations Mission in Bosnia

Herzegovina] resolution did not reﬂect rejection of peacekeeping

in Bosnia. But it did reﬂect our frustration at our inability to

convince our colleagues on the Security Council to take seriously

our concerns about the legal exposure of our peacekeepers under

the Rome Statute.

Peacekeeping is one of the hardest jobs in the world. While

we fully expect our peacekeepers to act in accordance with

established mandates and in a lawful manner, peacekeepers

can and do ﬁnd themselves in difﬁcult, ambiguous situations.

Peacekeepers from states that are not party to the Rome Statute

should not face, in addition to the dangers and hardships of

deployment, additional, unnecessary legal jeopardy. If we want

troop contributors to offer qualiﬁed military units to peacekeep-

ing operations, it is in the interest of all UN Member States

to ensure that they are not exposed to unnecessary additional

160 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

risks. This principle has been acknowledged over decades in

UN Status of Mission Agreements and by parallel agreements

such as in the Dayton Accords and the Military Technical

Agreement for ISAF [International Security Assistance Force for

Afghanistan].

We should be very clear: the legal position of peacekeepers

and the states contributing them has been an issue throughout

the history of peacekeeping, and has been an important consider-

ation for the governments that must decide whether to contri-

bute their citizens to peacekeeping operations, or to help out in

unexpected crisis or emergency situations, as the U.S. frequently is

asked to do.

The Secretary-General noted that peacekeepers have not been

prosecuted for such crimes in the past. We agree. And this is an

additional reason why we do not believe the ability of the ICC to

pursue peacekeepers is central to its functions.

****

Deferral of investigations and prosecutions, in keeping with

the Rome Statute, cannot undermine the role the ICC plays on the

world stage. Failure to address concerns about placing peacekeepers

in legal jeopardy before the ICC, however, can impede the provision

of peacekeepers to the UN. It certainly will affect our ability to

contribute peacekeepers.

Mr. President, although we do not recognize the jurisdiction

of the ICC and do not intend to become party to the Rome Statute,

we do not question the good intentions of its architects. We respect

the obligations of those states that have ratiﬁed the Rome Statute.

Indeed, in the proposals we have put forward before this Council,

we have sought to work within the provisions of that Statute. We

hope that other states, in turn, will respect our concerns about our

peacekeepers.

Our latest proposal uses Article 16 of the Rome Statute, as

we were urged to do by other Council members, to address our

concerns about the implications of the Rome Statute for nations

that are not party to it, but which want to continue to contribute

peacekeepers to UN missions. We respectfully disagree with analyses

that say our approach is inconsistent with the Rome Statute.

International Criminal Law 161

Article 16 contemplates that the Security Council may make a

renewable request to the ICC not to commence or proceed with

investigations or prosecutions for a 12-month period on the basis

of a Chapter VII resolution. We believe it is consistent both with

the terms of Article 16 and with the primary responsibility of the

Security Council for maintaining international peace and security

for the Council to adopt such a resolution with regard to operations

it authorizes or establishes. And for the Council to decide to renew

such requests.

****

(2) Adoption of UN Security Council Resolution 1422

On July 12, 2002, the United Nations adopted Resolution 1422,

noting, among other things that not all states are parties to

the Rome Statute and that it was “in the interests of inter-

national peace and security to facilitate UN Member States’

ability to contribute to operations established or authorized

by the United Nations Security Council.” The operative para-

graphs of Resolution 1422 provided that the Security Council,

acting under Chapter VII of the Charter of the United Nations:

1. Requests, consistent with the provisions of Article 16

of the Rome Statute, that the ICC, if a case arises

involving current or former ofﬁcials or personnel from a

contributing State not a Party to the Rome Statute over

acts or omissions relating to a United Nations established

or authorized operation, shall for a twelve-month period

starting 1 July 2002 not commence or proceed with

investigation or prosecution of any such case, unless the

Security Council decides otherwise;

2. Expresses the intention to renew the request in paragraph

1 under the same conditions each 1 July for further

12-month periods for as long as may be necessary;

3. Decides that Member States shall take no action

inconsistent withparagraph 1 and with their international

obligations;

4. Decides to remain seized of the matter.

162 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Ambassador Negroponte’s statement at the time UNSCR

1422 was adopted is set forth below, available at www.un.int/

usa/02_098.htm.

This resolution represents the culmination of weeks of

work by my government and many of the other governments

represented here. Some members of this Council are members of

the International Criminal Court while others, including the United

States, are not and never will be. The United States has therefore

sought a resolution that would allow those in the Court to meet

their obligations to it, while it protected those of us who reject the

jurisdiction of that institution. At risk were the peacekeeping

activities of the United Nations, in the ﬁrst instance in Bosnia but

ultimately throughout the globe. The United States is therefore

very pleased that we have successfully reached agreement. It offers

us a degree of protection for the coming year.

For the United States, this resolution is a ﬁrst step. The

President of the United States is determined to protect our citizens

—soldiers and civilians, peacekeepers and ofﬁcials—from the

International Criminal Court. We are especially concerned that

Americans sent overseas as soldiers, risking their lives to keep the

peace or to protect us all from terrorism and other threats, be

themselves protected from unjust or politically motivated charges.

Should the ICC eventually seek to detain any American, the United

States would regard this as illegitimate—and it would have serious

consequences. No nation should underestimate our commitment

to protect our citizens.

Our government was founded by Americans to protect their

freedom. Our Declaration of Independence states that, and I quote,

“governments are instituted among men, deriving their just powers

from the consent of the . . . governed,” . . . in order to secure their

rights. We have built up in our two centuries of constitutional

history a dense web of restraints on government, and of guarantees

and protections for our citizens. The power of the government is

very great, but those restraints are equally powerful. The history

of American law is very largely the history of that balance between

the power of the government and the rights of the people.

International Criminal Law 163

We will not permit that balance to be overturned by the

imposition on our citizens of a novel legal system they have never

accepted or approved, and which their government has explicitly

rejected. We will never permit Americans to be jailed because

judges of the ICC, chosen without the participation of those over

whom they claim jurisdiction, so decide. We cannot allow that

Americans who have been acquitted of accusations against them

in the United States shall be subject to prosecution for the same

acts if an ICC prosecutor or judge concludes that the American

legal proceedings were somehow inadequate. We know that

prosecutors who are responsible to no one constitute a danger,

and we will not expose our citizens to such a danger. We cannot

accept a structure that may transform the political criticism of

America’s world role into the basis for criminal trials of Americans

who have put their lives on the line for freedom.

The American system of justice can be trusted to punish crimes,

including war crimes or crimes against humanity, committed by

an American—and we pledge to do so. But we do not believe the

International Criminal Court contains sufﬁcient safeguards to pro-

tect our nationals, and therefore we can never in good conscience

permit Americans to become subject to its authority.

The power to deprive a citizen of his or her freedom is

an awesome thing, which the American people have entrusted to

their government under the rules of our democracy. Thus does an

American judge have the legal and moral right, founded in our

Constitution and in democratic procedures, to jail an American.

But the International Criminal Court does not operate in the same

democratic and constitutional context, and therefore does not have

the right to deprive Americans of their freedom.

The United States does not oppose special tribunals to prosecute

international offenses, and indeed has been a key supporter of

them. But we believe that these existing mechanisms, within the

framework of the UN Charter and the Security Council and already

accepted by the international community, are adequate.

Once again I thank the members of the Security Council for

their hard work in reaching a successful agreement today. . . . This

resolution respects those who have decided to submit to the

International Criminal Court, and for one year it protects those of

164 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

us who have not. We will use the coming year to ﬁnd the additional

protections we need, using bilateral agreements expressly

contemplated in Article 98 of the Rome Statute. We will seek

your cooperation, that is to say, the cooperation of the Council in

achieving these agreements, so as to provide the protection that

our understanding of the rights and freedoms of our citizens

requires. . . .

****

In a letter of July 16, 2002, Secretary of State Colin L. Powell

explained the signiﬁcance of the recently obtained Resolution

1422 in response to a July 10 letter from U.S. Senators Jesse

Helms, John Warner, Zell Miller, and George Allen, as set

forth in the excerpts below.

The full text of Secretary Powell’s letter is available at

www.state.gov/s/l/c8183.htm.

****

On July 12, the Security Council unanimously adopted

resolution 1422 after weeks of heated debate. The resolution, under

Chapter VII of the UN Charter, speaks directly to both the ICC

and to UN member states. It contains a request, binding under

the Rome Statute which established the ICC, that the ICC not

commence or proceed with any investigation or prosecution of

our personnel and ofﬁcials for a year. It also requires, under the

Chapter VII authority of the Security Council, that no UN member

state take any action inconsistent with that request.

Resolution 1422 establishes the precedent of Security Council

deferral of ICC action against non-parties to the Rome Statute

arising from their involvement in any UN peacekeeping oper-

ation. In the case of UN-authorized deployments not under UN

operational command, like SFOR [Stabilisation Force] in Bosnia

and KFOR [Kosovo Force] in Kosovo, the resolution protects any

U.S. persons serving anywhere in the non-UN chain of command,

including SACEUR [Supreme Allied Commander Europe] and any

current or former ofﬁcials who may be involved in “acts or

omissions relating to UN established or authorized operations.”

International Criminal Law 165

The resolution explicitly states the Council’s intention to renew

this deferral next year. Although we had hoped for an automatic

renewal, Ambassador Negroponte already has expressed our

intention to seek renewal in a year’s time.

Resolution 1422, however, is only a ﬁrst step. We are deter-

mined to protect all our servicemen and women, not just those

involved in UN peacekeeping.

We are seeking a global network of bilateral agreements under

which Americans would not be surrendered to the ICC without

the prior consent of the United States Government. Such agreements

are consistent with Article 98 of the Rome Statute. These so-called

“article 98” agreements would cover all our military personnel,

whether stationed in or transiting through other countries party

to such agreements, during their assignments and later on, while

traveling as civilians or after retirement.

I already have sent instructions to our embassies around the

world to begin these negotiations, which will take time. Security

Council resolution 1422’s one-year deferral of ICC action gives us

the time necessary to negotiate with as broad a group of countries

as possible.

****

c. Bilateral agreements under Article 98 of the Rome Treaty

During the debate over Resolution 1422, several U.S. allies

had suggested to the United States privately that its concerns

for its peacekeepers could be resolved via article 98(2) of the

Rome Statute. As indicated in statements by Ambassador

Negroponte and Secretary of State Powell, supra, the United

States initiated negotiations with a number of governments

to enter into agreements contemplated by article 98, which

provides that:

“[t]he Court may not proceed with a request for

surrender which would require the requested State to

act inconsistently with its obligations under international

agreements pursuant to which the consent of a sending

State is required to surrender a person of that State to

166 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

the Court, unless the Court can ﬁrst obtain the

cooperation of the sending State for the giving of consent

for the surrender.”

The provision is not limited to agreements predating the

Rome Statute and accommodates agreements covering

persons of a state generally, without regard to whether they

possess a particular status or capacity.

A press statement by the U.S. Department of State,

August 1, 2002, announcing the signature of the ﬁrst Article

98 agreement, between the United States and Romania,

explained:

These agreements are consistent with the Rome Statute

of the International Criminal Court and will help to pro-

vide the safeguards we seek to protect Americans from

surrender to the ICC. While we respect the decision of

those countries who have chosen to join the International

Criminal Court, we hope that countries will respect the

decision of the United States not to join, and will follow

Romania’s lead in working with us on practical means of

addressing our serious concerns about the ICC.

The full text of the press statement is available at

http://www.state.gov/r/pa/prs/ps/2002/12393pf.htm.

The European Union, which is not itself a party to the

Rome Statute, published non-binding “guiding principles”

for its members on September 30, 2002, asserting that, inter

alia, the scope of coverage sought by the United States should

take into account that some persons enjoy state or diplomatic

immunity under international law, and should cover only

those persons present on the territory of a requested state

because they have been sent by a sending state.

At the end of 2002, the United States had signed

seventeen Article 98 agreements. Negotiations with EU

member countries continued although no EU country had

signed an agreement at the end of the year.

On December 20, 2002, the Republic of Uzbekistan

became the ﬁrst country to notify the United States that it

International Criminal Law 167

had completed its domestic procedures to allow an Article

98 agreement to enter into force. The text of the Agreement

between the Government of the United States of America

and the Government of the Republic of Uzbekistan Regarding

the Surrender of Persons to the International Criminal Court,

signed September 18, 2002, in Washington, D.C., is set forth

below in full.

The Government of the United States of America and the

Government of the Republic of Uzbekistan. hereinafter “the

Parties,”

Reafﬁrming the importance of bringing to justice those who

commit genocide, crimes against humanity and war crimes,

Recalling that the Rome Statute of the International Criminal

Court done at Rome on July 17. 1998, by the United Nations

Diplomatic Conference of Plenipotentiaries on the Establishment

of an International Criminal Court is intended to complement and

not supplant national criminal jurisdiction,

Considering that the Parties have each expressed their intention

to investigate and to prosecute where appropriate acts within the

jurisdiction of the International Criminal Court alleged to have

been committed by their ofﬁcials, employees, military personnel

or other nationals, and

Bearing in mind Article 98 of the Rome Statute,

Hereby agree as follows:

1. For purposes of this agreement, “persons” are current or former

Government ofﬁcials. employees (including contractors), or

military personnel or nationals of one Party.

2. Persons of one Party present in the territory of the other shall

not, absent the expressed consent of the ﬁrst Party,

a) be surrendered or transferred by any means to the Inter-

national Criminal Court for any purpose, or

b) be surrendered or transferred by any means to any other

entity or third country. or expelled to a third country, for

the purpose of surrender to or transfer to the International

Criminal Court.

168 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

3. When the United States extradites, surrenders, or otherwise

transfers a person of the Republic of Uzbekistan to a third

country, the United States will not agree to the surrender or

transfer of that person to the International Criminal Court by

the third country, absent the expressed consent of the Govern-

ment of the Republic of Uzbekistan.

4. When the Government of the Republic of Uzbekistan ex-

tradites, surrenders, or otherwise transfers a person of the

United States of America to a third country, the Government

of the Republic of Uzbekistan will not agree to the surrender

or transfer of that person to the International Criminal Court

by a third country. absent the expressed consent of the Govern-

ment of the United States.

5. This Agreement shall enter into force upon an exchange of

notes conﬁrming that each Party has completed the neces-

sary domestic legal requirements to bring the Agreement into

force. It will remain in force until one year after the date on

which one Party notiﬁes the other of its intent to terminate

this Agreement. The provisions of this Agreement shall continue

to apply with respect to any act occurring, or any allegation

arising, before the effective date of termination.

d. Congressional action

(1) American Servicemembers’ Protection Act

On August 2, 2002, President George W. Bush signed into

law the American Servicemembers’ Protection Act of 2002,

Pub. L. No. 107–206, Title II, Sec. 2001, 116 Stat at 899 (“the

Act”). The Act prohibits cooperation with the International

Criminal Court in matters of discovery, extradition, or other

support (§ 2004) and the direct or indirect transfer of

classiﬁed national security information and law enforcement

information to the ICC (§ 2006). Section 2015 provides,

however, that the Act does not prohibit the United States

from providing assistance to international efforts to bring to

justice foreign nationals accused of genocide, war crimes, or

International Criminal Law 169

crimes against humanity. Under § 2005, members of the

armed forces of the United States may not participate in any

peacekeeping or peace-enforcement operation unless the

President certiﬁes that such members are able to participate

without risk of criminal prosecution or other assertion of

jurisdiction by the International Criminal Court or that U.S.

national interests justify participation. Section 2007 provides

that, one year after the date on which the Rome Statute

entered into force, no U.S. military assistance may be pro-

vided to the government of a country that is a party to the

ICC. Section 2007 speciﬁcally exempts the governments of

NATO members, major non-NATO allies, and Taiwan. It

further provides for a Presidential waiver on the basis of

U.S. national interest or if the country has entered into an

agreement with the United States pursuant to Article 98

of the Rome Statute preventing the ICC from proceeding

against U.S. personnel present in the country. Section 2008

authorizes the President to use all means necessary and

appropriate to bring about the release of speciﬁed persons

being detained or imprisoned by, on behalf of, or at the

request of the ICC. The section states that it does not

authorize bribes and other inducements. Section 2009 of

the Act also requires reports with respect to each military

alliance to which the United States is party on issues relating

to the jurisdiction of the ICC.

Section 2011 of the Act provides that sections 2004 and

2006 shall not apply to actions directed by the President on

a case-by-case basis in the exercise of the President’s authority

under the U.S. Constitution.

Key provisions of the Act are set forth below.

Sec. 2004. Prohibition on Cooperation with the International

Criminal Court.

(a) Application.—The provisions of this section—

(1) apply only to cooperation with the International Criminal

Court and shall not apply to cooperation with an ad hoc

170 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

international criminal tribunal established by the United

Nations Security Council before or after the date of the

enactment of this Act to investigate and prosecute war

crimes committed in a speciﬁc country or during a speciﬁc

conﬂict; and

  (2) shall not prohibit—

  (A) any action permitted under section 2008; or

(B) communication by the United States of its policy with

respect to a matter.

(b) Prohibition on Responding to Requests for Cooperation.—

Notwithstanding section 1782 of title 28, United States Code,

or any other provision of law, no United States Court, and no

agency or entity of any State or local government, including

any court, may cooperate with the International Criminal Court

in response to a request for cooperation submitted by the

International Criminal Court pursuant to the Rome Statute.

International Criminal Court.—Notwithstanding section 1781

of title 28, United States Code, or any other provision of law,

no agency of the United States Government may transmit for

execution any letter rogatory issued, or other request for

cooperation made, by the International Criminal Court to the

tribunal, ofﬁcer, or agency in the United States to whom it is

addressed.

(d) Prohibition on Extradition to the International Criminal Court.

—Notwithstanding any other provision of law, no agency or

entity of the United States Government or of any State or local

government may extradite any person from the United States

to the International Criminal Court, nor support the transfer

of any United States citizen or permanent resident alien to the

International Criminal Court.

(e) Prohibition on Provision of Support to the International

Criminal Court.—Notwithstanding any other provision of law,

no agency or entity of the United States Government or of any

State or local government, including any court, may provide

support to the International Criminal Court.

(f) Prohibition on Use of Appropriated Funds To Assist the

International Criminal Court.—Notwithstanding any other

International Criminal Law 171

provision of law, no funds appropriated under any provision

of law may be used for the purpose of assisting the investiga-

tion, arrest, detention, extradition, or prosecution of any United

States citizen or permanent resident alien by the International

Criminal Court.

(g) Restriction on Assistance Pursuant to Mutual Legal Assistance

Treaties.—The United States shall exercise its rights to limit

the use of assistance provided under all treaties and executive

agreements for mutual legal assistance in criminal matters,

multilateral conventions with legal assistance provisions, and

extradition treaties, to which the United States is a party, and

in connection with the execution or issuance of any letter

rogatory, to prevent the transfer to, or other use by, the

International Criminal Court of any assistance provided by

the United States under such treaties and letters rogatory.

(h) Prohibition on Investigative Activities of Agents.—No agent

of the International Criminal Court may conduct, in the United

States or any territory subject to the jurisdiction of the United

States, any investigative activity relating to a preliminary

inquiry, investigation, prosecution, or other proceeding at the

International Criminal Court.

Sec. 2005. Restriction on United States Participation in

Certain United Nations Peacekeeping Operations.

(a) Policy.—Effective beginning on the date on which the Rome

Statute enters into force pursuant to Article 126 of the Rome

Statute, the President should use the voice and vote of the

United States in the United Nations Security Council to ensure

that each resolution of the Security Council authorizing any

peacekeeping operation under chapter VI of the charter of the

United Nations or peace enforcement operation under chapter

VII of the charter of the United Nations permanently exempts,

at a minimum, members of the Armed Forces of the United

States participating in such operation from criminal prosecution

or other assertion of jurisdiction by the International Criminal

Court for actions undertaken by such personnel in connection

with the operation.

172 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

(b) Restriction.—Members of the Armed Forces of the United

States may not participate in any peacekeeping operation

under chapter VI of the charter of the United Nations or

peace enforcement operation under chapter VII of the

charter of the United Nations, the creation of which is

authorized by the United Nations Security Council on or after

the date that the Rome Statute enters into effect pursuant

to Article 126 of the Rome Statute, unless the President

has submitted to the appropriate congressional committees a

certiﬁcation described in subsection (c) with respect to such

operation.

a certiﬁcation by the President that—

(1) members of the Armed Forces of the United States are able

to participate in the peacekeeping or peace enforcement

operation without risk of criminal prosecution or other

assertion of jurisdiction by the International Criminal Court

because, in authorizing the operation, the United Nations

Security Council permanently exempted, at a minimum,

members of the Armed Forces of the United States

participating in the operation from criminal prosecution

or other assertion of jurisdiction by the International

Criminal Court for actions undertaken by them in

connection with the operation;

(2) members of the Armed Forces of the United States are able

to participate in the peacekeeping or peace enforcement

operation without risk of criminal prosecution or other

assertion of jurisdiction by the International Criminal Court

because each country in which members of the Armed

Forces of the United States participating in the operation

will be present either is not a party to the International

Criminal Court and has not invoked the jurisdiction of the

International Criminal Court pursuant to Article 12 of

the Rome Statute, or has entered into an agreement in

accordance with Article 98 of the Rome Statute preventing

the International Criminal Court from proceeding against

members of the Armed Forces of the United States present

in that country; or

International Criminal Law 173

(3) the national interests of the United States justify

participation by members of the Armed Forces of the United

States in the peacekeeping or peace enforcement operation.

****

Sec. 2008. Authority to Free Members of the Armed Forces

of the United States and Certain Other Persons Detained

or Imprisoned by or on Behalf of the International

Criminal Court.

(a) Authority.—The President is authorized to use all means

necessary and appropriate to bring about the release of any

person described in subsection (b) who is being detained

or imprisoned by, on behalf of, or at the request of the

International Criminal Court.

(b) Persons Authorized To Be Freed.—The authority of subsection

(a) shall extend to the following persons:

(1) Covered United States persons.

(2) Covered allied persons.

(3) Individuals detained or imprisoned for ofﬁcial actions taken

while the individual was a covered United States person or

a covered allied person, and in the case of a covered allied

person, upon the request of such government.

described in subsection (b) is arrested, detained, investigated,

prosecuted, or imprisoned by, on behalf of, or at the request

of the International Criminal Court, the President is authorized

to direct any agency of the United States Government to

provide—

(1) legal representation and other legal assistance to that person

(including, in the case of a person entitled to assistance

under section 1037 of title 10, United States Code,

representation and other assistance in the manner provided

in that section);

(2) exculpatory evidence on behalf of that person; and

(3) defense of the interests of the United States through appear-

ance before the International Criminal Court pursuant to

174 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Article 18 or 19 of the Rome Statute, or before the courts

or tribunals of any country.

(d) Bribes and Other Inducements Not Authorized.—This section

does not authorize the payment of bribes or the provision of

other such incentives to induce the release of a person described

in subsection (b).

****

Sec. 2015. Assistance to International Efforts.

Nothing in this title shall prohibit the United States from rendering

assistance to international efforts to bring to justice Saddam

Hussein, Slobodan Milosovic, Osama bin Laden, other members

of Al Queda, leaders of Islamic Jihad, and other foreign nationals

accused of genocide, war crimes or crimes against humanity.

(2) Understandings to treaties

In granting advice and consent to ratiﬁcation of the extradition

and mutual legal assistance treaties discussed in A.1. supra,

the Senate included in ﬁve of the resolutions of ratiﬁcation an

understanding relating to cooperation with the International

Criminal Court. The understandings were included in the

instruments of ratiﬁcation signed by President Bush.

The understanding included in each of the mutual legal

assistance treaties provided:

Prohibition on Assistance to the International Criminal

Court.—The United States shall exercise its rights to limit

the use of assistance that it provides under the Treaty so

that any assistance provided by the Government of the

United States shall not be transferred to or otherwise

used to assist the International Criminal Court unless

the treaty establishing the Court has entered into force

for the United States by and with the advice of the Senate

in accordance with Article II, Section 2 of the United

States Constitution, or unless the President has waived

International Criminal Law 175

any applicable prohibition on provision of such assistance

in accordance with applicable United States law.

See, e.g., 148 CONG.REC. S11,058–S11,059 (November 14,

2002).

The following understanding was included in the

Resolution of Ratiﬁcation for the extradition treaty with Peru:

Prohibition of Extradition to the International Criminal

Court.—The United States understands that the pro-

tections contained in Article XIII concerning the Rule of

Speciality would preclude the resurrender of any person

extradited to the Republic of Peru from the United States

to the International Criminal Court, unless the United

States consents to such resurrender; and the United

States shall not consent to any such resurrender unless

the Statute establishing that Court has entered into force

for the United States by and with the advice and consent

of the Senate in accordance with Article II, section 2 of

the United States Constitution.

148 CONG. REC. S11,057–11,058 (November 14, 2002).

The Senate Foreign Relations Committee determined that

it was unnecessary to include such an understanding to the

resolution for the extradition treaty with Lithuania because

the treaty itself speciﬁcally barred such retransfer. S. Exec.

Rpt. 107–13 at 3.

Cross Reference

International cooperation in disrupting terrorist ﬁnancing, Chap-

ter 16.1.e.

References to ICC in human rights resolutions, Chapter 6.G.2.

Terrorism and human rights, Chapter 6.J.

Exception to Foreign Sovereign Immunities Act for certain terrorist-

related claims, Chapter 10.A.6.

Release of documents responsive to MLAT request, Chapter 6.A.3.

Allie

Treaty Affairs 177

177

CHAPTER 4

Treaty Affairs

A. CAPACITY TO MAKE

In anticipation of East Timor gaining independence on May

20, 2002, the Peace Corps was authorized to negotiate an

anticipatory agreement with representatives of the expected

government of the Democratic Republic of East Timor in

order to begin operations in East Timor as soon after

independence as possible. The agreement was negotiated

with representatives of the UN Second Transitional Govern-

ment in East Timor with the understanding that it could be

concluded and enter into force only upon the independence

of the country on May 20, 2002. The agreement was signed

and entered into force on May 24, 2002.

The full text of the agreement is available at

www.state.gov/s/l/c8183.htm.

B. CONCLUSION, ENTRY INTO FORCE, RESERVATIONS,

APPLICATION, AND TERMINATION

1. Choice of Form: International Arms Control Agreements

A memorandum of February 27, 2002, from William H. Taft,

IV, Legal Adviser for the Department of State, to John B.

Bellinger, III, Senior Associate Counsel to the President and

Legal Adviser of the National Security Council, provided Legal

Adviser Taft’s views on the power to enter into international

agreements under the U.S. Constitution. Excerpts below

178 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

address the distinctions in U.S. practice between treaties

requiring U.S. Senate advice and consent and international

agreements brought into force on a different constitutional

basis, and the applicability of these distinctions in the

treatment of arms control agreements, which have generally

been concluded as treaties.

The full text of the memorandum is available at

www.state.gov/s/l/c8183.htm.

****

I. GENERAL RULE: TREATY VS. OTHER

INTERNATIONAL AGREEMENT

****

Constitutional Requirements

There are two procedures under the Constitution through which

the United States becomes a party to international agreements.

Those procedures and the constitutional parameters of each

are:

Treaties

International agreements (regardless of their title, designation,

or form) whose entry into force with respect to the United

States takes places only after the Senate has given its advice and

consent are “treaties.” The President, with the advice and con-

sent of two-thirds of the Senators present, may enter into an

international agreement on any subject of concern in foreign

relations, so long as the agreement does not contravene the United

States Constitution; and

International agreements other than treaties

International Agreements brought into force with respect to the

United States on a constitutional basis other than with the advice

and consent of the Senate are “international agreements other

Treaty Affairs 179

than treaties.” (The term “executive agreement” is generally re-

served for agreement made solely on the basis of the constitutional

authority of the President.) There are three constitutional bases

for international agreements other than treaties as set forth below.

An international agreement may be concluded pursuant to one or

more of these constitutional bases:

Agreements pursuant to treaty

The President may conclude an international agreement pursuant

to a treaty brought into force with the advice and consent of the

Senate whenever the provisions of the treaty constitute authoriza-

tion for the agreement by the Executive without subsequent action

by the Congress;

Agreements pursuant to legislation

The President may conclude an international agreement on the

basis of existing legislation or subject to legislation to be enacted

by the Congress; and

Agreement pursuant to the constitutional authority of

the President

The President may conclude an international agreement on any

subject within his constitutional authority so long as the agreement

is not inconsistent with legislation enacted by the Congress in the

exercise of its constitutional authority. The constitutional sources

of authority for the President to conclude international agreements

include:

The President’s authority as Chief Executive to represent the

nation in foreign affairs;

The President’s authority to receive ambassadors and other

public ministers;

The President’s authority as “Commander-in-Chief”; and

The President’s authority to “take care that the laws be

faithfully executed.”

180 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

II. CONSIDERATIONS FOR SELECTING AMONG

CONSTITUTIONALLY AUTHORIZED PROCEDURES

In determining what procedures should be followed for any

particular international agreement, consideration is given to the

following factors, together with those in the preceding section of

this memorandum:

The extent to which the agreement involves commitments or

risks affecting the nation as a whole;

Whether the agreement is intended to affect State laws;

Whether the agreement can be given effect without the

enactment of subsequent legislation by the Congress;

Past U.S. practice as to similar agreements;

The preference of the Congress as to a particular type of

agreement;

The degree of formality desired for an agreement;

The proposed duration of the agreement, the need for prompt

conclusion of an agreement, and the desirability of concluding

a routine or short-term agreement; and

The general international practice as to similar agreements.

In determining whether an international agreement should be

brought into force as a treaty or as an international agreement

other than a treaty, care is always taken to avoid any invasion or

compromise of the constitutional powers of the President, the

Senate, or the Congress as a whole.

III. APPLICATION OF PRINCIPLES IN SECTION I AND II

TO ARMS CONTROL AGREEMENTS

Form

Treaties

International agreements of the United States in the arms control

area have generally been concluded as treaties.

Treaty Affairs 181

International agreements other than treaties

Agreements pursuant to treaty

A number of Arms Control Treaties provide mechanisms under

which bodies established by the treaty are authorized to make

limited changes to parts of the treaty. For example, Section XI of

the Protocol to the Treaty Between the United States and the USSR

on the limitation of underground nuclear weapons tests provides

that the Parties to the Treaty may change certain provisions of the

Protocol by agreement in the Bilateral Consultative Commission

established by that Section. However, the Protocol states that such

agreed changes shall not be considered amendments to the Treaty

or this Protocol. Although treaties such as the Panama Canal Treaty

authorize the conclusion of new agreements, there does not appear

to be a similar provision in any arms control agreement that would

authorize a major new agreement in that ﬁeld.

Agreements pursuant to legislation

The Interim Agreement between the United States and the [former]

USSR on Certain Measures with Respect to Limitation of Strategic

Offensive Arms and a related Protocol signed at Moscow on

May 26, 1972 were concluded pursuant to a Joint Resolution that

authorized the President to accept the Agreement and Protocol.

Agreements pursuant to the constitutional authority of the

President

Armistice with Italy signed at Fairﬁeld Camp, Sicily, September 23,

1943 was concluded on the basis of the President’s commander-

chief power.

Selection among constitutionally authorized procedures

Extent of commitments

The agreement under consideration involves commitments or risks

affecting the nation as a whole. This criterion argues for a treaty

or a legislatively approved international agreement.

182 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Intention to affect State laws

If there are provisions in the agreement under consideration that

would affect State laws, the treaty form would be preferable.

Whether the agreement can be given effect without enactment

of subsequent legislation by the Congress

It is unclear whether, if the arms control agreement being con-

templated were to be a treaty, there would be a need for enactment

of subsequent legislation by the Congress.

Past U.S. practice as to similar agreements

Nearly all arms control agreements of the United States have been

concluded as treaties.

The preference of the Congress as to a particular type of

agreement

Section 34 of the Arms Control and Disarmament Act provides

that no action obligating the United States to reduce its armaments

may be taken except pursuant to the treaty-making power or

unless authorized by further afﬁrmative legislation by Congress.

The Senate prefers that arms control agreements be concluded as

treaties and has on a number of occasions expressed this preference

in resolutions of advice and consent to arms control treaties.

The degree of formality desired for an agreement

Although the Document agreed among the States Parties to the

Treaty on Conventional Armed Forces in Europe of November

19, 1990 (“the Flank Agreement”) is less formal than most arms

control agreements, the United States handled it as an advice and

consent treaty. Outside the arms control area the formality criterion

was applied with respect to the 1990 Treaty on the Final Settlement

with Respect to Germany. A State Department spokesman had

stated that the Department was leaning to the conclusion of the

agreement as an executive agreement. The Senate Majority Leader

and the Chairman of the Senate Foreign Relations Committee

Treaty Affairs 183

stated that because of its importance it should be a treaty. In light

of those views, the President sent it for advice and consent.

The proposed duration of the agreement, the need for

prompt conclusion of an agreement, and the desirability

of concluding a routine or short-term agreement

In the arms control area, the classic example of the short term,

urgent agreement is the interim armistice agreement. The Military

Armistice in Korea and the Temporary Supplementary Agreement

of July 27, 1953 appear to have been based on the President’s

commander-in-chief powers. This criterion would favor the treaty

form for the arms control agreement under consideration.

The general international practice as to similar agreements

The general international practice is to conclude arms control

agreements as treaties.

2. Ratiﬁcation of Protocols Where United States Not Party to

Underlying Convention

As discussed in chapter 6.C., the United States became party

in 2002 to two optional protocols to the Convention on the

Rights of the Child although it has signed but is not party to

the Convention itself. In answer to a question for the record

from Senator Joseph R. Biden, Jr., during consideration of

the protocols by the Senate Foreign Relations Committee,

the Department of State explained the legal basis for that

action, as set forth below. S. Exec. Rpt. No. 107–4 at 80. See

also Digest 2000 at 358, 361. Excerpts provided in Chapter

6.C. include the proposed understanding referred to in this

exchange, which was, in turn, included in the instruments of

ratiﬁcation signed by President George W. Bush

****

184 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Question 6. Please explain why, as a matter of law, the United

States may become a party to the Protocols even though it is not a

party to the underlying Convention on the Rights of the Child?

Answer. As discussed in the Executive Branch’s submittal to the

Senate, Article 9 of the Children in Armed Conﬂict Protocol is

subject to ratiﬁcation or open for accession by any State, i.e., it

is not limited to parties to the Convention on the Rights of the

Child. Thus, the United States is eligible to become a party to the

Children in Armed Conﬂict Protocol even though it has not ratiﬁed

the Convention.

Similarly, Article 13 of the Sale of Children Protocol is subject

to ratiﬁcation or open for accession by any State that is a party to

the Convention on the Rights of the Child, or has signed it. Thus,

the United States is eligible to become a party to the Protocol

because it signed the Convention in February of 1995.

To reﬂect the fact that both Protocols are independent inter-

national agreements, the following understanding has been recom-

mended to accompany the U.S. instrument of ratiﬁcation for each

Protocol:

“The United States understands that the Protocol con-

stitutes an independent multilateral treaty, and that the

United States does not assume any obligations under the

Convention on the Rights of the Child by becoming a

party to the Protocol.’’

****

The Ofﬁce of Treaty Affairs, Ofﬁce of the Legal Adviser, U.S.

Department of State, provided other examples of U.S.

ratiﬁcation of protocols in cases where the United States

was not a party to the underlying treaty, set forth below.

(a) Protocol of 1978 relating to the International Convention

for the Prevention of Pollution from Ships (MARPOL) signed at

London November 2, 1973, with annexes and protocols, Done

at London, February 17, 1978 (Sen. Ex. C, 96

Cong., 1

Sess.).

The underlying MARPOL Convention was transmitted to the

Treaty Affairs 185

Senate on March 22, 1977. A number of tanker incidents soon

thereafter inspired the MARPOL signatories to reconsider many

of the Convention’s provisions, leading to the negotiation and

conclusion of the 1978 Protocol. The 1978 Protocol was

transmitted to the Senate on January 19, 1979 with a request

from President Carter that the Senate give its advice and consent

to the Protocol in place of the MARPOL Convention. The Senate

subsequently gave its advice and consent to ratiﬁcation by a

resolution dated July 2, 1980.

(b) Protocol Relating to the Status of Refugees, Done at New

York January 31, 1967 (19 UST 6223, TIAS 6577). This Protocol

was designed to extend the coverage of the Convention Relat-

ing to the Status of Refugees, Done at Geneva, July 28, 1951

(“Convention”) to cover persons who became refugees after

January 1, 1951. Although the United States had not signed the

Convention, Article V of the Protocol provided that it was “open

for accession on behalf of all States Parties to the Convention and

of any other State Member of the United Nations . . .” As a result,

the United States was eligible to become a party to the Protocol,

which received Senate advice and consent to ratiﬁcation on Octo-

ber 4, 1968.

of Nuclear Weapons in Latin America, Done at Mexico February

14, 1967 (22 UST 754, TIAS 7137). The United States is not a

party to the Treaty for the Prohibition of Nuclear Weapons in

Latin America (the Treaty of Tlatelolco), Done at Mexico February

14, 1967 (22 UST 762), which limited contracting parties to “Latin

American Republics and other states below Latitude 35° north in

the Western Hemisphere.” On April 1, 1968, the United States

signed Protocol II, committing, among other things, not to use or

threaten to use nuclear weapons against the Contracting Parties

to the Treaty of Tlatelolco. The Senate gave its advice and consent

to Protocol II on April 19, 1971.

(d) Additional Protocol I to the Treaty for the Prohibition of

Nuclear Weapons in Latin America, Done at Mexico February

14, 1967 (33 UST 1792, TIAS 10147). In addition to Protocol II,

the United States also signed Protocol I wherein it committed to

apply the status of denuclearization in respect of warlike purposes

186 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

in territories for which it was internationally responsible and which

lay within the geographical zone established by the Treaty. Protocol

I, which was transmitted to the Senate on May 24, 1978, received

Senate advice and consent on November 13, 1981.

(e) Treaty Concerning the Permanent Neutrality and

Operation of the Panama Canal, with annexes and protocol, Signed

at Washington September 7, 1977, as amended (33 UST 1, TIAS

10029). This bilateral U.S.-Panama Treaty included a Protocol,

titled the Protocol to the Treaty Concerning the Permanent

Neutrality and Operation of the Panama Canal, by which other

states agreed to observe and respect the regime of permanent

neutrality of the Canal. Article 3 of the Protocol provided that

accession was open to “all states of the world” and 36 States have

since become a party to it.

3. Provisional Application through Memorandum of

Understanding

On March 24, 2002, the United States reached agreement

with certain South Paciﬁc states and entities that comprise

the South Paciﬁc Forum Fisheries Agency (“FFA”) to extend

the operation of the 1987 multilateral Treaty on Fisheries

Between the Governments of Certain Paciﬁc Islands States

and the Government of the United States of America, T.I.A.S.

11100 (“the Treaty”), and to make certain amendments to

the Treaty. The Treaty provides access for U.S. purse seine

vessels to ﬁsh for tuna in waters of the Paciﬁc Island Parties,

under certain operational requirements. Although the Treaty

is of unlimited duration, the funding provisions found in the

Treaty’s annexes were originally designed to operate for ﬁve

years. In 1993, the annexes’ operation was extended for

ten years, until June 14, 2003. Agreement was also reached

in March 2002 to extend a related economic assistance

agreement, which would also have expired by its terms on

June 14, 2003. That agreement, which is a bilateral executive

agreement between the United States and the FFA providing

for economic support assistance to the Paciﬁc Island States

Treaty Affairs 187

to be used for economic stability and security, was signed at

Majuro, Marshall Islands, on March12, 2003.

The parties also decided to provide for the provisional

application of all but one of the amendments to the Treaty,

pending ratiﬁcation, and entered into a memorandum of

understanding for that purpose. The MOU, which is not

legally binding, expresses the intention of the signatories to

apply provisionally the agreed amendments to the Treaty

and its annexes, as well as three amendments previously

agreed to in 1999, from June 15, 2003, if they have not entered

into force (which requires ratiﬁcation by all parties) by that

date. The only amendment not made part of the MOU would

provide for a more streamlined and efﬁcient procedure to

amend the annexes of the Treaty; that amendment will apply

only when ratiﬁed subject to the advice and consent of the

Senate. The MOU was made available for signature, and

was signed by the United States, at the Forum Fisheries

Agency Committee meeting in Pohnpei, Federated States of

Micronesia on May 9, 2002. For both the memorandum of

understanding and the treaty amendments, the parties agreed

that the initials of the representative of the government would

be sufﬁcient in lieu of full signature.

Excerpts below from the report of Secretary of State

Colin L. Powell, dated December 28, 2002, submitting the

amendments to the President for transmittal to the Senate

for its advice and consent to ratiﬁcation, describe the

amendments to the treaty and the function of the MOU.

At the end of 2002, the amendments to the Treaty were

being prepared for transmittal to the Senate for advice and

consent to ratiﬁcation. See S. Treaty Doc. No. 108–2 (Feb. 11,

2003).

****

The Secretary of State,

Washington, December 28, 2002.

The President,

The White House.

188 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The President: I have the honor to submit to you, with a view

to transmission to the Senate for advice and consent to ratiﬁcation,

Amendments to the 1987 Treaty on Fisheries Between the

Governments of Certain Paciﬁc Island States and the Government

of the United States of America, with annexes, (“the Treaty”),

done at Koror, Palau March 30, 1999 and at Kiritimati, Kiribati

March 24, 2002. The Treaty was ratiﬁed by the United States on

December 21, 1987 and it entered into force on June 15, 1988.

The Amendments to the Treaty will, among other things, allow

U.S. longline vessels to ﬁsh in high-seas portions of the Treaty

Area; streamline the way amendments to the Treaty Annexes

are agreed; and allow the Parties to consider the issue of ﬁshing

capacity in the Treaty Area and ways to promote consistency,

where appropriate, between the Treaty and the Convention for

the Conservation and Management of Highly Migratory Fish

Stocks in the Western and Central Paciﬁc Ocean (the “WCPFC

Convention”), done at Honolulu, Hawaii September 4, 2000. The

Amendments to the Treaty Text are brieﬂy described below.

Related amendments to the Treaty Annexes and the Memorandum

of Understanding regarding provisional application are also

included for the information of the Senate.

The United States enjoys positive and constructive ﬁsheries

relations with the Paciﬁc Island Parties through the implementation

and operation of the Treaty. Since it entered into force in 1988,

the Treaty has become the cornerstone of the economic and

political relationship between the United States and these Paciﬁc

Island Parties. This good relationship on ﬁsheries issues, as well

as a common desire to conserve and manage ﬁsheries resources in

the South Paciﬁc, has carried over into the multilateral effort to

establish a conservation and management regime in the Western

and Central Paciﬁc. Under the Treaty, the U.S. industry pays

an annual license fee of $4 million per year—a ﬁgure which will

be reduced to $3 million under the Treaty extension, due to a

decrease in the number of vessels to be licensed to ﬁsh in the

Treaty Area.

To date, the Treaty has provided considerable economic

beneﬁts to the United States. The tuna harvested by U.S. vessels

Treaty Affairs 189

under the Treaty contributes an estimated $250 to $400 million

annually to the U.S. economy. Nearly all of this ﬁsh is landed at

the two canneries in American Samoa, one owned by U.S. interests,

which are the territory’s largest employers.

Associated with the Treaty is the Economic Assistance

Agreement between the United States and the South Paciﬁc Forum

Fisheries Agency. Under the current terms of the Agreement, the

United States provides $14 million per year in Economic Support

Funds (ESF) to the Paciﬁc Island States to be used solely for

economic stability and security. The payments under the associated

Agreement are now the only signiﬁcant source of U.S. economic

support for the stability and security of the region outside the

assistance provided to the Freely Associated States. The strong

economic and political relationship with the Paciﬁc Island States

made possible by this Agreement also helps further U.S. Foreign

policy goals through support from the Paciﬁc Island States in

international fora.

The Agreement expires June 14, 2003. To serve U.S. interests

and to maintain the stability of this successful regime, in

conjunction with the amendments to the Treaty and Annexes, the

Agreement will be amended and extended for a term of 10 years.

The United States and the Paciﬁc Island parties have agreed that

for the next term of the Agreement, the annual level of economic

assistance provided by the U.S. Government under the Economic

Assistance Agreement associated with the Treaty would be $18

million. It is anticipated that the United States and the South Paciﬁc

Forum Fisheries Agency will sign the new Economic Assistance

Agreement in early 2003.

****

The United States and the Parties also agreed on the text of a

non-legally binding Memorandum of Understanding (MOU) that

will have the effect of provisionally applying from June 15, 2003

(1) the Amendments to the Treaty (except for the amendments

to Article 9) agreed in Kiritimati, Kiribati on March 24, 2002;

(2) the Amendments to the Annexes agreed in Kiritimati, Kiribati

on March 24, 2002; (3) the Treaty Amendment previously agreed

190 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

in Koror, Palau on March 30, 1999 that opens the high seas of

the Treaty Area to U.S. longline vessels; and (4) two Amendments

to the Annexes agreed in Koror, Palau on March 30, 1999 that

close Papua New Guinea’s archipelagic waters and open the

waters of the Solomon Islands to U.S. vessels, if these amendments

have not yet been approved by all Parties by June 15, 2003. This

MOU is an important political commitment that will allow the U.S.,

among other things, to ensure that as of June, 2003, U.S. longline

vessels will be able to ﬁsh in the high seas portions of the Treaty

Area and that the waters of the Solomon Islands will be open

even if every Party has not yet approved those amendments. Both

of these issues have long been goals for the U.S. industry. A

copy of the Memorandum of Understanding, done at Kiritimati,

Kiribati March 24, 2002, is also enclosed for the information of

the Senate.

Existing legislation, including the Magnuson-Stevens Fishery

Conservation and Management Act, 16 U.S.C. Sec. 1801 et seq.

and the South Paciﬁc Tuna Act of 1988, P.L. 100–330, provides

sufﬁcient legal authority to implement U.S. obligations under the

Treaty. Therefore, no new legislation is necessary in order for

the United States to ratify these amendments to the Treaty. How-

ever, minor amendments to Section 6 of the South Paciﬁc Tuna

Act of 1988, P.L. 100–330 will be necessary to take account of

the Amendment to paragraph 2 of Article 3 “Access to the Treaty

Area.”

****

4. Application to States of the United States

At a meeting of the Secretary of State’s Advisory Committee

on Public International Law on November 8, 2002, the Ofﬁce

of the Legal Adviser distributed a paper summarizing U.S.

views and practice in addressing federalism issues in treaties

to which it is a party. The paper is excerpted below.

The full text of the paper is available at www.state.gov/s/

l/c8183.htm.

Treaty Affairs 191

As a matter of law, the Supreme Court has refused to interpret

the 10th Amendment as a limitation on the exercise of the Treaty

Power. In practice, therefore, the United States has not traditionally

taken advantage of so-called “federalism clauses” that allow federal

states to modify their obligations under a treaty because of the

legal division of competencies between a federal government and

its constituent units.

As a matter of policy, however, the United States has, on

occasion, sought to tailor certain international obligations to

maintain the existing balance of federal-state relations with respect

to the treaty’s subject matter. These federalism concerns have

emerged with increased frequency in recent years as the subject-

matter of treaties has broadened beyond transnational issues to

areas traditionally regulated by U.S. states.

The mechanisms by which the United States has sought to

limit or clarify its treaty obligations because of federalism policy

concerns have varied:

• It has sought to negotiate provisions that are consistent

with the federal government’s traditional authorities (i.e.,

avoiding federalism concerns where possible);

• It has attached understandings as part of its adherence to

certain treaties that clarify the U.S. understanding that the

treaty’s obligations do not require action beyond existing

federal authorities;

• In the context of certain human rights treaties, it has

attached reservations or understandings that accept all

of the treaty’s obligations, but clarify that they will be

implemented at the appropriate government level—federal,

state or local;

• It has sought to negotiate new versions of a “federalism

clause” that the United States could invoke as a matter of

policy, rather than as a matter of law; and

• It has taken reservations to treaties to modify U.S.

obligations to a level that the federal government is willing

to assume.

****

192 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Survey of Past Practice with Respect to Federalism Issues

in U.S. Treaties

I. Examples of Federalism Clauses/Reservations Used by the

United States

• 1948 OAS Charter: The U.S. instrument of ratiﬁcation

included a reservation that none of the Charter’s provisions

“shall be considered as enlarging the powers of the Federal

Government of the United States or limiting the powers of

the several states of the Federal Union with respect to any

matters recognized under the Constitution as being within

the reserved powers of the several states.

• Instrument for Amendment of the Constitution of the

International Labor Organization: Article 19(7) provides:

(b) in respect of Conventions and Recommendations which

the Federal Government regards as appropriate under

its constitutional system, in whole or in part, for action

by the constituent States . . . rather than for federal

action, the Federal Government shall—

(i) make, in accordance with its Constitution and the

Constitutions of the States . . . concerned, effective

arrangements for the reference of such Conventions

and Recommendations not later than eighteen

months from the closing of the session . . . to the

appropriate federal [or] State . . . authorities for the

enactment of legislation or other action;

(ii) arrange, subject to the concurrence of the

State . . . , for periodical consultations between the

At the time, the United States reservation had to be accepted by all

other states parties, which it was, although Mexico accepted the U.S.

reservation on a reciprocal basis, but pointed out that it does not constitute

a precedent, inasmuch as reservations of this nature pose the delicate problem

of the fulﬁllment—on the part of the federal states—of obligations arising

from international instruments. Uruguay communicated that it objects in

principle to federalism reservations but would accept this one, given the

unusual circumstances.

Treaty Affairs 193

Federal and the State . . . authorities with a view

to promoting within the federal State coordinated

action to give effect to the provisions of such Con-

ventions and Recommendations;

(iii) inform the Director-General of the International

Labour Ofﬁce of the measures taken in accordance

with this article to bring such Conventions and

Recommendations before the appropriate federal

[or] State . . . authorities with particulars of the

authorities regarded as appropriate and of the

action taken by them;

(iv) in respect of each such Convention which it has

not ratiﬁed, report to the Director-General of the

International Labour Ofﬁce . . . the position of

the law and practice of the federation and its

constituent States . . . , showing the extent to which

effect has been . . . or is proposed to be given, to

any of the provisions of the Convention . . . ;

(v) in respect of each such Recommendation, report

to the Director-General of the International Labour

Ofﬁce . . . the position of the law and practice

of the federation and its constituent States . . . ,

showing the extent to which effect has been . . . or

is proposed to be given, to the provisions of the

Recommendation and such modiﬁcations of these

provisions as have been found or may be found

necessary in adopting or applying them.

• 1967 Protocol to the Convention Relating to the Status

of Refugees: Article VI incorporates the provisions of Article

41 of the 1951 Convention Relating to the Status of

Refugees, 189 UNTS 150, which reads as follows:

In the case of a Federal or non-unitary State, the following

provisions shall apply:

(b) With respect to those articles of this Convention that

come within the legislative jurisdiction of constituent

States, provinces or cantons which are not, under the

194 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

constitutional system of the Federation, bound to take

legislative action, the Federal Government shall bring

such articles with a favourable recommendation to the

notice of the appropriate authorities of States, provinces

or cantons at the earliest possible moment.

request of any other Contracting State transmitted

through the Secretary-General of the United Nations,

supply a statement of the law and practice of the

Federation and its constituent units in regard to any

particular provision of the Convention showing the

extent to which effect has been given to that provision

by legislative or other action.

The Secretary of State’s Report (July 25, 1968) that

accompanied the President’s transmittal of the Protocol to

the Senate described the effect of Article VI:

By virtue of Article VI of the Protocol, the United States

would assume obligations only in respect of matters

that come within the legislative jurisdiction of the

Federal Government. State laws would not be sup-

erseded by any provision of the Convention. With

respect to any articles of the Convention that may come

within the legislative jurisdiction of the states under

our constitutional system, the Federal Government

is obligated to bring such articles to the notice of

the appropriate state authorities with a favorable

recommendation.

• 1966 International Covenant on Civil and Political Rights:

The 1992 U.S. instrument of ratiﬁcation contained a re-

servation, indicating that the Convention’s provisions:

[S]hall be implemented by the federal government to

the extent that it exercises legislative and judicial

jurisdiction over the matters covered therein, and

otherwise by state and local governments. The Federal

Government shall take measures appropriate to the

Federal system to the end that the competent authorities

of the state . . . may take appropriate measures for the

fulﬁllment of the Covenant.”

Treaty Affairs 195

This was in response to a clause in Article 50 of the Convention

providing that the “provisions of the present Covenant shall

extend to all parts of federal states without any limitations or

exceptions.” That Article had been inserted into the Covenant

after the United States had proposed a federal-state clause, but

then indicated in 1953 that the United States would not ratify

the Covenants. A similar reservation was attached to the U.S.

instrument of ratiﬁcation to the International Covenant on the

Elimination of All Forms of Racial Discrimination.

• 1984 Convention against Torture and Other Cruel, In-

human or Degrading Treatment or Punishment: The 1994

U.S. ratiﬁcation contained the following understanding:

(5) That the United States understands that this

Convention shall be implemented by the United States

Government to the extent that it exercises legislative

and judicial jurisdiction over the matters covered by

the Convention and otherwise by the state and local

governments. Accordingly, in implementing articles 10–

14 and 16, the United States Government shall take

measures appropriate to the Federal system to the end

that the competent authorities of the constituent units

of the United States of America may take appropriate

measures for the fulﬁllment of the Convention.

During testimony regarding the Convention, the State

Department Legal Adviser, Judge Sofaer made clear that this

understanding was not intended to limit or circumscribe the

obligations assumed by the United States, but addressed how

the Convention’s obligations would be implemented: “We

simply wanted to make clear that we would not be violating

the convention if there were certain steps that had to be taken

by local or state government under our constitutional system.”

• Council of Europe Corruption Convention (transmittal

to Senate pending): The Convention requires Parties to

criminalize “at the national level” various types of bribery.

At the ﬁnal negotiating session, negotiators agreed to a U.S.

request to include in the ofﬁcial Explanatory Report a state-

ment that Parties assume obligations under the Convention

196 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

“only to the extent consistent with their Constitution and

the fundamental principles of their legal system, including,

where appropriate, the principles of federalism.” As an

authoritative expression of the intentions of the Con-

vention’s negotiators, the United States is relying on this

statement as the basis for implementing the Convention

obligations solely at the federal level through federal law.

• Council of Europe Cybercrime Convention (transmittal

to Senate pending): The Convention requires parties to

criminalize certain conduct related to computer systems,

to ensure that procedures are available to investigate

cybercrime offenses, and to provide broad international

cooperation in investigating such crimes and obtaining

evidence. Since the United States traditionally regulates

conduct based on its effects on interstate or foreign com-

merce, while matters of minimal or purely local concern are

regulated by the states, the United States decided as a policy

matter to pursue a provision in the text allowing it to take

a federalism reservation. In the absence of the reservation,

there would be a narrow category of conduct regulated by

U.S. state, but not federal, law that the United States would

be required to criminalize. The United States successfully

negotiated such a clause just prior to the Convention’s

adoption, despite the initial objection of several nations,

notably France. Article 41 now reads as follows:

1. A federal State may reserve the right to assume obliga-

tions under Chapter II of this Convention consistent

with its fundamental principles governing the relation-

ship between its central government and constituent

States . . . provided that it is still able to co-operate under

Chapter II.

2. When making a reservation under paragraph 1, a federal

State may not apply the terms of such reservation to

exclude or substantially diminish its obligations to

provide for measures set forth in Chapter II. Overall,

it shall provide for a broad and effective law enforce-

ment capability with respect to those measures.

Treaty Affairs 197

3. With regard to the provisions of this Convention, the

application of which comes under the jurisdiction of

constituent States or other similar territorial entities,

that are not obliged by the constitutional system of the

federation to take legislative measures, the federal

government shall inform the competent authorities of

such States of the said provisions with its favourable

opinion encouraging them to take appropriate action

to give them effect.

II. Examples of Federalism Clauses Not Invoked by

the United States

• 1958 UN Convention on the Recognition and Enforcement

of Foreign Arbitral Awards: Article XI is identical to Article

VI of the Refugee Protocol (see above). The article-by-

article analysis that accompanied the transmittal of the Con-

vention to the Senate described the effect of this provision:

This article recognizes the special situation with

respect to jurisdiction in federal or nonunitary States

and attempts to accommodate such States. It would,

however, run counter to the express provisions of the

article for the United States to seek to take advantage

of its provisions with respect to foreign arbitral awards

arising out of commercial relationships. The Federal

Arbitration Act of 1925 (9 U.S.C. 1–14) and the

decisions of U.S. Courts relating thereto show that

legislation on arbitration is clearly within the com-

petence of the Federal Government.

The SFRC Report (Sen. Executive Rept. 10, 90th Cong., 2d Session)

contains the testimony of Amb. Richard D. Kearney of State/L. Amb.

Kearney’s testimony points out that the effect of the Convention on the laws

of U.S. States is mitigated by the gradual adoption by states of uniform laws

on arbitration procedures and widespread support of Courts and the bar

that will enable the Convention to be enforceable in a growing majority of

U.S. States. To a query whether the Convention would extend Federal

jurisdiction into new areas, Kearney replied that the Federal Arbitration Act

already provided more than is required by the Convention.

198 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

• 1992 UNESCO Convention for the Protection of World

Cultural and Natural Heritage: Article 34, provides:

(b) with regard to the provisions of this Convention,

the implementation of which comes under the legislative

jurisdiction of individual constituent states, countries,

provinces or cantons that are not obliged by the con-

stitutional system of the federation to take legislative

measures, the federal government shall inform the com-

petent authorities of such states, countries, provinces

or cantons of the said provision, with its recommend-

ation for their adoption.

5. Termination

a. Litigation concerning role of U.S. Congress

On December 30, 2002, the U.S. District Court for the District

of Columbia dismissed a suit brought by 32 members of the

House of Representatives against the President of the United

States, the Secretary of State, and the Secretary of Defense,

challenging the President’s unilateral decision to withdraw

from the 1972 Anti-Ballistics Missile Treaty (“ABM Treaty”),

23 U.S.T.3435 (1972), originally entered into between the

United States and the USSR. Kucinich v. Bush, 236 F. Supp.

2d 1 (D.D.C. 2002). Plaintiffs alleged that because the

Supremacy Clause of the Constitution classiﬁes treaties, like

Acts of Congress, as the “supreme Law of the Land,” the

President cannot terminate a treaty without congressional

consent, any more than he could repeal a statute. In

dismissing the action, the district court held that plaintiffs

have alleged “only an institutional injury to Congress, not

injuries that are personal and particularized to themselves,”

and thus lacked standing under Article III of the U.S.

Constitution to bring the suit.

As to plaintiffs’ efforts to pass legislation requiring the

President to seek the approval of Congress for withdrawal

from the ABM Treaty, the court noted, “[t]here has been no

Treaty Affairs 199

claim here that their votes were not given full effect. Rather,

‘they simply lost that vote.’ [Raines v. Byrd, 521 U.S.811, 824

(1997)].”. The court concluded:

. . . The congressmen claim that they have been divested

of their constitutional role in treaty termination. That

is no different from the alleged injury in Chenoweth

[v. Clinton, 181 F.3d 112 (D.C. Cir. 1999)]—being divested

of a role in voting on and approving or rejecting

legislation—or the alleged injury in Campbell [v. Clinton,

203 F.3d 19 (D.C. Cir. 2000) ]—being divested of a role

in declaring war. Indeed, the injury alleged by plaintiffs

here, that President Bush’s termination of the ABM

Treaty “diluted their Article I voting power,” is virtually

indistinguishable from the injuries asserted in Chenoweth

and Campbell.

The court noted that plaintiffs “have a number of other,

equally effective remedies available to pressure the President

to obtain congressional consent to the termination of the

ABM treaty.” Such remedies include use of the appropriations

power, legislation speciﬁcally prohibiting development or

deployment of ABM systems, Senate power to reject presid-

ential nominees, and advice and consent to other treaties.

Excerpts from the court’s decision concluding that the

treaty termination issue constituted a “nonjusticiable political

question” are set forth below.

****

To be sure, “while the Constitution is express as to the manner

in which the Senate shall participate in the ratiﬁcation of a treaty, it

is silent as to that body’s participation in the abrogation of a treaty.”

Goldwater [v. Carter], 444 U.S. 1003 (Rehnquist, J., concurring);

see also Made in the USA Foundation [v. United States], 242 F.3d

1315 (the Constitution “fails to outline the Senate’s role in the

abrogation of treaties”). There is thus no textual commitment

of the authority over treaty termination to any branch of the

government. The Constitution, however, clearly relegates authority

200 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

over foreign affairs to the Executive and Legislative Branches,

with no role for the Judicial Branch to second-guess or reconsider

foreign policy decisions. “Matters relating ‘to the conduct of foreign

relations . . . are so exclusively entrusted to the political branches

of government as to be largely immune from judicial inquiry

or interference.’ ” Haig v. Agee, 453 U.S. 280, 292, 69 L. Ed. 2d

640, 101 S. Ct. 2766 (1981) (quoting Harisiades v. Shaughnessy,

342 U.S. 580, 589, 96 L. Ed. 586, 72 S. Ct. 512 (1952) ).

The very nature of executive decisions as to foreign policy is

political, not judicial. . . . They are decisions of a kind for which

the Judiciary has neither aptitude, facilities, nor responsibility and

have long been held to belong to the domain of political power

not subject to judicial intrusion or inquiry.

Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp.,

333 U.S. 103, 111, 92 L. Ed. 568, 68 S. Ct. 431 (1948); see also

Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 386, 147 L.

Ed. 2d 352, 120 S. Ct. 2288 (2000) (“the nuances of the foreign

policy of the United States . . . are much more the province of the

Executive Branch and Congress than of this Court”) . . .

At the same time, it would be “error to suppose that every

case or controversy which touches foreign relations lies beyond

judicial cognizance.” Baker, 369 U.S. at 211. But on the very issue

before this Court—whether the Constitution provides a congres-

sional role in treaty termination—four Justices in Goldwater

concluded that the issue was a nonjusticiable political question

“because it involved the authority of the President in the conduct

of our country’s foreign relations and the extent to which the

Senate or the Congress is authorized to negate the action of the

President.” 444 U.S. at 1002. Moreover, the plurality’s conclusion

that the issue was political in nature was “even more compelling

. . . because it involves foreign relations—speciﬁcally a treaty

commitment to use military force in the defense of a foreign

government if attacked.” 444 U.S. at 1003, 1004. So, too, here

the treaty termination issue lies squarely in the arena of foreign

relations and involves national defense considerations in that

foreign affairs setting.

The circumstances here present “an unusual need for

unquestioning adherence to a political decision already made.”

Treaty Affairs 201

Baker, 369 U.S. at 217. President Bush publicly announced his

intention to withdraw from the ABM Treaty on December 13,

2001, providing Russia with the six-months notice required by

the Treaty. These thirty-two congressmen, however, waited until

two days before that termination became effective to bring this

lawsuit. Meanwhile, long aware of the intention of the United

States to withdraw from the ABM Treaty, Russia may have

acted based upon the President’s notice of termination. Foreign

governments must be able to rely upon the pronouncements of the

United States regarding its treaties.

Hence, were this Court to ﬁnd the President acted unconstitu-

tionally, and overturn his decision to terminate the ABM Treaty

more than a year after he announced the decision, “the potential []

of embarrassment from multifarious pronouncements by various

departments on one question” would be undeniable. Baker, 369

U.S. at 217; see also Made in the USA Foundation, 242 F.3d

at 1305. “In determining whether a question falls within [the

political question] category, the appropriateness under our

system of government of attributing ﬁnality to the action of the

political departments . . . [is a] dominant consideration.” Coleman

[v. Miller], 307 U.S. at 454–55. With treaties, in particular, a

single voice is needed:

It is not surprising, then, that many questions arising

in connection with our treaties with other governments

have been held to be nonjusticiable. For “not only does

resolution of such issues frequently turn on standards

that defy judicial application, or involve the exercise of a

discretion demonstrably committed to the executive or

legislature; but many such questions uniquely demand

single-voiced statement of the Government’s views.”

Holmes v. Laird, 148 U.S. App. D.C. 187, 459 F.2d 1211,

1215 (D.C. Cir. 1972) (quoting Baker, 369 U.S. at 211).

Courts have therefore repeatedly held that issues concerning

treaties are largely political questions best left to the political

branches of the government, not the courts, for resolution. Since

Goldwater, one other court has held that the role of Congress in

202 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

the termination of a treaty presents a nonjusticiable political

question. In Beacon Products Corp. v. Reagan, 633 F. Supp. 1191,

1198–99 (D. Mass. 1986), aff’d on other grounds, 814 F.2d 1

(1st Cir. 1987), the court relied on the plurality opinion in

Goldwater to hold that a constitutional challenge to President

Reagan’s unilateral termination of the Treaty of Friendship,

Commerce, and Navigation with Nicaragua, without congressional

consent, raised a political question. The court concluded that in

Goldwater “the challenge to the President’s power vis-a-vis treaty

termination raised a nonjusticiable political question. That holding

is equally applicable here.” 633 F. Supp. at 1199.

****

b. Treaties terminated by the President

In 2002 the Ofﬁce of Treaty Affairs in the Ofﬁce of the Legal

Adviser, U.S. Department of State, prepared the following

list of treaties terminated bythe President since 1980. In

each case, the treaty was entered into with the advice and

consent of the Senate to ratiﬁcation, pursuant to Article II,

Section 2 of the U.S. Constitution.

BILATERAL TREATIES

• Treaty of naturalization with Albania. Signed at Tirana April

5, 1932. 49 Stat. 3241, T.S. 892, 5 Bevans 20.

Terminated by Article III of the Memorandum of under-

standing between the United States and Albania concerning

the re-establishment of diplomatic relations, signed at

Washington March 15, 1991.

• Naturalization convention with Belgium. Signed at Brussels

November 16, 1868. 16 Stat. 747, T.S. 24, 5Bevans 476.

Notice of termination given by the United States on October

20, 1980; effective October 20, 1981.

• Treaty of naturalization with Czechoslovakia. Signed at Prague

July 16, 1928. 46 Stat. 2424, T.S. 804, 6 Bevans 1266.

Treaty Affairs 203

Terminated by exchanges of notes between the U.S. and the

Czech Republic and the U.S. and the Slovak Republic.

Terminated as between the U.S. and the Slovak Republic on

July 7, 1997; as between the U.S. and the Czech Republic on

August 20, 1997.

• Naturalization convention with Costa Rica. Signed at San Jose

June 10, 1911. 37 Stat. 1603, T.S. 570, 6Bevans1027.

Notice of termination given by the United States on October

20, 1980; effective October 20, 1981.

• Naturalization convention with Denmark. Signed at Cop-

enhagen July 20, 1872. 17 Stat. 941, T.S. 69, 7Bevans 24.

Notice of termination given by the United States on October

3, 1980; effective October 3, 1981.

• Naturalization convention with El Salvador. Signed at San Sal-

vador March 14, 1908. 35 Stat. 2038, T.S. 503, 7Bevans 503.

Notice of termination given by the United States on October

20, 1980; effective October 20, 1981.

• Naturalization treaty with Haiti. Signed at Washington March

22, 1902. 33 Stat. 2101, T.S. 432, 8 Bevans 650.

• Treaty with Haiti extending the time within which may be

effected the exchange of ratiﬁcations of the treaty of natural-

ization signed March 22, 1902. Signed at Washington February

28, 1903. 33 Stat. 2157, T.S. 433, 8Bevans 652.

Notice of termination given by the United States on October

20, 1980; effective October 20, 1981.

• Naturalization convention with Honduras. Signed at Tegucig-

alpa June 23, 1908. 36 Stat. 2160, T.S. 525, 8 Bevans 890.

Notice of termination given by the United States on October

20, 1980; effective October 20, 1981.

• Treaty with Lithuania deﬁning liability for military service and

other acts of allegiance of naturalized persons and persons born

with double nationality. Signed at Kaunas October 18, 1937.

53 Stat. 1569, T.S. 936, 9Bevans 690.

Notice of termination given by the United States on October

24, 1980; effective October 24, 1981.

• Agreement with Malta with respect to taxes on income, with

related exchange of notes. Signed at Valletta March 21, 1980.

T.I.A.S. 10567.

204 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Notice of termination given by the United States on November

15, 1995; effective January 1, 1997.

• Convention with the Netherlands with respect to taxes on

income and certain other taxes. Signed at Washington April

29, 1948. 62 Stat. 1757, T.I.A.S. 1855, 10Bevans225.

• Protocol with the Netherlands supplementing the convention

of April 29, 1948 with respect to taxes on income and certain

other taxes for the purpose of facilitating extension to the

Netherlands Antilles. Signed at Washington June 15, 1955.

6U.S.T.3696, T.I.A.S.3366.

• Protocol with the Netherlands modifying and sup-

plementing the extension to the Netherlands Antilles of the

convention for avoidance of double taxation and prevention

of ﬁscal evasion with respect to taxes on income and certain

other taxes of April 29, 1948, as supplemented by the Protocol

of June 15, 1955. Signed at The Hague October 23, 1963.

15U.S.T.1900, T.I.A.S.5665.

The 1948 convention, as modiﬁed and supplemented, con-

tinued to apply to Aruba upon its separation from the

Netherlands Antilles on January 1, 1986. Exchanges of notes

between the U.S. and the Netherlands June 29, July 10,

September 11 and October 2, 1987 terminated application

of the 1948 convention to the Netherlands Antilles and

Aruba with the exception of Article VIII; effective January 1,

1988.

• Naturalization convention with Nicaragua. Signed at Man-

agua December 7, 1908. 37 Stat. 1560, T.S. 566, 10 Bevans

362.

• Supplementary naturalization convention with Nicaragua.

Signed at Managua June 17, 1911. 37 Stat. 1563, T.S.567,

10Bevans377.

Notice of termination given by the United States on October

24, 1980; effective October 24, 1981.

• Treaty of friendship, commerce and navigation, and protocol

with Nicaragua. Signed at Managua January21, 1956. 9 U.S.T.

449, T.I.A.S. 4024.

Notice of termination given by the United States on May 1,

1985; effective May 1, 1986.

Treaty Affairs 205

• Naturalization convention and protocol with Norway. Signed

at Stockholm May 26, 1869. 17 Stat. 809, T.S.350, 11 Bevans

888.

Notice of termination given by the United States on October

3, 1980; effective October 3, 1981.

• Naturalization convention with Peru. Signed at Lima October

15, 1907. 36 Stat. 2181, T.S. 532, 10Bevans 1079.

Notice of termination given by the United States on October

24, 1980; effective October 24, 1981.

• Naturalization convention with Portugal. Signed at Washington

May 7, 1908. 35 Stat. 2082, T.S. 513, 11 Bevans 322.

Notice of termination given by the United States on October

20, 1980; effective April 20, 1981.

• Naturalization convention and protocol with Sweden. Signed

at Stockholm May 16, 1869. 17Stat.809, T.S.350, 11 Bevans

888.

Notice of termination given by the United States on October

3, 1980; effective October 3, 1981.

• Treaty on the limitation of anti-ballistic missile systems with

the Union of Soviet Socialist Republics. Signed at Moscow

May 26, 1972.

23U.S.T. 3435, T.I.A.S.7503.

Notice of termination given by the United States on December

13, 2001; effective June 13, 2002.

• Naturalization convention with Uruguay. Signed at Mont-

evideo August 10, 1908. 36 Stat.2165, T.S.527, 12Bevans

984.

Notice of termination given by the United States on October

20, 1980; effective October 20, 1981.

MULTILATERAL TREATIES

• Convention establishing the status of naturalized citizens who

again take up their residence in the country of their origin.

The Protocol to the Treaty on the limitation of anti-ballistic missile

systems with the Union of Soviet Socialist Republics, signed at Moscow July

3, 1974, terminated simultaneously upon termination of the Treaty. 27 U.S.T.

1645, T.I.A.S.8276.

206 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Signed at Rio de Janeiro August 13, 1906. 37 Stat. 1653,

T.S.575, 1Bevans 544.

United States withdrawal effective October 20, 1981.

• Convention relating to international exhibitions. Done at Paris

November 22, 1928. 19U.S.T.5927, T.I.A.S.6548.

• Protocol modifying the convention of November 22, 1928

relating to international exhibitions. Done at Paris May 10,

1948. 19U.S.T. 5927, T.I.A.S.6548.

• Protocol modifying Article IV of the convention of Novem-

ber 22, 1928, as amended, relating to international exhibitions.

Done at Paris November 16, 1966. 19 U.S.T.5974, T.I.A.S.

6549.

• Protocol revising the convention of November 22, 1928 relating

to international expositions, with appendix and annex. Done

at Paris November 30, 1972. 32U.S.T.4283, T.I.A.S.9948.

United States withdrawal effective April 27, 2002.

• Statutes of the World Tourism Organization. Done at Mexico

City September 27, 1970. 27U.S.T.2211, T.I.A.S. 8307.

United States withdrawal effective December 26, 1996.

• Constitution of the United Nations Industrial Development

Organization, with annexes. Done at Vienna April 8, 1979. S.

Treaty Doc. No. 97–19 (1981).

United States withdrawal effective December 31, 1996.

6. Reservation Practice: Iceland Whaling

In July 2001, at its 53

annual meeting, the International

Whaling Commission (“IWC”) refused to accept a reservation

by Iceland contained in its instrument of adherence to the

International Convention on the Regulation of Whaling,

Dec. 2, 1946, 1953 U.N.T.S. 74. The reservation was to the

moratorium on commercial whaling in paragraph 10(e)

of the Convention Schedule. See Digest 2001 at 214–218. In

May 2002 Iceland again ﬁled an instrument of adherence

with the United States as depositary. This instrument also

contained a reservation to the moratorium on whaling for

commercial purposes.

Treaty Affairs 207

At the May 2002 IWC annual meeting in Shimonoseki,

Japan, the IWC voted to uphold the 2001 decision which did

not allow Iceland to become a party but did allow it to “assist

in the meeting as an observer.” 54

Annual Meeting, Final

Press Release, www.iwcofﬁce.org/2002PressRelease.htm. At

the annual meeting, the United States provided an analysis

of its views on the invalidity of the reservation, excerpted

below.

In a special meeting called in October 2002, the issue of

whether the Commission should accept Iceland’s reservation

was again discussed. The ﬁnal press release from the special

meeting announced that “the Commission agreed by 19 votes

to 18, that Iceland is a member of the Commission.” See

www.iwcofﬁce.org/Final%20Press%20Release%202002SM.htm.

The full text of the U.S. position paper is available at

www.state.gov/s/l/c8183.htm.

****

. . . For the reasons outlined below, the United States is of the

view that the Commission acted legally in all respects regarding

this matter during the 53rd Annual Meeting. Given the Com-

mission’s decisions, the United States recognizes Iceland as an

observer to the IWC Commission, but not as a Party to the

Convention.

The Ministry of Foreign Affairs’ note takes the position that a

general principle of international law governs the question of the

acceptability of Iceland’s reservation, i.e., that Iceland’s reservation

is only subject to explicit or implicit acceptance by individual

parties to the Convention. The note rejects the availability of

an exception to that rule where the constituent instrument of an

international organization is subject to acceptance by the relevant

body of that organization. Speciﬁcally, Iceland argues that re-

servations to the Schedule should not be subject to acceptance by

the IWC because the Schedule does not incorporate provisions

of an organizational nature, which are the sort of provisions for

which the exception was developed.

208 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Both the general principle and the exception cited by Iceland

appear to be based on the terms of Article 20 of the 1969 Vienna

Convention on the Law of Treaties (VCLT). Article 20(3) of the

VCLT provides that “When a treaty is a constituent instrument of

an international organization and unless it otherwise provides, a

reservation requires the acceptance of the competent organ of that

organization.” Article 20(4) of the VCLT provides for acceptance

and rejection of a reservation by individual parties to other sorts

of treaties under the principle that “an act expressing a State’s

consent to be bound by the treaty and containing a reservation is

effective as soon as at least one other contracting State has accepted

the reservation.”

Even though it is not a party to the VCLT, the United States

considers it to be the authoritative guide to current treaty law and

practice. By its terms, the VCLT does not apply directly to treaties

concluded prior to its entry into force. Accordingly, the VCLT’s

January 27, 1980 entry into force date precludes it from applying

directly to the 1946 IWC Convention.

However, VCLT Article 4, in providing for its non-

retroactivity, also provides that this condition is “[w]ithout

prejudice to the application of any rules set forth in the present

Convention to which treaties would be subject under international

law independently of the Convention.” Accordingly, to the extent

the provisions of the VCLT reﬂect customary international

law, they may be invoked to address Iceland’s reservation to the

Convention.

Looking at the VCLT as a whole, however, the United States

is of the view that there is no need to reach the question of Article

20’s applicability to Iceland’s reservation (although it is worth

noting that the Schedule to which Iceland attached a reservation

forms an “integral part” of the Convention and that article 20(3)

by its terms applies to the “constituent instrument” of an inter-

national organization like the IWC without any distinction as to

its “organizational” provisions). Another VCLT article applies—

Article 5.

VCLT Article 5 provides in part that the VCLT’s norms apply

to any treaty which is the constituent instrument of an international

organization “without prejudice” to any relevant rules of the

Treaty Affairs 209

organization. In this instance, there are relevant rules that are

applicable to Iceland’s reservation, so it is unnecessary to address

the application of Article 20. These relevant rules are the provisions

of the Convention that deal with amending the Schedule.

As noted in the U.S. Opening Statement to the IWC, the United

States’ views are based on the fact that Iceland’s reservation

constitutes, in effect, a proposed amendment to the Schedule. The

reservation by its terms would amend paragraph 10(e) of the

Schedule to modify its legal effect. Currently, zero catch limits for

commercial whaling apply to all parties to the Convention under

paragraph 10(e) except for those states that ﬁled objections in

accordance with Article V(3) of the Convention. Article V(3) of the

Convention allows states to object to amendments adopted by

the IWC within a 90-day time frame. If a government does object,

the amendment does not become effective for any states for an

additional 90 days, thereby allowing governments which did not

originally object to review the situation created by the non-

participation of one or more other governments. In the case of the

moratorium, its adoption was originally notiﬁed on 6 August 1982.

Four states (Peru (on 26 October 1982), Norway (on 2 November

1982), U.S.S.R. (on 3 November 1982), and Japan (on 4 November

1982) objected within the requisite 90 days, and therefore the

amendment did not become effective until 3 February 1983, 180

days after states were notiﬁed of its adoption. Iceland, which was

a party to the convention at the time, did not take advantage of its

right to object to the amendment during either the original or

additional 90-day periods.

Iceland’s reservation, therefore, would amend the Schedule by

modifying the current scope of application of Paragraph 10(e)

with respect to all parties. Instead of all IWC Contracting Parties

being bound to the commercial moratorium except for those states

that objected in accordance with Article V(3) of the Convention,

the commercial moratorium would apply to all states except those

that objected and Iceland. Moreover, Iceland’s reservation would

amend paragraph 10(e) by permanently exempting Iceland from

such zero catch limits without affording other governments the

opportunity to review their own positions with respect to such an

exemption in accordance with Article V(3).

210 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Furthermore, the practice of parties to the Convention supports

extending the Convention’s rule on amendments to the Schedule

to apply to reservations to the Schedule as well. The only previous

proposed reservation to the Schedule was treated as an amendment

to the Schedule. In 1948, Denmark requested the views of govern-

ments concerning its proposal to ratify the IWC Convention with

a reservation to a portion of the Schedule. Speciﬁcally, Denmark

sought to exclude the application to factory ships of Schedule

provisions on regulations governing the operation of land stations

if those factory ships were operating under the jurisdiction of the

Danish government, and moving entirely within Danish territorial

waters, including the territorial waters of the Faroe Islands and

Greenland.

Four founding Parties of the Convention—Norway, the

U.S.S.R., the United Kingdom and the United States—objected

to the proposed reservation, each indicating that the matter

should be referred to the IWC when it was established, the IWC

Convention not yet having entered into force (the other 10

states indicated that they were prepared to accept the Danish

reservation).

In a May 12, 1949 note to Denmark, the United States, acting

as depositary, informed Denmark that “certain of the signatory

and adhering governments to the International Convention for

the Regulation of Whaling have stated that they cannot agree to

the ratiﬁcation of the Convention with the reservation proposed

by Denmark as this reservation would constitute an amendment

to the schedule annexed to the Convention and is therefore a

matter which should be submitted to the International Whaling

Commission for consideration when it is established.”

As a result of these objections, Denmark did not make its pro-

posed reservation when it deposited its instrument of ratiﬁcation

to the IWC Convention on May 23, 1950. The United States takes

the view that the Danish case provides precedent within the IWC

for considering these types of reservations as amendments to the

Schedule.

Since Iceland’s reservation would constitute an amendment

to the Schedule, it required IWC acceptance. Articles III and V of

Treaty Affairs 211

the Convention invest the IWC with the authority to amend

the provisions of the Schedule by a three-fourths majority of those

members voting. Absent three-fourths of the IWC members

accepting Iceland’s reservation, Iceland’s reservation does not

accord with the Convention’s rules. In such circumstances, the

United States views the IWC decision to continue to treat Iceland

as an observer to be legally valid.

Iceland’s reservation (and the reservation proposed by

Denmark) are materially different from the statements made by

Argentina, Chile, Peru, and Ecuador when those states became

parties to the Convention. None of the statements related to the

Convention’s Schedule. Moreover, although styled as reservations,

these statements did not modify the legal effect of the Convention’s

provisions with respect to other IWC parties. Argentina’s statement,

to which the United Kingdom objected, related to reafﬁrming its

claim over the Falkland/Malvinas islands and other territories in

the Antarctic region, without modifying the rights and obligations

it assumed under the Convention. Similarly, the statements of Chile,

Peru and Ecuador related to their views regarding certain provisions

of the Law of the Sea Convention. They did not have any direct

bearing on the rights and obligations among the parties since the

Convention applies to all waters of parties to the Convention. In

contrast, as noted above, the Icelandic reservation would modify

directly and substantially the legal rights and obligations of the

IWC Parties.

Finally, the Ministry of Foreign Affairs’ note takes the position

that the validity of a reservation with respect to a provision of an

international agreement must be judged on the basis of whether

it is compatible with the object and purpose of the agreement in

question (a principle codiﬁed in VCLT Art. 19(c)). Since in Iceland’s

view, the reservation is consistent with the object and purpose

of the Convention, the reservation cannot be rejected. Aside from

ignoring the applicable rules of the Convention for accepting

amendments to the Schedule, such an approach fails to fully

reﬂect the distinction in the VOLT between the admissibility and

acceptability of reservations. All reservations must be “admissible”

—i.e., compatible with a treaty’s object and purpose. However,

212 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

simply because a reservation is compatible with a treaty’s object

and purpose does not render it legally valid. It must also be

“accepted” by other states parties to the treaty, which, as detailed

above, in the case of the Convention is done through a vote before

the IWC.

****

C. ROLE IN LITIGATION

No Private Right of Action

a. Agreements between Mexico and the United States

On August 23, 2002, the U.S. District Court for the Northern

District of California dismissed claims against the United

States, Mexico, Wells Fargo Bank, and three Mexican

government-owned banks. Cruz v. U.S., 219 F. Supp. 2d 1027

(N.D.Cal. 2002). The claims had been brought on behalf

of Mexican nationals, often referred to as braceros, who had

worked as agricultural or railroad laborers between 1942 and

1949 pursuant to international agreements between the

United States and Mexico. The district court described the

circumstances in which the claims arose as follows:

With the outbreak of World War II, many American

workers left their domestic jobs and joined the war effort.

To address the resultant labor shortage, the United States

looked to Mexico. On August 4, 1942 the United States

and Mexico entered into the ﬁrst in a series of agreements

under which Mexican workers would come to work in

United States. This ﬁrst agreement covered agricultural

workers.

The 1942 agreement between Mexico and the United

States provided that the United States would enter a

separate contract with each individual bracero. The United

States then subcontracted the worker to the actual farmer

or farmer association. Both the 1942 agreement between

Mexico and the United States and the standard contract

Treaty Affairs 213

governing the relationship between each worker and the

United States provided that ten percent of each worker’s

wages be retained and deposited into a Savings Fund.

Upon proper application, the Savings Fund deductions

were to be returned to the bracero when he returned to

Mexico.

Agreements altering these arrangements were entered

into between Mexico and the United States in 1943, 1948,

and 1949. Pursuant to the 1943 agreement, Savings Fund

deductions were terminated on January 1, 1946. Under the

1948 and 1949 agreements, each bracero entered into a

contract directly with his employer, and the United States

was no longer a signatory to the individual work contract.

The last agreement between the United States and Mexico

expired December 31, 1964. The United States and Mexico

also entered into a similar agreement to supply labor to the

railroad industry in 1943. The railroad braceros program

terminated in early 1946 and was never revived.

All claims against the Mexican defendants and Wells

Fargo were dismissed without leave to amend. The court’s

analysis of sovereign immunity in its dismissal of the claims

against Mexico is discussed in Chapter 10.A.5.c., below.

A claim against the United States based on ﬁduciary

duty was dismissed without leave to amend. All other claims

against the United States were dismissed as time-barred

under the applicable statute of limitations, with leave to

amend. The court did not address plaintiffs’ arguments that

the U.S.-Mexico agreements involved in this case provided

them with a private right of action. The United States had

refuted that argument in its memorandum of points and

authorities in support of its motion to dismiss, ﬁled January

11, 2002, as set forth in the excerpts below.

The full text of the memorandum of points and authorities

is available at www.state.gov/s/c8183.htm.

****

214 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

1. The International Agreements Contain No Provision

Permitting Suits Against the United States

It is well-settled that treaties and international executive

agreements

are presumed not to create privately-enforceable

rights. The Supreme Court instructed long ago that:

A treaty

is primarily a compact between independent

nations. It depends for the enforcement of its provisions

on the interest and the honor of the governments which

are parties to it. If these fail, its infraction becomes the

subject of international negotiations and reclamation, so

far as the injured parties choose to seek redress. . . . It is

obvious that with all this the judicial courts have nothing

to do and can give no redress.

There are three types of international agreements other than treaties

subject to the Senate advice and consent to ratiﬁcation: (1) congressional-

executive agreements, executed by the President Upon speciﬁc authorizing

legislation from Congress; (2) international agreements pursuant to treaty,

executed by the President in accord with speciﬁc instructions in a prior,

formal treaty; and (3) executive agreements executed pursuant to the

President’s own constitutional authority. United States v. Walczak, 783 F.2d

852, 855 (9th Cir. 1986); RESTATEMENT (THIRD) OF FOREIGN

RELATIONS LAW § 303 (1986) [“Id Restatement of Foreign Relations”].

They are binding on the United States and “may in appropriate circumstances

have an effect similarto treaties in some areas of domestic law,” even though

they do not comply with the formalities required by Art. II, § 2, cl.2 of the

Constitution. Weinberger v. Rossi, 456 U.S. 25, 30 n. 6 (1982); see also

Dames & Moore v. Regan, 453 U.S. 654 (1981).

The term “treaty” is generally used loosely to cover executive

agreements. See 3d Restatement of Foreign Relations § 303, comment a.

Indeed, “[u]nder principles of international law, the word [treaty] ordinarily

refers to an international agreement concluded between sovereigns, regardless

of the manner in which the agreement is brought into force.” Weinberger,

456 U.S. at 29. Thus, unless there is “some afﬁrmative expression of con-

gressional intent to abrogate the United States’ international obligations,”

id. at 32, the term “treaty” generally extends to not only Art. II treaties, but

also other international agreements executed by the President. See, e.g., id.

at 32–36 (statutory reference to “treaty,” without limiting it to only Art. II

treaties, construed to cover executive agreements).

Treaty Affairs 215

Head Money Cases, 112 U.S. 580, 598–99 (1884); see also United

States v. De La Pava, 268 F.3d 157, 164 (2d Cir. 2001) (“As a

general matter . . . there is a strong presumption against conferring

individual rights from international treaties.”); United States v.

Li. 206 F.3d 56, 60 (1st Cir.) (en banc), cert. denied, 531 U.S. 956

(2000); Goldstar (Panama) S.A. v. United States, 967 F.2d 965,

968 (4th Cir. 1992), cert. denied, 506 U.S. 955 (1992); Tel-Oren

v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C. Cir. 1984)

(Bork, J., concurring), cert. denied, 470 U.S. 1003 (1985); Diggs

v. Richardson, 555 F.2d 848, 851 (D.C. Cir. 1976).

Because “[t]reaties are contracts between or among independ-

ent nations,” United States v. Zabaneh, 837 F.2d 1249 (5th Cir.

1998); see also Trans World Airlines v. Franklin Mint Corp. 466

U.S. 243, 253 (1984), “individuals have no standing to challenge

violations of international treaties in the absence of a protest by

the sovereigns involved.” Matta-Ballesteros v. Henman, 896 F.2d

255, 259 (7th Cir.), cert. denied, 498 U.S. 878 (1990); accord

Zabaneh, 837 F.2d at 1261 (treaties are “designed to protect the

sovereign interests of nations, and it is up to the offended nations

to determine whether a violation of sovereign interests occurred

and requires redress”); United States v. Mann. 829 F.2d 849, 852–

53 (9th Cir. 1987); United States ex rel. Saroop v. Garcia, 109

F.3d 165, 167 (3d Cir. 1997). Thus, even where a treaty provides

beneﬁts for nationals of a particular state, any rights arising from

it belong only to the nation-states, and individual rights are only

derivative through the states. De La Pava, 268 F.3d at 164; Li,

206 F.3d at 61; Matta-Ballesteros, 896 F.2d at 259; 3d Restatement

of Foreign Relations § 907, comment a (“International agreements,

even those directly beneﬁtting private persons, generally do not

create private rights or provide for a private cause of action in

domestic courts[.]”).

To be sure, the presumption that treaties do not create a

judicially enforceable private right of action may be overcome

if the treaty manifests an intent to do so. See Mann, 829 F.2d at

852 (“A treaty may create standing if it indicates the intention to

‘establish direct, afﬁrmative, and judicially enforceable rights.”).

But such an intent must be explicit; the treaty itself must explicitly

216 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

confer on private citizens rights enforceable in court.

See Li,

206 F.3d at 66–67 (Selya, J. and Boudin, J., concurring) (the

presumption against private right of action “certainly can be

overcome by explicit language that is easy to draft and to insert,

just as a contract can provide expressly that rights created by it

may be enforced in court by a third-party beneﬁciary”); Goldstar,

967 F.2d at 968; Garcia, 109 F.3d at 167 (“individuals ordinarily

may not challenge treaty interpretations in the absence of an

express provision within the treaty Matta-Ballesteros, 896 F.2d

at 259–60; Comm. of U.S. Citizens Living in Nicaragua v. Reagan,

859 F.2d 929, 937–38 (D.C. Cir. 1988); United States v. Reed,

639 F.2d 896, 902 (2d Cir. 1981). Cf. Temengil v. Trust Territory

of the Paciﬁc Islands, 881 F.2d 647, 652–53 (9th Cir. 1989)

(trusteeship agreement with former Japanese mandated islands for

the beneﬁt of the islanders did not create a private right to monetary

damages against the United States because, inter alia, the treaty

did not indicate an intent to create such a right), cert. denied, 496

U.S. 925 (1980).

It should be noted that courts sometimes conﬂate the question of

whether a treaty is “self-executing” with whether the treaty creates private

enforcement rights. See, e.g., Reagan, 895 F.2d at 938; Goldstar, 967 F.2d

at 967; People of Saipan v. Dep’t of Interior, 502 F.2d 90, 97 (9th Cir.

1974), cert. denied, 420 U.S. 1003 (1975). Although these courts use the

term “self-executing” in a broad sense to refer to a treaty that both takes

effect without implementing legislation and creates a private right of action,

the two concepts are technically distinct. See 3d Restatement of Foreign

Relations § 101 and comment h; 206 F.2d at 67–68 (Selya, J. & Boudin, J.,

concurring). A “self-executing” treaty is one that takes effect as federal law

without implementing legislation. Id.; see also Islamic Republic of Iran v.

Boeing, 771 F.2d 1279 (9th Cir. 1985) (determining whether treaty was

self-executing or merely executory). “Whether the terms of such a treaty

provide for private rights, enforceable in domestic courts, is a wholly separate

question.” Li, 206 F.2d at 67–68 (Selya, J. & Boudin, J., concurring);

see also 3d Restatement of Foreign Relations § 101, comment h. “The self-

executing character of a treaty does not by itself establish that the treaty

creates private rights.” Li, 206 F.2d at 67–68 (Selya, J. & Boudin, J.,

concurring); see, e.g., Seguros Commercial America v. Hall, 115 F. Supp. 2d

1371 (M.D. Fla. 2000) (convention found to be self-executing but did not

create a private right of action).

Treaty Affairs 217

The ﬁve relevant international agreements covering the period

1942 to 1949—Agreements of August 4, 1942; April 26, 1943;

April 29, 1943; February 20 and 21, 1948; and August 1, 1949—

give no indication that the agreements were intended to confer

upon the individual Mexican workers judicially enforceable rights

against the United States. Instead, they merely called upon the

two governments to take certain actions, and their terms are

addressed to the rights and obligations of the two governments.

For example, under the 1942 agreement (as amended in 1943),

which formed the basic structure of the wartime Mexican farm

labor program, the two governments agreed that the United

States would execute the individual worker’s contract “under the

supervision of the Mexican Government” (Ex. 1 at 56 Stat. 1966);

that the Mexican health authorities would ensure that the worker

met the necessary physical conditions (id.); that the United States

would advise Mexico as to the number of workers needed and

Mexico should determine in each case the number of workers

who may leave the country without detriment to its national

economy (id. at 56 Stat. 1768); that the United States would ensure

that Mexican government inspectors would have free access to

the Mexican workers’ places of work (Ex. 2 at 57 Stat. 1161); and

that either government had the right to terminate the agreement

upon a 90-day notice (Ex. 1 at 56 Stat. 1769).

Although the international agreements also outlined the

terms and conditions of the Mexican workers’ employment, they

unambiguously indicated that those rights and obligations were to

be included in the individual work contracts and triggered only by

the worker’s execution of the contract. Indeed, the fact that the

two governments believed that individual contracts between the

United States and the workers were necessary belies any suggestion

that the international agreements themselves created privately

enforceable rights. The workers’ recourse against the United States

was to sue under the individual contracts or seek the diplomatic

assistance of the Mexican consuls, see Ex. I at 56 Stat. at 1767

(“The Mexican Consuls in their respective jurisdiction shall make

every effort to extend all possible protection to all these workers

on any questions affecting them.”); Ex. 2 at 57 Stat. 1161 (“[t]he

Mexican Consuls, assisted by the Mexican Labor Inspectors, will

218 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

take all possible measures of protection in the interests of the

Mexican workers in all questions affecting them”); Ex. 21 at 57

Stat. 1357; Ex. 18 at 62 Stat. 3891.

Finally, the 1942 agreement also made clear that the subject

matter of the Mexican labor supply program was to be treated

as a matter between states. See, e.g., Ex. 1 at 56 Stat. 1764 (“For

purpose of determining the scope of this matter it was agreed, as

Your Excellency is aware, to treat it as a matter between States”);

see also id. at 56 Stat. 1765 (“In order to determine the scope of

the conditions under which Mexican labor might proceed to the

United States. . . . , it was agreed that the negotiations should be

between our two Governments . . .”). These references are con-

sistent with the principle of international law discussed above that

international agreements are binding only as between the state

parties.—Nothing rebuts the strong presumption that the inter-

national agreements at issue are not enforceable against the United

States by the individual Mexican workers.

Without any explicit language permitting suit against the United

States in the international agreements at issue, sovereign immunity

is a complete defense to plaintiffs’ claims against the United States

under those agreements. See Canadian Transport Co. v. United

States. 663 F.2d 1081, 1092 (D.C. Cir. 1980) (“In the absence of

speciﬁc language in the treaty waiving the sovereign immunity of

the United States, the treaty must be interpreted in accord with

the rule that treaty violations are normally to be redressed outside

the courtroom.”); 3d Restatement of Foreign Relations § 907,

comment c (suits against the United States pursuant to international

agreements “will not lie unless the United States has consented”);

see, e.g., Goldstar, 967 F.2d at 967–68 (sovereign immunity a com-

plete defense to plaintiffs’ damages claims against the United

States under the Hague Convention); Canadian Transport Co.

663 F.2d at 1092; cf. Argentine Republic v. Amerada Hess Shipping

Corp., 488 U.S. 428, 442 (1989) (foreign sovereign immunity

complete defense to private action in United States courts where

the international conventions only set forth substantive rules of

conduct and state that compensation shall be paid for certain

wrongs, but did not waive immunity).

****

Treaty Affairs 219

b. U.S.-Iran Treaty of Amity, Economic Relations and

Consular Rights

On October 7, 2002, the Supreme Court denied certiorari

in a case concerning claims for expropriation against Iran.

Islamic Republic of Iran v. McKesson HBOC, Inc., 123 S.Ct.

341 (Mem.) (2002). In August 2002, the Overseas Private

Investment Corporation (“OPIC”)* ﬁled a brief in opposition

to a petition for certiorari by the Islamic Republic of Iran.

McKesson HBO, Inc., ﬁled a conditional cross-petition for

certiorari. The petition was for a writ to the U.S. Court of

Appeals for the District of Columbia in the case of McKesson

HBOC, Inc. v. Islamic Republic of Iran, 271 F.3d 1101 (D.C. Cir.

2001). The lengthy history of the litigation in that case

is described in the OPIC brief. Brieﬂy, in 1973 McKesson

invested in a dairy operation in Iran, insured by OPIC.

Following the revolution in Iran, between 1980 and 1982

OPIC paid over $4 million in claims to McKesson for

expropriation and an additional $1.4 million for loss of

property interests, including lost dividends. Pursuant to

the Algiers Accords and implementing executive orders in

the United States, McKesson was required to pursue its

claims in the Iran-U.S. Claims Tribunal. The Tribunal awarded

McKesson $1.4 million, paid from the security account

established under the Algiers Accords, but concluded that

there had been no expropriation as of January 19, 1981, the

date required for the Tribunal’s jurisdiction. In 1988, therefore,

McKesson renewed this expropriation suit, which had been

suspended during the time it was required to pursue its

claims at the Tribunal.

* As described in the OPIC brief, “OPIC is a federal agency that insures

United States businesses against political risk in their investments abroad

and also ﬁnances overseas business through loans and loan guarantees. See

generally 22 U.S.C. 2194. . . . OPIC is a corporation wholly owned by the

United States Government. It functions as an agency of the Executive Branch,

independent of any Cabinet Department but ‘under the policy guidance of

the Secretary of State.’ ” [22 U.S.C. 2191].

220 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

In three interlocutory appeals to the U.S. Court of Appeals

for the District of Columbia Circuit, the court determined

that Iran was not entitled to immunity under the Foreign

Sovereign Immunities Act because the actions fell under the

“commercial activity” exception to immunity under that

statute. 28 U.S.C. § 1605(a)(2). See discussion in Chapter

10.A.6.b. below. The last of the three appeals afﬁrmed in

part and reversed in part a judgment by the district court

awarding $20 million in compensatory damages to

McKesson, McKesson Corp. v. Islamic Republic of Iran, 116 F.

Supp. 2d 13 (D.D.C. 2000), remanding the case to the district

court with instructions to proceed to trial on petitioner’s

substantive defense to liability. 271 F.3d 1101 (D.D.C. 2001).

In opposition to Iran’s petition for writ of certiorari

to the Supreme Court, the United States urged the Court

to refuse certiorari of the interlocutory appeal and allow

the then-pending litigation to be completed. The OPIC brief

described the issues pending in the litigation as follows

(internal cross-references deleted):

The court of appeals . . . considered the district court’s

grant of summary judgment on liability. The court held

that the Treaty of Amity provides respondents with

a cause of action under United States law for an ex-

propriation by petitioner. It did not address the district

court’s alternative holding that customary international

law also provides a cause of action. The court of appeals

concluded, however, that petitioner had raised a genuine

issue of material fact concerning its defense that

McKesson was required to “come to the company” [i.e.,

physically appear at a company’s ofﬁce with a receipt]

before receiving its dividends. The court remanded the

case for trial on that question.

The court of appeals also upheld the district court’s

determination of damages. It rejected respondents’ claim

that the district court should have awarded compound,

rather than simple, prejudgment interest. The court of

appeals concluded that, although the district court may

Treaty Affairs 221

have erred in holding that compound interest was never

available under international law in such cases, an award

of compound interest was not required and the district

court did not abuse its discretion by declining to make

such an award.

Excerpts below provide OPIC’s argument that the U.S.-

Iran Treaty of Amity does not provide a cause of action under

U.S. law for a U.S. national to sue a foreign sovereign in U.S.

federal court for expropriation. Although the court of appeals

had mistakenly concluded otherwise, OPIC argued that that

issue did not warrant granting of certiorari in this case. Cross-

references to other pleadings in the case have been omitted.

The full text of the OPIC brief is available at www.usdoj/

osg.gov.

****

[2]a. The court of appeals’ conclusion that the Treaty of Amity

provides a cause of action because it is “self-executing” conﬂates

two separate inquiries. “Whether a treaty is self-executing is a

question distinct from whether the treaty creates private rights or

remedies.” Restatement (Third) of the Foreign Relations Law of

the United States § 111, cmt. h. (1987). The creation of a private

right of action “is analytically distinct from the ‘self-execution’

concept.” Carlos M. Vázquez, The Four Doctrines of Self-Executing

Treaties, 89 Am. J. Int’l L. 695, 721 (1995).

As this Court explained in Foster v. Neilson, 27 U.S. (2 Pet.)

253, 314 (1829), a treaty is self-executing “whenever it operates

of itself without the aid of any legislative provision.” But that

means only that the treaty is “regarded in courts of justice as

equivalent to an act of the legislature.” Ibid.; see, e.g., Whitney v.

Robertson, 124 U.S. 190, 194 (1888) (“If the treaty contains

stipulations which are self-executing, that is, require no legislation

to make them operative, to that extent they have the force and

effect of a legislative enactment.”). Like an Act of Congress, a

treaty may establish legal standards or rules of decision in litigation

without itself creating a private right of action. And like an Act of

222 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Congress, a self-executing treaty that speaks in terms of individual

rights may well create rights that are enforceable by courts in

actions that are authorized by or brought under other sources

of law.

The Court’s decision in Argentine Republic v. Amerada Hess

Shipping Corp., 488 U.S. 428 (1989), illustrates the point. The

Court there ruled that the respondents could not sue Argentina

for alleged wrongs, explaining that the treaties on which the

respondents relied “only set forth substantive rules of conduct

and state that compensation shall be paid for certain wrongs.

They do not create private rights of action for foreign corporations

to recover compensation from foreign states in United States

courts.” Id. at 442 (footnote omitted). Thus, even if those treaties

were self-executing, they did not confer a private cause of action,

and the Court held that they therefore did not constitute an express

waiver of sovereign immunity under 28 U.S.C. 1605(a)(1).

b. The Treaty of Amity’s prohibition against expropriation is

self-executing, in the sense that it was intended to establish

substantive legal standards without the need for implementing

legislation. It states that “[p]roperty of nationals and companies

of” one state party to the Treaty “shall not be taken [by the other]

except for a public purpose, nor shall it be taken without the

prompt payment of just compensation.” Treaty of Amity, art. IV,

para. 2. That standard is effective of its own force, and imposes a

For example, the cause of action in Foster (and in United States v.

Percheman, 32 U.S. (7 Pet.) 51 (1833), which involved the same treaty) was

a common-law claim for ejectment. Likewise, treaty rights may be raised as

a defense in a suit brought under another source of law. See, e.g., Vázquez,

supra, 89 Am. J. Int’l L. at 721.

The court of appeals’ reliance on Tel-Oren v. Libyan Arab Republic,

726 F.2d 774, 809 (D.C. Cir. 1984) (Bork, J., concurring), cert. denied, 470

U.S. 1003 (1985), is misplaced. The concurring judge correctly observed

that a non-self-executing treaty cannot confer a private right of action, but

the converse is not necessarily true: A treaty that is self-executing may or

may not confer a private right of action. There was no occasion for the

concurring judge to consider that question, and his statement equating self-

execution with the creation of private rights of action was accordingly dicta.

See, e.g., Vázquez, supra, 89 Am. J. Int’l L. at 720–721.

Treaty Affairs 223

legal obligation on the governments of Iran and the United States.

Accord Asakura v. Seattle, 265 U.S. 332, 341 (1924) (provision

of an earlier Treaty of Commerce and Navigation between the

United States and Japan “operates of itself without the aid of any

legislation, state or national; and it will be applied and given

authoritative effect by the courts”).

The Treaty itself, however, does not create a cause of action

for United States citizens to sue Iran in United States courts. By

its terms, the Treaty says nothing about private rights of action

to enforce its substantive provisions. Thus, the Treaty can create

such a cause of action only by implication. In the analogous con-

text of statutes, this Court has exercised great circumspection

in recognizing causes of action through that means. See, e.g.,

Alexander v. Sandoval, 532 U.S. 275, 285–287 (2001); see also

Correctional Servs. Corp. v. Malesko, 122 S. Ct. 515, 519 n.3

(2001) (noting that this Court has “retreated from [its] previous

willingness to imply a cause of action where Congress has not

provided one”); Transamerica Mortgage Advisors, Inc. v. Lewis,

444 U.S. 11, 24 (1979) (“The dispositive question remains whether

Congress intended to create any such remedy.”).

The United States does not interpret the Treaty of Amity to

create a private right of action as a matter of United States law for

a United States citizen to sue Iran in the courts of this country.

The Treaty establishes legal standards and obligations that are

designed to protect the nationals (including corporations) of

one state party in the territory of the other. Thus, the Treaty

prohibits the uncompensated taking of “[p]roperty of nationals

and companies of either High Contracting Party * * * within the

territories of the other High Contracting Party.” Treaty of Amity,

art. IV, para. 2. Equally signiﬁcant, it refers to “access to courts

of justice and administrative agencies” by the “[n]ationals and

companies of either High Contracting Party * * * within the

territories of the other High Contracting Party.” Id., art. III, para.

2. But the Treaty does not confer a right of access to the courts of

justice by the nationals and companies of one High Contracting

Party to that Party’s own courts, whether to bring an action against

the other party or for any other purpose. It therefore does not

itself create, expressly or by implication, a cause of action allowing

224 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

a United States national to bring an action against Iran in a United

States court for Iran’s expropriation of the United States national’s

property.

The court of appeals’ contrary conclusion is inconsistent

with this Court’s circumspection concerning implied private

rights of action and with the understanding that Congress deﬁnes

what causes of action are available in United States courts. See

Transamerica, 444 U.S. at 24. Because the treaty is focused on a

host government’s treatment of aliens, it would be particularly

odd to infer a cause of action for United States nationals to sue a

foreign government in United States courts. There is similarly no

reason to think that, in negotiating the Treaty, the United States

anticipated that the Treaty could be invoked to create a cause of

action allowing Iranian nationals to sue the United States in the

courts of Iran. The courts should not infer the creation of reciprocal

rights by which United States nationals could sue Iran in the courts

of this country.

The court of appeals’ interpretation would be detrimental to

the broader foreign relations interests of the United States. The

United States is a party to numerous Friendship, Commerce, and

Navigation (FCN) treaties. If United States courts conclude that

FCN treaties generally should be understood to confer private

rights of action on United States nationals to sue a treaty partner

in federal court in the United States, it is to be anticipated that the

courts of this Nation’s treaty partners could reach a similar

conclusion, and the United States Government could be subject to

a variety of new suits in foreign courts (including Iranian courts)

by foreign nationals.

This case does not present the separate question whether the Treaty

of Amity should be read to create an implied private right of action for

Iranian nationals or companies to sue the United States or other government

actors in this country. In any event, the standards applicable to the United

States and the States under the Fifth Amendment of the Constitution satisfy

the substantive standards of the treaty, and ample remedies exist under United

States law for foreign nationals, as for United States citizens, to bring takings

claims against the government. See 28 U.S.C. 1491; Russian Volunteer Fleet

v. United States, 282 U.S. 481 (1931); see also First English Evangelical

Lutheran Church v. Los Angeles County, 482 U.S. 304 (1987).

Treaty Affairs 225

c. Although the court of appeals erred in construing the Treaty

of Amity, that error does not warrant review at this time. As

McKesson points out), the court of appeals did not address, and

petitioner has not sought review of, any alternative basis for

respondents’ claims. Respondents’ complaint identiﬁed at least

three alternative sources for the cause of action here-customary

international law, the Treaty of Amity, and other applicable law,

including in particular Iranian law. The district court held that

both the Treaty of Amity and customary international law provide

a cause of action sufﬁcient to sustain this suit. The court of appeals

did not address the district court’s alternative conclusion that

customary international law provides a cause of action. Neither

court below addressed any other possible source of law, including

Iranian law.

As a result of the remand ordered by the court of appeals, the

district court and court of appeals will have an opportunity to

consider further those possible alternative sources of a cause of

action, as well as to consider the position of the United States, set

forth in this brief, that the Treaty of Amity does not create a

private right of action. If judgment is ultimately entered against

petitioner at the conclusion of further proceedings, the Court can

then decide whether to grant review to consider the existence of a

cause of action under each of those various sources of law to the

extent they remain in the case.

For example, the cause of action in Foster (and in United

States v. Percheman, 32 U.S. (7 Pet.) 51 (1833), which involved

the same treaty) was a common-law claim for ejectment. Likewise,

For reasons similar to those set forth in the text concerning the

Treaty of Amity, even more difﬁcult questions are raised by the proposition

that an implied right of action may be recognized under customary

international law in the absence of an Act of Congress that codiﬁes customary

international law and thereby furnishes at least some statutory basis for a

cause of action under federal law in United States courts. Nor have the con-

tours of any cause of action under Iranian law been fully developed below.

Because the court of appeals did not reach those issues, this Court does not

have the beneﬁt of that court’s analysis of those questions. And because

those alternative bases for a cause of action are not before the Court, we do

not address them further here.

226 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

treaty rights may be raised as a defense in a suit brought under

another source of law. See, e.g., Vázquez, supra, 89 Am. J. Int’l L.

at 721.

Cross References

Agreements between AIT and TECRO, Chapter 3.A.3.(2),

13.A.3.d.(4)

Regional economic organizations as parties to Inter-American

Tropical Tuna, Chapter 13.A.3d.(1)

Application of 1949 Convention on Road Trafﬁc, Chapter 1.C.1.

Applicability of Geneva Conventions to detainees, Chapter

18.A.4.a.

Violation of Agreed Framework, Chapter 18.C.3.

U.S. decision not to become member of International Criminal

Court, Chapter 3.C.2.

Arms control treaties, Chapter 18.B.

International Law Commission concerning reservations, Chap-

ter 7.A.2.

Settlement of claims under Agreement with Vietnam; Treaty of

Peace with Japan, Chapter 8.B.2.; 8.B.4.a.

Bilateral tax treaty with Canada and enforcement of foreign tax

claims in U.S. courts, Chapter 15.A.4.

Relationship between treaty and statute, Chapter 10.A.6.d.(1);

Chapter 15.A.4.

Federal Foreign Affairs Authority 227

227

CHAPTER 5

Federal Foreign Affairs Authority

A. FOREIGN RELATIONS LAW OF THE UNITED STATES

1. Agreement with Russia Concerning Documentation

of U.S.-Soviet Relations

In February 2002 Secretary of State Colin L. Powell and

Russian Minister of Foreign Affairs Igor Ivanov reached

agreement on publication of a joint compilation of documents

related to the development of Soviet-American relations

during the period from 1969 to 1976. A press release from

the Department of State, dated December 13, 2002, reported

that consultations concerning implementation had been held

on December 10–12, 2002, following a similar set of talks

held in Moscow in June 2002.

The full text of the press release is available at

www.state.gov/r/pa/prs/ps/2002/15936pf.htm.

2. Alienage Diversity Jurisdiction

On April 17, 2002, the U.S. Supreme Court held that a foreign

corporation organized under the laws of the British Virgin

Islands was a “citize[n] or subjec[t] of a foreign state” for

purposes of federal jurisdiction under the alienage diversity

statute, resolving a conﬂict among the U.S. circuit courts

of appeals. JPMorgan Chase Bank v. Trafﬁc Stream (BVI)

Infrastructure Ltd., 536 U.S. 88 (2002). The alienage diversity

statute, 28 U.S.C. § 1332(a)(2), provides for jurisdiction in

228 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

federal district courts of certain civil actions “between . . .

citizens of a State and citizens or subjects of a foreign state.”

The statute is based on Article III, § 2 of the U.S. Constitution,

establishing the judicial power of the United States to include

controversies “between a State, or the Citizens thereof, and

foreign States, Citizens, or Subjects.”

In this case, the U.S. District Court for the Southern

District of New York had granted summary judgment in

favor of Chase Manhattan Bank, which had sued Trafﬁc

Stream for breach of an indenture agreement providing for

the issuance of secured debt to ﬁnance Trafﬁc Stream’s

business ventures. Chase Manhattan Bank v. Trafﬁc Stream

(BVI) Infrastructure Ltd., 86 F. Supp. 2d 244 (S.D.N.Y. 2000).

On appeal, the U.S. Court of Appeals for the Second Circuit

sua sponte raised the question of subject-matter jurisdic-

tion and dismissed the case. 251 F.3d 334 (2d Cir. 2001).

Relying on its precedent in Matimak Trading Co. v. Khalily,

118 F.3d 76 (2d Cir. 1997), the court of appeals found that

because Trafﬁc Stream was a citizen of an Overseas Territ-

ory and not an independent foreign state, jurisdiction was

lacking.

The Supreme Court granted certiorari “[b]ecause the

Second Circuit’s decision conﬂicts with those of other Circuits

. . . and implicates serious issues of foreign relations.” 536

U.S. at 99. The United States had ﬁled a brief as amicus

curiae in support of plaintiff’s petition. See discussion in

Digest 2001 at 227–235.

On November 20, 2002, in accordance with the Supreme

Court’s April 2002 decision on the merits, the court of appeals

afﬁrmed the district court’s judgment in favor of Chase

Manhattan Bank. 52 Fed. Appx. 528 (2d Cir. 2002).

Excerpts below from the Supreme Court opinion explain

its holding in the case. Footnotes have been deleted.

****

The argument that the status of the [British Virgin Islands

(“BVI”)] renders the statute inapplicable begins by assuming that

Federal Foreign Affairs Authority 229

Trafﬁc Stream, organized under BVI law, must be a citizen

or subject of the BVI alone. Since the BVI is a British Overseas

Territory, unrecognized by the United States Executive Branch

as an independent foreign state, it is supposed to follow that for

purposes of alienage jurisdiction Trafﬁc Stream is not a citizen

or subject of a “foreign state” within the meaning of [28 U.S.C.]

§ 1332(a)(2).

Even on the assumption, however, that a foreign state must be

diplomatically recognized by our own Government to qualify as

such under the jurisdictional statute (an issue we need not decide

here), we have never held that the requisite status as citizen or

subject must be held directly from a formally recognized state, as

distinct from such a state’s legal dependency. On the contrary, a

consideration of the relationships of the BVI and the recognized

state of the United Kingdom convinces us that any such distinction

would be entirely beside the point of the statute providing alienage

jurisdiction.

****

The relationship between the BVI’s powers over corporations

and the sources of those powers in Crown and Parliament places

the United Kingdom well within the range of concern addressed

by Article III [of the U.S. Constitution] and § 1332(a)(2). The

United Kingdom exercises ultimate authority over the BVI’s

statutory law, including its corporate law and the law of corporate

charter, and it exercises responsibility for the BVI’s external

relations. These exercises of power and responsibility point to just

the kind of relationship that the Framers believed would bind

sovereigns “by inclination, as well as duty, to redress the wrongs”

against their nationals, 2 Elliot’s Debates 493 (J. Wilson). See

J. Jones, British Nationality Law and Practice 288 (1947) (“It is

the practice of His Majesty’s Government in the United Kingdom

to protect, as against foreign Powers, . . . corporations owing their

existence to the law in force in the United Kingdom and colonies”).

Any doubters may consult the United Kingdom’s own ﬁlings in

this matter and others comparable, which express apprehension

that expulsion of corporations like Trafﬁc Stream from federal

courts would cloud investment opportunity and raise the sort of

230 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

threat to “the security of the public tranquility” that the Framers

hoped to avoid. . . .

****

Trafﬁc Stream’s alternative argument is that BVI corporations

are not “citizens or subjects” of the United Kingdom. Trafﬁc Stream

begins with the old ﬁction that a corporation is just an association

of shareholders, presumed to reside in the place of incorporation,

see, e.g., Tugman, 106 U.S., at 120–121, with the result that, for

jurisdictional purposes, a suit against the corporation should be

understood as a suit against the shareholders, see id., at 121.

Trafﬁc Stream proceeds to read the British Nationality Act, 1981,

as a declaration by the United Kingdom that BVI residents are not

its citizens or subjects, but mere “nationals,” without the rights

and privileges of citizens or subjects, such as the right to travel

freely within the United Kingdom. . . .

The . . . outdated legal construct of corporations as collec-

tions of shareholders linked by contract . . . [is] a view long since

replaced by the conception of corporations as independent legal

entities. . . .

But the argument’s more signiﬁcant weakness is its failure to

recognize that jurisdictional analysis under the law of the United

States is not ultimately governed by the law of the United King-

dom, whatever that may be. While it is perfectly true that “every

independent nation [has the inherent right] to determine for

itself . . . what classes of persons shall be entitled to its citizen-

ship,” United States v. Wong Kim Ark, 169 U.S. 649, 668, 42 L.

Ed. 890, 18 S. Ct. 456 (1898), our jurisdictional concern here is

with the meaning of “citizen” and “subject” as those terms are used

in § 1332(a)(2). In fact, we have no need even to decide whether

Trafﬁc Stream’s reading of the British Nationality Act is wrong,

as the United Kingdom says it is, but only whether the status

Trafﬁc Stream claims under the Nationality Act would so operate

on the law of the United States as to disqualify it from being

a citizen or subject under the domestic statute before us here.

We think there is nothing disqualifying.

****

Federal Foreign Affairs Authority 231

Because our opinion accords with the positions taken by the

Governments of the United Kingdom, the BVI, and the United

States, the case presents no issue of deference that may be due

to the various interested governments. It is enough to hold that

the United Kingdom’s retention and exercise of authority over the

BVI renders BVI citizens, both natural and juridic, “citizens or

subjects” of the United Kingdom under 28 U.S.C. § 1332(a). We

therefore reverse the judgment of the Court of Appeals.

****

3. Availability of Intelligence and Foreign Relations Information

On June 20, 2002, the U.S. Supreme Court dismissed a

claim brought by the American widow of a foreign dissident

alleging that concealment of information by U.S. Government

ofﬁcials denied her access to the courts, which could have

saved the dissident’s life. Christopher v. Harbury, 536 U.S.

403 (2002). The United States brief as amicus curiae, ﬁled in

the U.S. Supreme Court in January 2002, described the facts

of the case as follows:

Harbury, a United States citizen, was the widow of Efrain

Bamaca-Velasquez, a Guatemalan rebel leader. In March

1992, the Guatemalan army reported that Bamaca com-

mitted suicide during a battle. Harbury alleged, however,

that Bamaca was captured and detained by members

of the Guatemalan military, including Central Intelligence

Agency (“CIA”) “assets” allegedly paid by the CIA to

obtain information about the rebel forces. She further

alleged that Bamaca’s captors tortured him and then

executed him around September 1993. Harbury claimed

that, in early 1993, she learned from an escaped prisoner

that Bamaca was still alive and being tortured. During

1993, she contacted various State Department ofﬁcials

asking for information about her husband’s status.

Harbury alleges that although in each case the ofﬁcial

promised to look into the matter, she received no

information. Subsequent communications from State

232 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Department and National Security Council (“NSC”)

ofﬁcials, she alleges, conveyed the impression that they

knew nothing for sure but were seeking information and

would keep her informed. Harbury claimed, however,

that the government ofﬁcials knew all along that Bamaca

had been killed by the Guatemalan army. In particular,

she alleged that, while Bamaca was still alive, U.S. federal

government ofﬁcials made “fraudulent statements and

intentional omissions” that prevented her from effectively

seeking adequate legal redress, petitioning the appropri-

ate government authorities, and seeking to publicize her

husband’s true plight through the media.”

Excerpts below from the Supreme Court opinion dismiss-

ing the claim address the separation of powers issues raised

by the case. Internal citations have been omitted.

****

The particular facts of this case underscore the need for care

on the part of the plaintiff in identifying, and by the court in

determining, the claim for relief underlying the access-to-courts

plea. The action alleged on the part of all the Government

defendants (the State Department and NSC defendants sued for

denial of access and the CIA defendants who would have been

timely sued on the underlying claim but for the denial) was

apparently taken in the conduct of foreign relations by the National

Government. Thus, if there is to be judicial enquiry, it will raise

concerns for the separation of powers in trenching on matters

committed to the other branches. Since the need to resolve such

constitutional issues ought to be avoided where possible, the trial

court should be in a position as soon as possible in the litigation

to know whether a potential constitutional ruling may be obviated

because the allegations of denied access fail to state a claim on

which relief could be granted.

Respondent-plaintiff in this case alleges that Government

ofﬁcials intentionally deceived her in concealing information that

her husband, a foreign dissident, was being detained and tortured

Federal Foreign Affairs Authority 233

in his own country by military ofﬁcers of his government, who

were paid by the Central Intelligence Agency. One count of the

complaint, brought after the husband’s death, charges that the

ofﬁcial deception denied respondent access to the courts by leaving

her without information, or reason to seek information, with which

she could have brought a lawsuit that might have saved her

husband’s life. The issue is whether this count states an actionable

claim. We hold that it does not, for two reasons. As stated in the

complaint, it fails to identify an underlying cause of action for

relief that the plaintiff would have raised had it not been for

the deception alleged. And even after a subsequent, informal

amendment accepted by the Court of Appeals, respondent fails

to seek any relief presently available for denial of access to courts

that would be unavailable otherwise. 

****

The Court did not ﬁnd it necessary to rule on issues raised

by the United States concerning the particular problems

with attempting to bring a claim based on a right to foreign

relations and intelligence information. Excerpts below from

the U.S. brief address those issues. Footnotes and internal

cross-references have been deleted.

****

ARGUMENT

RESPONDENT HAS NO CONSTITUTIONAL RIGHT, LET

ALONE A CLEARLY ESTABLISHED RIGHT, TO FORCE

CANDID DISCLOSURES OF FOREIGN AFFAIRS AND

INTELLIGENCE INFORMATION

In Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), this Court recognized an implied

private cause of action for damages against federal ofﬁcers in

their personal capacities, where they are alleged to have violated

constitutional rights under color of their federal authority. Ofﬁcials

sued under Bivens, however, enjoy qualiﬁed immunity unless their

234 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

conduct violates “clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982).

****

C. The Existence Of An Alternative Remedial Scheme For

Obtaining Information From The Federal Government Precludes

Inference Of A Bivens Action.

The existence of statutory avenues for obtaining information

from the government not only obviates the need to constitutionalize

this area of the law, but a fortiori demonstrates that there is no

need for the Court to infer a Bivens remedy for any constitutional

right that may exist. This Court has consistently refused to infer a

Bivens remedy where Congress already has established an alter-

native statutory mechanism for addressing the relevant problem.

See, e.g., Correctional Servs. Corp. v. Malesko, 122 S. Ct. 515,

520 (2001).

****

A Bivens remedy should not be inferred here because Congress

has created a comprehensive framework of statutory mechanisms

for seeking information from the federal government. Of primary

relevance, the Freedom of Information Act establishes procedures

for any member of the public to obtain copies of non-exempt agency

documents and records, and embodies “a general philosophy of

full agency disclosure.” Department of Air Force v. Rose, 425

U.S. 352, 360 (1976) (quoting S. Rep. No. 813, 89th Cong., 1st

Sess. 3 (1965)). . . .

The Privacy Act of 1974, 5 U.S.C. 552a (allowing access to

governmental records pertaining to the requesting individual), the

Government in the Sunshine Act, 5 U.S.C. 552b (open meeting

requirements), and the Federal Advisory Committee Act, 5 U.S.C.

App. at 1 (requiring access to meetings and records of federal

advisory committees), provide additional mechanisms for obtaining

information about governmental programs and policies. . . . Each

statute also contains restrictions on the disclosure of privileged

and classiﬁed information, including the types of foreign relations

and intelligence information sought by respondent here. See 5

Federal Foreign Affairs Authority 235

U.S.C. 552(b)(1), (3) and (7); 5 U.S.C. 552a(k)(1), (2) and (3); 5

U.S.C. 552b(c)(1), (3) and (7); 5 U.S.C. App. § 10(b) and (d) . . .

****

In short, respondent was never “a plaintiff in search of a

remedy.” Malesko, 122 S. Ct. at 523. To the contrary, she at all

times had available to her “an elaborate remedial system that has

been constructed step by step, with careful attention to conﬂict-

ing policy considerations,” Bush, 462 U.S. at 388, and that she

acknowledges was capable of providing her all of the information

to which she was legally entitled—if she had invoked the procedures

in a timely manner.

Finally, supplementation of that elaborate and interlocking

system of disclosure obligations would be doubly inappropriate

here, because respondent predicates her claim for constitutional

relief on an alleged intentional withholding of information

pertaining to foreign affairs and intelligence operations. This Court

will not infer a Bivens remedy where there are “special factors

counselling hesitation.” Schweiker, 487 U.S. at 423; see also Bivens,

403 U.S. at 396–397. In United States v. Verdugo-Urquidez, 494

U.S. 259, 273–274 (1990), this Court suggested that matters

pertaining to foreign affairs and foreign activities could be special

factors counseling hesitation in inferring a Bivens remedy, in light

of the judiciary’s traditional reluctance to delve into such matters.

For similar reasons, this Court has declined to infer a Bivens remedy

for actions incident to military service because “congression-

ally uninvited intrusion into military affairs by the judiciary is

inappropriate.” United States v. Stanley, 483 U.S. 669, 683 (1987).

The Executive Branch actions for which respondent seeks a

judicially imposed Bivens remedy all pertain to the withholding of

and communications about the United States’ relations with a

foreign government, intelligence operations and activities between

the two governments, the existence of alleged CIA operatives or

paid informants within a foreign government, and the knowledge

of United States ofﬁcials about the foreign government’s treatment

and interrogation of a foreign national engaged in insurrection

against a recognized foreign government. Few matters could be

less appropriate for judicial superintendence. That fact would have

236 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

been obvious had respondent ﬁled a timely FOIA request or

attempted a timely lawsuit. The result should be no different

because respondent instead has asked the courts to mint a novel

constitutional tort.

****

4. Reciprocal Access to National Courts

On October 29, 2002, the U.S. Court of Federal Claims

dismissed a suit against the United States for lack of subject-

matter jurisdiction. Ferreiro v. U.S., 54 Fed. Cl. 274 (2002).

Plaintiffs in the suit, Cuban nationals living in Cuba, sought

pension beneﬁts not paid since the imposition of the Cuban

embargo. Plaintiffs and others they represent were Cuban

nationals enlisted in the U.S. Armed Forces during World

War II and therefore eligible to participate in the Civil Service

Retirement System. As explained in the opinion of the Court

of Claims:

Plaintiffs’ beneﬁts have not been paid, escrowed, or

accounted for since the United States imposed the Cuban

Embargo in 1963. All government agencies owing monies

to Cuban Nationals suspended pension, social security,

and veterans’ beneﬁts pursuant to United States Depart-

ment of the Treasury (“Treasury”) regulations. In a letter

dated February 10, 1964, the United States Civil Service

Commission announced:

It has now been determined that there is no

reasonable assurance that a payee living in Cuba

will actually receive United States Government checks

or be able to negotiate them for full value. There-

fore, since the United States Treasury Department

Regulations now prohibit payments to persons

residing in Cuba, Civil Service annuity payments are

being suspended. This stoppage of payments applies

to all Civil Service annuitants and survivor-annuitants

residing in Cuba including those whose civil Service

annuity checks were being delivered to an address

Federal Foreign Affairs Authority 237

outside Cuba. This means that any checks to which

you were entitled which were dated after January 2,

1963, will not be issued.

If payments to Cuban residents are resumed at some

time in the future, the Civil Service annuity beneﬁts

which were withheld will be paid provided all condi-

tions for entitlement to such beneﬁts have been met.

Plaintiffs argued that their suit for past pension beneﬁts

was authorized under 28 U.S.C. § 2502. That statute provides

that “[c]itizens or subjects of any foreign government which

accords to citizens of the United States the right to prosecute

claims against their government in its courts may sue the

United States in the United States Court of Federal Claims

if the subject matter of the suit is otherwise within such

court’s jurisdiction.”

On October 15, 2002, the U.S. Department of State had

responded to a court order requesting an ofﬁcial statement

addressing the issue of whether the Cuban government

accords U.S. citizens the right to fully prosecute claims

against the Cuban government in the Cuban courts. In deter-

mining that it lacked subject-matter jurisdiction, the court

relied on the State Department opinion and its conclusion:

It is the view of this court that at this juncture it is

prudent to rely on the ofﬁcial opinion of the United States

Department of State dated October 15, 2002, which is

attached to this judicial opinion in its entirety. The State

Department is uniquely situated to render an ofﬁcial

determination on the issue of whether the Cuban govern-

ment accords United States citizens the right to fully

prosecute claims against the Cuban government in the

Cuban courts. Accordingly, this court will not undertake

to conduct an evidentiary hearing on the matter, nor will

it consider the parties’ arguments and proffered evidence

in this regard, as it appears to be piecemeal, disjointed,

and wholly inadequate for this court to render a thorough

and correct decision on the reciprocity issue.

238 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

That being said, this court has carefully read and fully

considered the ofﬁcial statement from the United States

Department of State, dated October 15, 2002. In this

opinion the State Department concludes:

While the Cuban government tightly controls informa-

tion in Cuba, the Department has reviewed the

information available to it on this subject. Based on

this information, the Department has concluded that

any right of a U.S. citizen to pursue a claim against

the Cuban government in Cuban courts is subject to

the political interference of the Cuban government

and, thus, that there are serious impediments to the

ability of a U.S. citizen to pursue effectively a lawsuit

against the Cuban government.

October 15, 2002 opinion of the United States Depart-

ment of State at 1.

The ofﬁcial opinion from the State Department is both

comprehensive, supported by facts and empirical evid-

ence, and well-reasoned. There is no anecdotal evidence,

such as that previously supplied to the court by the

parties, which could supplant the opinion of the State

Department. Accordingly, this court must conclude that

it lacks jurisdiction over this matter pursuant to 28 U.S.C.

§ 2502, inasmuch as, based on the ofﬁcial opinion of the

State Department relied upon by this court, there exist

serious impediments to the ability of a U.S. citizen to

pursue effectively a lawsuit against the Cuban government.

Additional excerpts, provided below, from the letter

from Daniel W. Fisk, Deputy Assistant Secretary of State for

Western Hemisphere Affairs, October 15, 2002, provide the

reasons for the Department’s conclusions on which the court

relied.

The full text of the letter is available at www.state.gov/s/l/

c8183.htm.

****

Federal Foreign Affairs Authority 239

As stated in the Department’s most recent (2001) Report on

Human Rights Practices in Cuba, “Cuba is a totalitarian state

controlled by President Fidel Castro . . . [who] exercises control

over all aspects of life through the Communist Party and its

afﬁliated mass organizations, the government bureaucracy headed

by the Council of State, and the state security apparatus.”

There

is no independent judiciary or judicial system in Cuba today.

The Cuban judicial system is subject to the political control of

the Cuban government. While it appears that at least some

Cuban courts have jurisdiction to hear a claim against the Cuban

government brought by any individual (including U.S. citizens),

the Human Rights Report notes that the Cuban constitution

“explicitly subordinates the courts to the [National Assembly

of People’s Power] and the Council of State, which is headed

by President Castro.”

The Department’s Human Rights Report

also notes that the “subordination of the courts to the Com-

munist Party, which the Constitution designates as the superior

directive force of society and the State, further compromises the

independence of the judiciary.”

In addition, article 10 of the Cuban

constitution provides that “all organs” of the Cuban government,

including the courts, “are obliged to strictly observe socialist legality

and to ensure respect for it in the life of the entire society.”

Thus,

political control over the Cuban judiciary is accomplished both by

functional oversight and by a substantive legal requirement.

Cuban judicial decision-making is compromised by the political

inﬂuence of the Cuban government. The Human Rights Report

notes that the “panels composed of a mix of professionally certiﬁed

and lay judges” preside over civilian courts at the municipal,

provincial and supreme court levels.

Lay judges are selected, in

Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of

State, country Reports on Human Rights Practices—Cuba, at 1, (Apr. 2002)

available at http://www.state.gov/g/drl/rls/hrrpt/2001/wha/ [hereinafter

“Human Rights Report”.

Id.

Id. at 7.

Constitucion de Cuba, art. 10, translated in constitutions of the

countries of the World: Republic of Cuba 4 th ed. Gisbert Flanz, 2000.

Human Rights Report, supra note 1, at 7.

240 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

part, for their political obedience to the Cuban government. Since

juries are not used in Cuba, these mixed panels of professional

judges and lay judges are the decision-makers. Within Cuba, the

United States is the subject of constant antagonism and vitriol

expressed by the Cuban government. It is within this environment

that both professional judges and lay judges must make decisions.

The Department believes that the professional and lay judges

considering a claim by a U.S. citizen against the Cuban govern-

ment are inherently subject to constant governmental pressure,

without any of the safeguards that typically protect an independent

judiciary.

Cuban lawyers are also subject to the control and political

inﬂuence of the Cuban government. Cuban laws have been used to

deprive certain individuals who have criticized the Cuban govern-

ment or defended human rights cases of their ability to practice

law in Cuba.

In the Human Rights Report, the Department

concluded that “the control that the Government [of Cuba] exerts

over the livelihood of members of the state—controlled lawyers’

collectives compromises their ability to represent clients, especially

when they defend persons accused of state security crimes.”

The Department also noted in the Human Rights Report that

“[a]ttorneys have reported reluctance to defend those charged in

political cases due to fear of jeopardizing their own careers.”

Given the constant hostility articulated by the Cuban government

towards the United States, representing a U.S. citizen in a case

against the Cuban government appears to present the same

governmental intimidation and offers the same career hazard.

Treatment of U.S. citizens by the Cuban government in the

past has evinced a general disregard for their rights. For example,

when the Castro regime took power, the Cuban government took

The Inter-American Commission reported that “attorneys who prepare

and sign briefs with positions critical of the situation of the nation or the

profession” have been called to meetings to be prohibited from practicing

law. Cuba, Inter-Am. C.H.R. 677, 693, 0EA/Ser.L/v/II.114 Doc. 5 rev 1

(2002).

Human Rights Report, supra note 1, at 7.

Id.

Federal Foreign Affairs Authority 241

into state ownership most of the property in that country owned

by the United States and its citizens.

The Foreign Claims Settlement

Commission (FCSC) noted in 1972 that “[n]o provision was

made by the Cuban Government for the payment of compensation

for such property as required under generally accepted rules of

international law.”

In fact, the 5,911 claims of U.S. citizens and

corporations certiﬁed by the FCSC, most resulting from these

nationalizations, remain unresolved today. As valued by the U.S.

Foreign Claims Settlement Commission (FCSC), these claims today

are worth approximately $6.3 billion, including accrued interest.

Certain U.S. citizens have been subjected to gross mistreatment

by the Cuban judicial system, as documented by the FCSC. For

example, Cuba tried, convicted and executed Howard F. Anderson

in 1961 for alleged crimes against the Cuban government. The

FCSC determined that the “lack of opportunity for defense

attorneys to prepare arguments for the trial and subsequent appeal,

the actions of the prosecutor at the trial, the changing of the crime

charged by the appeals court, the inconsequential acts of Mr.

Anderson who was not a member of any group acting against the

Cuban Government, and the animosity toward Americans resulting

from the Bay of Pigs,” resulted in a “denial of justice by the

Government of Cuba.”

Similarly, the FCSC concluded that the

execution of Robert Otis Fuller in 1961 “for the same crime for

which two Cuban nationals were sentenced to thirty years im-

prisonment, was clearly a discrimination directed to persons alien

to the Republic of Cuba, being disproportionate to the punishment

meted out to the Cuban nationals,” and therefore was “a denial

of justice.”

While somewhat dated examples, they remind us of

the over forty-year animosity that has been expressed both in and

U.S. For. Claims Settlement Comm’n, Final Report of the Cuban

Claims Program 69 (1979), reprinted from U.S. For. Claims Settlement

Comm’n, Annual Report to Congress (1972).

Id.

In the Matter of the Claim of Dorothy McCarthy, et al., U.S. For.

Claims Settlement Comm’n, Dec. No. CU-6244, at 8 (1971).

In the Matter of the Claim of Jennie Fuller, et al., U.S. For. Claims

Settlement Comm’n, Dec. No. CU-6199, at 9 (1971).

242 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

out of the Cuban courtroom. We have no reason to believe that

current Cuban judicial processes would be less subject to the

political requirements of the current Cuban government.

5. Foreign Policy Issues in U.S. Legislation

On September 30, 2002, President George W. Bush signed

into law H.R. 1646, the Foreign Relations Authorization

Act, Fiscal Year 2003. Pub. L. No. 107–228, 115 Stat. 350. In

doing so, he noted that a number of provisions in the Act

“impermissibly interfere with the constitutional functions

of the presidency in foreign affairs.” In his statement, set

forth below, the President indicated the manner in which

the provisions would be construed or implemented in order

to preserve executive branch prerogatives.

The full text of the statement is available at 38 WEEKLY

COMP. PRES. DOC. 1658 (Oct. 2, 2002).

I have today signed into law H.R. 1646, the “Foreign Relations

Authorization Act, Fiscal Year 2003.” This Act authorizes appro-

priations, and provides important new authorities, for diplomatic

and related activities of the U.S. Government. Many provisions in

the Act will strengthen our ability to advance American interests

around the globe, including nonproliferation of weapons of mass

destruction, and to meet our international commitments, including

those to the United Nations. Regrettably, the Act contains a number

of provisions that impermissibly interfere with the constitutional

functions of the presidency in foreign affairs, including provisions

that purport to establish foreign policy that are of signiﬁcant

concern.

The executive branch shall construe as advisory the provisions

of the Act, including sections 408, 616, 621, 633, and 1343(b),

that purport to direct or burden the conduct of negotiations

by the executive branch with foreign governments, international

organizations, or other entities abroad or which purport to direct

Federal Foreign Affairs Authority 243

executive branch ofﬁcials to use the U.S. voice and vote in inter-

national organizations to achieve speciﬁed foreign policy objectives.

Such provisions, if construed as mandatory rather than advisory,

would impermissibly interfere with the President’s constitutional

authorities to conduct the Nation’s foreign affairs, participate in

inter-national negotiations, and supervise the unitary executive

branch.

The executive branch shall also construe provisions in the

Act that mandate submission of information to the Congress or

the public, such as sections 204, 215, 603, 613(b), 615 and 1602,

in a manner consistent with the President’s constitutional author-

ity to withhold information the disclosure of which could impair

the foreign relations, the national security, the deliberative processes

of the Executive, or the performance of the Executive’s con-

stitutional duties. The Secretary of State will, of course, continue

as a matter of comity to keep the Congress appropriately informed

of the Nation’s foreign affairs activities.

Several provisions of the Act, including sections 650, 1205(d)(5),

and 1501(7) call for executive branch ofﬁcials to submit to the

Congress recommendations for legislation. The executive branch

shall implement these provisions in a manner consistent with

the President’s constitutional authority to supervise the unitary

executive branch and to recommend to the Congress such measures

as the President judges necessary and expedient.

Section 214, concerning Jerusalem, impermissibly interferes

with the President’s constitutional authority to conduct the Nation’s

foreign affairs and to supervise the unitary executive branch.

Moreover, the purported direction in section 214 would, if

construed as mandatory rather than advisory, impermissibly

interfere with the President’s constitutional authority to formu-

late the position of the United States, speak for the Nation in

international affairs, and determine the terms on which recognition

is given to foreign states. U.S. policy regarding Jerusalem has

not changed.

The executive branch shall implement sections 325 and 687 in

a manner consistent with the equal protection requirements of the

Due Process Clause of the Fifth Amendment to the Constitution.

244 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Section 505 of the Act excludes U.S. Government employees

abroad assigned to duty as correspondents for the Voice of America

(VOA) from the statutory responsibilities of the Secretary of State

for security of certain U.S. Government personnel abroad and of

chiefs of U.S. missions for direction of such personnel. Pursuant

to the constitutional authority of the President to conduct the

Nation’s foreign affairs and to supervise the unitary executive

branch, the Secretary of State may provide such direction as

may be necessary with respect to the security and conduct of

U.S. Government employees abroad assigned to duty as VOA

correspondents.

Section 604 purports to require the imposition of certain

sanctions on the Palestinian Liberation Organization or Palestinian

Authority based on the determinations that the President makes

or fails to make in the report provided for in section 603. Although

a waiver authority is also provided, I note that some of these

sanctions, in particular with respect to visas and the status of

representational ofﬁces, bear on the President’s power with

respect to the timing and nature of diplomatic communications.

Accordingly, I shall construe these requirements in a manner

consistent with my constitutional responsibilities for the conduct

of foreign affairs.

Section 645 of the Act purports to require the President to

implement a law through a particular subordinate ofﬁcer in the

Department of Commerce. The executive branch shall implement

this provision in a manner consistent with the President’s authority

to supervise the unitary executive branch, including the authority

to direct which ofﬁcers in the executive branch shall assist the

President in faithfully executing the law.

Section 686 makes seven additional plaintiffs with judgments

against Iran eligible for payments under the Victims of Trafﬁcking

and Violence Protection Act of 2000. While U.S. victims of inter-

national terrorism are deserving of compensation in accordance

with the law, the continued piecemeal legislative approach that

addresses some victims and not others is neither equitable nor

practicable. The Congress should develop a comprehensive pro-

posal that provides compensation for all victims, following the

principles my Administration outlined in June of this year. Such a

Federal Foreign Affairs Authority 245

proposal should not draw upon blocked assets to fund victim

compensation, so as to preserve the prerogatives of the President

in the area of foreign affairs.

****

Section 1206 could be misconstrued to imply a change in the

“one China” policy of the United States when, in fact, that U.S.

policy remains unchanged. To the extent that this section could be

read to purport to change United States policy, it impermissibly

interferes with the President’s constitutional authority to conduct

the Nation’s foreign affairs.

Section 1406 of the Act requires that actions to remove items

from the munitions list be subject to reprogramming notiﬁcations

to committees of Congress. By its plain terms, this provision does

not subject such actions to any committee approval requirements,

which would be impermissible under the constitutional separation

of powers, and accordingly, the executive branch shall so imple-

ment it.

My approval of the Act does not constitute my adoption of

the various statements of policy in the Act as U.S. foreign policy.

Given the Constitution’s commitment to the presidency of the

authority to conduct the Nation’s foreign affairs, the executive

branch shall construe such policy statements as advisory, giving

them the due weight that comity between the legislative and

executive branches should require, to the extent consistent with

U.S. foreign policy.

6. American Institute in Taiwan

On April 16, 2002, the U.S. Court of Appeals for the District

of Columbia Circuit afﬁrmed the decision of the District Court

for the District of Columbia dismissing a qui tam action

under the False Claims Act against the American Institute in

Taiwan (“AIT”) for lack of jurisdiction. Wood, ex rel. United

States of America, v. The American Institute In Taiwan, 286

F.3d 526, 351 (D.C. Cir. 2002). The United States had ﬁled a

brief in the case as defendant/appellee, explaining that the

246 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

appellant was a political appointee who had served as the

Managing Director and Chairman of the Board of Trustees

of AIT. See discussion and excerpts of brief in Digest 2001 at

235-241. The court of appeals held that AIT was immune

from suit under the False Claims Act as an agency or

instrumentality of the United States, that Congress had not

waived AIT’s sovereign immunity, and that the district court

order’s refusal to grant additional discovery relative to AIT’s

sources of funding was not an abuse of discretion.

B. CONSTITUENT ENTITIES

Northern Mariana Islands: Control of “Submerged Lands”

On December 2, 2002, the United States ﬁled in the U.S.

District Court for the District of the Northern Mariana Islands

a Cross Motion for Summary Judgment and Memorandum

in Support in Commonwealth of the Northern Mariana Islands

v. U.S., No. CV 99-0028 (D. N. Mar. I.). In this case, the

Commonwealth of the Northern Mariana Islands (“CNMI”)

claimed sovereignty, ownership, and exclusive right to control

submerged lands and marine resources underlying a 12-mile

territorial sea, as well as a 200-mile exclusive economic

zone, as measured from straight archipelagic baselines. The

U.S. motion sought dismissal of the complaint ﬁled by the

CNMI and a judgment decreeing that, as of November 4,

1986, CNMI legislation purporting to exert sovereignty and

control over the submerged lands and marine resources at

issue were null and void under the Supremacy Clause of

the U.S. Constitution, Sections 101 and 102 of the Coven-

ant To Establish A Commonwealth of the Northern Mariana

Islands in Political Union with the United States of

America (“Covenant”), and Articles XI and XIV of the CNMI

Constitution, because they conﬂict with the United States’

ownership and paramount right to control and regulate the

submerged lands and marine resources seaward of the

Commonwealth’s low-water mark.

Federal Foreign Affairs Authority 247

The United States became Trustee for the former Trust

Territory of the Paciﬁc Islands (“TTPI”), including what is

now the CNMI, pursuant to an agreement with the United

Nations Security Council on July 18, 1947. The United States

entered into negotiations on the future status of the TTPI in

the 1960s. In 1970 the Congress of Micronesia, composed

of representatives of the six administrative districts of the

TTPI, including the Northern Mariana Islands, rejected a

U.S. proposal to enter into a commonwealth relationship

of “permanent association” with the United States. The

TTPI elected instead to form a looser, more autonomous

relationship of “free association.” In 1972 the United States

agreed to hold separate negotiations with the Northern

Mariana Islands directed toward a closer and more per-

manent political relationship with the United States. On

November 3, 1986, President Ronald Reagan declared that

the U.N. Trusteeship was terminated with respect to the

Northern Mariana Islands, as well as to the Marshall Islands

and the Federated States of Micronesia. 51 Fed. Reg. 40,399

(Nov. 7, 1986)). The President proclaimed that, as of Novem-

ber 4, 1986, “the Commonwealth of the Northern Mariana

Islands in political union with and under the sovereignty

of the United States of America is fully established.” Id.

A discussion of the history of the relationship between the

United States and what came to be the CNMI, including

discussions of the status of the submerged lands at issue, is

set forth in the U.S. brief at 1–17.

Excerpts from the U.S. brief set forth below provide the

views of the United States that

the United States is the owner of, and has paramount

authority over, the submerged lands lying seaward of the

Commonwealth’s coastlines and inland waters, because

the CNMI, in Covenant § 101, entered into a sovereignty

relationship with the United States, like every other

U.S. state and territory, and that relationship ofﬁcially

became effective on November 4, 1986. . . . [W]herever a

sovereignty relationship exists between the United States

248 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

and a state or territory abutting oceanic waters, the

United States’ paramount authority over submerged lands

seaward of the low water mark, as a matter of U.S. law,

attaches as an incident of that sovereignty.

Internal cross-references to other pleadings and sup-

porting documents have been omitted.

The full text of the U.S. motion and supporting

memorandum are available at www.state.gov/s/l/c8183.htm.

****

A. Pursuant to Section 101 of the Covenant the United States

Acquired the Paramount Rights to the Submerged Lands and

Marine Resources Underlying the Oceanic Waters

Surrounding the CNMI’s Coastlines When the U.N.

Trusteeship Agreement Terminated in November 1986

. . . [T]he Covenant controls the rights, responsibilities, and

political relationship between the U.S. and the CNMI. Section 101

of the Covenant speciﬁes that the United States is sovereign over

the CNMI. As an incident of external sovereignty, the United

States, under U.S. law, acquired ownership and paramount rights in

the submerged lands and marine resources seaward of the CNMI’s

low-water mark at the termination of the U.N. Trusteeship.

Under federal constitutional law, paramount power over

submerged lands is vested in the United States as a necessary

element of national external sovereignty. In United States v.

California, 332 U.S. 19 (1947), the Supreme Court rejected the

State of California’s claim to ownership of the oceanic submerged

lands within three miles of the coastline. It went on to hold that

the protection and control of adjacent seas is a function of national

external sovereignty which, under the U.S. constitutional system,

requires that paramount rights over the submerged lands underlying

adjacent oceanic waters and their natural resources be vested

in the federal government. 332 U.S. at 34. The Court also made

clear that “the Federal Government has the paramount right and

power to determine in the ﬁrst instance when, how, and by what

Federal Foreign Affairs Authority 249

agencies . . . the oil and other resources of the soil of the marginal

sea . . . may be exploited.” 332 19 U.S. at 29.

In United States v. Texas, 339 U.S. 707 (1950), a similar

submerged lands case involving lands underlying the Gulf of

Mexico, the Supreme Court concluded that even if Texas, prior

to admission to statehood, had full ownership and sovereignty

over the adjacent seas and seabed, such ownership could not survive

the State’s admission to the Union:

It is said that . . . the sovereignty of the sea can be complete

and unimpaired no matter if Texas owns the oil underly-

ing it. . . . Yet . . . once the low-water mark is passed the

international domain is reached. Property rights must

then be so subordinated to political rights as in substance

to coalesce and unite in the national sovereign. . . . If the

property, whatever it may be, lies seaward of the low-

water mark, its use, disposition, management, and control

involve national interests and national responsibilities. That

is the source of national rights in it.

339 U.S. at 719.

The paramountcy doctrine applies to U.S. territories to the same

extent as to States. In 1958, long before the NMI representatives

commenced negotiations with the United States over the NMI’s

future political status, the Solicitor of the U.S. Department of the

Interior (“DOI”) issued a legal opinion addressing the applicability

of the paramount rights doctrine to unincorporated territories that,

In subsequent litigation between the federal government and the

States of Louisiana and Texas, the Court extended the California doctrine

from the three-mile belt to the outer continental shelf (“OCS”). In United

States v. Louisiana, 339 U.S. 699, 704 (1950), the Court explained that,

with respect to the OCS, “[t]he problems of commerce, national defense,

relations with other powers, war and peace focus there. National rights

must therefore be paramount in that area.”

In United States v. Maine, 420 U.S. 515 (1975), the Supreme Court

rejected a claim by Atlantic Coast states that they had acquired rights to the

seabed which had survived the formation of the Union, thereby reiterating

the continued vitality of the paramountcy doctrine.

250 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

like the CNMI, are subject to U.S. sovereignty. In that opinion,

the DOI Solicitor declared that 48 U.S.C. § 1421 et seq., a statute

that transferred to the Government of Guam “all property, real or

personal,” previously used by the “naval government in Guam in

the administration of the civil affairs of the inhabitants of Guam,”

and “all other property, real and personal, not reserved by the

[U.S.] President,” did not convey to the Guamanian government

title to the oceanic submerged lands adjacent to Guam. Although

acknowledging that the paramount rights doctrine had previously

been applied in cases only involving states and incorporated

territories, the Solicitor concluded that the doctrine must also apply

to unincorporated territories such as Guam “since to hold otherwise

would result in the granting to such a territory of powers or rights

greater than those of the incorporated territories, which would be

unreasonable.”

Consistent with the Interior Solicitor’s conclusions, the Ninth

Circuit more recently made clear that the federal paramountcy

doctrine is not conﬁned to oceanic submerged land disputes

between U.S. states and the Federal Government, but extends to

all cases in which any Plaintiff asserts a claim of ownership in

submerged lands underlying the ocean abutting an area over which

the U.S. has sovereignty. Village of Gambell v. Hodel, 869 F.2d

1273 (9th Cir. 1989) (“Gambell Ill”). Indeed, in Gambell III, the

“Rights Of Abutting Upland Property Owners To Claim Title To

Reclaimed Land Produced by Filling On Tidelands And Submerged Lands

Adjacent To The Territory Of Guam,” 65 Int. Dec. 193 (1958).

Id. at 195. The United States believes that the federal paramountcy

doctrine, as a matter of U.S. law, bars the CNMI’s claim of ownership of

oceanic submerged lands, by virtue of the provisions of Covenant § 101

vesting sovereignty over the CNMI in the United States, as of November 4,

1986. But the applicability of the federal paramountcy doctrine to the CNMI’s

claim to oceanic submerged lands is also reinforced by Covenant § 502(a)(2)

which makes applicable to the CNMI those “laws of the United States”

which are “applicable to Guam and which are of general application to the

several States as they are applicable to the several states.” Because, as

explained above, the federal paramountcy doctrine is “applicable to Guam”

and is of “general application to the several states,” it applies equally to the

Commonwealth pursuant to Section 502(a)(2) of the Covenant.

Federal Foreign Affairs Authority 251

Ninth Circuit rejected a contention that the principles enunciated

in the Supreme Court’s paramountcy cases did not apply in cases

where the plaintiff is not a U.S. state, holding that the fact that the

paramountcy cases involved States rather than Alaskan natives

was “a distinction without a difference. . . .” 869 F.2d at 1276.

Similarly, in Native Village of Evak v. Trawler Diane Marie. Inc.,

154 F.3d 1090 (9

Cir. 1998), the Ninth Circuit unequivocally

declared:

the paramountcy doctrine is not limited merely to disputes

between the national and state governments. Any claim of

sovereign right or title over the ocean by any partv other

than the United States, including Indian tribes, is equally

repugnant to the principles established in the paramountcy

cases.

154 F.3d at 1095 (second emphasis added; citations omitted). As

the Evak court further expounded:

Whatever interests the states might have had in the

OCS and marginal sea prior to statehood were lost upon

ascension to the Union. The Constitution allotted to the

federal government jurisdiction over foreign commerce,

foreign affairs, and national defense so that as attributes

of these external sovereign powers, it has paramount

rights in the contested areas of the sea. This principle

applies with equal force to all entities claiming rights to

the ocean: whether they be the Native Villages, the State

of Oregon. or the Township of Parsippanv. “National

interests, national responsibilities, national concerns are

involved” in all these cases.

Id. at 1096 (emphasis added; citations omitted).

Because the Covenant, in Section 101, grants the United States

full sovereignty over the NMI at the termination of the Trusteeship,

and does not expressly reserve to the CNMI ownership of the

submerged lands and marine resources underlying the oceanic

252 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

waters off its coastlines, the United States, based on long-standing

precedent, possesses the paramount rights in the marine resources

and oceanic submerged lands abutting the Commonwealth,

contrary to the CNMI’s claim of ownership and assertions of

sovereignty. On this basis alone, the United States is entitled to

summary judgment rejecting the CNMI’s quiet title complaint

seeking a “judgment declaring that title to the submerged lands

underlying the . . . archipelagic waters, and territorial waters

adjacent to the [NMI] is vested in the [CNMI]” (fn. omitted). For

the same reason, the United States is entitled to the relief requested

in its counterclaim, namely, a declaratory judgment decreeing that

the United States possesses “paramount rights in and powers over

the waters extending seaward of the ordinary low water mark

on the Commonwealth coast and the lands, minerals, and other

things of value underlying such waters.”

B. The CNMI’s Allegations to the Contrary Are Without Merit

****

4. The CNMI’s Allegation That The NMI’s People’s Right to

Local Self-Government Includes Ownership of Submerged Lands

Is Without Substance

****

The United States’ exercise of paramount rights over the oceanic

submerged lands abutting the Commonwealth does not infringe

upon the CNMI’s right of local self-government under Covenant

§ 103. Section 103 provides:

The people of the Northern Mariana Islands will have the

right of local self-government and will govern themselves

with respect to internal affairs in accordance with a Con-

stitution of their own adoption.

(emphasis added.) As the above language shows, nothing in Sec-

tion 103 of the Covenant addresses the question of ownership of

Federal Foreign Affairs Authority 253

oceanic submerged lands, or intimates that the Commonwealth’s

authority to “govern themselves with respect to internal affairs

pursuant to their own Constitution” extends to the ownership of

such lands. To the contrary, insofar as Section 103 of the Covenant

expressly subordinates the CNMI’s cal self-government authority

to the CNMI Constitution, Covenant § 103 points to U.S. law

as the basis upon which the CNMI’s claims to submerged lands

must be determined.

As previously explained, the CNMI Constitution, explicitly

acknowledges that whatever claim the NMI may have to ownership

of oceanic submerged lands and resources would be governed by

United States law, not Section 801 of the Covenant. See CNMI

Const. Art. XI, § I and Art. XIV, § I (and corresponding sections

CNMI Constitutional Analysis). Under U.S. law, ownership of

submerged lands seaward of the coastline is neither an incident of

local self-government nor within the police powers of any U.S.

state or territory. Rather, as the Supreme Court succinctly put

it: “[if the property, whatever it maybe, lies seaward of the

low-watermark, its use, disposition, management, and control

involve national interests and national responsibilities.” United

States v. Texas, 339 U.S. at 719. Indeed, as the Court declared

more emphatically in United States v. Louisiana:

Protection and control of the area are indeed functions

of national external sovereignty. The marginal sea is a

national, not a state concern. National interests, national

responsibilities, national concerns are involved. The pro-

blems of commerce, national defense, relations with other

powers, war and peace focus there. National rights must

therefore be paramount in that area.

339 U.S. at 704. Given that control of oceanic submerged

lands, as a matter of U.S. law, is a “function of national external

sovereignty,” and given that the United States has acquired com-

plete “national external sovereignty” over the Commonwealth

pursuant to Section 101 of the Covenant, the CNMI’s claim to

ownership of submerged lands as a “right of self-government and

254 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

the right to govern themselves with respect to internal affairs”

must be rejected.

5. The CNMI’s Contention That It Owns The Oceanic

Submerged Lands Abutting The Coast of The Commonwealth

Because It Did Not Enter Into A Political Union With The United

States On An “Equal Footing” With U.S. States Lacks Merit

In paragraph 32 of the complaint, the CNMI alleges that it

owns the oceanic submerged lands abutting the Commonwealth

because:

[u]nder the Covenant, the Commonwealth is not incorpor-

ated into the United States, that is, it is not intended

to eventually become a State of the United States. The

Commonwealth is not on an equal footing with the States

of the United States.

As we now explain, the “equal footing” doctrine has no legal

bearing upon the United States’ paramount rights to the submerged

lands abutting the Commonwealth’s shorelines.

****

The United States is not predicating any part of its claim to

paramount rights over submerged lands off the coast of the CNMI

Despite the United States’ position that Section 801 requires the

transfer of only fast lands to the Conmonwealth, the United States makes no

claim to the bed and banks underlying the CNMI’s internal waters, or to the

CNMI’s tidelands (i.e., the intermittently submerged lands between the high

and low water marks on the CNMI’s coasts. This is consistent with the May

1973 statement of U.S. negotiating position by James M. Wilson, Deputy

Representative for the U.S. Ofﬁce of Micronesian Status Negotiations wherein

Mr. Wilson stated: “[s]o far as submerged lands are concerned, we feel that

these should vest in the future Marianas government under the new

arrangement, as in the case of the states of the United States and other

territories.” Thus, even though the equal footing doctrine is inapplicable to

the CNMI, it is the United States’ position that the CNMI owns and may

regulate pursuant to Covenant § 103 the bed and banks underlying internal

waters, and the tidelands, i.e., the lands between the high and low water

mark on the CNMI’s seacoasts, just as U.S. states do under the equal footing

doctrine.

Federal Foreign Affairs Authority 255

on a notion that the CNMI has entered into a political union with

the United States pursuant to pursuant to Art. IV, § 3, Cl. 1 of the

U.S. Constitution or is otherwise on an equal footing with U.S.

states. The CNMI nonetheless has argued in past position papers

that the paramount rights doctrine is inapplicable where (as here)

a U.S. territory has not entered into a political union on an equal

footing with U.S. states. This argument must be rejected because

it is based on a distorted interpretation of the Supreme Court’s

tidelands cases. There is nothing in United States v. California

[332 U.S. 19 (1947) ] or its progeny to suggest that federal para-

mountcy principles are not applicable when the claimant of oceanic

submerged lands is not a U.S. state. To the contrary, after assessing

a claim by Native Americans to oceanic submerged lands abutting

Alaska in light of the Supreme Court’s tidelands cases, the Ninth

Circuit ruled:

the paramountcy doctrine is not limited merely to disputes

between the national and state governments. Any claim of

sovereign right or title over the ocean by any party other

than the United States, including Indian tribes, is equally

repugnant to the principles established in the paramountcy

cases.

Native Village of Evak v. Trawler Diane Marie. Inc., 154 F.3d

at 1090. In the same case, the court went on to declare that the

federal paramountcy doctrine applies “with equal force to all

entities claiming rights to the ocean: whether they be the Native

Villages, the State of Oregon, or the Township of Parsippany.”

Id. at 1096 (footnote omitted). Thus, contrary to the allegations

in the Complaint, at ¶ 32, the equal footing doctrine has no bearing

on any issue in this case.

****

8. Even If Section 801 of the Covenant And/Or Secretarial

Order No. 2969 and Were Deemed To Convey Ownership Of

Oceanic Submerged Lands To The Commonwealth, The Lands

Conveyed Would Not Exceed Three Nautical Miles From The

CNMI’s Shorelines

256 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

. . . [E]ven assuming arguendo that a permanent transfer of the

TTPI’s interest in oceanic submerged lands to the Commonwealth

was contemplated by Section 801 of the Covenant and/or Secretar-

ial Order Nos. 2969 or 2989, such a transfer would have conveyed

submerged lands underlying, at most, a three-mile belt seaward of

the CNMI shorelines, and not the twelve mile territorial sea (as

measured from archipelagic baselines) as claimed in the Complaint.

As previously explained, the Section-By-Section Analysis of

the Covenant describes Section 801 of the Covenant in these terms:

Section 801 provides that all of the real property (including

buildings and permanent ﬁxtures) to which the Government

of the Trust Territory of the Paciﬁc Islands will be trans-

ferred to the Government of the Northern Marianas. . . .

The Section applies to all land to which the Trust Territory

Government has rights on the date that the Covenant

is signed, or which it acquires thereafter in any manner

whatsoever. The Section serves as a guarantee that all of

the public land in the Northern Marianas will be returned

to its rightﬁul owners, the people of the Northern Marianas.

(emphasis added.) . . .

Section 1 of Title 67 of the Trust Territory Code deﬁnes “public

lands” as “those lands situated within the Trust territory which

were owned or maintained by the Japanese government as govern-

ment or public lands. . . .” TTPI Code section 32 of the Trust

Territory Code provides that:

That portion of the law established during the Japanese

Administration of the area which is now the Trust territory

of the Paciﬁc Islands is hereby conﬁrmed, that all marine

areas below the high water mark belong to the govern-

ment, is hereby conﬁrmed as part of the law of the Trust

Territory. . . .

Accordingly, the Trust Territory Code does not deﬁne the

seaward extent of submerged lands appertaining to the NMI,

except by reference to Japanese Law.

Federal Foreign Affairs Authority 257

Japan administered the Mariana Islands pursuant to a mand-

ate from the League of Nations between World War I and World

War II. During that time, Japan claimed and recognized three

nautical miles as the maximum breadth of its territorial sea. That

also appears to have been the limit of the territorial sea from the

shoreline under international law as of 1947, when the United

States assumed the Trusteeship over Micronesia. Thus, assuming

that the term “public land” as used in the SBS Analysis, expands

the deﬁnition of “real property” as used in Section 801 of the

Covenant to include oceanic submerged lands, the maximum area

of submerged lands that could possibly have been conveyed by

Section 801 of the Covenant, when it became effective in January

1978, was three miles seaward of the low watermark on the

CNMI’s shores.

In these circumstances, the CNMI’s claim to a

Such an interpretation that Section 801 could convey no more than

three nautical miles of oceanic submerged lands (as determined from the low

water mark on the CNMI’s coasts) would be consistent with Congress’

deﬁnition of “submerged lands” in the Abandoned Shipwreck Act of 1987,

Pub. L. No. 298, 100th Cong. 2d Sess., 102 Stat. 432, wherein Congress

deﬁned the term “submerged lands” in the CNMI, for the purposes of that

Act only, as “the lands of the [CNMI] as described in section 801 of the

Pub. L. 94–241 (48 U.S.C. § 1681) [i.e., the Covenant].” In the legislative

history of that Act, Congress made clear that it did not consider Section 801

of the Covenant to include submerged lands situated more than” three miles

distant from the coastline of the Northern Mariana Islands.” 1988 U.S.

Code Cong. & Ad. News (Leg. Hist. 366). As for the deﬁnition of “submerged

lands” in that Act, i.e., as lands described in section 801 of the Covenant, it

is unclear why Congress deﬁned “submerged lands” in this manner in light

of the Department of the Interior’s contemporaneous advice that the CNMI

Covenant does not refer to submerged lands, and that the status of submerged

lands had not yet been determined by federal law.” determined by straight

archipelagic baselines. The Law of the Sea did not recognize the right of

countries to differentiate their internal waters from the territorial sea on

the basis of straight archipelagic baselines until 1982, two years after the

Marine Sovereignty Act was enacted and six years after Congress ratiﬁed the

Covenant. Moreover, the right to draw straight archipelagic baselines is

enjoyed only by “Coastal States,” i.e., independent sovereign nations. See id.

The CNMI has never been an independent sovereign nation and thus is

ineligible, of its own authority, to differentiate its internal waters from the

territorial sea on this basis.

258 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

twelve-mile territorial sea, and a 200-mile EEZ, must be rejected

because it is at odds with the Trust Territory Code’s deﬁnition of

“public lands.”

The CNMI’s claim to archipelagic baselines as the demarca-

tion points upon which to differentiate its claim to ownership

of submerged lands underlying inland waters from its claim of

ownership of submerged lands underlying a 12-mile territorial

sea is equally defective. That claim derives from the CNMI’s local

“Marine Sovereignty Act of 1980,” which purports to establish

the CNMI’s right to draw straight archipelagic baselines joining

the outermost points of the outermost islands and drying reefs

of the purported archipelago. Nothing in the Trust Territory

Code provided for the drawing of straight archipelagic baselines

to differentiate the Commonwealth’s internal waters from the

territorial sea, and there is no evidence that, during its League of

Nations Mandate over what would become the TTPI, the Japanese

Administration differentiated the Trust Territory’s inland waters

from the territorial sea on that basis.

Accordingly, Section 801

of the Covenant could not have transferred submerged lands

to the CNMI on the basis of straight archipelagic baselines.

Apart from Covenant § 801, there is no other basis upon which

On December 27, 1988, President Ronald Reagan issued a

Proclamation No. 5928, extending the U.S. territorial sea from three-to-

twelve nautical miles for international purposes. (4 Fed. Reg. 777 (1988).

To prevent the proclamation from expanding state jurisdiction, President

Reagan included a proviso stating that “nothing in this Proclamation: (a)

extends or otherwise alters existing Federal or State law or any jurisdiction,

rights, legal interests, or obligations derived therefrom.” Id. The CNMI’s

claim of sovereignty over a 12-mile territorial sea is not only contrary to

the paramount rights doctrine, it also clashes with Proclamation No. 5928,

pursuant to which the President of the United States has asserted a conﬂicting

claim of ownership of a 12-mile territorial sea.

Even if the Japanese Administration had made a claim to archipelagic

baselines for the NMI, the claim would have violated international law. The

drawing of straight archipelagic baselines did not become an accepted norm

of international law until 1982, four years after Section 801 of the Covenant

became effective, and 37 years after the Japanese control of the islands had

terminated. See United Nations Convention on the Law of the Sea, Dec. 10,

1982, A/Conf 62/122, reprinted in 21 I.L.M. 1261 (1982).

Federal Foreign Affairs Authority 259

the CNMI could lawfully assert the right to submerged lands

underlying inland waters and a territorial sea, as

****

Cross References

Executive branch role in treaty interpretation, Chapter 8.B.4.a.(2)

Executive branch role in treaty termination, Chapter 4.B.5.

Relationship between treaty and federal statute, Chapter 10.A.6.d.,

Chapter 15.A.4.

Role of executive branch in military context, Chapter

18.A.4.b.(3)(1)

U.S. sovereign immunity, Chapter 8.B.4.c.

Constiutionality of state statute concerning holocaust victims,

Chapter 8.B.3.a.

Extraterritorial effect of state legislation mandating disclosure of

foreign insurance policies, Chapter 8.B.4.a.

Allie

Human Rights 261

261

CHAPTER 6

Human Rights

A. GENERAL

1. Country Reports on Human Rights Practices

On March 31, 2002, the Department of State published

the 2002 Country Reports on Human Rights Practices, in

compliance with §§ 116(d) and 502B(b) of the Foreign Assist-

ance Act of 1961, as amended, and § 504 of the Trade Act of

1974, as amended. The report is available at www.state.gov/

g/drl/rls/hrrpt/2001/. These reports are often cited as a source

for U.S. views on various aspects of human rights practice

in other countries.

2. Inter-American Commission on Human Rights: Authority to

Adopt Precautionary Measures

As discussed in Chapter 18A.3.d., on March 12, 2002, the

Inter-American Commission on Human Rights adopted pre-

cautionary measures requesting the United States “to take

the urgent measures necessary to have the legal status of

the detainees at Guantanamo Bay determined by a competent

tribunal . . . in order to ensure that the legal status of each of

the detainees is clariﬁed and that they are afforded the legal

protections commensurate with the status that they are found

to possess, which may in no case fall below the minimum

standards of non-derogable rights.” Letter from Juan Mendez,

President of the Inter-American Commission on Human

262 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Rights, to Colin Powell, U.S. Secretary of State (March 12,

2002). The IACHR decision is reprinted at 41 I.L.M. 532 (May

2002). The action was in response to a February 25, 2002,

request seeking “the urgent intervention of the Inter-American

Commission on Human Rights (“Commission”) in order

to prevent continued unlawful acts that threaten the rights

of [individuals captured in Afghanistan who now are being]

detained by the United States government at its military

base at [Guantanamo].”

The United States ﬁled its response to the request for pre-

cautionary measures on April 4, and an additional response

on July 15, 2002. Among other things, in the July 15 ﬁling,

excerpted here, the United States argued that the Commission

lacked authority to request the United States to implement

precautionary measures and that, even if the Commission had

such authority, such measures would not be binding. U.S.

arguments that the laws of armed conﬂict and human rights

are distinct bodies of law, that the facts underlying the deten-

tion of the enemy combatants at Guantanamo are central

to understanding the limited jurisdiction of the Commission

in this case, and that the Commission does not have the

requisite jurisdictional competence to apply international

humanitarian law are discussed in Chapter 18.A.3.d.

The full text is available at www.state.gov/s/l/c8183m.

****

II. THE COMMISSION LACKS JURISDICTION

TO ISSUE PRECAUTIONARY MEASURES

IN THIS CASE

****

A. The Commission Lacks a Mandate to Request the

United States to Implement Precautionary Measures

Petitioners fail to demonstrate that the Commission’s organic docu-

ments provide it with the authority to request a non State-Party to

Human Rights 263

the American Convention to implement precautionary measures.

The Petitioners point primarily to the Commission’s Rules of

Procedure and its prior practice as evidence of its mandate,

(fn. omitted) but neither its practice nor its Rules establish the

Commission’s mandate. Its practice is indicative of the Commis-

sion’s own view of the scope of its mandate; its Rules are adopted

only by the Commission itself, not States Parties to either of the

constituent documents.

In fact, the Commission’s mandate is established by the

OAS Charter

and the American Convention on Human Rights.

While the OAS Charter does not refer to precautionary measures,

Article 63 of the American Convention refers to the ability [of the

Inter-American Court of Human Rights (“Court”)] to adopt “pro-

visional measures as it deems pertinent. . . .” The Statute of the

Inter-American Commission, adopted pursuant to Article 39 of

the American Convention and having been approved by the OAS

General Assembly, provides a subsidiary source for determining

the Commission’s mandate.

Article 19 of that Statute builds upon

the mandate set forth in Article 63 of the Convention, by authoriz-

ing the Commission to request the Inter-American Court of Human

Rights for “provisional measures as it considers appropriate in

serious and urgent cases. . . .” But none of these organic documents

—the OAS Charter, the American Convention or the Commission

Statute—allude to any power of the Commission to act on its own

accord to request precautionary measures, much less to issue bind-

ing precautionary measures. Standing alone, without basis in the

Commission’s organic documents, Article 25 of the Commission’s

Charter of the Organization of American States, signed in, Bogota

in 1948, amended by, the Protocol of Buenos Aires in 1967, by the Protocol

of Cartagena de Indias in 1985, by the Protocol of Washington in 1992, and

by the Protocol of Managua in 1993, reprinted in, Basic Documents Per-

taining to Human Rights in the Inter-American System, OEA/Ser.L/V/1.4

rev. 8, at 194–229 [“Basic Documents”].

American Convention on Human Rights, Nov. 22, 1969, 9 I.L.M.

673 (1969), reprinted in, Basic Documents, at 23–47.

See Statute of the Inter-American Commission on Human Rights,

approved by O.A.S. Gen. Assembly Res. 447 (October 1979), [“Commission

Statute”] reprinted in Basic Documents, 119–26.

264 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Rules of Procedure provides no mandate for the Commission to

request precautionary measures against the United States.

B. Even if the Commission Had Authority to Issue

Precautionary Measures, Such Measures Would

Not Be Binding

Even if the Commission possesses the authority to issue pre-

cautionary measures against the United States, such measures, at

most, amount to non-binding recommendations. The non-binding

character of such measures is grounded in the Statute of the

Commission, the practice of other human rights bodies, and the

writings of jurists. It is also consistent with the jurisprudence of

the Inter-American Court.

The non-binding nature of Commission recommendations

corresponds with the structure of the Commission Statute. Art-

icle 20 of the Statute of the Commission grants the Commission

authority only:

To make recommendations to [non-parties to the American

Convention], when it ﬁnds this appropriate, in order to

Some authorities on the Commission contend that the issuance of

precautionary measures “derive from the Commission’s competence and func-

tions (see Article 41 of the American Convention).” See David J. Padilla,

Provisional Measures under the American Convention on Human Rights,

in LIBER AMICORUM HECTOR FIX-ZAMUDIO 1189–96, at 1189–90,

note 4 (1998). Even if this were the case, it would only be the case for States

Parties to the American Convention. Article 41’s preamble provides that

“[t]he main function of the Commission shall be to promote respect for

and defense of human rights.” It further provides the Commission with

enumerated functions and power, including, in paragraph (f): “to take action

on petitions and other communications pursuant to its authority under the

provisions of Article 44 through 51 of the Convention.” To the extent that

Article 41’s preamble and its paragraph (f) provide the mandate for the

Commission’s issuance of precautionary measures, Articles 44 through 51

only apply to States Parties to the American Convention. Thus, the former

Assistant Executive Secretary of the Commission also acknowledges that

the “Commission’s issuance of precautionary measures are only expressly

provided for in the Commission’s Regulations.” (The Commission’s Regula-

tions were later changed to be called its Rules). . . .

Human Rights 265

bring about more effective observance of fundamental

human rights.

The Commission has authority to offer recommendations to all

OAS members, and has the enhanced power to request the Court

to issue provisional measures against Convention States-Parties.

Because Court-ordered measures are generally stronger sanctions

than mere recommendations, in order to comply with the meaning

of the text on its face, the authority of the Commission to make

recommendations under Article 20 must be less powerful than

such measures; that is, it must be non-binding. To ﬁnd otherwise

would conﬂict with the facial intent to preserve for the Court the

authority to issue provisional measures against States-Parties to

the American Convention.

Petitioners cite in support of the binding nature of the request

of the Commission for precautionary measures, the Commission’s

assertion that “international tribunals routinely issue precautionary

measures or their equivalent in urgent matters, including the Inter-

American Court, the International Court of Justice, the European

Court of Human Rights and the UN Human Rights Committee.”

But that observation is misleading. The ﬁrst three of the bodies

are Courts created by treaties—in which the Courts are given

speciﬁc powers by the States Parties. While the character of

provisional measures in each of the three courts may be unclear,

the Courts’ statutes provide for binding ﬁnal judgments.

The

States Parties that have accepted the jurisdiction of each of these

Courts, did so, aware that ﬁnal judgments of each of these Courts

Petitioners’ Observations, at 3–4, citing Juan Raul Garza v. United

States, Case No. 12.243, at para 69, reprinted in 2000 ANN. REP.

I.A.C.H.R., vol 2, at 1255–1303 (2001).

See Statute of the International Court of Justice, at http://

www.icj-cij.org/icjwww/ibasicdocuments/Basetext /istatute.htm. For the

Inter-American Court, the English text of the American Convention’s Articles

67 and 68 provides that “judgments” are ﬁnal and binding. But because of

differences in translation between the English, Spanish, French, and Portuguese

texts, it is unclear as to whether the Court’s provisional measures “decisions”

are binding. See Thomas Buergenthal, Interim Measures in the Inter-American

Court of Human Rights, in INTERIM MEASURES INDICATED BY

INTERNATIONAL COURTS 69–94 (R. Bernhardt ed. 1994). . . .

266 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

31 [sic]

See P.R. GHANDHI, THE HUMAN RIGHTS COMMITTEE

AND THE RIGHT OF INDIVIDUAL COMMUNICATION—LAW AND

PRACTICE, at 57–58 (1998). See also David Kretzmer, Commentary on

Complaint Processes by Human Rights Committee and Torture Committee

members: The Human Rights Committee, in THE UN HUMAN RIGHTS

TREATY SYSTEM IN THE 21ST CENTURY 2000, at 164 (Bayefsky ed.)

(“The fact that the Optional Protocol does not state that the Human Rights

Committee’s views under the Protocol are legally binding, and that there are

no enforcement mechanisms, was a clear policy decision by the international

community.”)

See Front Line, The Human Rights Defender’s Manual, at http://

www.frontlinedefenders.org/manual/en/hrc_m.htm (visited June 12, 2002).

are binding. That situation is very different from the situation

of the Commission vis-à-vis the United States or a State not a

party to the American Convention.

As to the UN Human Rights Committee, established pursuant

to the International Covenant on Civil and Political Rights, its

interim measures are also non-binding.

Under Article 5.4 of the

Optional Protocol, the Committee does not decide on an indi-

vidual’s communication. Instead, “[t]he Committee shall forward

its views to the State Party concerned and to the individual.”

Rule 86 of the Committee’s Rules of Procedure provides similarly

that

The Committee may prior to forwarding its views on the

communication to the State party concerned, inform that

State of its views as to whether interim measures may be

desirable to avoid irreparable damage to the victim of the

alleged violation.

Thus, the Committee may only request that a State take interim

measures, and the State is not legally bound to comply.

The

Committee itself has also said that its “decisions” are not binding:

It is useful to note that the Committee is neither a

court nor a body with a quasi-judicial mandate, like the

organs created under another international Human Rights

instrument, the European Convention on Human Rights

(i.e., the European Commission of Human Rights and the

Human Rights 267

European Court of Human Rights). Still the Committee

applies the provisions of the Covenant and of the Optional

Protocol in a judicial spirit and, performs functions similar

to those of the European Commission of Human Rights,

in as much as the consideration of applications from

individuals is concerned. Its decision on the merits (of a

communication) are, in principle, comparable to the reports

of the European Commission, non-binding recommenda-

tions. The two systems differ, however, in that the Optional

Protocol does not provide explicitly for friendly settlement

between the parties, and, more importantly, in that the

Committee has no power to hand down binding decision

as the European Court of Human Rights. States Parties to

the Optional Protocol endeavour to observe the Com-

mittee’s views, but in case of non-compliance the Optional

Protocol does not provide for an enforcement mechanism

or for sanctions.”

Finally, Courts, including the European Court of Human Rights,

the Privy Council, and those of Canada, have also treated the

Committee’s decisions as non-binding or unenforceable.

Simply

put, there is no support for the proposition that the Human Rights

Committee can issue binding precautionary measures.

See Introduction, SELECTED DECISIONS OF THE HUMAN

RIGHTS COMMITTEE UNDER THE OPTIONAL PROTOCOL, Vol. 2

(1990), at p. 1.

In the Case of Cruz Varas and Others, Eur. Ct. H.R. Ser. A. No.

46/1990/237/307 (1991); Briggs v. Baptiste, J.C.J. No. 47 (1999); Ahani v.

Canada (Attorney General), Feb. 8, 2002, Court of Appeal for Ontario, at

http://www.ontariocourts.on.ca/decisions/2002/february/ahaniC37565.htm

(visited June 13, 2002).

Although the Committee has recently altered its own views as to

the effect of its request for interim measures, ﬁnding a State to be in violation

of its obligations under the Optional Protocol if it does not abide by the

request, Communication No. 869/1999: Phillipines, CCPR/C/70/D/869/1999,

Oct. 19, 2000, the Committee premised its views on the Philippines having

an obligation to allow the Committee to consider individual communication

as a party to a treaty that speciﬁcally granted the Committee such competence.

This is very different from the situation vis-à-vis the United States and the

Commission.

268 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

A more relevant body of jurisprudence for purposes of

analyzing the Commission’s mandate, which is not mentioned by

the Petitioners, is the former European Commission on Human

Rights. For many years, it fulﬁlled a role in Europe similar to that

played by the American Commission in the Americas—in that the

Commission operated in tandem with the Court of the regional

system. But the European Court of Human Rights (“European

Court”) has held under similar circumstances that, absent a

speciﬁc provision in the European Convention on Human Rights

(“European Convention”), the European Commission did not

have the power to order legally binding interim measures. ...

****

An examination of the Inter-American Court’s jurisprudence

also does not support the contention that precautionary measures

should be treated as binding vis-à-vis non-States Parties to the

Convention. Speciﬁcally, in the Loayza Tamayo case, the Court

stated:

The Court has previously stated that, in accordance

with the stipulation regarding interpretation contained in

Article 31(1) of the Vienna Convention on the Law of

Treaties, the term “recommendations” used by the American

Convention, should be interpreted to conform to its

ordinary meaning.

However, in accordance with the principle of good

faith, embodied in the aforesaid Article 31(1) of the Vienna

Convention, if a State signs and ratiﬁes an international

treaty, especially one concerning human rights, such as the

American Convention, it has the obligation to make every

effort to apply [sic] with the recommendations of a pro-

tection organ of the Organization of American States. . . .

Loayza Tamayo Case, Judgment of Sept. 17, 1997, Series C No. 33,

para 79, citing Caballero Delgado and Santana Case, Judgment of Dec. 8,

1995, Series C No. 22, para 67 and Genie Lacayo Case, Judgment of Jan.

29, 1997, Series C No. 30, para 93.

Id., at para 80.

Human Rights 269

In other words, the Court held that recommendations were recom-

mendations, but that States Parties to the American Convention

had “an obligation” to make every effort to carry out the recom-

mendations of the Commission—a far cry from holding that the

recommendations bind non-States Parties.

Finally, the Petitioner’s argue that public statements of the

United States from 1992 and 1999 contradict the position of the

United States that the Commission does not have the power to

request binding precautionary measures. The statements they cite,

however, are completely consistent with the position of the United

States. The United States does stand ready to consider the Com-

mission’s non-binding recommendations. It does support a human

rights process for the Americas in which it participates. None-

theless, the United States has never taken the position that Com-

mission’s recommendations are binding vis-à-vis other States in

the OAS.

****

It is clear that the leaders of the Summit States consider the

Commission extremely important. But it is also clear that these

leaders consider the Commission’s authority to be of a non-binding

nature.

(footnote ommited)

In sum, the Commission’s organic documents

neither give it the authority to issue precautionary measures, nor

provide the Commission with the power to issue binding orders

vis-à-vis non-States Parties to the American Convention.

Even if the Commission had the authority to recommend the issuance

of precautionary measures, which it does not, precautionary measures are

unnecessary because there is no risk, let alone an immediate risk of irreparable

harm to the detainees. See U.S. Response, at 28–36. Petitioners’ Observations

are replete with unsubstantiated and indeed highly implausible speculation

as to what might happen to the detainees in the future without Commission

intervention “to oversee and ensure the United States compliance” not only

with the precautionary measures already improperly requested, but also

with additional vaguely fashioned measures. Such speculation includes that the

United States might eventually prosecute or even execute particular detainees

without beneﬁt of either counsel or appellate review; that the physical or

mental condition of some of the detainees after decade-long warfare and

abusive conditions in Afghanistan is somehow attributable to more recent

United States conduct; and that any detainees suffering physically or mentally

270 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

3. Argentina Declassiﬁcation Project

On August 20, 2002, the Department of State announced

the release of newly declassiﬁed documents related to human

rights abuses and political violence in Argentina from 1975

to 1984 in response to several requests. The press release is

set forth below and is available at www.state.gov/r/pa/prs/ps/

2002/12863pf.htm.

Today the Department of State is releasing newly declassiﬁed

documents related to human rights abuses and political violence

in Argentina from 1975 to 1984. These documents include the

period of the military dictatorship from 1976 to 1983, preceding

events and the return to democracy.

We are releasing these documents to assist Argentina in invest-

igating acts of violence during the time period covered. This release

responds to a variety of requests, including from the Government of

Argentina; the Government of Uruguay; the Grandmothers of the

Plaza de Mayo; and the United States Congress. These documents

are also responsive to mutual legal assistance treaty (MLAT) requests

to the Department of Justice from Argentina, Italy and Spain in

connection with criminal investigations of human rights violations.

Today’s release will take place simultaneously here and in

Buenos Aires. Hard copies of the documents will shortly be pre-

sented to the other governments that have requested them.

today are not receiving proper if not better treatment at Guantanamo than

would have been feasible in the ﬁeld of battle during the ongoing armed

conﬂict in Afghanistan. Nothing in the Petitioners’ Observations disputes

the commitment of the United States Government to treat the detainees

humanely and consistent with the principles of the Geneva Convention. More-

over, none of the precautionary measures suggested by Petitioners ﬁnd support

in applicable international norms or in fact. The fundamental ﬂaw, however,

in the Petitioners’ logic is that the precautionary measures sought are anti-

cipatory and hardly permissible either under the Commission’s Rules, at Art.

25(1), or the Commission Statute, Article 19(c). The United States declines

to reply to the merits of Petitioners’ idle speculation in view of the Commis-

sion’s lack of jurisdiction in this case or authority to issue such precautionary

measures in any event.

Human Rights 271

This release consists of approximately 4,700 documents. A

complete set of the released documents is available for public review

at the Department of State FOIA Reading Room. Copies of the

documents will be available on the Internet at http://foia.state.gov.

B. DISCRIMINATION

1. Race

a. Resolutions in Resumed 56

Session of UN General Assembly

Third Committee

The 56

Session of the UN General Assembly Third

Committee suspended proceedings at the end of its 2001

session on November 30, 2001, awaiting ﬁnal versions of

the World Conference Against Racism/Durban documents.

The 56

Session resumed in 2002 and considered the fol-

lowing resolutions: Comprehensive implementation of and

follow-up to the World Conference against Racism, Racial

Discrimination, Xenophobia and Related Intolerance (A/RES/

56/266); Measures to combat racism, racial discrimination,

xenophobia, and related intolerance (A/RES/56/267); Third

Decade to Combat Racism and Racial Discrimination

(A/RES/56/265); and Measures to be taken against political

platforms and activities based on doctrines of superiority

and violent nationalist ideologies which are based on racial

discrimination or ethnic exclusiveness and xenophobia,

including neo-Nazism (A/RES/56/268).

On January 28, 2002, Ambassador Sichan Siv, United

States Representative to the United Nations Economic and

Social Council (“ECOSOC”), addressed the Third Committee

on the U.S. commitment to combating racism in the United

States and abroad.

His remarks to the Third Committee of the UN

General Assembly, excerpted below, are available at

www.un.int/usa/02_008.htm.

****

272 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Racism, racial discrimination, xenophobia and related intoler-

ance will not yield to a political process that is one-sided, that

excludes opposing views out of hand, or that is immune from

critique. Accordingly, the United States remains committed to the

elimination of racism everywhere, through a free and open debate.

At the same time, we must all recognize that history is immutable:

we cannot go back and revise it. The past must be acknowledged,

and its lessons must be learned.

Although the United States did not wish to lend its fullest sup-

port to the World Conference Against Racism and will not endorse

its outcome document, our commitment to the goals of the Con-

ference is unequivocal and should not be doubted. We believe that

each country must confront its own past in order to learn from it

and to be able to devise effective national remedies. So, at home

and abroad, we will continue to use the best tools at our disposal—

democracy, education and the rule of law—to ensure that justice

prevails over the disadvantages, stigmas and prejudices spawned by

racism in all its manifestations and wherever it rears its ugly head.

On February 26, 2002, the Third Committee took up the

four resolutions. Although joining consensus on three of

the resolutions, the United States voted against Resolution

56/266 on implementation of and follow-up to the World

Conference against Racism, Racial Discrimination, Xeno-

phobia and Related Intolerance. Michael Southwick, Deputy

Assistant Secretary for International Organizational Affairs,

U.S. Department of State, provided an explanation of the

U.S. vote, as set forth below.

The United States is committed to the ﬁght against racism, racial

discrimination, xenophobia and related intolerance, both within

the United States and around the world.

Our national experience shows that this battle is a long one,

one that requires a strong, unequivocal commitment. Our com-

mitment is reﬂected in the comprehensive national report we made

last year in Geneva to the Committee on the Elimination of Racial

Discrimination.

Human Rights 273

One part of our ﬁght as a world community is the ﬁght against

anti-Semitism. This ugly phenomenon led to the most devastating

genocide in modern times, yet we still see its existence throughout

the world. A civilized society cannot tolerate this, or any ideology

that attempts to denigrate one group of people and that leads to

hatred, exclusion and violence.

As is well known, the United States withdrew from the World

Conference Against Racism in Durban and, accordingly, was

not part of the agreement to adopt the Durban Declaration and

Programme of Action. In our view, the Conference placed in-

appropriate and unacceptable focus on a single country-speciﬁc

situation that was, and remains, totally irrelevant to the subject

matter of the Conference. In so doing, the Conference deviated

from its original, stated purpose of crafting positive, forward-

looking solutions to contemporary racism, racial discrimination,

xenophobia and related intolerance. We are also mindful that the

conference was accompanied in the streets of Durban by some

of the worst examples of hate and intolerance witnessed in many

decades.

The United States has additional concerns about this resolu-

tion, namely those paragraphs that will require an expenditure

of funds from the regular budget of the United Nations. These

provisions call for funds to be put toward the operation of an

anti-discrimination unit in the Ofﬁce of the High Commissioner

for Human Rights and the establishment of a body of ﬁve eminent

persons to monitor the implementation of the Durban documents.

Because we did not agree to the establishment of either body,

we must object to the Third Committee’s approval of these

mechanisms in this resolution.

For the foregoing reasons, the United States must vote against

the adoption of this resolution.

Nevertheless, make no mistake, the United States remains com-

mitted to the goals the Conference was initially established to

fulﬁll, that is, to combat racism, racial discriminations, xenophobia

and related intolerance. Our position is simply that, in this struggle,

we must keep our focus clear, and never again allow a conference

on racism to typify in some respects the very opposite of its original

aims and objectives.

274 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

b. Resolutions in 57

Session of UN General Assembly

In the 57

Session of the UN General Assembly Third Com-

mittee, the United States called for a vote and voted no on

Resolution 57/195, The ﬁght against racism, racial discri-

mination, xenophobia and related intolerance and the com-

prehensive implementation of and follow-up to the Durban

Declaration and Programme of Action. A/RES/57/195. The

resolution was adopted on December 18, 2002.

The United States joined consensus on Resolution

57/194, International Convention on the Elimination of all

Forms of Racial Discrimination, also adopted on Decem-

ber 18, 2002. A/RES/57/194. Before doing so, the United

States called for a vote and voted no on operative paragraph

10 of section I of the resolution, which “[i]nvites the

Committee [on the Elimination of Racial Discrimination]

to consider the relevant provisions of the Durban Declar-

ation and Programme of Action in the discharge of its

mandate.”

The U.S. Government’s explanation of its position on

Resolution 57/194 is set forth below in full.

Thank you, Mr. Chairman. The resolution before us invites

the Committee on the Elimination of Racial Discrimination to

consider the provisions of the Durban Declaration and Programme

of Action in discharge of its mandate. This would involve an in-

appropriate and substantial expansion of the Committee’s mandate

beyond receiving States Parties’ reports and commenting on the

implementation of the Convention.

— Because of the ﬂaws in the process leading up to Durban and

in the outcome documents from Durban, we oppose any

expansion of the Committee’s mandate that would have it

consider the provisions of Durban.

— Further, this resolution concerns the implementation of CERD,

not Durban. Accordingly, this provision is out of place in the

present resolution.

Human Rights 275

— For these reasons, the United States has called for a vote on

OP 10 of Section 1 of this resolution and voted no.

— We would like to emphasize that the United States strongly

condemns racial discrimination and has worked in UN fora

towards its eradication. We are a Party to the CERD

convention. While we would like all Member States to ratify it

as well, we cannot support language in this or any other

resolution that does more than ask sovereign states to consider

becoming a party to the treaty. Section 3, OP 3 of the resolution

[reafﬁrming “its conviction that ratiﬁcation of or accession to

the Convention on a universal basis and the implementation

of its provisions are necessary for the realization of the

objectives of the Third Decade to Combat Racism and Racial

Discrimination and for the implementation of the commitments

undertaken under the Durban Declaration and Programme of

Action adopted by the World Conference against Racism,

Racial Discrimination, Xenophobia and Related Intolerance”]

does not take this approach.

— In addition, Section 3, OP 5 of the resolution, urges states to

assure that their reservations on the Convention are not incom-

patible with international treaty law. The United States holds

the view that, pursuant to the Vienna Convention on the Law

of Treaties, Article 18, the only criterion for judging whether

a reservation to a treaty is acceptable is that the reservation

must be compatible with the object and purpose of the treaty.

— Therefore, we oppose inclusion of the phrases “or otherwise

contrary to international treaty law” and “or that are otherwise

incompatible with international treaty law.”

— For these reasons, the United States joins consensus on the

resolution, but cannot co-sponsor it.

2. Gender

a. Women, peace, and security

On October 28, 2002, Josiah Rosenblatt, Minister-Counselor

for Political Affairs at the U.S. Mission to the United Nations,

276 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

addressed a meeting in the UN Security Council on women,

peace, and security.

The full text of his remarks is available at www.un.int/

usa/02_172.htm.

Mr. President, we welcome the opportunity to participate in this

discussion on women, peace and security. It has been nearly two

years to the day since the passage of the landmark Security Council

Resolution 1325 and we are pleased that the Council has main-

tained a focus on tracking its implementation.

We welcome the completion of the Secretary-General’s report

on women, peace, and security, which provides a thoughtful

analysis of the challenges confronting women and girls during

armed conﬂict and offers a number of useful recommendations on

ways the international community can help address them.

****

I know that we are in agreement that reports and discussions

about the situation of women and girls in armed conﬂict are just

a beginning. But reports provide the supporting data that the

Secretary-General, the Council, the Secretariat, and member states

contributing to peace operations can use to integrate gender

perspectives into all peace-building, peacekeeping and peacemaking

efforts. Reports can help us to determine the best way to achieve

our goals in three speciﬁc areas:

to improve the lives of women and girls who are victims of

armed conﬂict,

to ensure that women and girls who have been combatants are

eligible for the same assistance as men, and ﬁnally,

to involve women increasingly as actors, at the grass-roots

level, in Peacekeeping Missions, and in planning and decision-

making levels at UN headquarters.

****

Human Rights 277

b. Convention on the Elimination of All Forms of

Discrimination Against Women

(1) U.S. domestic procedures

On July 8, Secretary of State Colin L. Powell wrote to the

Senate Foreign Relations Committee (“SFRC”) indicating that

the executive branch wished to undertake a thorough review

of issues in implementation of the Convention on the Elimin-

ation of All Forms of Discrimination Against Women, 1249

U.N.T.S. 13, to determine what reservations, understandings

and declarations would be necessary in the ratiﬁcation pro-

cess. The Convention was adopted by the United Nations

General Assembly on December 18, 1979, and entered into

force on September 3, 1981. The United States signed the

Convention on July 17, 1980. President Carter submitted

the Convention to the Senate on November 12, 1980, for its

advice and consent to ratiﬁcation. S. Treaty Doc. No. 96-53

(1980). In 1994, it was reported favorably by the SFRC but

was never brought up for a full Senate vote.

The Secretary’s letter, excerpted below, letters from

National Security Adviser Condoleeza Rice, Assistant Attorney

General for Legislative Affairs Daniel J. Bryant, and Senator

Jesse Helms, as well as dissenting views of seven com-

mittee members, are included in S. Exec. Rep. No. 107–9

(2002).

****

Addressing the issues confronting women—from suffrage to

gender-based violence—is a priority of this Administration. We

are committed to ensuring that promotion of the rights of women

is fully integrated into American foreign policy. Our recent actions

in Afghanistan underscore this commitment to promote the rights

of girls and women who suffered under the draconian Taliban

rule, including in education, employment, healthcare, and other

areas. It is for these and other reasons that the Administration

278 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

supports CEDAW’s general goal of eradicating invidious dis-

crimination against women across the globe.

The vagueness of the text of CEDAW and the record of

the ofﬁcial U.N. body that reviews and comments on the

implementation of the Convention, on the other hand, raise a

number of issues that must be addressed before the United States

Senate provides its advice and consent. We believe considera-

tion of these issues is particularly necessary to determine what

reservations, understandings and declarations may be required as

part of the ratiﬁcation process.

As you are aware, the Committee on the Elimination of

Discrimination Against Women prepares reports and recom-

mendations to State Parties. Portions of some of these reports and

recommendations have addressed serious problems in useful and

positive ways, such as women and girls who are victims of terrorism

(Algeria)

and trafﬁcking in women and girls (Burma).

However,

other reports and recommendations have raised troubling questions

in their substance and analysis, such as the Committee’s reports

on Belarus (addressing Mother’s Day),

China (legalized pro-

stitution),

and Croatia (abortion).

State Parties have always retained the discretion on whether

to implement any recommendations made by the Committee. The

existence of this body of reports, however, has led us to review

both the treaty and the Committee’s comments to understand the

basis, practical effect, and any possible implications of the reports.

We are also examining those aspects of the treaty that address

areas of law that have traditionally been left to the individual

States. The complexity of this treaty raises additional important

Concluding Observations on the Committee on the Elimination of

Discrimination Against Women: Algeria, 27/01/99, paragraphs 77–78.

Concluding Observations on the Committee on the Elimination of Dis-

crimination Against Women: Myanmar, 28/01/2000, paragraphs 119–120.

Concluding Observations on the Committee on the Elimination of

Discrimination Against Women: Belarus, 31/0–1/2000, paragraph 361.

Concluding Observations on the Committee on the Elimination of

Discrimination Against Women: China, 03/02/99, paragraphs 288–289.

Concluding Observations on the Committee on the Elimination of

Discrimination Against Women: Croatia, 14/05/98, paragraphs 109, 117.

Human Rights 279

issues, and we are examining those as well. In mid-April, when

the Administration learned that the Committee had set a hearing

date for consideration of CEDAW, the Departments of State and

Justice began a review of this Convention to assess the need for

reservations, understandings, and declarations different from or

in addition to those reported out by the Committee in Exec. Rept.

103–38 in October, 1994. Given the passage of time since the last

Senate hearing and the breadth of the issues touched upon by the

Convention, we believe that a careful review is appropriate and

necessary. This review is proceeding as expeditiously as possible.

Although the Administration supports CEDAW’s general goals,

it believes that eighteen other treaties are either in urgent need of

Senate approval or of a very high priority. In addition to the seven-

teen treaties listed in higher categories on the treaty priority list that

are still pending, the Moscow Treaty on the reduction of strategic

arms, which was transmitted to the Senate in June, is among our

most pressing national security needs and foreign policy interests.

At the same time as the Administration is carrying out its review

of CEDAW, we hope we can work with the Committee on these

high priority treaties. Once our review of CEDAW is complete,

we look forward to presenting our views to your Committee.

****

On July 30, 2002, the SFRC reported the Convention to the

full Senate with the recommendation that the Senate provide

advice and consent to ratiﬁcation. In its report, S. Exec. Rep.

No. 107–9 (2002), the SFRC recommended that advice and

consent be conditioned on certain reservations, understand-

ings, and declarations.

At the end of 2002 the Senate had not acted on the

SFRC report.

(2) UN resolutions

At the 46

Session of the UN Commission on the Status of

Women, held in March 2002, the United States sponsored a

280 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

resolution on women in Afghanistan that urged Afghanistan,

among other things, “to give high priority to the issue of

ratiﬁcation of CEDAW. . . .” E/CN.6/2002/L.4/Rev.2. Sub-

sequently, on October 17, 2002, the United States disassoci-

ated from consensus on Resolution 57/178, Convention

on the Elimination of all Forms of Discrimination Against

Women, introduced in the Third Committee of the UN General

Assembly, A/RES/57/178. That resolution, in operative para-

graph 2, urged “all States that have not yet ratiﬁed or acceded

to the Convention to do so.” The United States explained its

position as follows:

The United States is committed to ensuring that pro-

motion of the human rights and fundamental freedoms

of women is fully integrated into American foreign policy.

Our actions in Afghanistan underscore this commitment

to promote the rights of girls and women who suffered

under the draconian Taliban rule, including in education,

employment, healthcare and other areas. It is for these

and other reasons that the United States supports

CEDAW’s general goal of eradicating invidious discrimina-

tion against women across the globe. We note that the

question of ratiﬁcation of CEDAW is being examined by

the United States. However, the text of CEDAW and the

record of the CEDAW committee raise a number of con-

cerns that the United States is currently reviewing. More-

over, we are concerned about language in the resolution

that calls on states to “ratify” CEDAW, rather than to

“consider ratifying” CEDAW. Accordingly, the United States

disassociates itself from consensus on this resolution.

3. Religion

On October 7, 2002, the International Religious Freedom

Report for 2002 was submitted to Congress by the Depart-

ment of State in compliance with section 102(b) of the

International Religious Freedom Act of 1998, Pub. L. No.

105–292, 112 Stat. 2787. The Annual Report on International

Human Rights 281

Religious Freedom supplements the most recent Human

Rights Reports by providing additional detailed information

with respect to matters involving international religious

freedom. The 2002 report included 192 chapters on the status

of religious freedom in individual countries. The report for

2002 is available at www.state.gov/g/drl/rls/irf/2002. Remarks

by John V. Hanford III, Ambassador-at-Large for Religious

Freedom, in a press brieﬁng concerning the release of the

2002 report, are excerpted below.

The full text of Ambassador Hanford’s press brieﬁng is

available at www.state.gov/g/drl/rls/spbr/14201.htm.

****

Religious freedom is at the very heart of our identity as Americans

and many of our forebears came here to ﬁnd a haven from religious

persecution. But religious freedom is also a universally acknow-

ledged right enshrined in numerous international covenants and

declarations. When we advance religious freedom, we are simply

urging other nations to join with us in upholding a high but

universal standard. In promoting religious freedom, we also further

other fundamental liberties, such as the freedom of assembly,

freedom of expression, and the freedom to raise one’s children

the faith of one’s choice. Where these freedoms ﬂourish, both

government and citizenry learn to value and nurture human dignity.

Finally, advancing religious freedom promotes democracy. As

the founders of our nation understood, religious liberty is a corner-

stone of democracy; and where there is democracy, there is peace.

The Annual Report on International Religious Freedom was

mandated by the 1998 International Religious Freedom Act. The

report promotes religious freedom by establishing a factual baseline

on this issue in more than 190 countries, thus exposing and giving

hope to victims of abuses.

****

I’m glad to say that this year’s report reﬂects good news in

many countries where governments protect religious freedom and

their citizens value it as a social and political good. Such countries

282 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

tend to be democracies in which all fundamental human rights

are respected. Unfortunately, that still leaves millions of religious

believers in other countries who suffer restrictions and outright

persecution at the hands of their governments.

There are a number of reasons for this grim reality. Let me

touch brieﬂy on six general categories of religious freedom abuses:

First, totalitarian and authoritarian regimes often perceive

religious expression as a threat to their control. North Korea,

Burma, China, Vietnam fall into this category.

Secondly, governments that build their legitimacy on a domin-

ant religion often suppress minority religions. Here we ﬁnd Saudi

Arabia, Sudan, Iran.

Third, where there is a strong association between a national

identity and a dominant religion, governments may engage in

or tolerate repression of other religions. In India, this dynamic

led to the deaths of upwards of a thousand Muslims who were

killed in reprisal for the earlier massacre of some 60 Hindu

pilgrims. In Pakistan, blasphemy laws have led to persecution of

Christians and Ahmadis. And just days ago, the parliament of

Belarus passed what is now one of the most repressive religion

laws in Eurasia.

Fourth, some governments target members of certain religi-

ous groups because they are perceived to represent opposition to

governmental authority or a threat to stability. Such are Uzbekistan

and Turkmenistan. In Iraq, the Shi’a are often brutally persecuted

because some do not support Saddam Hussein.

Fifth, a newer form of religious discrimination has arisen across

Europe where a concern over violent cults has led to laws and

government commissions affecting a wide spectrum of believers.

Such actions are particularly troubling because they become models

for nations lacking Europe’s rule of law.

Finally, religious-based terrorism by nongovernmental actors,

often with the support from rogue regimes, is emerging as a new

cause of religious persecution. Terrorist organizations such as al-

Qaida, which deﬁne themselves and their goals in religious terms,

are growing in number. They destroy not only adherents of other

religions, but also co-religionists who reject their methods or goals.

****

Human Rights 283

4. Persons with Disabilities

On July 30, 2002, Avraham Rabby, United States Advisor

for Economic and Social Affairs, addressed the Ad Hoc

Committee on a Comprehensive and Integral International

Convention on Protection and Promotion of the Rights and

Dignity of Persons with Disabilities. In December 2002 the

United States joined consensus on UN General Assembly

Resolution 57/299 renewing the mandate of the Ad Hoc

Committee to continue to consider proposals for a con-

vention concerning persons with disabilities. A/RES/57/229.

The full text of Mr. Rabby’s prepared statement, excerpted

below, is available at www.un.int/usa/02_111.htm.

****

The United States welcomes this process of considering proposals

to promote and protect the rights and dignity of persons with

disabilities. We hope that this process will bring about an increased

awareness of disability issues, not only in the UN system, but

also in capitals around the world, as countries consider various

proposals for strengthening the legal framework for the protection

of persons with disabilities.

We are pleased with the participation of NGOs in the meetings

of this Working Group. The NGOs have a particular and unique

expertise to offer all of our governments. We would note, however,

that it is normally the practice in the UN General Assembly to

allow all Member States to speak in the General Debate prior to

the commencement of NGO speeches.. . .

The most comprehensive effort to give shape to the protection

of persons with disabilities in the United States and to the promo-

tion of their equal rights came with the passage of the Americans

with Disabilities Act in 1990. When it was passed, the Americans

with Disabilities Act, also known as the ADA, was groundbreaking,

as it still is today, in the requirements it set out for opening every

day American life to full participation by persons with disabilities

and protecting the rights of the nation’s almost 49 million people

with disabilities. As President Bush has stated, all Americans “must

284 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

have the opportunity to live independently, work productively

and participate fully in community life.” We believe that a similar

principle should guide all countries and their citizens, and that the

ADA can serve as a valuable model for countries as they develop

their own legal frameworks to protect the rights and dignity of

persons with disabilities.

The ADA has a number of core tenets, including, for example:

Requiring removal or avoidance of architectural and other

structural barriers in newly constructed or altered public buildings

and spaces as well as commercial facilities.

Requiring reasonable accommodations—that is, where an

individual is otherwise qualiﬁed for a given position of employment

but may be unable to fulﬁll some non-essential tasks, employers

are expected to make reasonable accommodations to ensure

that such an otherwise qualiﬁed individual will not be considered

unqualiﬁed simply because of an inability to perform marginal or

incidental job functions.

The ADA has spurred the transportation industry in the United

States to work toward uniform accessible transportation. Speci-

ﬁcally, persons with disabilities can now rely on the availability

of accessible ﬁxed-route buses, light rail, trains and airplanes.

Although there are still gaps, the strides which have been made

since 1990 would have been unthinkable prior to the ADA. It is

estimated, this year, that 100 percent of buses in the ﬁxed-route

system will be accessible to persons with disabilities.

New standards have also resulted in communications advances

for persons with disabilities. The Telecommunications Act of 1996

(Section 255, PL 104–104), requires manufacturers and service

providers to ensure that telecommunication products and services

are accessible to people with disabilities, if readily achievable.

The overarching goal of the requirements is “functional equival-

ence,” and for many speech and hearing impaired persons

throughout the country, this is the ﬁrst time they have been able

to take advantage of the freedom, independence, autonomy and

opportunity that others have enjoyed through the telephone for

over 100 years.

The ADA proves that, when crafted correctly, legislation can

have real and lasting effects on the promotion of the rights of

Human Rights 285

persons with disabilities and have a positive effect on the population

as a whole.

Nonetheless, a new treaty, hurriedly conceived and formulated,

will not necessarily change the practice of states. Indeed, experience

has shown that the human rights instruments that have resulted

in the most profound change in state practice have been those

instruments which were carefully considered over a substantial

period of time and which were adopted by consensus among

states, after signiﬁcant discussions and debate. New thinking

comes about when states are pushed to give substantial and

in-depth consideration to a topic. Only with new thinking will we

see a change in state practice. We hope that our deliberations in

this Working Group will inspire new thinking in all of our capitals.

****

C. CHILDREN

1. U.S. Participation in Treaties Protecting Children

On November 1, 2002, Andre M. Surena, Assistant Legal

Adviser for Human Rights and Refugees, U.S. Department

of State, addressed the International Law Students Associa-

tion Conference on the Protection of Children’s Rights Under

International Law at St. Louis University, St. Louis, Missouri.

His prepared remarks, set forth below, provide an overview

of U.S. participation in a range of treaties that protect children

and U.S. concerns that have prevented ratiﬁcation of the

Convention on the Rights of the Child.

****

I note that the published title of this panel is “The United States

and its Participation in the Convention on the Rights of the Child.”

I am pleased that the task I have been assigned is broader than

that.

There are, in fact, a number of treaties beyond the Conven-

tion on the Rights of the Child that deal with the protection of

286 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

children. Please note that I have used the word “protection”

[of children], rather than [children’s] “rights.” More about that

later.

Brieﬂy, I would like to mention several of these other treaties.

The Hague Convention on the Civil Aspects of International

Child Abduction, concluded in 1980, provides a system for the

rational resolution of international parental child abduction cases.

International parental child abduction is an increasing and especi-

ally difﬁcult phenomenon. The primary purpose of this treaty is

not to reward the abducting parent, and to require the return of

the child to his place of habitual residence, where the issue of

custody should be litigated. The United States has ratiﬁed this

treaty and US courts have implemented its terms fairly. Regrettably,

the same cannot be said in other countries. You may have noticed

public and Congressional criticism of unsatisfactory implementa-

tion of this treaty by a number of countries, including Germany

and Sweden.

Another treaty, the Hague Convention on Inter-Country Adop-

tion, concluded in 1993, provides a system to facilitate international

adoption. The United States has not yet ratiﬁed it, but that goal is

near. The Senate has given advice and consent to ratiﬁcation, and

implementing legislation has been enacted. The Government now

needs to adopt implementing regulations, at which time the United

States will be in a position to ratify this Convention.

This treaty creates a system to ensure that international

adoptions have the true consent of birth parents and are not dis-

guised sales or trafﬁcking in children.

Perhaps foremost among other treaties that protect children

is ILO Convention 182 on the Worst Forms of Child Labor. It

was adopted unanimously in 1999 by the International Labor

Organization. The Convention bans four categories of child labor:

(1) modern slavery, debt bondage and similar practices including

forced or compulsory recruitment of children for use in armed

conﬂict; (2) sex work, including pornography and prostitution;

(3) illicit activities, in particular drug trafﬁcking and (4) any other

work which by its nature is likely to harm the health, safety, and

morals of children. The Convention deﬁnes a child to be any person

under the age of 18.

Human Rights 287

This Convention is limited in scope and represents a com-

promise text on several points. But, it does constitute a concise,

focused and realistic instrument.

The relationship between exploitative labor and the loss of

education is a key issue in the Convention. As ultimately adopted,

the Convention incorporates the obligation “to ensure access

to free basic education, and wherever possible and appropriate,

vocational training, for all children removed from the worst forms

of child labor.”

Another key issue is international cooperation to end the worst

forms of child labor. The Convention text that was adopted calls

for enhanced international cooperation and assistance and reﬂects

US policy and practice. Notably, the U.S. is currently the world’s

largest donor to the ILO’s International Program on the Elimination

of Child Labor (IPEC).

Ending exploitative child labor practices such as those identiﬁed

in the Convention is one of the most important human rights

issues of our time.

Yet, ratiﬁcation alone of these new human rights labor

standards will not ensure that they become a reality in the lives of

millions of children toiling in intolerable conditions. Governments

and the international community must continue to work together

to establish mechanisms to monitor compliance with the Con-

vention, ensure that children have access to schools, and enhance

international cooperation. Achieving this goal will continue to

demand much of the United States and all those who are committed

to advancing this cause. The United States ratiﬁed ILO Convention

182 in 2000.

In May 2000, the UN General Assembly adopted two Protocols

to the Convention on the Rights of the Child: (1) the Protocol on

the Involvement of Children in Armed Conﬂict; and (2) the Protocol

on the Sale of Children, Child Pornography and Child Prosti-

tution. These instruments represent major advances in the inter-

national effort to strengthen and enforce norms for the protection

of the most vulnerable children, who desperately need the world’s

attention.

The Children in Armed Conﬂict Protocol deals realistically with

the difﬁcult issues of minimum ages for compulsory recruitment,

288 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

voluntary recruitment, and participation in hostilities. The Protocol

raises the age for military conscription to 18 years from 15 years

that is currently stipulated under international law; it requires

States Parties to raise the minimum age for voluntary recruitment

to an age above the current 15-year international standard; and it

requires States Parties to take all feasible measures to ensure that

personnel in their national armed forces who are not yet 18 do

not take a direct part in hostilities. States Parties to the Protocol

would also prohibit the recruitment and use of persons below the

age of 18 by non-governmental armed groups.

The Sale of Children Protocol is the ﬁrst international instru-

ment to deﬁne the terms “sale of children,” “child pornography,”

and “child prostitution” and should help guarantee that the

perpetrators of these offenses are brought to justice. The Protocol

requires States Parties to treat acts relating to such conduct as

criminal offenses, and establishes cooperative law enforcement

mechanisms to prosecute offenders. Additionally, the Protocol

establishes broad grounds for jurisdiction over offenses and com-

mitments to extradite offenders, with the aim of ensuring that

offenders can be prosecuted regardless of where they are found.

Each Protocol also contains provisions that promote inter-

national cooperation and international assistance in the areas of

rehabilitation and social reintegration of children who have been

victimized.

Though styled as Protocols to the Convention on the Rights

of the Child, each Protocol, by its terms, will operate as an inde-

pendent multilateral agreement under international law. Thus,

States may ratify either Protocol without becoming a party to the

convention.

These Protocols complement ILO Convention 182 on the Worst

Forms of Child Labor, which requires, inter alia, that States Parties

take immediate and effective action to secure the elimination of

the forced or compulsory recruitment of children for use in armed

conﬂict, the sale and trafﬁcking of children, and the use, procur-

ing or offering of a child for prostitution, for the production of

pornography or for pornographic performances.

One controversial issue in the negotiation of these Protocols

concerned the proposal of the United States that each Protocol be

Human Rights 289

subject to ratiﬁcation or accession by any State, even if it was not

a party to the Convention the Rights of the Child. Developing

countries in general supported the U.S. proposal, stating that it

was important to achieve the widest possible adherence to the

Protocols to make it clear that they spoke for the entire world

community. Several European delegations argued that only States

Parties to an instrument should be allowed to become parties to

an optional protocol to that instrument.

Ultimately, the U.S. proposal was accepted in the children in

armed conﬂict negotiations, after the UN Ofﬁce for Legal Affairs

issued an opinion supporting the U.S. view. The opinion concluded

that “there is no necessary legal impediment to an instrument

which is entitled ‘optional protocol’ being open to participation

by States which have not also established, or which do not also

establish, their consent to be bound by the convention, to which

that instrument is said to be an ‘optional protocol.’ ” The opinion

further stated that the U.S. proposal was similar to the ratiﬁcation

provision in the 1967 Protocol Relating to the Status of Refugees

which, pursuant to Article V, is open to accession by all States

Parties to the Convention on the Status of Refugees, and any

other State which is a member of the UN.

The issue was not resolved until the reports of the Working

Group were adopted at the Commission on Human Rights. At

these meetings States agreed that the Protocols would have similar

provisions on ratiﬁcation—the Children in Armed Conﬂict Protocol

would be subject to ratiﬁcation by any State, while the Sale of

Children Protocol would be subject to ratiﬁcation by any State

party or signatory to the Convention. This met U.S. requirements

since the United States had signed the Convention in February

1995.

The Protocols give the United States the unique opportunity

to reafﬁrm that it is at the forefront of issues to protect children.

Given concerns expressed by members of the U.S. Senate with

respect to the Convention on the Rights of the Child, the United

States has worked to negotiate other human rights instruments

that protect children, such as ILO Convention 182 on the Worst

Forms of Child Labor. The United States was one of the ﬁrst

States to ratify that treaty after its adoption by the ILO in 1999.

290 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

To this point, the United States has demonstrated a willingness

to provide similar leadership with respect to the Protocols. The

President signed and submitted both Protocols to the Senate within

2 months of their adoption by the General Assembly. Before the

Protocols had even arrived, both the Senate and the House had

adopted concurrent resolutions by unanimous consent urging that

the President “consult closely with the Senate with the objective

of building support for [the Children in Armed Conﬂict Protocol]”

and that “the Departments of State and Defense should undertake

all possible efforts to persuade and encourage other governments

to ratify and endorse the new optional protocol on the use of child

soldiers.”

The President recently signed the instruments of ratiﬁcation of

the two Protocols, which will shortly be deposited with the UN

Secretary General.

As I noted earlier, the proposal to allow States that had not

ratiﬁed the Convention on the Rights of the Child to ratify the

Protocols was made by the United States. This was because the

United States believed that the subjects of the Protocols merited

serious consideration, that the United States wanted to be part of

the regimes that were intended to create, and that there was no

realistic prospect of US ratiﬁcation of the Convention. Having

said that, let us look at the Convention on the Rights of the Child.

The Convention was adopted by the UN General Assembly in

1989. It covers a broad range of issues, including education, health

care, freedom of religion and speech, and protection against various

forms of exploitation.

The Convention poses issues that involve: (1) division of powers

between federal and state governments and (2) current domestic

law and practices relating to the treatment of children.

I will mention a few issues:

One is Federalism. To a much greater extent than other human

rights treaties that the United States has ratiﬁed, this Convention

addresses areas now regulated by, and traditionally considered

to be the province of, state and local governments and courts

(such as measures for child development and protection, custody,

visitation and support arrangements, adoption and foster care,

education and welfare). Moreover, there is considerable diversity

Human Rights 291

in the details of how such issues are addressed in the many state

and local jurisdictions of the United States. Because once ratiﬁed

the Convention would apply to state and local as well as federal

government action, it could “federalize” these issues, displacing

inconsistent state and local law and injecting the federal govern-

ment for the ﬁrst time into areas for which it has had relatively

little responsibility.

Another set of issues concerns U.S. Domestic Law and Prac-

tice. In several areas the Convention’s requirements are clearly

inconsistent with U.S. law and would require either reservations,

understandings or declarations, or legislation to conform U.S. law

to the requirements of the Convention.

One such area involves the Juvenile Death Penalty. Article

37(a) of the Convention provides that “neither capital punishment

nor life imprisonment without the possibility of release shall be

imposed for offences committed by persons below eighteen years

of age.” This provision clearly provides protection beyond that

afforded by the United States Supreme Court’s decision in Stanford

v. Kentucky, 492 U.S. 361 (1989), in which the Court held that

the imposition of capital punishment on an individual for crimes

committed at age 16 or 17 does not constitute cruel and unusual

punishment under the Eighth Amendment to the U.S. Constitution.

A substantial number of states authorize capital punishment for

crimes committed at age 16 or above and allow 16- and 17-year-

olds to be tried as adults for crimes that carry a possible sentence

of life imprisonment without the possibility of parole.

Another area relates to Parental Rights and the Family.

Some critics of the Convention have argued that the Convention

accords insufﬁcient attention to the central role of parents and

invites government into family matters. This concern is fueled by

the perception that many of the rights speciﬁcally endorsed by the

treaty (e.g., to freedom of expression, thought, conscience, religion,

privacy, access to the media, etc.) would not be subject to parental

authority. Supporters of the Convention argue that Article 5 of the

Convention requires States Parties to respect the responsibilities,

rights, and duties of parents and other persons legally responsible

for the child to provide “in a manner consistent with the evolv-

ing capacities of the child, appropriate direction and guidance

292 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

in the exercise by the child of the rights recognized in the present

Convention.”

The question remains whether the Convention is properly

construed as a limitation on governments, or as a means to provide

children with new rights legally enforceable against parents and

guardians. Or both.

Further, I would note that the Convention deals also with

Economic, Social and Cultural Rights. The Convention describes

and guarantees rights to health care and medical treatment, an

adequate standard of living, and rest and leisure, and commits

States Parties in Article 4 to undertake to implement such rights

through “all appropriate legislative, administrative and other

measures . . . to the maximum extent of their available resources.”

In the United States, these have not traditionally been regarded as

legally enforceable “rights” but rather as services, beneﬁts or

entit1ements that may be amended or rescinded solely on the basis

of political or budgetary considerations.

Moreover, in this respect, the Convention may be interpreted

to call for substantial new beneﬁt programs for children, with

signiﬁcant resource implications. For example, Article 24(1) calls

upon States Patties to “recognize the right of the child to the

enjoyment of the highest attainable standard of health and to

facilities for the treatment of illness and rehabilitation of health”;

Article 27(1) calls upon States Parties to “recognize for every child

the right to a standard of living adequate for the child’s physical,

mental, spiritual, moral and social development.”

Some additional issues also require careful consideration. For

example, it is unclear whether the requirement in Article 17 that

States Parties encourage the mass media to disseminate certain

information and to have particular regard to the linguistic

needs of certain children would authorize or require the Federal

Government to take action inconsistent with the First Amendment.

Because Article 2 speciﬁcally extends the obligations of

States Parties to “each child within their jurisdiction,” it could

have signiﬁcant impact on application of the Immigration and

Nationality Act, for example by precluding distinctions based on

legal and illegal presence, or immigrant and non-immigrant status.

Human Rights 293

Conclusion

In conclusion, I think it is clear that the United States strongly

supports treaties aimed at the protection of children. We have

ratiﬁed and fairly implemented those treaties that we consider

effectively attain this goal.

The “selective participation” [to use Professor Sloss’ words]

that the United States has chosen is purely rational and practical.

Negotiating multilateral treaties is a committee process to the

nth degree. You try your best to achieve a sound result. Once the

negotiations are over, you must review the result. If, on review,

the resulting text continues to pose difﬁculties, you put it aside

and look for better results elsewhere.

2. U.S. Ratiﬁcation of Protocols to Convention on

Rights of the Child

On December 24, 2002, the United States became party to

two optional protocols to the Convention on the Rights of

the Child: the Optional Protocol on Involvement of Children

in Armed Conﬂict and the Optional Protocol on the Sale

of Children, Child Prostitution and Child Pornography. See

S. Treaty Doc. No. 106–37 (2000), S. Exec. Rep. No. 107–4

(2002). See also Digest 2000 at 356–364. As discussed in

C.1. and in Chapter 4.B.2., the United States could become

a party to the Protocols even though it is not a party to the

underlying Convention.

The Senate provided advice and consent to ratiﬁcation

on June 18, 2002, subject to certain reservations, under-

standings, and declarations in its resolution of ratiﬁcation,

as set forth below. These terms were included in instruments

of ratiﬁcation signed by President George W. Bush.

294 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

a. Children in armed conﬂict

(1) Senate advice and consent

The Optional Protocol on Involvement of Children in Armed

Conﬂict was adopted by the UN General Assembly on May

25, 2000, and came into force on February 12, 2002. At the

time of U.S. ratiﬁcation, 110 countries had signed and forty-

two (including the United States) had ratiﬁed it. A fact sheet

issued by the Department of State on December 24, 2002,

describing the provisions of the protocol and its importance

is available at www.state.gov/r/pa/prs/ps/2002/16213pf.htm.

The Senate’s advice and consent was made subject

to the understandings and conditions set forth below. 148

CONG.REC. S5,717 ( June 18, 2002).

The Senate advises and consents to the ratiﬁcation of the

Optional Protocol to the Convention on the Rights of the Child

on the Involvement of Children In Armed Conﬂict, opened for

signature at New York on May 25, 2000 (Treaty Doc. 106–37;

in this resolution referred to as the “Protocol”), subject to the

understandings in section 2 and the conditions in section 3.

SEC. 2. UNDERSTANDINGS.

The advice and consent of the Senate under section 1 is subject to

the following understandings, which shall be included in the United

States instrument of ratiﬁcation of the Protocol:

(1) No assumption of obligations under the Convention on

the Rights of the Child.—The United States understands that the

United States assumes no obligations under the Convention on the

Rights of the Child by becoming a party to the Protocol.

(2) Implementation of obligation not to permit children to

take direct part in hostilities.—The United States understands

that, with respect to Article 1 of the Protocol—

Human Rights 295

(A) the term “feasible measures” means those measures that

are practical or practically possible, taking into account all the

circumstances ruling at the time, including humanitarian and

military considerations;

(B) the phrase “direct part in hostilities”—

(i) means immediate and actual action on the battleﬁeld likely

to cause harm to the enemy because there is a direct causal

relationship between the activity engaged in and the harm done to

the enemy; and

(ii) does not mean indirect participation in hostilities, such

as gathering and transmitting military information, transporting

weapons, munitions, or other supplies, or forward deployment;

and

personnel, or other person responsible for planning, authorizing,

or executing military action, including the assignment of military

personnel, shall only be judged on the basis of all the relevant

circumstances and on the basis of that person’s assessment of the

information reasonably available to the person at the time the

person planned, authorized, or executed the action under review,

and shall not be judged on the basis of information that comes to

light after the action under review was taken.

(3) Minimum age for voluntary recruitment.—The United

States understands that Article 3 of the Protocol obligates States

Parties to the Protocol to raise the minimum age for voluntary

recruitment into their national armed forces from the current

international standard of 15 years of age.

(4) Armed groups.—The United States understands that the

term “armed groups” in Article 4 of the Protocol means nongovern-

mental armed groups such as rebel groups, dissident armed forces,

and other insurgent groups.

(5) No basis for jurisdiction by any international tribunal.

—The United States understands that nothing in the Protocol

establishes a basis for jurisdiction by any international tribunal,

including the International Criminal Court.

296 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

SEC. 3. CONDITIONS.

The advice and consent of the Senate under section 1 is subject

to the following conditions:

(1) Requirement to deposit declaration.—The President shall,

upon ratiﬁcation of the Protocol, deposit a binding declaration

under Article 3(2) of the Protocol that states in substance that—

(A) the minimum age at which the United States permits

voluntary recruitment into the Armed Forces of the United States

is 17 years of age;

(B) the United States has established safeguards to ensure that

such recruitment is not forced or coerced, including a requirement

in section 505(a) of title 10, United States Code, that no person

under 18 years of age may be originally enlisted in the Armed

Forces of the United States without the written consent of the

person’s parent or guardian, if the parent or guardian is entitled

to the person’s custody and control;

States receives a comprehensive brieﬁng and must sign an enlistment

contract that, taken together, specify the duties involved in military

service; and

(D) all persons recruited into the Armed Forces of the United

States must provide reliable proof of age before their entry into

military service.

(2) Interpretation of the protocol.—The Senate reafﬁrms

condition (8) of the resolution of ratiﬁcation of the Document

Agreed Among the States Parties to the Treaty on Conventional

Armed Forces in Europe (CFE) of November 19, 1990 (adopted

at Vienna on May 31, 1996), approved by the Senate on May 14,

1997 (relating to condition (1) of the resolution of ratiﬁcation of

the INF Treaty, approved by the Senate on May 27, 1988).

(3) Reports.—

(A) Initial report.—Not later than 90 days after the deposit of

the United States instrument of ratiﬁcation, the Secretary of Defense

shall submit to the Committee on Foreign Relations and the

Committee on Armed Services of the Senate a report describing

the measures taken by the military departments to comply with

the obligation set forth in Article 1 of the Protocol. The report

Human Rights 297

shall include the text of any applicable regulations, directives,

or memoranda governing the policies of the departments in

implementing that obligation.

(B) Subsequent reports.—

(i) Report by the Secretary of State.—The Secretary of State

shall submit to the Committee on Foreign Relations and the

Committee on Armed Services of the Senate a copy of any report

submitted to the Committee on the Rights of the Child pursuant

to Article 8 of the Protocol.

(ii) Report by the secretary of defense.—Not later than 30

days after any signiﬁcant change in the policies of the military

departments in implementing the obligation set forth in Article 1

of the Protocol, the Secretary of Defense shall submit a report to

the Committee on Foreign Relations and the Committee on Armed

Services of the Senate describing the change and the rationale

therefor.

****

b. Sale of children, child prostitution, and child pornography

Senate advice and consent

The Optional Protocol on Sale of Children, Child Prostitution

and Child Pornography was adopted by the UN General

Assembly on May 25, 2000, and entered into force January

18, 2002. At the time of U.S. ratiﬁcation, 105 countries

had signed and forty-two (including the United States) had

ratiﬁed it. A fact sheet issued December 24, 2002, by the

Department of State described the provisions of the protocol

and its importance, available at www.state.gov/r/pa/prs/ps/

2002/16216.htm.

The advice and consent of the Senate was made subject

to the reservations, understandings and declarations set forth

below. 148 CONG.REC. S5,718 (June 18, 2002).

****

298 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

SEC. 2. RESERVATION.

The advice and consent of the Senate under section 1 is subject

to the reservation, which shall be included in the United States

instrument of ratiﬁcation of the Protocol, that, to the extent that

the domestic law of the United States does not provide for

jurisdiction over an offense described in Article 3(1) of the Protocol

if the offense is committed on board a ship or aircraft registered in

the United States, the obligation with respect to jurisdiction over

that offense shall not apply to the United States until such time as

the United States may notify the Secretary-General of the United

Nations that United States domestic law is in full conformity with

the requirements of Article 4(1) of the Protocol.

SEC. 3. UNDERSTANDINGS.

The advice and consent of the Senate under section 1 is subject

to the following understandings, which shall be included in the

United States instrument of ratiﬁcation of the Protocol:

(1) No assumption of obligations under Convention on the

Rights of the Child.—The United States understands that the United

States assumes no obligations under the Convention on the Rights

of the Child by becoming a party to the Protocol.

(2) The term “sale of children”.—The United States under-

stands that the term “sale of children”, as deﬁned in Article 2(a) of

the Protocol, is intended to cover any transaction in which remuner-

ation or other consideration is given and received under circum-

stances in which a person who does not have a lawful right to

custody of the child thereby obtains de facto control over the child.

(3) The term “child pornography”.—The United States under-

stands the term “child pornography”, as deﬁned in Article 2(c) of

the Protocol, to mean the visual representation of a child engaged

in real or simulated sexual activities or of the genitalia of a child

where the dominant characteristic is depiction for a sexual purpose.

(4) The term “transfer of organs for proﬁt”.—The United States

understands that—

(A) the term “transfer of organs for proﬁt”, as used in Article

3(1)(a)(i) of the Protocol, does not cover any situation in which a

child donates an organ pursuant to lawful consent; and

Human Rights 299

(B) the term “proﬁt”, as used in Article 3(1)(a)(i) of the Pro-

tocol, does not include the lawful payment of a reasonable amount

associated with the transfer of organs, including any payment for

the expense of travel, housing, lost wages, or medical costs.

(5) The terms “applicable international legal instruments’’ and

“improperly inducing consent”.—

(A) Understanding of “applicable international legal instru-

ments’’.—The United States understands that the term “applicable

international legal instruments” in Articles 3(1)(a)(ii) and 3(5) of

the Protocol refers to the Convention on Protection of Children

and Co-operation in Respect of Intercountry Adoption done at

The Hague on May 29, 1993 (in this paragraph referred to as

“The Hague Convention”).

(B) No obligation to take certain action.—The United States is

not a party to The Hague Convention, but expects to become a

party. Accordingly, until such time as the United States becomes a

party to The Hague Convention, it understands that it is not

obligated to criminalize conduct proscribed by Article 3(1)(a)(ii)

of the Protocol or to take all appropriate legal and administrative

measures required by Article 3(5) of the Protocol.

United States understands that the term “improperly inducing

consent’’ in Article 3(1)(a)(ii) of the Protocol means knowingly

and willfully inducing consent by offering or giving compensation

for the relinquishment of parental rights.

(6) Implementation of the protocol in the federal system of the

United States.—The United States understands that the Protocol

shall be implemented by the Federal Government to the extent

that it exercises jurisdiction over the matters covered therein, and

otherwise by the State and local governments. To the extent that

State and local governments exercise jurisdiction over such matters,

the Federal Government shall, as necessary, take appropriate

measures to ensure the fulﬁllment of the Protocol.

SEC. 4. DECLARATION.

The advice and consent of the Senate under section 1 is subject

to the declaration that—

300 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

(1)(A) the provisions of the Protocol (other than Article 5) are

non-self-executing; and

(B) the United States will implement Article 5 of the Protocol

pursuant to chapter 209 of title 18, United States Code; and

(2) except as described in the reservation in section 2—

(A) current United States law, including the laws of the States

of the United States, fulﬁlls the obligations of the Protocol for the

United States; and

(B) accordingly, the United States does not intend to enact

new legislation to fulﬁll its obligations under the Protocol.

SEC. 5. CONDITION.

The advice and consent of the Senate under section 1 is sub-

ject to the condition that the Senate reafﬁrms condition (8) of

the resolution of ratiﬁcation of the Document Agreed Among the

States Parties to the Treaty on Conventional Armed Forces in

Europe (CFE) of November 19, 1990 (adopted at Vienna on May

31, 1996), approved by the Senate on May 14, 1997 (relating to

condition (1) of the resolution of ratiﬁcation of the INF Treaty,

approved by the Senate on May 27, 1988).

****

3. Special Session of the UN General Assembly on Children

On May 15, 2002, Ambassador Sichan Siv, United States

Representative on the United Nations Economic and Social

Council (“ECOSOC”), addressed the Special Session of the

United Nations General Assembly on Children. Excerpts

below from his statement, following adoption of the outcome

document, provided an explanation of the U.S. position for

the ofﬁcial record of the session.

The full text of Ambassador Siv’s statement is available

at www.un.int/usa/02_070.htm.

****

Human Rights 301

The Special Session will mean greater hope for children around

the world. The United States reafﬁrms its commitment to work

for their well-being everywhere, recognizing that children are best

nurtured in a stable, loving family environment.

We wish to place an explanation of position in the ofﬁcial

record of this Special Session.

1. Concerning references in the document to UN conferences

and summits and their ﬁve year reviews, the United States

does not understand any endorsement of these conferences

to be interpreted as promoting abortion.

2. The United States understands the terms “basic social

services, such as education, nutrition, health care, including

sexual and reproductive health,” “quality health care

services,” “reproductive health care,” “family planning,”

or “family planning services,” “sexual health needs,”

“sexual health,” and “safe motherhood,” in the document

to in no way include abortion or abortion-related services

or the use of abortifacients. The United States does not

include the treatment of injuries or illnesses caused by illegal

or legal abortion for example post-abortion care, among

abortion-related services.

3. The United States fully supports the principle of voluntary

choice in family planning and reiterates that in no case

should abortion be promoted as a method of family

planning, and that women who have had recourse to

abortion should in all cases have humane treatment and

counseling provided for them. The United States empha-

sizes its commitment to programs that address greater

male involvement in pregnancy prevention and voluntary

family planning efforts and the need to stress the practices

of abstinence, of delaying sexual initiation, monogamy,

ﬁdelity, and partner reduction in order to, inter alia, prevent

HIV infection.

4. The United States stresses the importance it attaches

to universal access to primary and secondary education,

particularly for girls, as an essential and integral part of

women’s sustainable socio-economic development.

302 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

5. The United States reafﬁrms that “The family is the natural

and fundamental group unit of society and is entitled to

protection by society and the State” (Universal Declaration

on Human Rights); and that “The right of men and women

of marriageable age to marry and to found a family shall

be recognized,” (International Covenant on Political and

Civil Rights, Art. 23, 1–2); and that “Motherhood and

childhood are entitled to special care and assistance”

(Universal Declaration of Human Rights, Article 25.2). It

stresses the need to further address the importance of family

stability, the role of fathers, and parent-child communica-

tion on responsible sexual behavior, especially abstinence,

and delaying sexual initiation. With regard to the phrase

“various forms of the family exist,” the United States under-

stands this to include single parent and extended families.

It reafﬁrms that governments can support families by

promoting policies that help strengthen the institution of

marriage and help parents rear their children in positive

and healthy environments.

6. The United States understands that “children’s rights” are

seen at all times in relation to the rights, duties and respons-

ibilities of parents, who have the primary responsibility

for their children’s education and well-being. In this regard,

the United States emphasizes the importance it attaches to

the involvement of parents in decisions affecting children

and adolescents in all aspects of sexual and reproductive

health and in all aspects of their lives and education for

which they have the primary responsibility.

4. Rights of the Child

On October 28, 2002, the United States called for a vote and

voted no on UN General Assembly Resolution 57/190, Rights

of the Child. A/RES/57/190. The U.S. delegation explained

its vote as set forth in the excerpts below.

The full text of the explanation is available at

www.state.gov/s/l/c8183.htm.

****

Human Rights 303

Mr. Chairman, the United States remains ﬁrmly committed to

the betterment of children nationally and internationally. As a

nation, we place the highest priority on the well- being of all

children. However, we believe that neither the negotiating pro-

cess on this resolution nor the ﬁnal product, despite its exces-

sive length, contribute signiﬁcantly toward achieving that

objective.

The United States also voted against this resolution because

of our profound disagreement on the following points:

• Preambular paragraph 2, paragraph Section I.1, and

paragraph Section [V.12] contain formulations concerning

the Convention on the Rights of the Child to which we

do not agree. We are not a party to the Convention on

the Rights of the Child. We do not agree that there is a

need for universal ratiﬁcation of the Convention nor do

we accept an obligation to implement its provisions. We

do not accept it as the standard for protecting children’s

rights. In practice, the rights and protections that children

enjoy in the United States through a multi-tiered system

of national, state, and local laws meet or exceed most of

those enumerated in the Convention. Ultimately, decisions

on becoming a Party to any multilateral treaty rest with

each State as a matter of sovereignty. We have exercised

that right in recently ratifying what we consider to be quite

valuable treaties concerning children, namely the optional

protocols to the Convention on the Rights of the Child,

and ILO Convention Number 182 on the worst forms of

child labor.

• Second, the resolution insists that all countries recognize

the contribution that the establishment of the International

Criminal Court has made to the protection of children.

The United States acknowledges that the States Parties to

the Rome Statue have begun the process of creating the

ICC. The United States is not a Party, does not agree with

the statement made about the ICC in this resolution, and

does not see the need to mention the ICC at this time in a

resolution on the rights of children.

For these reasons, the United States has decided to vote against

the draft resolution on the Rights of the Child, L.25.

304 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

5. The Girl Child

Consistent with its position on Resolution 57/190, supra, the

United States called for a vote and voted no on operative

paragraph 1 of Resolution 57/189, The girl child, A/RES/57/

189, which stressed the need for “full and urgent implementa-

tion of the rights of the girl child as guaranteed to her under

all human rights instruments, including the Convention on

the Rights of the Child and the Convention on the Elimination

of All Forms of Discrimination against Women, as well as

the need for universal ratiﬁcation of those instruments.”

Although the U.S. effort to remove the paragraph failed,

the United States joined consensus on the resolution.

D. ECONOMIC, SOCIAL AND CULTURAL ISSUES

1. Development

a. Right to development

The open-ended working group on the right to development

met in Geneva from February 25 to March 8, 2002. The

working group and an independent expert on the right to

development are components of a follow-up mechanism

endorsed by the UN Economic and Social Council on July

30, 1998, as recommended by the Commission on Human

Rights. See www.unhchr.ch/development/right-03.html.

The working group adopted its report on April 11,

2002 E/CN.4/2002/28/Rev.1, available at www.unhchr.ch/

Huridocda/Huridoca.nsf/0/1d1db51f6a4e5ce7c1256b91005268dd/

$FILE/G0213317.pdf. Comments of the United States on the

conclusions of the working group, set forth below, were

attached to the report as Annex III.

The United States appreciates the efforts of the Working Group

on the Right to Development Third Session, especially the efforts

of the Chairman.

Human Rights 305

The conclusions represent a substantial advance over previous

years and demonstrate an increased coherence with development

dialogues in other fora and in particular with this year’s major

international conference.

However, we would have preferred a document that more fully

reﬂected the variety of viewpoints expressed during the discussion.

The United States has fundamental differences with the text’s

conclusions and recommendations and therefore must disassociate

itself with the same. We note that there is still no consensus on the

precise meaning of the right to development.

Nevertheless, the United States continues to support further

discussion in the proper fora that address development and that

would genuinely help Member States of the United Nations reach

our shared goal of sustainable development.

As President Bush recently stated on the eve of the Financing

for Development Conference, good government is an essential

condition of development. We would also want to underscore

here the three broad standards that the President has outlined as

necessary elements for successful development: ruling justly,

investing in people, and encouraging economic freedom.

****

During the working group meetings, the United States had

also commented speciﬁcally on a proposal concerning the

development of a “suitable permanent follow-up mechanism

for the implementation of the right to development” and on

a “development compact” proposal included in the report of

the independent expert, excerpted below.

The full texts of the two U.S. interventions are available

at www.state.gov/s/l/c8183.htm.

Follow-up Mechanism

. . . [W]e believe that it is clear from our discussions, especially

as it concerns the international component, that further debate

is required in order to ﬁnd points of mutual agreement. We there-

fore believe that it is premature to discuss the establishment of

306 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

a permanent follow-up mechanism. Furthermore, the combined

work of the Independent Expert, the activities of the Right to

Development Branch and discussions in this Working Group

already constitute, at different levels, appropriate mechanisms for

the realization of the Right to Development.

. . . It is difﬁcult for us to envision at this time the role that

any such mechanism would have. We therefore believe that it

is premature to contemplate the establishment of a permanent

follow-up mechanism.

Development compacts

My delegation has already taken the ﬂoor to share with

Mr. Sengupta [the independent expert] and the Working Group

some of our views with respect to the recommendations contained

in his report. Among them, we brieﬂy mentioned our concerns

with his concept of “development compacts,” which in our view

replicate relationships that already exists between recipient and

donor states. In this intervention, we wish to expand on this

topic.

We fully agree with Mr. Sengupta that the formulation of

development programs requires the full and active participation

of all stakeholders, including civil society and the private sector,

in an open and transparent process. My government is committed

to development and to the well-established idea of international

cooperation for development. We believe that development is the

key to creating a world that is stable, secure and prosperous. We

have extensive bilateral development assistance programs with a

number of countries and we have helped create and support a vast

system of international institutions that are devoted to the cause

of development.

The notion of “development compact” that Mr. Sengupta

advocates is a bilateral process that is best left to existing mech-

anisms, such as agreements between governments and between

governments and developing agencies.

Previous speakers have rightly noted that an array of efforts

to further strengthen the good governance of international and

national mechanisms to achieve tangible development goals

Human Rights 307

continue to take place in a myriad of fora, many of which enjoy a

level of expertise and experience that we could not and should not

replicate in this Working Group.

The creation of a ﬁnancial monitoring institution under the

auspices of the Development Assistance Committee of the OECD,

and the creation of a fund for development outside of existing

International Financial Institutions would duplicate existing

mechanisms and would distract human rights attention from the

promotion of individual rights and fundamental freedoms without

which the right to development can not be realized.

b. Development initiatives

(1) Millennium Challenge Account

On March 14, 2002, President George W. Bush announced

the New Compact for Development. The project would create

a Millennium Challenge Account to fund initiatives to help

developing nations that meet criteria for long-term develop-

ment. It would also increase core development assistance

by 50 percent over the next three years. A fact sheet prepared

by the Department of State’s Bureau of Oceans and Inter-

national Environmental and Scientiﬁc Affairs, August 23,

2002, describing the features of the new account, is available

at www.state.gov/g/oes/rls/fs/2002/12952.htm.

(2) G-8 Action Plan for Africa

On June 27, 2002, President George W. Bush, participating

in a meeting of the G-8 in Kananaskis, Canada, announced

U.S. support for the G-8 Action Plan for Africa. A fact sheet

released by the White House, Ofﬁce of the Press Secretary,

on June 27, 2002, describes the action plan and the U.S.

views of its consistency with the U.S. Compact for Develop-

ment. The fact sheet is available at www.state.gov/e/eb/rls/

othr/11515.htm.

308 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

(3) U.S.-Middle East Partnership Initiative

In an address to the Heritage Foundation on December 12,

2002, Secretary of State Colin L. Powell announced a new

U.S.-Middle East partnership initiative. A fact sheet issued

on the same date provided a summary of the initiative,

explaining that it “will provide a framework and funding for

the U.S. to work together with governments and people

in the Arab world to expand economic, political and educa-

tional opportunities for all.” The fact sheet is available at

www.state.gov/r/pa/prs/ps/2002/15923pf.htm. The initiative

would encompass over $130 million in assistance, including

$29 million in initial funding for pilot projects in support of

reform, and more than $1 billion in assistance that the U.S.

government provides to Arab countries annually. Excerpts

from Secretary Powell’s speech below describe the goals of

the initiative.

Secretary Powell’s speech is available at www.state.gov/

secretary/rm/2002/15920.htm.

2. Abortion and Involuntary Sterilization

The Foreign Operations, Export Financing and Related Pro-

grams Appropriations Act, Fiscal Year 2002, Pub. L. 107–115,

provides that “none of the funds made available in this

Act . . . may be made available to any organization or program

which, as determined by the President of the United States,

supports or participates in the management of a program of

coercive abortion or involuntary sterilization.” This funding

restriction, referred to as the “Kemp-Kasten Amendment,”

has been included in foreign operations appropriations acts

since 1985. Authority to make the relevant determination has

been delegated by the President to the Secretary of State. On

July 18, 2002, Secretary of State Colin L. Powell determined

that “in light of the Kemp-Kasten amendment, no funds made

available by the Act may be provided to the United Nations

Population Fund (‘UNFPA’) at this time.” Excerpts below

Human Rights 309

from a letter from the Secretary of State to the congres-

sional leadership and Chairmen of the Senate and House

Appropriations Committees provide the basis for his deter-

mination. The letter also indicated that the administration

intended to consult with Congress concerning use of the

funds appropriated for UNFPA to fund USAID’s Child Survival

and Health Program Fund “to be used for family planning

and reproductive health care activities.”

****

. . . In coming to [the conclusion that no funds may be made

available to UNFPA] I relied on information available to me,

including brieﬁngs supplied by UNFPA, Chinese law, the State

Department’s annual human rights reports, and the report of a

three-member independent assessment team that traveled to the

PRC in May 2002 at my request to assess the situation and assist

in my determination of whether the Kemp-Kasten Amendment

precluded further funding of UNFPA.

. . . Regrettably, the PRC has in place a regime of severe

penalties on women who have unapproved births. This regime

plainly operates to coerce pregnant women to have abortions in

order to avoid the penalties and therefore amounts to a “program

of coercive abortion.” Regardless of the modest size of UNFPA’s

budget in china or any beneﬁts its programs provide, UNFPA’s

support of, and involvement in, China’s population-planning

activities allows the Chinese government to implement more

effectively its program of coercive abortion. Therefore, it is not

permissible to continue funding UNFPA at this time. If Chinese

laws and practices were changed so that UNFPA’s activities did

not support a program of coercive abortion, or if UNFPA were

to change the program implementation for its funding so that it

did not support a program of coercive abortions, I would be pre-

pared to consider funding UNFPA in the future.

****

310 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

3. Right to Food

a. World Food Summit: ﬁve years later

In the declaration adopted at the conclusion of the World

Food Summit: ﬁve years later (“WFS:fyl”), June 10–13, 2002,

in Rome, heads of state and government reafﬁrmed “the

right of everyone to have access to safe and nutritious food.”

The United States entered a reservation to operative para-

graph 10 of the declaration, which invited the FAO Council

to establish “an Intergovernmental Working Group ...to

elaborate, in a period of two years, a set of voluntary

guidelines to support Member States’ efforts to achieve the

progressive realisation of the right to adequate food in the

context of national food security. . . .”

The U.S. reservation, set forth below, is available at

www.fao.org/DOCREP/MEETING/005/Y7106E/y7106e03.htm#

P192_62571.

The United States believes that the issue of adequate food can

only be viewed in the context of the right to a standard of living

adequate for health and well-being, as set forth in the Universal

Declaration of Human Rights, which includes the opportunity to

secure food, clothing, housing, medical care and necessary social

services. Further, the United States believes that the attainment of

the right to an adequate standard of living is a goal or aspiration

to be realized progressively that does not give rise to any inter-

national obligation or any domestic legal entitlement, and does

not diminish the responsibilities of national governments towards

their citizens. Additionally, the United States understands the right

of access to food to mean the opportunity to secure food, and not

guaranteed entitlement. Concerning Operative Paragraph 10, we

are committed to concrete action to meet the objectives of the

World Food Summit, and are concerned that sterile debate over

“Voluntary Guidelines” would distract attention from the real

work of reducing poverty and hunger.

Human Rights 311

b. UN General Assembly Resolution 57/226

On November 20, 2002, the United States proposed amend-

ments to operative paragraphs 5 and 8 (“OP5” and “OP8”)

of Resolution 57/226, The right to food. A/RES/57/226.

Language at the beginning of OP5, which encouraged all

states “to take steps with a view to achieving progressively

the full realization of the right to food” would have been

replaced with “to take steps with a view to achieving the

progressive realization of the right to adequate food.” OP 8,

which urged states “to give adequate priority in their

development strategies and expenditures to the realization

of the right to food,” would have been amended to refer to

“priority in their development strategies and expenditures of

the progressive realization of the right to adequate food.”

The amendments failed. The resolution was adopted with

a vote of 160 to 2, with 4 abstentions. The United States

voted no.

On November 11, 2002, Ambassador Sichan Siv, U.S.

Representative to the Economic and Social Council

(“ECOSOC”) had addressed the Fifty-seventh Session of the

UN General Assembly, in the Third Committee. His remarks

provided the views of the United States on the report of

Mr. Jean Ziegler, Special Rapporteur on the Right to Food,

which contradicted conclusions of experts on the safety of

genetically modiﬁed foods. Ambassador Siv’s remarks are

available at www.un.int/usa/02_189.htm.

4. Intangible Cultural Heritage

On September 24, 2002, the United States expressed its

support for a draft convention for the safeguarding of intang-

ible cultural heritage. Excerpts below from the statement

of the U.S. delegation, explain the views of the United

States and provide examples of its own undertakings in this

area.

312 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The full text of the statement is available at www.state.gov/

sl/c8183.htm.

****

The issue before us, the safeguarding of intangible cultural heritage,

is very important to the United States. We have a strong concern

for preserving and encouraging the living cultural heritage of our

nation, populated as it is by people coming from virtually every

nation on earth and practicing an incredibly rich and diverse range

of cultures and traditions. We ﬁnd support for varied cultural

traditions important for us as a democracy. . . .

Mr. Chairman, regarding the scope of our task, the US supports

the views of the Canadian delegation that any approach to

intangible cultural heritage needs to be ﬂexible and multifaceted.

We also endorse the view expressed by the Australian delegation.

Any statement should have clear and common objectives, explicit

and achievable standards and a strategically focused scope and

action plan, expressed in simple and unambiguous language.

The United States has a history of safeguarding and support-

ing intangible cultural heritage. . . . It has worked closely with

UNESCO on this very issue.

The preservation and protection of the world’s intangible

cultural heritage deserves our full and immediate attention.

Whether a convention is the appropriate instrument with which

to take action is an issue which, the United States believes, deserves

further discussion. We believe a plan of action that provides clear

strategies and goals and that offers tangible incentives for adoption

and implementation might best serve our purposes. Individual states

could take on the task of developing appropriate action plans to

address intangible cultural heritage while UNESCO could serve

the very important role of providing the mechanism for sharing,

evaluating, and supporting model action plans.

As a country which ﬁnds strength and value in our own great

diversity and recognizes the value of intangible cultural heritage

around the world, we seek an instrument which all of us are able

to support and we look forward to playing a constructive role in

pursuit of this goal.

Human Rights 313

E. TORTURE

On July 24, 2002, the United States abstained from voting

on adoption of a Draft Optional Protocol on Torture in

ECOSOC. Mr. John Davison, Deputy U.S. Representative

to ECOSOC, provided an explanation of the U.S. abstention,

as set forth in his prepared remarks below, available at

www.un.int/usa/02_107.htm.

The United States unequivocally condemns the abhorrent practice

of torture. We are a Party to the Convention against Torture and

are the largest contributor to the UN Voluntary Fund for the

Victims of Torture. Our Federal and state laws prohibit conduct

constituting torture and impose heavy penalties on violators.

Consequently, the United States greatly regrets being placed in

the position of abstaining on the draft decision that would have

the Economic and Social Council adopt the Draft Optional Protocol

to the UN Convention against Torture, as well as recommending

that the General Assembly do likewise.

However, the current text of the Draft Optional Protocol before

ECOSOC has serious ﬂaws. In some respects, its overall approach

and certain speciﬁc provisions are contrary to our Constitution,

particularly with respect to matters of search and seizure. Further-

more, in view of our Federal system of government, the regime

established by the draft would be overly intrusive.

Moreover, the draft is before ECOSOC as the result of a pre-

mature vote by the Commission on Human Rights that represents

a signiﬁcant departure from the longstanding preference for

consensus in formulating new human rights instruments. In addi-

tion, the credibility of this draft instrument is greatly undermined

by the fact that, despite originally being intended as a universal

instrument, it was adopted in a Commission vote with nearly as

many negative votes and abstentions as votes in favor (29-10-14).

Finally, there are ﬁnancial implications potentially involving

millions of dollars annually if the current text of the draft optional

protocol is adopted. We and others have repeatedly requested

that a cost analysis of the draft be carried out by the secretariat,

314 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

followed by a detailed report to Member States concerning the

impact on the UN budget of implementation of this draft instru-

ment if it enters into force.

On November 5, 2002, the United States offered an amend-

ment to Resolution 57/199, Draft Optional Protocol to

the Convention Against Torture (“DOPCAT”) before the

UN General Assembly’s Third Committee. A/RES/57/199. The

amendment would have replaced article 25 paragraph 1, which

provides that “[t]he expenditure incurred by the Subcommittee

on Prevention in the implementation of the present protocol

shall be borne by the United Nations.” The U.S. amendment

read:

1. All expenses for the implementation of the present

Protocol shall be borne exclusively by the States Parties.

The States Parties alone shall also be responsible for

reimbursement to the United Nations for any expenses

incurred by the United Nations pursuant to paragraph 2

of this article, including use of its staff and facilities.

The amendment was defeated. On November 7, 2002, the

United States called for a vote and voted no on the resolution

adopting the optional protocol. The resolution was adopted

on December 18, 2002.

A fact sheet released by the Department of State on

November 4, 2002, reiterated the U.S. commitment to ﬁght

torture and provided its views on DOPCAT, as set forth in

full below and available at www.state.gov/p/io/rls/fs/2002/

14901.htm.

****

The U.S. Commitment: The United States condemns unequivocally

the despicable practice of torture. We have fought to eliminate it

around the world. Political will is critical. The United States has

led international efforts to put pressure on governments to publicly

condemn torture; enact legislation; investigate and prosecute

Human Rights 315

abusive ofﬁcials; train law enforcement ofﬁcers and medical per-

sonnel, and provide compensation and rehabilitation for victims.

International Organizations: At the international level, the U.S.

has strongly supported the work of the UN special rapporteur

against torture, who regularly visits nations to ensure compliance

with international norms. The U.S. is a Party to the UN Convention

Against Torture, which 130 other nations have ratiﬁed. The

Convention establishes the Committee Against Torture, which

considers complaints and conducts visits to countries where torture

is alleged. In addition, the International Committee of the Red

Cross (ICRC) and other humanitarian organizations conduct visits

to prisons and other places of detention in an effort to prevent or

remedy torture. The U.S. is the world’s largest donor to the UN

Voluntary Fund for Victims of Torture; we contributed $5 million

in FY 2002.

Draft Optional Protocol to the Convention Against Torture

(DOPCAT): The DOPCAT would establish a new international

oversight body, independent from the Committee Against Torture,

which would be required to inspect detention facilities in all nations

that are States Parties to the protocol. Such visits to these countries

would be scheduled in advance on a rotating basis, rather than

conducted on an ad hoc basis. Because of the optional nature of

this treaty, many of the worst human rights offenders would not

be subject to its provisions. The U.S. opposes funding this program

through the UN regular budget, which would require the United

States to pay 22% of the total implementation costs. Only parties

to the protocol should pay implementation costs. The proposed

DOPCAT regime represents a potential diversion of resources from

the work of other more results-oriented bodies, including the UN

Committee Against Torture. Because the United States abhors

torture, we seek the strongest means to end this terrible practice.

The DOPCAT does not accomplish that.

F. DETENTIONS

Consideration by the Inter-American Human Rights Com-

mission of issues concerning detention of enemy combatants

at Guantanamo is discussed in A.2. and in Chapter 18.A.3.d.

316 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

G. JUDICIAL PROCEDURE, PENALTIES AND

RELATED ISSUES

1. Capital Punishment

In September 2002 at the Annual Human Dimension

Implementation Meeting of the Ofﬁce for Democratic

Institutions and Human Rights of the Organization for

Security and Co-operation in Europe (“OSCE”), the United

States exercised its right of reply to criticisms by other OSCE

members of U.S. use of capital punishment. The prepared

points for the U.S. statement on this issue are provided

below.

• Mr. Chairman, the issue of whether a State imposes the death

penalty is a political issue each country has to decide for itself.

In the United States, under our Constitution, individual states

make that decision. It is an issue with respect to which reason-

able people disagree. There is an on going, and I might even

say passionate and extensive debate on this issue in the legal

and greater community in the United States. As you may be

aware, 12 of our states do not impose capital punishment.

• Also, our political system has a built-in opportunity for those

who are elected by the majority of the voters, those who make

the laws at the state and federal levels, to constantly assess—

and reassess—their decision on this issue.

• However, in those states that do carry the death penalty, it is

applied only after most rigorous adherence to strictly construed

rules of substance and procedure—rules that are constantly

assessed and reassessed by courts—and only after open and

fair trials and conviction by juries upon ﬁndings of guilt beyond

reasonable doubt in narrowly circumscribed circumstances—

essentially aggravated, intentional homicide.

• We assure you that the U.S. and its states take seriously due

process guarantees and provide exhaustive appeals before this

ultimate punishment is carried out.

Human Rights 317

• The great importance and vigorous public debate in the United

States on this issue was most recently evidenced by the two

very high proﬁle Supreme Court decisions regarding the death

penalty.

• One was the case of Atkins vs. Virginia, which was just decided

this past June, and decided that execution of mentally retarded

criminals constitutes “cruel and unusual” punishment in the

words of our Constitution.

• Prior to this decision, 18 states of the 38 that have adopted the

death penalty had already banned executions of the mentally

retarded.

• In addition, there was a second decision also in June, in which

the Supreme Court ruled in a vote of 7-2, in the case of Ring v.

Arizona, that a jury, not a judge, must determine whether a

capital defendant is eligible to receive the death penalty. The

court held that a judge’s ﬁnding of aggravating factors sufﬁcient

to support capital punishment violates the constitutional right

to a jury determination on this issue.

• With all that said, let us not forget that the citizenry supports

the death penalty. Polls in the U.S. continue to indicate that a

majority of Americans support the death penalty, as does a

signiﬁcant percentage of Europeans. A Gallup poll conducted

in the United States in May of this year, indicated that 72

percent of those who were polled support the death penalty

for a person convicted of murder, slightly up from 68 percent

six months prior, but still down slightly from the high support

of 80 percent in 1994.

• According to a Wall Street Journal article on July 25 of this

year, recent polls conducted by the Central European Research

Group in Brussels indicated 75 percent of Poles, 60 percent of

Hungarians and 56 percent of Czech Republic citizens would

favor a return of the death penalty.

• As noted, however, the debate and divergent points of view

continue.

• In closing, I would also like to note that there is no OSCE

commitment prohibiting use of the death penalty, and that

international law clearly permits the imposition of that penalty.

Indeed, the International Covenant on Civil and Political Rights

318 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

speciﬁcally recognizes the right of states that have not abolished

the death penalty to impose it.*

• The United States will continue to keep the Permanent Council

apprised of developments regarding the death penalty in our

country.

2. References to International Criminal Court in

Human Rights Resolutions

As discussed in Chapter 3.C.2.a.(1). supra, on May 6, 2002

the United States notiﬁed the United Nations that it did not

intend to become a party to the Statute of Rome establishing

the International Criminal Court and that there were therefore

no legal obligations arising from its signature of December

31, 2000. The U.S. position on the ICC was explained in a

speech on the same day by Under Secretary of State for

Political Affairs Marc Grossman. See Chapter 3.C.2.a.(2).

During 2002 the United States addressed language

referring to the ICC in human rights resolutions in both the

United Nations and the Organization of American States, as

discussed below.

a. UN General Assembly Resolutions

(1) Extrajudicial, summary, or arbitrary executions

In November 2002, in the Third Committee of the UN

General Assembly, the United States joined consensus on

Resolution 57/214, “Extrajudicial, summary or arbitrary

executions.” A/RES/57/214. Before doing so, however, the

United States called for a vote and voted no on preambular

* [Editors’ Note: Article 6 of the ICCPR states that capital punishment

shall not be imposed for crimes committed by individuals under the age of

18. The United States entered a reservation to this article at the time of

ratiﬁcation. The U.S. Supreme Court has ruled that use of capital punish-

ment under 16 at the time of the offense is unconstitutional. Thompson v.

Oklahoma, 487 U.S. 85 (1988).]

Human Rights 319

paragraph 7 and operative paragraph 3 in the draft resolution,

which acknowledged the entry into force of the Rome Statute

“thereby contributing to ensuring prosecution and the pre-

vention of impunity concerning extrajudicial, summary or

arbitrary executions,” and “the historic signiﬁcance of the

establishment of the International Criminal Court on 1 July

2002, and the fact that a signiﬁcant number of States have

already signed, ratiﬁed or acceded to the Rome Statute, and

calls upon all other States to consider becoming parties to

the Statute.” The vote failed to remove the paragraphs. Set

forth below in full is the U.S. explanation for its vote.

The United States is committed to the struggle to end impunity,

and, in particular, to end the abhorrent practices of extrajudicial,

summary or arbitrary executions. Nevertheless, we must call for a

vote on preambular paragraph 7 and operative paragraph 3 based

on what we believe are inappropriate references to the International

Criminal Court.

The reasons for U.S. opposition to the Rome Statute as adopted

are well known, and we will not restate those positions here.

Likewise, we reiterate that the United States does not seek to under-

mine the International Criminal Court. We respect the right of

States to become parties to the Rome Statute if they wish. At the

same time, our decision not to be a party also should be respected.

We had requested that each of these paragraphs be re-drafted

to state facts, as opposed to characterizations of the facts, as the

language now reads. The United States believes these references

are not properly included in a thematic resolution of this nature.

It is unfortunate that our views regarding these references were

not taken into account by the co-sponsors of this resolution, and

on this basis, we have called for a vote on each of these paragraphs.

In addition, my delegation wishes to emphasize to the special

rapporteur on this subject and to those assisting her from the

Ofﬁce of the High Commissioner the importance of scrupulously

observing the terms of her mandate and staying strictly within

that mandate. In particular, that mandate does not include abolition

of the death penalty or the authority to question a system of

320 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

capital punishment that is implemented with due process of law

and appropriate safeguards.

(2) Enforced or involuntary disappearances

In November 2002 the United States also joined consensus

on Resolution 57/215, Question of enforced or involuntary

disappearances. A/RES/57/215. The United States had called

for a vote and voted no on preambular paragraph 7 in the

draft resolution, which acknowledges “the fact that acts of

enforced disappearance, as deﬁned in the Rome Statute ...,

come within the jurisdiction of the Court as crimes against

humanity.” In addition to repeating the language concerning

U.S. views of the International Criminal Court, supra, the

United States explained the reasons for its vote on this

paragraph as set forth below.

We had requested that this paragraph 7 “note the fact that acts of

enforced disappearances could come within the jurisdiction of the

Court.” Instead, the paragraph implies that all acts of enforced

disappearances come within the Court’s jurisdiction, not “some.”

It is unfortunate that our views regarding this paragraph

were not incorporated into this resolution. On this basis, we have

called for a vote on the inclusion of this paragraph. Nonethless,

we will join consensus on the resolution as a whole, to reﬂect our

commitment to addressing the egregious practice of enforced

disappearances which the resolution addresses.

(3) Other

The United States also joined consensus on Resolution

57/233, Situation of human rights in the Democratic Republic

of the Congo, A/RES/57/233, after calling for a vote and voting

no on language that welcomed ratiﬁcation of the Rome

Statute by the Democratic Republic of the Congo.

See also language addressing the International Criminal

Court in Resolution 190, Rights of the child, C.4.

Human Rights 321

b. Resolutions in Organization of American States

General Assembly

On June 4, 2002, the General Assembly of the Organization

of American States (“OAS”) adopted a resolution entitled

“Promotion of the International Criminal Court.” AG/RES.

1900 (XXXII-0/02). At the request of the United States, a

footnote was added to the resolution, providing that “[t]he

United States delegation reserves on this resolution and

requests that the text of its intervention be included in the

ﬁnal report on the resolution in the proceedings of the

General Assembly.” The text of the intervention, made on

May 22, 2002, is provided below. For the same reasons, the

United States also reserved on operative paragraph 3 of a

resolution entitled “Promotion of and Respect for Inter-

national Humanitarian Law,” urging “member states that

have not yet done so to consider signing or ratifying, as

appropriate, the Statute of the International Criminal Court.”

AG/RES. 1904 (XXXII-0.02).

****

The United States has long been concerned about the persistent

violations of international humanitarian law and international

human rights law throughout the world. We stand for justice and

the promotion of the rule of law. The United States will continue

to be a forceful advocate for the principle of accountability for

war crimes, genocide and crimes against humanity, but we cannot

support the seriously ﬂawed International Criminal Court. Our

position is that states are primarily responsible for ensuring justice

in the international system. We believe that the best way to combat

these serious offenses is to build and strengthen domestic judicial

systems and political will and, in appropriate circumstances, work

through the United Nations Security Council to establish ad hoc

tribunals as in Yugoslavia and Rwanda. Our position is that

international practice should promote domestic accountability. The

United States has concluded that the International Criminal Court

does not advance these principles.

322 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The United States has not ratiﬁed the Rome Treaty and has no

intention of doing so. This is because we have strong objections to

the International Criminal Court, which we believe is fundament-

ally ﬂawed. The International Criminal Court undermines national

sovereignty with its claim to jurisdiction over the nationals of

states not party to the agreement. It has the potential to undermine

the role of the United Nations Security Council in maintaining

international peace and security. We also object to the Court

because it is not subject to adequate checks and balances. We

believe that an independent court with unchecked power is open

to abuse and exploitation. Its structure lends itself to the great

danger of politically-motivated prosecutions and decisions.

The inclusion of the still-undeﬁned crime of aggression within the

statute of the Court creates the potential for conﬂict with the

United Nations Charter, which provides that the Security Council

determines when an act of aggression has occurred.

The United States notes that in past decades several Member

States have reached national consensus for addressing historic

conﬂicts and controversies as part of their successful and peaceful

transition from authoritarian rule to representative democracy.

Indeed, some of those sovereign governments, in light of new

events, evolved public opinion, or stronger democratic institu-

tions, have decided on their own and at a time of their choosing to

reopen past controversies. These experiences provide compelling

support for the argument that Member States—particularly those

with functioning democratic institutions and independent

functioning judicial systems—should retain the sovereign discre-

tion to decide as a result of democratic and legal processes whether

to prosecute or to seek national reconciliation by other peaceful

and effective means. The United States is concerned that the

International Criminal Court has the potential to undermine the

legitimate efforts of Member States to achieve national recon-

ciliation and domestic accountability by democratic means.

Our policy on the ICC is consistent with the history of our

policies on human rights, the rule of law and the validity of demo-

cratic institutions. For example, we have been a major proponent of

the Special Court in Sierra Leone because it is grounded in sovereign

consent, combines domestic and international participation in a

Human Rights 323

manner that will generate a lasting beneﬁt to the rule of law within

Sierra Leone, and interfaces with the Truth and Reconciliation

Commission to address accountability.

The United States has a unique role and responsibility to help

preserve international peace and security. At any given time, U.S.

forces are located in close to 100 nations around the world, for

example, conducting peacekeeping and humanitarian operations

and ﬁghting inhumanity. We must ensure that our soldiers and

government ofﬁcials are not exposed to the prospect of politicized

prosecutions and investigations. Our country is committed to

a robust American engagement in the world to defend freedom

and defeat terror; we cannot permit the ICC to disrupt that vital

mission.

We reiterate our strong opposition to the establishment of

the International Criminal Court. In light of this position, the

United States cannot in good faith join in the consensus on an

OAS resolution that promotes the Court. Accordingly, the United

States hereby enters this reservation on the entire resolution and

respectfully requests that its intervention be entered into the ﬁnal

report on this resolution in the Proceedings of the General Assembly

and that a footnote be placed on the title of this resolution to

both effects.

3. Alien Tort Statute and Torture Victims Protection Act

The Alien Tort Statute (“ATS”), also often referred to as the

Alien Tort Claims Act (“ATCA”), was enacted in 1789 and is

now codiﬁed at 28 U.S.C. § 1350. It currently provides that

the federal district courts “shall have original jurisdiction of

any civil action by an alien for tort only, committed in violation

of the law of nations or a treaty of the United States.” Over

the past several decades, the statute has been interpreted by

the federal courts in various human rights cases, beginning

with Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). There

is dispute as to whether the statute is merely jurisdictional

or provides, or permits a court to infer, a private right of

action. Compare Tel-Oren v. Libyan Arab Republic, 726 F.2d

324 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

774 (D.C. Cir.) (concurring opinion of Judge Bork), cert.

denied, 470 U.S. 1003 (1984) with In re Estate of Marcos,

Human Rights Litigation, 25 F.3d 1467, 1475 (9th Cir. 1994),

cert. denied sub nom. Estate of Marcos v. Hilao, 513 U.S. 1126

(1995). Courts have also upheld jurisdiction under the statute

in certain circumstances against a non-state defendant, e.g.,

Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1996), cert. denied, 518

U.S. 1005 (1996). By its terms this statutory basis for suit is

available only to aliens.

The Torture Victims Protection Act (“TVPA”) was enacted

in 1992 and is codiﬁed at 28 U.S.C. § 1350 note. It provides a

cause of action in federal courts for individuals (regardless

of nationality, including U.S. nationals) who are victims of

ofﬁcial torture or extrajudicial killing against “[a]n individual

. . . [acting] under actual or apparent authority, or color of

law, of any foreign nation.” The TVPA contains a ten-year

statute of limitations.

Litigation is frequently initiated under both statutes and

hence judicial opinions often discuss the two together.

a. Scope

During 2002 U.S. courts rendered a number of signiﬁcant

decisions under the ATS and TVPA. Individually and col-

lectively, they address a wide range of issues relevant to the

scope and interpretation of these statutes.

(1) Tachiona v. Mugabe

In 2001 in a case brought by citizens of Zimbabwe against

the President and other senior ofﬁcials of Zimbabwe as well

as the country’s ruling political party, the Zimbabwe African

National Union-Patriotic Front (ZANU-PF), arising from the

campaign of brutality and violence aimed at intimidating

and suppressing the political opposition in the months prior

to the Zimbabwean national elections in 2000, the District

Court for the Southern District Court of New York held that

Human Rights 325

President Mugabe and his foreign minister were entitled to

personal immunity but were not immune from service of

process in their roles as agents of ZANU-PF, and that service

upon them in that capacity did not transgress their personal

inviolability but was sufﬁcient to establish jurisdiction over

the political party itself. Tachiona v. Mugabe, 169 F. Supp. 2d

259 (S.D.N.Y. 2001) (“Tachiona I”). See Digest 2001 at

319–335.

In subsequent proceedings, the court denied a motion

for reconsideration by the United States with respect to the

validity of service, Tachiona v. Mugabe, 186 F. Supp. 2d 383

(S.D.N.Y. 2002) (“Tachiona II”). It thereafter endorsed the

report and recommendation of a magistrate judge that a

default judgment should be entered against ZANU-PF in the

amount of $73 million (including $20,250,453 in compens-

atory damages and $53,000,000 in punitive damages) for

torture and extra-judicial killing under the TVPA. Noting that

the ATS does not indicate which substantive law should be

applied in determining liability and damages under that

statute, the court reserved decision as to the magistrate’s

recommendations with respect to plaintiffs’ claims under

the ATS in order to permit them to submit additional argu-

ment regarding the applicable law of Zimbabwe underlying

those claims. Tachiona v. Mugabe, 216 F. Supp. 2d 262

(S.D.N.Y. 2002) (“Tachiona III”).

After considering the plaintiffs’ supplemental submis-

sion, the court adopted the magistrate’s report and entered

judgment in the recommended amounts for the ATS claims.

Its lengthy opinion discussed not only the choice of law

issue under the ATS but also the proper scope of its jurisdic-

tion under the statute. Tachiona v. Mugabe, 234 F. Supp. 2d

401 (S.D.N.Y. 2002) (“Tachiona IV”). Excerpts from that

decision follow (footnotes and citations omitted).

****

Under traditional choice of law inputs relevant to the matter at

hand, the United States has a signiﬁcant interest in providing

326 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

a forum for the adjudication of claims under the ATCA alleging

certain violations of international human rights law, thereby

advancing the realization of the values embodied in universally

recognized norms. However, given the jurisdictional facts present

here, Zimbabwe would have the predominant interests in the

adjudication of this case pursuant to Zimbabwe law. All of the

Plaintiffs are citizens of Zimbabwe. ZANU-PF is the country’s

ruling political party, headed by Mugabe. All of the events Plaintiffs

describe as constituting the actionable conduct and corresponding

injuries occurred in Zimbabwe, arising out of political conﬂicts and

social conditions prevailing there. Thus, the pertinent relation-

ships between this action and the parties and underlying events

are predominantly connected with Zimbabwe. Zimbabwe there-

fore has a strong interest in the application of its local law to the

resolution of a controversy so fundamentally rooted in that country.

But what decisional rules should apply if, as discussed below,

the governing law of Zimbabwe, while in general terms recogniz-

ing some of the rights Plaintiffs invoke here under the ATCA, does

not deﬁne speciﬁc causes of action to vindicate the particular claims

asserted, or does not permit recovery of the kinds of damages

Plaintiffs seek, or may otherwise bar liability, so that the effect of

applying the entire municipal law of Zimbabwe to address the

violations of international law here alleged would be to defeat

some or all of Plaintiffs’ claims and thus the remedy the ATCA

contemplated?

Similar concerns have been articulated by other courts that have

encountered and addressed these complexities in determining the

source of substantive law to apply in adjudicating ATCA claims.

The doctrinal underpinnings of the dilemma is best captured in the

divergent approaches expressed by the concurring opinions of the

Circuit Court in Tel-Oren v. Libyan Arab Republic [726 F.2d 774

(D.C. Cir. 1984)] as to whether the ATCA, beyond conferring

federal court jurisdiction, creates a cause of action, and as to the

sources of any substantive decisional rules governing suits invoking

the statute.

As a threshold matter, as Judge Bork observed, international

law ordinarily does not create causes of action conferring upon

individuals a self-executing right to sue to vindicate particular

Human Rights 327

violations of universally recognized norms. Rather, many inter-

national human rights instruments merely enunciate in expansive

generalities particular principles, aspirations and ideals of universal

and enduring signiﬁcance. These sources serve as fonts of broadly

accepted behavioral norms that nations can draw upon in carrying

out their obligations to their peoples. International law ordinarily

leaves it to each sovereign state to devise whatever speciﬁc remedies

may be necessary to give effect to universally recognized standards.

As noted by a leading commentator: “International human rights

instruments do not legislate human rights; they ‘recognize’ them

and build upon that recognition [ ],” which assumes the human

rights’ “preexistence in some other moral or legal order.”

To these ends, various international declarations, covenants

and resolutions catalogue rights all persons should enjoy; afﬁrm

the obligations of nations to ensure those rights by means of imple-

menting legislation; exhort governments to protect and promote

widely recognized rights; and pronounce the global community’s

condemnations and renunciations of wrongful practices. In the

words of Judge Bork: “Some deﬁne rights at so high a level of

generality or in terms so dependent for their meaning on particular

social, economic and political circumstances that they cannot be

construed and applied by courts acting in a traditional adjudicatory

manner.”

These norms and practices acquire the status of customary

“law of nations” only insofar as they ripen over time into settled

rules widely recognized and enforced by international agreements,

by judicial decisions, by the consistent usage and practice of states

and by the “general assent of civilized nations.”

But, because such customary principles and practices of

sovereign states do not derive and acquire the status of law from

the authoritative pronouncements of any particular deliberative

body, they generally do not create speciﬁc “causes of action” or a

self-executing right to sue entitling victims to institute litigation to

vindicate violations of international norms. As one court expressed

this point: “While it is demonstrably possible for nations to reach

some consensus on a binding set of principles, it is both unnecess-

ary and implausible to suppose that, with their multiplicity of

legal systems, these diverse nations should also be expected or

328 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

required to reach consensus on the types of actions that should

be made available in their respective courts to implement those

principles.”

Nonetheless, under Filartiga I [Filartiga v. Pena-Irala, 630 F.2d

876 (2d Cir. 1980)], certain wrongful conduct violates the law of

nations, and gives rise to a right to sue cognizable by exercise of

federal jurisdiction under the ATCA, when it offends norms that

have become well-established and universally recognized.

The Filartiga I court, however, did not explicitly address

whether the federal right of action it inferred existed under the

ATCA in fact derives from and is to be substantively adjudicated

by principles drawn from international law or from federal or

municipal law. Manifesting some ambiguity on this point, the

court construed the ATCA “not as granting new rights to aliens,

but simply as opening the federal courts for adjudication of the

rights already recognized by international law.” Rather, as stated

above, the Second Circuit directed that once federal jurisdiction is

properly exercised by means of the threshold determination that the

claimant has asserted a recognized violation of international law,

the rules of decision applicable to adjudication of the case must be

decided by a choice of law inquiry employing the considerations

set forth in [Lauritzen v. Larson, 345 U.S. 571 (1953)].

In his Tel-Oren concurrence, Judge Edwards endorsed the view

of the Second Circuit that ATCA itself creates a right to sue for

alleged violations of the law of nations. He voiced a reservation,

however, that the Filartiga I formulation “is not ﬂawless” and

recognized that the task the ruling entrusts to the district court at

the threshold jurisdictional ﬁnding is daunting. On this point, he

noted that the Filartiga I approach “places an awesome duty on

federal district courts to derive from an amorphous entity—i.e.,

the ‘law of nations’—standards of liability applicable in concrete

situations.”

The difﬁculty inherent in the Filartiga I charge is compounded

by the second phase of the inquiry the ruling mandates, that

of deciding the substantive standards to apply in evaluating

ATCA claims involving human rights abuses. The challenge has

engendered signiﬁcant conceptual division and divergent practices

among the courts that have addressed the question. In Tel-Oren,

Human Rights 329

for example, Judge Edwards suggested, as an alternative formula-

tion to the Filartiga I approach, that litigation may be brought

under ATCA asserting substantive rights of action deﬁned as com-

mon law torts, with the rules of decision supplied by domestic law

of the United States, as long as a violation of international law

is also alleged. The alternative also has been the subject of consid-

erable differences among the courts and has generated numerous

permutations and adaptations variously applying, as the basis of

substantive law in ATCA adjudications, rules of decision drawn

from: federal common law; the forum state; the foreign jurisdic-

tion most affected; international law; or a combination of these

sources. . . .

****

Just as the sources from which universal norms of international

conduct derive are often articulated as generalities or conclusory

precepts, equally so many principles of the organic law of sovereign

states are typically expressed in terms that are no less sweeping

nor any more self-executing. Pronouncements recognizing funda-

mental rights governing the state’s conduct in relation to its people

are not always accompanied by corresponding promulgations

of speciﬁc deﬁnitions and causes of action authorizing enforce-

ment through private suits. In consequence, in their assessments

of ATCA claims, courts looking to foreign municipal law are likely

to encounter common situations, as experienced in the cases

discussed above and by this Court in reviewing principles of

Zimbabwe law in the matter at hand, that raise signiﬁcant choice

of law impediments to the application of the ATCA and hinder

the furthering of the goals of international standards.

The municipal law, for example, may manifest general domestic

recognition of a fundamental norm without speciﬁcally elevating

it further into a deﬁned private right of action. Local rules may

also provide a remedy that may not sufﬁce to adequately highlight

and respond to the gravity of the conduct and the import of the

case. Or else the foreign law may contain no relevant decisional

rule at all. Or it may provide a standard that, if applied to adju-

dicate speciﬁc ATCA claims, would dispose of the case in a manner

that would defeat a remedy consistent with fostering the purposes

330 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

of federal and international law. As succinctly phrased by the

Xuncax court: “Simply put, municipal law is ill-tailored for

cases grounded on violations of the law of nations.” [886 F. Supp.

at 192.]

****

. . . [W]ell-established, universal, and obligatory norms deﬁn-

ing rules of international conduct, evolve by custom and usages

of nations over time. They are further elaborated by the works

of reputable jurists and scholars and settled through longstand-

ing practice and application in judicial decisions recognizing

and enforcing those rules. In consequence, because customary

international norms are not always ﬁxed in codiﬁcations or treaties,

not every nation will necessarily reﬂect clearly in its domestic

jurisprudence principles that manifest its unequivocal assent and

adherence to universal standards that may override municipal rules.

By the same token, under customary practice in many

global bodies, the declarations, resolutions and covenants that

embody international practices are adopted by consensus. This

procedure, while giving some legitimacy to the content of the

instrument as evidence of broad recognition, at times conceals

the degree of unstated reservations or dissent among regimes

that do not voice their objections and instead silently join the

consensus in response to the pushes and pulls of internal and

external social and political pressures. Accordingly, while it may

be expedient for a state to refrain from objecting to the inter-

national community’s promulgation of particular standards to

govern relations among nations and their subjects, its tacit accept-

ance does not always translate into enactment of correspond-

ing municipal law giving meaning and force to the generalities

articulated in the instruments with which the state publicly

associates itself.

Thus, a gap sometimes exists between the public concurrence

the state professes abroad to norms of international conduct in

their relations with the community of nations and the measures it

actually adopts at home to enable its people to realize the beneﬁts

of those universal rules. It is not uncommon in international

practice for states to pay lip-service homage to the promulgation

Human Rights 331

of particular international instruments, and even to ratify binding

covenants, but then delay or fail altogether to adopt the municipal

implementing legislation necessary to give the enunciated inter-

national rights meaningful domestic legitimacy and create an

effective national means to vindicate them.

For much of the same reasons, adjudication of claims that

assert violations of customary international law and seek to

vindicate universally recognized rights often engenders conceptual

anomalies between the gravity of the offenses, the high promise

conveyed in lofty terms by universally recognized rights, and

the limited scope of available municipal remedies. Human rights

offenses universally held to contravene the law of nations occupy

the low ground reserved by civilized people to rank the most

heinous of human behavior. Typically these wrongs are correspond-

ingly branded in language employing the most profound oppro-

brium, ﬁttingly portraying the depths of depravity the conduct

encompasses, the often countless toll of human suffering the

misdeeds inﬂict upon their victims, and the consequential disrup-

tion of the domestic and international order they produce. These

expressions mark the high stakes enshrined by universally outlawed

practices such as genocide; slavery; torture; summary execution;

forced disappearance; war crimes and crimes against humanity.

Between the horrid deeds these recognized atrocities proclaim,

and the ringing words and promises with which they are universally

condemned and renounced in solemn international instruments,

lies a reality: that extant municipal law may not be available or

may lag behind the need in providing adequate or readily accessible

remedies to redress universally recognized wrongs, and that not

infrequently, in the absence of any particular right of action

speciﬁcally deﬁned and promulgated to ﬁt the real wrongs at hand,

such means of relief as may exist are achieved only by Procrustean

analogies that do not always capture or do justice to the actual

grievousness associated with the offenses. . . .

****

In synthesis, the foregoing case law reﬂects the emergence of a

set of decisional rules federal courts have crafted to give scope and

content to the cause of action the ATCA creates as it relates to

332 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

international human rights law. Under these principles, as regards

to misconduct that violates universally recognized norms of inter-

national law, the cases suggest several standards to guide ATCA

choice of law determinations: (1) the local law of the state where

the wrongs and injuries occurred and the parties reside may be

relevant and may apply to resolve a particular issue insofar as it is

substantively consistent with federal common law principles and

international law and provides a remedy compatible with the

purposes of the ATCA and pertinent international norms; (2) in

the event the local law of the foreign state of the parties’ residence

and underlying events conﬂicts with federal or international law,

or does not provide an appropriate remedy, or is otherwise

inadequate to redress the international law violations in question,

a remedy may be fashioned from analogous principles derived

from federal law and the forum state, or from international law

embodied in federal common law; (3) should the application of

law from federal and forum state principles as to some aspect of

the claim defeat recovery, an analogous rule drawn from the

municipal law of the foreign jurisdiction may be applied to the

extent it supplies a basis for a decisional rule that may permit

relief; (4) if some part of the claim cannot be sustained as a violation

of international law, a remedy might be found by application of

the foreign state’s municipal law under the federal court’s pendent

jurisdiction if so invoked.

In essence, what these precedents represent is the natural evolu-

tion of common law, and the organic branching of federal substan-

tive rules through the ATCA, which “established a federal forum

where courts may fashion domestic common law remedies to give

effect to violations of customary international law.” This growth

of federal decisional law gives expression to the longstanding prin-

ciple that the law of nations has always been part of federal law.

As a body of federal law develops under this approach, so as

to give content to an ATCA right of action and thus ﬁll in the

interstices with federal decisional rules, the federal courts’ response

acquires the virtues of uniformity and recognition of more diverse

sources of substantive standards to draw upon in shaping remedies

for adjudication of ATCA claims. . . .

****

Human Rights 333

Having examined the pertinent provisions of the Zimbabwe

Constitution and relevant legal doctrine called to the Court’s

attention in Plaintiff’s submission, the Court is persuaded that this

authority, though not explicitly creating deﬁned causes of action

as to all claims, sufﬁciently proscribes wrongful conduct and pro-

tects substantive rights encompassing Plaintiffs’ claims asserting

(1) torture and extrajudicial killing, (2) cruel, inhuman or degrading

treatment, (3) denial of political rights, and (4) systematic racial

discrimination. The Court is not persuaded that a sufﬁcient basis

for recovery exists under international law for Plaintiffs’ claims

asserting uncompensated seizure of their property. However,

Plaintiffs have also sufﬁciently established legitimate grounds for

recovery on their expropriation claims under Zimbabwe law.

****

(2) Sarei v. Rio Tinto PLC

Residents of Papua New Guinea (“PNG”) brought a class

action under the Alien Tort Statute against the international

mining consortium Rio Tinto PLC alleging that the group’s

mining operations had destroyed their island’s environment,

harmed the health of the residents, and incited a civil war.

In July 2002, the U.S. District Court for the Central District

of California ruled on various motions by the defendants

to dismiss the complaint. Sarei v. Rio Tinto PLC, 221 F.

Supp. 2d 1116 (C.D. Cal. 2002). In November 2001, at the

request of the court for “the Department of State’s opinion

as to the effect, if any, that adjudication of this suit may have

on the foreign policy of the United States,” the United States

had ﬁled a Statement of Interest setting forth the Depart-

ment’s concerns that continued adjudication of the claims

“would risk a potentially serious adverse impact on the peace

process [in PNG], and hence on the conduct of our foreign

relations.” See Digest 2001 at 337–339.

The court concluded that the claims were non-justiciable

“political questions” and ordered their dismissal contingent

upon defendants’ written consent to have the action proceed

in the courts of Papua New Guinea. In a lengthy opinion,

334 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

however, it also addressed a number of other jurisdictional

matters, holding that the ATS confers jurisdiction and creates

an independent cause of action for violations of treaties and

the law of nations, including for violations of the law of war,

war crimes, and crimes against humanity; racial discrimin-

ation; and certain kinds of pollution in violation of the Law

of the Sea. It also determined that plaintiffs had failed to

establish a cause of action for harm to the environment and

the health of residents; that plaintiffs are not required under

the ATS to demonstrate that they have exhausted local

remedies or that doing so would be futile; and that the act of

state doctrine barred some but not all claims. It refused to

dismiss the claims on the basis of forum non conveniens.

Excerpts from the opinion follow (omitting citations and

footnotes).

****

In the context of actions arising under the Alien Tort Claims Act,

the jurisdictional issue is almost always intertwined with the merits

of plaintiffs’ claims. As the Second Circuit stated in Filartiga

v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), because the statute

requires, as a jurisdictional prerequisite, that plaintiffs allege a

violation of the law of nations, “[c]ourts have . . . engaged in a

more searching preliminary review of the merits than is required,

for example, under the more ﬂexible ‘arising under’ formulation.”

Id. at 887. See also Bigio v. Coca-Cola Co., 239 F.3d 440, 447

(2d Cir. 2000) (requiring that a plaintiff proceeding under the

Alien Tort Claims Act plead a violation of the law of nations as a

jurisdictional prerequisite, and noting that Filartiga distinguished

the Act, “with its jurisdictional pleading requirement, from gen-

eral federal question jurisdiction, which is ‘not defeated by the

possibility that the averments in the complaint may fail to state

a cause of action’”); Kadic v. Karadzic, 70 F.3d 232, 238 (2d

Cir. 1995) (“Because the Alien Tort Act requires that plaintiffs

plead a ‘violation of the law of nations’ at the jurisdictional

threshold, this statute requires a more searching review of the

merits to establish jurisdiction than is required under the more

Human Rights 335

ﬂexible ‘arising under’ formula of section 1331 [federal question

jurisdiction],’” quoting Filartiga, supra), cert. denied, 518 U.S.

1005, 116 S.Ct. 2524, 135 L.Ed.2d 1048 (1996); Amlon Metals,

Inc. v. FMC Corp., 775 F. Supp. 668, 671 (S.D.N.Y. 1991) (“When

considering Alien Tort Statute claims on a 12(b)(1) motion, courts

typically engage ‘in a more searching preliminary review of the

merits than is required, for example[,] under the more ﬂexible

arising under formulation,’” quoting Filartiga, supra....

****

Thus, for jurisdiction to lie under § 1350, plaintiffs must allege

facts sufﬁcient to establish that (1) they are aliens (2) suing for a

tort (3) that was committed in violation of the law of nations or a

treaty of the United States. See Kadic, supra, 70 F.3d at 238 (“. . . it

is not a sufﬁcient basis for jurisdiction to plead merely a colorable

violation of the law of nations. There is no federal subject-matter

jurisdiction under the Alien Tort Act unless the complaint ade-

quately pleads a violation of the law of nations (or treaty of the

United States)”); Beanal v. Freeport-McMoran, Inc., 197 F.3d

161, 164–65 (5th Cir. 1999) (“Section 1350 confers subject matter

jurisdiction when the following conditions are met; (1) an alien

sues, (2) for a tort, (3) that was committed in violation of the ‘law

of nations’ or a treaty of the United States. . . . Thus, the issue

before us is whether Beanal states claims upon which relief can be

granted for violations under the ‘law of nations,’ i.e., international

law”); Alvarez-Machain v. United States, 107 F.3d 696, 703 (9th

Cir. 1996) (“we have previously held that the ATCA has a

substantive as well as a jurisdictional component”); National

Coalition Gov’t of the Union of Burma v. Unocal, Inc. (“Unocal

II”), 176 F.R.D. 329, 344 (C.D. Cal. 1997).

****

To ascertain the content of the law of nations, courts consult

the works of jurists on public law, consider the general practice

of nations, and refer to court decisions that discuss and enforce

international law. See Beanal, supra, 197 F.3d at 165; Kadic, supra,

70 F.3d at 238; Siderman de Blake v. Republic of Argentina, 965

F.2d 699, 714 (9th Cir. 1992).

336 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Looking to such sources, the Ninth Circuit has held that the

ATCA “creates a cause of action for violations of speciﬁc, universal

and obligatory international human rights standards which

‘confer [ ] fundamental rights upon all people vis-a-vis their own

governments.’” Hilao II, supra, 25 F.3d at 1475 (quoting Filartiga,

supra, 630 F.2d at 885). See also Filartiga, supra, 630 F.2d at 888

(“It is only where the nations of the world have demonstrated that

the wrong is of mutual and not merely several, concern, by means

of express international accords, that a wrong generally recognized

becomes an international law violation within the meaning of

the [ATCA]”); Beanal, supra, 197 F.3d at 167 (same); Xuncax v.

Gramajo, 886 F. Supp. 162, 180 (D. Mass. 1995) (same); Amlon

Metals, supra, 775 F. Supp. at 671 (same). Cf. Guinto v. Marcos,

654 F. Supp. 276, 280 (S.D. Cal. 1986) (“violation of the First

Amendment right of free speech does not rise to the level of such

universally recognized rights and so does not constitute a ‘law of

nations’”).

In evaluating plaintiffs’ ATCA claims, therefore, the court

must consider: (1) whether they identify a speciﬁc, universal, and

obligatory norm of international law; (2) whether that norm is

recognized by the United States; and (3) whether they adequately

allege its violation. See Unocal II, supra, 176 F.R.D. at 345.

****

. . . On its face, the ATCA does not require exhaustion of local

remedies; it simply provides that “district courts shall have original

jurisdiction of any civil action by an alien for a tort only, committed

in violation of the law of nations or a treaty of the United States.”

28 U.S.C. § 1350. As plaintiffs note, no court has imposed an

exhaustion requirement in a case brought exclusively under the

ATCA. Rather, all alien tort actions in which exhaustion of

remedies has been addressed have involved claims pleaded under

the TVPA. . . .

The court is not persuaded that Congress’ decision to include

an exhaustion of remedies provision in the TVPA indicates that a

parallel requirement must be read into the ATCA. . . .

****

Human Rights 337

. . . As a matter of statutory construction, therefore, the

court declines to ﬁnd that ATCA plaintiffs must exhaust national

remedies before ﬁling suit in the United States. . . .

****

Because it is a creature of domestic law, the ATCA need

not impose the same conditions on a plaintiff’s right to sue as

international law or the domestic law of other nations. Accordingly,

the court ﬁnds that plaintiffs are not required to demonstrate that

they have exhausted local remedies, or that doing so would be

futile, in order to state a claim under the ATCA.

****

Courts have held that a violation of the law of war may serve

as a basis for a claim under the ATCA. See Kadic, supra, 70 F.3d

at 242–43 (“Plaintiffs also contend that the acts of murder, rape,

torture, and arbitrary detention of civilians, committed in the

course of hostilities, violate the law of war. Atrocities of the types

alleged here have long been recognized in international law as

violations of the law of war. . . . The District Court has jurisdiction

pursuant to the Alien Tort Act over appellants’ claims of war

crimes and other violations of international humanitarian law”);

Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 444–45

(D.N.J. 1999) (concluding that plaintiff had stated a claim under

the ATCA since “deportation of civilian populations to slave labor

is a war crime”); Jane Doe I v. Islamic Salvation Front (FIS), 993

F. Supp. 3, 8 (D.D.C. 1998) (ﬁnding jurisdiction under the ATCA

for alleged war crimes because the Geneva Conventions, which

apply to “armed conﬂict[s] not of an international character,”

require that civilians be “treated humanely” and prohibit “murder

of all kinds, mutilation, cruel treatment and torture, kidnapping

and summary executions”). See also Corporate Liability for

Violations of International Human Rights Law, 114 HARV. L.

REV.2025, 2037 (2001) (“[I]f a corporation commits piracy, slave

trading, genocide, or war crimes, then it may be held liable under

the ATCA even absent state action”); RESTATEMENT, § 404

(“A state has jurisdiction to deﬁne and prescribe punishment for

certain offenses recognized by the community of nations as of

338 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

universal concern, such as . . . war crimes, . . . even where [no other

basis of jurisdiction] is present”).

****

Despite defendants’ arguments to the contrary, the court concludes

that plaintiffs’ allegations regarding the decade-long civil war in

Bougainville adequately plead the existence of an “armed conﬂict

not of an international character.” Because they were engaged in

such a conﬂict, the parties to the struggle—the PNGDF and the

BRA—had an obligation to treat civilians humanely. Alleging that

defendants intentionally denied civilians medical treatment and

supplies through the imposition of a medical blockade adequately

pleads “cruel treatment” and an “outrage[ ] upon personal dignity”

within the meaning of the treaty. It also adequately pleads a

violation of the requirement that “[t]he wounded and sick . . . be

collected and cared for.”

****

Plaintiffs further contended that a private entity could be

held vicariously liable under the ATS if it participated or

cooperated in, approved of, or accepted the economic

beneﬁts of a state’s international law violations. Relying on

Doe v. Unocal Corp., 110 F. Supp. 2d 1294 (C.D. Cal. 2000),

the court concluded that, if proved, the facts alleged by

plaintiffs were sufﬁcient to permit a jury to ﬁnd that the acts

of PNG were “fairly attributable” to Rio Tinto, that it had

been a “willful participant” in those acts, and/or that it had

exercised “control” over them. The allegations of war crimes

and crimes against humanity were thus deemed sufﬁcient

to state a claim and confer jurisdiction under the ATCA.

It also sustained, against the motion to dismiss, the

claim of racial discrimination, stating that “a claim under

the ATCA may be based on the violation of a jus cogens norm

such as racial discrimination.” 221 F. Supp. 2d at 1153. Such

a claim must, however, be based on allegations of “state

action.” In this case, the court determined that the factual

allegations that defendants had operated the mine as joint

Human Rights 339

venture partners with local government authorities was

sufﬁcient to demonstrate joint action and therefore state

action. Id.

With respect to the claims of environmental harms,

the court said that plaintiffs had failed to demonstrate that

human rights deprivations caused by environmental degrada-

tion breached a “speciﬁc, universal and obligatory norm of

international law” as required under the statute. Id. at 1160.

It made a similar ﬁnding with respect to alleged violations of

the principle of sustainable development.

The court reached a contrary conclusion, however, with

regard to the allegations of violations of the United Nations

Convention on the Law of the Sea (“UNCLOS”). Noting

that the complaint alleged that defendant had chemically

defoliated, bulldozed, and sluiced off an entire mountainside

of pristine rain forest, in effect dumping billions of tons of

toxic mine waste into “pristine waters,” and polluting a major

bay dozens of miles away, and the Paciﬁc Ocean as well, the

court concluded that plaintiffs had adequately stated a claim

for violation of the customary international law reﬂected in

UNCLOS.

With respect to forum non conveniens, the court

determined that while defendants had met their burden of

demonstrating that PNG would be an adequate forum for

adjudication of these claims, it would nonetheless deny the

motion to dismiss “because the court ﬁnds that the private

interests favor retaining jurisdiction, and the public interests

are neutral. . . . The court believes such a result is particularly

appropriate given that the case is brought under the ATCA

and alleges violations of international law. See Wiwa, supra,

226 F.3d at 108 (holding that “the policy expressed in the

TVPA favoring adjudication of claims in violation of inter-

national prohibitions on torture” weighed against dismissing

the action on forum on conveniens grounds”).

With respect to defendants’ arguments that the claims

were “nonjusticiable,” the court ﬁrst considered the act of

state doctrine, taking note of the U.S. Statement of Interest

ﬁled November 2001 (Digest 2001 at 337–339). It determined

340 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

that plaintiffs’ environmental tort and racial discrimina-

tion claims were barred by that doctrine because, if it were

to conclude that Rio Tinto had been a “state actor,” it would

also have to conclude that the ofﬁcial acts of the government

were invalid as well. By contrast, the alleged acts of torture,

pillage, and illegitimate warfare attributed to the PNG defense

forces could not be considered ofﬁcial acts of state.

Finally, the court determined that the political-question

doctrine barred all of the plaintiffs’ claims.

****

The political question doctrine employs separation of powers

principles to restrict the justiciability of certain issues.” See Custer

County Action Association v. Garvey, 256 F.3d 1024, 1031 (10th

Cir.2001). See also Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct.

691, 7 L.Ed.2d 663 (1962) (“[I]t is the relationship between the

judiciary and the coordinate branches of the Federal Government,

and not the federal judiciary’s relationship to the States, which

gives rise to the ‘political question’ ”); Marbury v. Madison, 5

U.S. (1 Cranch) 137, 164–66, 2 L.Ed. 60 (1803) (“Questions, in

their nature political . . . can never be made in this court”). Most

often, the doctrine is invoked in matters involving the foreign

relations of the United States. See Oetjen, supra, 246 U.S. at 302,

38 S.Ct. 309; Kadic, supra, 70 F.3d at 248–49 (“We do not read

Filartiga to mean that the federal judiciary must always act in

ways that risk signiﬁcant interference with United States foreign

relations. To the contrary, we recognize that suits of this nature

can present difﬁculties that implicate sensitive matters of diplomacy

historically reserved to the jurisdiction of the political branches”);

Tel-Oren, supra, 726 F.2d at 803 (“Questions touching on the

foreign relations of the United States make up what is likely the

largest class of questions to which the political question doctrine

has been applied”).

Not every case implicating United States foreign relations

involves a non-justiciable political question, however. See, e.g.,

Kadic, supra, 70 F.3d at 249 (“Although these cases present issues

that arise in a politically charged context, that does not transform

Human Rights 341

them into cases involving nonjusticiable political questions. The

doctrine is one of political questions, not one of political cases”

(internal citations omitted) ); Klinghoffer v. S.N.C. Achille Lauro,

937 F.2d 44, 49 (2d Cir.1991) (“The fact that the issues . . . arise

in a politically charged context does not convert what is essentially

an ordinary tort suit into a non-justiciable political question. . . .

[B]ecause the common law of tort provides clear and well-settled

rules on which the district court can easily rely, this case does not

require the court to render a decision in the absence of ‘judicially

discoverable and manageable standards’ ”).

To determine whether plaintiffs’ claims raise a political

question, the court must consider the following factors: “(1) the

existence of any textually demonstrable constitutional commitment

of the issue to a coordinate political department; . . . (2) a lack of

judicially discoverable and manageable standards for resolving

the claims; . . . (3) the impossibility of deciding without an initial,

nonjudicial, policy determination; . . . (4) the impossibility of a

court’s undertaking independent resolution without expressing

lack of the respect for the coordinate branches of government; . . .

(5) an unusual need for unquestioning adherence to a political

decision already made; [and] (6) the potentiality of embarrassment

from multifarious pronouncements by various departments on

one question.” Baker, supra, 369 U.S. at 217, 82 S.Ct. 691. If

any one of these factors is “inextricabl[y]” involved in the case,

the political question doctrine applies, and the court should dismiss

the claims. See id.

****

. . . [T]he fact that Congress enacted 28 U.S.C. § 1350, which

provides that federal courts “shall” have jurisdiction over claims

within its ambit, does not speak to the applicability of the political

question doctrine. “Just as ‘Congress may not confer jurisdiction

on Art. III federal courts to render advisory opinions, or to entertain

friendly suits,’ it may not require courts ‘to resolve political

questions,’ because suits of this character are inconsistent with the

judicial function under Art. III.” 767 Third Avenue Associates,

supra, 218 F.3d at 164. . . .

****

342 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Consequently, it is appropriate to evaluate whether defendants

have met their burden of demonstrating the applicability of the

doctrine in this case. As an initial matter, the court notes that the

same separation of powers principles that inform the act of state

doctrine underlie the political question doctrine. See Banco

Nacional de Cuba, supra, 406 U.S. at 785–93, 92 S.Ct. 1808

(Brennan, J., dissenting) (noting that the act of state doctrine,

as articulated in Sabbatino, is equivalent to the political question

doctrine); Trajano v. Marcos, Nos. 86–2448, 86–15039, 1989

WL 76894, *2 (9th Cir. July 10, 1989) (Unpub.Disp.) (“The act

of state doctrine is the foreign relations equivalent of the political

question doctrine”). See also Credit Suisse, supra, 130 F.3d at

1346; Tel-Oren, supra, 726 F.2d at 803. Accordingly, the analysis

set forth in the preceding section argues in favor of dismissal on

political question grounds as well.

The court has also considered the Baker v. Carr factors, and

ﬁnds that they support invocation of the political question doctrine.

Since at least 1998, the executive branch has stated its support for

the PNG government, and for PNG’s efforts to negotiate a peace

agreement resolving the Bougainville conﬂict. On her trip to the

region in 1998, Secretary of State Albright promised “that America

[would] do all it [could] to help” the PNG government resolve the

civil war in Bougainville. More recently, in the Statement of Interest

that it ﬁled with this court, the executive branch reiterated its

commitment to peace in Bougainville, and speciﬁcally to the peace

accord that has been negotiated, inter alia, by PNG. It opined that

continued adjudication of this lawsuit could negatively impact the

peace process, and that the success of that process is an important

United States foreign policy objective. Were the court to ignore

this statement position, deny the motion to dismiss, and retain

jurisdiction over this action, it would surely “express[ ] lack of

the respect for the coordinate branches of government,” and

cause “the potentiality of embarrassment from multifarious pro-

nouncements by various departments on one question.” Baker,

supra, 369 U.S. at 217, 82 S.Ct. 691.

Stated otherwise, continued adjudication of this lawsuit

implicates the fourth and sixth Baker factors, which factors warrant

invocation of the political question doctrine. See In re Nazi Era

Human Rights 343

Cases Against German Defendants Litigation, 129 F. Supp. 2d

370, 382 (D.N.J. 2001) (“While the policy interests articulated in

the Statement of Interest do not in and of themselves provide an

independent legal basis for dismissal, the long-standing foreign

policy commitment to resolving claims arising out of World War

II and the Holocaust at a governmental level does provide such a

basis. If the Court were to allow this action to continue, it would

run afoul of the political question doctrine as articulated in Baker.

Without addressing all six Baker factors, prominent on the surface

of this case are the fourth factor and the sixth factor, namely the

impossibility of this Court’s undertaking independent resolution

without expressing lack of respect due coordinate branches of

government, and the potentiality of embarrassment to our country

from multifarious pronouncements by various departments on

one question”). See also Kadic, supra, 70 F.3d at 249 (“The fourth

through sixth Baker factors appear to be relevant only if judicial

resolution of a question would contradict prior decisions taken by

a political branch in those limited contexts where such contra-

diction would seriously interfere with important governmental

interests”).

****

(3) Doe v. Unocal

In the fall of 1996, villagers from the Tenasserim region

of Myanmar (Burma) sued the Myanmar government,

its government-owned oil company, the French company

Total S.A., and Unocal (a U.S. company) under the Alien

Tort Statute and the Racketeer Inﬂuenced and Corrupt

Organizations Act (“RICO”) alleging liability for international

human rights violations perpetrated by the Myanmar military

in furtherance of the construction of an oil pipeline in

the Yadana Field. Following dismissal of the actions against

the foreign government and the French company, a federal

district court granted Unocal’s motion for summary judg-

ment, holding that it could not be held liable for the Myanmar

Government’s use of forced labor and that there was

344 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

insufﬁcient evidence that the company knew that forced or

slave labor was in fact being used. Doe I v. Unocal Corp.,

110 F. Supp. 2d 1294 (C.D. Cal. 2000). On September 18,

2002, the Court of Appeals for the Ninth Circuit reversed

that decision in part and remanded the case to the dis-

trict court for further proceedings. Doe I v. Unocal, 2002 U.S.

App. LEXIS 19263 (9

Cir. 2002). That decision addressed

a number of signiﬁcant issues, including jurisdiction over

claims for forced labor and slavery, the “state action” require-

ment, and the standard for holding corporate actors liable

for “aiding and abetting” others in the commission of human

rights violations. However, in February 2003 the Ninth Circuit

Court of Appeals granted a motion for rehearing en banc.

Doe I v. Unocal, 2003 U.S. App. LEXIS 2716 (9

Cir. 2003).

Accordingly, the previous opinion of the Ninth Circuit panel

may not be cited as precedent within the Ninth Circuit (except

as it may subsequently be adopted following rehearing) and

is not reproduced here.

(4) Flores v. Southern Peru Copper Corp.

Eight residents of Peru sued an American company alleging

that pollution from the company’s mining and reﬁnery

operations in and around Ilo, Peru, had caused their asthma

and lung disease. Plaintiffs claimed that defendant’s “acts of

egregious pollution violated their rights to life, health, and

sustainable development.” The U.S. District Court for the

Southern District of New York dismissed the complaint,

Flores v. Southern Peru Copper Corporation, 253 F.Supp.2d 510

(S.D.N.Y. 2002). Excerpts from the opinion are set forth

below (footnotes and citations have been omitted).

****

. . . [P]laintiffs have not demonstrated that high levels of

environmental pollution, causing harm to human life, health, and

sustainable development within a nation’s borders, violate any

Human Rights 345

well-established rules of customary international law. While nations

may generally agree that human life, health, and sustainable

development are valuable and should be respected, and while

there may be growing international concern over the impact

of environmental pollution on humanity, plaintiffs have not

demonstrated any general consensus among nations that a high

level of pollution, causing harm to humans, is universally

unacceptable.

****

. . . If anything, nations generally agree that the appropri-

ate balance between economic development and environmental

protection is a matter that may be determined by each nation with

respect to the land within its borders. . . .

****

. . . Since I ﬁnd no prohibition under international law dealing

with environmental conduct within a nation’s borders, I need not

decide whether such a prohibition would apply to private actors

as well as state actors, nor need I decide whether plaintiffs have

alleged sufﬁcient facts to support a ﬁnding that Southern Peru was

a state actor. Defendant’s motion to dismiss for lack of federal

subject matter jurisdiction and failure to state a claim is granted.

****

(5) Abdullahi v. Pﬁzer, Inc.

Nigerian citizens brought an action under the Alien Tort

Statute against the pharmaceutical company Pﬁzer, Inc., to

recover damages for grave injuries allegedly suffered as a

result of the administration of an experimental antibiotic

(“Trovaﬂozacin Mesylate”) used to combat outbreaks of

bacterial meningitis, measles, and cholera in Kano in northern

Nigeria. They alleged violations, inter alia, of the Nuremberg

Code, the Helsinki Declaration, the International Covenant

on Civil and Political Rights, and customary international

law. On motions to dismiss for failure to state a claim, and

346 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

for forum non conveniens, the U.S. District Court for the

Southern District of New York held that, even though the

Covenant is a non-self-executing treaty and therefore cannot

itself give rise to a private right of action, it was sufﬁcient

for plaintiffs to refer to that treaty, and the other named

international instruments, in framing their complaint. “[T]his

Court has jurisdiction over this action so long as plaintiffs

can allege an international law violation as evidenced by

principles of those agreements. . . .” Abdullahi v. Pﬁzer, Inc.,

2002 U.S. Dist. LEXIS 17436 (S.D.N.Y. 2002), at 4. While the

court also held that the conduct in question “does not

constitute an international law violation for which a private

party may be held liable,” it concluded that Pﬁzer and the

former Nigerian government were “joint participants” in

the acts at issue, so that plaintiffs had adequately alleged

that Pﬁzer acted as a “state actor” for purposes of stating

a claim under the Alien Tort Statute. Applying the doctrine

of forum non conveniens, the court conditionally dismissed

the complaint in light of its determination that the courts in

Kano could serve as an acceptable alternative forum and

Pﬁzer’s undertaking that it was “amenable to process” there.

(6) Other Cases

(i) As discussed in Digest 2001, 326–334, on October 25,

2001, the United States requested rehearing and rehearing

en banc in Alvarez-Machain v. United States of America, 266

F.3d 1045 (9

Cir. 2001), which held that Dr. Alvarez-Machain

could sue the United States for false arrest and that his

transborder arrest was actionable under the ATS. In 2002

the U.S. Court of Appeals for the Ninth Circuit granted

rehearing en banc. See Alvarez-Machain v. United States, 284

F.3d 1039 (9

Cir. 2002).

(ii) Four refugees from Bosnia-Herzegovina brought an

action for torture, cruel, inhuman or degrading treatment,

arbitrary detention, war crimes, crimes against humanity,

genocide, and various torts under Georgia law against a

Human Rights 347

former Bosnian soldier who allegedly committed acts of

brutality against them in detention facilities during the “ethnic

cleansing” campaign directed against Bosnia’s non-Serb

population. When defendant failed to appear, and following

a bench trial, the district court entered judgment in favor of

plaintiffs for compensatory and punitive damages in the

amount of $140 million. Mehinovic v. Vuckovic, 198 F. Supp. 2d

1322 (N.D. Ga. 2002). Excerpts below from the accompanying

opinion of the court and ﬁnding of facts provide the court’s

analysis of its jurisdiction over each of the claims under the

ATS and TVPA, including defendant’s liability for “aiding

and abetting” others for committing acts in violation of

international law.

****

Plaintiffs have shown, as to each of them individually, that defend-

ant Vuckovic committed the following violations of customary

international law, which confer jurisdiction, and establish liability,

under the ATCA: torture; cruel, inhuman or degrading treatment;

arbitrary detention; war crimes; and crimes against humanity.

****

. . . Plaintiffs have demonstrated that Vuckovic acted in concert

with others in committing many of the abuses suffered by plaintiffs.

****

United States courts have recognized that principles of accomplice

liability apply under the ATCA to those who assist others in the

commission of torts that violate customary international law.

Similarly, the Senate report on the TVPA notes that that statute is

intended to apply to those who “ordered, abetted, or assisted” in

the violation. Principles of accomplice liability are well-established

under international law. Relevant international conventions ex-

plicitly provide that those who assist in the commission of acts

prohibited by international law may be held individually respons-

ible. Article 7(1) of the ICTY Statute, for example, states that “[a]

person who planned, instigated, ordered, committed or otherwise

348 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

aided and abetted in the planning, preparation or execution of a

crime referred to in Articles 2 to 5 of the present statute [grave

breaches of the Geneva Conventions of 1949, violations of laws

or customs of war, genocide or crimes against humanity] shall be

individually responsible for the crime.”

****

The evidence demonstrated that Vuckovic not only participated

directly in committing human rights violations against the plaintiffs

and others detained with them, but also that the defendant actively

encouraged, aided, and even supervised the commission of human

rights abuses by other guards at the detention facilities at which

the plaintiffs were held. By his actions and words, Vuckovic asso-

ciated himself with the brutality of other guards who also violated

the plaintiffs’ rights and caused them serious injuries. Vuckovic is

also responsible for the actions of his associates. Id. 1344–45,

1355–1356

****

(iii) The survivors of three American nuns and one layperson

who were abducted, tortured and murdered in El Salvador

by ﬁve members of the Salvadoran national guard, brought

suit under the Torture Victims Protection Act against the

former director of the national guard and the former defense

minister. In afﬁrming a jury verdict and judgment in favor

of the defendants, the Court of Appeals for the Eleventh

Circuit addressed, as a case of ﬁrst impression, the issue

of command responsibility as a basis for liability under the

TVPA. Ford v. Garcia, 289 F.3d 1283 (11

Cir. 2002). Footnotes

and citations have been omitted from the excerpts provided

below.

****

The essential elements of liability under the command responsibility

doctrine are: (1) the existence of a superior-subordinate relation-

ship between the commander and the perpetrator of the crime;

Human Rights 349

(2) that the commander knew or should have known, owing to

the circumstances at the time, that his subordinates had com-

mitted, were committing, or planned to commit acts violative of

the law of war; and (3) that the commander failed to prevent the

commission of the crimes, or failed to punish the subordinates

after the commission of the crimes. Although the TVPA does not

explicitly provide for liability of commanders for human rights

violations of their troops, legislative history makes clear that

Congress intended to adopt the doctrine of command responsibility

from international law as part of the Act. Speciﬁcally identiﬁed in

the Senate report is In re Yamashita, 327 U.S. 1, 66 S.Ct. 340, 90

L.Ed. 499 (1946), a World War II era case involving the command

responsibility doctrine in habeas review of the conviction of a

Japanese commander in the Philippines by an American military

tribunal. See S. Rep. No. 102–249, at 9 (1991). Describing

Yamashita’s holding, the Senate Report stated that the Supreme

Court found a foreign general “responsible for a pervasive pattern

of war crimes (1) committed by his ofﬁcers when (2) he knew or

should have known they were going on but (3) failed to prevent

or punish them.” Id. In the years since Yamashita and the passage

of the TVPA, the International Criminal Tribunals for the Former

Yugoslavia and Rwanda have been established, and their statutes

contain language providing for imposition of command re-

sponsibility on substantively identical grounds to those enunciated

in Yamashita. ...

****

...In re Yamashita did not explicitly address the allocation of the

burdens on the elements of command responsibility. Nor is there

any indication that the Court there ever considered how to allo-

cate the burdens of production or persuasion in future command

responsibility trials. . . .

The recently constituted international tribunals of Rwanda and

the former Yugoslavia have applied the doctrine of command

responsibility since In re Yamashita, and therefore their cases

provide insight into how the doctrine should be applied in TVPA

cases. Recent international cases consistently have found that

effective control of a commander over his troops is required

350 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

before liability will be imposed under the command responsibility

doctrine. The consensus is that “[t]he concept of effective control

over a subordinate in the sense of a material ability to prevent

or punish criminal conduct, however that control is exercised is

the threshold to be reached in establishing a superior-subordinate

relationship. . . .” Prosecutor v. Delalic (Appeals Chamber ICTY,

Feb. 20, 2001) ¶ 256; accord id. at ¶ 266; Prosecutor v. Aleksovski,

Judgment (Appeals Chamber ICTY, March 24, 2000) ¶ 76; Pro-

secutor v. Blaskic, Judgment (Trial Chamber ICTY, March 3,

2000) ¶ ¶ 295, 302 (“Proof is required that the superior has

effective control over the persons committing the violations of

international humanitarian law in question, that is, has the mater-

ial ability to prevent the crimes and to punish the perpetrators

thereof.”); Prosecutor v. Kayishema, Judgment (Trial Chamber

ICTR, May 21, 1999) ¶ 229 (stating that the “material ability to

control the actions of subordinates is the touchstone of individual

responsibility under Article 6(3)”); Prosecutor v. Delalic, Judgment

(Trial Chamber ICTY, Nov. 16, 1998) ¶ ¶ 377, 378; Prosecutor

v. Akayesu, Judgment (Trial Chamber ICTR, Sept. 2, 1998)

¶ 491. Many of these cases dealt with the situation converse to

the one presented here, i.e., where a superior without de jure

command was accused of having de facto control over the guilty

troops. These cases emphasize, nonetheless, that the command

responsibility theory of liability is premised on the actual ability

of a superior to control his troops. A reading of the cases suggests

that a showing of the defendant’s actual ability to control the

guilty troops is required as part of the plaintiff’s burden under the

superior-subordinate prong of command responsibility, whether

the plaintiff attempts to assert liability under a theory of de facto

or de jure authority. Prosecutor v. Delalic (Appeals Chamber ICTY,

Feb. 20, 2001) ¶ 196 (“Effective control has been accepted,

including in the jurisprudence of the Tribunal, as a standard for

the purposes of determining superior responsibility. ...The

showing of effective control is required in cases involving both

de jure and de facto superiors.”). Explaining the difference in

application of this requirement in de jure and de facto cases, the

same tribunal announced, “In general, the possession of de jure

power in itself may not sufﬁce for the ﬁnding of command

Human Rights 351

responsibility if it does not manifest in effective control, although

a court may presume that possession of such power prima facie

results in effective control unless proof to the contrary is produced.”

Id. at ¶ 197.

Notably, the tribunal said that de jure authority over the guilty

troops results in only a presumption of effective control. In other

contexts, this court has held that a presumption shifts the burden

of production with respect to the element it concerns, but not the

burden of persuasion. . . . Put another way, Delalic indicates that

de jure authority of a commander over the troops who perpetrated

the underlying crime is prima facie evidence of effective control,

which accordingly can be rebutted only by the defense putting

forth evidence to the ﬁnder of fact that the defendant lacked this

effective control. . . . Thus, although we do not decide the issue,

we note that nowhere in any international tribunal decision have

we found any indication that the ultimate burden of persuasion

shifts on this issue when the prosecutor—or in TVPA cases, the

plaintiff shows that the defendant possessed de jure power over

the guilty troops.

To the contrary, Delalic provides a strong suggestion that it is

the plaintiff who must establish, in all command responsibility

cases, that the defendant had effective control over his troops.

That a de jure commander bears the burden of production on this

issue does not affect the ultimate jury instruction that should be

given. . . .

****

b. Liability for indirect participation in human rights abuses

(1) In Cabello Barrueto v. Fernández Larios, 205 F. Supp. 2d

1325 (S.D.N.Y. 2002), the district court held that a former

Chilean military ofﬁcer could be held civilly liable for damages

under the ATS for conspiring or aiding in acts of other Chilean

ofﬁcials, even if he did not actually kill the individual con-

cerned, since “principles of conspiracy and accomplice liability

are well established in customary international law.” The

complaint asserted claims of extrajudicial killing, torture,

352 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

crimes against humanity, and cruel, inhuman, or degrading

treatment or punishment.

(2) In Wiwa v. Royal Dutch Petroleum Company and Shell

Transport and Trading Company, p.l.c., 2002 U.S. Dist. LEXIS

3293 (S.D.N.Y. 2002), plaintiffs brought an action under the

ATS against two European companies for alleged violations

of human rights in connection with the Nigerian govern-

ment’s activities in the Ogoni region of Nigeria during the

1990s. Speciﬁcally, they alleged that defendants had recruited

the Nigerian police and military to suppress the Movement

for the Survival of the Ogoni people (“MOSOP”), of which

Ken Saro-Wiwa and John Kpuinen were leaders, and pro-

vided logistical support, transportation, and weapons for

that purpose. Because of MOSOP’s opposition to Shell’s

oil-excavation activities, Ogoni residents were beaten, raped,

shot, or killed. Saro-Wiwa and Kpuinen were hanged in 1995

after conviction for murder by a military tribunal. Plaintiffs

included the executors and administrators of their estates.

An earlier decision by the federal district court dismis-

sing the complaint on grounds of forum non conveniens was

reversed by the Court of Appeals for the Second Circuit.

Wiwa v. Royal Dutch Petroleum Company, 226 F.3d 88 (2d

Cir. 2000). Following remand, the district court considered

and rejected various motions to dismiss, including defend-

ants’ arguments that claims under the TVPA preempt similar

claims under the ATS and their challenges to the sufﬁciency

of plaintiffs’ pleadings in respect of torture, summary ex-

ecution, arbitrary detention; cruel, inhuman or degrading

treatment; crimes against humanity; and the rights to life,

liberty, personal security, peaceful assembly, and expression.

With regard to the liability of private actors under the ATS

and TVPA, the court addressed the issues of “state action”

and corporate liability for governmental actions, set forth in

excerpts below.

****

The ACTA and TVPA have similar, albeit not identical, state

action requirements. Statutory language makes clear that all

Human Rights 353

claims brought under the TVPA must demonstrate that the alleged

violations were perpetrated “under actual or apparent authority,

or color of law, of any foreign nation.” 28 U.S.C. § 1350, note,

§ 2(a). . . .

The ACTA’s state action requirement is deﬁned by precedent

and is more complex. In Kadic I, the Second Circuit described

three categories of international law violations: “(a) genocide,

(b) war crimes, and (c) other instances of inﬂicting death, torture,

and degrading treatment.” Kadic I, 70 F.3d at 241. With respect

to the ﬁrst two categories, the Kadic I court held that individuals

could be held liable for these torts without any showing of state

action. Id. at 241–42, 244. With respect to the third category, the

appeals court held that “torture and summary execution—when

not perpetrated in the course of genocide or war crimes—are

proscribed by international law only when committed by the state

ofﬁcials or under color of law.” Id. at 243. This limitation is not

absolute. Language used by the Kadic I Court did not entirely

foreclose the possibility that individuals could be held liable

for “other instances of inﬂicting death, torture, and degrading

treatment” without a showing of state action.

Plaintiffs argue that the alleged “crimes against humanity”

committed by defendants do not require a showing of state action

because the alleged crimes ﬁt into the narrow category of “death,

torture, and degrading treatment” that, under Kadic I, does not

require a showing of state action. The Kadic I court did not,

however, give any examples of “crimes against humanity” that

would fall into the third category but not require a showing of

state action. I conclude that none of the crimes plaintiffs allege in

the instant case plausibly ﬁt into that category. Indeed, the crimes

against humanity plaintiffs allege—summary execution, arbitrary

imprisonment, and persecution of a group based on political

grounds—all fall squarely within the category of international law

violations that require a showing of state action, pursuant to Kadic

I. Id. at 243 (“[T]orture and summary execution—when not

perpetrated in the course of genocide or war crimes—are proscribed

by international law only when committed by state ofﬁcials or

under color of law.”) It would not be reasonable for a claimant to

be required to plead state action to assert a claim for summary

execution or torture, but not to be required to plead state action

354 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

to assert a lesser crime such as assault, arbitrary detention, or

political persecution.

For these reasons, the Court concludes that plaintiffs must

demonstrate state action in order to proceed with their ATCA and

TVPA claims.

To determine whether a private actor acts under color of law

in the context of a claim under ATCA and the TVPA, the Court

must look to the standards developed under 42 U.S.C. § 1983. “A

private individual acts under color of law within the meaning of

section 1983 when he acts together with state ofﬁcials or with

signiﬁcant state aid.” Id. The relevant test in this case is the “joint

action” test, under which private actors are considered state actors

if they are “willful participant[s] in joint action with the State or

its agents.” ...

In order to meet this burden in the instant case, plaintiffs have

presented two theories of “joint action” that would satisfy the

state action requirement. First, they contend that the facts alleged

demonstrate a substantial degree of cooperative action between

corporate defendants and the Nigerian government in the alleged

violations of international law. Second, they argue that the facts

demonstrate that Shell Nigeria and the Nigerian government

engaged in signiﬁcant cooperative action that violated plaintiffs’

rights, and that corporate defendants had sufﬁcient knowledge of

this conduct that they may be held liable for Shell Nigeria’s

conduct. The Court ﬁnds that plaintiffs have pled facts that support

their ﬁrst theory of “joint action” and have therefore demonstrated

that corporate defendants acted under color of law in the com-

mission of acts alleged by plaintiffs to have violated international

law. The Court need not consider plaintiffs’ second theory of state

action.

In their Amended Complaint, plaintiffs allege various acts

that, if proven, would demonstrate “a substantial degree of co-

operative action between” corporate defendants and Nigerian

ofﬁcials in conduct that violated plaintiffs’ rights. . . . Plaintiffs’

allegations sufﬁce to support a claim that defendants were “will-

ful participant[s] in joint action with the state or its agents,” and

can hence be treated as state actors for the purpose of the

ACTA.

Human Rights 355

Defendants argue that plaintiffs must demonstrate that Royal /

Dutch Shell acted in concert with the Nigerian government with

respect to each human rights violations allegedly committed against

each plaintiff, and have failed to do so in their Amended Complaint.

The Court disagrees for three reasons. First, plaintiffs have alleged

that defendants jointly collaborated with the Nigerian government

in committing several of the claimed violations of international

law, such as planning the arbitrary arrest and killing of Ken

Saro-Wiwa and John Kpuinen, the attempted bribery of Owens

Wiwa, and bribery (or attempted bribery) of witnesses to give

false testimony against Saro-Wiwa. Second, under section 1983

jurisprudence, individuals engaged in a conspiracy with government

actors to deprive others of their constitutional rights act “under

color of law” to commit those violations. . . . Section 1983 case

law does not require plaintiffs’ complaint to allege that private

actors and state actors acted in concert to commit each speciﬁc act

that violates plaintiffs’ rights. . . . Third, Rule 8(a)(2) of the Federal

Rules of Civil Procedure requires a complaint to include only “a

short and plain statement of the claim showing that the pleader

is entitled to relief.” . . . Rather, plaintiffs are required to pro-

vide “a short and plain statement of the claim that will give the

defendant fair notice of what the plaintiff’s claim is and the grounds

upon which it rests.” Id. The allegations in the Amended Complaint

concerning the joint conduct of defendants and the Nigerian

government are sufﬁcient to satisfy Rule 8(a)(2), and therefore to

survive a challenge pursuant to Rule 12.

****

See also, Doe v. Unocal, G.3.a.(3); Sarei v. Rio Tinto PLC,

G.3.a.(2); and Abdullahi v. Pﬁzer, Inc., G.3.a.(5).

c. Forum non conveniens

(1) In Aguinda v. Texaco, Inc., 303 F.3d 470 (2

Cir. 2002),

the Second Circuit Court of Appeals afﬁrmed the dismissal

of two class actions against Texaco, Inc., brought by residents

of Ecuador and Peru alleging environmental and personal

356 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

injuries arising out of Texaco’s oil exploration and extraction

operations in the Oriente region of eastern Ecuador between

1964 and 1992. The complaints sought money damages

under theories of negligence, public and private nuisance,

strict liability, medical monitoring, trespass, civil conspiracy,

and violations of the ATS. The decision of the district court

dismissing the complaints on the ground of forum non

conveniens is summarized at Digest 2001 at 336–37.

On appeal, the Second Circuit afﬁrmed. The court held

that the district court had not abused its discretion in

determining that the Ecuadorian courts provided an adequate

alternative forum for plaintiffs’ claims, since “[t]he record

shows that several plaintiffs have recovered judgments

against TexPet and PetroEcuador for claims arising out

of the very facts here alleged. Other U.S. courts have found

Ecuador to be an adequate forum for hosting tort suits.”

Considering the balance of private and public interest factors,

the court said that the former include “the relative ease

of access to sources of proof; availability of compulsory

process for attendance of unwilling, and the cost of obtaining

attendance of willing, witnesses; possibility of view of the

premises, if view would be appropriate to the action; and

all other practical problems that make trial of a case easy,

expeditious and inexpensive.” The court concluded:

We ﬁnd no abuse of discretion in the district court’s

conclusion that these interests “weigh heavily” in favor

of an Ecuadorian forum. The relative ease of access

to sources of proof favors proceeding in Ecuador. All

plaintiffs, as well as members of their putative classes,

live in Ecuador or Peru. Plaintiffs sustained their injuries

in Ecuador and Peru, and their relevant medical and

property records are located there. Also located in

Ecuador are the records of decisions taken by the

Consortium, along with evidence of Texaco’s defenses

implicating the roles of PetroEcuador and the Republic.

By contrast, plaintiffs have failed to establish that the

parent Texaco made decisions regarding oil operations

Human Rights 357

in Ecuador or that evidence of any such decisions is

located in the U.S.

With regard to public interest factors, the court said these

include “administrative difﬁculties associated with court con-

gestion; the unfairness of imposing jury duty on a community

with no relation to the litigation; the interest in having

localized controversies decided at home; and avoiding difﬁcult

problems in conﬂict of laws and the application of foreign

law.” It concluded the district court had been correct in deter-

mining that these factors weighed in favor of dismissal.

(2) The U.S. District Court for the Southern District of

New York established a heightened degree of deference due

for the plaintiff ’s choice of forum in human rights cases in

Wiwa v. Anderson, 2002 U.S. Dist. LEXIS 3293 (S.D.N.Y. Feb.

28, 2002). The court denied a motion to dismiss plaintiff ’s

claims based on the Alien Tort Claims Act, 28 U.S.C. § 1350,

ﬁnding that federal human rights statutes express a policy

favoring retention of jurisdiction and place a heightened

burden on the defendant to establish that the forum non

conveniens motion should be granted.

d. Effect on U.S. foreign policy interests

(1) In Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116 (C.D. Cal.

2002) (supra at G.3.a.(2) ), the U.S. District Court for the

Central District of California ruled that all claims brought

by plaintiffs against an international mining company for

damage to the environment in Papua New Guinea must be

dismissed on the basis of the political-question doctrine.

(2) In Doe. v. ExxonMobil, an action ﬁled in the U.S.

District Court for the District of Columbia (Civ. No. 01–1357

(LFO) under the ATS and TVPA, plaintiffs brought claims

against a U.S. oil company, Exxon-Mobil, for alleged human

rights violations occurring at the company’s natural gas

facility in Aceh, Indonesia. Plaintiffs allege that they were

tortured, unlawfully detained, and subjected to other human

rights abuses (including kidnapping and sexual violence) by

358 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

state security forces working for and paid by ExxonMobil to

protect its facility. They contended that ExxonMobil is liable

for having knowingly hired, aided and abetted the individuals

who committed these abuses. Defendants moved to dismiss

on grounds, inter alia, of lack of personal and subject matter

jurisdiction, forum non conveniens and nonjusticiability

(relying on the act-of-state and political-question doctrines).

By letter of May 10, the district court invited the views

of the Department of State in connection with this case,

speciﬁcally inquiring “whether the Department of State has

an opinion (non-binding) as to whether adjudication of this

case at this time would impact adversely on interests of the

United States.” In response, and pursuant to 28 U.S.C. § 517,

on May 10 2002, the United States submitted a Statement

of Interest including a letter from William H. Taft, IV, Legal

Adviser of the Department of State, to the court setting forth

the Department’s views. As of the end of 2002, the court

had not rendered its decision. The text of Mr. Taft’s letter is

set forth in full below.

This is in response to your letter of May 10, in which you invite

the views of the Department of State in connection with the above-

captioned proceedings. Speciﬁcally, you inquire “whether the

Department of State has an opinion (non-binding) as to whether

adjudication of this case at this time would impact adversely on

interests of the United States, and, if so, the nature and signiﬁcance

of that impact.” As you requested, this letter speciﬁcally addresses

the potential adverse impacts of the litigation on U.S. interests. It

does not address the legal issues before the court.

For the reasons detailed below, the Department of State believes

that adjudication of this lawsuit at this time would in fact risk a

potentially serious adverse impact on signiﬁcant interests of the

United States, including interests related directly to the on-going

struggle-against international terrorism. It may also diminish our

ability to work with the Government of Indonesia (“GOI”) on a

variety of important programs, including efforts to promote human

rights in Indonesia.

Human Rights 359

However, before describing those concerns, the Department

would like to reafﬁrm its condemnation of human rights abuses

by elements of the Indonesian armed forces in locations such as

Aceh. Without expressing a view on the allegations in this speciﬁc

lawsuit, we would like to reiterate that a lasting, peaceful solution

to the Aceh conﬂict that maintains Indonesian sovereignty can

only be achieved if the military and police end human rights abuses.

The Department will continue to work vigorously to bring such

abuses to an end through diplomatic and other means.

With respect to this litigation, it is the Department’s considered

opinion that adjudication at this time could adversely affect United

States interests in two ways, recognizing that such effects cannot

be determined with certainty.* First, the GOI may respond to the

litigation by curtailing cooperation with the United States on issues

of substantial importance to the United States. Second, the litiga-

tion’s potential effects on Indonesia’s economy could in turn

adversely affect important United States interests.

Potential Bilateral Effects

In our experience, the government and people of Indonesia

react most negatively to any perceived intrusion into areas of

Indonesian sovereignty. We anticipate that adjudication of this

case will be perceived in Indonesia as a U.S. court trying the GOI

for its conduct of a civil war in Aceh. All of the human rights

abuses and injuries alleged in the complaint refer to conduct

claimed to have been committed by the military and police forces

of the GOI. This issue presents special sensitivities for Indonesia

* Much of this assessment is necessarily predictive and contingent on

how the case might unfold in the course of litigation. E.g., the nature, extent,

and intrusiveness of discovery; the degree to which the case might-directly

implicate matters of great sensitivity to the Government of Indonesia and

call for judicial pronouncements on the ofﬁcial actions of the GOI with

respect to the conduct of its military activities in Aceh; the effect that a

decision in favor of plaintiffs might encourage secessionist activities in Aceh

and elsewhere in Indonesia; whether the case were to go to a jury and, if so,

whether a substantial monetary award were to be imposed on ExxonMobil;

how other large commercial interests might interpret such a judgment when

making investment decisions in Indonesia.

360 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

because it is deeply concerned about maintaining national cohesion

in the face of strong anti-government secessionist movements in

Aceh and elsewhere. The Indonesian response to such perceived

U.S. “interference” in its internal affairs could impair cooperation

with the U.S. across the full spectrum of diplomatic initiatives, in-

cluding counterterrorism, military and police reform, and economic

and judicial reform.

This lawsuit could potentially disrupt the on-going and extens-

ive United States efforts to secure Indonesia’s cooperation in the

ﬁght against international terrorist activity. Indonesia is the fourth

largest state in the world, with a population of some 210 million.

It is also the largest Muslim nation, and serves as a focal point for

U.S. initiatives in the ongoing war against Al Qaida and other

dangerous terrorist organizations. U.S. counter-terrorism initiatives

could be imperiled in numerous ways if Indonesia and its ofﬁcials

curtailed cooperation in response to perceived disrespect for its

sovereign interests.

The United States also is actively seeking to assist Indonesia

in reform efforts aimed at ending the kinds of abuses alleged in

this litigation. Through improved training and support of security

personnel, as well as judicial reform, these programs are designed

to establish a higher degree of professionalism and respect for

individual rights. Should the GOI withdraw from these programs

in reaction to the litigation, it will impact adversely on our goal of

improving Indonesia’s treatment of all members of its popula-

tion, including the people of Aceh. An adverse effect on our human

rights objectives is also possible if the GOI were to turn down

U.S. companies bidding for new contracts in response to the

suit. Working side-by-side with U.S. ﬁrms, Indonesian companies

and government agencies see the advantages of modern business

practices including transparency, respect for contracts, fair labor

practices, anti-corruption, efﬁciency, and competitiveness. We

would expect that foreign companies, such as from the People’s

Republic of China (CNOOC and PetroChina both acquired multi-

million dollar rights to Indonesian oil and gas ﬁelds this year),

would be far less concerned about human right abuses, or about

upholding best business practices.

Human Rights 361

Potential Effects on Indonesia’s Stability

Economic and political stability in Indonesia is important to

U.S. interests in the region. Given Indonesia’s large population,

resources, key geographic location, and proximity to key U.S. allies,

instability there could create problems ranging from interruption

in vital shipping lanes, to refugee outﬂows, to a new home for

terrorists. To the extent this litigation contributes to a worsening

of the economic conditions in Indonesia that breed instability it

would adversely affect U.S. interests.

Here, timing is an important consideration, because there

is already substantial evidence that Indonesia’s foreign investment

climate is deteriorating. The GOI’s Investment Coordinating Board

(BKPM), for example, reported that foreign direct investment ap-

provals dropped 88 percent in the ﬁrst quarter of 2002 (US$ 291.5

million) compared to the ﬁrst quarter of 2001 (US$ 2.44 billion).

Total BKPM foreign direct investment approvals for 2001 also

dropped 41.5 percent from the previous year. While the dollar

value of investment proposals may be inﬂated and many proposals

do not necessarily result in actual projects, the magnitude of the

change conﬁrms that the underlying trend is worsening.

This litigation appears likely to further discourage foreign

investment, particularly in extractive industries in remote or

unstable areas that require security protection. This, in turn, could

have decidedly negative consequences for the Indonesian economy.

Revenues from the oil and gas sector, for example, are one of the

core contributors to GOI budget revenues, comprising 35 percent

of the Indonesian Government’s total revenues in 2001. In the last

few years, oil and gas revenues (including taxes on the sector)

have become an increasingly important source of government

funds, comprising 19, 23, and 31 percent of total government

revenue respectively in 1998, 1999, and 2000. In addition, oil and

gas revenues, which are received in U.S. dollars, offer important

protection for the GOI from foreign exchange risk. However, in

order to maintain its current level of revenues from the sector,

Indonesia must develop new ﬁelds, or invest further to maintain

production at existing oil and gas ﬁelds. More generally, Indonesia

must maintain a growing economy to deal with the effects of

362 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

the 1997–98 ﬁnancial crisis, which left the GOI with the costs

of a Rp 660 trillion (US $75 billion) bank bailout. Efforts by the

U.S. and other donors to enhance Indonesia’s ﬁscal sustain-

ability through debt rescheduling and international lending pro-

grams will be undermined if Indonesia cannot sustain its own

commitments.

A viable, well-funded central government is also important

to U.S. interests in domestic Indonesian policies. Providing more

and higher quality public services, especially education and health

services, is a key factor in reducing poverty and maintaining

political stability. Given its size and large population, any threat

to Indonesia’s political stability could impact on the security of

U.S. treaty allies Australia and Thailand, as well as other countries

in the region. Adequate government resources are also necessary

to maintain properly trained and equipped security forces that do

not need to rely on unregulated and often corrupt business dealings,

practices which contribute to actions outside of a central chain

of command. Professional personnel are also crucial for making

progress on a host of U.S. priorities, including promoting re-

gional stability, countering ethnic and sectarian violence, combat-

ing piracy, trafﬁcking of persons, smuggling, narcotics trafﬁcking,

and environmentally unsustainable levels of ﬁshing and logging.

Litigation in the U.S. that discourages further investment in

Indonesia poses a risk of weakening the Indonesian economy in

conﬂict with these U.S. goals.

In this respect, we note that increasing opportunities for

U.S. business abroad is an important aspect of U.S. foreign policy.

Under the circumstances presented here, the adjudication of these

claims could prejudice the Government of Indonesia and Indonesian

businesses against U.S. ﬁrms bidding on contracts in extractive

and other industries.

For the information of the Court, I am enclosing a copy of a

letter received on July 15, 2002, from Indonesia’s Ambassador

to the United States Soemadi Djoko M. Brotodiningrat to Deputy

Secretary of State Richard Armitage. In the letter Ambassador

Soemadi expresses his government’s objections to the continued

adjudication of this case. He states that Indonesia views this

Human Rights 363

litigation as an unacceptable extraterritorial act that will complicate

efforts to safeguard foreign investors and will negatively impact

Indonesia’s struggle to secure economic recovery. He also states

that the case will have an adverse impact on effort towards peace

in Aceh, which is at an extremely sensitive stage.

H. INDIGENOUS PEOPLE

1. UN Economic and Social Council

The eighth session of the working group of the Commission

on Human Rights established to elaborate a draft declaration

on indigenous issues met December 2–13, 2002, at Geneva.

The report of the working group prepared by chairperson-

rapporteur Luis-Enrique Chavez (E/CN.4/2003/02) recorded,

among other things, that the representative of the United

States had “expressed concern about the reference to self-

determination in several places in the draft declaration and

therefore preferred a reference to ‘internal’ self-determination.”

The alternative text introduced by the United States would

combine articles 3 and 31 of the draft declaration and would

provide as follows:

Indigenous peoples have the right to internal self-

determination. By virtue of that right, they may negotiate

their political status within the framework of the existing

nation-state and are free to pursue their economic, social

and cultural development. Indigenous peoples in exercis-

ing their right of internal self-determination have the

internal right to autonomy or self-government in matters

relating to their local affairs, including determination of

membership, culture, language, religion, education, infor-

mation, media, health, housing, employment, social wel-

fare, maintenance of community safety, family relations,

economic activities, lands and resources management,

environment and entry by non-members, as well as ways

and means of ﬁnancing these autonomous functions.

364 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

2. Organization of American States

The working group to prepare the draft American Declaration

on the Rights of Indigenous Peoples met in special session

at the Organization of American States (“OAS”) March 11–

15, 2002, in Washington, D.C. On March 15, the United States

offered its comments on the draft declaration. GT/DADIN/

doc.66/02rev.2. The U.S. comments are set forth below in

full. This and related documents are available at www.oas.org

under the OAS Issue “Indigenous Peoples.”

Since the earliest days of the Republic, the U.S. has recognized

that indigenous peoples have inherent sovereign rights that existed

prior to the formation of the United States. This inherent sovereign

status exists to this day and is the foundation on which the U.S.

builds its relationship with indigenous peoples or, to use the

phrase with which most of you have become familiar, our relation-

ship with federally recognized tribes. At the foundation of this

government-to-government relationship lies self-determination—

the ability of the tribe to control its own affairs.

Last year we said that part of our task as representatives

of nation states, in consultation with you, the representatives

of indigenous nations, is to forge a common understanding of

what we each mean when we use the phrase self-determination.

For the U.S. this is a core issue in this document and that we

are here today discussing it with you speaks volumes on how our

hemisphere has progressed and provides the hope that together

we can bring healing to our relationship and to our lands. So

for us, the most important part of our task in this section is to

create with you an understanding of how self-determination

can apply in the unique circumstances of our shared history.

Our history has tied us together and only together can we resolve

this issue.

Article 14 (1), we believe, speaks to the ability of indigen-

ous peoples to organize and to relate to the State as a group. It

is expressed in human rights terminology and so one addition

to the text we would want to make would be to express these

Human Rights 365

rights as a right of freedom of association, peaceful assembly

and expression. We would also include “the right to hold opin-

ions without interference” in the listing. We would delete

“according to their values, usages, customs, ancestral traditions,

beliefs and religions.” The U.S. believes this last phrase is not

necessary and could be construed as a limit on fundamental

freedoms.

We ﬁrmly believe and strongly support the right of federally

recognized tribes to express the will of their people and their

right to meet together—this is a fundamental part of sovereign

status. As we expressed yesterday, however, the U.S. is troubled

by the confusion that could result in international human rights

jurisprudence in the way these rights are expressed in the draft

declaration. When expressed as individual human rights, the

meaning and content of these fundamental freedoms are clear and

the obligation of the state to respect an individual’s fundamental

freedoms is equally clear. As a right that applies to a group,

however, the meaning of these fundamental freedoms is less clear.

For now, the U.S. prefers that this cluster of rights in Article 14

attach to individuals and so we would not, right now, support a

formulation that includes “indigenous peoples.” But we view this

formulation as a problem as we see the need for a provision that

speaks to the ability of indigenous peoples to express themselves,

to assemble together and to associate together. We will study this

issue further and listen with interest to the commentary of states

and representatives of indigenous peoples.

On Article 14 (2), the U.S. withdraws its 1999 proposal and

supports the chair’s text subject to some additions and to the

resolution of the issue of individual human rights and collective

rights as was just stated. We would adjust the chair’s text in the

following ways: Indigenous people[s] have the right to freedom

of assembly, to the use of their sacred and ceremonial areas, on

extended lands subject to the rights of third parties and on public

lands subject to reasonable accommodation. They also have the

right. . . .”

The U.S. supports inclusion of third party rights. We do not

believe that this places any value judgments upon the importance

of use and access to ceremonial and sacred sites; rather this

366 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

provision is intended to ensure equality. While we understand

that there are other instruments which address third party rights,

we believe that third party rights must be included here so that the

meaning is clear.

On Article 15 (1) the U.S. withdraws its 1999 proposal. Last

year in the section on deﬁnitions we introduced the following

language: “Indigenous peoples have the right to internal self-

determination. By virtue of that right, they may negotiate their

political status within the framework of the existing nation-

state and are free to pursue their economic, social and cultural

development. Indigenous peoples, in exercising their right of

internal self-determination, have the internal right to autonomy

or self-government in matters relating to their local affairs,

including determination of membership, culture, language reli-

gion, education, information, media, health, housing, employ-

ment, social welfare, maintenance of community safety, family

relations, economic activities, lands and resources management,

environment and entry by non-members, as well as ways and means

of ﬁnancing these autonomous functions.” We offer this language

in this section as well. We do see that the Chair’s suggestion is

very similar, but believe the language on self-determination lies

at the heart of this document and would want to see it included in

this section.

On Article 15 (2) we believe it is essential to state that

indigenous individuals have the right to participate on an equal

basis with other citizens in all national fora, including local,

provincial and national elections. This right has been denied all

too often. However, it may be useful to move this proposal to the

section on human rights as it squarely addresses an individual

right and not organizational and political rights.

When State policy or actions are implicated, the U.S. believes

that the voice of indigenous peoples should be heard. We offer the

following language on that point:

“Where a national policy, regulation, decision, legislative

comments or legislation will have substantial or direct effects for

indigenous peoples, States should consult with indigenous peoples

prior to the taking of such actions, where practicable and permitted

by law.”

Human Rights 367

On 16 (2) the U.S. believes that indigenous peoples do have

a right to maintain and develop their own decision-making

institutions—but that right is both explicit and implicit in the

rights to autonomy and self-government. We withdraw our 1999

proposal and offer the following language: “Consistent with

international human rights standards, indigenous people[s] may

develop, maintain and reinforce their legal systems, to apply

indigenous law to the internal and local affairs of their com-

munities, including systems pertaining to ownership, manage-

ment and development of lands and natural resources, resolution

of conﬂict with and between indigenous communities, preven-

tion of crime, law enforcement and maintenance of peace and

harmony.”

With respect to 16 (3) we believe it is extremely important

that individuals understand legal proceedings but believe this pro-

vision should be covered in Section 3, Article 8 which addresses

linguistic issues.

3. Inter-American Commission on Human Rights:

Petition of Mary and Carrie Dann

On December 27, 2002, the Inter-American Commission

on Human Rights (“IACHR”) issued a ﬁnal report on a

petition ﬁled by Mary and Carrie Dann on April 2, 1993.

Report No. 75/02, Case No. 11.140. As described in the

ﬁnal report:

The petition and subsequent observations allege that

Marie and Carrie Dann are members of the Western

Shoshone indigenous people who live on a ranch in the

rural community of Crescent Valley, Nevada. According

to the petition, their land and the land of the indigenous

band of which they are members, the Dann band, is part

of the ancestral territory of the Western Shoshone people

and the Danns and other members of the Western

Shoshone are in current possession and actual use of

these lands. The Petitioners also contend that the State

has interfered with the Danns’ use and occupation of

368 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

their ancestral lands by purporting to have appropriated

the lands as federal property through an unfair procedure

before the Indian Claims Commission (“ICC”), by phys-

ically removing and threatening to remove the Danns’

livestock from the lands, and by permitting or acquiescing

in gold prospecting activities within Western Shoshone

traditional territory. Based upon these circumstances,

the Petitioners allege that the State is responsible for

violations of Articles II, III, VI, XIV, XVIII and XXIII of the

American Declaration of the Rights and Duties of Man

(the “American Declaration”).

In the ﬁnal report, the IACHR concluded that the United

States had “failed to ensure the Danns’ right to property

under conditions of equality contrary to Articles II, XVII and

XIII of the American Declaration in connection with their

claims to property rights in the Western Shoshone ancestral

lands. The IACHR reiterated the following recommendations

to the United States:

1. Provide Mary and Carrie Dann with an effective

remedy, which includes adopting the legislative or other

measures necessary to ensure respect for the Danns’

right to property in accordance with Articles II, XVIII and

XXIII of the American Declaration in connection with

their claims to property rights in the Western Shoshone

ancestral lands.

2. Review its laws, procedures and practices to ensure

that the property rights of indigenous persons are

determined in accordance with the rights established in

the American Declaration, including Articles II, XVIII and

XXIII of the Declaration.

In a note dated November 27, 2002, the United States

reiterated arguments set forth in its observations on the

preliminary report, ﬁled December 17, 2001, that the IACHR’s

conclusions were in error because:

(1) the Danns’ contentions regarding the alleged lack

of due process in the Indian Claims Commission

Human Rights 369

proceedings were fully and fairly litigated in United States

Courts and should not be reconsidered here; (2) the

Commission lacks jurisdiction to evaluate processes

established under the 1946 Indian Claims Act since the

Act predates U.S. ratiﬁcation of the OAS Charter; and (3)

the Commission erred in interpreting the principles of

the American Declaration in light of Article XVIII of the

not-yet-adopted OAS draft declaration on indigenous

rights.

The Danns’ claim, the United States stated, “is, fundament-

ally, not a human rights claim, but an attempt by two indi-

vidual Indians to reopen the question of collective Western

Shoshone tribal property rights to land—a question that has

been litigated to ﬁnality in the U.S. courts.” The United States

concluded:

In sum, at all times during the events that gave rise

to the petition herein, the United States has acted in full

compliance with its domestic and international legal

obligations. For these reasons, it respectfully declines to

take any further actions to comply with the commission’s

recommendations.

Excerpts below from the U.S. observations on the pre-

liminary report, ﬁled December 17, 2001, provide the views

of the United States on the issues raised in the case.

The full texts of the observations and the note of Novem-

ber 27, 2002, are available at www.state.gov/s/l/c8183.htm.

The IACHR ﬁnal report is available at www.cidh.oas.org/

annualrep/2002eng/USA.11140.htm.

The United States rejects the Commission’s Report No. 113/01

of October 15, 2001, in its entirety. The United States respectfully

requests that the Commission publish the following Response of

the United States in the next Annual Report of the Commission, if

Report No. 113/01 is published.

****

370 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

II. The Danns’ Contentions Regarding The Alleged Lack Of

Due Process In The Indian Claims Commission Proceedings

Have Already Been Fully And Fairly Litigated In U.S.

Courts, So Those Contentions May Not Be Relitigated Here.

The “fourth instance” procedural rule provides that the

Commission may not review the judgments issued by domestic

courts acting within their competence and with due judicial

guarantees. See Case 11.673, Santiago Marzioni (Argentina), Inter-

Am. C.H.R. 86, para. 51, OEA/Ser. L/V/II.95, doc. 7 rev (1996).

This well-established principle has been applied in both the Inter-

American human rights system and the European human rights

system.

Further, the Commission may not second-guess decisions

by national courts applying domestic law, unless the procedures

followed by the court were in violation of international law.

See, e.g., Villagran Morales Case, Preliminary Objections, Inter-

Am. Ct. H.R., Judgment of Sept. 11, 1997, Ser. C, No. 32, paras.

17–18.

The instant decision by the Commission constitutes a classic

violation of the “fourth instance” rule. Here, the Commission has

advanced the same arguments that have been adjudicated, reviewed,

and rejected by federal courts in accordance with U.S. federal

law. Moreover, as demonstrated below, these procedures were in

accord with the provisions of international law—contemporary or

otherwise.

A. The Land Claim At Issue Before The Indian Claims

Commission Was A Collective Tribal Claim Of The

Western Shoshone.

The fundamental error evidenced throughout the Commission

decision is its factual assumption that the land claim at issue in

the Indian Claims Commission litigation represented an aggregation

The European Court of Human Rights has held that the Court serves

to ensure that States observe the rules they undertook to follow. See Ireland

v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) at para 154 (1978).

Human Rights 371

of individual claims and not a collective tribal claim of the Western

Shoshone. For example, the Commission ﬁnds (CRP 104) that

“the Dann family has traditionally occupied and used a region

broader than their individual ranch and that this constitutes a

part of the Dann band land.” On this basis the Commission

concludes (CRP 140–141) that the Indian Claims Commission

process was inconsistent with the provisions of the American

Declaration since it did not provide “an effective opportunity to

participate individually or as collectives” or require decisions on

the basis of “mutual consent.”

To the contrary, the claim that was the subject of the Indian

Claims Commission proceedings was a collective tribal claim

regarding all of the communal tribal lands, not an aggregation of

related individual claims. Hence the Danns were not entitled to

be individually represented in the Indian Claims Commission

proceedings. The Inter-American Commission’s assertion to the

contrary serves only to undermine the ﬁrmly established principle

under U.S. law that tribes, not individuals, have authority over

communal tribal lands.

As the United States Court of Claims explained in 1976 with

respect to the Danns’ and other petitioners’ attempt to intervene

in the Western Shoshone litigation:

A claim under the Claims Commission Act is not an

aggregation of individual claims but a group claim * * * *

The suing claimant represents that group interest, and it is

reasonable to say that at least prima facie the organized

entity “recognized by the Secretary of Interior as having

authority to represent such [claiming] tribe, band or group”

should be the exclusive suing party. 531 F.2d at 503–504.

Similarly, the United States Court of Appeals for the Ninth

Circuit subsequently held in the trespass action:

The Danns attack the fairness and constitutionality of these

[Indian Claims Commission] rulings, but they overlook

the fact that the interest they assert in tribal aboriginal

title is not a direct property interest of their own. See

372 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

F. Cohen, Handbook of Federal Indian Law 183–184

(1942). The Danns were simply part of a litigating group

with regard to the claims proceeding, and litigation strategy

was subject to group decision.

873 F.2d at 1195 (1989).

The Court further stressed that because the interest was tribal,

the Danns had no speciﬁc rights to the land in question—

As individual tribal members occupying land under tribal

aboriginal title, the Danns or their lineal ancestors could

assert no rights excluding the tribe or its members from

the land. And because the rights they assert are tribal, the

Danns could just as easily lay claim to any of the 22 million

acres of aboriginal Western Shoshone land in Nevada as

they do to the tracts at issue in this case. The problem

with the claim, as we have already pointed out, is that the

Western Shoshone have been paid for that title, and it

must be deemed extinguished. [Citations omitted]. 873 F.2d

at 1196.

The United States courts further found in the trespass litigation

that the Indian Claims litigation did not bar the Danns from

asserting individual aboriginal title as a defense to the trespass

action. 873 F.2d at 1201. Nonetheless, on remand before the U.S.

District Court for the District of Nevada, the Danns withdrew all

remaining claims to title based on individual aboriginal rights.

The Danns explained (CRP 52) that they—

failed to pursue “individual aboriginal title” to the lands

in question before domestic courts . . . because doing so

would have separated them from the treaty-based Western

Shoshone nation claim, . . . .

They further clariﬁed (CRP 74) that—

it is the customary nature of land tenure generated by the

Western Shoshone people as a whole over centuries, rather

Human Rights 373

than the Danns own individual land use pattern, that forms

the foundation of the land rights asserted by the Danns.

In short, the Danns had no right to participate individually in

the Indian Claims Commission proceedings because the claim at

issue was a collective claim of the Western Shoshone. Moreover,

the Danns cannot now assert a right to individual aboriginal title

as a defense to the trespass action because they abandoned that

claim in United States courts, in other words, they never have

exhausted domestic remedies.

B. The United States Courts Determined That The Temoak

Band Was The Appropriate Representative Party For

Maintaining The Claim In The Indian Claims Commission

On Behalf Of All Western Shoshone.

A second fundamental factual error committed by the

Commission is the erroneous ﬁnding (CRP 141) that “it became

clear at the time of the Danns’ request to intervene that the

collective interest in the Western Shoshone territory may not have

been properly served through the proceedings pursued by the

Temoak Band.”

The Danns and other petitioners expressly sought to intervene

in the Indian Claims Commission proceedings to challenge the

Temoak Band’s status as the representative party and to assert

allegations that the Western Shoshone had been misled con-

cerning the claim. 706 F.2d 722. The Court of Claims, however,

afﬁrmed the Indian Claims Commission’s denial of the petition

for intervention, ﬁnding the Temoak Band to be the appropriate

representative of the entire Western Shoshone and the petitioner’s

allegations of fraud and collusion to be unfounded.

In denying the petition for intervention, the Court of Claims

held that:

The fact is that at bottom all that appellants have demon-

strated is that there is a dispute between an undetermined

number of supporters of appellants and the organized

374 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

entity, the Temoak Bands, over the proper strategy to

follow in this litigation. 531 F.2d at 503.

The Court of Claims also squarely rejected the Inter-American

Commission’s assertion (CRP 137) that “the determination as to

whether and to what extent Western Shoshone title may have

been extinguished was not based upon a judicial evaluation of

pertinent evidence, but rather was based upon the apparently

arbitrary stipulations as between the U.S. government and the

Temoak Band.” The Court of Claims found that there had been a

judicial evaluation of the pertinent evidence during the title phase

of the litigation. The Court stated:

Appellants insist that the subject of title-extinction was

never tried, going simply by the concurrent agreement of

the parties. But evidence on that issue was contained in

the materials presented at the 1957 trial and the Indian

appellees asked generally for ﬁndings that the Shoshone

lands had been taken; the Government consistently

maintained that the Indians never owned the lands they

claimed and therefore that the question of title-extinction

never arose. The Commission made its own determination

that the Shoshone lands were held by separate Shoshone

entities and that Indian title to the area in question was

extinguished by enroachment. 531 F.2d at 500.

The Inter-American Commission also suggests (CRP 137) that

the stipulation regarding valuation reached by the parties to the

Indian Claims Commission proceeding was “arbitrary.” As the

Court of Claims explained:

The parties, instead of having a further trial on the

valuation date or dates, then agreed to stipulate that the

Nevada lands should be valued as of July 1, 1872, and

the [Indian Claims] Commission accepted this agreement

as an implementation of its prior ﬁnding of extinguishment.

This stipulation was not collusion but a proper application

of the admonition that parties to such litigation should

Human Rights 375

attempt to agree, if possible, upon one or a few valua-

tion dates rather than undertake a burdensome individual

computation of value as of the date of disposals of each

separate tract. [Emphasis supplied.] 531 F.2d at 500.

In sum, the Inter-American Commission erred in assuming (CRP

142) that the Temoak Band did not properly serve the interests of

the Western Shoshone. U.S. Courts fully examined this question

and properly concluded that the Temoak Band was the proper

representative of the Western Shoshone and that they had fully

litigated their claim.

C. The Danns Were Fully Apprised Of The Status Of

The Indian Claims Act litigation.

Yet another factual error committed by the Commission is its

assumption (CRP 136) that the Danns were not fully apprised

of the litigation strategy that had been employed by the organized

entity of the Western Shoshone group. The United States Court of

Claims found after examining the record:

that there is no doubt whatever that appellants [including

the Danns] were for a very long time quite aware of the

position with respect to this Nevada land taken before the

[Indian Claims] Commission by appellee Temoak Bands

and its counsel. 531 F.2d at 498– 499.

The Commission further errs in concluding (CRP 140) that

“[t]here is also no evidence on the record that appropriate con-

sultations were held within the Western Shoshone at the time that

certain signiﬁcant determinations were made.” To the contrary,

the United States Court of Claims expressly pointed out in its

decision that the attorney for the Temoak Band reported that

Western Shoshone General Council meetings occurred in 1947,

three years before the Western Shoshone action was ﬁled; in 1959,

three years before the Indian Claims Commission issued its

extinguishment ﬁnding; and in 1965, ﬁve years before the Indian

376 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Claims Commission issued its decision awarding $26,154,600 to

the Western Shoshone. 599 F.2d at 499; see also 652 F.2d at 44.

In sum, there can be no doubt that the Danns were fully

apprised of the litigation strategy employed by the organized entity

representing the Western Shoshone.

D. U.S. Courts Properly Denied The Danns’ Request To

Intervene In The Indian Claims Commission Proceedings.

Another fundamental factual error committed by the Com-

mission is the ﬁnding (CRP 141) that the U.S. Courts “did not

take measures to address the substance of [the request for inter-

vention] but dismissed them based upon the expediency of the

ICC proceeding.”

As the United States Court of Claims emphasized, its orders

denying intervention rested upon the unjustiﬁed tardiness of the

request for intervention. The Danns did not attempt to intervene

in the Indian Claims Commission process until 23 years after the

litigation had been initiated. As the United States Court of Claims

observed in denying the request for intervention:

the [petition to intervene] was ﬁrst thrust upon the [Indian

Claims] Commission and the Parties in 1974, some 23 years

after this Western Shoshone claims was ﬁrst made to the

[Indian Claims] Commission in 1951, some 12 years after

the Commission had decided (in 1962) that the United

States had extinguished the claimant’s title to the large area

involved, eight years after the Commission had approved

(in 1966) the parties’ stipulation as to the valuation date

of these lands, about one and one-half years after the

Commission had determined (in October 1972) the actual

value of the property, and about a month after the problem

of offsets had been tried and submitted for disposition.

531 F.2d at 498.

The order denying intervention was not based upon any

unwillingness to consider a representational dispute timely

Human Rights 377

presented or to allow an Indian group to contend that it still

retained title to ancestral lands. The Court of Claims explained

the process as follows:

If there are circumstances in which the organized entity

fails properly to represent the group, the normal method

of redress is through the internal mechanism of the

organized entity. And if there be cases in which the internal

mechanism is clogged or unavailable then, at least, the

members claiming to represent the majority interest are

required to make their position formally known to the

[Indian Claims] Commission and the other parties as soon

as possible—and not after much work has been done, and

years have passed, on the unchallenged assumption that

the organized entity represents the group.

531 F.2d at 504; see also 593 F.2d at 997–999.

In light of the Court of Claims’ determination that “no

adequate excuse was offered for the long delay,” (593 F.2d at

997; see also 531 F.2d at 498–499, 501–502 & n. 13), and the

fact that any other litigant in U.S. federal courts would be subject

to equivalent procedural requirements concerning timeliness,

neither the United States courts procedural rulings nor the

preclusive effect that Congress has assigned to the judgment of the

Indian Claims Commission offends due process.

In short, the processes employed in the Western Shoshone

Indian Claims Commission litigation did provide the due process

guarantees required by the U.S. Constitution and reﬂected in the

American Declaration on the Rights and Duties of Man. Indeed,

as the Commission itself has acknowledged (CRP 138), those

procedures provided the Danns with an even greater opportunity

to press their claims than would be available to a non-Indian

seeking compensation for the taking of their land. The Danns’

contentions regarding the alleged lack of due process in the Indian

Claims Commission proceedings were fully and fairly litigated in

United States courts and they may not be reconsidered here. It

was error for the Commission to assume otherwise.

378 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

III. The Processes Established Under The Indian Claims

Act Of 1946 Did Not Violate Contemporary Norms

Of International Law.

The Commission also erred (CRP 139) in “evaluating these

processes” established by the Indian Claims Commission Act of

1946 in light of “contemporary international human rights norms,

principles and standards.” As discussed above, the Commission

has committed fundamental factual errors in its evaluation of the

processes in this case. Those erroneous ﬁndings led the Commission

in turn to erroneously conclude that the processes violated Article

II (Right to Equality Before the Law), XVIII (Right to a Fair Trial)

and XXIII (right to property) of the American Declaration on the

Rights and Duties of Man, if those provisions are interpreted in

light of “developments in the corpus juris gentium of international

human rights law over time and in present-day conditions.”

In any event, the Commission should not have subjected those

historical processes to contemporary norms of international

law.

A. The Commission Lacked Jurisdiction To Consider Events

Related Solely To The Passage Of The 1946 Indian Claims

Commission Act.

It is unclear on what basis the Commission has found

jurisdiction over processes established under the Indian Claims

Commission Act, which was signed into law on August 13, 1946.

Indian Claims Commission Act, 60 Stat. 1049, 25 U.S.C. Sec. 70

a–v. The Commission contends (CRP 95) “that the events raised

in the petitioner’s claim occurred subsequent to the States

ratiﬁcation of the OAS Charter.” However, the Indian Claims

Commission Act only extends jurisdiction to the Indian Claims

Commission for claims arising from the taking of the United States

of aboriginal lands prior to August 13, 1946. The Commission

would not have jurisdiction over events that resulted solely from

the passage of that Act, since the Act predates U.S. ratiﬁcation

of the Charter itself. See Phosphates in Morocco, P.C.I.J. Ser.

A/B, No. 74 p. 10 (1938).

Human Rights 379

B. Utilization of Contemporary Norms Of International Law

Would Violate The Principle of Inter-temporal Law.

Additionally, evaluation of the processes established under

the 1946 Indian Claims Commission Act in light of contemporary

international norms is an impermissible inter-temporal application

of law. Under that principle,

it is not permissible to import into the legal evaluation of a

previously existing situation, or of an old treaty, doctrines

of modern law that did not exist or were not accepted at

the time, and only resulted from the subsequent develop-

ment or evolution of international law.

Sir Gerald Fitzmaurice, The Law and Procedure of the International

Court of Justice, XXX BRIT. YB INT’L L. 5 (1953). See also

H. Thirlway, The Law and Procedure of the International Court

of Justice, 1960–1989, LX BRIT. YB INT’L L. 1, 128–129 (1989);

The South West Africa Cases, I.C.J. REP. 4, 23 (1966).

In this case application of contemporary norms of international

law to the Indian Claims Commission process would necessarily

violate the principle of inter-temporal law. The Indian Claims

Commission proceedings concerning the Western Shoshone were

completed in 1977 and the Indian Claims Commission itself was

dissolved on September 30, 1978. Indeed, the Inter-American

Commission “commends the State” for the “development and

implementation of the Indian Claims Commission process” and

recognizes that “this process provided a more efﬁcient solution to

the sovereign immunity bar to Indian land claims under U.S. law

and extended to indigenous communities certain beneﬁts relating

to claims to their ancestral lands that were not available to other

citizens, such as extended limitation periods for claims.” CRP 138.

C. Article XVIII Of The Not-Yet-Adopted OAS Draft

Declaration Does Not Reﬂect Contemporary Norms

Of International Law.

Even more surprising is the Commission’s determination

that “aspects of Article XVIII” of the not-yet-adopted OAS draft

380 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

declaration on indigenous rights “reﬂect general international

legal principles developing out of and applicable inside and out-

side of the Inter-American system and to this extent are properly

considered in interpreting and applying the provisions of the

American Declaration in the context of indigenous peoples.” CRP

129. Clearly, Article XVIII of the draft declaration does not reﬂect

general international legal principles.

In 1999, the Inter-American Juridical Committee advised

the OAS that “[i]nternational law does not recognize the indi-

genous person’s right of ownership and use of lands as deﬁned

in this article.” Observations and Recommendations of the Inter-

American Juridical Committee on the “Proposed American

Declaration on the Rights of Indigenous Populations,” OAS Doc.

RECIDIN/INF.1/99 ( Jan. 29, 1999). The Commission makes no

effort to reconcile its position with that of the Inter-American

Juridical Committee.

Similarly the United States has consistently expressed its view

that draft article XVIII does not reﬂect general international legal

principles. For example, the United States advised the Commission

in 1997 that—

Article XVIII, as drafted by the Commission, contains

imprecise language in any attempt to address a wide variety

of situations involving land ownership and use. As a

result the provision goes signiﬁcantly beyond existing

international law and conﬂicts with U.S. domestic law in

important respects.

Observations and Recommendations of the United States, OAS

Doc. RECIDIN/INF.7/99 (Dec. 16, 1997).

Other OAS member States have expressed similar con-

cerns with respect to draft Article XVIII. See Observations and

Recommendations by Guatemala on the Proposed American

Declaration on the Rights of Indigenous Populations, OAS Doc.

RECIDIN/INF.8/99; Observations and Recommendations by

Canada on the Proposed American Declaration on the Rights of

Indigenous Populations, OAS Doc. RECIDIN/INF.5/99; Observa-

tions and Recommendations by Mexico on the Proposed American

Human Rights 381

Declaration on the Rights of Indigenous Populations, OAS Doc.

RECIDIN/INF.9/99.

In short, the United States rejects the application of substantive

norms that may or may not emerge in a non-binding document to

processes established by the United States in 1946. The OAS draft

declaration is still in draft form after six years of negotiations

because its terms, including Article XVIII, have not been agreed to

by the Member States of the OAS.

IV. The American Declaration Is Not Legally Binding.

The Commission further errs in ﬁnding that the United States

has violated provisions of the American Declaration. Any com-

petence that the Commission has to consider individual complaints

arises through the 1967 amendment of the OAS Charter which

established the Commission as a “consultative organ” of the

OAS and the 1979 Statute of the Inter-American Commission,

approved by OAS resolution No. 447, October 1979, which author-

izes the Commission to “examine communications,” “address the

government of any member state not a party to the Convention

for information deemed pertinent,” and to “make recommenda-

tions.” The 1979 Statute in Article 20 further authorizes the

Commission to pay particular attention to the observance of

the human rights referred to in, inter alia, Articles II and XVIII of

the American Declaration. This authorization, however, does not

turn a non-binding document such as the American Declaration

into a treaty that can be considered to be legally binding upon the

United States.

It is not relevant to analyze whether the United States violated general

norms of international law since the Commission is not an international

tribunal. Moreover, the treaties cited by the Commission (CRP 130) are not

binding upon the United States to the disputed situation, since they either

were ratiﬁed long after the litigation in question was completed (i.e., the

International Covenant on Civil and Political Rights and the Convention on

the Elimination of Racial Discrimination) or the United States has not ratiﬁed

those instruments (i.e., the American Convention and ILO 169).

382 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

V. Conclusion

The United States takes vigorous exception to the conclu-

sions, inter alia, in the Commission’s report that: (a) the United

States violated any provisions of the American Declaration on

the Rights and Duties of Man, and (b) the United States has a

legal obligation to comply with the American Declaration or the

draft OAS declaration on indigenous rights. At all times during

the events that gave rise to the petition herein, the United States

acted in full compliance with its domestic and international legal

obligations.

I. RULE OF LAW AND DEMOCRACY PROMOTION

1. Community of Democracies

The Community of Democracies held a ministerial meeting

November 10–12, 2002, in Seoul, South Korea. The United

States has been a member of the convening group for the

Community of Democracies from the outset, hosting the

inaugural preparatory meeting in Washington, D.C. in 1999.

The Community is “a coalition of democratic countries,

initiated in 1999 which seeks to advance democracy by

providing a forum for the sharing of experiences, identiﬁcation

of best practices and formulation of an agenda for inter-

national cooperation. At the inaugural ministerial gathering

in Warsaw in June 2000, democratic nations throughout the

world pledged their unswerving commitment to upholding

democratic principles, values and practices all around the

globe.” See www.cd2002.go.kr/about/background.htm. See also

www.cd2002.go.kr/about/whatsnew_view.php?idx=10 for criteria

for participation and procedures.

Remarks by Under Secretary of State for Global Affairs

Paula J. Dobriansky to the Roundtable on Consolidating

Democratic Institutions at the Community of Democracies

Ministerial Meeting, November 11, 2002, described the views

of the United States on the issues being addressed.

Human Rights 383

The full text of Under Secretary Dobriansky’s remarks,

excerpted below, is available at www.state.gov/g/rls/rm/2002/

16254.htm.

****

Our circle of democracies now embraces almost 140 countries.

One generation ago—just one generation—our community would

have numbered only about 40 countries.

****

As more and more countries adopt democratic practices, the

evidence continues to mount: Democracy is not a foreign import

or imposition, but an inspiration to men and women all around

the world who work for change within their own societies.

Democratic ideas and values speak to a yearning fundamental

to every human being—a yearning for freedom and dignity and a

better life for themselves and their children.

Some still regard democracy as a luxury that only the world’s

wealthy can afford. But people in the developing world increasingly

see democracy as a necessity. They have discovered that only a

combination of democratic and market freedoms can create

conditions for well-being on the large scale needed to lift millions

out of poverty.

Countries with closed societies, with centrally controlled

economies, and with no civil liberties do a poor job of meeting the

needs of their citizens for food, shelter, education and health care.

That is not ideology. It is fact.

It is also a fact that trade and investment don’t tend to ﬂow to

countries—even democracies—that are rife with corruption, where

civil society remains extremely weak or where leaders, once elected,

fail to invest what resources they have in their people.

New democracies created with high hopes can founder if

ordinary citizens do not see direct improvements in their lives. . . .

That is why we must work intensively to promote democratic

institution-building and the rule of law. That is why we must

foster the development of civil societies and independent media.

And why it is so important that we do all we can to support good

384 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

governance and encourage sound economic management. These

systemic efforts can help build conﬁdence among citizens that

staying democracy’s course will be worth the struggle.

****

The 2002 session concluded with the adoption of the

Seoul Plan of Action—Democracy Investing for Peace and

Prosperity, available at www.state.gov/g/drl/democ/15259.htm,

and the Statement on Terrorism, www.state.gov/g/drl/democ/

15257.htm.

2. Hong Kong: Article 23 of the Basic Law

On November 21, 2002, the United States issued a press

statement concerning the preservation of rights of the people

of Hong Kong under the Basic Law of the Hong Kong Special

Administrative Region of the People’s Republic of China,

adopted on April 4, 1990, by the Seventh National People’s

Congress of the PRC at its Third Session. The Basic Law

entered into effect July 1, 1997, upon Hong Kong’s reversion

to the sovereignty of the People’s Republic of China.

The full text of the press statement is available at

www.state.gov/r/pa/prs/ps/2002/15393.htm.

The United States and Hong Kong share a broad commitment to

preserving the greatest possible degree of autonomy for Hong Kong

and its success as a model of free market capitalism. Congress

explicitly endorsed these goals in the U.S.-Hong Kong Policy Act

of 1992. President Bush, following his October 25 meeting with

Chinese President Jiang Zemin, expressed his interest in the

preservation of the rights of the people of Hong Kong.

We have been carefully following the debate on Article 23

of the Basic Law. The Hong Kong people and the international

community have raised serious concerns about the proposed

legislation. We are encouraged that the Hong Kong Government

has taken to heart some of their proposals, and has paid particular

Human Rights 385

attention to crafting language so as to offer assurances that inter-

national standards of human rights will be fully protected. Public

discussion in Hong Kong has identiﬁed some key areas requiring

clariﬁcation or review. These include:

• proposed extension of treason, sedition, secession, and sub-

version criminal offenses to permanent residents, whether

inside or outside Hong Kong, without regard to their

nationality or legal domicile;

• new restrictions on foreign political organizations that

could compromise the integrity and independence of Hong

Kong’s legal system and function of civil society;

• a proposal for newly-established emergency powers that

does not include sufﬁcient checks and balances to ensure

adequate oversight; and

• new uncertainty about the parameters of “unlawful dis-

closure” of state secrets.

We believe there should be an opportunity for the fullest possible

consultation on the draft legislation; effective consultation and

public conﬁdence requires the early release of the actual language

for public deliberation. We join other members of the international

community in encouraging a predictable, transparent, and fair

system that will allow all in Hong Kong to continue to enjoy

long-standing freedoms and civil liberties that have made Hong

Kong a success as an international city with its own unique

character.

Looking beyond the consultation period, the context for this

debate is the Basic Law’s call for greater democratization, a goal

that requires serious thoughtful attention by the local authorities.

A democratically elected government, answerable to the will of

the people, is the best way to ensure the protection of fundamental

freedoms in Hong Kong.

3. Democracy in Venezuela

On April 18, 2002, Secretary of State Colin L. Powell addressed

a Special Session of the General Assembly of the Organization

of American States concerning events in Venezuela. The

386 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

session was prompted by an attempted military coup against

the government of President Chavez on April 11. Excerpts

below from Secretary Powell’s address provide the views of

the United States in support of democracy and the rule of

law in Venezuela and propose that the assembly mandate

the secretary general to facilitate the national dialogue within

Venezuela.

The full text of Secretary Powell’s address is available at

www.state.gov/secretary/rm/2002/9537pf.htm.

****

The crisis in Venezuelan democracy that brings us to this Special

Session did not begin last week. It built and deepened over many

months. Venezuelan democracy has been crippled for too long by

polarizing rhetoric and action. For many months, we, and others,

have expressed our deep concern about this.

The events of April 11 are a call to all present to reafﬁrm our

collective commitment to democracy and constitutional order.

There is no justiﬁcation for any government to prevent its citizens

from exercising their fundamental rights. That said, it is incumbent

upon all elements of society to seek resolution of grievances through

democratic means. This is the era in our hemisphere of demo-

cracies, not dictatorships, of constitutions, not coup d’etats. Coups

are a thing of the past, not a pathway to the future.

In a democracy, no one can be above, or outside of, the rule of

law. Democracies do not remain democracies for long if elected

leaders use undemocratic methods. And defending democracy by

resorting to undemocratic means destroys democracy.

If the people of Venezuela are to succeed in building better

lives for themselves and better futures for their children, their

political leaders now must come together to resolve problems

constructively and constitutionally.

My country welcomes the voices in Venezuela calling for a

national dialogue. We also agree with Venezuelans who say this

is a time for reconciliation, not retaliation. For calm, not hate. A

time to respect differences and reﬂect on mistakes.

Human Rights 387

We now look to President Chavez to lead his country out of

this crisis by acting on those words. And we urge all democratic

forces in Venezuela from political life, civil society, the business

community, and labor, to participate in that national discussion.

But it is not only the people of Venezuela who must reﬂect

on and learn from what happened there. Our Inter-American

Community must do so as well. All of us must examine how we

could have used the mechanisms of the Democratic Charter before

April 11 to better support Venezuelan democracy.

****

In this effort, our Inter-American Democratic Charter and the

democratic principles it enshrines must be our guide. We must

take a balanced approach as we work together with Venezuela’s

government and society to advance human rights and fundamental

freedoms.

Together, we must also promote a pluralistic system of

political parties and organizations in Venezuela. With our support,

Venezuelans must ensure that all of their state institutions are

subordinate to legally constituted civilian authority.

In keeping with the letter and spirit of the Democratic Charter,

I propose that this Assembly mandate our Secretary General to

facilitate the national dialogue within Venezuela. And I hope that

the people and government of Venezuela will accept the Secretary

General’s offer of his good ofﬁces.

Let us act today to put our Democratic Charter to work for

the people of Venezuela.

J. TERRORISM

On November 15, 2002, in the Third Committee, the United

States joined consensus on Resolution 57/219, Protecting

human rights and fundamental freedoms while countering

terrorism. A/RES/57/219. The explanation of the U.S. position

is provided below.

388 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The United States joined consensus on draft resolution L.61/Rev.1

because we join with Mexico and other sponsors of this resolution

in believing that human rights must be respected by States in their

efforts to counter terrorism. However, we continue to believe that,

in the UN General Assembly, the 6th Committee is the more

appropriate forum to address matters related to terrorism.

In addition, we believe that Preambular Paragraph 3 is incon-

sistent with Article 2, paragraph 1, of the International Covenant

on Civil and Political Rights. That provision expresses the inter-

national standard in this area, namely that States have an obligation

to protect the human rights of all persons who are both in their

territory and subject to their jurisdiction. Preambular paragraph 3

suggests that this obligation is imposed on States concerning “all

persons” without qualiﬁcation or limitation. In the view of my

delegation, this is an inaccurate statement of the international

legal standard.

We had requested that this paragraph accurately reﬂect the

Covenant standard, but in the interest of reaching consensus, we

acquiesced in the use of overly broad language. We, however, do

so, with the understanding that this provision will be interpreted

consistently with our obligations under Article 2, paragraph 1, of

the Covenant.

Cross References

International Criminal Tribunals, Chapter 3.C.

Consular notiﬁcation in criminal cases resulting in death penalty,

Chapter 2.A.

International Organizations and Multilateral Institutions 389

389

CHAPTER 7

International Organizations and

Multilateral Institutions

A. GENERAL

Enforcement of Obligations Under the Paris Convention for the

Protection of Industrial Property

In response to an inquiry from the UN Legal Counsel

concerning the domain name registration for an Internet

site which allegedly conﬂicted with the name of an

international organization, the United States agreed to

“explore further” with relevant U.S. agencies its obligations

under Article 6ter of the Paris Convention for the Protection

of Industrial Property (“Paris Convention”), 21 U.S.T. 1583.

In a June 2002 note to the UN Legal Counsel, the U.S.

Mission to the United Nations provided information on U.S.

obligations in this matter, set forth below.*

The full text of the note is available at www.state.gov/s/l/

c8183.htm.

****

* Article 6ter provides, in pertinent part:

(1) (a) The countries of the Union agree to refuse or to invalidate

the registration, and to prohibit by appropriate measures the use,

without authorization by the competent authorities, either as

trademarks or as elements of trademarks, of armorial bearings, ﬂags,

and other State emblems, of the countries of the Union, ofﬁcial

390 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

While practice on implementation of Article 6ter appears to be

limited, the commentators on the Convention suggest that Member

States enjoy wide latitude in determining how to implement its

requirements. . . . In the United States, enforcement of intellectual

property rights in speciﬁc cases, including in cases involving alleged

infringement of rights under Article 6ter, is a private matter for

the party concerned. In satisfaction of its obligation under the

Convention to prohibit by appropriate measures the use without

authorization of emblems, abbreviations and names of international

intergovernmental organizations communicated through the inter-

mediary of the International Bureau, World Intellectual Property

Organization, the United States has adopted laws which prohibit

unauthorized use of infringing trademarks. . . . These laws satisfy

U.S. obligations under article 6ter by providing the opportunity

for States and international intergovernmental organizations to

pursue remedies for the unauthorized use of names and other

insignia listed in Article 6ter, including in cases involving use on

the internet. Responsibility for evaluating potentially infringing

use of trademarks and other intellectual property, and for taking

enforcement action when deemed appropriate, however, rests with

the party whose interests are affected.

signs and hallmarks indicating control and warranty adopted by

them, and any imitation from a heraldic point of view.

(b) The provisions of subparagraph (a), above, shall apply equally

to armorial bearings, ﬂags, other emblems, abbreviations, and names,

of international intergovernmental organizations of which one or

more countries of the Union are members, with the exception of

armorial bearings, ﬂags, other emblems, abbreviations, and names,

that are already the subject of international agreements in force,

intended to ensure their protection.

****

[3] (b) The provisions of subparagraph (b) of paragraph (1) of

this Article shall apply only to such armorial bearings, ﬂags, other

emblems, abbreviations, and names, of international intergovern-

mental organizations as the latter have communicated to the

countries of the Union through the intermediary of the International

Bureau.

****

International Organizations and Multilateral Institutions 391

Moreover, the United States notes that with respect to

international intergovernmental organizations, obligations under

Article 6ter arise only after receipt of a request for extension of

protection through the International Bureau, in accordance with

the procedures in Article 6ter (3)(b) and (4). . . . Once notiﬁed

pursuant to article 6ter, United States authorities would refuse

registration, or invalidate, conﬂicting trademarks consistent with

the terms of that article, and would be under an obligation to

prohibit by appropriate measures unauthorized use of the notiﬁed

emblem, abbreviation, or name. But . . . the latter obligation would

be met under the laws of general application that the United States

has enacted, and it is the responsibility of the party claiming that

an infringement has occurred to take action under U.S. law to

challenge perceived unlawful use in commerce.

The United States regrets, therefore, that it is unable to provide

the direct enforcement assistance requested in this matter.

****

B. UNITED NATIONS

1. Report of the Special Committee on the Charter of

the United Nations and on Strengthening of the Role

of the Organization

On October 10, 2002, United States Adviser John Arbogast

addressed the work of the Special Committee on the Charter

of the United Nations and on Strengthening of the Role

of the Organization, at the Fifty-seventh Session of the

United Nations General Assembly, in the Sixth Committee.

Mr. Arbogast’s statement noted concerns for certain aspects

of the Committee’s work that “duplicate or signiﬁcantly

overlap work that has been assigned and is being done

elsewhere, or are inappropriate on their face.” Excerpts below

from his prepared statement address areas of work supported

by the United States, including analysis of the effect of

sanctions on third countries and dispute-prevention and

settlement mechanisms.

392 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The full text of Mr. Arbogast’s statement is available at

www.un.int/usa/02_150.htm.

****

There has been productive work done in the Special Committee

on the question of the third country effects of sanctions. Further,

it is partly as a result of the Special Committee’s visible efforts on

this score that this issue is among those being considered and

acted upon by the working group of the Security Council on general

issues of sanctions. Among the material and other information

made available to the working group was the report of the ad hoc

expert group. The expert group, an idea originally suggested by

the U.S. delegation, was convened by the Secretary-General to

help develop a methodology for assessing third state consequences

of sanctions and to explore innovative and practical measures of

international assistance to affected states. The report of the expert

group, including its conclusion that global and regional ﬁnancial

institutions should play the lead role in both assessing and address-

ing third state economic consequences, has served to stimulate much

more focused thinking on the issues involved, including on the part

of the wide range of international organizations and institutions

both inside and outside the UN system that are seized with such

issues. The work on targeted sanctions referred to by the EU in

its statement is but one example of the positive steps that have

been taken in this area since the issuance of the expert group’s

report.

****

There has also been productive work done in the Special Committee

in the area of dispute prevention and settlement mechanisms, which

we believe is a good example of another subject matter on which

the Special Committee is particularly well-suited to engage. We

congratulate Sierra Leone and the United Kingdom for their work

in this regard and we look forward to adoption by the General

Assembly of the draft resolution agreed by the Special Committee

in its last meeting and set forth in paragraph 162 of its report.

My delegation is of the view that these ideas have the potential

International Organizations and Multilateral Institutions 393

to both increase access to and awareness/use of dispute settlement

tools and, equally important, to enhance the Organization’s early

warning and dispute prevention capabilities.

****

2. Report of the International Law Commission

On November 1, 2002, Eric Rosand, Deputy Legal Adviser,

U.S. Mission to the United Nations, provided the views of

the United States on the Report of the International

Law Commission on the Work of its Fifty-fourth Session,

before the Fifty-seventh Session of the United Nations

General Assembly, in the Sixth Committee. Excerpts from

Mr. Rosand’s prepared statement addressing, among other

things, the areas of reservations to treaties and diplomatic

protection. are set forth below.

The full text of Mr. Rosand’s statement is available at

www.un.int/usa/02_173.htm.

****

Treaties continue to constitute the primary source of inter-

national law in our times. We are therefore grateful that the

International Law Commission continues to work on guidelines

on reservations to treaties. Chapter VII of the Commission’s report

summarizes the work done at its most recent session. The report

also sets out a timetable for the completion of the Commission’s

work on the subject that seems longer than we had expected when

the Commission began its work. We hope that the Commission

will ﬁnd a way to accelerate its work in the present quinquennium.

Turning to the substance, I wish to emphasize that the United

States does not support a guideline proposed by the Special

Rapporteur that would alter the neutral “post ofﬁce” concept

of the depositary that is enshrined in the depositary articles of

the Vienna Convention on the Law of Treaties. The proposed

guideline, 2.1.7 bis would give the depositary powers to assess

reservations for “manifest impermissibility” with a treaty. We

394 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

continue to believe that reservations to treaties received by

depositaries should be circulated to the parties for whatever action

they deem appropriate. If a party deems a reservation to be

incompatible with the object and purpose of a treaty, it may take

the action speciﬁed in the Vienna Convention.

At the beginning of its report, the Commission asked for the

views of States as to whether communication of a reservation to a

treaty could be made by electronic mail or facsimile. It also wished

to know if States knew of any practice in the matter.

Given the substantive rules regarding the timing of the making

of reservations (at signature or at ratiﬁcation), the United States

does not see a need for allowing reservations to be made by

electronic mail or facsimile. In its depositary capacity, the United

States has never received a reservation in either medium.

****

Moving on to the important topic of diplomatic protection

. . . the United States would like to share some thoughts regarding

diplomatic protection of legal persons and shareholders, as well as

to offer some views on draft article 4. . . .

With regard to legal persons, we believe that customary inter-

national law recognizes the right of a State in its discretion to

exercise diplomatic protection on behalf of a corporation registered

or incorporated in the State. This right is irrespective of the

nationality of the corporation’s shareholders, absent evidence

of the misuse of the privileges of legal personality. The draft

articles should reﬂect this rule. Although shareholder nationality

is generally not relevant to the State’s right to exercise diplomatic

protection, it should be noted that the United States does take the

nationality of shareholders into consideration in deciding whether

to exercise its discretion to extend diplomatic protection to a

corporation.

The United States also believes that a State may exercise

diplomatic protection on behalf of shareholders . . . for unrecovered

losses to their ownership interests in a corporation registered or

incorporated in another State that is expropriated or liquidated by

the State of registration or incorporation, or for other unrecovered

direct losses.

International Organizations and Multilateral Institutions 395

With regard to draft article 4, we have previously commented

to the Commission that we consider the continuous nationality

rule to be well-settled in customary international law. The rule

requires that a claim may be admissible only if the person injured

as a result of a breach by the respondent State of an international

obligation was a national of the claiming State from the time of

injury continuously through the time of presentation. And the

time of presentation includes the entire period in which the claim

is pursued, that is, the entire period until resolution. State practice

has not developed to the point that States generally entertain, out

of a sense of legal obligation, claims presented by States other

than those of nationality at the time of injury and continuously

thereafter for the entire period during which the claim is pursued.

Thus, any exceptions to the continuous nationality rule cannot

have assumed the force of customary international law.

The United States is concerned that draft article 4 is not in

accord with the customary international law rule on continuous

nationality. The customary international law rule received the

“strong support” of States in the discussion held in the Sixth

Committee during its ﬁfty-sixth session. . . . Draft article 4, as

currently stated, clearly is lex ferenda, as it not only jettisons the

requisite link of nationality beyond the date on which presenta-

tion of the claim begins, but it also dispenses with any continuity

requirement whatsoever. We strongly believe that the ILC should

revise this draft article so that it states the customary international

law rule.

****

With respect to Chapter VII of the Report concerning

“International Liability for Injurious Consequences Arising Out

of Acts Not Prohibited by International Law (International Liabil-

ity in Case of Loss From Transboundary Harm Arising Out of

Hazardous Activities),” we commend the ILC, the working group

studying this issue, and the Special Rapporteur, for their continuing

work on this issue. This topic is of particular importance in the

ﬁeld of international environmental law.

Our general approach to this topic continues to be that

international regulation in the area of liability ought to proceed

396 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

in careful negotiations concerned with particular topics (e.g.,

oil pollution, hazardous wastes) or with particular regions (e.g.,

environmental damage in Antarctica). That work is proceeding

in numerous negotiations, in which issues such as environmental

impact assessment, prevention, and notiﬁcation are being given

detailed treatment. Although work can and should proceed in

these regional and sectoral contexts, we do not perceive a desire

among states to develop a global liability regime. Further efforts

that take into account and support such regional and sectoral

efforts, however, are welcome.

****

I would also like brieﬂy to comment upon the inclusion of the

topic of shared natural resources in the Commission’s programme

of work. We are skeptical that approaching this topic in such a

broad manner will be a productive line of study. While the United

States can support ILC work on the issue of groundwater, we are

concerned that other aspects of transboundary resources are not

ripe for ILC study at this time. . . . Transboundary watercourses

was a topic that presented speciﬁc issues that had often been

encountered in practice. Apart from the area of transboundary

watercourses, however, real conﬂicts rarely arise between States

on other shared natural resources and when they do arise, States

have worked out practical accommodations to ﬁt the speciﬁc

situations. An attempt to extrapolate customary international law

from this divergent practice would not be a productive exercise.

Thus, we believe ILC resources would be better utilized through

study of groundwater issues, rather than the overly-broad “shared

natural resources.”

****

3. Reform and Payment of U.S. arrears

a. Modernizing UN management

On October 25, 2002, Minister Counselor Howard Stoffer,

United States Mission to the United Nations, addressed

International Organizations and Multilateral Institutions 397

Agenda item 114: Improving the Financial Situation of the

United Nations, before the Fifth Committee. In excerpts

from his remarks below, Mr. Stoffer supported reform efforts

and announced the payment of the third and ﬁnal “tranche”

of certain U.S. arrears in accordance with the Helms-Biden

legislation, discussed in 3.b. below.

The full text of Mr. Stoffer’s remarks is available at

www.un.int/usa/02_170.htm.

****

The U.S. is pleased to see that the Secretary-General has

initiated a number of projects to modernize UN management and

ensure that resources contributed by Member States are used

efﬁciently and effectively.

We are also pleased that Member States have acted on key

initiatives, including safety/security and human resources reform,

aimed at protecting and strengthening the Organization’s most

valuable resource, its staff.

The ﬁnancial picture appears much improved compared to

several years ago, and we would like to express our appreciation

to Mr. Connor and his team for managing the UN’s complex

ﬁnances.

I would like to announce that, like other Member States, the

United States too is working hard to pay its current assessments as

well as its arrears. In fact, we will have paid more than $1 billion

to the UN before the end of the year, thus helping to further

improve the ﬁnancial situation:

• Regular Budget—The United States, by the end of the

month, will have paid $255 million or about 90 percent of

its assessment for the year, with the remainder to be paid

as soon as our Congress approves our full-year budget.

• Peacekeeping—We will pay almost $285 million in

peacekeeping assessments by the end of October and are

ready to pay another $227 million early next year when

the assessment bills are sent out. These amounts also

include payments for the War Crimes Tribunals.

398 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

• Arrears—[T]he recent approval of Tranche III under the

Helms-Biden legislation will soon provide $30 million to

the UN for peacekeeping arrears and an additional $214

million to other UN system agencies. Another $70 million

in peacekeeping arrears was recently paid as a result of the

lifting of the “cap” on our assessment rate.

With the Tranche III payments, the United States will complete

an important chapter in its relations with the UN.

But our interest in UN reform will not end. We will continue

to work with others to ensure that the Organization constantly

strives to set priorities as it responds to the demands placed on it

by Member States.

****

b. U.S. legislation governing payment of arrears

As noted above, the United States made the third and

ﬁnal payment of certain arrears to the United Nations and

other international organizations in 2002 in accordance with

applicable U.S. legislation. In October 2002 the Department

of State transmitted a statutorily required certiﬁcation to

Congress that all conditions had been met for such payment.

The certiﬁcation was made pursuant to section 941 of the

Admiral James W. Nance and Meg Donovan Foreign

Relations Authorization Act, Fiscal years 2000 and 2001,

Pub. L. No. 106–113, 113 Stat. 1501, amended by Pub. L. No.

107–46, 115 Stat. 259 and Pub. L. No. 107–228, 116 Stat. 1350

(commonly referred to as the “Helms-Biden legislation”).

The Helms-Biden legislation authorized $819 million in

arrears funding for the United Nations and other international

organizations (plus $107 million in mutual debt reduction.)

Under the legislation, payment of arrears was allowed to be

made in three “tranches,” each of which was linked to speciﬁc

conditions, which the Secretary of State was required to certify

before the funds could be made available. Former Secretary

Albright made the required certiﬁcation for the ﬁrst tranche

of $100 million in December 1999. The conditions for this

ﬁrst payment, set forth in section 921, related to U.S.

International Organizations and Multilateral Institutions 399

sovereignty and maintaining limitations on the UN’s ability

to raise revenue.

The tranche II conditions in section 931, as amended,

required, among other things, that no member state be

assessed more than 22 percent for the UN regular budget

and that no member state be assessed more than 28.15

percent for UN peacekeeping activities. Former Secretary of

State Madeline K. Albright certiﬁed these conditions in January

2001 and October 2001.

The tranche III conditions, in section 941, are reﬂected

in the certiﬁcation set forth below.

By virtue of the authority vested in me as Secretary of State,

pursuant to section 941 of the Admiral James W. Nance and Meg

Donovan Foreign Relations Authorization Act, Fiscal Years 2000

and 2001 (as contained in P.L. 106–113), as amended, I hereby

certify that as of October 2002:

1. (A) Each designated specialized agency [deﬁned throughout

as the Food and Agriculture Organization, the Inter-

national Labour Organization, and the World Health

Organization] has established an independent ofﬁce of

inspector general to conduct and supervise objective audits,

inspections, and investigations relating to the programs

and operations of the organization.

(B) The Director General of each designated specialized agency

has appointed an inspector general, with the approval of

the member states, and that appointment was made

principally on the basis of the appointee’s integrity and

demonstrated ability in accounting, auditing, ﬁnancial

analysis, law, management analysis, public administration,

or investigations.

is authorized to—

(i) Make investigations and reports relating to the

administration of the programs and operations of the

agency concerned;

400 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

(ii) Have access to all records, documents, and other

available materials relating to those programs and

operations of the agency concerned; and

(iii) Have direct and prompt access to any ofﬁcial of the

agency concerned.

(D) Each designated specialized agency has procedures in place

designed to protect the identity of, and to prevent reprisals

against, any staff member making a complaint or disclosing

information to, or cooperating in any investigation or

inspection by, the inspector general of the agency.

(E) Each designated specialized agency has in place procedures

designed to ensure compliance with the recommendations

of the inspector general of the agency.

(F) Each designated specialized agency has in place pro-

cedures to ensure that all annual and other relevant reports

submitted by the inspector general to the agency are made

available to the member states without modiﬁcation except

to the extent necessary to protect the privacy rights of

individuals.

2. The United Nations is implementing budget practices that

result in:

(A) the maintenance of a budget not in excess of the level

agreed to by the General Assembly at the beginning of

each United Nations budgetary biennium, unless increases

are agreed to by consensus; and

(B) the system-wide identiﬁcation of expenditures by func-

tional categories such as personnel, travel and equipment.

3. (A) The Secretary General and the Director General of each

designated specialized agency have used their existing

authorities to require program managers within the United

Nations Secretariat and the Secretariats of the designated

specialized agencies to conduct evaluations of United

Nations programs approved by the General Assembly, and

of programs of the designated specialized agencies, in

accordance with the standardized methodology referred

to in subparagraph (B).

(B) (i) The Ofﬁce of Internal Oversight Services has developed

a standardized methodology for the evaluation of

International Organizations and Multilateral Institutions 401

United Nations programs approved by the General

Assembly, including speciﬁc criteria for determining

the continuing relevance and effectiveness of the

programs.

(ii) Patterned on the work of the Ofﬁce of Internal

Oversight Services of the United Nations, each design-

ated specialized agency has developed a standardized

methodology for the evaluation of the programs

of the agency, including speciﬁc criteria for determin-

ing the continuing relevance and effectiveness of the

programs.

of the Secretary General regarding a sunset policy and

results-based budgeting for United Nations programs, the

United Nations and each designated specialized agency

has established and is implementing procedures—

(i) requiring the Secretary General or the Director General

of the agency, as the case may be, to report on the

results of evaluations referred to in this paragraph,

including the identiﬁcation of programs that have met

criteria for continuing relevance and effectiveness and

proposals to terminate or modify programs that have

not met such criteria; and

(ii) authorizing an appropriate body within the United

Nations or the agency, as the case may be, to review

each evaluation referred to in this paragraph and

report to the General Assembly on means of improving

the program concerned or on terminating the program.

(D) It shall be the policy of the United States to seek adop-

tion by the United Nations of a resolution requiring that

each United Nations program approved by the General

Assembly, and to seek adoption by each designated

specialized agency of a resolution requiring that each

program of the agency, be subject to an evaluation referred

to n this paragraph and have a speciﬁc termination date

so that the program will not be renewed unless the

evaluation demonstrates the continuing relevance and

effectiveness of the program.

402 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

4. The United States has a seat on the United Nations Advisory

Committee on Administrative and Budgetary Questions;

5. The United Nations has in effect procedures providing access

by the United States General Accounting Ofﬁce to United

Nations ﬁnancial data to assist the Ofﬁce in performing

nationally mandated reviews of United Nations operations.

6. (A) The Secretary General—

(i) has established and is implementing procedures that

ensure that staff employed by the United Nations is

appointed on the basis of merit consistent with Article

101 of the United Nations Charter; and

(ii) is enforcing those contractual obligations requiring

worldwide availability of all professional staff of the

United Nations to serve and be relocated based on the

needs of the United Nations.

(B) The General Assembly has adopted, and the Secretary

General has the authority to enforce and is effectively

enforcing, a code of conduct binding on all United Nations

personnel, including the requirement of ﬁnancial disclosure

statements binding on senior United Nations personnel

and the establishment of rules against nepotism that are

binding on all United Nations personnel.

personnel evaluation system.

(D) The United Nations has established and is implementing

a mechanism to conduct periodic assessments of the United

Nations payroll to determine total stafﬁng, and the results

of such assessments are reported in an unabridged form

to the General Assembly.

(E) The United States has completed a thorough review of the

United Nations personnel allowance system. The review

shall include a comparison of that system with the United

States civil service system, and shall make recommenda-

tions to reduce entitlements to allowances and allowance

funding levels from the levels in effect on January 1, 1998.

7. The designated specialized agencies have achieved zero nominal

growth in their biennium budgets for 2000–01 from the 1998–

99 biennium budget levels of the respective agencies.

International Organizations and Multilateral Institutions 403

8. The practices of each designated specialized agency—

(A) result in the maintenance of a budget that does not exceed

the level agreed to by the member states of the organiza-

tion at the beginning of each budgetary biennium, unless

increases are agreed to by consensus;

(B) result in the identiﬁcation of expenditures by functional

categories such as personnel, travel, and equipment; and

supplemental budget requests to the Secretariat in advance

of expenditures under those requests.

9. The share of the total of all assessed contributions for any

designated specialized agency does not exceed 22 percent for

any single member of the agency.

C. UNITED NATIONS ORGANIZATIONS

1. United States Rejoins UNESCO

On September 12, 2002, President George W. Bush

announced in an address to the UN General Assembly that

the United States would rejoin the UN Education, Scientiﬁc

and Cultural Organization (“UNESCO”). A fact sheet released

by the White House on the same day described the history

of U.S. involvement with UNESCO:

The United States withdrew from UNESCO in 1984, citing

poor management and values opposed to our own. For

example, the Director-General of UNESCO at the time

advocated for limitations on a free press.

Since reforms began under new leadership in 1999,

UNESCO has made signiﬁcant progress. UNESCO’s

management structure has been dramatically reformed;

senior positions have been slashed by about 50 per-

cent; and capable managers have been brought in to

administer key functions including personnel selection

and auditing. And it is now dedicated to promoting values

such as press freedom and education for all.

404 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

In 2001, the House voted to authorize the $60 million

dues payment required for the United States to rejoin

UNESCO. . . .

Available at www.whitehouse.gov/news/releases/2002/09/

20020912-4.html.

The full text of the President’s address to the UN, ex-

cerpted below, is available at www.un.int/usa/02_131.htm.

Mr. Secretary General, Mr. President, distinguished delegates,

and ladies and gentlemen: We meet one year and one day after a

terrorist attack brought grief to my country, and brought grief to

many citizens of our world. Yesterday, we remembered the inno-

cent lives taken that terrible morning. Today, we turn to the urgent

duty of protecting other lives, without illusion and without fear.

We’ve accomplished much in the last year—in Afghanistan

and beyond. We have much yet to do—in Afghanistan and beyond.

Many nations represented here have joined in the ﬁght against

global terror, and the people of the United States are grateful.

The United Nations was born in the hope that survived a

world war—the hope of a world moving toward justice, escaping

old patterns of conﬂict and fear. The founding members resolved

that the peace of the world must never again be destroyed by the

will and wickedness of any man. We created the United Nations

Security Council, so that, unlike the League of Nations, our

deliberations would be more than talk, our resolutions would be

more than wishes. After generations of deceitful dictators and

broken treaties and squandered lives, we dedicated ourselves to

standards of human dignity shared by all, and to a system of

security defended by all.

Today, these standards, and this security, are challenged. Our

commitment to human dignity is challenged by persistent poverty

and raging disease. The suffering is great, and our responsibilities

are clear. The United States is joining with the world to supply

aid where it reaches people and lifts up lives, to extend trade and

the prosperity it brings, and to bring medical care where it is

desperately needed.

International Organizations and Multilateral Institutions 405

As a symbol of our commitment to human dignity, the United

States will return to UNESCO.

This organization has been reformed and America will

participate fully in its mission to advance human rights and

tolerance and learning.

****

2. Observer Status at the World Health Organization: Taiwan

In response to a question from the press, on May 10, 2002,

the Ofﬁce of the Spokesman of the Department of State

provided the views of the United States on observer status

of Taiwan in the World Health Organization, available at

www.state.gov/r/pa/prs/ps/2002/10085.htm.

Question: What is the U.S. position on Taiwan observership in

the World Health organization (WHO)?

Answer: We support the goal of Taiwan’s participation in the

work of the World Health Organization (WHO), including

observership, and have long worked closely with Taiwan

authorities to advance that objective.

We have urged the WHO and its members to ﬁnd appropriate

ways for Taiwan to participate, including observership. We will

continue to do so.

****

Cross References

International criminal tribunals, Chapter 3.C.

Privileges and immunities of international organizations, Chap-

ter 10.D.

Establishment of Global Aids Fund as independent legal entity,

Chapter 13.B.1.

Allie

International Claims and State Responsibility 407

407

CHAPTER 8

International Claims and

State Responsibility

A. GOVERNMENT-TO-GOVERNMENT CLAIMS

Claims Against Iraq: United Nations Compensation Commission

After the invasion and liberation of Kuwait, in 1991 the

United Nations Security Council adopted Resolution 692,

establishing the United Nations Compensation Commission

(“UNCC”) in Geneva, as provided in section E of Security

Council Resolution 687. The purpose of the UNCC was to

resolve claims against Iraq by foreign nationals, companies,

and governments that arose as a direct result of the invasion

and occupation of Kuwait. The UNCC has received about

2.6 million claims from claimants worldwide, with an asserted

value in excess of $300 billion. The UNCC will continue to

review and validate claims over the next two or three years

using panels of commissioners who are experts in inter-

national law, ﬁnance, and other ﬁelds.

The United States submitted to the UNCC over 3,000

individual claims for losses arising from the Iraqi invasion

and occupation of Kuwait. These losses include personal

property, bank accounts and securities, income, salary or

support, real property, and individual business losses, as

well as claims for losses resulting from departure from Iraq

and Kuwait, and serious personal injury or death. The United

States also submitted 155 claims from U.S. corporations and

over a dozen claims from U.S. Government agencies for

losses attributable to Iraq’s invasion of Kuwait.

408 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Funds to pay successful claimants come from Iraqi oil

sales under the UN Oil-for-Food program. As of December

2002, 25 percent of the proceeds of all of Iraq’s oil sales

were being deposited in a special compensation fund to

permit the UNCC to make payments on claims and to fund

its ongoing operations.

Fewer than 150 American claims against Iraq remain to

be reviewed and awarded by the UNCC. Awards are paid

as funds become available in the Compensation Fund. As of

December 2002, successful American claimants had received

approximately $250 million toward UNCC awards totaling

almost $700 million.

B. CLAIMS OF INDIVIDUALS

1. Terrorist Victim Compensation

a. Proposed compensation fund for victims of terrorist attacks

Following September 11, 2001, the United States established

a fund to compensate the victims and families of victims

from the terrorist attacks of that day. Subsequently, efforts

were made to establish a permanent means for compensating

victims of terrorism.

On June 12, 2002, Richard L. Armitage, Deputy Secretary

of State, wrote to congressional leadership and members of

key congressional committees, stating the Administration’s

preference for any such fund to be modeled after the federal

beneﬁt provided to the families of public safety ofﬁcers killed

in the line of duty. Excerpts from the letter set forth below

explain the basis for this preference and the Administration’s

opposition to the use of blocked assets to fund victim

compensation or to satisfy judgments, as a matter of foreign

policy.

The full text of the letter is available at www.state.gov/s/l/

c8183.htm.

****

International Claims and State Responsibility 409

As you know, pending legislation would create compensation

funds modeled on the September 11th Victim Compensation Fund

for certain victims of terrorist attacks. The Administration

believes, however, that based on our experience with managing

the September 11th fund, we can make substantial improvements

to any future program to compensate victims of international

terrorism in order to ensure more equitable, expeditious assistance.

Recognizing the many substantial concerns voiced by Americans

to the structure of the September 11th fund, the Administration

proposes to model any additional program for compensation for

victims of international terrorism after the federal beneﬁt pro-

vided to the families of public safety ofﬁcers killed in the line of

duty (see 42 U.S.C. 3796), and to fund the program out of the

International Affairs 150 Account.

Last fall, recognizing the tremendous sacriﬁces of our

nation’s public safety ofﬁcers, overwhelming majorities in Congress

voted to streamline the Public Safety Ofﬁcer Beneﬁt program and

to increase payments under the program from approximately

$150,000 to $250,000, indexed for inﬂation. This program has

been a tremendous success in providing prompt compensation to

the families of public safety ofﬁcers killed on September 11th and

other public safety ofﬁcers killed in the line of duty. We believe

that designing a program for victims of international terrorism

based on the public safety ofﬁcer beneﬁt model will make the

following important improvements to the September 11th Program:

First, this approach will ensure that the victim compensation

program provides victims with lower incomes the same awards

that it provides to victims with higher incomes. . . .

Second, the claims process under this approach will be quick,

streamlined, and simple, in order to help victims’ families in their

time of need. . . .

Third, the amount of compensation should be on par with

that provided to families of public safety ofﬁcers killed in the

line of duty. Like the Public Safety Ofﬁcer Beneﬁt program, the

approach we are proposing would provide ﬁxed amounts of

compensation, without offsetting collateral sources or requiring vic-

tims to waive rights to civil litigation. (In order to prevent double

recovery, the government should have a right of reimbursement if

410 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

an individual actually receives compensation from the defendants

in a lawsuit for the same injuries for which they were compensated

under this program.)

Importantly, this approach would preserve the President’s

ability to conduct foreign policy. The Administration opposes the

use of blocked assets to fund victim compensation or to satisfy

judgments. Using blocked assets would preclude their use to pres-

sure regimes to improve their policies on terrorism, risk taxpayer

liability for third-party claims against the assets, eliminate their

availability to satisfy current U.S. Government claims (currently

more than $2 billion), and put at risk diplomatic property.

****

b. Use of blocked assets for terrorist victims compensation

On November 26, 2002, President George W. Bush signed

into law the Terrorism Risk Insurance Act of 2002, Pub. L.

No. 107–297, 116 Stat. 2322, 15 U.S.C. § 6701 note. Title II of

that act, Treatment of Terrorist Assets, made blocked assets

belonging to a “terrorist party” available for satisfaction of a

judgment against that party for compensatory damages based

upon an act of terrorism. This requirement of availability can

only be waived by the President on the basis of national

security interest. The term “terrorist party” is deﬁned to

include individuals and organizations as well as a foreign

state designated as a state sponsor of terrorism. Diplomatic

and consular property protected by the Vienna Convention

on Diplomatic Relations or the Vienna Convention on

Consular Relations, and being used exclusively for diplomatic

or consular purposes, is excluded from the deﬁnition of

“blocked assets.” Section 201(c) of the act also made speciﬁc

amendments for cases against Iran, including a provision for

distribution of account balances and proceeds inadequate to

satisfy the full amount of compensatory awards against Iran.

Key provisions of the act are set forth below.

****

International Claims and State Responsibility 411

SEC. 201. SATISFACTION OF JUDGMENTS FROM

BLOCKED ASSETS OF TERRORISTS,

TERRORIST ORGANIZATIONS, AND

STATE SPONSORS OF TERRORISM.

(a) In General.—Notwithstanding any other provision of law,

and except as provided in subsection (b), in every case in which

a person has obtained a judgment against a terrorist party on a

claim based upon an act of terrorism, or for which a terrorist

party is not immune under section 1605(a)(7) of title 28, United

States Code, the blocked assets of that terrorist party (including

the blocked assets of any agency or instrumentality of that terror-

ist party) shall be subject to execution or attachment in aid of

execution in order to satisfy such judgment to the extent of any

compensatory damages for which such terrorist party has been

adjudged liable.

(b) Presidential Waiver.—

(1) In General.—Subject to paragraph (2), upon deter-

mining on an asset-by-asset basis that a waiver is necessary in the

national security interest, the President may waive the requirements

of subsection (a) in connection with (and prior to the enforcement

of) any judicial order directing attachment in aid of execution or

execution against any property subject to the Vienna Convention

on Diplomatic Relations or the Vienna Convention on Consular

Relations.

(2) Exception.—A waiver under this subsection shall not apply

to—

(A) property subject to the Vienna Convention on Diplomatic

Relations or the Vienna Convention on Consular Relations that

has been used by the United States for any nondiplomatic purpose

(including use as rental property), or the proceeds of such use; or

(B) the proceeds of any sale or transfer for value to a third

party of any asset subject to the Vienna Convention on Diplomatic

Relations or the Vienna Convention on Consular Relations.

****

(d) Definitions.—In this section, the following deﬁnitions

shall apply:

412 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

(1) Act of terrorism.—The term “act of terrorism”

means—

(A) any act or event certiﬁed under section 102(1) [of this

Act]; or

(B) to the extent not covered by subparagraph (A), any terrorist

activity (as deﬁned in section 212(a)(3)(B)(iii) of the Immigration

and Nationality Act (8 U.S.C. 1182(a)(3)(B)(iii))).

(2) Blocked asset.—The term “blocked asset” means—

(A) any asset seized or frozen by the United States under sec-

tion 5(b) of the Trading With the Enemy Act (50 U.S.C. App.

5(b)) or under sections 202 and 203 of the International Emergency

Economic Powers Act (50 U.S.C. 1701; 1702); and

(B) does not include property that—

(i) is subject to a license issued by the United States Govern-

ment for ﬁnal payment, transfer, or disposition by or to a person

subject to the jurisdiction of the United States in connection

with a transaction for which the issuance of such license has been

speciﬁcally required by statute other than the International

Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) or

the United Nations Participation Act of 1945 (22 U.S.C. 287 et

seq.); or

(ii) in the case of property subject to the Vienna Convention

on Diplomatic Relations or the Vienna Convention on Consular

Relations, or that enjoys equivalent privileges and immunities under

the law of the United States, is being used exclusively for diplomatic

or consular purposes.

(3) Certain property.—The term “property subject to

the Vienna Convention on Diplomatic Relations or the Vienna

Convention on Consular Relations” and the term “asset subject

to the Vienna Convention on Diplomatic Relations or the Vienna

Convention on Consular Relations” mean any property or asset,

respectively, the attachment in aid of execution or execution of

which would result in a violation of an obligation of the United

States under the Vienna Convention on Diplomatic Relations

or the Vienna Convention on Consular Relations, as the case

may be.

(4) Terrorist party.—The term “terrorist party” means

a terrorist, a terrorist organization (as deﬁned in section

International Claims and State Responsibility 413

212(a)(3)(B)(vi) of the Immigration and Nationality Act (8 U.S.C.

1182(a)(3)(B)(vi))), or a foreign state designated as a state sponsor

of terrorism under section 6(j) of the Export Administration Act

of 1979 (50 U.S.C. App. 2405(j) ) or section 620A of the Foreign

Assistance Act of 1961 (22 U.S.C. 2371).

2. Claims by Vietnamese Employees

On November 8, 2002, the United States moved to dismiss

Hue Thi Nguyen v. U.S., Fed. Cl. No. 02–969. In that case, a

purported class of Vietnamese who worked for the U.S.

government in Vietnam prior to April 30, 1975, claimed they

were entitled to back pay and beneﬁts earned before the U.S.

withdrawal on that date. The U.S. motion noted at the outset

that a similar action had been dismissed on April 25, 2002,

for lack of jurisdiction based upon expiration of the statute

of limitations. Buong Van Ho v. U.S., 52 Fed.Cl. 664 (2002).

The U.S. motion argued that the court lacked jurisdiction

because, “[w]hile plaintiffs base their claims upon alleged

employment contracts with defendant, at best, plaintiffs

served in their positions by appointment, not contract,” and

that plaintiffs could not establish any other valid basis for

jurisdiction in the court. In addition, it argued that any claims

that plaintiffs might have were barred by the statute of

limitations and the doctrine of laches, and that they had

failed to set forth allegations sufﬁcient to establish that

citizens of the United States are accorded the reciprocal

right to sue the sovereign of the Socialist Republic of Vietnam

(“SRV”) in Vietnam’s courts, as required by 28 U.S.C. § 2502.

The motion to dismiss also argued that the 1995

agreement reached between the United States and the SRV

settling certain claims between the two countries consti-

tuted a full and ﬁnal settlement and discharge of any valid

claims presented. Agreement Between the United States of

America and the Government of the Socialist Republic of

Vietnam Concerning the Settlement of Certain Property Claims,

January 28, 1995, State Dep’t No. 95–39, KAV No. 4147, 1995

414 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

WL 79523. That section of the motion is set forth below

(citations to Complaint omitted).

The full text of the U.S. Motion to Dismiss is available at

www.state.gov/s/l/c8183.htm.

****

The Claims Agreement Between the United States and Vietnam

Extinguished Plaintiffs’ Claims

During the 1990’s, the United States and Vietnam began the

process of normalizing their relations. As part of this process, in

January 1995, the two countries entered into an agreement settling

the claims between them. The claims agreement was to “constitute

a full and ﬁnal settlement and discharge” of:

the claims of Vietnam and nationals of Vietnam (includ-

ing natural and juridical persons) against the United States

arising from the nationalization, expropriation, or taking

of, or other measures directed against, properties, rights

and interests of Vietnam or Vietnamese nationals prior to

the entry into force of this agreement. 1995 WL 79523.

In return, the claims agreement settled all similarly situated

claims of the United States and its nationals. Id. To fund these

claims, the United States undertook to unblock all of Vietnam’s

frozen assets, and Vietnam agreed to pay the United States

$208,510,481. Id. In other words, when the United States and

Vietnam entered into the claims agreement, they settled all claims

of the United States and its nationals against Vietnam, as well as

all claims of Vietnam and its nationals against the United States.

The United States and Vietnam plainly had the authority to

settle such claims. Dames & Moore v. Regan, 453 U.S. 654, 679

(1981). As noted by this Court, it is “established international

practice” that sovereigns may settle the claims of their nationals,

with or without their consent. Shanghai Power Co. v. United States,

4 Cl. Ct. 237, 244 (1983), aff’d, 765 F.2d 159 (Fed. Cir.), cert.

denied, 474 U.S. 909 (1985) (citing Dames & Moore, 453 U.S.

at 679–80); see, e.g., S.N.T. Fratelli Gondrand v. United States,

International Claims and State Responsibility 415

166 Ct. Cl. 473, 479–80 (1964) (plaintiffs’ claims barred by peace

treaty with Italy).

Thus, Vietnam had the authority to waive the claims of its

nationals, and it did so with regard to its nationals’ claims against

the United States. Pursuant to the claims agreement, if (1) a

Vietnamese national, (2) makes a claim against the United States,

(3) occurring prior to 1995, (4) arising out of “nationalization,

expropriation, or taking of, or other measures directed against”

the national’s property, rights, or interests, then the claim is barred.

1995 WL 79523.

In this case, there can be no doubt that the claims agreement

bars plaintiffs’ claims. Plaintiffs allege they are Vietnamese nation-

als. Plaintiffs assert their claims against the United States. Plaintiffs

allege their deprivation occurred in 1975, well before the claims

agreement’s entry into force. Plaintiffs allege they were deprived

of their earnings, so their claims allege an expropriation, taking of,

or measure directed against their property, rights, or interests.

In addition, plaintiffs allege that the United States was “speciﬁc-

ally prohibited by federal regulation” from paying plaintiffs for

their earnings. Thus, plaintiffs’ complaint speciﬁcally identiﬁes

a “measure directed against” plaintiffs’ rights and interests, above

and beyond the takings and expropriations otherwise alleged.

Plaintiffs’ claims, therefore, are barred by the claims agreement,

and their complaint must be dismissed for failure to state a claim

upon which relief may be granted.

****

3. Claims by Victims of the Nazi Era and Victims’ Heirs:

Insurance Claims

a. Constitutionality of California Holocaust Victims Insurance

Relief Act

In December 2002 the United States ﬁled a brief as amicus

curiae in the Supreme Court supporting petitioners in Amer-

ican Insurance Association v. Low, Nos. 02–722 and 02–723,

urging that a petition for a writ of certiorari be granted. At

issue was a Ninth Circuit decision upholding the Holocaust

416 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Victims Insurance Relief Act (“HVIRA”), a statute of the state

of California. Gerling Global Reinsurance Corp. of America

v. Low, 296 F.3d 832 (9

Cir. 2002) (“Low II”). HVIRA

was enacted in an effort to provide a means of assuring

compensation for Holocaust victims and their families. Cal.

Ins. Code §§ 13800–13807. As part of a broader statutory

scheme, it required insurers doing business in the state to

disclose, through a public registry, detailed policy informa-

tion regarding millions of European insurance policies issued

by the domestic companies’ European afﬁliates prior to and

during World War II. The requirements apply to all Holocaust-

era policies, regardless of any connection with California.

In 2001 the court of appeals reversed a decision by the

U.S. District Court for the Eastern District of California that

had found HVIRA unconstitutional on the ground that HVIRA

interfered with the federal government’s control over foreign

affairs and that it violated the Commerce Clause of the U.S.

Constitution. The court of appeals rejected the legal conclu-

sions of the district court, but remanded for consideration

as to whether the statute violated due process. 240 F.3d 739

Cir. 2001) (“Low I”). On remand, the district court again

enjoined enforcement of the statute, ﬁnding that it violated

the Due Process Clause of the Fourteenth Amendment to

the Constitution by suspending insurers’ licenses for not

making required disclosures, without enabling them to raise

defenses such as a foreign law prohibition on disclosure.

186 F. Supp. 2d 1099 (E.D. Cal. 2001). In reversing this

second district court decision, the court of appeals found

that HVIRA was not unconstitutional. It took the view that

the California statute merely regulated the insurance industry

within California. 296 F.3d at 835–836. The court of appeals

denied a petition for rehearing en banc on September 9,

2002. 2002 U.S. App. LEXIS 18469 (9

Cir).

Excerpts below from the U.S. brief in the Supreme Court

supporting the grant of certiorari set forth the views of

the United States that the Constitution precludes extraterrit-

orial state legislation such as HVIRA and that the statute

impermissibly intrudes into matters of foreign relations

International Claims and State Responsibility 417

reserved to the national government. The brief also pointed

out that there was a disagreement among the courts of

appeals on this issue. The Ninth Circuit Court of Appeals had

“expressly declined to follow Gerling Global Reinsurance Corp.

v. Gallagher, 267 F.3d 1228 (11

Cir. 2001), which invalidated

a similar statute in Florida on due process grounds because of

its extraterritorial reach.” See also discussion of the litigation

in Florida and California in Digest 2000 at 460; Digest 2001

at 414n. Certiorari was granted in January 2003. 123 S.Ct.

817 (2003). Internal citations to other pleadings have been

omitted from the excerpts that follow.

The full text of the U.S. brief is available at www.state.gov/

s/l/c8183.htm.

****

1. a. Since the end of World War II, the United States has

committed substantial diplomatic resources toward achieving

compensation for the victims of Nazism. The United States and

its allies entered into treaties with the post-War governments of

Germany and Austria that required them to provide compensa-

tion to such persons. More recently, the United States has engaged

in extensive international discussions concerning claims arising

out of the Holocaust. As a result of those discussions, the United

States has entered into executive agreements with Germany and

Austria and has issued a joint statement with Switzerland.

With respect to insurance claims, the United States has sought

expeditious compensation for Holocaust victims in accordance

with the procedures established by the International Commission

on Holocaust Era Insurance Claims (ICHEIC). ICHEIC is a volunt-

ary organization formed by ﬁve European insurance companies

(including petitioners Generali and Winterthur), the State of Israel,

Jewish organizations, and the National Association of Insurance

Commissioners.

It is chaired by former Secretary of State Lawrence

The United States has observer status in ICHEIC. Several European

countries, including Germany, France, Italy, Poland, and the Czech Republic,

have observer status as well.

418 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

S. Eagleburger. Through ICHEIC, Holocaust victims’ insurance

claims are processed and checked against European insurers’

records in a manner consistent with European data protection

laws. The State Department has stated that ICHEIC “should

be recognized as the exclusive remedy for all insurance claims

that date to the Nazi era” and has “encourag[ed] all insurance

companies that wrote policies during the Nazi era to join the

ICHEIC.” Ofﬁce of the Spokesman, U.S. Dep’t of State, Inter-

national Commission on Holocaust Era Insurance Claims Begins

World-wide Effort to Identify Unpaid Claims (Feb. 15, 2000).

b. The United States’ approach to the resolution of Holocaust

victims’ compensation claims, including insurance claims, is em-

bodied in the executive agreement entered into between the United

States and Germany two years ago. That agreement recognizes the

creation of a foundation in Germany, funded with some $5 billion

from public and private sources, to address Holocaust-era claims

against German companies that were not addressed by earlier

compensation laws. The German government agreed to supervise

the activities of the foundation and to assure that the foundation

publicizes its existence (Art. 1, ¶¶ 2,3). It also agreed that all claims

by or on behalf of Holocaust victims against German insurance

companies would be processed by those companies and the German

Insurance Association based on ICHEIC procedures and additional

procedures that may be agreed to among ICHEIC, the foundation,

and the German Insurance Association. (Art. 1, ¶ 4).

The United States, in turn, agreed to inform its courts that “it

would be in [its] foreign policy interests * * * for the Foundation

to be the exclusive remedy and forum for resolving [Holocaust-

era] claims asserted against German companies.” (Art. 2, ¶ 1).

The United States also agreed to “use its best efforts” with state

and local governments to achieve an “all-embracing and enduring

legal peace” with respect to such claims. (Art. 2, ¶ 2).

The executive agreement between the United States and Austria, which

consists of an exchange of diplomatic notes and annexes, contains nearly iden-

tical undertakings. See Exchange of Notes (Jan. 23, 2001), Annex A, ¶ 14;

<http://www.usembassy.at/en/policy/annexa.htm>. The joint statement of

International Claims and State Responsibility 419

2. The State of California has taken a different approach to

assuring compensation for Holocaust victims and their families,

both in the statute at issue here, the Holocaust Victim Insurance

Relief Act of 1999 (HVIRA), Cal. Ins. Code §§ 13800 et seq., and

several closely related statutes.

HVIRA requires the Commissioner of Insurance to establish a

Holocaust Era Insurance Registry containing detailed information

on insurance policies issued to Holocaust victims without regard

to whether those victims ever lived in California. Cal. Ins. Code

§ 13803. The public is to have access to the Registry. Ibid. In order

to obtain information for the Registry, HVIRA requires all insurers

doing business in California to disclose information concerning

“life, property, liability, health, annuities, dowry, educational, or

casualty insurance policies,” that were sold, “directly or through

a related company, to persons in Europe, which were in effect

between 1920 and 1945.” Id. § 13804(a). The disclosure obligation

applies “whether the sale occurred before or after the insurer and

the related company became related.” Ibid. The information that

an insurer must disclose includes “[t]he holder, beneﬁciary, and

current status” of each policy, “[t]he city of origin, domicile, or

address for each policyholder,” and whether and how the policy

proceeds have been paid. Ibid. The Commissioner must suspend

the license of any insurer that fails to provide the information.

Id. § 13806.

HVIRA declares that its requirements are “necessary to protect

the claims and interests of California residents,” including some

5600 Holocaust survivors living in the State, and “to encourage

the development of a resolution to these issues through the

international process or through direct action by the State.”

Cal. Ins. Code § 13801.

the United States and Switzerland similarly endorses ICHEIC and notes the

“potentially disruptive and counterproductive effects of investigative initiatives

or the threat or actual use of sanctions on a sub-federal level against insurers,

including those that are *** participants in [ICHEIC].” Joint Statement of

the Government of the United States of America and the Government of the

Swiss Confederation ( Jan. 29, 2000) <http://www.us-embassy.ch/NEWS/

jointstatement.htm>.

420 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

HVIRA is part of a statutory scheme designed to give California

a central role in resolving Holocaust-era claims.

Another statute

authorizes the Commissioner to suspend the license of an insurer

upon ﬁnding that it, or any afﬁliate, failed to pay “any valid

claim” on a policy issued to a person, whether or not a resident of

the State, who was “a victim of persecution of Jewish and other

peoples preceding and during World War II by Germany, its allies,

or sympathizers.” Cal. Ins. Code § 790.15(a) and (b)(1). It deﬁnes

a “valid claim” to include claims not paid because the records

were lost or the policies were conﬁscated by the Nazis. Id.

§ 790.15(b)(3).

A third statute grants state courts venue and jurisdiction over

such claims, and abolishes any statute-of-limitations defense if

the claim is brought by December 31, 2010. Cal. Civ. Pro. Code

§ 354.5(b) and (c). It further provides that suits brought on these

policies in California courts are “subject to California law” and

that forum-selection provisions in the policies are unenforceable.

1998 Cal. Stat. ch. 43, § 2.

****

ARGUMENT

The court of appeals, in upholding a California statute that requires

insurers doing business in the State to make sweeping disclosures

about transactions that occurred exclusively in Europe between

European parties, disregarded constitutional constraints on a State’s

authority to regulate extraterritorially and to inject itself into

matters of foreign relations reserved to the President and Congress.

The court of appeals’ decision is inconsistent with this Court’s

decisions articulating those constraints under the Commerce

Clause, the Due Process Clause, and the foreign affairs power of

the national government, and is in direct conﬂict with the Eleventh

Circuit’s recent decision invalidating a similar statute on due

See Assembly Bill No. 600 (Pet. App. 115a–122a) (noting inter-

relationship of HVIRA, the license-suspension provisions, Cal. Ins. Code

§790.15, and the jurisdictional provisions, Cal. Civ. Pro. Code §354.5).

International Claims and State Responsibility 421

process grounds. In addition, the court of appeals’ decision under-

mines the United States’ effective conduct of foreign relations,

including its continuing efforts to secure compensation for surviving

Holocaust victims within their lifetimes. For these reasons, the

petitions for a writ of certiorari should be granted.

I. HVIRA VIOLATES CONSTITUTIONAL

PROHIBITIONS ON EXTRATERRITORIAL

STATE REGULATION

Both the Commerce Clause and the Due Process Clause of the

Fourteenth Amendment prohibit a State from regulating activity

outside its borders. HVIRA is such an extraterritorial regulation

because it focuses exclusively on transactions in Europe before

and during World War II and compels the disclosure of information

about those transactions although they have “no jurisdictionally-

signiﬁcant relationship to [the State].” Gerling Global Reinsurance

Corp. v. Gallagher, 267 F.3d 1228, 1238 (11th Cir. 2001).

A. The Commerce Clause And The Due Process Clause

Prohibit States From Regulating Transactions Outside

Their Borders

1. Under familiar Commerce Clause principles, California may

not require corporations to adhere to its standards in other States

or Nations as a condition of doing business in California. See,

e.g., BMW of N. America, Inc. v. Gore, 517 U.S. 559, 572 (1996)

(a State may not “impose economic sanctions on violators of its

laws with the intent of changing the [violator’s] lawful conduct in

other States”); Healy v. Beer Inst., 491 U.S. 324, 336 (1989) (the

Commerce Clause “precludes the application of a state statute to

commerce that takes place wholly outside of the State’s borders”).

A state law does not cease to be extraterritorial merely because

it has some nexus to local persons or activities. Such a law is

impermissibly “extraterritorial” for purposes of the Commerce

Clause if it has “the practical effect of * * * control[ling] conduct

beyond the boundaries of the State.” Healy, 491 U.S. at 336.

422 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The Commerce Clause’s prohibition on a State’s regulation of

conduct beyond its borders protects against “inconsistent legislation

arising from the projection of one state regulatory regime into the

jurisdiction of another State.” Healy, 491 U.S. at 336–337. When,

as here, a State seeks to project its regulatory regime into the

jurisdiction of another Nation, the potential is particularly great

for inconsistent legislation and resulting conﬂict, as well as for

interference with United States foreign policy. Cf. EEOC v. Arabian

Am. Oil Co., 499 U.S. 244, 248 (1991) (even federal laws must

clearly indicate that they are to apply extraterritorially to “protect

against unintended clashes between our laws and those of other

nations which could result in international discord”).

2. A State is also constrained by the Due Process Clause from

regulating contracts or transactions that do not have a signiﬁcant

relationship to its legitimate interests. See, e.g., Phillips Petroleum

Co. v. Shutts, 472 U.S. 797, 818–819 (1985); Home Ins. Co. v.

Dick, 281 U.S. 397, 407–408 (1930). In Dick, for example, the

Court held that a Texas insurance statute could not, consistent

with due process, be applied to invalidate a provision contained in

a policy that had been issued in Mexico and was to be performed

there. See 281 U.S. at 408. The Court explained that, because all

acts relating to the making and performance of the policy occurred

outside the State, “Texas was therefore without power to affect

the terms of contracts so made.” Ibid.; see id. at 408 n.5 (“[A]

State is without power to impose either public or private obligations

on contracts made outside of the state and not to be performed

there.”); Shutts, 472 U.S. at 821 (a State cannot apply its own law

to “a transaction with little or no relationship to the [State]”).

Those cases make clear that a State is not entitled under the

Due Process Clause to regulate out-of-state transactions simply

because some parties to those transactions reside within the State.

In addition, the Commerce Clause protects against state regulation,

whether or not viewed as extraterritorial, that prevents the United States

from “speak[ing] with one voice when regulating commercial relations with

foreign governments.” Japan Line, Ltd. v. County of Los Angeles, 441 U.S.

434, 449 (1979). As discussed below, HVIRA presents that constitutional

deﬁciency as well.

International Claims and State Responsibility 423

Indeed, the policyholder in Dick was a citizen and permanent

resident of Texas, although he engaged in all conduct relevant to

the policy while in Mexico. The Court held that Texas did not

have a sufﬁcient relationship to the policy to permit the State to

regulate it. See 281 U.S. at 408. And, in Shutts, the Court held

that Kansas could not apply its law to out-of-state plaintiffs’ claims

with respect to out-of-state leases, although the defendant did

business in the State. See 472 U.S. at 818–819.

B. HVIRA, By Imposing Disclosure Requirements With Respect

To Out-Of-State Transactions Between Out-Of-State Parties,

Is An Impermissible Extraterritorial Regulation

1. Whether analyzed under the Commerce Clause or the Due

Process Clause, HVIRA is an impermissible extraterritorial

regulation. Its “practical effect” is to compel “conduct beyond the

boundaries of the State,” Healy, 491 U.S. at 336—speciﬁcally, the

collection, compilation, and disclosure of information, presumably

located in Europe, concerning transactions that occurred exclusively

in Europe between European parties. There is no nexus between

those transactions and the legitimate interests of California that

permits the State to exercise regulatory authority over them. It

is especially evident that HVIRA exceeds the proper legislative

jurisdiction of the State because the statute is not one of general

applicability that happens to have an extraterritorial effect; instead,

HVIRA is speciﬁcally directed at transactions that occurred in

Europe during a time of international conﬂict.

The conclusion that HVIRA is an unconstitutional exterritorial

regulation is conﬁrmed by “considering how [such laws] may

interact with the legitimate regulatory regimes of other States,”

Healy, 491 U.S. at 336, and Nations. It is plain that HVIRA has

the potential to interfere with other jurisdictions’ laws limiting the

disclosure of private information concerning insurance policies

issued in those jurisdictions. As the court of appeals recognized,

an insurer that fails to disclose the information required by HVIRA

will have its California license suspended, even if “disclosure

pursuant to HVIRA [would] violate[] European data protection

laws.”

424 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

2. The court of appeals reasoned that HVIRA is not an im-

permissible extraterritorial regulation because it does “not seek

to regulate the substance of out-of-state transactions.” The court

viewed HVIRA as “requir[ing] California insurers only to disclose

information about their foreign transactions or those of their

afﬁliates.”

The court of appeals’ reasoning rests on the erroneous pre-

mise that “[a] request for information is simply not equivalent”

to a regulation. A requirement that a person disclose, or refrain

from disclosing, conﬁdential information is regulatory in nature.

It imposes a substantive obligation on that person, the violation

of which carries adverse consequences. See Dole v. United Steel-

workers of Am., 494 U.S. 26, 28 (1990) (describing “rules which

require regulated entities to disclose information” as “[a]mong

the regulatory tools available to [the] Government”); see also

BMW, 517 U.S. at 572–573 (a State may not impose sanctions for

failure to follow its disclosure standards in other States); Gallagher,

267 F.3d at 1238 (observing that the disclosure provisions of a

similar statute “pertain to, and as a practical matter unquestionably

seek to regulate,” Holocaust-era policies). Indeed, the tension

between HVIRA and European privacy laws belies any claim that

disclosure or privacy laws do not regulate or present Commerce

Clause and Due Process Clause difﬁculties.

The court of appeals suggested that HVIRA is constitutionally

justiﬁed by the State’s purpose to “protect[] its residents from

insurance companies that have not paid valid claims.” A State

cannot evade limits on extraterritorial legislation merely by deeming

a corporation’s conduct abroad relevant to its ability to perform

within the State. More broadly, a statute with an impermissible

extraterritorial effect cannot be saved by identifying an arguably

permissible domestic purpose. In any event, the express purpose

of HVIRA is to facilitate the resolution of claims on policies issued

in Europe before and during World War II, rather than to assess

the ﬁtness of insurers to do business in California today. See Cal.

Ins. Code § 13801(d) and (e) (HVIRA is designed “to ensure the

rapid resolution of * * * questions” concerning “insurance policies

held by Holocaust victims and survivors,” so as to “eliminat[e] the

further victimization of these policyholders and their families”).

International Claims and State Responsibility 425

. . . By contrast, HVIRA makes no mention of the purpose that

the court posited.

****

3. The Ninth Circuit’s decision upholding HVIRA under the

Due Process Clause cannot be reconciled with the Eleventh Circuit’s

decision in Gallagher invalidating a similar Florida statute. In

Gallagher, as here, the statute required each insurer doing business

in the State to disclose extensive information concerning policies

issued by itself or its afﬁliates in Europe between 1920 and 1945.

See 267 F.3d at 1229–1230. The Eleventh Circuit held that the

statute “exceed[ed] the constitutionally permissible regulatory

authority of the Florida legislature” under the Due Process Clause,

because the statute required “Florida insurers * * * to produce

and compile information regarding transactions between non-

Florida residents that occurred entirely outside Florida.” Id. at

1234; see id. at 1238 (recognizing that “there is virtually no

connection between the State of Florida” and the subject of the

disclosure statute, i.e., “insurance transactions involving [domestic

insurers’] German afﬁliates that took place years ago in Germany,

among Germany residents, under German law, relating to persons,

property, and events in Germany”).

****

None of the grounds on which the Ninth Circuit attempted to dis-

tinguish Gallagher from this case is persuasive. For example, the Ninth Circuit

suggested that the Florida statute, in contrast to HVIRA, sought information

directly from “both local and foreign entities.” Pet. App. 9a–10a. In fact, the

Florida statute, like HVIRA, applies directly only to “[a]ny insurer doing

business in th[e] state.” Gallagher, 267 F.3d at 1230. In addition, the Ninth

Circuit suggested that the Eleventh Circuit did not consider whether the Florida

statute could be justiﬁed as a means of assessing insurers’ ﬁtness to do business

in the State. See Pet App. 10a. In fact, the Eleventh Circuit noted the State’s

“litigating position” that the statute could be so justiﬁed, but concluded that

the text and structure of the statute did not support that position. See

Gallagher, 267 F.3d at 1239–1240. The Ninth Circuit further suggested that

the Florida statute was distinguishable because it “contained both disclosure

and substantive elements” governing Holocaust-era claims. Pet. App. 10a–

11a. The legislation that enacted HVIRA, however, likewise contained other

provisions to facilitate the litigation of such claims. See id. at 117a–118a.

426 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

II. HVIRA IMPERMISSIBLY INTRUDES INTO

MATTERS OF FOREIGN RELATIONS RESERVED

TO THE NATIONAL GOVERNMENT

1. This Court has repeatedly emphasized that “[i]n international

relations and with respect to foreign intercourse and trade the

people of the United States act through a single government with

uniﬁed and adequate national power.” Japan Line, Ltd. v. County

of Los Angeles, 441 U.S. 434, 448 (1979); see, e.g., United States

v. Pink, 315 U.S. 203, 233 (1942) (“Power over external affairs

is not shared by the States; it is vested in the national govern-

ment exclusively.”); Hines v. Davidowitz, 312 U.S. 52, 63 (1941)

(“The Federal Government * * * is entrusted with full and ex-

clusive responsibility for the conduct of affairs with foreign

sovereignties.”). The national government’s preeminent role in

acting for the United States in the international arena is reﬂected

in the Constitution’s express grants of power to Congress, see,

e.g., Art. I, § 8, Cls. 1, 3, 11 (powers to “provide for the common

Defence,” “regulate Commerce with foreign Nations,” and

“declare War”), and to the President, see, e.g., Art. II, §§ 2, 3

(powers to serve as “Commander in Chief of the Army and

Navy,” “make Treaties,” “appoint Ambassadors,” and “receive

Ambassadors”), and in its express restraints on state power, see,

e.g., Art. I, § 10 (restrictions on States’ “enter[ing] into any Treaty,

Alliance, or Confederation,” “lay[ing] any Imposts or Duties on

Imports or Exports,” “enter[ing] into any Agreement * * * with a

foreign Power,” and “engag[ing] in War”). The national govern-

ment has traditionally exercised such power in dealing with foreign

governments with respect to the resolution of claims in the wake

of international conﬂict. See, e.g., Dames & Moore v. Regan, 453

U.S. 654, 679 (1981).

In light of the “imperative[] * * * that federal power in the

ﬁeld affecting foreign relations be left entirely free from local

interference,” Hines, 312 U.S. at 63, state “regulations must give

way if they impair the effective exercise of the Nation’s foreign

policy.” Zschernig v. Miller, 389 U.S. 429, 440 (1968); see Japan

Line, 441 U.S. at 449 (state regulations may not prevent the United

States from “speak[ing] with one voice when regulating commercial

International Claims and State Responsibility 427

relations with foreign governments”). This Court has struck down

such state regulations, “even in [the] absence of a treaty” or an

Act of Congress, Zschernig, 389 U.S. at 441, as inconsistent with

the Constitution’s assignment to the national government of the

authority to conduct foreign relations or, in the commercial area,

as inconsistent with the Foreign Commerce Clause. See, e.g., Japan

Line, 441 U.S. at 452–453 (foreign commerce); Zschernig, 389

U.S. at 436 (foreign affairs); Chy Lung v. Freeman, 92 U.S. 275

(1875) (same).

2. HVIRA intrudes into matters of foreign relations exclusively

reserved to the national government. The resolution of claims

arising out of the Nazi era in Europe has long been a subject of

United States diplomatic attention. In the context of still-unresolved

claims against foreign enterprises arising out of the Holocaust, the

President has determined that it is preferable for such claims to be

pursued through non-adversarial processes rather than litigation.

The President has concluded that such an approach serves the

interests of Holocaust victims and their families as well as the United

States’ interest in cooperative relations with its European allies.

In particular, the United States, in its executive agreements

with Germany and Austria and its other recent diplomatic efforts,

has encouraged the use of ICHEIC as the exclusive mechanism for

resolving Holocaust-era insurance claims. Those agreements do

not, of their own force, extinguish or bar any claims that Holocaust

victims or their families might assert in court against German and

Austrian companies. They do make clear, however, that United

States policy disfavors the imposition of further obligations on

companies subject to the agreements, whether through regulation

or litigation, beyond those contemplated by the agreements

themselves. Thus, the executive agreement between the United

States and Germany recognizes that it is “in the[] interests” of the

two governments for the designated claims process “to be the

exclusive remedy and forum for the resolution of all claims that

have been or may be asserted against German companies arising

from the National Socialist era and World War II.”

HVIRA threatens to “impair the effective exercise,” Zschernig,

389 U.S. at 440, of United States policy with respect to Holocaust-

era claims. As explained above, the United States has sought to

428 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

achieve voluntary participation in international claims processes

and to encourage the exclusive use of those processes as an

expeditious, fair, and comprehensive alternative to litigation. State

laws such as HVIRA are not laws of general applicability with

an incidental effect on the federal government’s ongoing efforts.

To the contrary, they are expressly and speciﬁcally directed at

establishing competing processes with their own disclosure re-

quirements and potentially their own forums and remedies for

Holocaust-era claims. Such laws impose “a different, state system

of economic pressure,” Crosby v. National Foreign Trade Council,

530 U.S. 363, 376 (2000), and may impede the implementation

and operation of the international claims processes. See, e.g., Joint

Statement, note 3, supra, (noting the “potentially disruptive and

counterproductive effects” of such laws). At a minimum, such

laws “compromise the very capacity of the President to speak for

the Nation with one voice in dealing with other governments.”

Crosby, 530 U.S. at 381. They also generate the very tensions in

foreign relations that the United States has sought to avoid. For

example, the United States has received protests from Germany

and Switzerland concerning HVIRA’s application to insurance

policies written in those countries.

3. In declining to invalidate HVIRA as inconsistent with the

national government’s authority over foreign affairs, the court

of appeals attempted to distinguish this case from Zschernig.

None of its suggested distinction bears on whether HVIRA is an

impermissible “intrusion by the State into the ﬁeld of foreign affairs

which the Constitution entrusts in the President and the Congress.”

Zschernig, 389 U.S. at 432.

For example, the court of appeals observed that the Court

invalidated the state probate statute in Zschernig only after the

statute had disrupted foreign relations. Nothing in Zschernig

suggests that a state statute cannot be invalidated until its adverse

impact on foreign relations has been fully manifested. And, in

Chy Lung, the Court invalidated a state statute, without any inquiry

into its actual impact, on the ground that the statute, by its nature,

would create international tension. See 92 U.S. at 279. In any

event, as the protests from Germany and Switzerland demonstrate,

HVIRA has, in fact, affected the United States’ foreign relations.

International Claims and State Responsibility 429

The court of appeals also sought to distinguish Zschernig on

the grounds that HVIRA “involve[s] foreign commerce” and is

“not directed at a particular country.” To the extent that those

observations accurately distinguish Zschernig, they suggest that

HVIRA is more, not less, constitutionally problematic. A state

statute that interferes with the United States’ commercial relations

with other Nations may be invalid under both the Foreign

Commerce Clause and the foreign affairs power. See National

Foreign Trade Council v. Natsios, 181 F.3d 38, 53–55, 68–69

(1st Cir. 1999) (invalidating state statute on both foreign affairs

and foreign commerce grounds), aff’d on other grounds, 530 U.S.

363 (2000). Nor need a state statute be “directed at a particular

country” to be invalidated under the foreign affairs power. No

such statute was involved in Chy Lung or Zschernig. Moreover,

HVIRA is clearly directed at insurance policies issued to persons

in certain European countries, which explains why it has drawn

objections from two of those countries and which makes its

interference with foreign affairs even more manifest.

Finally, the court of appeals erred in refusing, based on a

misunderstanding of Barclays Bank PLC v. Franchise Tax Board,

512 U.S. 298 (1994), to consider the views of the Executive Branch

regarding the foreign policy ramiﬁcations of HVIRA. See Pet. App.

55a. As this Court has explained, Barclays addressed an unusual

situation in which Congress and the Executive had taken divergent

positions. See Crosby, 530 U.S. at 385–386. Crosby reafﬁrms the

central importance in other situations of the President’s views in

exercising his constitutional responsibility “to speak for the Nation

with one voice in dealing with other governments.” Id. at 381,

385–386.

****

The court of appeals incorrectly viewed the Holocaust Assets Com-

mission Act of 1998, Pub. L. No. 105–186, 112 Stat. 611, as a congressional

endorsement of state statutes such as HVIRA. The Act establishes a

commission to address the disposition of certain Holocaust-era assets that

“came into the possession or control of the Federal Government” after

January 30, 1933. §3(a)(1), 112 Stat. 612 (emphasis added). It directs

the commission to “encourage the National Association of Insurance

430 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

b. Agreement concerning Holocaust era insurance claims

On October 16, 2002, in Washington, D.C., the German

foundation “Remembrance, Responsibility, and Future”

(“Foundation”), the International Commission on Holocaust

Era Insurance Claims (“ICHEIC”), and the German Insurance

Association (“GDV”) entered into an agreement to imple-

ment the Foundation’s provisions for payment of previously

unpaid Holocaust era insurance claims. Agreement Con-

cerning Holocaust Era Insurance Claims, effective on signing

(“Agreement”). The Agreement established procedures for

payment of over 100 million Euros previously set aside by

the Foundation for the purpose of compensating holders

of unpaid or conﬁscated and not otherwise compensated

policies of German insurance companies in connection with

Nazi injustice. It also paved the way for transfer of over 175

million Euros from the Foundation to the Humanitarian Fund

of ICHEIC.

As noted in the U.S. brief in American Insurance Asso-

ciation v. Low, supra, the United States has encouraged the

recognition of ICHEIC as the exclusive mechanism for

resolving Holocaust-era insurance claims. An Executive

Agreement with Germany, signed in 2000, required Germany

to ensure that unpaid Holocaust-era insurance claims

against German insurance companies would be processed

Commissioners to prepare a report on the Holocaust related claims practices

of all insurance companies, both domestic and foreign, doing business in

the U.S. at any time after January 30, 1933,” that issued an insurance policy

to “any individual on any list of Holocaust victims.” §3(a)(4)(A), 112

Stat. 612 (emphasis added). It states that the report should include, “to the

degree the information is available,” the “number of policies issued by each

company” to Holocaust victims, the “value of each policy at the time of

issue,” the “total number of policies and the dollar amounts that have been

paid out,” and the “total present day value of assets in the [United States] of

each company.” §3(a)(4)(B), 112 Stat. 613. Nothing in the Act imposes

reporting requirements on insurers under threat of sanctions, confers any

new authority on the States to do so, or seeks the sort of private information

that may be protected from disclosure under foreign law.

International Claims and State Responsibility 431

on the basis of ICHEIC procedures and any subsequent

procedures agreed upon by ICHEIC, the Foundation, and

the GDV. The new Agreement established such additional

procedures.

Excerpts below set forth key provisions of the Agreement.

Remaining sections include procedures for appeals, payments

of awards, distribution of Foundation funds and management

of the Humanitarian Fund of the ICHEIC.

The full texts of the Agreement and its eleven annexes

are available at www.icheic.org/eng/press.html.

****

— Recognizing that it is in the interest of all parties to this

Agreement to have a resolution of the outstanding issues in a

non-adversarial and non-confrontational way;

— Conﬁdent that ICHEIC, the Foundation and the GDV will

provide a just and expeditious mechanism for making payments

on individual claims on unpaid or conﬁscated and not otherwise

compensated policies.

The parties have agreed as follows:

Section 1. Scope of the Agreement

(1) The parties to this Agreement agree to work together in a

close and trustful cooperation in order (i) to compensate unpaid

or conﬁscated and not otherwise compensated insurance policies

of German insurance companies (ii) to ensure that the terms of

this Agreement are followed in full by all parties and (iii) to

make the claims processing efﬁcient, effective and responsive to

claimants.

(2) For this purpose 76,693,784 Euro (150 million

Deutschmark) pursuant to Section 9, Paragraph 4, Sentence 2,

Number 3, of the Foundation Law and an additional 25,564,594

Euro (50 million Deutschmark) from interest earned by the

Foundation’s capital pursuant to Section 9, Paragraph 5 of the

Foundation Law shall be made available to cover this com-

pensation and the costs as set out in Section 6 (1). Monies

from those funds may also be used for the other purpose in each

case.

432 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

(3) In the event that the funds of 102,258,376 Euro (200 million

Deutschmark) should not be completely drawn down after all

approved claims and the agreed costs pursuant to Section 6 (1)

have been met, the monies not used shall be transferred to the

Humanitarian Fund of ICHEIC as created in Section 9, Paragraph

4, Sentence 2, Number 5 of the Foundation Law (hereinafter

referred to as the Humanitarian Fund).

(4) If approved claims against German insurance companies

cannot be covered by the funds pursuant to Section 9, Paragraph

4, Sentence 2, Number 3 and Paragraph 5 of the Foundation

Law, the Foundation shall make available up to 25,564,594 Euro

(100 million Deutschmark) from the Fund “Remembrance and

the Future” to meet those claims.

(5) The payment of 178,952,160 Euro (350 million Deutsch-

mark) to the Humanitarian Fund pursuant to Section 9, Para-

graph 4, Sentence 2, Number 5 of the Foundation Law shall

be effected according to the provisions in Section 7 of this

Agreement.

Section 2. Eligible Claims

(1) A claim concerning a life insurance policy is eligible for

compensation, if

(a) the claim relates to a life insurance policy in force between

January 1, 1920 and May 8, 1945 and issued by or belonging to a

speciﬁc German company and which has become due through

death, maturity or surrender; and

(b) the insurance policy was not paid or not fully paid as

required by the insurance contract or was conﬁscated by the

German National Socialist Regime or by the government authorities

as speciﬁed in the deﬁnition of Holocaust victim in Section 14;

and

a decision of a German restitution or compensation authority.

A policy or policies will be considered as having been covered

by a decision of a German restitution or compensation authority,

where the decision covers the same speciﬁc policy or policies

as those referred to in the claimant’s claim form, except in cases

where:

International Claims and State Responsibility 433

• the claim was rejected by the German restitution or com-

pensation authorities due to their own lack of jurisdiction;

• the claim was rejected by the German restitution or com-

pensation authorities due to the fact that the claim was

made by a person not entitled to claim; or

• the claim was not timely ﬁled; or

• documentary evidence that would have led to a decision

in favor of the claimant was previously unavailable but

subsequently became available (such as opening of company

or government archives); and

(d) the claimant is, in the following order of priority:

• the policy beneﬁciary or his heir pursuant to the Succession

Guidelines (Annex C);

• the policyholder or his heir pursuant to the Succession

Guidelines;

• the insured or his heir pursuant to the Succession

Guidelines; and

(e) the policy beneﬁciary or the policyholder or the insured

life, who is named in the claim, was a Holocaust victim; and

(f) the claim was lodged before a date mutually agreed by

the parties to this Agreement. This date, once agreed, will be

appropriately publicized by the parties.

(2) A claim concerning non-life insurance is eligible for

compensation, if

(a) the insured event occurred while the policy was in force

at the time of the event. Notwithstanding the above, a non-life

insurance claim shall not be eligible if it was caused by war unless

it can be attributed to racial or religious persecution; and

(b) the claimant is entitled as policyholder or as rightful heir

of the policyholder to beneﬁts of the policy notwithstanding the

statutes of limitation; and

policyholder became a Holocaust victim before an original

insurance claim could be lodged, or if lodged before it could be

settled or the beneﬁts were conﬁscated by the German National

Socialist Regime or by the government authorities as speciﬁed in

the deﬁnition of Holocaust victim in Section 14; and

434 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

(d) the damage from the insured event was not compensated

or restituted; and

(e) the claim was lodged before a date mutually agreed by

the parties to this Agreement. This date, once agreed, will be

appropriately publicized by the parties.

****

4. Claims by Persons Held as Prisoners of War by Japan

a. California state law

In addition to the Holocaust Victims Insurance Recovery

Act, addressed in American Insurance Association v. Low,

discussed in 3.a., supra, California also enacted a statute

permitting World War II forced laborers to sue the companies

that beneﬁted from their labor. Cal. Code of Civ. Proc.

§ 354.6 (1999). That section permits any “prisoner-of-war of

the Nazi regime, its allies or sympathizers, forced to perform

labor without pay for any period of time between 1929 and

1945” to “recover compensation for labor performed as

a . . . Second World War forced labor victim from any entity

or successor in interest thereof, for whom that labor was

performed.” Since enactment of the statute in 1999, suits

have been brought by soldiers from the United States and

other countries held as prisoners of war by Japan during

World War II against the Japanese companies for which they

were forced to work during their captivity.

A number of suits under the statute have been dismissed

in U.S. federal courts, on grounds urged by the United States

in statements of interest ﬁled in the cases. In 2000 the U.S.

District Court for the Northern District of California dismissed

consolidated claims by Allied prisoners on the ground that

they were barred by the 1951 Treaty. In re World War II Era

Japanese Forced Labor Litigation, 114 F. Supp. 2d 939, 945

(N.D. Cal. 2000); see also 164 F. Supp. 2d 1153 (N.D. Cal.

2001) (dismissing claims by Philippine prisoners because

the Philippines was an Allied power for purposes of the

International Claims and State Responsibility 435

treaty with Japan). The district court also dismissed claims

by non-Allied prisoners, ﬁnding that section 354.6 was

unconstitutional as applied “because it infringes on the

federal government’s exclusive power over foreign affairs.”

164 F. Supp. 2d 1160, 1164 (N.D. Cal. 2001). See Digest 2000

at 500–540, Digest 2001 at 339–340 n. 1. At the end of 2002,

the federal cases were pending on appeal to the U.S. Court

of Appeals for the Ninth Circuit.

In California state courts, litigation continued during 2002

in two cases, discussed here.

(1) American soldiers as prisoners of war: Mitsubishi Materials

Corp. v. Superior Court

In Mitsubishi Materials Corp. v. Superior Court (Dillman, real

party in interest), Master Docket No. 81 44 30, plaintiffs in

cases consolidated in California state courts were former

members of the U.S. military held as prisoners of war by

Japan during World War II, or the heirs of other POWs. All

claims were based on forced labor without pay for various

Japanese companies. Defendants in interest had moved the

superior court for judgment on the pleadings, arguing, among

other things, that the claims were barred by the 1951 Treaty

of Peace and that the California legislation exceeded the

jurisdictional limits imposed on the states of the United

States by the federal Constitution. In October 2000 the United

States ﬁled a Statement of Interest in support of defendants’

motion. On October 19, 2001, the superior court rejected

defendants’ motion in an unpublished, two-page order.

The court ruled that contradictory interpretations of the

Treaty contained in extraneous materials submitted to the

court precluded it from interpreting the Treaty as a matter

of law.

Defendants moved the California Court of Appeals for

interlocutory review. Excerpts below from the Brief of the

United States as Amicus Curiae in Support of Writ Petition,

ﬁled February 14, 2002, provide the U.S. view that the

436 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

language of the 1951 Treaty of Peace is clear on its face and

precludes the claims at issue. Cross-references to other plead-

ings in the case have been omitted. The brief also argued that

the California statute is preempted, and is, as well, an uncon-

stitutional attempt by California to project its authority over

matters outside of its jurisdiction. These latter arguments

are addressed in 4.a.(2), below.

The full text of the U.S. amicus brief in Mitsubishi is

available at www.state.gov/s/l/c8183.htm.

****

I. PLAINTIFFS’ CLAIMS ARE BARRED BY THE

1951 TREATY OF PEACE, WHICH WAIVED

ALL AMERICAN AND ALLIED NATIONALS’

WAR-RELATED CLAIMS AGAINST

JAPANESE NATIONALS.

A. The Waiver Of American POW Claims In The 1951

Treaty Of Peace Is Unambiguous.

Where the text of a Treaty is clear a court must give the effect

to the text. See Chan v. Korean Air Lines, Inc., 490 U.S. 122, 134

(1989) (“where the text is clear *** we have no power to insert

an amendment”). If the text is unambiguous, the court may not

look beyond it to “drafting history” or other extraneous documents

that might contradict the text itself. Ibid. (because “the result

the text produces is not necessarily absurd,” “[w]e must thus be

governed by the text—solemnly adopted by the governments of

many separate nations whatever conclusions might be drawn from

the intricate drafting history * * * brought to our attention”);

Maritime Ins. Co. Ltd. v. Emery Air Freight Corn., 983 F.2d 437,

440 (2d Cir. 1993) (“there can be no doubt that we may rely on

[other methods of interpretation] only when there is an ambiguity

in the text of the treaty”); Vienna Convention on the Law of

Treaties, Article 32 (recourse to extraneous materials appropriate

only where applying normal canons of construction “(a) leaves

International Claims and State Responsibility 437

the meaning ambiguous or obscure; or (b) leads to a result which

is manifestly absurd or unreasonable”).

Article 14(b) of the 1951 Treaty of Peace broadly waives all

Allied claims arising out of the war, including claims by American

nationals against Japanese nationals. The Allied parties to the

Treaty, including the United States, expressly “waive all * * * claims

of the Allied Powers and their nationals arising out of any actions

taken by Japan and its nationals in the course of the prosecution

of the war.” Art. 14(a) (emphasis added).

Art. 14(b). This text

leaves no question that it applies to “all * * * claims” by American

“nationals” against “Japan and its nationals.”

(Fn. omitted)

It is equally clear that claims of prisoners of war regarding the

treatment they received during their incarceration are claims arising

out of “actions taken * ** in the course of the prosecution of the

war.” See In re World War II Era Japanese Forced Labor Litig.,

114 F. Supp. 2d 939, 945 (N.D. Cal. 2000) (calling plaintiffs’

argument “strained”).

This language is “strikingly broad.” Ibid.

The Court need not, however, determine the boundaries of the

waiver, because claims related to a belligerent’s treatment of its

prisoners of war fall well within the waiver’s outer limits.

Although the United States is not a party to the Vienna Convention,

it recognizes the Convention as an authoritative guide to international

common law regarding treaty interpretation. See, e.g, Fujitsu Ltd. v. Federal

Express Corp., 247 F.3d 423, 433 (2&QTr. 2001).

The full text of the waiver provision is as follows:

Except as otherwise provided in the present Treaty, the Al1ied Powers

waive all reparations claims of the Allied Powers, other claims of the

Allied Powers and their nationals arising out of any actions taken by

Japan and its nationals in the course of the prosecution of the war, and

claims of the Allied Powers for direct military costs of occupation.

****

Indeed, while the superior court denied defendants’ demurrer, the

court recognized that plaintiffs’ claims arose out of acts taken in the course

of prosecution of the war. See Order dated May 22, 2000 (noting that

plaintiffs argument that the claims “did not arise in the prosecution of war***

is without merit”). See also Aldrich v. Mitsui & Co. (M.D. Fla. Jan 28,

1988) No. 87-912-Div-J-12, slip. op. at 3.

438 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

All plaintiffs in these cases either were, or assert claims as the

heirs of, American “prisoners of war” captured by the Japanese

during World War II. See Dillman v. Mitsubishi Materials Corn.,

No. 814430 (Orange Cty.).

Indeed, plaintiffs’ prisoner-of-war

status is an essential element of their asserted claims under the

California forced labor statute, which, with respect to American

nationals, only allows claims by “prisoner[s]-of-war.” See Cal.

Code Civ. Pro. § 354.6(a)(2).

As prisoners of war, plaintiffs were entitled to the protections

afforded by the Geneva Convention. See Convention of July 27,

1929, Relative to the Treatment of Prisoners of War (“1929

Convention”), 47 Stat. 2021, Art. I, Art. 81; Geneva Convention

Relative to the Treatment of Prisoners of War of August 12, 1949

(“1949 Convention”), 6 U.S.T. 3316, Art. 4.

Signiﬁcantly, under

In the initial complaint in Jaeger, plaintiffs similarly acknowledged

that the forced labor that is the subject of their suit was performed by United

States servicemen while held by Japan as prisoners of war during World War

II. See Jaeger v. Mitsubishi Materials Corp., No. 814594, (alleging that

“prisoners of war taken by the Japanese were enslaved and forced to work

for years under inhumane conditions for private Japanese business entities”).

These facts have been omitted from their Amended Complaint, though the

Amended Complaint does impliedly reference plaintiffs’ “prisoner of war”

status in the allegation that plaintiffs’ decedents were “forced labor victims”

under the California statute. For the reasons stated in the text, the admissions

of plaintiffs’ original Complaint are unnecessary to resolving the legal question

presented but plaintiffs should, in any event, be judicially estopped from

denying the truth of the allegations of their original complaint.

None of the plaintiffs allege they fall within the other classes of

potential plaintiffs under the California statute: “person[sl taken from a

concentration camp or ghetto” or “member[s] of the civilian population

conquered by the Nazi regime” and its allies. Cal. Code Civ. Pro. § 354.6(a).

Japan and the United States were signatories to the 1929 Geneva

Convention, Yamashita v. Styer, 327 U.S. 1, 23 (1946), and were bound by

its terms during World War II, see id. at 73 n. 36 (Rutledge, J. dissenting)

(noting that, though Japan had not ratiﬁed the Convention before the War,

Japan and the United States had agreed to adhere to its provisions). Although

the 1949 Geneva Convention post-dated World War II it is a multilateral

treaty negotiated at roughly the same time as the 1951 Treaty of Peace and

thus sheds light on whether claims that prisoners of war’s rights were violated

would have been understood as claims arising out of the prosecution of the

war.

International Claims and State Responsibility 439

international law, it is the belligerent government’s responsibility

to ensure that POW’s are treated in accordance with the Con-

ventions’ requirements. See 1929 Convention, Art. 2 (“Prisoners

of war are in the power of the hostile Power, but not of the

individuals or corps who have captured them.”); 1949 Convention,

Art. 12 (“the Detaining Power is responsible for the treatment

given” POWs). Indeed, the Geneva Convention establishes that

the military authorities of the detaining power remain responsible

for the treatment of POWs forced to labor for private corporations,

including ensuring that they are paid. 1929 Convention, Art. 28

(“The Detaining power shall assume entire responsibility for the

maintenance, care, treatment and payment of wages of prisoners

of war working for the account of private persons.”); 1949 Geneva

Convention, Art. 57.

It is plain, then, that if plaintiffs had brought their claims for

nonpayment of POW wages against Japan—alleging violation of

the Geneva Convention, which forms part of the “laws of war,”

see Yamashita v. Styer, 327 U.S. 1, 14 (1946); H.R. Rep. No. 698,

reprinted in, 1996 U.S.C.A.N. 2166—their allegations would,

without question, fall within the scope of actions “taken in the

course of the prosecution of the war.” Indeed, violations of the

Geneva Convention’s protections can, in certain circumstances,

rise to the level of “war crimes.” See 18 U.S.C. 2441, Yamashita,

327 U.S. at 14.

Plaintiffs’ claims are, therefore, necessarily waived as against

the Japanese companies for which they labored as well. The

Treaty’s waiver in this respect is coextensive with respect to Japan

and its nationals. If claims against Japan relating to the unpaid

forced labor of prisoners of war are barred as acts taken in the

prosecution of the war, those same claims are also barred when

brought against the Japanese nationals for which that work was

performed.

As the above demonstrates it is entirely irrelevant whether the pre-

cise work plaintiffs performed had anything to do with Japan’s military

operations, whether the private companies operated with a proﬁt motive, or

whether plaintiffs’ suffering was essential to Japan’s war effort.

440 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Were there any doubt as to the understanding of the Treaty

at the time of its formation, the Statement of Interest ﬁled by

the United States, which includes extensive documentation from

the historical record, makes very clear that the United States

did understand that its waiver of claims encompassed the claims

of American POWs against Japanese nationals. The Supreme Court

has frequently noted that the State Department’s interpretation

of America’s treaty obligations is entitled to “great weight.” See,

e.g., Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 178, 184–

85 (1982); Kolovrat v. Oregon, 366 U.S. 187, 194 (1961);

Restatement of the Law (3rd) Foreign Relations, § 326 (“The

President has authority to determine the interpretation of an

international agreement,” and courts “will give great weight to

an interpretation made by the Executive Branch”). Although the

courts are not bound to follow a proffered interpretation that

contradicts the plain meaning of a treaty, see Chan, 490 U.S. at

133–35, where the United States’ interpretation is consistent with

the natural meaning of the treaty language, that interpretation

should be conclusive (fn. omitted).

(2) Korean claimant: Taiheiyo Cement Corporation

On February 11, 2002, the United States ﬁled a brief in the

Court of Appeals of the State of California, as amicus curiae

in support of Petitioners in Taiheiyo Cement Corporation

v. Superior Court ( Jae Won Jeong, real party in interest),

No. B155736. In Taeiheiyo, plaintiff alleged that he was a

Korean national forced by the Japanese government dur-

ing World War II to perform labor for a Japanese cement

manufacturing company in support of Japan’s war effort.

Plaintiff subsequently moved to the United States, became

a U.S. citizen in 1997, and ﬁled a class action suit in Los

Angeles County Superior court against the company for which

he was forced to work as well as its corporate afﬁliates.

The United States appeared as amicus curiae to support

defendants’ motion to dismiss. The United States explained

that California’s forced labor statute frustrates the foreign

International Claims and State Responsibility 441

policy of the United States, established in the 1951 Treaty

of Peace, that claims such as plaintiff ’s are to be resolved

through government-to-government arrangements rather than

through litigation. The superior court held as a matter of law

that the California statute did not interfere with federal foreign

policy because the statute did not, in the court’s view, target

a particular country, and because no foreign government

was a party to the litigation. Ruling re: Defendants’ Second

Motion for Judgment on the Pleadings, ﬁled November 29,

2001.

Defendants appealed to the Court of Appeals for the

State of California, Second Appellate District. The United

States ﬁled a brief as amicus curiae in support of petitioners.

Excerpts from the brief, set forth below, argue that the

Constitution grants the federal government exclusive authority

to conduct the nation’s foreign relations and that the U.S.

Supreme Court has enforced the constitutional design by

striking down state laws that would frustrate the objectives

of established federal foreign policy or would have an indirect

effect on the nation’s foreign relations. It also argued that

the California statute would violate the prohibition against

states engaging in foreign policy, even in the absence of

speciﬁc federal law on the issue, and that the California

law in question also violates constitutional limits on the

jurisdictional reach of state law.

The full text of the amicus brief is available at

www.state.gov/s/l/c8183.htm.

****

442 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

ARGUMENT

I. THE CONSTITUTION PRECLUDES CALIFORNIA

FROM INTERFERING IN THE FEDERAL

GOVERNMENT’S DETERMINATION THAT

PLAINTIFF’S CLAIMS SHOULD BE RESOLVED

THROUGH GOVERNMENT-TO-GOVERNMENT

ARRANGEMENTS.

A. The Constitution Vests Full And Exclusive Responsibility

For Foreign Relations In The Federal Government.

1. The Framers understood that the maintenance of peace between

the States and with foreign nations required that a single national

government be made responsible for both interstate and inter-

national affairs. . . .

****

2. From the earliest days of the Republic, the Supreme Court

has recognized that the commitment of certain powers to the

national government reﬂects a limitation on the States’ authority

to regulate the affairs of other States or foreign nations. The

grant to the Federal Government of authority to conduct foreign

relations, necessarily implies a prohibition on state activity in

that arena. “Power over external affairs is not shared by the

States; it is vested in the national government exclusively.” United

States v. Pink, 315 U.S. 203, 233 (1942). As the Court has

made clear, the Federal Government is entrusted “with full and

exclusive responsibility for the conduct of affairs with foreign

sovereignties.” Hines v. Davidowitz, 312 U.S. 52, 63 (1941). See

also Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423–25

(1964); United States v. Belmont, 301 U.S. 324, 331–32 (1937);

United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 316

(1936).

In light of the “imperative[] * * * that federal power in the

ﬁeld affecting foreign relations be left entirely free from local

interference,” Hines, 312 U.S. at 63, the Supreme Court has held

that state “regulations must give way if they impair the effective

International Claims and State Responsibility 443

exercise of the Nation’s foreign policy,” Zschernig v. Miller, 389

U.S. 429, 440 (1968).

Because the conduct of foreign policy is committed to the

Federal Government, and because of the unique concerns raised

by state action in that arena, federal preemption of a state law

concerning foreign affairs may be more readily inferred than in

the domestic context where federal and state governments share

regulatory authority. When the States act in an area in which

federal interests predominate, “[t]he conﬂict with federal policy

need not be as sharp as that which must exist for ordinary pre-

emption when Congress legislates in a ﬁeld which the states

have traditionally occupied.” Boyle v. United Technologies Corp.,

487 U.S. 500, 507 (1988) (quotation omitted). “Pre-emption

of a whole ﬁeld * * * will be inferred where the ﬁeld is one

in which ‘the federal interest is so dominant that the federal

system will be assumed to preclude enforcement of state laws on

the same subject.’ ” Hillsborough County v. Automated Medical

Laboratories, Inc., 471 U.S. 707, 713 (1985) (quoting Rice v.

Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) ). Thus,

when a State legislates in an area affecting foreign affairs, the

courts are “more ready to conclude that a federal Act * * *

supersede[s] state regulation.” Allen-Bradley Local No. 1111

v. Wisconsin Employment Relations Bd., 315 U.S. 740, 749

(1942).

Just as the Supreme Court is more willing to infer afﬁrmative

preemption when a state statute intrudes into the foreign policy

arena, the Court has also made clear that a state law that directly

implicates the conduct of foreign policy will be set aside even if

there is no afﬁrmative preemption. In Zschernig v. Miller, the

Supreme Court made clear that a state policy that disturbs foreign

relations must give way “even in [the] absence of a treaty” or

federal statute. 389 U.S. at 441. See also Laurence H. Tribe,

American Constitutional Law, §4–5 at 656 (3d ed. 2000) (“all

state action, whether or not consistent with current foreign policy,

that distorts the allocation of responsibility to the national

government for the conduct of American diplomacy is void as an

unconstitutional infringement on an exclusively federal sphere of

responsibility”).

444 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The California forced labor statute has far more than an

“incidental or indirect effect in foreign countries.” Zschernig,

389 U.S. at 434–35. Rather, the State has deliberately under-

taken the formulation of foreign policy in an area subject to

international treaty obligations, adopting a strategy that directly

impairs the accomplishment of federal policy and prevents the

nation from speaking with one voice on a matter of international

concern.

Because the policy reﬂected in California’s forced labor statute

is in direct tension with the nation’s foreign policy expressed in

the 1951 Treaty of Peace, the state statute “stands as an obstacle

to the accomplishment and execution of the full purposes and

objectives” of federal policy and is, thus, afﬁrmatively preempted.

Hines, 312 U.S. at 67; Crosby v. National Foreign Trade Council,

530 U.S. 363, 373 (2000). However, even if the Court were to

conclude that the forced labor statute has not been afﬁrmatively

preempted, it is plain that the statute in design and effect

impermissibly intrudes into the conduct of foreign affairs and is

therefore beyond the authority of the State to enact.

B. Federal Law Preempts California’s Forced Labor Statute,

Which Stands As An Obstacle To Achieving The United

States’ Foreign Policy Established In The 1951 Treaty

Of Peace.

The 1951 Treaty of Peace reﬂects the President and Senate’s

considered judgment that all claims arising out of Japan and

Japanese nationals’ conduct in the course of World War II,

including claims between private individuals, should be resolved

through inter-governmental negotiations. The Allied parties to

the Treaty, including the United States, expressly “waive all ***

claims of the Allied Powers and their nationals arising out of any

actions taken by Japan and its nationals in the course of the

prosecution of the war.” Art. 14(a) (emphasis added). The Treaty

of Peace likewise provides that the claims of Korea and China,

and those of their nationals, will be resolved through inter-

governmental agreements rather than litigation. While the Treaty

International Claims and State Responsibility 445

may not be directly binding on Korea and China, who were not

parties to the Treaty, the Treaty does establish the law of the

United States with respect to the war-related claims of Korean

and Chinese nationals.

As noted above, the Treaty of Peace both ensured for Korea

and China the same beneﬁt as the Allied parties had obtained for

themselves and directed that war-related claims of Koreans and

Chinese, like those of Allied nationals, would be settled on a

government-to-government basis. Japan was required to renounce

its interests in Korea and China, and the Korean and Chinese

authorities were allowed to seize and liquidate all Japanese assets

within their territories—assets worth billions of dollars. See Art.

4(b) (Korea); Art. 10, 14(a)(2), 21 (China). In return, both Korea

and China were expected to settle, as the Allied parties had, the

war-related claims of themselves and their nationals against Japan

and its nationals. See Art. 4(a) (“claims * * * of [Korean] author-

ities and residents against Japan and its nationals, shall be the

subject of special arrangements between Japan and [Korean] author-

ities”); Art. 26 (providing that Japan was to enter a peace treaty

with China, settling the war “on the same or substantially the same

terms as are provided for in the present Treaty” (emphasis added)).

California’s forced labor statute runs directly contrary to the

United States’ foreign policy of relegating the war-related claims

of Korean and Chinese nationals to inter-governmental resolu-

tion. Whereas federal law provides that the claims of Korean and

Chinese nationals, like those of Americans themselves, are to be

resolved by government-to-government settlements, the California

statute grants such claims a preferred status, with uniquely favor-

able substantive and procedural rules. See, e.g., Cal. Code Civ.

Pro. § 354.6(a)(3) (afﬁxing damages in a manner to eliminate

the effect of post-war inﬂation), § 354.6(b) (making corporations

doing business in California liable for the debts of their Japanese

afﬁliates, without regard to traditional principles of corporate

identity), § 354.6(c) (setting aside generally-applicable statutes of

limitations in favor of an 81-year limitations period).

The superior court mistakenly believed that the federal Treaty

could preempt the California statute with respect to plaintiff’s

claim only if the Treaty itself actually resolved the Korean and

446 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Chinese claims.

Thus, the superior court found it conclusive that

the Treaty “did not and could not regulate claims of foreign

nationals against the companies that had forced them to work

without wages.” Sept. 14 Opinion at 14. This misconceives the

nature of both the Treaty and federal preemption. It is not necessary

for the Treaty to ﬁnally resolve plaintiff’s claim in order for the

federal law to preempt California’s attempt to encourage litiga-

tion of that claim. It is sufﬁcient that the Treaty establishes, as a

matter of United States law, that plaintiff’s claim is to be resolved

by inter-governmental arrangements, rather than litigation. It is

irrelevant, therefore, whether, as a matter of Korean or Japanese

law, plaintiff could pursue his claim in the courts of those nations;

he may not, according to the United States’ policy adopted in

the Treaty, pursue his claim in the courts of the United States. The

California statute plainly “stands as an obstacle to the accom-

plishment and execution of the full purposes and objectives” of

the Treaty. Hines, 312 U.S. at 61; Crosby, 520 U.S. at 373.

Plaintiff’s argument (and that of the superior court) is similar

to that advanced by Massachusetts and rejected by the Supreme

Court in Crosby. There, Congress had adopted a policy, reﬂected

in the Federal Burma Act, of giving the President ﬂexibility in

using economic sanctions to promote improved human rights

conditions in Burma. 530 U.S. at 374–75. Massachusetts contended

that the President’s ﬂexibility was limited to the speciﬁc matters

stated in the statute. Thus, Massachusetts argued that while the

President had ﬂexibility over federal sanctions, Congress had

“implicitly left control over state sanctions to the State.” Id. at

376 n.10. The Supreme Court rejected this “cramped view” of the

federal law’s preemptive scope. Ibid. Because the natural effect of

the state law was to reduce the President’s bargaining authority,

the state statute was preempted. Id. at 376–77.

It should be noted that plaintiff purports to represent a class of

individuals who were forced to work for Onoda Cement Company. To the

extent that any members of the putative class were nationals of the United

States or Allied parties at the time of the Treaty, their claims are directly

barred by the waiver in Article 14 of all claims by party nationals against

Japanese nationals arising out of Japan’s prosecution of the war.

International Claims and State Responsibility 447

Similarly here, the natural effect of the California forced labor

statute, with its uniquely favorable rules, is to encourage litigation

of precisely those claims that federal policy declares should be

resolved by government-to-government agreement. Because the

state statute “stands as an obstacle to the accomplishment and

execution of the full purposes and objectives” of the 1951 Treaty

of Peace, the statute is preempted. See Crosby, 530 U.S. at 377

(quoting Hines, 312 U.S. at 67).

C. Even if Not Afﬁrmatively Preempted, the California

Forced Labor Statute Is an Unconstitutional Intrusion

Into the Conduct of Foreign Affairs.

The Supreme Court has established that, even apart from

statutory preemption, the Constitution’s commitment to the Federal

Government of the exclusive responsibility for conducting the

nation’s foreign affairs acts as an independent constraint on state

activity. Thus, “even in [the] absence of a treaty” or federal statute,

a state policy that disturbs foreign relations must be set aside.

Zschernig, 389 U.S. at 441. See also Chy Lung v. Freeman, 92

U.S. 275 (1875) (striking down California statute requiring ship

to post bond for certain foreign immigrants without ﬁnding con-

ﬂict with any federal statute or treaty). It is not a question of

“balanc[ing] the nation’s interest in a uniform foreign policy against

the particular interests of a particular state”; rather, “there is a

threshold level of involvement in and impact on foreign affairs

which the states may not exceed.” National Foreign Trade Council

v. Natsios, 181 F.3d 38, 52 (1st Cir. 1999), aff’d, 530 U.S. 363

(2000).

Zschernig is illustrative. In that case, the Supreme Court struck

down an Oregon probate law that prevented the distribution of

estates to foreign heirs if, under foreign law, the proceeds of the

estate were subject to conﬁscation. 389 U.S. at 431. The Court

noted that application of the statute required state courts to engage

in “minute inquiries concerning the actual administration of foreign

law” and to judge the credibility and good faith of foreign counsels,

id. at 435, with outcomes turning upon “foreign policy attitudes”

448 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

regarding the Cold War, id. at 437. Accordingly, the Court con-

cluded that the statute had “a direct impact upon foreign relations

and may well adversely affect the power of the central govern-

ment to deal with those problems.” Id. at 441. The Court held

that this “kind of state involvement in foreign affairs and inter-

national relations—matters which the Constitution entrusts solely

to the Federal Government”—was “forbidden state activity.” Id.

at 436.

The California forced labor statute represents a similar

impermissible intrusion into the Federal Government’s author-

ity to regulate foreign affairs. California is plainly of the view

that Japanese companies’ use of unpaid forced labor, even if con-

doned by the Imperial Japanese government, violated transcendent

principles of international human rights law. But under our con-

stitutional scheme, only the Federal Government has the authority

to prescribe penalties for foreign violations of international law.

See U.S. Const. Art. 1, § 8, cl. 10.

This is particularly so where, as here, the international law

violations at issue were committed in conjunction with a foreign

government during the course of a war against the United States.

As the Supreme Court has recognized, war-related claims, including

the claims of nationals, are frequently the subject of government-

to-government negotiations at the conclusion of hostilities. See,

e.g., United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103

(1801) (upholding the Federal Government’s power to abolish, by

way of treaty, private prize claims against foreign property); Ware

v. Hylton, 3 U.S. (3 Dall.) 199, 230 (1796) (refusing to adjudicate

a personal debt, conﬁscated by Virginia during the Revolutionary

War, because the treaty of peace concluding the war had not

provided for such claims). The decision whether to risk continued

animosity with a foreign power by creating claims in American

courts arising out of foreign nationals’ participation in their

government’s atrocities is a determination that only the Federal

Government is authorized to make. See Pink, 315 U.S. at 225

(noting that “the existence of unpaid claims against Russia and its

nationals which were held in this country *** had long been one

impediment to resumption of friendly relations between these two

great powers” (emphasis added) ).

International Claims and State Responsibility 449

Even a State with the best of intentions lacks the resources

and breadth of view necessary to assess the impact of punishing

particular international law violations on the United States’ multi-

faceted international interests. See, e.g., Crosby v. National Foreign

Trade Council, 530 U.S. 363, 381–82 (2000) (observing that

independent state activity would undermine President’s ability to

coordinate the country’s multi-pronged policy of encouraging

democratic change in Burma through enticements, threats, and

cooperation with other foreign nations). A state legislature is in a

poor position to assess what risks to our relations with Germany

and Japan are entailed by a statute that aims to redress the wrongs

of World War II, or to weigh those risks against other foreign policy

objectives that depend upon the good will of those governments.

Whether for lack of responsibility or inadequate information, States’

policies are likely to be motivated by purely local considerations,

to the detriment of the nation as a whole. See Lori A. Martin,

The Legality of Nuclear Free Zones, 55 U. Chi. L. Rev. 965, 993

(1988).

In enacting the World War II slave and forced labor statute,

the California legislature has interjected itself into the “forbidden”

territory of foreign affairs. At the time of the bill’s signing, the

provision’s author made clear that the statute was intended to

inﬂuence the conduct of the United States and German governments

in their discussions relating to Holocaust-era claims:

[Section 354.6] sends a very powerful message from

California to the U.S. government and the German

government, who are in the midst of rather closed

negotiations about a settlement. * * * If the international

negotiators want to avoid very expensive litigation by

survivors * * *, they ought to settle. ** * Otherwise, this

law allows us to go ahead and take them to court.

See Henry Weinstein, Bill Signed Bolstering Holocaust-Era Claims,

Los Angeles Times, July 29, 1999, at A3 (1999 WL 2181642)

(emphasis added).

Plainly, the California legislature has engaged in a policy-

oriented balancing of interests and decided that the beneﬁts of

450 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

adopting a law with respect to German and Japanese forced labor

claims were worth the risks entailed in antagonizing the target

companies and the German and Japanese governments. As to the

States, such foreign policy debates are “forbidden ** * activity.”

Zschernig, 389 U.S. at 435–36. Like other state statutes that have

been held invalid under Zschernig, this statute too unacceptably

compromises the nation’s interest in having its foreign policy

conducted by a national government responsible to the citizens

of all states. See Natsios, 181 F.3d at 53 (Massachusetts statute

restricting the ability of state agencies to purchase goods or services

from companies that also did business in Burma was speciﬁcally

designed to affect the affairs of a foreign country); Miami Light

Project v. Miami-Dade County, 97 F. Supp. 2d 1174, 1176–77,

1180 (S.D. Fla. 2000) (by adopting ordinance that required public

contractors to certify that neither they nor their sub-contractors

had engaged in commerce with Cuba, Cuban products or Cuban

nationals, county had impermissibly inserted itself into a “hotbed

of foreign affairs” with the intent to “protest and condemn Cuba’s

totalitarian regime”); Tayyari v. New Mexico State Univ., 495 F.

Supp. 1365, 1376–80 (1980) (state university’s policy of denying

admission to Iranian students in retaliation for the Iranian hostage

crisis intruded upon “the arenas of foreign affairs and immigration

policy, interrelated matters entrusted exclusively to the federal

government”); Springﬁeld Rare Coin Galleries, Inc. v. Johnson,

503 N.E.2d 300, 302–03 (Ill. 1986) (state law regarding the sale

of South African coins was unconstitutional where adopted

“as an expression of disapproval of that nation’s policies”); New

York Times Co. v. City of New York Comm’n on Human Rights,

361 N.E.2d 963, 968 (N.Y. 1977) (striking down prohibition

on advertizing jobs in South Africa as an impermissible intrusion

upon foreign relations). Compare Trojan Technologies, Inc. v.

Pennsylvania, 916 F.2d 903, 913–14 (3d Cir. 1990) (upholding

state “Buy America” statute in part because the law did not involve

evaluation of speciﬁc foreign nations), cert. denied, 501 U.S. 1212

(1991).

Further, like the Massachusetts Burma statute, the potential

foreign policy impact of California’s forced labor statute must be

assessed within the “broader pattern of state and local intrusion.”

International Claims and State Responsibility 451

Natsios, 181 F.3d at 53. If California is free to redress the wrongs

associated with forced labor during World War II, then each State

is free to adopt similar—or even inconsistent—laws relating to

their preferred foreign human rights issue, whether it be repression

in Burma, cf. Natsios, 181 F.3d at 53, or communism in Cuba,

cf. Miami Light Project, 97 F. Supp. 2d at 1180. In addition to

violating the territorial limitations on state jurisdiction, discussed

below, such a rule would severely undermine American foreign

policy. Individual States cannot be permitted to force their favored

issues or preferred resolutions into the Federal Government’s dis-

cussions. See Crosby, 530 U.S. at 382–83 (observing that Massac-

husetts had distracted foreign policy toward Burma by making the

state law the focus of diplomacy, rather than Burma’s conduct).

As discussed above, the conﬂict with federal policy in this case

is real and direct. The Federal Government made the determination

at the conclusion of World War II that the nation’s strategic need

for a strong, democratic ally against communism in Asia required

that claims against Japan and Japanese companies be resolved

ﬁnally through inter-governmental negotiations. Thus, the Allies,

including the United States, foreclosed litigation of their nationals’

war-related claims in exchange for the right to conﬁscate and

distribute Japanese assets within their territory. The Allies directed

that the claims of Korean and Chinese nationals be dealt with

similarly. California’s forced labor statute moves in precisely the

opposite direction, encouraging and facilitating litigation of the

exact claims that the federal policy seeks to bar.

The superior court’s opinions in this case exemplify the extent

to which the California forced labor statute has drawn the State’s

courts into matters of foreign affairs, in the same way as that

condemned by the Supreme Court in Zschernig. Based upon

the inaccurate premise that the United States had not opposed

California’s attempt to meddle in Holocaust-era claims arising from

the European Theatre,

the superior court criticized the United

Speciﬁcally, the superior court criticized the United States for not

ﬁling a brief in opposition to California’s interference in foreign policy by

way of the Holocaust Victims Insurance Relief Act (“HVIRA”). See Nov. 29

Opinion at 10. A review of the Ninth Circuit’s opinion in Gerling Global

452 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

States’ purportedly “uneven” and “disparate” treatment of Japan

and Germany and deemed federal foreign policy to be “legally

unsupportable.” Nov. 29 Opinion at 11. See also Ruling re:

Defendants’ Motion for Judgment on the Pleadings, ﬁled September

14, 2001 (“Sept. 14 Opinion”), 18 (holding that adjudication of

plaintiff’s claim “would not interfere with any legitimate United

States governmental foreign policy interest” (emphasis in original)).

Plainly, it is beyond the superior court’s authority to determine

whether the United States government has a “legitimate” basis for

treating one foreign government different from another.

Actual adjudication of plaintiff’s claims would draw the state

courts even deeper into the terrain of foreign affairs. The court

would be called upon to adjudicate whether Japan’s bilateral

treaties with South Korea and the Republic of China do, in fact,

resolve the legal claims of plaintiff and other members of the

putative class. If the parties to those agreements disagree on their

meaning, a court ruling either way might well inﬂame simmering

international disputes. Moreover, a ﬁnding that the treaties had

not ﬁnally resolved those claims would be the equivalent to a

determination that Japan had violated its obligations under the

terms of the 1951 Treaty of Peace. An individual state legislature

cannot interject its courts into such foreign policy thickets. See

Zschernig, 389 U.S. at 435–37.

****

Reinsurance Corp. of America v. Low, 240 F.3d 739, 741 (9th Cir. 2001),

reveals that the United States did ﬁle a brief as amicus curiae in support of

plaintiff’s constitutional challenge to the HVIRA. Moreover, the United States

has ﬁled several Statements of Interest urging courts to dismiss on any valid

legal basis Holocaust-era claims against German companies. These Statements

were ﬁled consistent with President Clinton’s determination, in the context

of the Agreement between the Government of the United States of America

and the Government of the Federal Republic of Germany concerning

the Foundation “Remembrance, Responsibility and the Future,” that “it

would be in the foreign policy interests of the United States for the Founda-

tion to be the exclusive forum and remedy” for Nazi-era claims against

German companies. Foundation Agreement, Annex B, ¶ 1. (The Foundation

Agreement can be found at: www.state.gov/www/regions/eur/holocaust/

germanfound.html.)

International Claims and State Responsibility 453

II. THE CALIFORNIA WORLD WAR II FORCED LABOR

STATUTE IS EXTRATERRITORIAL LEGISLATION

THAT IS BEYOND THE AUTHORITY OF THE

STATE TO ENACT.

In addition to Section 354.6’s impermissible interference with

federal foreign policy, the state statute also violates the federal

Constitution’s prohibition on States attempting to project their

legislative jurisdiction beyond their borders.

A. The Commerce Clause of the federal Constitution “has long

been understood” not only as an afﬁrmative grant of authority to

the Federal Government, but as a constraint upon the power

of the States, which “ ‘provide[s] protection from state legislation

inimical to the national commerce [even] where Congress has not

acted.’” Barclays Bank PLC v. Franchise Tax Board, 512 U.S.

298, 310 (1994) (quoting Southern Paciﬁc Co. v. Arizona, 325

U.S. 761, 769 (1945) ).

As the Supreme Court has explained, the Commerce Clause

precludes a State from applying its law “to commerce that takes

place wholly outside of the State’s borders.” Edgar v. MITE Corp.,

457 U.S. 624, 642–43 (1982) (plurality opinion). See also BMW

of North America, Inc. v. Gore, 517 U.S. 559, 572 (1996) (State

may not “impose economic sanctions on violators of its laws with

the intent of changing the [violator’s] lawful conduct in other

States”). Extraterritorial regulation “exceeds the inherent limits of

the enacting State’s authority and is invalid regardless of whether

the statute’s extraterritorial reach was intended by the legislature.”

Healy v. Beer Institute, 491 U.S. 324, 336 (1989).

These principles apply with particular force in the international

arena, and the Supreme Court has recognized that the dormant

Foreign Commerce Clause prevents States from regulating com-

merce in a manner that “prevents the Federal Government from

‘speaking with one voice when regulating commercial relations

with foreign governments.’” Japan Line, Ltd. v. County of Los

Angeles, 441 U.S. 434, 451 (1979) (quoting Michelin Tire Corp.

v. Wages, 423 U.S. 276, 285 (1976) ). A state statute “will violate

the ‘one voice’ standard if it either implicates foreign policy issues

454 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

which must be left to the Federal Government or violates a clear

federal directive.” Container Corp. v. Franchise Tax Bd., 463 U.S.

159, 194 (1983).

Similar principles, inherent in the constitutional requirement

of due process, also limit a State’s ability to project its law beyond

its borders. See Allstate Ins. Co. v. Hague, 449 U.S. 302, 310–11

(1981) (plurality) (“if a State has only an insigniﬁcant contact

with the parties and the occurrence or transaction, application of

its law is unconstitutional”); Phillips Petroleum Co. v. Shutts, 472

U.S. 797, 818 (1985); Home Insurance Co. v. Dick, 281 U.S. 397,

407–08 (1930); Watson v. Employers Liability Assurance Corp.,

348 U.S. 66, 70 (1954). See also Quill Corp. v. North Dakota, 504

U.S. 298, 306 (1992) (“[t]he Due Process Clause ‘requires some

deﬁnite link, some minimum connection, between a state and the

person, property or transaction it seeks to tax’” (citation omitted) ).

The due process limitations on a State’s extraterritorial legislation

look “not only at whether the parties ** * have contacts with

[the State], but also and more importantly * * * at whether the

subject [of the legislation] has a sufﬁcient nexus to [the State].”

Gerling Global Reinsurance Corp. of America v. Gallagher, 267

F.3d 1228, 1238 (11th Cir. 2001) (“Gerling-Gallagher”).

Applying these principles, the Eleventh Circuit in Gerling-

Gallagher recently enjoined application of a Florida statute that

attempted to force European insurance companies and their Florida

afﬁliates to pay on insurance policies issued in Europe prior to

and during World War II. See Gerling-Gallagher, 267 F.3d at 1238.

The court explained it was insufﬁcient that, subsequent to the

Holocaust, some victims had moved to Florida or that afﬁliates

of the European insurers did business in Florida. Ibid. The State

lacked a sufﬁcient nexus to “the subject” of the legislation—“the

German afﬁliates’ payment or non-payment of Holocaust-era policy

claims.” Ibid.

B. In enacting its Second World War forced labor statute, the

California legislature sought to create and deﬁne a cause of action

to provide compensation for victims of German and Japanese

forced labor practices during World War II. Section 354.6

establishes the cause of action, Cal. Civ. Pro. §354.6(b), deﬁnes

International Claims and State Responsibility 455

the class of plaintiffs who may sue, id. §354.6(a)(1), (2), afﬁxes

the measure of damages (eliminating the effect of post-war

inﬂation), id. §354.6(a)(3), makes corporations doing business in

California liable for the debts of their Asian and European afﬁliates,

without regard to traditional principles of corporate identity,

id. §354.6(b), and sets aside generally-applicable statutes of

limitations, substituting an 81-year statute of limitations that

extends to 2010, id. §354.6(c).

Contrary to plaintiff’s and the superior court’s suggestion,

the statute thus is considerably more than a state “statute of

limitations.” See Nov. 29 Opinion at 6, 13. In fact, the paragraph

that establishes the limitations period expressly disavows any

general application to causes of action that arise independently

under other provisions of substantive law. To the contrary, the

limitations provision applies only to “[a]ny action brought under

this section.” Id. §354.6(c) (emphasis added).

Whether the substantive law that the forced labor statute

establishes is characterized as “California” law or “international”

human rights law, the result is the same: California has sought to

deﬁne liability for events occurring between foreign nationals in

foreign nations.

The principles outlined above plainly preclude this extrater-

ritorial legislation. As noted, both the “dormant” Commerce

Clause and the Due Process Clause prohibit a State from projecting

its laws into other jurisdictions. See Healy v. Beer Institute, 491

U.S. 324, 336 (1989) (Commerce Clause); Home Insurance Co. v.

Dick, 281 U.S. 397, 407–08 (1930) (Due Process Clause). The

California legislature can no more regulate conduct that takes

place in Japan or Korea or legislate what damages should be paid

for such conduct, than it can impose its regulatory policies on

New York.

Section 354.6 applies to conduct in territory “conquered by

the Nazi regime, its allies or sympathizers” at any time during

Thus, the superior court was simply wrong when it stated that, in

the absence of a clear indication whether Korean or Japanese law would

permit plaintiff’s claim, the court was free to “apply California law” instead.

See Sept. 14 Opinion at 12.

456 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

World War II. See Cal. Civ. Pro. §354.6(a)(2). By deﬁnition,

therefore, the statute applies only to conduct that occurred outside

of California. Nor does the statute represent an attempt to afford

protection to California citizens victimized in foreign nations.

The statute seeks to provide relief to persons “taken from a

concentration camp or ghetto” in Europe, or “member[s] of the

civilian population[s] conquered by the Nazi regime, its allies

or sympathizers.” Id. §354.6(a). Indeed, with respect to claims

against Japanese corporations, the only conceivable plaintiffs are

individuals who were not nationals of the United States in 1951,

when the United States explicitly waived all such claims.

Plaintiff’s claims exemplify the statute’s extraterritorial reach.

Mr. Jeong was a Korean national living in Japan and Korea dur-

ing World War II, when he was forced by Japanese “government

authorities” to perform unpaid-labor “in Korea” for a Japanese

company, Onoda Cement Co., Ltd. See Sept. 14 Opinion, 2. The

connection between the tragic events at issue and California are

not apparent. Mr. Jeong later moved to California and Onoda

(or at least certain afﬁliates) presently does business in the State.

It is well-established, however, that the mere presence of the

parties in a State are not an adequate basis for that State to apply

its substantive law to activity with no other signiﬁcant contact

with the State. Allstate Ins. Co., 449 U.S. at 310–11 (citing John

Hancock Mutual Life Ins. Co. v. Yates, 299 U.S. 178 (1936) ).

****

b. Legislation to create federal cause of action

In March 2001 a bill was introduced in the U.S. House of

Representatives to create a cause of action under U.S. federal

law for U.S. prisoners of war held by Japan during World

War II. H.R. 1198, “Justice for United States Prisoners of War

Notably, the Ninth Circuit in Gerling-Low, speciﬁcally declined to

address the insurance companies’ “due process” challenge to California’s

disclosure requirements for Holocaust-era insurance policies. 240 F.3d at

754 n.11.

International Claims and State Responsibility 457

Act of 2001,” 107

Cong. (2001), would require a U.S. federal

court not to construe section 14(b) of the Treaty of Peace

with Japan as constituting a waiver by the United States of

claims brought against a Japanese national by a member of

the U.S. armed forces seeking compensation for mistreatment

or failure to pay wages in connection with labor performed

in Japan for such national as a prisoner of war during World

War II. The bill would declare that it is U.S. policy to ensure

that any war claims settlement terms between Japan and any

other country that are more beneﬁcial than those terms

extended to the United States under the Treaty of Peace are

extended to the United States in accordance with article 26

of the treaty with respect to claims covered under the Act.

In addition, the applicable statute of limitations would be

that of the state of the United States in which the action was

pending. As used in the bill, the term “Japanese nationals”

would include entities organized or incorporated under

Japanese law or afﬁliates of such entities organized or incor-

porated under the laws of any state of the United States.

In hearings before the House Committee of the Judiciary,

Subcommittee on Immigration and Claims, September 25,

2002, William H. Taft, IV, Legal Adviser for the Department

of State, testiﬁed as to the views of the Department of State

on the bill. At the end of 2002 no further action had been

taken by Congress.

The full text of the Mr. Taft’s testimony, excerpted below,

is available at www.state.gov/s/l/c8183.htm.

****

. . . [T]he Department supports justice for U.S. prisoners of

war, but it does not support H.R. 1198 and would oppose its

enactment.

By “justice for U.S. prisoners of war,” we mean that the United

States should assure that our POWs, together with all our veterans,

should receive full and fair compensation for their service. Special

hardships connected with that service, such as those suffered by

POWs, should be considered in determining what compensation

458 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

is proper. Obviously, no amount of money can fully compens-

ate those who, as POWs, have survived years of ill treatment in

unspeakable conditions; those who have become permanently

disabled in the service of our country; or, much more, those who

have given their lives in that service. Nonetheless, we owe it to

those who serve to do our best to establish an equitable system that

takes into account the many different situations they experience.

It is an obligation the United States has to its servicemen—all of

them. It should not depend for its fulﬁllment on such unpredict-

able and variable factors as whether some person or corporation

responsible for a particular injury is liable to suit, has the ability

to pay, or decides as a matter of discretion to be generous.

In the aftermath of World War II, the government had to

determine how to compensate those who had served in that con-

ﬂict. There was naturally special concern for those who had been

POWs in the Paciﬁc Theater, and special provision was made for

their compensation. This was done with full consideration of the

circumstances of others who had served. A War Claims Fund was

established to ﬁnance this effort. [See, e.g., Hearings before the

Committee on Foreign Relations of the United States Senate

on Japanese Peace Treaty and Other Treaties Relating to Security

in the Paciﬁc, pp. 145–147 (January 21–23, and 24, 1952); War

Claims Act of 1948, as amended, 50 U.S.C. App. § 2001, et seq.;

1951 Peace Treaty, Article 16, 3 U.S.T. 3185.]

The Peace Treaty with Japan was negotiated, signed and ratiﬁed

against this background. It provided, among other things, that

certain assets of the Japanese Government and Japanese nationals

would be conﬁscated and used to compensate U.S. citizens and

servicemen for claims against Japan. [Treaty, Article 14.] The U.S.

used some of these assets to make payments to POWs speciﬁc-

ally and some for other purposes. [War Claims Act of 1948, as

amended, supra.] The Treaty expressly waived all claims of U.S.

nationals “arising out of any actions taken by Japan and its

nationals in the course of the prosecution of the war . . .” [Treaty,

Article 14(b).] This waiver applies to claims by POWs as well as

others.

In giving its advice and consent to the Treaty, the Senate

considered the extent of the claims it was waiving and the money

International Claims and State Responsibility 459

available to satisfy them in the War Claims Fund. In addition to

Japanese assets conﬁscated by the U.S., there was a chance that

assets conﬁscated by other Allied governments would be available.

Beyond that, however, the Senate was informed in response to its

inquiry that, “U.S. nationals . . . must look for relief to the Congress

of the United States.” The Senate Foreign Relations Committee

advised the Senate accordingly in reporting the Treaty, noting that

it was “the duty and responsibility of each [Allied] government to

provide compensation for persons under its protection as that

government deems fair and equitable, such compensation to be

paid out of reparations that may be received from Japan or from

other sources.” [hearings, supra, at 147; emphasis added.]

So, the Treaty waived the claims against Japanese nationals

that H.R. 1198 seeks to revive. Moreover, in approving the

Treaty the United States clearly understood that any additional

compensation for POWs or other U.S. claimants was its own

responsibility. Former Secretary Shultz, in the letter he wrote in

June last year to the Chairman and Members of this Committee,

expressed the same view: “Where we have veterans,” he said,

“especially veterans of combat who are not being adequately

supported, we must step up to their problems without hesitation.”

I am sure all Americans would agree.

“But,” Secretary Shultz continued, “let us not unravel con-

ﬁdence in the commitment of the United States to a treaty properly

negotiated and solemnly ratiﬁed with the advice and consent

of the U.S. Senate.” Because that is what H.R. 1198 would do, we

cannot support it.

I would like to mention brieﬂy three reasons why the

Administration opposes its enactment.

First, H.R. 1198’s revival of World War II claims against

Japanese nationals that were waived in the 1951 Peace Treaty

would be inconsistent with our Treaty commitments, as clearly

understood by our negotiators and by the United States Senate

when it gave its overwhelming advice and consent to ratiﬁcation.

Second, walking away from our commitments under the 1951

Peace Treaty would have adverse foreign policy consequences.

The Treaty has for 50 years been the cornerstone of U.S. security

policy in the Paciﬁc region. Abandoning it now could have serious

460 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

repercussions for our defense relationship with Japan and other

countries in the region, apart from generally damaging U.S.-Japan

relations.

Third, H.R. 1198 raises constitutional concerns. The bill raises

separation of powers concerns, since Congress would assume the

constitutional prerogative of the Judicial and Executive branches

to determine what treaties of the United States mean. This problem

is evident in the bill’s central provision—its mandate of a speciﬁc

judicial construction of Article 14(b) of the Treaty, one that is

inconsistent with prior Judicial and Executive branch constructions

of the provision.

Many of the ﬁndings recited in section 2 of the bill are likewise

inconsistent with the conclusions reached by the Judicial and

Executive branches.

In conclusion, the Administration is of the view that H.R.

1198 is—on both legal and policy grounds—the wrong way

for the United States to go. If we determine that additional

assistance is necessary to the well-being of our World War II

POWs from the Paciﬁc Theatre—or any other group of veterans,

for that matter—the way to provide such relief consistent with

the Treaty would be for the Congress to appropriate funds for

that purpose.

****

c. Applicability of statute of limitations in suit against

the United States for Fifth Amendment taking

In Hair v. U.S., 52 Fed. Cl. 279 (Fed.Cl. 2002), the U.S. Court

of Federal Claims dismissed a suit ﬁled by a purported class

of U.S. citizens “injured or killed as a result of Japan’s criminal

war of aggression from December 7, 1941 until September 2,

1945.” Claimants alleged that the United States was liable to

them for a taking without just compensation under the Fifth

Amendment, in connection with the 1952 ratiﬁcation of the

1951 Treaty of Peace. The court noted that such claimants

acknowledged that the United States had “purported to

waive” such claims in the Treaty of Peace and that Congress

International Claims and State Responsibility 461

had established a commission to compensate U.S. citizens

who were prisoners of war or internees during World War II

under the War claims Act, 50 app. U.S.C. §§ 2001–2017p.

The court dismissed the case, however, on the basis of the

six-year statute of limitations applicable to all claims before

the Court of Federal Claims, noting that this statute of

limitations “must be strictly construed, as it pertains to the

government’s waiver of sovereign immunity.”

5. Other Claims Against the United States: Kenyan Claims

from Embassy Bombing

On July 30, 2002, the U.S. District Court for the District

of Columbia dismissed actions brought by a prospective

class of Kenyan citizens and businesses in connection with

the August 7, 1998 terrorist bombing of the U.S. Embassy in

Nairobi, Kenya. Macharia v. U.S., 238 F. Supp. 2d 13 (D.D.C.

2002). Among the grounds on which the claims had been

brought was the allegation that the United States violated

“‘elemental principles of international law,’ the constitution

of Kenya, and customary international law through the Inter-

national Covenant on Civil and Political Rights (‘ICCPR’).”

See Digest 2001 at 417–421. In ﬁnding that it lacked subject

matter jurisdiction over claims brought under the Kenyan

constitution or other laws of Kenya, the court found that the

“foreign country exception” was speciﬁcally added to the

Federal Tort Claims Act “to prevent plaintiffs from subjecting

the Untied States to suits brought pursuant to foreign laws.”

As to the ICCPR, the court concluded:

[I]in order for the United States to be subject to suit,

there must be an express waiver of sovereign immunity.

There is no such waiver related to claims brought

pursuant to the ICCPR. When the Senate ratiﬁed the

ICCPR it did so with a declaration that articles 1 to 27

were not self-executing. 138 Cong. Rec. S4,784 (daily ed.

Apr. 2, 1992). A treaty that is not self-executing requires

further action by Congress to incorporate it into domestic

462 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

law and without such action courts may not enforce such

a treaty. ...Courts have uniformly held that the ICCPR

is not self-executing and that, therefore, it does not give

rise to a private right of action. ...Accordingly, Plaintiffs

claim based on the ICCPR must be dismissed for failure

to state a claim and for lack of jurisdiction.

The court also found that plaintiffs had failed to allege

“even the basic elements of a violation of . . . international

customs.”

Cross Reference

Claims under Alien Tort Statute and Torture Victims Protection

Act, Chapter 6.G.3.

Sovereign and head of state immunity in claims against foreign

countries and ofﬁcials, Chapter 10.A., B.

Diplomatic Relations, Succession and Continuity of States 463

463

CHAPTER 9

Diplomatic Relations, Succession and

Continuity of States

A. AFGHANISTAN

On January 18, 2002, the U.S. Liaison Ofﬁce in Kabul was

closed and the U.S. Embassy in Afghanistan resumed opera-

tions. Robert Finn was sworn in as U.S. ambassador to

Afghanistan on March 22, 2002.

B. EAST TIMOR

The United States established full diplomatic relations with

the Democratic Republic of East Timor and opened an

embassy in Dili on May 20, 2002, the day that East Timor

gained independence. The United States had opened a U.S.

Representative Ofﬁce (“USRO”) in Dili on February 15, 2002.

The ofﬁcial press statement is set forth below, available at

http://usembassy-australia.state.gov/hyper/2002/0520/

epf109.htm.

****

The Department of State is pleased to announce that the United

States has established full diplomatic relations with the Democratic

Republic of East Timor and has opened an embassy in the capital,

Dili, effective May 20, 2002. The Embassy will be headed by a

Chargé d’Affaires until such time as the President nominates and

464 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

the Senate conﬁrms an ambassador. The current Charge is Shari

Villarosa.

The United States looks forward to working with the people

and the government of the Democratic Republic of East Timor to

foster the growth of democracy and prosperity in the ﬁrst nation

of the new millennium.

Cross Reference

Peace Corps agreement in East Timor, Chapter 4.A.

Immunities and Related Issues 465

465

CHAPTER 10

Immunities and Related Issues

A. SOVEREIGN IMMUNITY

Under the Foreign Sovereign Immunities Act (“FSIA”), 28

U.S.C. §§ 1330, 1602–1611, a state and its instrumentalities

are immune from the jurisdiction of U.S. courts unless one

of the speciﬁed exemptions in the statute applies. The FSIA

provides the sole basis for obtaining jurisdiction over a foreign

sovereign in U.S. courts. Argentine Republic v. Amerada Hess

Shipping Corp., 488 U.S. 428 (1989); Saudi Arabia v. Nelson,

507 U.S. 349 (1993). For a number of years before enactment

of the FSIA in 1976, courts abided by “suggestions of

immunity” from the State Department. When foreign nations

failed to request such a suggestion from the Department

of State, however, the courts made the determination. The

FSIA was enacted “in order to free the Government from the

case-by-case diplomatic pressures, to clarify the governing

standards, and to ‘[assure] litigants that . . . decisions are

made on purely legal grounds and under procedures that

insure due process,’ H. R. Rep. No. 94–1487, p. 7 (1976).”

Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488

(1983).

In the FSIA’s exception for “commercial activities,”

Congress codiﬁed the “restrictive” theory of sovereign im-

munity, under which a state is entitled to immunity with

respect to its sovereign or public acts, but not those that are

private or commercial in character. (The United States had

previously adopted the “restrictive theory” in the so-called

466 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

“Tate Letter” of 1952. See Alfred Dunhill of London, Inc. v.

Cuba, 425 U.S. 682, 711–715 (1976).) Generally speaking, a

state engages in commercial activity when it exercises “only

those powers that can also be exercised by private citizens”

as distinct from “powers peculiar to sovereigns.” Alfred

Dunhill, 425 U.S. 682 at 704 (1976). The test for making this

distinction is the nature of the transaction in question (the

outward form of the conduct which the foreign state performs

or agrees to perform) as opposed to the intent behind it (the

reason why the foreign state engages in the activity). See

Republic of Argentina v. Weltover, 504 U.S. 607, 614 (1992)

(“the commercial character of an act is to be determined by

reference to its ‘nature’ rather than its ‘purpose’ ”).

From the beginning the FSIA has provided certain other

exceptions to immunity, such as by waiver or agreement to

arbitrate. Over time, amendments to the FSIA have incorpor-

ated additional exceptions. One of the most invoked in recent

years has been the “terrorism” exception enacted in 1996.

The various statutory exceptions set forth at §§ 1605(a)(1) to

(7) have been subject to judicial interpretations.

Accordingly, much of U.S. practice in the ﬁeld of sovereign

immunity is developed by U.S. courts in litigation to which

the government is not a party and does not participate. The

following items represent only a selection of the relevant

decisional material.

1. Scope of Application

a. Deﬁnition of foreign state

In Boshnjaku v. Federal Republic of Yugoslavia, 2002 U.S. Dist.

LEXIS 13763 (N.D. Ill. 2002), Albanian residents and former

residents of the town of Gjakove, Kosovo, brought suit against

the Federal Republic of Yugoslavia, the Yugoslavian Armed

Forces, the Republic of Serbia, the Serbian Armed Forces,

and Slobodan Milosevic, Yugoslavia’s former head of state,

for damages resulting from the policy of “ethnic cleansing”

of ethnic Albanians. The district court denied plaintiffs’

Immunities and Related Issues 467

motion for a default judgment and summary judgment, hold-

ing that the Yugoslavian and Serbian governments and their

armed forces were “foreign states” as that term is deﬁned in

the FSIA. Even assuming that former President Milosevic

had been properly served with process, the court said, he

qualiﬁed as an “agency or instrumentality of a foreign state”

entitled to immunity under the FSIA, because he was being

sued for actions taken in his capacity as a head of state (citing

§ 1603(b)(1) and Chuidian v. Philippine National Bank, 912

F.2d 1095, 1099–1103 (9th Cir. 1990)). In addition, defendants

had not waived their immunity by signing an international

agreement (the Agreement on Initializing the General Frame-

work Agreement for Peace in Bosnia and Herzegovina) that

did not mention any waiver of immunity to suit (citing

Argentine Republic v. Amerada Hess, 488 U.S. 428 (1989)).

Finally, the court said, killings and forced expulsions in the

former Yugoslavia did not constitute a commercial activity

having an effect in the United States, and alleged violations

of customary international law and jus cogens did not waive

the immunity conferred by the statute. See also A.4.a. below.

b. European Police Ofﬁce

As discussed in Chapter 3.A.1.a.(3), the United States and

the European Police Ofﬁce (“Europol”) entered into an agree-

ment in 2002 supplementing a 2001 agreement creating an

overall institutional framework for cooperation between U.S.

law enforcement authorities and Europol. The supplemental

agreement provided for the exchange of personal data and

related information. A letter from Linda Jacobson, Assistant

Legal Adviser, Law Enforcement and Intelligence, U.S. Depart-

ment of State, dated November 26, 2002, to Mr. Juergen

Storbeck, Director of Europol, responded to an inquiry con-

cerning the extent to which Europol could be held liable for

damages in U.S. Courts based on its transmission of informa-

tion to the United States under the supplemental agreement.

****

468 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

I understand that as part of its process of review and approval of

the Supplemental Agreement between the United States of America

and Europol, the European Union has inquired regarding the extent

to which Europol could be held liable for damages in U.S. courts

based on its transmission of information to the U.S. under that

Agreement. The U.S. legal framework relevant to this inquiry is set

forth in the Foreign Sovereign Immunities Act (“FSIA”), Title 28,

United States Code, Section 1602 et. seq.

There is an important preliminary point regarding the operation

of the FSIA. A key objective in enacting the FSIA was to remove

decisions over sovereign immunity from the Executive Branch and

to place these decisions in the hands of the judiciary. Section 1602

(Findings and Declaration of Purpose) states that “determination

by United States courts of the claims of foreign states to immunity

from the jurisdiction of such courts would serve the interests of

justice and would protect the rights of both foreign states and

litigants in United States courts. . . . Claims of foreign states to

immunity should henceforth be decided by courts of the United

States and of the States.” Thus, while we are happy to discuss

in general how our courts have addressed several issues which

could be relevant to coverage of Europol under the FSIA, you

should be aware that the courts are legally authorized to make

these determinations and only they could make a binding decision

regarding Europol.

That being said, with respect to potential liability of a foreign

state in a suit brought in a U.S. court, the FSIA provides a

presumption of immunity for a foreign state from the jurisdiction

of U.S. courts, 28 U.S.C. 1604, unless the conduct forming the

basis of the suit falls within a speciﬁc exception set forth in that

statute, 28 USC 1605–1607.

A threshold question is whether the FSIA protections apply to

an organization like Europol, which was established by treaty

between a group of foreign governments rather than by a single

foreign government. In a similar factual scenario, a U.S. court

held that another European treaty-based organization, whose

ofﬁcials perform functions typically performed by national govern-

mental agencies, qualiﬁed as a “foreign state” under the terms of

the statute. See In re EAL Corp. v. European Organization for the

Immunities and Related Issues 469

Safety of Air Navigation, 1994 Lexis U.S. Dist. 20528 (D. Del.

1994). See also Gardiner Stone Hunter International v. Iberia

Lineas Aereas de Espana, 896 F. Supp. 125, 131 (S.D.N.Y. 1995)

(fn 6 and cases cited therein). The activities that Europol would

engage in under the agreement—exchange of law enforcement

information with the U.S.—are the type of governmental activity

for which the FSIA provides protection. See e.g., Herbage v. Meese,

747 F. Supp. 60, 66–67 (D.D.C. 1990).

Another issue is whether immunity also extends to Europol

ofﬁcials carrying out duties under the Supplemental Agreement.

Some U.S. courts have held that individuals acting as agents of the

foreign sovereign in carrying out such governmental activities enjoy

the same immunity as the sovereign itself. Id. at 66. Of course, the

Europol liaison agents accredited to the United States already enjoy

immunities in this country based upon their status as members of

the EC Mission to the United States.

While Section 1605(a)(5) does provide an exception to foreign

sovereign immunity for torts occurring in the United States, this

exception would not appear applicable to the transmissions of

information from Europol to U.S. law enforcement contemplated

under the agreement. In Argentine Republic v. Amerada-Hess,

488 U.S. 228 (1988), the United States Supreme Court construed

Section 1605(a)(5) to apply only where a tort has been committed

within the territory of the United States, not where it was

committed outside the U.S. even if it caused effects within the U.S.

A reading of the FSIA reveals no other exception to immunity that

would appear applicable to Europol activities under the Supple-

mental Agreement.

****

2. Suits Against Government Ofﬁcials

a. Doe v. Liu Qi; Plaintiff A v. Xia Deren

By letter dated May 3, 2002, United States Magistrate Judge

Edward M. Chen of the Northern District of California

requested the Department of State’s views on issues related

470 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

to Doe v. Liu Qi and Plaintiff A. v. Xia Deren, C 02-0672 and

C 02-0695 respectively. The complaint in this case alleged

that Liu Qi, then Mayor of Beijing, was responsible for

atrocities committed against adherents of the Falun Gong

movement. On September 25, the Legal Adviser of the

Department of State, William H. Taft, IV, responded by writing

to Assistant Attorney General Robert D. McCallum asking

him to submit the Department’s views to Magistrate Chen.

That letter was submitted to the court in a Statement of

Interest on September 27, 2002.

Excerpts from Mr. Taft’s letter setting forth the views

of the Department of State on application of the Foreign

Sovereign Immunities Act to the claims asserted in Liu and

Xi, are set forth below.

The full text of Mr. Taft’s letter is available at

www.state.gov/s/l/c8183.htm.

****

In Liu, the gravamen of plaintiffs’ complaint is that the defendant,

as Mayor of Beijing, People’s Republic of China (“PRC”), either

knew or should have known about various human rights abuses

that were allegedly perpetrated against adherents to the Falun

Gong movement in Beijing, and that he was under a duty under

both Chinese and international law to prevent such actions.

The

complaint alleges that Defendant Liu “planned, instigated, ordered,

authorized, or incited police and other [PRC] security forces to

commit the abuses suffered by Plaintiffs, and had command or

superior responsibility over, controlled, or aided and abetted such

forces in their commission of such abuses. The acts alleged herein

. . . were carried out in the context of a nationwide crackdown

against Falun Gong practitioners.” Compl., ¶ 2.

In Liu, all but one of the plaintiffs are aliens; four apparently

reside in the United States. Federal subject matter jurisdiction is

We note that the Complaint caption refers to “Liu Qi, and Does 1–5,

inclusive,” but we have not found speciﬁc reference in the complaint to any

defendants other than Mr. Liu.

Immunities and Related Issues 471

alleged to lie under customary international law, the Torture

Victims Protection Act (TVPA), 28 U.S.C. § 1350, note, the Alien

Tort Statute (ATS), 28 U.S.C. § 1350, and 28 U.S.C. § 1331. Id.,

¶ 3.

As noted in Magistrate Chen’s May 3 letter, a default was

entered in favor of the plaintiffs on March 12. Plaintiffs

subsequently moved for judgment by default. In reviewing that

motion, the Court has asked for the Department’s views on two

questions: (1) whether the case is barred under the Foreign

Sovereign Immunities Act (“FSIA”), and (2) whether the Court

should ﬁnd the case “nonjusticiable” under the Act of State

doctrine. We address these issues in turn.

Before turning to the questions posed by the Court, we would

note Magistrate Chen’s subsequent invitation to provide the

Department’s views in the Xia case. From our review of that

complaint, we conclude, as did Magistrate Chen in his August 5

order, that the relevant issues involved in both cases are “similar,

if not identical.” In these circumstances, we see no need to comment

separately on the Xia case; the views as expressed below regarding

Liu may be taken to apply mutatis mutandis to Xia. At the same

time, we note that the complaint in Xia is unambiguous that the

defendant was acting in his ofﬁcial capacity.

We also stress our deep concern about the human rights abuses

that have been alleged in these complaints. The United States has

repeatedly made these concerns known to the Government of the

PRC and has called upon it to respect the rights of all its citizens,

including Falun Gong practitioners. Our critical views regarding

the PRC Government’s abuse and mistreatment of practitioners of

the Falun Gong movement are a matter of public record and are

clearly set forth in the Department’s annual human rights reports,

the most recent version of which may be found at http://

www.state.gov/drl/rls/hrrpt/2001/eap/8289.htm.

With respect to the FSIA, Magistrate Chen asked speciﬁcally

whether the exception to immunity under 28 U.S.C. § 1605(a)(7)

applies to the case against Liu. In our considered opinion, the

exception under 28 U.S.C. § 1605(a)(7) does not apply by its

terms, since the Peoples’ Republic of China has never been

designated as a state sponsor of terrorism within the meaning of

472 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

subsection (A) of that provision. Nor, in our view, does the “tort”

exception under 28 U.S.C. § 1605(a)(5) apply since none of the

acts in question occurred in the United States. It does not appear

to us that any other exception of the FSIA would be relevant to

the facts alleged in the complaint. Therefore, if the FSIA is the

appropriate legal framework for determining the issue, the action

would have to be dismissed. See 28 U.S.C. §§ 1330, 1604

(immunity unless there is exception under 28 U.S.C. §§ 1605–

1607).

Whether the FSIA applies to this case presents a number of

issues for the Court to determine. We understand that, since

Chuidian v. Philippine National Bank, 912 F.2d 1095 (9th Cir.

1990), the practice in the 9th Circuit has been to evaluate claims

brought against individual foreign government ofﬁcials in United

States federal courts according to whether the allegations giving

rise to the suit were performed in an ofﬁcial capacity. Where the

conduct is found to be ofﬁcial, the courts have deemed the action

to be, in effect, a claim against the foreign state, and have applied

the analytical framework of the FSIA. Other jurisdictions have

also adopted this approach. See, e.g., Byrd v. Corporacion Forestal

Y Industrial de Olancho S.A., 182 F.3d 380, 388–89 (5th Cir.

1999); El-Fadl v. Central Bank of Jordan, 75 F.3d 668, 671 (D.C.

Cir. 1996).

The following considerations may be relevant given this

framework. As noted above, the only named defendant in Liu is

Beijing’s Mayor, Mr. Liu Qi. The allegations of the complaint are

directed solely towards actions he allegedly took, or failed to take,

as a senior ofﬁcial of the Chinese Government, in implementation

of ofﬁcial policy. What is at issue, in the words of the complaint,

is the “Chinese government’s crackdown on Falun Gong,” and

more particularly the “[a]buses being committed by police

and security forces in Beijing against the Falun Gong.” Compl.,

¶¶ 31, 32. The acts and omissions attributed to Mayor Liu are

The Executive Branch has not speciﬁcally endorsed the approach of

Chuidian, but recognizes that it is controlling law in the 9th Circuit in which

these cases arise.

Immunities and Related Issues 473

characterized as part of this “widespread governmental crack-

down”; the duties he is said to have violated derived from his

ofﬁcial position. The complaint speciﬁcally alleges that “[a]s the

Mayor of the City of Beijing, Defendant Liu held and holds the

power not only to formulate all important provincial policies and

policy decisions, but also to supervise, direct and lead the executive

branch of the city government, which includes the operation of

the Public Security Bureau of Beijing, under which the police

operate, and other security forces.” Id., ¶ 34.

It is noteworthy in this regard that the 9

Circuit has previously

held that the FSIA is not rendered inapplicable because of alleged

violations of customary international law by the ofﬁcials of a

foreign state defendant. Siderman de Blake v. Argentina, 965 F.2d

699 (9

Cir. 1992), cert. denied, 507 U.S. 1017 (1993). See also

Argentine Republic v. Amerada Hess, 488 U.S. 428 (1989)(FSIA

is exclusive basis for suit against foreign state notwithstanding

alleged violations of international law by its ofﬁcials). Because

suits against current ofﬁcials may well constitute the “practical

equivalent” of suits against the sovereign, and because denial

of immunity in such circumstances would allow “litigants to

accomplish indirectly what the [FSIA] barred them from doing

directly,” Chuidian, supra at 1101–02, we believe the courts should

be especially careful before concluding that the FSIA is inapplic-

able to a suit against a current ofﬁcial relating to the implementa-

tion of government programs. Cf., Saudi Arabia v. Nelson, 507

U.S. 349, 361 (1993) (“the intentional conduct alleged here (the

Saudi Government’s wrongful arrest, imprisonment and torture

of Nelson) . . . boils down to abuse of the power of its police

by the Saudi Government, and however monstrous such abuse

undoubtedly may be, a foreign state’s exercise of the power of its

police has long been understood . . . as peculiarly sovereign in

As is described more fully below, this is one of a series of suits in U.S.

courts against Chinese ofﬁcials for actions allegedly taken against Falun

Gong practitioners. This pattern may reinforce the inference from the

complaint that, at bottom, this suit is directed at PRC government policies

rather than past conduct of a speciﬁc ofﬁcial.

474 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

nature”). Otherwise, plaintiffs could evade the FSIA altogether by

the simple expedient of naming a high level foreign ofﬁcial as a

defendant rather than a foreign state.

We acknowledge the expanding body of judicial decisions

under the TVPA holding former foreign government ofﬁcials liable

for acts of torture and extrajudicial killing despite (or indeed

because of) the fact that the defendants abused their governmental

positions. See, e.g., Xuncax v. Gamajo, 886 F. Supp. 162 (D.Mass.

1995); Hilao v. Estate of Marcos, 103 F.3d 767 (9

Cir. 1996);

Cabello Barreuto v. Fernández Larios, 205 F. Supp. 2d 1325

(N.D.Fla. 2002). The principal aim of the TVPA was to codify the

decision of the Second Circuit in Filartiga v. Pena-Irala, 630 F.2d

876 (2d Cir. 1980), by providing an explicit statutory basis for

suits against former ofﬁcials of foreign governments over whom

U.S. courts have obtained personal jurisdiction, for acts of torture

and extrajudicial killing committed in an ofﬁcial capacity. The

Senate Report on the TVPA states that “[b]ecause all states are

ofﬁcially opposed to torture and extrajudicial killing . . . the FSIA

should normally provide no defense to an action taken under the

TVPA against a former ofﬁcial” (emphasis supplied).

At the same time, the TVPA was not intended to override

otherwise existing immunities from U.S. jurisdiction, as courts

have recognized in suits brought under these statutes against current

or sitting foreign governmental ofﬁcials. See, e.g., Saltany v.

Reagan, 702 F. Supp. 319 (D.D.C. 1988); Lafontant v. Aristide,

844 F. Supp. 128 (E.D.N.Y. 1994); Tachiona v. Mugabe, 169

F. Supp. 2d 259 (S.D.N.Y. 2001).

These cases are consistent with

relevant international authority, such as the decisions of the Inter-

national Court of Justice in the Yerodia case (Case Concerning

the Arrest Warrant of 11 April 2000—Democratic Republic of

the Congo v. Belgium, Judgment of Feb. 14, 2002), the European

Court of Human Rights in Al-Adsani v. The United Kingdom

(No. 35763/97, Judgment of Nov. 21, 2001), and the French Cour

de Cassation in the case brought against Ghaddaﬁ arising from

the bombing of the French (UTA) DC-10 in 1989 over the Ténéré

desert (arrêt of Mar. 13, 2001).

In response to Magistrate Chen’s second set of questions

(“Should the Court ﬁnd the case nonjusticiable under the Act of

Immunities and Related Issues 475

State doctrine? What effect will adjudication of this suit have in

the foreign policy of the United States?”), we respectfully offer the

following observations for the Court’s consideration.

Litigation in U.S. courts challenging the legality of a foreign

government’s actions, or inactions, taken within its own territory,

can present sensitive dimensions, as recognized in a number of

decisions of the U.S. Supreme Court. See, e.g., Underhill v.

Hernandez, 168 U.S. 250, 252 (1897); Banco Nacional de Cuba

v. Sabbatino, 376 U.S. 398, 428 (1964); W.S. Kirkpatrick & Co.,

Inc. v. Environmental Tectonics Corporation, Int’l, 493 U.S. 400,

405 (1990) ). Cf., Baker v. Carr, 362 U.S. 186 (1962). The Court

has recognized that the judiciary should approach such litigation

with the utmost care and circumspection.

We note that this litigation is only one of several recent cases

brought in U.S. federal courts by Falun Gong adherents against

high-level PRC ofﬁcials—typically, under the ATS and the TVPA.

The case just added to these proceedings, Plaintiff A et al. v. Xia

Deren, is but the most recent example. See also, e.g., Peng, et al.

v. Zhao, No. 01 Civil 6535 (DLC) (SDNY) (default judgment in

nominal amount of $1 entered, December 26, 2001; defendant

Zhao Zhifei was said to be the Department Head of the Public

Security Bureau of Hubei Province); Jin, et al. v. Ministry of State

Security, et al., No. 02-CV-627 (DDC)(case pending); Petit, et al.

v. Ding, No. CV 02-00295 (D. HI)(case pending) (defendant

Ding Guangen is said to be the Deputy Chief, Falun Gong Control

Ofﬁce, and Minister for Media and Propaganda, Central Com-

mittee of the Chinese Communist Party of the PRC). In our

judgment, adjudication of these multiple lawsuits, including the

cases before Magistrate Chen, is not the best way for the United

States to advance the cause of human rights in China.

The United States Government has emphasized many times to

the Chinese Government, publicly and privately, our strong

opposition to violations of the basic human rights of Falun Gong

practitioners in China. We have made clear, on repeated occasions,

our absolute and uncompromising abhorrence of human rights

violations such as those alleged in the complaint, in particular

torture, arbitrary detention, interference with religious freedom, and

repression of freedom of opinion and expression. The Executive

476 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Branch has many tools at its disposal to promote adherence to

human rights in China, and it will continue to apply those tools

within the context of our broader foreign policy interests.

We believe, however, that U.S. courts should be cautious when

asked to sit in judgment on the acts of foreign ofﬁcials taken

within their own countries pursuant to their government’s policy.

This is especially true when (as in the instant cases) the defendants

continue to occupy governmental positions, none of the operative

acts are alleged to have taken place in the United States, personal

jurisdiction over the defendants has been obtained only by alleged

service of process during an ofﬁcial visit, and the substantive

jurisdiction of the court is asserted to rest on generalized allegations

of violations of norms of customary international law by virtue of

the defendants’ governmental positions. Such litigation can serve

to detract from, or interfere with, the Executive Branch’s conduct

of foreign policy.

We ask the Court in particular to take into account the

potential for reciprocal treatment of United States ofﬁcials by

foreign courts in efforts to challenge U.S. government policy. In

addressing these cases, the Court should bear in mind a potential

future suit by individuals (including foreign nationals) in a foreign

court against U.S. ofﬁcials for alleged violations of customary

international law in carrying out their ofﬁcial functions under the

Constitution, laws and programs of the United States (e.g., with

respect to capital punishment, or for complicity in human rights

abuses by conducting foreign relations with foreign regimes accused

of those abuses). The Court should bear in mind the potential that

the U.S.G. will intervene on behalf of its interests in such cases.

If the Court ﬁnds that the FSIA is not itself a bar to these suits,

such practical considerations, when coupled with the potentially

serious adverse foreign policy consequences that such litigation

can generate, would in our view argue in favor of ﬁnding the suits

non-justiciable. However, if the Court were to determine that

dismissal is not appropriate, we would respectfully urge the Court

to fashion its ﬁnal orders in a manner that would minimize the

potential injury to the foreign relations of the United States.

****

Immunities and Related Issues 477

b. Kato v. Ishihara

Kato v. Ishihara, 239 F. Supp. 2d 359 (S.D.N.Y. 2002), involved

a claim by a Japanese civil servant employed in the New

York ofﬁce of the Tokyo Metropolitan Government (“TMG”)

against her employer and Shintaro Ishihara, the governor

of Tokyo, seeking damages and declaratory and injunctive

relief for alleged sexual harassment and retaliation in violation

of Title VII of the federal Civil Rights Act of 1964, the New

York State Human Rights Law, and the New York City Human

Rights Law. Plaintiff alleged that in promoting Japanese

products and attending trade shows as part of her duties,

she had engaged in commercial activity on behalf of her

employers and they thus lacked immunity under the FSIA.

The court disagreed and granted defendants’ motion to

dismiss, ﬁnding that both TMG and Ishihara fell within the

deﬁnition of “agencies and instrumentalities” of a foreign

state and were thus immune absent an express waiver of

immunity or an applicable statutory exception. With respect

to Governor Ishihara, the court said that suits against foreign

ofﬁcials acting in their ofﬁcial capacities are the “practical

equivalent of a suit against the sovereign directly” (citing

to Bryks v. Canadian Broad. Corp., 906 F. Supp. 204, 210

(S.D.N.Y. 1995) (“[I]mmunity under the FSIA extends also to

agents of a foreign state acting in their ofﬁcial capacities.”)

and Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095, 1101

Cir. 1990)). The court also agreed with defendants’

contention that plaintiff ’s activities were non-commerical

because her status as a civil servant was determinative of

the issue, and the FSIA provides complete immunity to

individuals who are ofﬁcials of a foreign government when

they are sued in their ofﬁcial capacity, relying on Mukaddam

v. Permanent Mission of Saudi Arabia to the United Nations,

111 F. Supp. 2d 457, 463 (S.D.N.Y.2000), and Zveiter v.

Brazilian Nat’l Superintendency of Merchant Marine, 833 F.

Supp. 1089, 1094 (S.D.N.Y. 1993). Further, the court noted,

it is clear from the FSIA’s legislative history that Congress

considered the employment of diplomatic, civil service, or

478 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

military personnel to be governmental and not commercial

in nature. “If plaintiff [is] either a civil servant or a diplomatic

ofﬁcer, her employment [is] not commercial in nature and

the FSIA’s commercial acts exception to sovereign immunity

would not bring plaintiff ’s lawsuit . . . within the jurisdiction

of this Court.”

c. Park v. Shin

While individual government employees may be considered

“foreign states” entitled to sovereign immunity within the

meaning of the FSIA when they act in their ofﬁcial capacities

as employees of a foreign sovereign, they may not be enitled

to immunity when they act as individuals. Thus, in Park v.

Shin, 313 F.3d 1138 (9

Cir. 2002), the Court of Appeals held

that the Deputy Consul General of the Korean Consulate

and his wife were not entitled to immunity from employment-

related claims by their former employee arising from her

tenure as their domestic servant. The court found that the

plaintiff had been a personal family employee, paid from

family funds, and required only incidentally to perform work

beneﬁting the Consulate. Since he had not been performing

consular functions when he hired and supervised the plaintiff

as required to claim immunity under the Vienna Convention

on Consular Relations, and had not been acting within the

scope of his ofﬁcial duties, as required to be considered a

“foreign state” entitled to immunity under the FSIA, the

Deputy Consul General was not entitled to immunity with

respect to her claims. Even if he had been acting within the

scope of his ofﬁcial duties, the court said, his servant’s action

fell within the “commercial activities” exception to the FSIA.

The act of hiring a domestic servant is not an inherently

public act that only a government could perform.

Immunities and Related Issues 479

3. Agencies and Instrumentalities: Tiering and Timing

a. In re Ski Train Fire

A private company that owned and operated a ski resort on

Kitzsteinhorn Mountain in Kaprun, Austria, was held not

to be entitled to immunity as a “foreign state or political

subdivision thereof,” even though the Austrian government

indirectly owned a majority of its shares. A wrongful death

action had been brought against the company by the parents

and grandparents of children and grandchildren killed in a

ski train accident. In re Ski Train Fire in Kaprun, Austria, on

November 11, 2000, 198 F. Supp. 2d 420 (S.D.N.Y. 2002).

In rejecting the defendant’s claim under § 1603(b), the court

noted disagreement among the circuits on the proper

interpretation of “foreign state” as the term is used in the

deﬁnition of “agency or instrumentality.” Some courts have

held that an entity owned by an agency or instrumentality

qualiﬁes as an agency or instrumentality because it is owned

by a “foreign state,” allowing subsidiaries of state-owned

corporations to come within the Act’s protection by virtue

of indirect, or “tiered,” ownership by the actual foreign state.

Others have read the term “foreign state” as referring only

to foreign states themselves (and not their controlled

corporations), thus limiting an instrumentality to the ﬁrst

tier of ownership: those entities owned directly by the foreign

state itself or by a political subdivision. The court adopted

the latter interpretation as stated in the excerpts that follow

(citations and notes omitted).

****

The better interpretation is that the term “foreign state” as used

in section 1603(b)(2) does not include agencies or instrumental-

ities but refers solely to foreign states proper. First, a circular

interpretation of section 1603(b) should be avoided. While section

1603(a) provides that the term foreign state “includes” political

subdivisions, agencies and instrumentalities, it does not “equate”

480 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

foreign state with agency or instrumentality. It is a subtle dis-

tinction, but also the only explanation that can be squared with

the remainder of section 1603. Thus, reading section 1603(b) to

require ownership by a foreign state proper does not cause it to

“ﬂatly contradict” section 1603(a).

Second, the use of “political subdivision thereof” would be

superﬂuous if both political subdivision and agency or instru-

mentality were rolled into the phrase “foreign state or political

subdivision thereof” in section 1603(b). The legislative history

shows that Congress “seemed exceedingly conscious of the dis-

tinction between foreign states, political subdivisions, and agencies

or instrumentalities of foreign states or political subdivisions

If Congress had intended to permit majority ownership by a

state controlled corporation to give rise to another agency or

instrumentality, it “could easily have stated that an entity must be

owned by a foreign state, a political subdivision, or an agency

or instrumentality of a foreign state or political subdivision.” It

did not.

Third, Congress intended to immunize a ﬁnite class of foreign

governments and their majority-owned businesses because of the

affront entailed in hauling a foreign government into court or

draining its resources directly by awarding large damages to private

litigants. Congress could have, but did not, immunize every foreign

corporation that is partially state-owned. If the term “foreign

state,” as used to deﬁne agencies or instrumentalities, were to

include agencies and instrumentalities, the deﬁnition would bring

within it a succession of subsidiaries where state control is many

times removed and therefore remote at best.

****

b. Dole Food Company v. Patrickson

In 2002 the United States Government ﬁled an amicus

brief before the U.S. Supreme Court on petition for a writ

of certiorari from the decision in Patrickson v. Dole Food

Company, Inc., 251 F.3d 795 (9

Cir. 2001), setting forth the

government’s views on two interpretive issues involving FSIA

Immunities and Related Issues 481

§ 1603(b)(2), which provides the statutory deﬁnition of an

“agency or instrumentality of a foreign state.” The ﬁrst issue

presented to the Court was whether § 1603(b)(2) permits

indirect ownership or “tiering” through subsidiary corporate

layers, or instead limits FSIA coverage to entities whose

shares or other ownership rights are held directly by the

foreign state or political subdivision. The second issue,

concerning “timing,” was whether a private corporation

qualiﬁed as “an agency or instrumentality” if a foreign state

had owned a majority of the shares of that corporation at

the time of the events giving rise to the litigation but did

not own a majority of those shares at the time plaintiff

commenced a suit against the corporation.

The suit involved a class action initially brought in state

court in Hawaii, under Hawaiian state law, by banana workers

from Costa Rica, Ecuador, Guatemala, and Panama against

the Dole Food Company, other major fruit companies and

chemical companies to recover compensation for injuries

allegedly sustained from exposure to a toxic pesticide

(dibromocholoropropane or “DBCP”). Defendant Dole Food

impleaded two Israeli chemical companies, Dead Sea

Bromine Company and Bromine Compounds Limited, which

were alleged to have manufactured some of the pesticide at

issue. Those companies had previously been owned indirectly

by the Israeli government, but had been privatized by the

time of suit. They removed the case to federal court pursuant

to FSIA § 1441(d). (Dole Foods invoked § 1441(a) to remove

based on federal question jurisdiction, 28 U.S.C. § 1331.)

Plaintiffs argued that the interest of the Israeli government

in the companies was too attenuated to enable them to

invoke the provisions of the FSIA. The district court denied

plaintiffs’ motion to remand, but dismissed the action on

grounds of forum non conveniens. The U.S. Court of Appeals

for the Ninth Circuit reversed, holding that the companies

were not organs of the Israeli government but indirectly

owned commercial operations, which did not qualify as

instrumentalities of a foreign state under the FSIA. It also

assumed, without so deciding, that the FSIA “does not come

482 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

into play where a suit is brought against a private entity that

was a foreign state at the time of the alleged wrongdoing,

but is no longer.” 251 F.2d at 806.

On both of these issues of “tiering” and “timing,” the

United States urged the Court to afﬁrm the judgment of the

court of appeals. (The Supreme Court did so on April 22,

2003 in Dole Food Company v. Patrickson, 123 S. Ct. 1655

(2003)). Below are excerpts from the amicus brief ﬁled by the

United States (footnotes omitted).

The full texts of the submissions of the United States are

available at www.usdoj.gov/osg/briefs/search.html.

****

I. A Foreign State’s Ownership Of A Majority Of The Shares

Of A Corporate Entity Does Not Confer “Agency Or

Instrumentality” Status On The Subsidiaries Of That Entity

A. The Plain Terms Of The FSIA’s Majority Ownership

Provision Embrace Only Those Entities The Majority Of

Whose Shares Or Other Ownership Interest Is Actually

Owned By The Foreign State

The “starting point for interpreting a statute is the language

of the statute itself.” E.g., Hallstrom v. Tillamook County, 493

U.S. 20, 25 (1989). The key language of the FSIA is contained

in Section 1603(b)(2), which confers “agency or instrumentality

status” on a corporation “a majority of whose shares or other

ownership interest is owned by a foreign state or political

subdivision thereof.” 28 U.S.C. 1603(b)(2). Under the familiar

legal concept that a parent corporation and its subsidiaries are

separate entities, a foreign state “owns” a majority of the shares

of a corporation only if the foreign state itself actually owns those

shares.

1. As this Court has recognized, “incorporation’s basic

purpose is to create a distinct legal entity.” Cedric Kushner

Promotions, Ltd. v. King, 533 U.S. 158, 163 (2001). Thus, when

a foreign state creates a corporation, the law recognizes that the

Immunities and Related Issues 483

foreign state and the corporation are, as a matter of law, separate

persons. See First Nat’l City Bank v. Banco Para El Comercio

Exterior De Cuba, 462 U.S. 611, 626–627 (1983) (“[G]overnment

instrumentalities established as juridical entities distinct and

independent from their sovereign should normally be treated as

such.”). Likewise, when that corporation creates a subsidiary,

“the parent corporation and its subsidiary are treated as separate

and distinct legal persons even though the parent owns all the

shares in the subsidiary and the two enterprises have identical

directors and ofﬁcers.” Harry Henn & John Alexander, Laws of

Corporations § 148, at 355 (1983) (Henn & Alexander). See

Burnet v. Clark, 287 U.S. 410, 415 (1932) (“A corporation and

its stockholders are generally to be treated as separate entities.”).

The foreign state’s ownership of the parent corporation’s shares

may enable it to control that corporation’s activities, and the parent

corporation’s ownership of the subsidiary may enable it to control

the subsidiary’s activities. See, e.g., United States v. Bestfoods,

524 U.S. 51, 61–62 (1998) (a “parent corporation” exercises

“control through ownership of [the subsidiary] corporation’s

stock”). The combined effect of such a tiered arrangement may

enable the foreign state to exercise effective control over the

subsidiary. Nevertheless, the foreign state does not, in the legal

sense, own the shares of the subsidiary. Rather, it is the parent

corporation that owns those shares as one of its corporate assets.

See, e.g., 1 Fletcher Cyclopedia of the Law of Private Corporations

§ 31, at 509 (rev. perm. ed. 1999) (Fletcher) (“The property of the

corporation is its property, and not that of the shareholders, as

owners.” (footnote omitted)); accord Henn & Alexander § 71,

at 128–129 (“Shareholders are neither agents of the corporation

* * * nor owners of the corporation’s assets.”).

****

A foreign state does not, by owning the majority of shares of

a corporation, own the assets of that corporation—including that

corporation’s shares in a subsidiary—because the legal concept of

ownership connotes basic rights to use and transfer property that

the shareholders of a corporation generally do not possess. See,

e.g., Black’s Law Dictionary 1131 (7th ed. 1999) (“Ownership

484 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

implies the right to possess a thing, regardless of any actual

or constructive control.”). “Shareholders, even the controlling

shareholder, cannot * * * assign the corporation’s properties and

rights, nor apply corporate funds to personal debts or objects, nor

release a purchaser’s liability to pay the price to the corporation,

nor execute a bill of sale covering corporate assets.” 1 Fletcher

§ 31, at 515 (footnotes omitted) (collecting cases); see 12B Fletcher

§ 5753, at 62 (“Ordinarily a shareholder cannot convey or

mortgage the corporate property or transfer its goodwill or release

a debt due to it.”). Indeed, shareholders generally no more own

corporate assets than they are liable for corporate debts. Cf. 1

Fletcher § 43, at 715–716 (“[U]nder ordinary circumstances, a

parent corporation will not be liable for the obligations of its

subsidiary.”) (collecting cases).

3. Congress’s understanding that a foreign state’s ownership

is to be measured by a legal standard, rather than a colloquial

one, is conﬁrmed by context. See, e.g., Bailey v. United States,

516 U.S. 137, 145 (1995) (“[T]he meaning of statutory lan-

guage, plain or not, depends on context.”) (citing Brown v.

Gardner, 513 U.S. 115, 118 (1994)). Section 1603(b)(2) does not

simply deﬁne an “agency or instrumentality” to include companies

that a foreign state, in some colloquial sense, “owns.” See Dole

Br. 16–18 & nn. 5–8. Rather, it deﬁnes that term as a corpora-

tion “a majority of whose shares or other ownership interest is

owned by a foreign state.” 28 U.S.C. 1603(b) (emphasis added).

The statute’s speciﬁc reference to the foreign state’s ownership of

“shares”—which consist of discrete, legally recognized, units of

property—is most naturally understood to signify actual legal

ownership of the corporation’s stock rather than effective control

through a tiered corporate structure.

If Congress had intended to allow the type of tiering that

petitioners propose, Section 1603(b) could have easily been written

to include within the deﬁnition of “agency or instrumentality”

those entities “a majority of whose shares” is owned not only “by

a foreign state or political subdivision thereof” but also by another

agency or instrumentality of the foreign state. But Congress

did not do so. See H.R. Rep. No. 1487, supra, at 15 (“Where

ownership is divided between a foreign state and private interests,

Immunities and Related Issues 485

the entity will be deemed to be an agency or instrumentality * * *

only if a majority of the ownership interests (shares of stock

or otherwise) is owned by a foreign state or by a foreign state’s

political subdivision.” (emphasis added)). Although Congress

recognized that the term “political subdivision” should include

“all governmental units beneath the central government, including

local governments,” ibid., it made no similar effort to include all

tiered corporate entities beneath the corporation a majority of

whose shares the foreign state or political subdivision itself owns.

****

B. Petitioners’ Extra-Textual Arguments Are Unpersuasive

Petitioners contend that their construction of Section 1603(b)

ﬁnds support in (1) the FSIA’s goal of protecting foreign relations;

(2) the FSIA’s legislative history; and (3) the historical treatment

of companies indirectly owned by the federal government. Those

arguments are without merit.

1. Petitioners contend that their construction advances the

FSIA’s “primary” purpose of “minimiz[ing] the foreign relations

problems that can arise from litigation involving foreign govern-

ments and afﬁliated entities.” Dole Br. 12; see id. at 23–28; Dead

Sea Br. 31–36. Congress made clear in its declaration of purpose,

however, that the FSIA seeks to “protect the rights of both foreign

states and litigants in United States courts.” 28 U.S.C. 1602

(emphasis added). The FSIA should be construed with that balance

in mind. Congress crafted Section 1603(b) to give proper respect

to the competing interests of both foreign states and other litigants

in United States courts.

Moreover, Section 1603(b), construed in accordance with the

“separate entity” principle, protects the interests of foreign states

by granting them a more generous measure of protection than

foreign states typically grant to foreign-government-owned

corporations. By and large, foreign states do not grant sovereign-

immunity-based protections of any kind to government-owned

corporations unless the corporations are engaged in sovereign

acts. See Gary Born & David Westin, International Civil Litiga-

tion in United States Courts 459 & nn. 57–58 (2d ed. 1992).

486 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Section 1603(b) similarly confers “agency or instrumentality” status

on corporations engaged in sovereign acts through its provision

extending that status to an “organ of a foreign state.” 28 U.S.C.

1603(b)(2). In addition, Section 1603(b) confers that status—and

the accompanying procedural protections—on corporations the

majority of whose shares are actually owned by a foreign state,

whether or not those corporations perform sovereign functions.

Ibid. Thus, Section 1603(b), even when construed in light of

“separate entity” principles, provides broader protection to the

sovereign interests of foreign states than other nations ordinarily

provide. Consequently, it is unlikely, as so construed, to give rise

to “irritations in foreign relations” (Dole Br. 24). Israel, for

example, has not joined petitioners in raising objections to the

court of appeals’ ruling in this case.

Furthermore, Section 1603(b), construed in light of the

“separate entity” principle, takes due account of the interests

of other litigants. It places a reasonable limit on the extent to

which the protections provided by the FSIA may be expanded

through the corporate form, and it does so on the basis of clear

and manageable rules that rest on familiar corporate law concepts.

Individuals who do business with foreign corporations need such

rules when determining whether they are dealing with entities that

may be subject to the FSIA. Under the United States’ understanding

of Section 1603(b), the status of a foreign entity can be determined

based on whether the entity engages in sovereign activities and on

whether a majority of its stock is owned by a foreign state. Under

petitioners’ construction, the entity’s status may be hidden behind

a series of corporate shells that place considerable burdens

on contracting parties and litigants—as well as the courts—in

determining the true legal character of the entity.

This case illustrates the potentially complex inquiries that

petitioners’ construction would require. See Dole Br. Add. 3a–4a

(charts depicting the complicated and constantly changing

corporate relationships). Furthermore, if the Court were to adopt

petitioners’ approach, it would be required to create a rule, without

any congressional guidance, for determining how to measure

whether a foreign state owns a “majority” of the shares of a

distantly tiered entity. Petitioners suggest that the Court could

Immunities and Related Issues 487

adopt either a “multiplier” rule (see Dole Br. 20, 38) or an “inﬁnite

tiering” rule (id. at 38 & n. 17). But whether the Court adopted

one of those tests, or some other test, it would thrust itself into a

policy-making function that does not ordinarily reside in the

Judicial Branch. Congress, which regularly ﬁelds recommendations

for legislative reform, is far better situated to address issues of

policy respecting the FSIA. Cf. Working Group of the American

Bar Ass’n, Reforming The Foreign Sovereign Immunities Act,

40 Colum. J. Transnat’l L. 489 (2002) (proposing legislative

amendments, including amendments addressing tiered corporate

relationships).

2. Petitioners’ claim (Dole Br. 28–29) that the FSIA’s leg-

islative history supports their construction is baseless. The only

evidence they cite (id. at 29) is the House Report’s statement that

a “mining enterprise” might qualify as an “agency or instrument-

ality.” H.R. Rep. No. 1487, supra, at 15–16. Petitioners contend

that the word “enterprise” necessarily denotes a multi-corporate

undertaking, but plainly that is not so. See, e.g. Webster’s Third

New International Dictionary 757 (1993) (deﬁning “enterprise”

as, among other things, “a unit of economic organization or act-

ivity (as a factory, a farm, a mine); esp.: a business organization:

FIRM, COMPANY”). The FSIA’s legislative history does not

discuss tiered corporate relationships. The legislative history does,

however, recognize the signiﬁcance and vitality of the separate

entity principle. See note 2, supra.

3. Petitioners are wrong in suggesting that the FSIA’s use of

the term “owned” implicitly grants “companies indirectly owned by

foreign governments the same agency-or-instrumentality status that

companies indirectly owned by the federal government enjoy.”

Dole Br. 31. Congress did not manifest any intent to grant agencies

or instrumentalities of foreign states a status equal to corporations

owned by the United States. Rather, Congress made clear that

“[c]laims of foreign states to immunity should henceforth be

decided by courts of the United States and of the States in con-

formity with the principles set forth in this chapter.” 28 U.S.C.

1602. See Verlinden, 461 U.S. at 486–489.

The FSIA, which “largely codiﬁes the so-called restrictive theory

of foreign sovereign immunity,” Weltover, 504 U.S. at 612–613

488 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

(internal quotation marks omitted), implicates different policies

than domestic sovereign immunity, and the criteria governing

jurisdiction and immunity in each instance are correspondingly

different. See Verlinden, 461 U.S. at 486 (“[F]oreign sovereign

immunity is a matter of grace and comity on the part of the United

States, and not a restriction imposed by the Constitution.”).

Compare, e.g., 28 U.S.C. 1605 (FSIA exceptions to immunity),

with 28 U.S.C. 2674, 2680 (Federal Tort Claims Act exceptions

to immunity); see also 28 U.S.C. 1606 (allowing punitive damages

against an agency or instrumentality of a foreign state). Hence, no

concrete insights into the nature of the entities covered by the

FSIA can be gained by comparing the scope of foreign sovereign

immunity to immunities granted in the domestic context.

****

II. The FSIA Does Not Apply To A Foreign Corporation

If The Foreign State Does Not Own A Majority Of The

Corporation’s Shares At The Time Of The Lawsuit

A. The Plain Terms Of The FSIA Grant Protection To Those

Entities That Satisfy The FSIA’s Deﬁnitional Requirements

At The Time Of Suit

Even if the Dead Sea Companies could be considered agencies

or instrumentalities of Israel at the time that the alleged liability

arose, they were not so in 1997, when respondents ﬁled their suit,

because Israel had sold its controlling interest in their corporate

parents. Because the Dead Sea Companies were no longer “foreign

states” under any conception of the FSIA’s majority ownership

requirement, they were not entitled to invoke the provision of the

federal removal statute applicable to a “foreign state,” 28 U.S.C.

1441(d).

1. The FSIA prescribes the extent to which a “foreign state,”

including an “agency or instrumentality,” shall be subject to “the

jurisdiction of the courts of the United States and of the States.”

28 U.S.C. 1604; see 28 U.S.C. 1330, 1441(d), 1605–1607. Because

the FSIA is a jurisdictional statute, a corporation that seeks to

invoke its provisions must establish that it qualiﬁes as an “agency

Immunities and Related Issues 489

or instrumentality” at the time the action is ﬁled. See Freeport-

McMoRaN Inc. v. K N Energy, Inc., 498 U.S. 426, 428 (1991)

(per curiam); see Smith v. Sperling, 354 U.S. 91, 93 n.1 (1957);

Anderson v. Watt, 138 U.S. 694, 702–703 (1891). As Chief Justice

Marshall explained nearly two centuries ago:

It is quite clear, that the jurisdiction of the Court depends

upon the state of things at the time of the action brought,

and that after vesting, it cannot be ousted by subsequent

events.

Mollan v. Torrance, 22 U.S. (9 Wheat.) 537, 539 (1824); accord

Conolly v. Taylor, 27 U.S. (2 Pet.) 556, 565 (1829).

Congress drafted the FSIA’s deﬁnitional provisions against the

backdrop of that hornbook principle governing jurisdictional

statutes. It unambiguously deﬁned an “agency or instrumentality”

to include a corporation “a majority of whose shares or other

ownership interest is owned by a foreign state.” 28 U.S.C.

1603(b)(2) (emphasis added). That deﬁnition clearly expresses

the understanding that an entity qualiﬁes as an “agency or instru-

mentality” based on the foreign state’s current ownership of its

shares and that the entity’s status as an “agency or instrumentality”

may be lost through the foreign state’s divestiture of its ownership

interest. The FSIA’s express direction that an entity qualiﬁes as

an “agency or instrumentality” only if a majority of its shares cur-

rently “is owned” by a foreign state must be understood to require

majority ownership at the time that is relevant for purposes of

applying the particular provisions of the FSIA at issue—in this

instance, the provisions governing the ﬁling of suits in (or removal

of suits to) federal district court.

2. The FSIA’s requirement that majority ownership must be

demonstrated at the time of suit is no different in principle than

the requirement that diversity of citizenship, or other jurisdictional

requirements pertaining to the character of the lawsuit, must

be demonstrated at that time. See, e.g., 28 U.S.C. 1332. The

fundamental question in each case is one of subject matter

jurisdiction—whether the dispute is an appropriate one for a federal

court to decide. Congress has quite sensibly determined that the

490 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

scope of the federal court’s subject matter jurisdiction over foreign

states, including their agencies and instrumentalities, should depend

on the status of the parties at the time of suit. Congress had no

reason to make available the FSIA’s special provisions governing

an “agency or instrumentality” to a corporation that no longer

possesses the sovereign attribute—ownership by a foreign state—

that distinguishes that entity from other corporations.

****

3. Petitioners also contend that the FSIA’s “goal of protect-

ing foreign relations” supports extending the FSIA’s protections

to a corporation that once was, but is no longer, an “agency or

instrumentality of a foreign state.” Dole Br. 45–46; see Dead Sea

Br. 43–45. The FSIA seeks to protect, however, the present

sovereign interests of foreign states (including their agencies and

instrumentalities) when they are subjected to suit in United States

courts, and not to regulate questions of procedure and substantive

liability respecting private corporations that once were, but no

longer are, owned by foreign states. The FSIA left those questions

to other sources of law. See, e.g., W.S. Kirkpatrick & Co. v.

Environmental Tectonics Corp. Int’l, 493 U.S. 400 (1990) (dis-

cussing act of state doctrine).

In any event, as previously noted, the FSIA, like other statutes,

does not pursue a single objective to the exclusion of others, but

instead strikes a balance between the competing interests of foreign

states and other litigants. The foreign state’s interests in a suit

against a former majority-owned corporation are likely to be even

more attenuated than the foreign state’s interests in a current

subsidiary of a majority-owned corporation. Those interests do

not provide a sufﬁcient basis for rejecting the clear import of the

statutory text and treating the corporation as if it retained a former

status that the foreign state itself has terminated.

If the foreign state has divested all of its stock in the entity, or

reduced its ownership from a majority to a minority stake, by the

time of suit, then the foreign state’s interests generally would not

be substantially different than would be the case if the foreign

state had never acquired the stock, or never had more than a

minority stake, in the corporation. The FSIA’s protections are

plainly not available in the latter context. There is no persuasive

Immunities and Related Issues 491

reason why the corporation should beneﬁt from the FSIA’s pro-

tections simply because the foreign state previously had, but no

longer has, a majority ownership interest in the corporation.

As the court of appeals correctly recognized, once a foreign

state has eliminated its majority ownership interest in a corpora-

tion, any “affront” to the foreign state arising from litigation against

that corporation is likely to be “remote and indirect.” Pet. App. 19a.

It would, moreover, not be the sort of affront to which the FSIA is

addressed—namely, that which may arise as a result of subjecting

a foreign sovereign, as such, to the jurisdiction of United States

courts without suitable protections. Indeed, despite petitioners’

predictions that such litigation will cause “affronts to foreign

sovereigns,” Dole Br. 47, the United States has not encountered

“diplomatic friction” arising from post-privatization litigation.

At bottom, if this Court were to accept petitioners’ view that

former majority-owned corporations are entitled to invoke the

FSIA, the primary consequence may be simply to encourage private

corporations that are no longer “agencies or instrumentalities” of

a foreign state to seek strategic advantage in litigation (here, a

federal rule of forum non conveniens that has no relation to the

policies of the FSIA) by demanding the special procedures that the

FSIA reserves for foreign sovereigns themselves. That consequence

would undermine Congress’s basic goal of providing foreign states

with a measure of immunity that “would serve the interests of

justice and would protect the rights of both foreign states and

litigants in United States courts.” 28 U.S.C. 1602.

****

4. No Jus Cogens Exception to FSIA

a. Boshnjaku v. Federal Republic of Yugoslavia

In Boshnjaku v. Federal Republic of Yugoslavia, supra, 2002

U.S. Dist. LEXIS 13763 (N.D. Ill. 2002), a suit by Albanians

against the Federal Republic of Yugoslavia, the Yugoslavian

Armed Forces, the Republic of Serbia, the Serbian Armed

Forces, and Slobodan Milosevic, Yugoslavia’s former head

of state, for damages resulting from the policy of “ethnic

cleansing” of ethnic Albanians, the federal district court

492 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

rejected plaintiffs’ contention that acts which violate jus cogens

constitute an automatic waiver of sovereign immunity:

Finally, plaintiffs argue that the defendants’ acts con-

stitute crimes against humanity and violations of accepted

norms of international law and jus cogens, and that for

this reason, the defendants cannot claim immunity—a

waiver argument of sorts. But this argument provides

no basis to avoid the immunity conferred by the FSIA.

See Princz, 26 F.3d at 1174 (rejecting an argument that

Germany’s Third Reich had waived the country’s

sovereign immunity by violating jus cogens norms).

Reafﬁrming the reluctance of the courts to ﬁnd a waiver

of immunity based on claimed violations of jus cogens,

the court in Sampson vs. Federal Republic of Germany,

250 F.3d 1145 (7th Cir. 2001), stated that “although

international law is ‘part of our law,’ it does not follow

that federal statutes must be read to reﬂect the norms

of international law.” Id. at 1152–53. The court went on to

state that “the potential scope of a customary inter-

national law exception to foreign sovereign immunity,

even in the jus cogens context, would allow for a major,

open-ended expansion of our jurisdiction into an area

with substantial impact on the United States ‘foreign

relations,’” and it therefore declined to recognize such

an exception. Id. at 1156. In short, the fact that plaintiffs’

claims concern violations of international law does not

permit plaintiffs to avoid the immunity conferred on

defendants by the FSIA.

b. Garb v. Republic of Poland

The same issue was addressed in Garb v. Republic of Poland,

207 F. Supp. 2d 16 (E.D.N.Y. 2002), a class action on behalf

of Polish Jews against a Polish government agency, seek-

ing compensation for a post-World War II nationalization

program resulting in the expropriation of property owned by

Polish citizens. The court dismissed the suit inter alia on the

ground that the FSIA was not retroactively applicable. See

Immunities and Related Issues 493

A.5.d. below. It also addressed and rejected the argument that

a state is not entitled to immunity with respect to jus cogens

violations, as set forth in excerpts below.

****

The theory that a foreign state should be deemed to have forfeited

its sovereign immunity whenever it engages in conduct that violates

fundamental humanitarian standards was formulated after the

enactment of the FSIA. See Smith v. Socialist People’s Libyan

Arab Jamahiriya, 101 F.3d 239, 242 (2d Cir.1996) (citing Adam

C. Belsky, Mark Merva, Naomi Roht-Arriaza, Comment, Implied

Waiver under the FSIA: A Proposed Exception to Immunity for

Violations of Peremptory Norms of International Law, 77 Calif.

L.Rev. 365 (1989) ). Prior to the enactment of the FSIA, the courts

found an implied waiver of foreign sovereign immunity only where

a foreign state brought suit in the United States or took some

other action related to the conduct of litigation that manifested an

intention to waive immunity. See, e.g., Nat’l City Bank of New

York v. Republic of China, 348 U.S. 356, 364, 75 S.Ct. 423, 99

L.Ed. 389 (1955) (“It is recognized that a counterclaim based on

the subject matter of a sovereign’s suit is allowed to cut into the

doctrine of immunity.”); Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398, 438, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964)

(“[F]airness has been thought to require that when the sovereign

seeks recovery, it be subject to legitimate counterclaims against

it.”). The House Report on the FSIA gave other examples of implied

waiver under prior law:

With respect to implicit waivers, the courts have found

such waivers in cases where a foreign state has agreed to

arbitration in another country or where a foreign state has

agreed that the law of a particular country should govern

a contract. An implicit waiver would also include a situ-

ation where a foreign state has ﬁled a responsive pleading

in an action without raising the defense of sovereign

immunity.

H.R. No. 94–1487, at 18, reprinted in 1976 U.S.C.C.A.N., at 6617.

494 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Section 1605(a)(1) of the FSIA provides that a foreign state

“shall not be immune from the jurisdiction of courts in the United

States [if] the foreign state has waived its immunity either explicitly

or by implication.” 28 U.S.C. § 1605(a)(1). In Smith v. Socialist

People’s Libyan Arab Jamahiriya, 101 F.3d 239 (2d Cir.1996),

the Second Circuit squarely “reject[ed] . . . the claim that a jus

cogens violation constitutes an implied waiver [of foreign sovereign

immunity] within the meaning of the FSIA.” Id. at 245. The Second

Circuit began its discussion of the doctrine of implied waiver by

observing that it had “no doubt” that Congress, in enacting the

FSIA, “ha[d] the authority either to maintain sovereign immunity

of foreign states as a defense to all violations of jus cogens ...or

to remove such immunity. . . .” Id. at 242. Based primarily on the

examples of implied waiver given in the above quotation from the

House Report, the Second Circuit concluded that “Congress had

not intended to remove the defense” of sovereign immunity for

violations of jus cogens. Id. at 244. The other courts of appeals

that have addressed the issue have all reached the same conclusion.

See Sampson v. Federal Republic of Germany, 250 F.3d 1145,

1156 (7th Cir.2001) (“Congress did not create an implied waiver

exception to foreign sovereign immunity under the FSIA for jus

cogens violations.”); Princz v. Federal Republic of Germany, 26

F.3d 1166, 1174 (D.C.Cir.1994) (“We have no warrant . . . for

holding that the violation of jus cogens norms by the Third Reich

constitutes an implied waiver of sovereign immunity under the

FSIA.”); Siderman, 965 F.2d at 719 (“The fact that there has been

a violation of jus cogens does not confer jurisdiction under the

FSIA.”). Because plaintiffs’ claim of implied waiver fails both under

pre-FSIA law and under § 1605(a)(1) of the Act, I need not address

the issue of the statute’s retroactivity in this context.

****

5. Retroactive Application of the FSIA

a. Hwang Gum Joo v. Japan

In Hwang Gum Joo v. Japan, 172 F. Supp. 2d 52, (D.D.C.

2001), the U.S. District Court for the District of Columbia

Immunities and Related Issues 495

dismissed a complaint brought by former Korean “comfort

women” against the government of Japan, holding that

plaintiffs’ claims did not fall within any of the exceptions

to the general rule of immunity for sovereigns provided for

in the FSIA. The court further held that even if Japan were

subject to jurisdiction under the FSIA, the court could not

exercise jurisdiction because plaintiffs’ claims present a non-

justiciable political question. For a more detailed description

of Hwang Gum Joo and excerpts of the U.S. Statement of

Interest in support of Japan’s motion to dismiss ﬁled at the

district court level, see Digest 2001 at 430–457.

The district court’s decision was subsequently appealed

to the U.S. Court of Appeals for the District of Columbia,

and on October 4, 2002, the U.S. Government ﬁled a brief

setting forth the U.S. views that Japan was immune from

suit on plaintiffs’ claims under the FSIA and that the 1951

Treaty of Peace with Japan precluded litigation of plaintiffs’

claims in federal courts.

Excerpts from the U.S. amicus brief in the D.C. Circuit

are set forth below (footnotes omitted).

The full text of the brief is available at www.state.gov/s/l/

c8183.htm.

****

ARGUMENT

I. UNDER THE FOREIGN SOVEREIGN IMMUNITIES

ACT, JAPAN IS IMMUNE FROM SUIT IN UNITED

STATES COURTS ON PLAINTIFFS’ CLAIMS

****

B. The FSIA’s Exceptions Should Not Be Applied Retroactively

To Provide For The Exercise Of Jurisdiction Where

Jurisdiction Would Not Have Been Exercised At The Time

Of the Challenged Conduct

The determination whether a statutory provision applies to

conduct that predates its enactment turns, in the absence of an

496 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

explicit Congressional directive, on whether such application would

upset preexisting rights. See Landgraf v. USI Film Products, 511

U.S. 244, 280 (1994). Although, as this Court noted in Princz

v. Federal Republic of Germany, 26 F.3d 1166 (D.C. Cir. 1994),

most statutes governing jurisdiction do not affect substantive rights,

see id. at 1170, the Supreme Court has subsequently clariﬁed that

there are circumstances in which a new jurisdictional provision

has an effect that raises retroactivity concerns.

In Hughes Aircraft Co. v. United States, 520 U.S. 939 (1997),

the Supreme Court held that a statute creating jurisdiction over

a claim that could not previously have been brought affects

substantive rights and “is as much subject to our presumption

against retroactivity as any other.” Id. at 951. Hughes concerned

an amendment to the False Claims Act that allowed a qui tam

relator to bring a claim that previously could only be brought by

the United States. This change, the Court held, “does not merely

allocate jurisdiction among forums. Rather, it creates jurisdiction

where none previously existed; it thus speaks not just to the power

of a particular court but to the substantive rights of the parties as

well.” Ibid. In such circumstances, absent a clear congressional

statement to the contrary, the courts will presume that Congress

did not intend to create jurisdiction over claims that could not

have been heard at the time they arose. See Immigration and

Naturalization Service v. St. Cyr, 121 S. Ct. 2271, 2288–89 (2001)

(statutes “will not be construed to have retroactive effect unless

their language requires this result”).

In a given statute, some provisions may be procedural or

otherwise not affect substantive rights, and would apply to all

subsequently ﬁled cases, while other provisions affect substant-

ive rights and liabilities, and are thus presumed inapplicable to

suits involving pre-enactment conduct. Thus, in St. Cyr, the Court

analyzed the question of retroactivity separately for each provision

of the statute, concluding that some provisions of the statute at

issue would present no question of retroactivity while other

provisions, which affected substantive rights, were subject to

a presumption against retroactive application. See id. at 2289.

In undertaking this provision-by-provision analysis, the Court

concluded that statements of congressional intent as to the

Immunities and Related Issues 497

retroactive application of some provisions did not reﬂect any

particular intent with regard to other provisions. See ibid.

Under the governing analysis, some provisions of the FSIA

—such as the service of process and removal provisions—are pro-

cedural and presumptively apply to all litigation ﬁled subsequent

to the FSIA’s effective date. Similarly, the FSIA’s codiﬁcation of

the general rule of foreign sovereign immunity, 28 U.S.C. § 1604,

and the common-law exceptions regarding waiver and coun-

terclaims, which existed before the Tate letter, see, e.g., Ex parte

Republic of Peru, 318 U.S. 578, 589 (1943); Guaranty Trust Co.

of New York v. United States, 304 U.S. 126, 134–35 (1938), did

not alter substantive rights, and presumptively apply to conduct

that occurred before passage of the FSIA.

In contrast, exceptions to the general rule of foreign sovereign

immunity that abrogated immunity and thereby provide for

jurisdiction where immunity previously existed and jurisdiction

would not have been exercised are, under Hughes, properly

considered substantive. At least one court has held that the FSIA’s

“takings” exception was an entirely new creation, and thus not

applicable to pre-FSIA conduct. See Garb v. Republic of Poland,

207 F. Supp. 2d 16, 25 (E.D.N.Y.). With respect to foreign states’

commercial conduct, the FSIA was intended generally to codify

prior practice, but only as it had existed since the issuance of the

Tate letter in 1952. Verlinden, 461 U.S. at 488 (FSIA “[f]or the

most part, codiﬁes, as a matter of federal law, the restrictive theory

of sovereign immunity”); 28 U.S.C. § 1605(a)(2). As discussed,

prior to that time, conduct falling within the commercial activity

exception would not have given rise to liability in United States

courts. No intention to abrogate immunity and create new

liabilities for conduct predating the adoption of these respective

principles can be attributed to Congress absent a clear expression

of intent.

Neither the language nor history of the FSIA contain the “clear

indication,” St. Cyr, at 2271, 2288–89, that would be required to

upset foreign sovereigns’ settled expectations regarding their

amenability to suit. In one reference to timing, Congress delayed

the effective date of the FSIA for ninety days after its enactment

with the stated purpose of giving advance notice to foreign nations

498 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

of the changes worked by the statute in the United States’ law

concerning foreign sovereign immunity. Pub. L. No. 94–583, § 8,

90 Stat. 2898 (1976); see H.R. Rep. No. 94–1487 reprinted in

1976 USCCAN 6604, 6632 (90-day period “necessary in order

to give adequate notice of the act and its detailed provisions to

all foreign states”). While there are several possible explanations

for this delay, it is, at the least, entirely consistent with an intent

not to upset settled expectations.

The two courts of appeals to have squarely ruled on the

question have correctly concluded that the FSIA’s commercial activ-

ity exception should not be applied to upset settled expectations

regarding conduct occurring during the pre-1952 period of nearly

absolute sovereign immunity. In Carl Marks & Co., Inc. v. Union

of Soviet Socialist Republics, 841 F.2d 26, 27 (2d Cir. 1988), the

Second Circuit held that the FSIA’s commercial-activity exception

was not available to obtain jurisdiction over a claim based on

bearer bonds issued by Russia in 1916 because “[s]uch a retroactive

application of the FSIA would affect adversely the USSR’s settled

expectation . . . of immunity from suit in American courts.”

Similarly, in Jackson v. People’s Republic of China, 794 F.2d

1490, 1497–98 (11th Cir. 1986), the Eleventh Circuit held that

the commercial-activity exception did not apply to litigation ﬁled

in 1979 concerning Chinese bearer bonds issued in 1911 and

allegedly renegotiated in 1937. The court reasoned that “to give

the Act retrospective application to pre-1952 events would interfere

with antecedent rights of other sovereigns” and would be

“manifestly unfair.” See also Garb, 207 F. Supp. 2d at 30; Cruz v.

United States, 2002 WL 2001967, *5–*6 (N.D. Cal. August 23,

2002).

In other common law countries that have adopted statutes

similar to the FSIA, the legislation either expressly provides that

the exceptions to immunity are not retroactive or they have been

so found by the courts. See United Kingdom: State Immunity Act,

1978, Sec. 23; Australia: Foreign States Immunities Act, 1985,

§ 7; Singapore: State Immunity Act, 1979, § 1; Canada: State

Immunity Act, 1982 (held non-retroactive by Patricia Carrato v.

United States, Supreme Court of Ontario, Court of Appeal, Oct. 17,

1983).

Immunities and Related Issues 499

In urging a retroactive application of the commercial activity

exception to conduct pre-dating the Tate letter, plaintiffs rely

heavily upon this Court’s discussion of the FSIA’s retroactivity in

Princz. In that opinion, which preceded both Hughes and St. Cyr,

the Court, in dicta, questioned whether application of the FSIA to

conduct predating the Tate letter would be “retroactive” in the

problematic sense identiﬁed in Landgraf. See Princz, 26 F.3d at

1170. The Court expressed the view that the FSIA, as “a statute

affecting jurisdiction,” did not affect substantive rights. See ibid.

The Court also noted that when Congress enacted the FSIA it

repealed the provision in 28 U.S.C. § 1332 that gave courts diversity

jurisdiction over suits by U.S. citizens against foreign govern-

ments. The Court thus questioned whether, if the FSIA were not

retroactive, plaintiffs would be precluded from bringing suits even

with respect to conduct that was not immune under pre-FSIA

doctrine.

The Court’s analysis is properly revisited in light of interven-

ing Supreme Court precedent. Hughes made clear that a statute

that creates jurisdiction over a claim that could not previously

have been brought is substantive and therefore subject to the

presumption against retroactive application. 520 U.S. at 951. The

Supreme Court’s provision-by-provision analysis of retroactivity

in St. Cyr also resolves this Court’s concern regarding partial repeal

of 28 U.S.C. § 1332. St. Cyr makes clear that some portions of the

FSIA may apply to pre-enactment conduct while others do not.

In those classes of cases where the court could previously have

exercised jurisdiction under 28 U.S.C. § 1332 it may exercise

jurisdiction under the current 28 U.S.C. § 1330 and the correlat-

ive exception to sovereign immunity in Section 1605 of the

FSIA. Thus, applying the teachings of Hughes and St. Cyr, the

FSIA is properly interpreted so as to avoid undermining the settled

expectations of either foreign governments or plaintiffs.

Because the Court in Princz believed that principles of

retroactivity would not be implicated, its discussion in dicta did

not analyze whether Congress had made sufﬁciently clear its

intention to overcome the presumption against retroactivity. The

Court noted, however, that in its statement of ﬁndings, Congress

declared that the “[c]laims of foreign states to immunity should

500 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

henceforth be decided by courts of the United States and of the

States in conformity with the principles set forth [in the FSIA].”

28 U.S.C. § 1602 (emphasis added). The Court stated that “[t]his

suggests that the FSIA is to be applied to all cases decided after its

enactment.” 26 F.3d at 1170.

The general statement of purpose in Section 1602 lacks

sufﬁcient clarity to overcome the presumption against retroactivity

that applies to certain FSIA exceptions. Indeed, the Eleventh Cir-

cuit in Jackson v. People’s Republic of China, drew an inference

opposite to that drawn by this Court, holding that this language

“appeared to be prospective” only and counseled against re-

troactive application. 794 F.2d at 1497. As one district court has

held, this disagreement among the courts of appeals about the

proper interpretation of the “henceforth” language is itself evidence

that statute is, at best, ambiguous. See Cruz, 2002 WL 2001967

at *4.

More fundamentally, the point of the statutory statement is

that questions of immunity would henceforth be decided by the

courts, rather than by the executive branch and based on legal

principles rather than ad hoc foreign policy considerations. Some

of the FSIA—including its exception for commercial activity—

codiﬁed principles that the State Department had endorsed during

the Tate letter regime. In enacting the FSIA, Congress shifted the

task of applying those principles from the State Department to the

courts, with the expectation that the doctrine would now be applied

more consistently. See H.R. Rep. 94–1487, 1976 USCCAN 6604,

6606 (“A principal purpose of this bill is to transfer the deter-

mination of sovereign immunity from the executive branch to the

judicial branch, thereby reducing the foreign policy implications

of immunity determinations and assuring litigants that these

often crucial decisions are made on purely legal grounds and under

procedures that insure due process.”). Thus, the statute provides

that “[c]laims of foreign states to immunity should henceforth

be decided by courts of the United States and of the States in

conformity with the principles set forth [in the FSIA].” 28 U.S.C.

§ 1602 (emphasis added). This general statement of purpose

manifests no intent to upset settled expectations. See St. Cyr, 121

S. Ct. at 2288–89.

Immunities and Related Issues 501

In sum, in light of the Supreme Court’s decisions in Hughes

and St. Cyr, this Court, like the other courts to have ruled on the

question, should conclude that the commercial activity exception

does not apply retroactively to claims arising before the Tate letter

regime was adopted.

C. Plaintiffs’ Claims Do Not Come Within Any Of

The FSIA’s Exceptions

To the extent that the FSIA’s exceptions to sovereign immun-

ity apply to the pre-1952 conduct at issue here, the district court

properly concluded that plaintiffs’ claims do not come within any

of the statute’s exceptions.

1. Implied Waiver

Plaintiffs’ argument that Japan impliedly waived its immunity

by violating preemptive norms of international law, referred to as

jus cogens, is precluded by Princz, which held that one could not

infer from Germany’s violations of human rights in the Holocaust

“a willingness to waive immunity for actions arising out of the

Nazi atrocities.” Princz, 26 F.3d at 1174. Contrary to plaintiffs’

suggestion, there has been no change in the domestic law of

sovereign immunity since the Princz decision that would warrant

revisiting that issue now. Indeed, since Princz, the Second and

Seventh Circuits have each concurred with this Court’s holding.

See Sampson v. Federal Republic of Germany, 250 F.3d 1145,

1156 (7th Cir. 2001); Smith v. Socialist People’s Libyan Arab

Jamahiriya, 101 F.3d 239 (2d Cir. 1996). The fundamental pre-

mise of this Court’s decision—that the courts cannot create new

exceptions to the rule of immunity under the guise of applying the

narrow “implied waiver” exception—remains sound. See Princz,

26 F.3d at 1174 n. 1 (“something more nearly express is wanted

before we impute to the Congress an intention that the federal

courts assume jurisdiction over the countless human rights cases

that might well be brought by the victims of all the ruthless military

juntas, presidents-for-life, and murderous dictators of the world”).

502 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Congress recognized that the principle of waiver had been narrowly

applied by the courts and intended that it be similarly applied

under the FSIA. See id. at 1174.

2. Commercial Activity

Nor does the Japanese military’s subjugation of plaintiffs to

sexual slavery for Japanese soldiers during the war constitute

“commercial activity” within the meaning of the FSIA. See 28

U.S.C. § 1605(a)(2). In applying the commercial activity exception,

the critical question is “whether the particular actions that the

foreign state performs (whatever the motive behind them) are the

type of actions by which a private party engages in ‘trade and

trafﬁc or commerce.’” Republic of Argentina v. Weltover, Inc.,

504 U.S. 607, 614 (1992). Not all conduct with a ﬁnancial

component is “commercial activity” within the meaning of the

FSIA. Thus, in Saudi Arabia v. Nelson, 507 U.S. 349 (1993), the

Court held that suit by an employee recruited to a hospital of

the government of Saudi Arabia was barred under the FSIA

notwithstanding the commercial nature of the relationship, because

the plaintiff complained of imprisonment and torture, an abuse of

the police power that is “not the sort of action by which private

parties can engage in commerce.” Id. at 361–62.

Likewise, here, although plaintiffs allege a ﬁnancial aspect

of Japan’s conduct—that Japan charged a fee to soldiers who used

the “comfort stations”—the essence of the challenged conduct

was that, “pursuant to a premeditated master plan,” the Japanese

military took plaintiffs from their home countries, transferred them

to the front lines, housed them in buildings constructed by the

military, and forced them into sexual slavery to Japanese soldiers.

Joo, 172 F. Supp. 2d at 63 (citing complaint); see also Complaint

¶¶ 77–82 (listing causes of action, including “war crimes and

crimes against humanity”). As the district court held, such conduct

“might be characterized properly as a war crime or a crime against

humanity,” but it was not conduct “typically engaged in by private

players in the market” and it was not commercial in nature. Ibid.

See also McKesson HBOC, Inc. v. Islamic Republic of Iran,

271 F.3d 1101, 1106 (D.C. Cir. 2001) (“commercial-activity

Immunities and Related Issues 503

jurisdiction cannot exist unless the commercial activity that

forms the basis for jurisdiction also serves as the predicate for

the plaintiff’s substantive cause of action”); Cicippio v. Islamic

Republic of Iran, 30 F.3d 164, 167–68 (D.C. Cir. 1994) (noting

that, under Nelson, suit involving kidnapping by government

ofﬁcials would have to be dismissed as sovereign, rather than

commercial); Letelier v. Republic of Chile, 748 F. 2d 790, 797 (2d

Cir. 1984) (kidnapping and assassination by foreign government

was not “commercial activity,” even though some private parties

might engage in similar conduct).

Finally, even if plaintiffs could show that kidnapping and

rape constituted commercial activity within the meaning of the

FSIA, plaintiffs could not show the requisite nexus between their

injury and the United States. See 28 U.S.C. § 1605(a)(2) (requiring

that foreign act that is basis of suit must have a “direct effect in

the United States”). None of the plaintiffs alleges that the conduct

of which they complain had the kind of direct effect in the United

States that could sustain jurisdiction here. See Weltover, 504

U.S. at 618 (effect is “direct” only “if it follows as an immediate

consequence of the defendant’s activity”).

****

b. In re Republic of Austria, Dorotheum GMBH & CO KG,

and Osterreischische Industrieholding, AG

The plaintiffs in In re Republic of Austria, Dorotheum

GMBH & CO KG, and Osterreischische Industrieholding, AG

(“Whiteman”) 2002 U.S. Dist. LEXIS 19984, were Austrian

Jews and their descendants who brought suit against the

Republic of Austria and Austrian companies for injuries

stemming from Nazi atrocities between 1938 and 1945. In

the district court, Austria, supported by the United States,

moved to dismiss the complaint, arguing that at the time

plaintiffs’ complaints arose, states enjoyed virtually absolute

immunity from suit and that subsequently adopted exceptions

to the doctrine of foreign sovereign immunity do not apply

retroactively to create jurisdiction. The district court refused

504 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

to grant Austria’s motion to dismiss, ordered Austria to

engage in discovery to determine whether other grounds for

immunity may have been applicable, and denied Austria’s

motion for reconsideration. On December 20, 2002, the

United States, in its amicus brief, urged the Second Circuit,

to exercise interlocutory review of the district court’s refusal

to recognize Austria’s immunity from suit.

Excerpts from the U.S. amicus brief below address the

history of foreign sovereign immunity in the United States

and issues of whether the FSIA’s commercial activity and

expropriation exceptions apply retroactively to cover the

defendants’ conduct during the Nazi era (footnotes omitted).

The full text of the brief is available at www.state.gov/s/l/

c8183.htm.

****

ARGUMENT

I. AUSTRIA IS IMMUNE FROM SUIT ON

PLAINTIFFS’ CLAIMS IN THE COURTS OF

THE UNITED STATES

****

A. As This Court Held In Carl Marks, The

Commercial Activity Exception Does Not Apply

To Plaintiffs’ Claims

1. Carl Marks [Carl Marks & Co. v. Union of Soviet Socialist

Republics, 841 F.2d 26, 27 (2d Cir.1988)] recognized that prior

to 1952, foreign governments had a “settled expectation, rising

to the level of an antecedent right, of immunity from suit in

American courts.” 841 F.2d at 27. From The Schooner Exchange

v. M’Fadden, 11 U.S. (7 Cranch) 116 (1812), until 1952, the United

States adhered to the “absolute theory of sovereign immunity,”

pursuant to which “a sovereign cannot, without his consent,

be made a respondent in the courts of another sovereign.” Alfred

Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 711 (1976)

Immunities and Related Issues 505

(reprinting Letter of Acting Legal Adviser Jack B. Tate (“Tate

Letter”). See also Verlinden B.V. v. Central Bank of Nigeria, 461

U.S. 480, 486 (1983).

This policy changed when “the State Department issued the

‘Tate Letter’ in 1952, adopting the ‘restrictive theory’ of sovereign

immunity.” Carl Marks, 841 F.2d at 27. See also Alfred Dunhill,

425 U.S. at 711 (reprinting Tate Letter). In that letter, the State

Department announced that henceforth it would recommend to

United States courts, as a matter of policy, that foreign states be

granted immunity only for their sovereign or public acts, and not

for their commercial acts. See Verlinden, 461 U.S. at 486–87;

Carl Marks, 841 F.2d at 27. As explained in the Tate letter, the

State Department’s adoption of the restrictive theory reﬂected an

increasing acceptance of that theory by foreign states, as well as

the need for a judicial forum to resolve disputes stemming from

the “widespread and increasing practice on the part of governments

of engaging in commercial activities.” Alfred Dunhill, 425 U.S. at

714 (reprinting Tate Letter).

Foreign sovereign immunity practice entered its third (and

current) phase when Congress enacted the FSIA, which became

effective in January, 1977. Pub. L. No. 94–583, 90 Stat. 2891

(1976) codiﬁed at 28 U.S.C. §§ 1330, 1602, et seq. The FSIA

contains a “comprehensive set of legal standards governing claims

of immunity in every civil action against a foreign state or its

political subdivisions, agencies, or instrumentalities.” Verlinden,

461 U.S. at 488. The FSIA sets forth a general rule that foreign

states are immune from suit in American courts. 28 U.S.C. § 1604.

Courts may exercise jurisdiction over foreign states only if the suit

comes within one of the speciﬁc exceptions to that rule established

by Congress. See id. §§ 1605–07.

By adopting a statute to govern comprehensively the question

of foreign sovereign immunity, Congress intended to relieve the

State Department of the diplomatic pressures associated with

case-by-case decisions and to establish legal principles to guide the

courts. See Verlinden, 461 U.S. at 488. The FSIA now “ ‘provides

the sole basis for obtaining jurisdiction over a foreign state in the

courts of this country.’ ” Saudi Arabia v. Nelson, 507 U.S. 349,

355 (1993).

506 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

2. In Carl Marks, the Court speciﬁcally held that the FSIA’s

commercial activity exception does not apply retroactively to claims

that arose prior to the 1952 Tate Letter, when courts would not

have exercised jurisdiction over them. The Court recognized that

“only after 1952 was it reasonable for a foreign sovereign to

anticipate being sued in the United States courts on commercial

transactions.” Carl Marks, 841 F.2d at 27 (citation omitted). Thus,

to apply the FSIA’s commercial activity exception to pre-1952

conduct “would affect adversely [foreign governments’] settled

expectation, rising ‘to the level of an antecedent right,’ of immunity

from suit in American courts.” Ibid. See also Jackson v. People’s

Republic of China, 794 F.2d 1490, 1497–98 (11th Cir. 1986)

(“to give the Act retrospective application to pre-1952 events

would interfere with antecedent rights of other sovereigns”).

3. In its order rejecting Austria’s claim to sovereign immunity,

the district court questioned the continued vitality of Carl Marks.

See Order of June 5, 2002, at 2–3. The district court further held

that plaintiffs could avoid the effect of Carl Marks by alleging

that Austria had refused, post-1952, to make adequate com-

pensation for pre-1952 wrongs. See id. at 3 (citing 1st Amended

Compl. at ¶¶ 16–18, 24 (alleging an ofﬁcial policy “to delay,

impede, thwart and at any cost avoid and evade restitution or

recompense to Austria’s Jews” for wrongs committed during the

1938–45 period)). The district court was wrong on both counts.

Subsequent decisions by the Supreme Court have conﬁrmed that

this Court’s analysis and holding in Carl Marks was correct. And

plaintiffs cannot circumvent the rule in Carl Marks merely by

pleading that Austria continues to deny compensation on claims

as to which it enjoys sovereign immunity.

****

b. The Supreme Court’s Hughes and St. Cyr decisions conﬁrm

the approach adopted by this Court in Carl Marks. Under Hughes

and St. Cyr, some provisions of the FSIA—such as the service of

process and removal provisions—are purely procedural and

presumptively apply to all litigation ﬁled subsequent to the FSIA’s

effective date. Notably, the district court in Carl Marks assumed

the applicability of these provisions to the litigation, even though

Immunities and Related Issues 507

it held that the commercial activity exception was not available

on plaintiffs’ pre-1952 claims. See Carl Marks & Co. v. Union of

Soviet Socialist Republics, 665 F. Supp. 323, 328–31 (S.D.N.Y.

1987) (discussing effectuation of service under 28 U.S.C. § 1608).

Similarly, the FSIA’s codiﬁcation of common-law exceptions to

immunity regarding waiver and counterclaims, which existed even

before the Tate letter, see, e.g., Ex parte Republic of Peru, 318

U.S. 578, 589 (1943); Guaranty Trust Co. of New York v. United

States, 304 U.S. 126, 134–35 (1938), would apply regardless of

when the claims arose. See Carl Marks, 841 F.2d at 27 (indicating

that the district court could have exercised jurisdiction under a

theory of waiver if plaintiffs had been able to show that the USSR

had “consented to suit”).

In contrast, the presumption against retroactivity precludes

application of the FSIA’s other exceptions in such a way as to

“eliminate[] a defense to * * * suit” that existed at the time of the

challenged conduct. Hughes, 520 U.S. at 948. Thus, the commercial

activity exception, § 1605(a)(2), does not apply to a foreign states’

commercial conduct that pre-dated the Tate Letter, Carl Marks,

841 F.2d at 27, but it does apply, as the Court suggested, to

conduct after the Tate Letter because “after 1952 * * * it [was]

reasonable for a foreign sovereign to anticipate being sued in the

United States courts on commercial transaction,” ibid. See also

Verlinden, 461 U.S. at 488 (FSIA “[f]or the most part, codiﬁes,

as a matter of federal law, the restrictive theory of sovereign

immunity”).

c. The Ninth Circuit’s recent holding in Altmann v. Austria,

2002 WL 31770999 (9th Cir. Dec. 12, 2002), that Austria could

be sued under the FSIA for its conduct during the Nazi era is

ﬂawed in numerous respects. First, the Ninth Circuit mistakenly

believed that Austria would not have been entitled to immunity

for its Nazi-era conduct even prior to the 1952 Tate Letter. Id.

at *7–*8. The court based this view in part on its understanding

that during the pre-1952 period, immunity was only accorded

to “friendly” foreign governments. Id. at *7. The court does not,

however, cite any instance in which a non-consenting foreign

sovereign was denied immunity because it was not “friendly,” and

we are aware of none. In fact, such an argument was expressly

508 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

rejected in Wulfsohn v. Russian Socialist Federated Soviet Republic,

138 N.E. 24 (N.Y. 1923).

The Ninth Circuit further relied on the so-called “Bernstein

Letter” as evidence that the United States would not have re-

cognized Austria’s immunity from suit even prior to the Tate Letter.

In the Bernstein Letter, the State Department announced a policy

“to relieve American courts of any restraint upon the exercise

of their jurisdiction to pass upon the validity of the acts of Nazi

ofﬁcials.” Altmann, 2002 WL 31770999, *8 (quoting April 13,

1949 letter of Jack B. Tate, reprinted in Bernstein v. N.V.

Nederlandshe-Amerikaansche, 210 F.2d 375, 376 (2d Cir. 1954)).

The Bernstein Letter did not address the doctrine of foreign

sovereign immunity, but rather the act of state doctrine. While the

United States did not recognize the validity of Nazi expropriations

for purposes of the act of state doctrine, Nazi governments were

still immune from suit on such claims in our courts. This Court

has acknowledged the signiﬁcance of the distinction. In Zwack v.

Kraus Bros., 237 F.2d 255 (2d Cir. 1956), the Court recognized

the Hungarian government’s immunity from suit while declining,

under the policy of the Bernstein letter, to recognize the validity

of the challenged expropriation. See id. at 260–61.

Finally, the Ninth Circuit cited the fact that certain of those

responsible for Nazi atrocities had been prosecuted criminally

at Nuremberg as evidence Austria’s immunity would not have

been recognized. See Altmann, 2002 WL 31770999, *9. But, the

fact that individual Nazis could be criminally prosecuted in an

international tribunal does not mean that Austria was subject to

suit by private plaintiffs in American courts. Indeed, the conﬂation

of these two issues is directly contrary to the Supreme Court’s

holding in Hughes. See 520 U.S. at 951 (defendant’s prior

susceptibility to suit by the government did not alter fact that

new prospect of suit by private plaintiff was substantive change

in the law).

The Ninth Circuit further held that application of later-adopted

immunity exceptions was appropriate because it would not upset

Austria’s expectations at the time. The court noted that Austria

had adopted the restrictive theory of immunity in the 1920s.

Altmann, 2002 WL 31770999, *8. But that fact is irrelevant. The

Immunities and Related Issues 509

court does not cite any instance in which a foreign sovereign

was denied immunity because it applied the restrictive theory

of immunity in its own courts. As the Tate Letter stated, the U.S.

had previously followed the “absolute” theory of immunity,

under which “a sovereign cannot, without his consent, be made a

respondent in the courts of another sovereign.” See Alfred Dunhill,

425 U.S. at 711. The Ninth Circuit’s analysis makes a foreign

government’s susceptibility to suit turn on “the defendant country’s

acceptance of the restrictive principle of sovereign immunity.”

Altmann, 2002 WL 31770999, *9 (indicating that Russia, China,

and Mexico, which had not accepted the restrictive theory until

later, would be immune). But there is no indication that Congress,

in enacting the FSIA, desired different countries to be subject

to distinct immunity rules. To the contrary, one of Congress’s

purposes in adopting the FSIA was to ensure a more uniform

application of sovereign immunity principles. See H.R. Rep. 94–

1487, 1976 USCCAN 6604, 6606.

In sum, there was no basis for the district court to question

the continued validity of this Court’s holding in the Carl Marks

case. Subsequent Supreme Court decisions conﬁrm this Court’s

conclusion that the commercial activity exception does not apply

retroactively to claims arising before the Tate letter regime was

adopted.

****

B. Under Circuit Precedent, Neither May The FSIA’s

Expropriation Exception Be Applied to Austria’s

Conduct At Issue Here

The Court’s reasoning in Carl Marks applies with equal force

to plaintiffs’ contention that the district court may exercise

jurisdiction over Austria’s Nazi-era expropriations under the

expropriation exception of the FSIA, 28 U.S.C. § 1605(a)(3). See

Garb v. Republic of Poland, 207 F. Supp. 2d 16, 27 (E.D.N.Y.

2002) (to the extent § 1605(a)(3) “overruled prior law, the holding

in Carl Marks makes clear that it cannot be applied retroactively”).

American law did not recognize an expropriation exception to

foreign sovereign immunity in the 1930s or 40s, at the time Austria

510 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

is alleged to have taken plaintiffs’ property. As the Tate Letter

made clear, prior to 1952, the United States adhered to the

“absolute theory of sovereign immunity,” under which “a sovereign

cannot, without his consent, be made a respondent in the courts

of another sovereign.” Alfred Dunhill, 425 U.S. at 711 (reprinting

Tate Letter). See also Verlinden, 461 U.S. at 486. Thus, applica-

tion of the FSIA’s expropriation exception to Austria’s Nazi-era

expropriations would have the same substantive effect on settled

rights as would retroactive application of the commercial activity

exception.

In fact, even the restrictive theory of immunity adopted in the

1952 Tate Letter did not recognize an exception to immunity for

suits based upon a foreign government’s expropriation of property

within its territory. In the Altmann decision, the Ninth Circuit

asserted, without authority, that expropriation claims could be

brought under the restrictive theory of immunity. See 2002 WL

31770999 at *9 (positing that because Austria had adopted the

restrictive theory in the 1920s, it “could have had no reasonable

expectation of immunity in a foreign court” as to an expropriation

claim). To the contrary, however, the expropriation exception

to sovereign immunity was not recognized in U.S. law until the

FSIA’s enactment in 1976. In Victory Transport Inc. v. Comisaria

General de Abastecimientos y Transportes, 336 F.2d 354 (2d Cir.

1964), the Court held that even under the restrictive theory foreign

sovereigns enjoyed immunity with respect to suits challenging

“strictly political or public acts about which sovereigns have

traditionally been quite sensitive,” including “internal administrat-

ive acts” and “legislative acts, such as nationalization.” Id. at 360

(emphasis added). See also Isbrandtsen Tankers, Inc. v. President

of India, 446 F.2d 1198, 1200 (2d Cir. 1971) (quoting same).

Thus, under the reasoning of Carl Marks, the expropriation

exception should not apply to any conduct pre-dating the FSIA.

Nor can plaintiffs assert claims based upon Austria’s continued

refusal, post-1976, to return or pay compensation for property

it had expropriated in the 1930s and 40s. As the Federal Circuit

has held, a takings claim arises “when all the events which ﬁx the

government’s alleged liability have occurred and the plaintiff was

or should have been aware of their existence.” Hopland Band of

Immunities and Related Issues 511

Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir.

1988); Kinsey v. United States, 852 F.2d 556, 557 (Fed. Cir. 1988).

On this basis, the Federal Circuit has frequently dismissed takings

claims as time-barred. See Fallini v. United States, 56 F.3d 1378,

1382–83 (Fed. Cir. 1995), cert. denied, 517 U.S. 1243 (1996);

Creppel v. United States, 41 F.3d 627, 631 (Fed. Cir. 1994);

Alliance of Descendants of Texas Land Grants v. United States,37

F.3d 1478, 1481 (Fed. Cir. 1994); Steel Improvement & Forge

Co. v. United States, 174 Ct. Cl. 24, 29–30 (1966); Stafford

Ordnance Corp. v. United States, 123 Ct. Cl. 787, 793 (1952). The

same rationale precludes plaintiffs from asserting claims now,

under an immunity exception adopted in 1976, based upon takings

that were completed some sixty years ago.

****

c. Cruz v. U.S.

In Cruz v. U.S., 219 F. Supp. 2d 1027 (N.D.Cal. 2002),

discussed in Chapter 4.C.a. the district court dismissed all

claims against Mexican defendants on the basis of sovereign

immunity. In doing so, the court held that the FSIA did not

apply retroactively. Therefore, because the acts on which the

claims in this case were based all occurred prior to 1952, the

applicable standard was not the FSIA but rather the law

of sovereign immunity in effect in the United States at that

time. That law was absolute sovereign immunity. In reaching

this decision, the court explained as set forth below (footnotes

omitted).

****

The FSIA states that: “Claims of foreign states to immunity should

henceforth be decided by courts of the United States and of the

States in conformity with the principles set forth in this chapter.”

28 U.S.C. § 1602. At ﬁrst glance, the language “should henceforth”

suggests prospective application only. However, the language of

prospectivity speaks in relation to the actual making of a claim of

immunity, not in relation to the underlying events giving rise to a

512 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

cause of action, suggesting, perhaps, that the FSIA should apply

to all claims of immunity made after 1976, regardless of the time-

frame in which the events giving rise to the action occurred.

****

Given this dichotomy, the FSIA is clearly a statute which would

operate “retroactively” if given effect in this case. If the FSIA is

applied to pre-1952 events, some suits against sovereigns may be

brought that otherwise would have been barred. It is too much to

argue that application of the FSIA to this case would merely mean

that the Mexican Defendants could be sued here in the United

States as well as in Mexico Rather, application of the FSIA to the

case at bar would affect not “only where a suit may be brought,”

but rather “whether it may be brought at all.” Id.

****

This conclusion is consistent with the overall intent of the

FSIA. As the Supreme Court has stated: “The language and history

of the FSIA clearly establish that the Act was not intended to

affect the substantive law determining the liability of a foreign

state or instrumentality. . . .” First Nat. City Bank v. Banco Para

El Comercio Exterior De Cuba, 462 U.S. 611, 620, 77 L. Ed. 2d

46, 103 S. Ct. 2591 (1983). It is difﬁcult to imagine what could

be more substantive than a sovereign’s expectation of absolute

immunity. Indeed, it is clear that the intent of the FSIA was to

codify a policy—the restrictive theory of sovereign immunity—

adopted twenty-four years earlier in 1952, not to change pre-1952

law.

Because the legislative language regarding the proper scope of

the FSIA is ambiguous and the application of the FSIA to events

occurring before 1952 would have impermissible retroactive effect,

the Court concludes that the FSIA is not applicable to any claims

arising prior to 1952. Instead, the Mexican Defendants are

absolutely immune to any claims that arose prior to 1952. . . .

****

By December 31, 1947 all agricultural braceros had been

repatriated to Mexico or their contracts had been terminated

and they were in the United States illegally. See Memo from

Immunities and Related Issues 513

Wilson R. Buie to William A. Anglim, PMA, USDA, “Final Report

on Activities of Foreign Farm Labor Program,” Jan. 30, 1948,

P3. In all subsequent agreements between the United States and

Mexico, Mexico was to play no role in return of the Savings Fund

deductions. In fact, no Savings Fund deductions, of any kind,

were authorized after October of 1948. With regard to the railroad

braceros, that program was fully terminated by 1946. Therefore,

any cause of action against the Mexican Defendants arose prior

to 1952.

****

d. Garb v. Republic of Poland

In Garb v. Republic of Poland, 207 F. Supp. 2d 16 (E.D.N.Y.

2002), a class action had been brought on behalf of Polish

Jews against a Polish government agency, seeking com-

pensation for a post-World War II nationalization program

that expropriated property owned by Polish citizens. The

district court dismissed the suit inter alia on the ground that

the FSIA was not retroactively applicable. Plaintiffs had relied

primarily on two of the exceptions to immunity speciﬁed in

the FSIA: the commercial activity exception, § 1605(a)(2),

and the takings exception, § 1605(a)(3). The court noted that

“the operative events leading to the expropriation of plaintiffs’

property occurred prior to 1952, when the defendants enjoyed

immunity from suit for their commercial activities and for

the expropriation of property, the latter exception continuing

until the enactment of the FSIA in 1976.” Garb, 207 F. Supp.

2d at 21. In view of the decision of the Second Circuit in Carl

Marks & Co. v. Union of Soviet Socialist Republics, 841 F.2d 26,

27 (2d Cir. 1988) (holding that the exceptions to the FSIA

that changed prior law could not be applied retroactively),

the court examined whether the commercial activity and

takings exceptions applied retroactively and determined they

did not. That analysis and the applicability of the FSIA to

governmental departments or ministries are set forth in

excerpts below. See also A.4.b., supra.

****

514 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The real issue [is] whether, prior to the adoption of the FSIA in

1976, Poland enjoyed immunity from suit in the United States for

the discriminatory taking of Jewish property even if other legal

principles did not stand in the way of the successful prosecution

of such an action. The answer is that a foreign state did enjoy

such immunity prior to the enactment of the FSIA. To the extent

that the FSIA overruled prior law, the holding in Carl Marks

makes clear that it cannot be applied retroactively. Also unsus-

tainable is plaintiffs’ argument that defendants’ conduct has been,

and is, ongoing. . . .

Although plaintiffs do not expressly so argue, some courts

have held that the Supreme Court’s decision in Landgraf v. USI

Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229

(1994), establishes the full retroactivity of the FSIA and thus

effectively overrules the Second Circuit’s decision in Carl Marks.

See, e.g., Haven v. Rzeczpospolita Polska (Republic of Poland),

68 F.Supp.2d 943, 946 (N.D. Ill. 1999) (FSIA applicable to claims

virtually identical to those asserted here); Altmann v. Republic

of Austria, 142 F.Supp.2d 1187, 1201 (C.D. Cal. 2001) (FSIA

applicable to claim for taking of artwork by Nazis in 1938); see

also Princz v. Federal Republic of Germany, 26 F.3d 1166, 1170

(D.C. Cir. 1994) (suggesting, but not deciding, that “all questions

of foreign sovereign immunity, including those that involve an act

of a foreign government taken before 1976, are to be decided

under the FSIA”). In Landgraf, the Supreme Court provided an

analytical framework for determining the retroactivity of a statute.

See Landgraf, 511 U.S. at 263–80, 114 S.Ct. 1483. . . .

Nothing in the Court’s decision in Landgraf overruled the

Second Circuit’s ruling in Carl Marks that a foreign state’s settled

expectation of immunity from the jurisdiction of the United States

courts “ris[es] to the level of an antecedent right,” Carl Marks,

841 F.2d at 27 (internal quotation marks omitted). Indeed, as the

quotation set forth in the preceding paragraph shows, the Court

simply reafﬁrmed in Landgraf the principles of retroactivity that

it had been applying since at least as early as its decision in

Hallowell v. Commons, 239 U.S. 506, 36 S.Ct. 202, 60 L.Ed. 409

(1916). Moreover, the Court’s conclusion in Landgraf—that the

relevant provisions of the Civil Rights Act of 1991 did not apply

Immunities and Related Issues 515

retroactively, Landgraf, 511 U.S. at 293, 114 S.Ct. 1483—provides

no support for the argument that the FSIA applies retroactively. . . .

This approach is also consistent with the language of the FSIA,

which deﬁnes a foreign state as including its political subdivisions

as well as its agencies and instrumentalities. 28 U.S.C. § 1603(a).

While the Act treats agencies and instrumentalities differently

from the foreign state itself for a variety of purposes, see, e.g., 28

U.S.C. §§ 1606 (liability for punitive damages), 1608 (service of

process), 1610 (attachment and execution), including takings

claims of the kind present here, it makes no distinction between

political subdivisions and the foreign state itself. A scholarly

commentary on the FSIA observes that “[s]o long as an entity func-

tions essentially in a political or governmental capacity while

subordinated in some fashion to a foreign state itself, the entity

is a political subdivision of a foreign state. Political subdivisions

therefore include both units of local or regional government,

or units of the national government which do not represent the

government as a whole.” Joseph W. Dellapenna, Suing Foreign

Governments and Their Corporations 19 (1988) (emphasis added).

The Second Circuit has adopted this interpretation of the term

“political subdivision,” holding that an Italian public ﬁnancial

entity qualiﬁed as a political subdivision under the FSIA. O’Connell

Mach. Co. v. M.V. “Americana”, 734 F.2d 115, 116–17 (2d

Cir. 1984) (quoting H.R. No. 94–1487, at 15, reprinted in 1976

U.S.C.C.A.N., at 6613 (stating that “[t]he term ‘political

subdivisions’ includes all governmental units beneath the central

government”)).

Numerous other courts have assumed without discussion

that governmental departments or ministries qualify as political

subdivisions of a foreign state under the FSIA. See, e.g., Magness

v. Russian Fed’n, 247 F.3d 609, 613 n. 7 (5th Cir. 2001)

(characterizing Russian Ministry of Culture as political subdivision

of Russia for *38 purposes of service of process); S & Davis Int’l,

Inc. v. Republic of Yemen, 218 F.3d 1292, 1298 (11th Cir. 2000)

(characterizing Yemeni Ministry of Supply & Trade as political

subdivision of Yemen for purposes of determining legal status of

entity controlled by Ministry); Kao Hwa Shipping Co. v. China

Steel Corp., 816 F. Supp. 910, 914 (S.D.N.Y. 1993) (characterizing

516 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Taiwanese Ministry of Economic Affairs as political subdivision

of Taiwan for purposes of determining legal status of entity owned

by Ministry); see also Filus v. LOT Polish Airlines, 819 F. Supp.

232, 236–37 (E.D.N.Y. 1993) (Nickerson, J.) (characterizing

Ministry of Civil Aviation of USSR alternately as foreign state

itself and as political subdivision thereof for purposes of service

of process).

In sum, it is arguable whether in the instant case the Ministry

of the Treasury can be viewed as a legal entity separate from the

Republic of Poland. On the contrary, it appears to be an integral

part of the Republic of Poland or a political subdivision thereof;

any money judgment here would be paid by the Republic of Poland,

and any order directing the return of expropriated property would

compel the Ministry of the Treasury to divest itself of property

held on behalf of the Republic of Poland, assuming that the

Ministry still holds title to it. Under these circumstances, permitting

the cause of action here would appear to undermine the immunity

Congress intended to confer on the Republic of Poland under the

FSIA.

****

See also Turkmani v. Republic of Bolivia, 193 F. Supp. 2d 165

(D.D.C. 2002), a suit by the holder of certain bonds issued

by the Republic of Bolivia, in which the district court held

that the FSIA, and in particular its exception for commercial

activities, applied to bonds issued prior to its effective date.

6. Exceptions to Immunity

a. Waiver

In In re China Oil and Gas Pipeline Bureau, 94 S.W.3d 50

(Tex. Ct. App. 2002), the Texas state appellate court held

that a claim of immunity under the FSIA is in the nature of a

special appearance in that it precludes a trial court from

exercising jurisdiction over a suit brought against a foreign

Immunities and Related Issues 517

sovereign unless an exception is applicable, and that

defendant had not implicitly waived immunity in this case.

The decision involved a suit by the sole shareholder of a

Texas corporation, who had agreed to form and manage a

joint venture company with an oil company that was wholly

owned by the Chinese government, against that oil company,

its president, and other individuals for breach of contract,

breach of ﬁduciary duty, and fraud. Defendant China Oil

moved to dismiss for lack of jurisdiction, and denied that it

had waived its immunity by sending letters to the court

contesting jurisdiction on the basis of a contractual clause

requiring arbitration in China. The trial court rejected that

contention. The court of appeals disagreed, noting that the

FSIA’s waiver exception is narrowly construed and that

courts have found an implicit waiver only when waiver was

unmistakable. In each letter, the court noted, China Oil

insisted it was not amenable to suit in the United States and

evinced no “conscious intent” to take part in the litigation.

b. Commercial activity

(1) The U.S. Court of Appeals for the Second Circuit held in

Filtech S.A. v. France Telecom S.A., 304 F.3d 180 (2d Cir.

2002) that the sale of data processing services in the

United States by the French telephone company, which

was a government instrumentality, failed to establish

sufﬁcient commercial activity to permit plaintiff to invoke

the commercial activity exception in the ﬁrst clause of

§ 1605(a)(2) in a civil antirust action. The district court

had denied dismissal for lack of subject matter jurisdic-

tion but granted it on grounds of international comity.

On cross-appeals, the court of appeals vacated and

remanded. On remand, the district court granted

the telephone company’s motion to dismiss under the

FSIA; that decision was afﬁrmed by the appellate court’s

holding.

(2) BP Chemicals Ltd., a British corporation, sued Jiangsu

Sopo Corporation, alleging violations of the Lanham Act,

518 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

the International Convention for the Protection of

Intellectual Property, the Missouri Uniform Trade Secrets

Act and Missouri common law. Sopo claimed immunity

under the FSIA because it is owned by the Government

of the People’s Republic of China. The district court

agreed and dismissed BP’s action for lack of subject

matter jurisdiction. The Court of Appeals for the Eighth

Circuit reversed and remanded, holding that a claim

for misappropriation of trade secrets under Missouri

Uniform Trade Secrets Act (MUTSA) was based upon

defendant’s commercial activity carried on in the United

States, and thus came within the commercial activity

exception. BP Chems. Ltd. v. Jiangsu Sopo Corp., 285 F.3d

677 (8th Cir. 2002).

(3) Virtual Countries, Inc., an Internet domain name com-

pany, claimed the legal right to the domain name “south-

africa.com.” The Republic of South Africa contested that

claim, asserting that sovereign countries have a pre-

eminent claim to own their own domain names. It issued

a press release stating its intent to ﬁle an application

claiming the www.southafrica.com domain with the World

Intellectual Property Organization (“WIPO”) because it

wanted to use that domain as a “strategic marketing

tool in promoting trade and tourism.” Virtual Countries

brought an action against the Republic of South Africa

and its Tourism Board (“SATOUR”) in the U.S. District

Court for the Southern District of New York, seeking a

declaration that South Africa lacked rights to the domain

name and claiming that the press release had adversely

affected its short and long-term business operations. The

district court dismissed on the ground that South Africa

was immune from suit under the FSIA, Virtual Countries,

Inc, v. Republic of South Africa and South African Tourism

Board 148 F. Supp. 2d 256 (S.D.N.Y. 2001). Afﬁrming the

district court’s dismissal, the Court of Appeals for the

Second Circuit held that issuance of the press release

was not a “commercial” activity and in any event that

plaintiff had failed to show the requisite causal connection

Immunities and Related Issues 519

between defendants’ alleged acts and its own alleged

injuries. Virtual Countries, Inc, v. Republic of South Africa

and South African Tourism Board, 300 F.3d 230 (2d Cir.

2002).

(4) Croesus EMTR Master Fund L.P. v. The Federative Republic

Of Brazil, 212 F. Supp. 2d 30 (D.D.C. 2002), involved a

breach of contract action against the Republic of Brazil,

in which plaintiffs sought to overcome the defendant’s

claim of immunity by arguing that the FSIA’s commercial

activity exception was triggered by Brazil’s purported

promotion of bonds in the secondary markets in the

United States. The district court disagreed on the

ground that the action was not “based on” any Brazilian

misrepresentations. It also found that the “commer-

cial activity” and “direct effect” immunity exceptions

were not triggered by alleged omissions concerning

the value of Brazilian bonds or by failure to pay interest

and principal on the bonds. The court concluded

that dismissal on forum non conveniens grounds was

appropriate.

(5) In its brief in opposition to a petition for certiorari, ﬁled

in the Supreme Court July 24, 2002, in Islamic Republic

of Iran v. McKesson HBO, Inc., 271 F.3d 1101 (D.C. Cir.

2001), the Overseas Private Investment Corporation

(“OPIC”) argued that Iran was mistaken in contending

that it was entitled to sovereign immunity under the

FSIA in an expropriation action. Although OPIC argued

that the Supreme Court should not grant certiorari be-

cause the issue did not warrant review, it also addressed

the issue of Iran’s claim on this issue. Certiorari was

denied on October 7, 2002. Islamic Republic of Iran v.

McKesson HBO, Inc., 123 S.Ct. 341 (2002). For a descrip-

tion of the case, see Chapter 4.C.b. Excerpts from the

OPIC brief are set forth below (footnotes omitted). The

full text of the brief is available at www.usdoj.gov/osg/

briefs/search.html.

****

520 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

3. Petitioner reasserts (Pet. 14–17) its claim of foreign sovereign

immunity, contending that this Court’s decision in Saudi Arabia

v. Nelson, 507 U.S. 349 (1993), requires that the “act” of a foreign

sovereign on which jurisdiction is based, for purposes of 28 U.S.C.

1605(a)(2), must also form an element of the cause of action.

That argument, which rests on a misapprehension of both Nelson

and respondents’ claims in this case, is incorrect.

Nelson held that a plaintiff cannot obtain jurisdiction under

the FSIA’s commercial activity exception, 28 U.S.C. 1605(a)(2),

to sue on a cause of action that is itself based entirely on a

sovereign’s non-commercial activity. 507 U.S. at 356–358. To

determine whether the claim was “based upon” the act giving

rise to jurisdiction, the Court analyzed whether the jurisdictional

acts were among the principal elements of the cause of action. Id.

at 357. Petitioner mistakenly interprets Nelson to require that

every element of the cause of action must also be an act that

confers jurisdiction under Section 1605(a)(2). But this Court

expressly rejected that notion. See Nelson, 507 U.S. at 358 n. 4.

Moreover, there would have been no occasion for such a conclusion

in Nelson because the Court concluded that the jurisdictional

commercial activities in that case formed no basis for the cause

of action. Nelson is satisﬁed here if commercial activity forms

the central basis of the cause of action.

Contrary to petitioner’s characterizations, this is a claim for

expropriation, not merely for “the cut-off of commercial contacts”

or for “the non-payment of dividends.” Pet. 16. As the court of

appeals recognized, respondents alleged the expropriation took

place when petitioner, “acting through its various co-defendants

on Pak Dairy’s Board of Directors, used its majority position to

lock [McKesson] out of the management of the company and

deny [McKesson] its share of the company’s earnings in the form

of dividends.” Pet. App. 149a (quoting district court); see also id.

at 7a (describing the commercial activity as “freezing-out American

corporations in their ownership of Pak Dairy”) (quoting id. at

152a). The speciﬁc acts are laid out in the complaint (McKesson

Lodging L169–L176) and afﬁdavits (see, e.g., id. at L31–L41).

Thus, the theory of this suit is that the repeated failure to pay

dividends worked in combination with other actions (in particular,

Immunities and Related Issues 521

as the district court found, the exclusion of McKesson from any

voice in Pak Dairy’s decisions and the cutoff of contacts with

McKesson) to demonstrate that the expropriation was complete.

See Pet. App. 7a–8a, 115a. And, as we explain below, the court

of appeals concluded that those actions resulted in direct effects

felt in the United States (the interruption of the “constant ﬂow of

capital, management personnel, engineering data, machinery,

equipment, materials and packaging, between the United States

and Iran”). Id. at 167a (quoting id. at 151a). That conclusion

presents no conﬂict with Nelson.

4. Petitioner also argues (Pet. 17–20) that, under this Court’s

ruling in Republic of Argentina v. Weltover, Inc. 504 U.S. 607

(1992), the commercial activity exception applies only if a speciﬁc

payment or performance is required to be made in the United

States. Weltover imposes no such rule. Weltover sustained the

exercise of jurisdiction under 28 U.S.C. 1605(a)(2) because the

foreign sovereign there was obliged to make interest payments on

bonds in New York. 504 U.S. at 619. In that case, “the plaintiffs

[were] all foreign corporations with no other connections to the

United States” who nevertheless chose to designate New York as

the place for payment. Id. at 618–619. The Court ruled that this

choice was sufﬁcient to satisfy the “direct effect” requirement.

Ibid. The Court did not rule out the possibility that other types of

activities could establish a “direct effect” in the United States.

In this case, petitioner’s disruption of a United States’ cor-

poration’s investment in and relationship with Pak Dairy brought

to a halt the “constant ﬂow of capital, management personnel,

engineering data, machinery, equipment, materials and packaging,

between the United States and Iran to support the operation of

Pak Dairy.” Pet. App. 167a; id. at 151a. The court of appeals

ruled, on the facts before it, that this “constant ﬂow * * * between

the United States and Iran”—like the obligation to deliver money

to a New York bank in Weltover—established a sufﬁcient con-

nection with the United States that the effects of its disruption

were plainly felt in this country, within the meaning of 28 U.S.C.

1605(a)(2).

The question whether the nature of a transnational commercial

relationship is sufﬁcient to create a “direct effect” is necessarily a

522 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

fact-speciﬁc one. The court of appeals’ resolution of that question

in this case does not conﬂict with Weltover or with any of the

lower-court decisions cited by petitioner (Pet. 18–19 nn. 14–16)

and accordingly does not warrant review by this Court.

****

c. Tort

The tort exception to the FSIA, 28 U.S.C. § 1605(a)(5), was

addressed by the District Court for the District of Columbia

in Maalouf v. the Swiss Confederation, 208 F. Supp. 2d 31

(D.D.C. 2002). The complaint had been brought by a U.S.

citizen who had been seriously injured while sledding on the

grounds of the Swiss Embassy in Washington. Defendant’s

claim of immunity under the FSIA was rejected. The court

noted that the FSIA waives jurisdictional immunity for claims

of money damages for personal injury or death, unless, inter

alia, the case “is based upon the exercise or performance

or the failure to exercise or perform a discretionary function

regardless of whether the discretion be abused. . . .” The

burden of proof is on the defendant to demonstrate by a

preponderance of the evidence that the discretionary excep-

tion applies. In the instant case, the court determined that the

relevant acts of the embassy were not “discretionary” within

the meaning of the statute, but were analogized to the acts

of a private citizen, to which no immunity attached. Accord-

ingly, the court found subject matter and personal jurisdiction

in this case and denied defendant’s motion to dismiss.

d. Acts of terrorism

In 1996, the FSIA was amended to provide an exception to

immunity where “money damages are sought against a

foreign state for personal injury or death that was caused by

an act of torture, extrajudicial killing, aircraft sabotage, host-

age taking, or the provision of material support or resources

Immunities and Related Issues 523

. . . for such an act or provision engaged in by an ofﬁcial,

employee or agent of such foreign state while acting within

the scope of his or her ofﬁce, employment or agency. . . .”

28 U.S.C. § 1605(a)(7). Such liability may include economic

damages, solatium, pain and suffering, and punitive damages.

(1) Roeder v. Islamic Republic of Iran

On April 18, 2002, the U.S. District Court for the District of

Columbia vacated a default judgment and dismissed a suit

brought by former hostages held in Tehran from 1979 to

1981. Roeder v. The Islamic Republic of Iran, 195 F. Supp. 2d

140 (D.D.C. 2002). Plaintiffs had failed to advise the court at

the default judgment stage that the suit was contrary to U.S.

obligations in the General Declaration of the Algiers Accords,

20 I.L.M. 223 (1981), which speciﬁcally “bars and precludes”

prosecution of claims against Iran by a U.S. national “related

to (A) the seizure of the 52 United States nationals on

November 4, 1979, [or](B) their subsequent detention. . . .”

As to the FSIA, while the litigation was pending, Congress

enacted § 626(c) of the Commerce, Justice, State Appro-

priations Act of 2002, Pub. L. No. 107-77, 115 Stat. 748 (2001)

amending the FSIA by adding a speciﬁc reference to the

Roeder case to the list of exceptions to sovereign immunity

in 28 U.S.C. § 1605(a)(7)(A). A technical amendment to

Subsection 626(c) was enacted in § 208 of the Department

of Defense and Emergency Supplemental Appropriations

Act, Pub. L. 107-117, 115 Stat. 2230 (2001). See Digest 2001 at

460–475.

In dismissing the claim, the district court reviewed the

potentially relevant statutory provisions, including those

enacted with speciﬁc reference to the Roeder litigation. The

court held:

Plaintiffs do not have a cause of action against Iran

because the Algiers Accords require that this suit be

dismissed. The language of the FSIA, as amended by

the 1996 Antiterrorism Act, the Flatow Amendment,

524 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Subsection 626(c), and Section 208, does not unambigu-

ously create a cause of action against Iran. Because that

statute is ambiguous, and because none of the legislation

at issue here ever mentions the Algiers Accords in

statutory text or legislative history, this Court can not

interpret this legislation to implicitly abrogate a binding

international agreement. Therefore this Court must

dismiss plaintiffs’ claims.

Furthermore, while neither the FSIA nor the 1996 Anti-

terrorism Act created a private cause of action for the victims

of state-sponsored terrorism, that cause of action was pro-

vided in an amendment to another appropriations act, known

as the “Flatow Amendment,” Pub. L. No. 104–208, § 589,

110 Stat. 3009–172, 1996 (codiﬁed at 28 U.S.C. 1605 note.)

The court concluded that the provision did not apply to suits

against the foreign state itself:

[T]he plain text of this appropriations rider does not

create a cause of action against a foreign government

that sponsors terrorism—it creates a cause of action

only against the “ofﬁcial, employee, or agent” of such a

state who participates in the terrorist activity. . . . The plain

text of this statute appears to be unambiguous: the Flatow

Amendment does not on its face create a cause of action

against foreign states.

Finally, the court noted, § 626(c) did not amend the

Flatow Amendment; it amended only the jurisdictional pro-

vision. In vacating the original default judgment, the district

court held, among other things, that it had lacked subject

matter jurisdiction over the claims at the time the judgment

was entered. The district court also held that § 626(c) could

not be applied retroactively and that prior to § 626(c)’s

amendment to FSIA in November 2001, plaintiffs could

not prove all the elements required to meet the 1996 Anti-

Terrorism Act’s exception to Iran’s sovereign immunity. In

particular, Iran was not designated as a state sponsor of

terrorism at the time of the 1979–1981 hostage taking or as

Immunities and Related Issues 525

a result of that hostage taking. The exception to foreign

sovereign immunity created by the 1996 Antiterrorism Act,

28 U.S.C. § 1605(a)(7), speciﬁcally states:

. . . the court shall decline to hear a claim under this

paragraph-(A) if the foreign state was not designated as

a state sponsor of terrorism under [other speciﬁc federal

statutes] at the time the act occurred, unless later so

designated as a result of such act.

The district court commented on the relationship between

Congress and the executive in this case as set forth below.

****

Lest this Court’s decision be viewed as denying plaintiffs a remedy

for the horrible wrongs they have suffered simply because Congress

failed to use the proper choice of words, it is important to reiterate

the values that are served by an abrogation doctrine that requires

Congress to make its intent clear. The spheres of power of our

co-equal branches of government can at times overlap. See

Springer v. Philippine Islands, 277 U.S. 189, 209, 48 S. Ct.

480, 485, 72 L. Ed. 845 (1928) (dissenting opinion) (“the great

ordinances of the Constitution do not establish and divide ﬁelds

of black and white”). When such overlap occurs, and the wills

of two branches are in conﬂict, the Constitution sets forth the

rules for deciding which branch gets to trump the will of the

other. In this case, by virtue of his power to direct the foreign

affairs of this country, the President clearly has the authority to

enter into international agreements. Congress, however, clearly

has the corresponding right to abrogate the agreement reached

by the President if it so wishes. Because of the respect owed to

each co-equal branch of government, the courts must require that

Congress make its intent clear, either by legislating unambiguously

or accompanying ambiguous statutes with clear expressions of

intent. Any other rule would allow the courts, by inference and

interpretation, to impermissibly assume the legislative role.

Furthermore, while the power of Congress to legislate

substantive law through riders attached to appropriations bills

526 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

and thereby bypass the usual process of development of law is

established, this case exempliﬁes the difﬁculty faced by a court

when interpreting the intent of Congress in passing such riders.

See, e.g., Robertson, 503 U.S. at 440 (“Congress nonetheless

may amend substantive law in an appropriations statute, as long

as it does so clearly.”); United States v. Will, 449 U.S. 200, 222,

101 S. Ct. 471, 66 L. Ed. 2d 392 (1980). Three of the four statutes

at issue in this case, the Flatow Amendment, Subsection 626(c),

and Section 208, were passed as appropriations riders with minimal

legislative history to explain their purpose and relation to each

other. When faced with such sparse explanation of statutory text,

the Court must be even more vigilant in its refusal to draw

inferences, even desirable inferences, that would ﬁll in the gaps in

congressional logic.

In the end, plaintiffs cite the text and legislative history of

each of these statutes less as statements of the law than as signs

that “Congress has sided with plaintiffs” and “does not want the

State Department to prevail.” It is unclear how plaintiffs are able

to discern the clear intent of Congress when subsection 626(c)

was not drafted until after H.R. 2500 had gone to conference,

was never discussed in committee, was never subjected to ﬂoor

debate, and the Conference Report offers only the most opaque

reference to this case without ever explaining precisely what the

statute purports to do, or why. Similarly, the explanation of

subsection 626(c) found in the legislative history of Section 208’s

technical amendment, was also created in conference, and nowhere

does it express a recognition of the obligations of this country

under the Algiers Accords, or that Congress meant to eliminate

those obligations. In the ﬁnal analysis, the questions presented to

this Court must be resolved by examining the text and legislative

history of the relevant statutes, “not by psychoanalyzing those

who enacted [them].” Carter v. United States, 530 U.S. 255, 271,

120 S. Ct. 2159, 147 L. Ed. 2d 203 (2000). None of the statutes

invoked by plaintiffs contain the language that Supreme Court

precedent of very long-standing requires in order for plaintiffs

to prevail. Such straightforward legislation would be simple

enough to draft . . . but by the same token, by virtue of its clarity

of purpose, may be difﬁcult to enact. In light of Congress’ failure

Immunities and Related Issues 527

to express a clear intent to abrogate the Algiers Accords, this

Court can not interpret these ambiguous statutes to create a

cause of action for plaintiffs against Iran. Absent such plain,

straightforward statutory language that expressly creates a cause

of action for plaintiffs or reﬂects a clear intent to abrogate the

Algiers Accords, this Court has no choice but to abide by and

uphold the commitments that the United States made to the Islamic

Republic of Iran in order to secure the freedom of the plaintiff

hostages in 1981.

****

(2) Weinstein v. Islamic Republic of Iran

A U.S. citizen was killed in the terrorist suicide bombing

of the Number 18 Egged passenger bus in Jerusalem, Israel

on February 25, 1996. His family members and the

administrators of his estate brought a wrongful death action

against Iran, its intelligence service, and senior ofﬁcials of

the Iranian government, pursuant to FSIA’s antiterrorism

provisions. Following defendants’ default, the district

court found that it had both subject matter and personal

jurisdiction, that defendants were liable for the victim’s death,

and that plaintiffs were entitled to damages for loss of

accretions to the estate, for the victim’s pain and suffering,

and for solatium as well as substantial punitive damages.

Under the FSIA, the court said, a foreign state may be liable

when there is injury from a terrorist act, that act was

perpetrated by the designated state or an agent receiving

material support from the designated state, provision of

support was an act authorized by that foreign state, that

state has been designated as one providing material sup-

port to terrorism, either victim or plaintiff was a U.S.

national at the time of the terrorist act, and similar con-

duct by the United States, its agents, ofﬁcials or employees

within the United States would be actionable. Weinstein

v. The Islamic Republic of Iran, 184 F. Supp. 2d 13 (D.D.C.

2002).

528 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

(3) Stethem v. Islamic Republic of Iran

In a case arising out of the hijacking of TransWorld Airlines

(“TWA”) Flight No. 847 in 1985, the family of a Navy petty

ofﬁcer murdered during the incident, and surviving Navy

and Army personnel who had been aboard the same ﬂight,

brought wrongful death and personal injury actions against

the Islamic Republic of Iran and its intelligence service, the

Ministry of Information and Security (“MOIS”), alleging that

defendants had been ultimately responsible for the hijacking

and for the accompanying beatings and torture. Following

defendants’ default, the district court held that it had subject

matter jurisdiction under the FSIA’s terrorism exception, that

defendants were subject to liability under the FSIA, and that

plaintiffs were entitled to substantial compensatory and

punitive damages. Stethem v. Islamic Republic of Iran, 201

F. Supp. 2d 78 (D.D.C. 2002).

The court noted that a number of suits had previously

and successfully been brought against state sponsors of

terrorism, citing Weinstein v. Islamic Republic of Iran, 184

F. Supp. 2d 13, 20 (D.D.C. 2002); Wagner v. Islamic Republic

of Iran, 172 F. Supp. 2d 128, 133–134 (D.D.C. 2001); and

Jenco v. Islamic Republic of Iran, 154 F. Supp. 2d 27, 32–33

(D.D.C. 2001). Section 1605(a)(7), it noted, imposes two pre-

conditions upon the exercise of subject matter jurisdiction

by district courts over such states: the foreign state must

have been designated a state sponsor of terrorism at the

time the acts occurred, unless later so designated as a result

of such act, and a plaintiff (either claimant or victim) must

have been a U.S. citizen at the time of the incident. Both

of these requirements were satisﬁed in the case before the

court. In addition, the alleged acts of unlawful detention and

torture, and in the case of Robert Stethem, his summary

execution, “unequivocally beget claims eligible for relief

under section 1605(a)(7).” Finally, the court held, the evidence

conclusively established that the Islamic Republic of Iran

and its MOIS provided “material support or resources” to

Hizballah, and that Hizballah and its co-conspirator Amal

were the perpetrators of the acts in question.

Immunities and Related Issues 529

(4) Ungar v. Islamic Republic of Iran

In Ungar v. the Islamic Republic of Iran, 211 F. Supp. 2d 91

(D.D.C. 2002), the district court ruled that the defendants

(the Islamic Republic of Iran, the Iranian Ministry of Informa-

tion and Security, and three Iranian government ofﬁcials)

could not be held liable for murders committed by members

of HAMAS, a terrorist group to which they provided sub-

stantial support. Despite substantial evidence that defendants

had given money and weapons to HAMAS and trained some

of its members in order to encourage terrorist activities, that

“sponsorship” was by itself insufﬁcient to invoke jurisdiction

under the terrorism exception to the FSIA. The court noted

that, to satisfy § 1605(a)(7), a plaintiff need not establish

that the material support or resources provided by a foreign

state for a terrorist act contributed directly to the act from

which his claim arises. The statute provides jurisdiction only

for suits “for personal injury or death that was caused by an

act of torture, extrajudicial killing, aircraft sabotage, hostage

taking, or the provision of material support or resources . . .

for such an act if such act or provision of material support is

engaged in by an ofﬁcial, employee or agent” of a state

sponsor of terrorism acting in their ofﬁcial capacity. Because

plaintiffs had failed to establish a legally sufﬁcient evidentiary

basis for a reasonable jury to ﬁnd that defendants’ acts of

the defendants were a necessary condition or “but for” cause

of the deaths in question, however, defendants could not be

held liable for murders committed by the terrorist group on

either aiding-and-abetting or civil-conspiracy theory.

(5) Cronin v. Islamic Republic of Iran

In Cronin v. The Islamic Republic of Iran, 238 F. Supp. 2d 222

(D.D.C. 2002), the court entered a default judgment and

awarded compensatory damages in the amount of $1.2

million and punitive damages in the amount of $300 million,

in favor of an American student who had been abducted,

beaten and held hostage by members of Amal, Islamic

Amal, and Hizbollah terrorist groups in Beiruit. The excerpts

530 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

below provide the court’s view with respect to its jurisdiction

over Iran and its Ministry of Information and Security under

§ 1607(a), including its conclusion, in direct contradiction to

Roeder, supra, A.6.d.(1), that the Flatow Amendment “does

provide victims of state-sponsored acts of terrorism with a

cause of action against the culpable foreign state.” Footnotes

have been omitted.

****

. . . As this Court explained in Flatow, “[a]lthough [section

1605(a)(7)] created a forum competent to adjudicate claims arising

from offenses of this nature, serious issues remained, in particular,

the causes of action available to plaintiffs.” Flatow, 999 F. Supp.

at 12. . . . To create a cause of action for victims of state-sponsored

terrorist acts, Congress passed an amendment to section 1605(a)(7)

entitled “Civil Liability for Acts of State Sponsored Terrorism.”

Pub.L. No. 104–208, § 589, 110 Stat. 3009 (1996) (codiﬁed at 28

U.S.C. § 1605(a)(7) note). This provision, commonly referred

to as the “Flatow Amendment,” after a victim of a bus bombing

named Alisa Flatow, provides that “[a]n ofﬁcial, employee, or

agent of a foreign state designated as a state sponsor of terrorism

. . . while acting within the scope of his or her ofﬁce, employment,

or agency shall be liable to a United States national . . . for personal

injury or death caused by acts of that ofﬁcial, employee, or agent

for which the court of the United States may maintain jurisdiction

under section 1605(a)(7)[.]” 28 U.S.C. § 1605(a)(7) note. The

Flatow Amendment thus clearly establishes a cause of action against

an “ofﬁcial, employee, or “agent” of a foreign state, such as the

MOIS, that commits or causes another to commit a terrorist act.

It is not as clear from the text of the Flatow Amendment, however,

that victims of state-sponsored terrorist acts also have a cause of

action against the foreign state itself. Price v. Socialist People’s

Libyan Arab Jamahiriya, 294 F.3d 82, 87 (D.C. Cir. 2002) (recog-

nizing that “the amendment does not list ‘foreign states’ among

the parties against whom such an action may be brought.”).

After carefully reviewing the FSIA, the Court holds that the

Flatow Amendment does provide victims of state-sponsored acts

Immunities and Related Issues 531

of terrorism with a cause of action against the culpable foreign

state. There are three reasons why the Court reaches this

conclusion. First, the text of the Flatow Amendment suggests,

although admittedly does not explicitly state, that a cause of action

exists against foreign states proper. Before addressing the text

of the Flatow Amendment, however, it is important to recognize

that the provision must be read in conjunction with 28 U.S.C.

§ 1605(a)(7). Flatow, 999 F. Supp. at 13 (noting that the Flatow

Amendment “should be considered to relate back to the enactment

of 28 U.S.C. § 1605(a)(7) as if they had been enacted as one

provision, and the two provisions should be construed together

and in reference to one another.”); Id. at 12 (observing that “[t]he

Flatow Amendment is apparently an independent pronouncement

of law, yet it has been published as a note to 28 U.S.C. § 1605(a)(7),

and requires several references to [that provision] to reach even a

preliminary interpretation.”). “The operative language of 28 U.S.C.

§ 1605(a)(7) parallels the deﬁnition of respondeat superior: an

employer is liable in some cases for damages ‘proximately result-

ing from acts of [an] employee done within [the] scope of his

employment in the employer’s service.’ ” Flatow, 999 F. Supp.

at 26 (footnote omitted). Thus, under 28 U.S.C. § 1605(a)(7), the

sovereign immunity of a foreign state will be abrogated if its

“ofﬁcial, employee, or agent” provides material resources to the

entity that commits the terrorist act. The Flatow Amendment

likewise provides that an “ofﬁcial, employee, or agent” of a foreign

state shall be liable if their actions were taken “while acting within

the scope of his or her ofﬁce, employment, or agency[.]” 28 U.S.C.

§ 1605(a)(7) note. In light of the identical language used in both

statutory provisions, the Court ﬁnds that the respondeat superior

implications of section 1605(a)(7) are equally applicable to the

Flatow Amendment. Thus, in Flatow, the Court opined that “[t]he

state sponsored terrorism exception to immunity and the Flatow

Amendment similarly employ the principles of respondeat superior

and command responsibility to create both subject matter

jurisdiction and a federal cause of action.” Flatow, 999 F. Supp. at

26. Moreover, by referring to ofﬁcials, employees, and agents of

foreign states, the Flatow Amendment makes clear that they can,

in addition to the foreign state itself, be held liable for providing

532 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

material support to groups that perform terrorist acts. See, e.g.,

Flatow, 999 F. Supp. at 24–25 (noting that the Flatow Amendment

“overrides the common law doctrine of head of state immunity[.]”).

When viewed in this light, it becomes clear that the omission of

“foreign state” from the Flatow Amendment is the beginning,

rather than the end, of the inquiry. It also shows that to interpret

the text of the Flatow Amendment as denying a cause of action

against the foreign state itself would turn the scheme of § 1605(a)(7)

on its head. Instead of using the acts of ofﬁcials, employees,

and agents to support liability against the foreign state, the same

language would be used in the Flatow Amendment to deny

victims of state-sponsored terrorism a cause of action against the

responsible foreign state.

Second, the legislative history of 28 U.S.C. § 1605(a)(7) and

the Flatow Amendment support the conclusion that victims of

state-sponsored acts of terrorism have a cause of action against

the foreign state itself. “The stated purpose[s] of the Antiterrorism

Act [are] to deter terrorist acts against U.S. nationals by foreign

sovereigns or their agents and to provide for justice for victims of

such terrorism.” Elahi, 124 F. Supp. 2d at 106 (citing 110 Stat.

1214 (1996)). See also Flatow, 999 F. Supp. at 12–13 (“The brief

explanation of the Flatow Amendment’s purpose in the House

Conference Report explicitly states that it was intended to

increase the measure of damages available in suits under 28 U.S.C.

§ 1605(a)(7).”) (citing H.R. Conf. Rep. 863, 104th CONG, 1996).

These stated intentions would both be thwarted by construing the

Flatow Amendment in a manner that precludes victims of terrorism

from bringing suit against the responsible foreign states. At the

same time, the purposes of the legislation would clearly be advanced

by victims having a cause of action against the responsible foreign

state. Indeed, to construe the Flatow Amendment as not conferring

a private cause of action against foreign states would mean that

what Congress gave with one hand in section 1605(a)(7) it immedi-

ately took away with the other in the Flatow Amendment.

Finally, relevant statutory provisions enacted after the Flatow

Amendment also support the conclusion that it gives victims of

state-sponsored acts of terrorism a cause of action against the

responsible foreign state. For example, the Victims of Trafﬁcking

Immunities and Related Issues 533

and Violence Protection Act of 2000 (“Victims Protection Act”)

provides a mechanism by which successful plaintiffs can recover

their damage awards against foreign states and their agents from

the United States government. P.L. No. 106–386, 114 Stat. 1464

(2000). It is inconceivable that Congress would enable plaintiffs

who obtained judgments against foreign states like Iran to recover

the damage awards from the United States if the plaintiffs did not

have a cause of action against the foreign state in the ﬁrst place.

Moreover, the legislative history of the Victims Protection Act

indicates that Congress presumes the 1996 changes to the FSIA

confers a private right of action against foreign states. See, e.g.,

H.R. Conf. Rep. 939, 106th CONG, 2000 (stating that the 1996

amendments allowed “American citizens injured or killed in acts

of terrorism (or their survivors) to bring a lawsuit against the ter-

rorist state responsible for that act.”); 146 Cong. Rec. S10164–02

(stating that the 1996 amendments “gave American victims of

state-sponsored terrorism the right to sue the responsible state.”).

In addition, Congress amended 28 U.S.C. § 1606 in 1998 to permit

victims to recover punitive damages against foreign states in actions

brought pursuant to § 1605(a)(7). P.L. 105–277, 112 Stat. 2681–

491 (1998) (“[A] foreign state except an agency or instrumentality

thereof shall not be liable for punitive damages, except any action

under section 1605(a)(7)[.]”). It seems highly unlikely that Congress

would amend § 1606 to speciﬁcally permit punitive damage awards

against foreign states under § 1605(a)(7) if a cause of action did

not exist against those states. Furthermore, Congress repealed

the amendment to § 1606 in 2000 after plaintiffs had recovered

substantial punitive damage awards against foreign states like Iran.

Elahi, 124 F. Supp. 2d at 113–14 n. 17 (citing P.L. No. 106–386,

§ 2002(f)(2) ). It is even more implausible that Congress would

amend that provision a second time by eliminating punitive damage

awards against foreign states if victims did not have a cause of

action against those foreign states at all.

In holding that victims of state-sponsored terrorist attacks have

a cause of action against the culpable foreign state under the FSIA,

this Court joins virtually every district judge in this circuit who has

addressed the issue. See, e.g., Surette v. Islamic Republic of Iran,

231 F. Supp. 2d 260 (D.D.C.2002) (Friedman, J.); Daliberti v.

534 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Republic of Iraq, 146 F. Supp. 2d 19 (D.D.C.2001) (Oberdorfer,

J.) Elahi, 124 F. Supp. 2d at 106 (Green, J.); Higgins v. Islamic

Republic of Iran, Civ. A. No. 1:99cv00377, 2000 WL 33674311

(D.D.C. 2000) (Kollar-Kotelly, J.); Cicippio v. Islamic Republic

of Iran, 18 F. Supp. 2d 62 (D.D.C. 1998) (Jackson, J.). But see

Roeder v. Islamic Republic of Iran, 195 F. Supp. 2d 140, 171–73

(D.D.C. 2002) (Sullivan, J.).

****

(6) Price v. Socialist People’s Libyan Jamahiriya

Two American citizens brought suit under the FSIA’s

“terrorism” exception against the state of Libya for alleged

torture and hostage taking. The Court of Appeals for the

District of Columbia held that their allegations that they had

been incarcerated by Libya for the purpose of demonstrating

support of the Iran-U.S. Embassy hostage incident were

insufﬁcient to satisfy the standard for “hostage taking” under

§ 1605(a)(7), and their allegations that they had been “kicked,

clubbed and beaten” by prison guards while jailed awaiting

trial in Libya were insufﬁcient to qualify as “torture” or to

bring the case within the statutory exceptions to foreign

sovereign immunity. The court also held, as a matter of ﬁrst

impression, that Libya, as a foreign state, is not a “person”

within the meaning of the Due Process Clause and therefore

that the Constitution imposes no limitation on the exercise of

personal jurisdiction by the federal courts over Libya. Price v.

Socialist People’s Libyan Jamahiriya, 294 F.3d 82 (D.D.C. 2002).

7. Effect of Tax Treaty under FSIA

In 2001, in Komet, Inc. v. Republic of Finland, Civil Action

No. 99–6080 (D.N.J.), the United States ﬁled an amicus

brief in the District Court for New Jersey in support of a

motion by the government of Finland to vacate a default

judgment requiring it to refund allegedly excessive income

tax payments, on the ground that Finland had not waived

Immunities and Related Issues 535

sovereign immunity and was immune from suit under the

FSIA. See discussion and excerpts from the United States

amicus brief in Digest 2001 at 485–488. In February 2002, the

district court granted Finland’s motion, 2002 U.S. Dist. LEXIS

2922 (D.N.J.), ﬁnding that in the absence of any applicable

exception under the FSIA it lacked subject matter jurisdiction

to enter the default judgment.

8. Collection of Judgments

a. Jung Tang v. Chinese Cultural Center

On May 8, 2002, the United States submitted a Statement

of Interest in Jung Tang v. Chinese Cultural Center, No. KC

028356, a civil action pending on appeal before the Superior

Court of the State of California, County of Los Angeles. The

suit involved a claim for damages arising from the alleged

negligence of the Chinese Cultural Center (“CCC”) in Los

Angeles, which caused plaintiff to slip and fall on its premises.

The CCC is an integral part of the Taipei Economic and

Cultural Representative Ofﬁce in the United States (“TECRO”)

(formerly the Coordination Council for North American Affairs

or “CCNAA”), which, as explained in the U.S. Statement of

Interest, is “not an agency or instrumentality” but instead

“considered part of a ‘foreign state’ ” for FSIA purposes. CCC

did not appear in or defend the action, and a default judgment

was entered against it in the amount of $462,279. Plaintiff

ﬁled an application for a writ of execution for the amount of

the judgment, and in late 2001 a levy was placed on CCC’s

bank account. CCC moved to have the default judgment

set aside and the levy vacated, claiming immunity under

the FSIA as well as under the Agreement on Privileges,

Exemptions, and Immunities Between the American Institute

in Taiwan and the Coordination Council for North American

Affairs. On February 5, 2002, in a preliminary hearing, the

court declined to do so, ﬁnding that the CCC is an

“instrumentality” of a foreign state, and was not immune

536 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

from personal injury lawsuits under the FSIA because the

AIT-TECRO Agreement must be interpreted consistently with

the FSIA and the International Organizations Immunities

Act (“IOIA”), and cannot provide more immunity than the

FSIA or the IOIA.

The U.S. Statement of Interest asserted that CCC’s bank

account is immune from attachment under the FSIA as well

as pursuant to the Taiwan Relations Act (“TRA”) of 1979,

22 U.S.C. §§ 3301–3316, as set forth in the excerpts below.

The full text of the Statement of Interest is available at

www.state.gov/s/l/c8183.htm.

****

For purposes of the FSIA, TECRO/CCC is not an agency or instru-

mentality of Taiwan. Instead, it is considered part of the “foreign

state”, i.e., Taiwan. As a “foreign state,” the FSIA only permits the

attachment of TECRO/CCC’s bank account if it was used for a

commercial activity. TECRO/CCC’s bank accounts are not used for

a commercial activity as a matter of law because TECRO/CCC

performs functions similar to a diplomatic or consular mission.

There is another reason that the Court should vacate the levy

on CCC’s bank account: the AIT-TECRO Agreement, entered into

pursuant to speciﬁc congressional authorization in the TRA, pro-

vides that TECRO’s bank accounts are immune from attachment.

The TRA was passed in 1979, and the AIT-TECRO Agreement

was entered into in 1980, and therefore, they represent subsequent

federal law that supercede the FSIA to the extent of any conﬂict.

Therefore, if the Court disagrees with the United States and ﬁnds

that the FSIA otherwise would permit the attachment of CCC’s

account, the TRA and the AIT-TECRO Agreement must still be

enforced both as a matter of federal law and to avoid a breach of

the reciprocal commitments in the AIT-TECRO Agreement.

****

. . . Although TECRO/CCC is not a diplomatic or consular

mission as a consequence of the fact that there is no ofﬁcial rela-

tionship between the United States and Taiwan, TECRO performs

Immunities and Related Issues 537

functions similar to a diplomatic or consular mission for purposes

of the United States’ unofﬁcial relationship with Taiwan. In

addition, the TRA requires that TECRO be treated as a diplomatic

or consular mission under the Foreign Missions Act as well as

other statutes. See 22 U.S.C. § 3303(b)(1). Accordingly, the State

Department has a duty to protect the proper functioning of

TECRO/CCC, and thus to assist in the recognition of the privileges

and immunities provided to it by the AIT-TECRO Agreement.

****

Pursuant to the authority provided by the TRA, on October 2,

1980, CCNAA and AIT concluded the AIT-TECRO Agreement.

The AIT-TECRO Agreement provides privileges and immunities

to both entities similar to that enjoyed by certain foreign missions

and their personnel and certain public international organizations

and their personnel. For example, the AIT-TECRO Agreement

provides that TECRO and AIT’s archives and documents are inviol-

able, see AIT-TECRO Agreement art. 5(c), their real property is

exempt from central and local taxation, see id. art. 5(d), and their

personnel acting in an ofﬁcial capacity are immune from suit, see

id. art. 5(e). Relevant to this case, Article 5(c) of the Agreement

states:

The property and assets of [both the American Institute in

Taiwan and the CCNAA while in the party’s territory],

and any successor organization thereto, wherever located

and by whomsoever held, shall be immune from forced

entry, search, attachment, execution, requisition, expropria-

tion or any other form of seizure or conﬁscation, unless

such immunity be expressly waived. . . .

Id. art. 5(c).

****

538 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

I. THE CHINESE CULTURE CENTER IS AN INTEGRAL

PART OF TECRO THAT PERFORMS FUNCTIONS

SIMILAR TO A DIPLOMATIC OR CONSULAR

MISSION.

Even in the absence of diplomatic relations between the United

States and Taiwan, courts have determined that TECRO performs

functions similar to a diplomatic or consular mission. See Taiwan

v. United States Dist. Ct. for the N. Dist. of Cal., 128 F.3d 712,

714 (9th Cir. 1997) (recognizing that TECRO “performs functions

similar to the functions performed by embassies of countries with

whom the United States maintains diplomatic relations”); Dupont

Circle Citizens Ass’n v. District of Columbia Bd. of Zoning Adjust-

ment, 530 A.2d 1163, 1170–72 (D.C. Ct. App. 1987) (holding

that pursuant to the TRA, TECRO must be treated as a foreign

mission). See generally Sun v. Taiwan, 201 F.3d 1105 (9th Cir.),

cert. denied, 531 U.S. 979 (2000). Notably, courts have also deter-

mined that AIT, TECRO’s counterpart entity, performs functions

similar to a diplomatic or consular mission. See Wood ex rel. U.S.

v. American Inst. in Taiwan, 286 F.3d 526, No. 01–5092, 2002

WL 553839, at *5 (D.C. Cir. Apr. 16, 2002) (“Put simply, though

not an embassy, the Institute functions like one.”).

The AIT-TECRO Agreement provides that TECRO could

“establish branch ofﬁces in eight cities within the United States

and such other additional localities as may be agreed upon by the

counterpart organizations.” AIT-TECRO Agreement art. 1. CCC

is one of those ofﬁces. The record demonstrates the following.

CCC is one of the branch ofﬁces of TECRO. See Dec. 11,

2001 Aff. of Ding-Yuan Wang, ¶ 4; Exhs. B, E, F to Def.’s Req.

for Judicial Notice of Jan. 3, 2001. CCC’s full name is the Chinese

Culture Center of the Taipei Economic and Cultural Ofﬁce in Los

Angeles. See Exhs. B, D to Def.’s Req. for Judicial Notice of Jan.

3, 2001. In addition, CCC’s real property is owned by TECRO.

See Exh. H to Def.’s Req. for Judicial Notice of Jan. 3, 2001. The

Director and Deputy Director of CCC are employed by TECRO

and are ofﬁcials of Taiwan. See Dec. 11, 2001 Aff. of Ding-Yuan

Wang, ¶ 3; Dec. 20, 2001 Aff. of Jason Yuan, ¶ 6. CCC does not

perform functions for proﬁt in the United States. See Dec. 11,

Immunities and Related Issues 539

2001 Aff. of Ding-Yuan Wang, ¶ 9. Finally, CCC, pursuant to

Article 5(d) of the AIT-TECRO Agreement and with the assistance

of AIT, was granted a real property tax exemption under California

law. See Exh. C to Dec. 20, 2001 Aff. of Jason Yuan (letter from

County of Los Angeles to CCC informing CCC that its property

was approved for “a Consular Exemption”).

CCC is an integral part of TECRO, and like TECRO, per-

forms functions similar to a diplomatic or consular mission. It is

for this reason that the AIT-TECRO Agreement provides the

same privileges and immunities to CCC, including immunity from

attachment for its assets. See AIT-TECRO Agreement art. 5(c).

II. THE FSIA PROHIBITS ATTACHMENT OF

TECRO/CCC’S BANK ACCOUNT.

As a general matter, the FSIA provides that “the property

in the United States of a foreign state shall be immune from

attachment[,] arrest and execution except as provided in section

1610 and 1611 of this chapter.” See 28 U.S.C. § 1609 (emphasis

added). Sections 1610 and 1611 provide a number of exceptions

to this general rule, some of which apply only to agencies and

instrumentalities of foreign states and not foreign states themselves.

Compare id. § 1610(a) (applying to foreign states as deﬁned by

28 U.S.C. § 1603(a)), with id. § 1610(b) (applying only to agencies

and instrumentalities of foreign states). Therefore, in order to

determine whether the FSIA by its own terms would permit

attachment of TECRO/CCC’s bank account, the ﬁrst inquiry is

whether TECRO/CCC is the foreign state, i.e., Taiwan, or an

agency or instrumentality of Taiwan for purposes of the FSIA.

A. TECRO/CCC is not an Agency or Instrumentality of

Taiwan For Purposes of the FSIA.

Under the FSIA, an agency or instrumentality is deﬁned as:

[A]ny entity (1) which is a separate legal person, corporate

or otherwise, and (2) which is an organ of a foreign state

540 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

or political subdivision thereof, or a majority of whose

shares or other ownership interest is owned by a foreign

state or political subdivision thereof, and (3) which is

neither a citizen of a State of the United States as deﬁned

in section 1332(c) and (d) of this title, nor created under

the laws of any third country. 28 U.S.C. § 1603(b).

While not dismissing an inquiry into the legal and structural char-

acteristics of an entity for purposes of whether it is an agency or

instrumentality, courts have stressed that entities that perform

inherently governmental functions such as embassies and consulates

presumptively must be considered part of a foreign state and not

an agency or instrumentality. See Underwood v. United Republic of

Tanz., No. 94–902, 1995 WL 46383, at *2 (D.D.C. Jan. 27, 1995);

Berdakin v. Consulado de law Republica de El Sal., 912 F. Supp.

458, 461 (C.D. Cal. 1995) (citing Gerritsen v. Hurtado, 819 F.2d

1511, 1517 (9th Cir. 1987) ); Gray v. Permanent Mission of People’s

Republic of Congo to the U.N., 443 F. Supp. 816, 820 (S.D.N.Y.),

aff’d, 580 F.2d 1044 (2d Cir. 1978) (unpublished mem.); Segni v.

Commercial Ofﬁce of Spain, 650 F. Supp. 1040, 1042 (N.D. Ill.

1986); 2 Tudor City Place Assocs. v. Libyan Arab Republic Mission

to the U.N., 121 Misc. 2d 945, 946–47 (N.Y. Civ. Ct. 1983).

For example, the Underwood court held that, as a matter of

law, embassies are not agencies or instrumentalities of foreign

states for purposes of FSIA because “[t]he functions of an embassy

are so integrally related to the core functions of government that

it qualiﬁes as part of the foreign state . . . regardless of whether

the embassy has a separate name and some power to conduct

its own affairs.” 1995 WL 46383, at *2. Under this rationale,

TECRO/CCC is not an agency or instrumentality of Taiwan

because of the functions that it performs.

In addition, the D.C. Circuit has held that “[TECRO] enjoys

the same immunity under the FSIA as do other nations.” See Millen

Indus., Inc. v. Coordination Council for N. Am. Affairs, 855 F.2d

879, 883 (D.C. Cir. 1988); see also id. (stating that TECRO “rather

than being a subject or citizen of Taiwan, is Taiwan”). For all of

these reasons, TECRO/CCC is properly considered Taiwan for

purposes of the FSIA, rather than an agency or instrumentality of

Taiwan.

Immunities and Related Issues 541

B. The Bank Accounts of TECRO/CCC Are Not Used

for a Commercial Activity as a Matter of Law.

Once it has been established that TECRO/CCC is not an agency

or instrumentality of Taiwan for purpose of the FSIA, § 1610(a),

and not § 1610(b), applies. Under § 1610(a), CCC’s bank account

can be attached only if certain criteria are satisﬁed, the threshold

requirement being that property of a foreign state is attachable

only if it is used for a commercial activity in the United States. See

28 U.S.C. § 1610(a). Section 1610(a) provides, in relevant part:

The property in the United States of a foreign state,

as deﬁned in section 1603(a) of this chapter, used for

a commercial activity in the United States, shall not be

immune from attachment in aid of execution, or from

execution, upon a judgment entered by a court of the United

States or of a State after the effective date of this Act, if

[certain conditions are met].

Id. (emphasis added). Thus, the next inquiry is whether the pro-

perty at issue—CCC’s bank account—was used for a commercial

activity.

Courts have held that as a matter of law bank accounts of

diplomatic and consulate missions are not used for a commercial

activity. See Trans Commodities, Inc. v. Kazakhstan Trading House,

S.A., No. 96–316, slip op. at 4 & n. 3 (D.D.C. Feb. 27, 1997);

Sales v. Republic of Uganda, No. 90–3972, 1993 WL 437762,

at *1 (S.D.N.Y. Oct. 23, 1993); Liberian E. Timber Corp. v.

Government of the Republic of Liber., 659 F. Supp. 606, 609–10

(D.D.C. 1987). See generally H.R. Rep. No. 1487, 94th Cong., 2d

Sess., reprinted in 1976 U.S.C.C.A.N. 6604, 6615 (indicating that

employment of diplomatic personnel is a governmental activity,

not a commercial one). But cf. Birch Shipping Corp. v. Embassy of

the United Republic of Tanz., 507 F. Supp. 311, 312 (D.D.C. 1980).

The Liberian court explained that “the rule of thumb . . . to

determine whether activity is of a commercial or public nature

is if the activity is one in which a private person could engage, it

is not entitled to immunity.” 659 F. Supp. at 610 (citations and

internal quotation marks omitted). The bank accounts at issue in

542 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

that case were utilized for the “maintenance of the full facilities of

Liberia to perform its diplomatic and consular functions as the

ofﬁcial representative of Liberia in the United States. . . .” Id. Thus,

“[t]he essential character of the activity for which the funds in

the accounts [were used was] undoubtedly of a public or govern-

mental nature because only a governmental entity may use funds

to perform the functions unique to an embassy.” Id. Finally, the

court declined to scrutinize the accounts to determine whether

some of the funds might be used for incidental commercial

activities, instead concluding that such a determination would

be unduly intrusive and contrary to the purposes of sovereign

immunity. See id.

Like diplomatic and consular bank accounts, real property

used to house an embassy or consulate also is not considered to be

used for a commercial activity. See H.R. Rep. No. 94–1487, 1976

U.S.C.C.A.N. at 6628 (“[E]mbassies and related buildings [cannot]

be deemed to be property used for a commercial activity,”);

MacArthur Area Citizens Ass’n v. Republic of Peru, 809 F.2d

918, 920 (D.C. Cir. 1987) (agreeing that “operation of a chancery

is, by its nature . . . governmental, not commercial”) (internal

citation omitted); City of Englewood v. Socialist People’s Libyan

Arab Jamahiriya, 773 F.2d 31, 36–37 (3d Cir. 1985) (same); United

States v. County of Arlington, 702 F.2d 485, 488 (4th Cir. 1983)

(same); Flatow v. Islamic Republic of Iran, 76 F. Supp. 2d 16,

22–23 (D.D.C. 1999) (holding that embassies and residences of

diplomats support diplomatic relations, an inherently sovereign,

and not commercial, activity); S&S Mach. Co. v. Masinexport-

import, 802 F. Supp. 1109, 1111–12 (S.D.N.Y. 1992) (indicating

that consulate building was not used for commercial activity

because only a sovereign can operate a consulate).

Moreover, courts have generally held that “[t]he concept of

commercial activity should be deﬁned narrowly because sovereign

immunity remains the rule rather than the exception, and because

courts should be cautious when addressing areas that affect the

affairs of foreign governments.” Liberian, 659 F. Supp. at 610

(citation and internal quotation marks omitted).

Under § 1610(a), CCC’s bank account is immune from

attachment because it was used to support ofﬁces that perform

Immunities and Related Issues 543

functions similar to those performed by a diplomatic or consular

mission, which is not a commercial activity as a matter of law.

The conclusion is that the FSIA, like the AIT-TECRO Agreement,

does not permit the attachment of CCC’s bank account.

III. EVEN IF THE FSIA PERMITTED THE ATTACHMENT

OF CCC’S BANK ACCOUNT, THE TRA AND THE

AIT-TECRO AGREEMENT DO NOT AND THEY

MUST BE ENFORCED

As a preliminary matter, if the Court ﬁnds that there is a

potential conﬂict between (1) the FSIA and (2) the TRA and the

AIT-TECRO Agreement, the Court must attempt to harmonize

these federal law provisions. See United States v. Vasquez-Velasco,

15 F.3d 833, 840 (9th Cir. 1994) (citing the Restatement (Third)

of Foreign Relations Law § 114 (1987) as requiring that “[w]here

fairly possible, a United States statute is to be construed so as not

to conﬂict with international law”). As explained above, there

is no conﬂict between the FSIA and either the TRA or the AIT-

TECRO Agreement. But to the extent that the Court believes that

there is, the Court should attempt to harmonize them by looking

to their respective texts and purposes. See Rodriguez v. United

States, 480 U.S. 522, 524–25 (1987).

As a general matter, the legislative history of the FSIA indicates

that the FSIA was not to be construed to affect diplomatic or

consular immunity. See H.R. Rep. No. 1487, 1976 U.S.C.C.A.N.

at 6610. More speciﬁcally, in passing the FSIA, Congress made

clear that international agreements entered into prior to the FSIA’s

passage were to be applied in accordance with their terms. See

28 U.S.C. §§ 1604, 1609. This necessarily included a number of

international agreements governing the privileges and immun-

ities of both diplomatic or consular missions and public inter-

national organizations. See, e.g., Vienna Convention on Diplomatic

Relations, 23 U.S.T. 3227 (Apr. 18, 1961); Convention on

Privileges and Immunities of the U.N., 21 U.S.T. 1418, 1 U.N.T.S.

16 (done Feb. 13, 1946, entered into force for the United States

on Apr. 29, 1970). Congress also wanted to ensure that the FSIA

544 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

be made subject to future agreements, but deleted as unneces-

sary a proposal to this effect. See H.R. Rep. No. 1487, 1976

U.S.C.C.A.N. at 6608. Congress recognized that regardless of an

express provision, under established law, a later-enacted agreement

would take precedence over an earlier statute. See id. In passing

the FSIA, it is clear that Congress did not intend to allow the FSIA

to interfere in any way with the immunities afforded to diplomatic

or consular missions both before and after passage.

Subsequent to the FSIA’s passage, Congress passed the TRA,

which was intended “to promote the foreign policy of the United

States by authorizing the continuation of commercial, cultural,

and other relations between the people of the United States and

the people on Taiwan” via the unique arrangement set forth in

the statute. See 22 U.S.C. § 3301(a)(2); id. §§ 3301 et seq. It

speciﬁcally authorized the President to extend to TECRO “such

privileges and immunities . . . as may be necessary for the effective

performance of [TECRO’s] functions.” Id. § 3309(c). After the

AIT-TECRO Agreement was entered into and immunity from the

attachment of its assets was extended to TECRO, it was submitted

to the Congress in accordance with the TRA. See 22 U.S.C. §

3311(a). AIT-TECRO agreements are required by statute to be

transmitted to Congress in the same manner as international

agreements by the United States. See id.

In attempting to harmonize the FSIA and the TRA/AIT-TECRO

Agreement, it should also be recognized that the language of the

TRA and the AIT-TECRO Agreement are quite speciﬁc in pro-

hibiting the attachment of TECRO’s property, whereas the

language of the FSIA is general. See United States v. Shewmaker,

936 F.2d 1124, 1127 (10th Cir. 1991) (citing Townsend v. Little,

109 U.S. 504, 512 (1883) ). For all of these reasons, the Court

should harmonize any perceived difference between the FSIA and

the TRA/AIT-TECRO Agreement to prohibit the attachment of

CCC’s bank account, as both Congress and the President intended.

If there remains any possibility that (1) the FSIA, passed in

1976 and, (2) the TRA, passed in 1979, and the AIT-TECRO

Agreement, signed in 1980, cannot be harmonized, the provisions

of the TRA and the AIT-TECRO Agreement still must be applied

in accordance with their terms and, as such, to prevent the

Immunities and Related Issues 545

attachment of CCC’s bank account. This is because where

provisions in two acts are in irreconcilable conﬂict, the later one

constitutes an implied repeal of the earlier one to the extent of the

conﬂict. See Posadas v. National City Bank of N.Y., 296 U.S.

497, 503 (1936). In general, an international agreement entered

into pursuant to congressional authority also implicitly repeals

inconsistent earlier legislation to the extent of a conﬂict. See,

e.g., Restatement (Third) of Foreign Relations Law, § 115 cmt.

c (1987); Dames & Moore v. Regan, 453 U.S. 654, 674 (1981).

Although the AIT-TECRO Agreement is not an international

agreement, the TRA requires the AIT-TECRO Agreement to be

treated as such. See 22 U.S.C. §§ 3303,

3305(b), 3311(a). See

generally Taiwan, 128 F.3d at 717 (giving effect to the AIT-TECRO

Agreement). . . .

****

b. Flatow v. Islamic Republic of Iran

On October 23, 2002, the U.S. Court of Appeals for the

Ninth Circuit, in Flatow v. Islamic Republic of Iran, 308 F.3d

1065 (9

Cir. 2002), afﬁrmed a district court decision to

grant a bank’s motion for release of the proceeds of sale of

certain property, which was being held subject to a lien

created by a writ of execution. In this case, Stephen Flatow,

the father of an American citizen killed in 1995 in a terrorist

attack in Israel, had ﬁled a wrongful-death action against the

Islamic Republic of Iran and various Iranian ofﬁcials under

the then newly-enacted terrorism exception to the FSIA,

see A.6.d., supra. On March 11, 1998, the district court entered

a default judgment against Iran in favor of Flatow in the

amount of $247,513,220. See Flatow v. Islamic Republic of

Iran, 999 F. Supp. 1 (D.D.C. 1998). Thereafter, Flatow reg-

istered his judgment with the District Court for the Southern

District of California and obtained a writ of execution for

$247,513,220 on property in Carlsbad, California, owned by

California Land Holding Company, a wholly owned subsidiary

of Bank Saderat Iran (“BSI”), an Iranian bank. Pursuant to

546 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

a consent order entered into between BSI and Flatow on

October 1, 1999, the proceeds of sale of the property were

held in an interest-bearing account subject to the lien created

by the writ of execution.

The district court ultimately granted BSI’s motion for

release of the funds. It concluded that the “evidence Flatow

presented was not sufﬁcient to overcome the presumption

that BSI is a juridical entity separate and apart from the

Islamic Republic of Iran and therefore not subject to execu-

tion of the judgment against Iran,” relying on the Supreme

Court decision in First Nat’l City Bank v. Banco Para El Com-

ercio Exterior de Cuba, 462 U.S. 611 (1983) (“Bancec”). See

308 F.3d 1065 at 1068. In afﬁrming the district court’s holding,

the Ninth Circuit considered, inter alia, whether amendments

to the FSIA abrogated the Bancec presumption. Excerpts

below from the Ninth Circuit opinion provide its analysis of

the issue, concluding that no such abrogation occurred.

****

In Bancec, the Supreme Court clearly stated that the FSIA does

not govern substantive liability for sovereign states or their instru-

mentalities . . . The enumerated exceptions to the FSIA provide the

exclusive source of subject matter jurisdiction over civil actions

brought against foreign states . . . but the FSIA does not resolve

questions of liability. Questions of liability are addressed by Bancec,

which examines the circumstances under which a foreign entity

can be held substantively liable for the foreign government’s

judgment debt. This distinction between liability and jurisdiction

is crucial to our resolution of this case.

****

We asked the United States to ﬁle an amicus curiae brief on

the issue of whether amendments to the FSIA abrogate the Bancec

presumption.

The Untied States took the position that the amendments to

the FSIA did not alter the Bancec presumption because Bancec

and the FSIA govern two separate questions of law: liability and

jurisdiction. It is now clear to the panel that the district court was

Immunities and Related Issues 547

correct in resolving this matter under the threshold Bancec liability

inquiry.

****

B. HEAD OF STATE IMMUNITY

1. Wei Ye v. Jiang Zemin

In the Wei Ye v. Jiang Zemin case adherents of the Falun

Gong movement ﬁled a class-action suit against Chinese

President Jiang Zemin. In addition to challenging the legality

of the method of service (see F.3.b. below), the United States

urged dismissal of the claims against President Jiang on

head of state immunity grounds. Below are excerpts from

the Corrected United States’ Motion to Vacate October 21,

2002, Order and Statement of Interest or, in the Alternative,

Suggestion of Immunity.

The full texts of the U.S. motion and the letter of

Mr. Taft mentioned in the excerpts below, are available at

www.state.gov/s/l/c8183.htm.

****

a. President Jiang Enjoys Head of State Immunity

The United States has an additional interest in this action insofar

as it involves the question of a head of state’s immunity from the

Court’s jurisdiction. This interest arises from a determination by

the Executive Branch of the U.S. Government, in its implementa-

tion of foreign policy and conduct of international relations, that

permitting this action to proceed against President Jiang would

be incompatible with the United States’ foreign policy interests.

The Court should give effect to this determination if it rejects the

arguments set forth above.

The Legal Adviser of the Department of State has informed the

Department of Justice that “[t]he Department of State recognizes

and allows the immunity of President Jiang from this suit.” (Letter

from William H. Taft, IV to Robert D. McCallum, Jr. of Dec. 6,

548 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

2002 [copy attached at Tab E].) Under customary rules of

international law recognized and applied in the United States, and

pursuant to this Suggestion of Immunity, President Jiang, as the

head of a foreign state, is immune from the Court’s jurisdiction

in this case. See, e.g., Leutwyler v. Queen Rania Al Abdullah,

No. 00 Civ. 5485, 2001 WL 893343, at *1 (S.D.N.Y. Aug. 8,

2001); First Am. Corp. v. Sheikh Zayed Bin Sultan Al-Nahyan,

948 F. Supp. 1107, 1119 (D.D.C. 1996); Alicog v. Kingdom of

Saudi Arabia, 860 F. Supp. 379, 382 (S.D. Tex. 1994), aff’d

79 F.3d 1145 (5th Cir. 1996); Lafontant v. Aristide, 844 F.

Supp. 128, 132 (E.D.N.Y. 1994), appeal dismissed, No. 94–6026

(2d Cir. 1994).

The Supreme Court has mandated that the courts of the United

States are bound by suggestions of immunity, such as this one,

submitted by the Executive Branch. See, e.g., Republic of Mexico

v. Hoffman, 324 U.S. 30, 35–36 (1945); Ex parte Peru, 318 U.S.

578, 588–589 (1943). In Ex parte Peru, the Supreme Court,

without further review of the Executive Branch’s determina-

tion regarding immunity, declared that the Executive Branch’s

suggestion of immunity “must be accepted by the courts as a

conclusive determination by the political arm of the Government”

that the retention of jurisdiction by the courts would jeopardize

the conduct of foreign relations. Ex parte Peru, 318 U.S. at

589; accord Spacil v. Crowe, 489 F.2d 614, 617 (5

Cir. 1974).

Accordingly, where, as here, immunity has been recognized by

the Executive Branch and a suggestion of immunity is ﬁled, it is

the “court’s duty” to surrender jurisdiction.

Ex parte Peru, 318

The conclusive effect of the Executive Branch’s suggestion of immun-

ity in this case is not affected by enactment of the Foreign Sovereign Immun-

ities Act (FSIA), 28 U.S.C. § 1602, et seq. Prior to passage of the FSIA, the

Executive Branch ﬁled suggestions of immunity with respect to both heads

of state and foreign states themselves. The FSIA transferred the determination

of the immunity of foreign states from the Executive Branch to the courts.

See H.R. Rep. No. 1487, 94th Cong., 2d Sess. 12 (1976), reprinted in 1976

U.S.C.C.A.N. 6604, 6610. The FSIA, however, did not alter Executive Branch

authority to suggest head of state immunity for foreign leaders, or affect the

binding nature of such suggestions of immunity. See, e.g., First Am. Corp.,

948 F. Supp. at 1119; Lafontant, 844 F. Supp. at 132–33.

Immunities and Related Issues 549

U.S. at 589; accord Hoffman, 324 U.S. at 35. Indeed, the courts

of the United States have heeded the Supreme Court’s direction

regarding the binding nature of suggestions of immunity submitted

by the Executive Branch.

Judicial deference to the Executive Branch’s suggestions of

immunity is predicated on compelling considerations arising out

of the conduct of our foreign relations. Spacil, 489 F.2d at 619.

First, as the Spacil court explained:

Separation-of-powers principles impel a reluctance in the

judiciary to interfere with or embarrass the executive in its

constitutional role as the nation’s primary organ of inter-

national policy.

Id. (citing United States v. Lee, 106 U.S. 196, 209 [1882]); accord

Ex parte Peru, 318 U.S. at 588. Second, the Executive Branch

possesses substantial institutional resources to pursue and extensive

experience to conduct the country’s foreign affairs. See Spacil,

489 F.2d at 619. By comparison, “the judiciary is particularly ill-

equipped to second-guess” the Executive Branch’s determinations

affecting the country’s interests. Id. Finally, and “[p]erhaps more

importantly, in the chess game that is diplomacy only the executive

has a view of the entire board and an understanding of the

relationship between isolated moves.” Id.

See, e.g., Leutwyler, 2001 WL 893343 at *1 (Executive Branch

Suggestion of Immunity “is entitled to conclusive deference from the courts”);

First Am. Corp., 948 F. Supp. at 1119 (suggestion by Executive Branch of

the United Arab Emirates’ Sheikh Zayed’s immunity determined conclusive

and required dismissal of claims alleging fraud, conspiracy, and breach of

ﬁduciary duty); Alicog, 860 F. Supp. at 382 (suggestion by Executive Branch

of King Fahd’s immunity as head of state of Saudi Arabia held to require

dismissal of complaint against King Fahd for false imprisonment and abuse);

Lafontant, 844 F. Supp. at 132–33 (suggestion by Executive Branch of Haitian

President Aristide’s immunity held binding on court and required dismissal

of case alleging that President Aristide ordered murder of plaintiff’s husband);

Saltany v. Reagan, 702 F. Supp. 319, 320 (D.D.C. 1988) (suggestion of

Prime Minister Thatcher’s immunity conclusive in dismissing suit that alleged

British complicity in U.S. air strikes against Libya), aff’d in part and rev’d in

part on other grounds, 886 F.2d 438, 441 (D.C. Cir. 1989).

550 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Thus, as a foreign head of state, and pursuant to the United

states’ suggestion of immunity, President Jiang is immune from

the jurisdiction of this Court.

b. Head-of-State Immunity Renders President Jiang Immune

from Service of Process

The immunity of the person of a foreign head of state, i.e., his

or her personal inviolability, is considered a core diplomatic

immunity. As a leading treatise recognizes:

Personal inviolability is of all the privileges and immun-

ities of missions and diplomats the oldest established and

the most universally recognized. . . . The inviolability of

ambassadors is clearly established in the earliest European

writings on diplomatic law and from the sixteenth century

until the present one can ﬁnd virtually no instances where

a breach of a diplomat’s inviolability was authorized or

condoned by the Government which received him.

Contrary to Plaintiffs’ assertion in paragraph 10 of their Complaint,

no exception to the head of state immunity doctrine applies to this civil

proceeding in a United States court. The Convention on the Prevention and

Punishment of the Crime of Genocide, adopted Dec. 9, 1948, United States

accession, Feb. 23, 1989, T.I.A.S. No. 1021, 78 U.N.T.S. 277, cited by

Plaintiffs, provides no relevant exception to head-of-state immunity. Rather,

that instrument concerns potential criminal prosecution for acts of genocide,

and states that “[p]ersons charged with genocide . . . shall be tried by a

competent tribunal of the State in the territory of which the act was com-

mitted, or by such international penal tribunal as may have jurisdiction . . . .”

Genocide Convention, article VI. Plaintiffs also cite the Torture Victim

Protection Act (“TVPA”), but the legislative history to that Act expressly

states that “nothing in the TVPA overrides the doctrines of diplomatic and

head of state immunity. These doctrines would generally provide a defense

to suits against foreign heads of state and other diplomats visiting the United

States on ofﬁcial business.” H.R. Rep. No. 102–367, at 5 (1991), reprinted

in 1992 U.S.C.C.A.N. 84, 88. In the end, the United States recognizes no

applicable exception to head-of-state immunity in this case, and thus

recognizes and allows President Jiang’s immunity from it.

Immunities and Related Issues 551

Lord Gore-Bush, Satow’s Guide to Diplomatic Practice 120

ed. 1979).

“When a head of state or government comes on

an ofﬁcial visit to another country, he is generally given the

same personal inviolability and immunities as . . . an accredited

diplomat.” Restatement (Third) of Foreign Relations Law § 464

reporters’ note 14; see also Sir Arthur Watts, The Legal Position

in Int’l Law of Heads of State, Heads of Governments and

Foreign Ministers, 51–52 (1994) (“In determining the meaning of

this ‘inviolability’ [for heads of state], it is natural to have regard

to the equivalent inviolability which is enjoyed by foreign

ambassadors—but always bearing in mind that a Head of State’s

position is even more demanding of respect and protection than is

that of an ambassador”). The Vienna Convention on Diplomatic

Relations provides full personal inviolability for diplomatic agents,

stating simply that “[t]he person of a diplomatic agent shall be

inviolable.” Vienna Convention on Diplomatic Relations art. 29,

done Apr. 18, 1961, United States accession, Dec. 13, 1972, 23

U.S.T. 3227.

Persons who are “inviolable” may not be personally served

with legal process. E.g., Hellenic Lines, Ltd. v. Moore, 345 F.2d

978, 980–81 (D.C. Cir. 1965) (holding that “the purposes of

diplomatic immunity forbid service” of a summons addressed to

the Republic of Tunisia on the Tunisian Ambassador to the United

States).

As a leading commentator on diplomatic law states,

Accord B. Sen, A Diplomat’s Handbook of Int’l Law and Practice

107 (3d ed. 1988) (it is “essential to ensure inviolability of the person of the

ambassador in order to allow him to perform his functions without any

hindrance from the government of the receiving state, its ofﬁcials or even

private persons”).

In 1978, Congress enacted the Diplomatic Relations Act, 22 U.S.C.

§ 254a et seq., to implement the Vienna Convention.

See also, e.g., Lafontant, 844 F. Supp. at 130 (upon ﬁnding defendant

enjoyed head-of-state immunity from action, a judgment “quashing service

of process . . . and dismissing the action was promptly entered”); Aidi v.

Yaron, 672 F. Supp. 516, 517 (D.D.C. 1987) (diplomat enjoying immunity

from suit was entitled not only to dismissal of complaint, but also to have

service of process quashed); Vulcan Iron Works v. Polish Am. Mach. Corp.,

472 F. Supp. 77, 78 (S.D.N.Y. 1979) (Vienna Convention and Diplomatic

552 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

“serving process on the diplomat . . . cannot be done by the

authorities of the receiving State because of his inviolability.” Eileen

Denza, Diplomatic Law 265–66 (2d ed 1998).

****

2. Rhanime v. Solomon

In 2002 the United States ﬁled a Suggestion of Immunity in

Rhanime v. Solomon, Civil Action No. 01–1479 (D.D.C.). The

complaint in Rhanime alleged that H.E. Mohamed Benaissa,

the Foreign Minster of the Kingdom of Morroco, entered

into an agreement to injure the plaintiff through defama-

tion. In light of the Suggestion and upon recognition of the

applicability of the head of state immunity doctrine to foreign

ministers, the district court dismissed the claims against

Benaissa.

The full text of the U.S. Suggestion of Immunity in the

Rhanime case is available at www.state.gov/s/l/c8183.htm.

C. DIPLOMATIC AND CONSULAR PRIVILEGES

AND IMMUNITIES

1. Ahmed v. Hoque

In February 2002 the United States ﬁled a Statement of

Interest in Ahmed v. Hoque, No. 01 CIV 7224, U.S. District

Court for the Southern District of New York, in which it set

forth its view that defendants were entitled to diplomatic

Relations Act provide protection from “the jurisdiction and compulsory

process of this court”); Greenspan v. Crosbie, 1976 WL 841 at *6 (S.D.N.Y.

Nov. 23, 1976) (recognizing that service on entity through immune ofﬁcials

“while on a visit to the United States is patently improper”) (citing Hellenic

Lines). But cf. Tachiona v. Mugabe, 169 F. Supp. 2d 259, 306–09 (S.D.N.Y.

2001) (holding that, although president of Zimbabwe was immune from

service in his own capacity, he could be served as agent for political party)

(the United States disagrees with this ruling and is pursuing additional review).

Immunities and Related Issues 553

immunity and that the claims against them should, accord-

ingly, be dismissed. Defendant Abul Hasnat Mohammad

Hoque was a Minister in the Permanent Mission of the

People’s Republic of the State of Bangladesh to the United

Nations and defendant Sabiha Sadiq was his spouse. Plaintiff

alleged that he had worked as a domestic servant in defend-

ants’ home, where he claims to have been subjected to

abusive working conditions and to have suffered an injury

after an altercation with defendant Mrs. Hoque. Plaintiff

sought damages for claims including defendants’ allegedly

holding him in involuntary servitude in violation of the

Thirteenth Amendment, federal statutes, international treaties

and customary international law, and for failure to pay

minimum wage under federal and state law. Relevant excerpts

from the U.S. submission are reproduced below.

The full text of the Statement of Interest is available at

www.state.gov/s/l/c8183.htm.

****

“The questions of the diplomatic status enjoyed by a given

defendant and the immunity to be accorded him are . . . questions

where a determination of the Department of State is binding upon

the court.” Arcaya v. Paez, 145 F. Supp. 464, 467 (S.D.N.Y.

1956), aff’d, 244 F.2d 958 (2d Cir. 1957). Thus, “[t]he courts are

bound by a determination of the Department of State that an alien

claiming diplomatic status is entitled to that status, since this is

construed as a nonreviewable political decision.” United States

v. Enger, 472 F. Supp. 490, 506 n.19 (D.N.J. 1978) (citing In re

Baiz, 135 U.S. 403 (1890); Sullivan v. State of San Paulo, 122

F.2d 355, 357–58 (2d Cir. 1941); United States v. Coplon, 84

F. Supp. 472, 475 (S.D.N.Y. 1949)). See also Abdulaziz v.

Metropolitan Dade County, 741 F.2d 1328, 1331 (11th Cir. 1984)

(“courts have generally accepted as conclusive the views of the

State Department as to the fact of diplomatic status”); Carrera v.

Carrera, 174 F.2d 496, 497–98 (D.C. Cir. 1959) (same); In the

Matter of Terrence K., 135 A.D. 2d 857, 858 (2d Dep’t 1987)

(same for State Department certiﬁcation of status of representative

554 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

of mission to United Nations); Traore v. State, 431 A.2d 96, 98

(Ct. App. Md. 1981) (“It is settled that the State Department’s

determinations concerning an individual’s diplomatic status at a

particular time should ordinarily be accepted by the courts”).

Compare Premier Steamship Corp. v. Embassy of Algeria, 336 F.

Supp. 507, 509 (S.D.N.Y. 1971) (letter from State Department

to attorney containing general statement that embassy is entitled

to immunity is not binding on the court); United States ex rel.

Casanova v. Fitzpatrick, 214 F. Supp. 425, 434 (S.D.N.Y. 1963)

(where State Department certiﬁed that the United States had

not agreed to grant diplomatic immunity to petitioner under the

Headquarters Agreement, certiﬁcation was “evidential but not

conclusive”).

In this action, where the State Department has certiﬁed the

United States’ agreement that Mr. Hoque is entitled to the same

immunity “as the United States accords to diplomatic envoys who

are accredited to it,” and that such immunity includes immunity

for Mrs. Hoque as a household family member, these certiﬁcations

are conclusive as to such status.

ARGUMENT

****

The United States has entered into a number of treaties that

establish its obligation to accord diplomatic immunity to Mr.

Hoque, as a resident representative of Bangladesh to the United

Nations, and to his wife, Mrs. Hoque. These treaties are the United

Nations Charter, 59 Stat. 1031 (1945) (the “UN Charter”), the

Headquarters Agreement, the Convention on the Privileges and

Immunities of the United Nations [“General Convention”], and

the Vienna Convention. These treaties have the same force of law

as statutes, for “[u]nder our constitutional system, statutes and

treaties are both the supreme law of the land, and the Constitution

sets forth no order of precedence to differentiate between them.”

United States v. Palestine Liberation Organization, 695 F. Supp.

1456, 1464 (S.D.N.Y. 1988) (citing U.S. Const., art. VI, cl.2).

****

Immunities and Related Issues 555

In this action, the treaties at issue are the UN Charter, the

Headquarters Agreement, and the General Convention. These

international agreements contain the fundamental provisions that

have been construed and implemented for more than ﬁfty years to

realize the broad objectives set forth in the United Nations Charter.

As demonstrated below, the United States and the international

community have consistently interpreted and applied these

provisions in the same way, and have agreed that these treaties

provide the same level of immunity to representatives to the United

Nations as the United States provides to diplomats accredited to

the United States, as codiﬁed in the Vienna Convention.

As an initial matter, as explained in the House of Representat-

ives Report that accompanied the Joint Resolution authorizing

the President to bring into effect the Headquarters Agreement,

the operation of the United Nations headquarters is inextricably

linked with the question of immunity. H.R. Rep. No. 1093, 80th

Cong., 1st Sess., at 8 (1947) (“1947 House Report”). Under

Article 105 of the UN Charter, inter alia, representatives to the

United Nations shall enjoy in all nations “such privileges and

immunities as are necessary for the independent exercise of their

functions in connections with the Organization.” Id. (quoting UN

Charter, art. 105). “The host nation, however, is under special

responsibility to assure that the arrangements made sufﬁce for

the efﬁcient functioning of the United Nations. The host nation

also is in a special relationship in that it is more deeply involved

domestically in the nature of the arrangements and the manner of

their working.” Id. The Headquarters Agreement sets forth the

agreements on these matters between the United Nations and the

United States as host country. Id.

Before the United States and the United Nations worked out the

Headquarters Agreement, the level of privileges and immunities accorded

to United Nations representatives and personnel was governed by the

International Organizations Immunities Act, 22 U.S.C. §§ 288 et seq.

(“IOIA”), which provides only functional immunity for representatives of

international organizations. The IOIA was passed in December 1945 for the

general purpose of deﬁning the privileges and immunities of international

organizations in the United States, several of which were already in operation

556 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

One of the special arrangements between the United States

and the United Nations in the Headquarters Agreement is that

certain classes of representatives of member states of the United

Nations, namely, resident representatives, will be entitled in the

United States “ ‘to the same privileges and immunities’ as are

accorded to diplomatic envoys accredited to the United States, sub-

ject, however, to ‘corresponding conditions and obligations.’”

1947 House Report, at 11. Thus, the House Report notes, “a

limited group of the more important representatives to the United

Nations will receive the same diplomatic status as their colleagues

in Washington who are accredited to the United States Govern-

ment.” Id. (emphasis added). See also 1947 Senate Report, at 4

(same). As the House Report makes clear, while the UN Charter

did not specify a requirement of diplomatic status for resident

representatives of its members, in the Headquarters Agreement,

“[t]he United States and the United Nations have come to an

agreement that diplomatic status is the necessary formula here. . . .

The premise of the agreement is that the sum total of the privileges

necessarily approximates that of diplomatic status, and the com-

mittee accept this view.” 1947 House Report, at 11–12.

The provision ultimately codiﬁed as Article V, section 15 in

the Headquarters Agreement was thus always understood to pro-

vide diplomatic immunity to resident representatives of members

at that time. 1947 Senate Report, at 3. While it was hoped that the IOIA

would cover the requirements of the United Nations, id., the functional

immunity provided thereunder was apparently not sufﬁcient to meet the

needs of the United Nations. These needs are addressed by the Headquarters

Agreement and the General Convention, both of which must be viewed as

amending any inconsistent provisions in the IOIA with respect to the United

Nations. Id. See also Letter from Ernest A. Gross, Legal Adviser, United

States Department of State to Lawrence H. Smith, Chairman, Subcommittee

No. 6 on International Organizations and International Law of the Committee

on Foreign Affairs, April 28, 1948, reprinted in Committee on Foreign Affairs,

Structure of the United Nations and the Relations of the United States to

the United Nations, 80th Cong., 2d Sess., 509 (1948) (“1948 Legal Adviser

Letter”) (IOIA was enacted by United States on own initiative, and it was to

be anticipated that, after gaining experience with United Nations’ issues, the

ﬁnal arrangements for United Nations immunities might differ from those in

the IOIA).

Immunities and Related Issues 557

of the United Nations, as opposed to the more limited functional

immunity set forth in the IOIA. In this context, the phrase “subject

to corresponding conditions and obligations” found in Article V,

section 15 only makes sense if it refers to corresponding condi-

tions and obligations of other diplomats accredited to the United

States. This understanding is conﬁrmed in the 1948 letter from

the Legal Adviser of the Department of State to a Congressional

Subcommittee:

The background in the negotiation of section 15 of the

headquarters agreement indicates that the phrase “subject

to corresponding conditions and obligations” was inserted

by way of compromise to meet a desire on the part of the

United States that persons covered by section 15 were not

to receive privileges and immunities broader than those

accorded to diplomatic envoys accredited to the President

of the United States, and that like diplomatic envoys, such

persons might be found personne non gratae and made

subject to recall.

1948 Legal Adviser Letter, at 511. This understanding of the phrase

“subject to corresponding conditions and obligations” was quoted

with approval by the International Law Commission, a body of

international legal experts commissioned by the United Nations,

in a discussion of the practice of the United Nations concerning,

among other things, the status, privileges, and immunities of rep-

resentatives of its members. 1967 International Law Commission

Yearbook, Vol. II, at 154, 177–78.

The history and interpretation of the General Convention

further supports the understanding that, since entry into force of

the Headquarters Agreement, resident member state representatives

to the United Nations have been entitled to diplomatic immunities,

subject only to corresponding conditions and obligations attendant

on other diplomats. As discussed above (at 9), Article IV, section

11 of the General Convention extends diplomatic privileges and

immunities to non-resident representatives to the United Nations.

The legislative history accompanying this extension of privileges

and immunities conﬁrms that such immunities were already in

558 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

force with respect to resident representatives, such as Mr. Hoque,

under Article V, section 15 of the Headquarters Agreement, and

that the function of the General Convention was to extend these

immunities to additional classes of representatives.

****

The conferral of all of the beneﬁts of the Vienna Convention

upon permanent representatives to the United Nations was again

conﬁrmed with the passage of the Diplomatic Relations Act of

1978, Pub. L. No. 95–393, codiﬁed at 22 U.S.C. §§ 254a–254e.

The Diplomatic Relations Act incorporated the Vienna Convention

and repealed the prior statute on diplomatic immunity dating back

to 1790, which had been codiﬁed at 22 U.S.C. §§ 252–54, and

which had been viewed as granting full diplomatic immunity to

a wider class of diplomats than those intended to be covered by

the Vienna Convention. See S. Rep. No. 95–958, 95th Cong., 2nd

Sess., at 1–2, reprinted at 1978 U.S.C.C.A.N. 1935, 1935–36

(1978) (“1978 Senate Report”). In a report accompanying the

Diplomatic Relations Act, the Senate Committee on Foreign

Relations noted that “by special statutes, the rights, privileges,

and immunities accorded to diplomats attached to embassies in

Washington are also enjoyed by the permanent representatives of

country missions to the United Nations in New York. . . .” Id.

at 3, 1978 U.S.C.C.A.N. at 1937. The Diplomatic Relations Act

also expressly deﬁned the term “mission” to include:

missions within the Vienna Convention and any mis-

sions representing foreign governments, individually or

collectively, which are extended the same privileges and

immunities, pursuant to law, as are enjoyed by missions

under the Vienna Convention

22 U.S.C. § 254a(3). This deﬁnition was intended to “make[]

clear the intent that the United Nations . . . continue[s], as in the

past, to be considered part of the diplomatic community for

purposes of entitlement to privileges and immunities.” 1978 Senate

Report, at 4, 1978 U.S.C.C.A.N. at 1938. The Senate Committee

speciﬁcally contrasted the inclusion of the United Nations in the

Immunities and Related Issues 559

full scope of the Vienna Convention with the exclusion from the

Vienna Convention of organizations covered by other, more limited

statutory immunities, such as the functional immunity ﬂowing

from the IOIA. Id.

Finally, like the United States and the International Law

Commission, the United Nations views the treaties at issue here

as conferring diplomatic immunities upon representatives of its

members consistent with those set forth in the Vienna Convention.

This is explicitly stated with respect to Article V, section 15 of the

Headquarters Agreement in the 1983 United Nations Juridical

Yearbook:

From the very beginning the United Nations took the

position, in light of Article 105 of the Charter, that those

representatives should enjoy the same privileges and

immunities as are accorded to diplomatic envoys accredited

to the Government of the United States.

****

It follows from Article V, section 15, of the Headquarters

Agreement that the relevant provisions of general inter-

national law on the question of privileges and immunities

also apply to the resident representatives to the United

Nations and their staffs. International law concerning this

question is codiﬁed in the 1961 Vienna Convention on

Diplomatic Relations.

Id. at 222. See also 1986 United Nations Juridical Yearbook,

at 327 (reprint of letter from the United Nations to the deputy

permanent representative of a member state conﬁrming that the

Vienna Convention is applicable to permanent missions to the

United Nations by virtue of Art. V, sec. 15 of the Headquarters

Agreement).

In addition, the United Nations attributes the same

interpretation to Article IV, section 11 of the General Conven-

tion attributed by the United States, namely, that this also provides

diplomatic immunity, extended to a larger class of people than

those covered by the Headquarters Agreement. See 1976 United

560 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Nations Juridical Yearbook, at 224–29. Indeed, the United Nations

has explicitly rejected the notion that the immunity language

of Article IV, section 11 is limited to the ofﬁcial functions of

representatives to the United Nations, notwithstanding the use

of the phrase “while exercising their functions and during their

journey to and from the place of meeting . . .”:

In the view of the Secretary-General, to interpret those

words so as to limit them to times when the person con-

cerned is actually doing something as part of his functions

as a representative, for example speaking in a United

Nations meeting, leads to absurd and meaningless results,

making such an interpretation wholly untenable. The only

reasonable interpretation is the “broad” one, namely

to regard the words concerned as describing the whole

period during which the person involved discharges his

responsibilities.

Id. at 228. The Yearbook further explains: “In other words, ‘while

exercising’ means during the entire period of presence in the

State. . . .” Id.

****

In accordance with the above, courts in this district have

uniformly declined to proceed with actions against representatives

to the United Nations entitled to diplomatic immunity, particularly

when the Department of State has certiﬁed that immunity should

be accorded. See Fireman’s Ins. Co. v. Onwualia, No. 94 Civ.

0095 (PKL), 1994 WL 706994, *3 (S.D.N.Y. Dec. 19, 1994);

York River House v. Pakistan Mission to the United Nations, No.

90 Civ. 2071 (PNL), 1991 WL 206286, *1 (S.D.N.Y. Sept. 27,

1991); Arcaya, 145 F. Supp. at 468, 472–473. See also Terrence

K., 135 A.D. 2d at 858 (same result in New York State court);

767 Third Avenue, 988 F.2d at 297–98; 302–03 (same provisions

of United Nations’ immunity in the UN Charter, Headquarters

Agreement and General Convention that address immunity of

representatives require the United States to accord United Nations

mission with inviolability under the Vienna Convention). This

Court should likewise decline to adjudicate plaintiff’s claims.

Immunities and Related Issues 561

II. Respecting Defendants’ Diplomatic Immunities

Does Not Present A Constitutional Issue

According the appropriate level of immunity to Mr. and

Mrs. Hoque is consistent with customary norms of international

law and does not present a constitutional issue. As an initial matter,

the treaties at issue here do not conﬂict with the Constitution,

international treaties, conventions, or customary international

law. Nothing in the UN Charter, the Headquarters Agreement,

the General Convention, or the Vienna Convention authorizes

involuntary servitude, or any other practice forbidden by the

Constitution. Moreover, even if any constitutional right were

implicated, a guaranteed entitlement to a judicial remedy does not

necessarily follow, particularly where there are other, equally

important, principles at stake.

The diplomatic immunities provided by the Vienna

Convention—made applicable to Mr. and Mrs. Hoque through

Article V, sec. 15 of the Headquarters Agreement and Article IV,

sec. 11 of the General Convention—have long been an integral

component of customary international law, and played an

important role in the nation’s conduct during and after the time

the Constitution was created. See, e.g., The Schooner Exchange v.

McFaddon, 11 U.S. (7 Cranch) 116, 143 (1812) (“it is impossible

to conceive . . . that a Prince who sends an ambassador or any

other minister can have any intention of subjecting him to the

authority of a foreign power . . .” (quoting Emmerich de Vattel);

5 Blackstone’s Commentaries with Notes of Reference to the

Constitution and Laws of the Federal government of the United

States and of the Commonwealth of Virginia, 70 (1969) (reprint

of 1803 ed.) (rights of ambassadors were a matter of universal

concern recognized in English common law and were adopted by

United States). See also Boos v. Barry, 485 U.S. 312, 323 (1988)

(national concern for the protection of ambassadors and foreign

ministers predates the Constitution); Abdulaziz, 741 F.2d at 1330

(precursor to Diplomatic Relations Act of 1978 was enacted in

1790 and “had been in effect unaltered for almost two hundred

years”); Republic of Phillipines v. Marcos, 665 F. Supp. 793, 798

(N.D. Ca. 1987) (noting “rich jurisprudential and statutory history

surrounding the international practice of diplomatic immunity”);

562 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

1978 Senate Report, at 2, 1978 U.S.C.C.A.N. 1936 (1790 pre-

cursor to Diplomatic Relations Act of 1978 was “adapted from

English statues [sic] dating back to the reign of Queen Anne”).

The extension of legal immunity to diplomatic persons is so

embedded in our history and legal structure, it has been held to

apply even if it precludes adjudication of constitutional claims.

For example, “[c]ourts have protected the immunities of diplomatic

ofﬁcers against the constitutional clause guaranteeing the accused

a right ‘to have compulsory process for obtaining witnesses in his

favor.’” Q. Wright, The Control of American Foreign Relations,

162 (1922) (citing cases and authorities). Likewise, where foreign

states and their representatives properly invoke the level of im-

munity to which they are entitled (such types and levels of immunity

can vary), a court may not proceed, even where constitutional

jurisdiction is claimed. See Dexter & Carpenter, Inc. v. Kunglig

Jarnvagsstyrelsen, 43 F.2d 705, 710 (2d Cir. 1930) (constitutional

grant of jurisdiction to the federal courts is necessarily limited by

the right of a sovereign state to plead immunity); Gerritsen v.

Escobar & Cordova, 721 F. Supp. 253 (C.D. Ca. 1988) (dismissing,

on ground of consular immunity, claims that included allegations

of civil rights violations by consular employees); I Blackstone’s

In recognition of these important principles of international law,

Article III of the Constitution implies a special legal status for ambassadors,

stating that while “judicial Power shall extend in all Cases affecting

Ambassadors, other Public Ministers and Consuls; . . . In all Cases affecting

Ambassadors, other Public Ministers and Consuls . . . the supreme Court

shall have original Jurisdiction.” U.S. Const., art. III, sec. 2. In view of the

long-held understanding even at the time the Constitution was framed that

ambassadors are immune from most forms of judicial process, this provision

cannot be viewed as a limit on immunity; rather, it recognizes that

ambassadors have a special status, and in the limited event that they bring

suit, or are attempted to be made subject to suit, they may invoke the original

jurisdiction of the Supreme Court. (Congress has since determined that such

original jurisdiction need not be exclusive, 28 U.S.C. § 1251.) Similarly,

through Section 8(a) of the Diplomatic Relations Act of 1978, 28 U.S.C.

§ 1351, Congress extended the jurisdiction of the District Courts to suits

against diplomatic personnel only “under circumstances where such suits

will lie under the Vienna Convention.” S. Rep. No. 95–1108, 95th Cong.,

2nd Sess., at 5, reprinted at 1978 U.S.C.C.A.N. 1941, 1945 (1978).

Immunities and Related Issues 563

Commentaries on the Laws of England, 376–80 (1916) (reprint

of 1788 ed.) (explaining rationale and practice for the general

understanding that “the rights, the powers, the duties, and the

privileges of ambassadors are determined by the law of nature

and nations, and not by any municipal constitutions”). Cf. Tuck

v. Pan American Health Org., 668 F.2d 547, 549–50 (D.C. Cir.

1981) (dismissing, on ground of immunity under the IOIA,

alleged constitutional and common law claims, including race

discrimination claim, made against international organization).

Indeed, in another context, the Second Circuit has made clear that

a cause of action that would have been altogether barred by the

immunities required by customary international law at the time of

the Constitution’s creation cannot be viewed as a Constitutional

right. See Ruggiero v. Compania Peruna de Vapores “Inca Capac

Yupanqui”, 639 F.2d 872, 878–81 (2d Cir. 1981) (Seventh

Amendment jury trial right does not apply to cases brought against

a foreign sovereign, as no suit at all could have been brought

against such sovereign in 1791 due to sovereign immunity).

Similarly, neither the Alien Tort Claims Act, 28 U.S.C. § 1350

(“ATCA”), nor international human rights law, abrogates properly

asserted diplomatic immunities. See Tachiona, 159 F. Supp. 2d at

297 (dismissing on grounds of head-of-state immunity claims under

the ACTA, Torture Victim Protection Act, 28 U.S.C. § 1350 note,

§ 2(a) (“TVPA”), and norms of international human rights

law); LaFontant v. Aristide, 844 F. Supp. 128 (E.D.N.Y. 1994)

(dismissing on grounds of head-of-state immunity claims under

the Constitution, ATCA, TVPA, and customary international law).

See also Aidi v. Yaron, 672 F. Supp. 516, 518 (D.D.C. 1987)

(expressing doubt that defendant’s alleged status as international

law criminal could abrogate his diplomatic immunity for purposes

of claims of personal injury and wrongful death of relatives killed

at refugee camps in Beirut, Lebanon). Indeed, the seminal Second

Circuit case that is widely viewed as revitalizing the ATCA in

recent times, Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980),

expressly noted that the defendant in that action did not claim

diplomatic immunity. Id. at 879. See also Kadic v. Karadzic, 70

F.3d 232, 247–48 (2d Cir. 1996) (permitting ATCA action to

proceed based, in part, on communications from State Department

564 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

and United Nations conﬁrming that defendant did not have

immunity from suit or legal process).

In view of the above, the claims against Mr. and Mrs. Hoque

must be dismissed, regardless of whether plaintiff purports to

invoke the Constitution, the ATCA, and/or customary norms of

international law. This result is no different from that which stems

from many other long-standing immunity doctrines that operate

to bar adjudication of constitutional claims against government

actors within their spheres of immunity. See, e.g., Federal Deposit

Insurance Corp v. Meyer, 510 U.S. 471, 484–86 (1994) (United

States cannot be sued absent waiver of sovereign immunity,

and there is no such waiver for constitutional torts); Imbler v.

Pachtman, 424 U.S. 409, 410 (1976) (prosecutors have absolute

immunity from suit claiming constitutional violations); Pierson

v. Ray, 386 U.S. 547, 553–554 (1967) ( judges have absolute

immunity from suit claiming constitutional violations).

It should be noted that the Vienna Convention provides in no

uncertain terms that despite their immunity, diplomats are under

an obligation to follow the laws of the receiving State. Tabion,

877 F. Supp. at 293 (citing Vienna Convention, Art. 41). While

a diplomat’s obligations to respect the laws of a host country

cannot be judicially enforced where immunity has not been waived,

the United States takes very seriously allegations of abuses of

diplomatic privilege, and has both formal and informal means of

obtaining compliance through the diplomatic process. Wood Decl.,

¶ 7. As a formal matter, in certain circumstances, not present

here, the State Department may request that the sending state

waive the immunity of the diplomat. The General Convention

makes clear that “[p]rivileges and immunities are accorded to the

representatives of Members not for the personal beneﬁt of the

individuals themselves, but in order to safeguard the independent

exercise of their functions in connection with the United Nations.

Consequently a Member not only has the right but is under a duty

to waive the immunity of its representative in any case where in

the opinion of the Member the immunity would impede the course

of justice. . . .” General Convention, Art. IV, sec. 14. If a waiver

is not granted by the sending state, the United States also has the

option—in consultation with the United Nations, as the United

Immunities and Related Issues 565

Nations is technically the “receiving” entity, see 1986 United

Nations Juridical Yearbook, at 320–21—to ask that such diplomat

be removed from the country. See Headquarters Agreement,

Article IV, sec. 13 (in case of abuse of privileges and immunities in

activities outside a representative’s ofﬁcial capacity, the United

States retains the ability to exercise customary removal proced-

ure applicable to diplomatic envoys accredited to United States);

General Convention, United States Reservation No. 2 (same);

Vienna Convention, art. 9(1) (procedure for declaring diplomat per-

sona non grata). See also 1970 Executive Report, at 10 (testimony

of Ambassador Charles W. Yost, U.S. Permanent Representative

to the United Nations regarding the United States’ right to expel

United Nations representatives); Wood Decl., ¶ 15. These are

examples of the “corresponding conditions and obligations”

attendant upon the privileges and immunities of representatives to

the United Nations and diplomats accredited to the United States.

Moreover, short of formal measures, which are not always

appropriate, the State Department can examine a complaint and,

if warranted, mediate that dispute through the mission to the United

Nations. Wood Decl., ¶ 11. While use of the State Department’s

“good ofﬁces” for these purposes is voluntary for all concerned

and cannot guarantee any particular result, in many instances,

bringing the matter to the mission’s attention, and focusing on it

as a diplomatic matter, may ultimately induce voluntary compliance.

Wood Decl., ¶ 12. See also 767 Third Avenue, 988 F.2d at 303

(noting that diplomatic efforts and pressure were extraordinarily

successful at getting Zaire to pay back rent owed by its mission).

The State Department has also taken diplomatic measures aimed

at preventing abusive working conditions for domestic servants

that come into this country to work for diplomats or employees of

international organizations. See Wood Decl., ¶¶ 8–10.

III. Failure of the United States to Respect

Diplomatic Immunities Could Have Serious

Consequences in the International Community

As this lawsuit illustrates, diplomatic immunities can prevent

persons allegedly wronged by those entitled to such immunities

566 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

from obtaining court review of their allegations. The United States

takes seriously allegations of abuse of diplomatic privileges, and

does not intend to downplay the potential negative consequences

to individuals that can result from the requirement that the United

States uphold its international obligations in this regard. Indeed,

as discussed above (at 26–28), the State Department’s diplo-

matic powers provide a means to attempt to mitigate such effects

where appropriate. However, even in the face of potential adverse

effects, the diplomatic immunities of United Nations represent-

atives must be respected because they are vital to the conduct of

peaceful international relations. Respecting diplomatic obliga-

tions is a fundamental component of harmony and comity in the

international community. Wood Decl., ¶ 16. The importance of

standing behind these universal norms of international law “is

even more true today given the global nature of the economy and

the extent to which actions in other parts of the world affect our

own national security.” Boos v. Barry, 485 U.S. at 323. The

conduct of the United States with respect to the United Nations

and representatives of its members in this country is a particularly

visible portion of the international relations of the United States.

Wood Decl., ¶ 17. The United Nations observes the degree and

manner of the United States’ compliance with its diplomatic

obligations, and a failure by the United States to abide by its

international responsibilities can damage the relationship between

the United States and the United Nations. Wood Decl., ¶ 18.

It should also be noted that, as a leading scholar on diplo-

matic law has explained, “the real sanction of diplomatic law is

reciprocity. Every State is both a sending and a receiving State. Its

own representatives abroad are hostages and even in minor matters

their treatment will depend on what the sending State itself

accords.” Eileen Denza, Diplomatic Law 2 (1976). This is equally

true for representatives of other countries accredited to this country,

and for representatives of other countries that are present here

because they are accredited to the United Nations. See 767 Third

Avenue, 988 F.2d at 296 (applying diplomatic protections under

the Vienna Convention to Permanent United Nations Mission of

the Republic of Zaire). In this context, the reason to respect

diplomatic immunity is not “a blind adherence to a rule of law in

Immunities and Related Issues 567

an international treaty, uncaring of justice at home, but that by

upsetting existing treaty relationships American diplomats abroad

may well be denied lawful protection of their lives and property to

which they would otherwise be entitled.” Id.

These concerns are central to this case. If the United States is

prevented from carrying out its international obligations to protect

the privileges and immunities of representatives to the United

Nations, adverse consequences may well occur. Wood Decl., ¶ 19.

At a minimum, the United States may hear objections for failing

to honor its obligations not only from the Bangladesh Mission,

but also from other United Nations member countries whose

representatives derive diplomatic immunity from the same sources

relied upon by Mr. and Mrs. Hoque in this action, and from the

United Nations itself. Id. Indeed, a ruling by this Court limiting

the diplomatic immunities of representatives to the United Nations

in this country could, if applied generally, lead to erosion of the

necessary and respected protections accorded by diplomatic

immunities. Wood Decl., ¶ 20. As noted by the Second Circuit in

767 Third Avenue, “Recent history is unfortunately replete with

examples demonstrating how fragile is the security for American

diplomats and personnel in foreign countries; their safety is a matter

of real and continuing concern.” 988 F.2d at 301.

****

2. Vienna Convention on Diplomatic Relations:

Saudi Arabian Embassy Documents

On December 11, 2002, William H. Taft, IV, Legal Adviser of

the Department of State, appeared before the U.S. House

of Representatives Committee on Government Reform,

to address issues related to the Vienna Convention on

Diplomatic Relations as applied to the correspondence and

archives of an embassy. The committee convened the hearing

to address the refusal of the Saudi Arabian embassy to comply

with committee subpoenas for archives and documents of

the embassy that had been passed to a third party, based

on Saudi Arabia’s claim that the documents were entitled

568 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

to protection under the Vienna Convention on Diplomatic

Relations. The committee believed such requested documents

could potentially further the investigation of kidnapped

Americans in Saudi Arabia. The following excerpts from

Mr. Taft’s statement discuss the importance of the protection

by the Vienna Convention to the interests of the United States

abroad.

The full text of Mr. Taft’s testimony is available at

www.state.gov/s/l/c8183.htm.

****

In analyzing the Convention’s proper interpretation, we must

also weigh the legitimate interests of the United States overseas.

We too rely heavily on the protections of the Vienna Convention.

As the Committee knows, the Convention protects our embassies

from intrusion, our diplomats from arrest, and our communications

and archives from interference. Our diplomats and embassies are

on the front lines in the ﬁght against global terrorism. As we

analyze the precise questions the Committee has raised, we must

remain cognizant of the overall importance of the Convention

to U.S. interests. U.S. agencies must therefore consider whether

lack of protection under the Convention of all documents and

information such as are sought by the Committee here would

adversely affect our ability to carry out our responsibilities overseas.

Let me give you some concrete examples. The State Department

uses local nationals and personnel to ﬁll some positions in our

embassies. Unlike U.S. citizen employees sent overseas by the

Department, local nationals do not generally have immunity from

compulsory process, so they must appear in a court or elsewhere

if they receive a subpoena. Our research to date indicates that, in

a number of instances, the Department has in fact asserted that

the ofﬁcial information in the possession of a local national working

in the embassy is “archival” under the Vienna Convention and

thus inviolable. Our experience has been that when the local

national appears and declines to answer questions about ofﬁcial

activities, the issue is not pursued in that way. If countries take

the view that these local personnel working with the U.S.

Immunities and Related Issues 569

Government could be compelled to release information otherwise

protected as Embassy archives, we would object strongly. And we

believe Congress would expect us to do so.

Some of the same concerns extend to situations where we are

relying on outside contracting. For example, the Department uses

outside contractors for embassy construction. In such situations,

cleared U.S. contractors and personnel build our embassies in

sensitive posts working with information we provide them. To the

best of our knowledge, up to the present, there has never been a

situation in which foreign authorities have pressed one of these

contractors to produce such information. If that were to happen,

we would work vigorously in an attempt to protect the information.

We would look seriously at asserting a claim of privilege, or

inviolability, under the Vienna Convention. We would also consider

other possible privileges and protections, such as state secrets,

that might apply to these and other situations.

Examples such as these highlight why we are proceeding

carefully in developing our conclusions.

On those rare occasions when U.S. Embassy representatives

have been asked to appear before foreign legislatures, we have

declined to do so on grounds of immunity under the Vienna

Convention. On the same basis, U.S. embassies do not, as a matter

of general practice, provide formal documentary submissions

to foreign legislatures. The more information we require from

embassies and their contractors, the more difﬁcult it will clearly

be for the United States to avoid reciprocal requests overseas.

It is in the context of these practices and functions of the

United States Government that we analyze the Vienna Convention

issues presented by the Committee’s requests. Our starting point,

shared we understand by the Committee and the Saudi government,

is that embassy information and documentation in the embassy is

inviolable and immune from process and similarly information in

the hands of accredited diplomats and other embassy personnel is

protected. Under Article 24 of the Convention, embassy archives

are immune “wherever they may be” and “at any time.” Under

Article 27, embassy correspondence is “inviolable” and the state

in which the embassy is located has an obligation to respect these

rights and to protect free communication of the embassy. In this

570 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

respect the Vienna Convention binds the entire U.S. government,

not just the executive branch.

The issue the Committee posed, as we understand it, is whether

these materials retain that immunity under the Convention when

they are given to, or relied upon by, third parties. As I have noted,

this is a novel and complex question. In contemplating the reach

of the Convention, we would need to consider a number of

issues, including among others: what may constitute “archives”

(an undeﬁned term in the treaty), exactly what documents

and other information may be encompassed in a demand for

production, and the relationship of the person who holds the

information to the embassy.

One of the difﬁculties in resolving the reach of the Vienna

Convention in this context is that it has rarely been tested by

courts here or abroad. There is little reported practice. So the

mere fact that archives have passed to a third party does not

resolve the issue.

****

D. INTERNATIONAL ORGANIZATIONS

1. Immunity from Suit of the United Nations

On October 15, 2002, the United States ﬁled a Statement of

Interest in Kamya v. United Nations, No. 02–01176, U.S.

District Court for the District of Columbia, expressing its

view that, absent an express waiver, the United Nations is

immune from suit in the courts of the United States. The

complaint in Kamya related to a dispute between the United

Nations and two different groups of claimants, both of which

alleged to have owned premises in Mogadishu, Somalia,

that the United Nations used between 1993 and 1995. The

dispute was submitted to an arbitral tribunal, which issued a

monetary award to the claimants. The United Nations refused

to make payment pursuant to the award until the claimants

agreed on the appropriate distribution of the award or entered

into an escrow agreement. The award beneﬁciaries then ﬁled

Immunities and Related Issues 571

suit in U.S. federal court to compel payment. Excerpts from

the U.S. submission are reproduced below.

The full text of the Statement of Interest is available at

www.state.gov/s/l/c8183.htm.

****

The Convention on the Privileges and Immunities of the United

Nations (“U.N. Convention”) affords the U.N. absolute immunity

absent express waiver. Accordingly, the jurisdictional question

here is whether, under the U.N. Convention, the U.N. has expressly

waived its immunity with respect to this case. If it has not, the

Court lacks subject matter jurisdiction.

Under the U.N. Convention, the U.N. has absolute immunity

“from every form of legal process except insofar as in any particular

case it has expressly waived its immunity [, and] . . . no waiver

of immunity shall extend to any measure of execution.” U.N.

Convention art. II, § 2 (emphasis added). Accordingly, unless there

has been an express waiver by the U.N., suits against the U.N.

must be dismissed for lack of subject matter jurisdiction. See, e.g.,

De Luca v. United Nations Organization, 841 F. Supp. 531, 533

(S.D.N.Y. 1994), aff’d 41 F.3d 1502 (2d Cir.) (table), cert. denied,

514 U.S. 1051 (1995); Boimah v. United Nations Gen. Assembly,

664 F. Supp. 69, 71 (E.D.N.Y. 1987). Importantly, “court[s] should

be slow to ﬁnd an ‘express’ waiver” of immunity. Boimah, 664

F. Supp. at 72; cf. Mendaro v. World Bank, 717 F.2d 610, 617

(D.C. Cir. 1983) (noting that “courts should be reluctant to

ﬁnd that an international organization has inadvertently waived

immunity when the organization might be subjected to a class of

suits which would interfere with its functions.”).

It is true that foreign states that agree to arbitrate are sometimes

held to have impliedly waived their sovereign immunity under the

Foreign Sovereign Immunities Act, 28 U.S.C. § 1602, et seq.

(“FSIA”), which strips foreign states of their immunity if a state

“has waived its immunity either explicitly or by implication,” 28

U.S.C. § 1605(a) (1) (emphasis added). But, it is immaterial whether

arbitration agreements would constitute an implied waiver of

sovereign immunity under the FSIA, because the U.N. Convention

572 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

—not the FSIA or any other statute or treaty—is the governing

law in this case. The U.N. Convention is speciﬁcally tailored to

address the immunities of the U.N. and its ofﬁcers. It speciﬁes, for

example, the immunities to be accorded to “[t]he United Nations,”

Art. II, § 2; “the Secretary-General” of the United Nations,”

Art. V, § 19; and the “[o]fﬁcials of the United Nations,” Art. V,

§ 18. By contrast, the FSIA establishes the immunities of “foreign

state[s]” generally. 28 U.S.C. § 1604. The immunity standards of

this more generalized law cannot override the U.N. Convention’s

treatment of the DELETE RETURN “narrow, precise, and speciﬁc

subject” of the immunities of the U.N. Radzanower v. Touche

Ross, 426 U.S. 148, 153 (1976) (statute dealing with speciﬁc subject

is not submerged by a statute covering a “more generalized

spectrum,” absent “clear intention otherwise”) (citation omitted).

Thus, a court would not need to decide whether the activities at

issue in this case amount to an implied waiver under the standards

of the FSIA. Cf. De Luca, 841 F.Supp. at 533 n.1 (declining to con-

sider whether FSIA exceptions applied, where the U.N. Convention,

“which contains no such exceptions,” shielded U.N. from suit).

****

2. U.S. International Organizations and Immunities Act

In August 2002 Secretary of State Colin Powell conﬁrmed

acceptance of formulations concerning meetings to be hosted

in the United States in a letter to the Director of Legal

Affairs of the International Atomic Energy Agency (“IAEA”),

Johan Rautenbach. Secretary Powell stated that all ofﬁcials

and individuals employed by the IAEA and participants

representing Member States ofﬁcially designated to attend

hosted meetings in the United States would be equally

granted privileges and immunities under the International

Organizations and Immunities Act.

The full text of Secretary Powell’s letter and the model text

for IAEA inquiry to the United States about hosting a meeting

or training course, are available at www.state.gov/s/l/c8183.htm.

****

Immunities and Related Issues 573

I am pleased to advise you that the United States accepts the

formulations concerning meetings to be hosted in the United States

that were agreed at the meeting between you and Dr. Michael

D. Rosenthal on 2002–07–23, including the editorial improve-

ments agreed later. . . .

****

We agree that all the categories of participants as now described

in the amended text fall within the deﬁnitions of persons to whom

privileges and immunities are extended under the U.S. International

Organizations Immunities Act (IOIA). I note that the terms of the

arrangements provide for the International Atomic Energy Agency

(IAEA) to communicate to the United States, in the ﬁrst instance,

the Member States invited to participate and, subsequently, to

inform the United States Government promptly of all its ofﬁcials

and individuals employed by it and participants representing

Member States ofﬁcially designated to attend the meeting.

I can conﬁrm that, in view of the agreed new formulations,

the arrangements would be implemented by the United States in a

way that all of the persons noted above that participate in Agency

meetings would be equally granted privileges and immunities under

the IOIA.

****

E. THE ACT OF STATE DOCTRINE

Under the act of state doctrine as developed by courts in the

United States, U.S. courts generally abstain from sitting in

judgment on acts of a governmental character done by a

foreign state within its own territory and applicable there.

The doctrine does not involve immunity of a state or ofﬁcial

but must instead be separately asserted. See Restatement of

the Foreign Relations Law of the United States (3d ed. 1986),

§ 443. The most recent Supreme Court decision on the act

of state doctrine is Kirkpatrick & Co. v. Environmental Tectonics

Corp., 493 U.S. 400 (1990). Because the concepts are often

discussed in cases involving issues of immunities, act of

state is addressed here.

574 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

On August 2, 2002, the U.S. Court of Appeals for the

District of Columbia Circuit held that a government’s refusal

to issue an export license and its expropriation of the shares

of a corporation and conversion of the corporation’s property

were sovereign acts and that the act of state doctrine barred

adjudication of a lawsuit based on those acts. World Wide

Minerals v. Republic of Kazakhstan, 296 F. 3d 1154 (D.C. Cir.

2002). In that case, World Wide Minerals Ltd., a Canadian

company, entered into agreements with the Republic of

Kazakhstan, pursuant to which the plaintiff managed one

of Kazakhstan’s major uranium complexes and loaned

Kazakhstan several million dollars to fund the restoration

of the facility. World Wide alleged that Kazakhstan agreed,

among other things, to permit World Wide to export

Kazakhstan’s uranium and that Kazakhstan breached its

agreements by failing to issue to it a uranium export license

and by seizing its assets in Kazakhstan. The court concluded

that the relief sought on these claims would require it to

examine the legality of the government of Kazakhstan’s denial

of licenses to export uranium, and that issuance of such

licenses (and regulation of natural resources) was a sovereign

act for which the policies underlying the act of state doctrine

support its application. Similarly, citing Banco Nationale de

Cuba v. Sabbatino, 376 U.S. 398, 401 (1964), the court found

expropriation of the corporation’s property to be the “classic

act of state addressed in the case law.”

See also the following cases discussed elsewhere in this

volume.

(i) Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116 (C.D. Cal.

2002), discussed in chapter 6.G.3.a.(2). As to defendant’s

act of state arguments, the court held that claims based

on war crimes (illegal blockage, torture, rape, and pillage)

allegedly committed by the government of Papua New

Guinea could not support a claim of “act of state,” noting

that they did not constitute “legitimate warfare.” However,

the court dismissed claims alleging environmental

damage and race discrimination because adjudication of

those claims would require review of the validity of “acts

Immunities and Related Issues 575

of state.” The U.S. Statement of Interest informing the

district court that continued adjudication of this lawsuit

“would risk a potentially serious adverse impact on the

[Bougainville] peace process, and hence on the conduct

of [United States] foreign relations” is set forth in Digest

2001 at 337–339.

(ii) Doe v. ExxonMobil Corp., No. 01-VC-1357 (D.D.C.), dis-

cussed in Chapter 6.G.3.d.(2). The U.S. Statement of

Interest ﬁled in that case provided the views of the

Department of State that adjudication of the lawsuit

would risk a “potentially serious adverse impact on sign-

iﬁcant interests of the United States, including interests

related directly to the ongoing struggle against inter-

national terrorism” and might “also diminish our ability

to work with the government of Indonesia . . . on a variety

of important programs, including efforts to promote

human rights in Indonesia.”

(iii) Doe v. Liu Qi and Plaintiff A v. Xia Deren, C 02-0672 and

C 02-0695, respectively, discussed supra, A.2.a. A letter

from William H. Taft, IV, Legal Adviser of the Department

of State, ﬁled with the U.S. District Court for the Northern

District of California in that case, observed:

We believe . . . that U.S. courts should be cautious

when asked to sit in judgment on the acts of foreign

ofﬁcials taken within their own countries pursuant to

their government’s policy. This is especially true when

(as in the instant cases) the defendants continue to

occupy governmental positions, none of the operative

acts are alleged to have taken place in the United

States, personal jurisdiction over the defendants

has been obtained only by alleged service of process

during an ofﬁcial visit, and the substantive jurisdic-

tion of the court is asserted to rest on generalized

allegations of violations of norms of customary inter-

national law by virtue of the defendants’ govern-

mental positions. Such litigation can serve to detract

from, or interfere with, the Executive Branch’s conduct

of foreign policy.

576 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

F. OTHER ISSUES OF STATE REPRESENTATION

1. Location of Diplomatic and Consular Buildings

In March 2001 the United States, as intervening defendant,

moved for summary judgment and opposed plaintiffs’ motion

for summary judgment in 2120 Kalorama Rd, Inc. v. District of

Columbia Foreign Missions Act-Board of Zoning Adjustment,

Civil Action No. 00–1568. At issue in that case was the

decision of the District of Columbia Foreign Missions Act–

Board of Zoning Adjustment (“the Board”) not to disapprove

an application ﬁled on behalf of the embassy of the Republic

of Benin to permit the location of a chancery in Washington,

D.C. In its memorandum in support of summary judgment,

the United States argued that the district court should afﬁrm

the Board’s decision since it was consistent with both the

Foreign Missions Act (“FMA”) and the District of Columbia

Administrative Procedure Act (“DCAPA”). After concluding

that the Board’s decision was based upon substantial evid-

ence in the record, the court afﬁrmed the decision and

granted summary judgment on behalf of the defendants.

For a more detailed discussion of this case and for excerpts

from the U.S. memorandum, see Digest 2001 at 540–547.

The full text of the district court’s order and mem-

orandum are available at www.state.gov/s/l/c8183.htm.

2. Real Property Taxes

a. Libyan mission tax lien

The U.S. Department of State informed the City of New

York, Department of Finance, that it could not proceed with

a tax lien sale against property in New York belonging to the

Permanent Mission of the Socialist People’s Libyan Arab

Jamahiriya to the United Nations (“Libyan Mission”). On

April 9, 2002, David P. Stewart, Assistant Legal Adviser for

Diplomatic Law and Litigation, U.S. Department of State,

wrote to the New York Department of Finance requesting

Immunities and Related Issues 577

immediate action to terminate the tax lien sale on the Libyan

Mission and to withdraw the tax notice on the property. As

set forth in the excerpts from the letter set forth below,

pursuant to the Libyan Sanctions Regulations and the Vienna

Convention on Diplomatic Relations, the Libyan Mission’s

property could not be subjected to the New York tax lien

sale.

The full text of Mr. Stewart’s letter is available at

www.state.gov/s/l/c8183.htm.

****

As the City of New York is aware, under article 22(3) of the

Vienna Convention on Diplomatic Relations (“VCDR”), applicable

to Missions to the United Nations under article 105, para. 2,

of the United Nations Charter, and article V, section 15, of the

United Nations Headquarters Agreement, the “premises of the

mission . . . shall be immune . . . from attachment or execution.”

The prohibition against attachment precludes a tax lien against

the Libyan Mission’s property, and necessarily also the sale of

such a lien. This treaty obligation of the United States, of course,

extends to state and local governments.

In addition, as a result of economic sanctions imposed by the

United States on Libya, the tax lien sale contemplated in the tax

notice is prohibited unless it is authorized by the U.S. Department

of the Treasury. Pursuant to the authority of the International Emer-

gency Economic Powers Act (“IEEPA”), 50 U.S.C. §§ 1701–06,

the President has broad powers to “block” the assets of foreign

governments and to prohibit economic transactions of any kind

concerning such assets. Acting under IEEPA and other authorities,

on January 8, 1986, President Reagan ordered “blocked all prop-

erty and interests in property of the Government of Libya . . .

in the United States” and authorized the Secretary of the Treasury

to carry out the Order pursuant to IEEPA. Exec. Order No. 12544

(Jan. 8, 1986), 51 Fed. Reg. 1235. Pursuant to this Order, the

Treasury Department, Ofﬁce of Foreign Assets Control, issued the

Libyan Sanctions Regulations, 31 C.F.R. Part 550 (the “Sanctions

Regulations”).

578 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The Sanctions Regulations deﬁne “blocked property” as “any

property in which the Government of Libya has an interest, with

respect to which . . . transfers or . . . other dealings may not be

made or effected except pursuant to an authorization or license.”

31 C.F.R. 550.316. The term “interest,” when used with respect

to property, means “an interest of any nature whatsoever, direct

or indirect.” 1 C.F.R. 550.315. Liens are expressly included

within the scope of the restrictions. 31 C.F.R. 550.314. The

term “transfer” is deﬁned broadly, to include “the creation or

transfer of any lien; the issuance, docketing, ﬁling, or the levy of

or under any judgment, decree, attachment, injunction, execution,

or other judicial or administrative process or order. . . .” 31 C.F.R.

550.313. Unless licensed by the Department of the Treasury, Ofﬁce

of Foreign Assets Control, “no property or interests in property

of the Government of Libya that are in the United States . . . may

be transferred . . . or otherwise dealt in.” 31 C.F.R. 550.209(a).

Finally, again unless licensed or otherwise authorized, “any

attachment, judgment, decree, lien, execution, garnishment or other

judicial process-is null and void with respect to any property in

which [after January 8, 1986] there existed an interest of the

Government of Libya.” 31 C.F.R. 550.210(e).

Under the Sanctions Regulations, property in which the

Government of Libya has an interest, including its UN Mission

property, is blocked, and is not subject to attachment or lien,

unless licensed by the Ofﬁce of Foreign Assets Control. Moreover,

any unlicensed transaction, such as the tax lien sale contemplated

in the tax notice to the Libyan Mission, may be deemed “null and

void” pursuant to the Sanctions Regulations. Because the purported

“tax lien sale” is prohibited under federal law, the City of New

York should immediately withdraw the tax notice and terminate

any procedures thereunder.

Finally, the City of New York should be aware that the Foreign

Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602–11 (“FSIA”),

is the “sole basis for obtaining jurisdiction over a foreign state in

our courts.” Argentine Republic v. Amerada Hess, 488 U.S. 428

(1989). The FSIA provides speciﬁc rules for service of process on

foreign states (28 U.S.C. § 1608), and provides personal jurisdiction

over a foreign state only where service has been effected under

Immunities and Related Issues 579

that section (28 U.S.C. § 1330). The FSIA contains a presump-

tion of sovereign immunity, subject to exceptions speciﬁed in the

statute. See City of Englewood v. Socialist People’s Libyan Arab

Jamahiriya, 773 F.2d 31 (3d

Cir. 1985) (property tax proceedings

against residence of head of Libyan Mission barred by FSIA). In

any proceedings against a foreign government for taxes allegedly

due, the City of New York would need to proceed in accordance

with the FSIA.

Please conﬁrm that the proposed tax lien sale and tax notice

against the premises of the Libyan Mission to the United Nations

have been withdrawn. . . .

b. New York State transfer tax: Egyptian Mission

In response to a request from the Egyptian Permanent

Mission to the United Nations (“Egyptian Mission”), the

United States Department of State provided a letter-opinion

concerning the validity of the Egyptian Mission’s efforts to

secure a refund of the New York State transfer tax paid in

connection with the sale of its premises. In the letter, dated

September 30, 2002, David P. Stewart, Assistant Legal Adviser

for Diplomatic Law and Litigation, U.S. Department of

State, stated that under Article 23 of the Vienna Convention

on Diplomatic Relations, the Egyptian Mission enjoys tax

exemption in the United States with respect to the premises

of the mission. Moreover, the letter stated that the treaty

obligation is binding on states and municipalities. Excerpts

from the letter are set forth below.

The full text of the letter is available at www.state.gov/s/l/

c8183.htm.

We write in response to the request of the Egyptian Permanent

Mission to the United Nations (“Egyptian Mission”) that the

United States Department of State provide this letter-opinion

concerning the validity of the Egyptian Mission’s efforts to secure

a refund of the New York State Transfer. . . . The tax was paid

580 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

by the Egyptian Mission under protest in connection with the sale

of premises of the mission. .

Please be advised that the Egyptian Mission enjoys tax

exemption in the United States with respect to the premises of the

mission under Article 23 of the Vienna Convention on Diplomatic

Relations, made applicable by Article 105 paragraph 2 of the

United Nations Charter and Section 15 of the United States-United

Nations Headquarters Agreement. Article 23 provides as follows:

1. The sending State and the head of the mission shall be

exempt from all national, regional or municipal dues and

taxes in respect of the premises of the mission, whether

owned or leased, other than such as represent payment for

speciﬁc services rendered.

2. The exemption from taxation referred to in this Article

shall not apply to such dues and taxes payable under the

law of the receiving State by persons contracting with the

sending State or the head of the mission.

Under this provision the Egyptian Mission enjoys exemption from

taxes associated with the sale of its mission premises. This treaty

obligation is binding on states and municipalities as well as on

the federal government. United States Constitution, Article VI;

United States of America v. County of Arlington, 702 F.2d 485,

488 (4

Cir. 1983).

The Department understands that New York law relieves a

seller or grantor of liability for the transfer tax where the seller or

grantor is tax-exempt, as was the Egyptian Mission, and in certain

circumstances shifts responsibility for the tax to the non-exempt

buyer or grantee. (See Tax Law 1404(a) & 1405(a)(2), and Codes

of Rules and Regulations of the State of New York 575.9(b) ).

This state law would require a buyer to pay the tax only where

the seller is tax exempt. Because this would cause a buyer to

reduce its purchase price it would effectively deprive the foreign

government of a treaty-based tax exemption. The Department

is of the view that where, as here, implementation of a state

statute acts to deprive a foreign government of a treaty-based tax

exemption by shifting the tax liability to the buyer to avoid the

Immunities and Related Issues 581

tax exempt status of the seller, the statute violates the treaty obliga-

tions of the United States when applied to a foreign government.

Clearly, the statute operates to manipulate the tax liability to the

prejudice of a tax-exempt foreign government seller. Such a result

cannot stand under United States law and treaty obligations. See

generally United States v. City of Glen Cove, 322 F. Supp. 149

(E.D.N.Y.), aff’d, 450 F.2d 884 (2d Cir. 1971).

****

3. Service of Process on Visiting Foreign Ofﬁcials

a. Feng Suo Zhou v. Li Peng

Chinese student activists brought an action in 2000 in the

United States against Li Peng of the People’s Republic of

China, alleging human rights violations arising out of the

1989 Tiananmen Square protests in Beijing. At the time of

the Tienanmen Square incident, Li Peng was premier of the

People’s Republic and subsequently became president of

the National People’s Congress. The District Court for the

Southern District of New York held that the defendant had

been properly served with process during a visit to New

York to attend a United Nations-sponsored event, when a

member of his U.S. Department of State Diplomatic Security

Detail accepted a copy of the summons and complaint

pursuant to an order of a U.S. district judge which directed

that “service shall be accomplished by delivering a copy of

the summons and complaint to any employee of the United

States government or its agencies who is guarding defendant

Li Peng during his stay in New York. Said employee is to

forthwith provide said defendant with the said copy of the

summons and complaint during defendant’s stay in New

York.” 2002 U.S. Dist. LEXIS 14648.

In June 2001, the United States ﬁled a Statement of

Interest asserting that such service was improper for several

reasons, including lack of actual notice, interference with the

security functions performed by the protective detail, and

infringement upon the executive branch’s responsibility for

582 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

foreign affairs. See Digest 2001 at 550–553. On August 8,

2002, the district court held that the order in question

satisﬁed due process because it was reasonably calculated

to give Premier Li Peng actual notice of the action alleging

human rights violations. Zhou v Li Peng, 2002 U.S. Dist.

LEXIS 14648 (S.D.N.Y. 2002). Excerpts from that unpublished

opinion follow (footnotes and citations omitted).

****

From 1988 until 1998, defendant, Li Peng, was the Premier of

the People’s Republic of China. Under the constitution of the

People’s Republic of China, the Premier, as the head of the State

Council, holds the power “to alter or annul inappropriate orders,

directives and regulations issued by the ministries or commissions”

and “to alter or annul inappropriate decisions and orders issued

by local organs of state administration at various levels.” Since

1998, defendant has served as President of the National People’s

Congress, which oversees the security forces and the judicial system

of the People’s Republic of China.

Plaintiffs allege that Li Peng was responsible for summary

execution, arbitrary detention, torture, and other torts that resulted

in thousands of casualties. Speciﬁcally, the complaint asserts that

Li Peng’s proclamation of martial law on May 20, 1989, led to

orders authorizing the use of force against the Tiananmen Square

protesters. . . .

****

The sole issue before this Court is whether plaintiffs have

effectuated service on defendant, Li Peng. Plaintiffs aver that service

was effectuated on defendant in two different ways: (1) by delivery

of the summons and complaint to Special Agent Eckert of the

Department of State Security Detail protecting Li Peng, pursuant

to the Part I Order. . . .

****

The Government concedes that a copy of the summons and

complaint was delivered to Special Agent Eckert, an employee of

Immunities and Related Issues 583

the United States Government who was guarding Li Peng.

However, the Government argues that service is complete under

the Part I Order only when an employee of the United States

guarding Li Peng actually delivered a copy of the summons and

complaint to Li Peng. Moreover, the Government asserts that

reading the Part I Order to mean that service is complete once the

process was delivered to an employee of the United States guarding

Li Peng, would raise constitutional issues and spawn policy

problems for the Government.

To satisfy the requirements of Due Process under the Con-

stitution, service must provide notice reasonably calculated, under

all the circumstances, to apprise interested parties of the pendency

of the action and afford them an opportunity to present their

objections. The notice must be of such nature as reasonably to

convey the required information, and it must afford a reasonable

time for those interested to make their appearance. But if with due

regard for the practicalities and peculiarities of the case these

conditions are reasonably met the constitutional requirements

are satisﬁed.

****

Here, after concluding that all other service methods would be

impracticable, plaintiffs sought a court-ordered method of service,

which was utilized successfully in a similar action. In Kadic v.

Karadzic, 70 F.3d 232, 246 (2d Cir. 1995), there was no question

regarding the sufﬁciency of service because the summons and

complaint was actually delivered to the defendant by the United

States Security Detail who previously accepted the summons and

complaint pursuant to a court order. Kadic, 70 F.3d at 246–47.

****

This Court ﬁnds that service on Li Peng was complete under

the Part I Order when plaintiffs’ process server delivered a copy

of the summons and complaint to Special Agent Eckert. A plain

reading of the Part I Order supports this conclusion. The Part I

Order states, “service shall be accomplished by delivering a

copy of the summons and complaint to any employee of the United

States government or its agencies who is guarding defendant

584 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Li Peng during his stay in New York.” Then in a separate sentence

it directs “[s]aid employee is to forthwith provide said defendant

with the said copy of the summons and complaint during

defendant’s stay in New York.” Nothing in the Part I Order

intimates that service is not complete until the Security Detail

delivers the documents to Li Peng. To the contrary, the ﬁrst

sentence of the Part I Order speciﬁes how service is to be

“accomplished,” while the second sentence embodies a separate

direction to the Security Detail, entirely beyond the orbit of the

process server.

****

. . . . Requiring plaintiffs to deliver a copy of the summons

and complaint to Li Peng’s United States Government Security

Detail satisﬁes the requirements of due process since it was

reasonably calculated to give actual notice of this lawsuit to

defendant. Neither plaintiffs nor the Part I judge had any reason

to believe that the United States Government employee to whom

the summons and complaint were handed, would not in turn take

the appropriate steps to deliver those documents to Li Peng. In

Kadic that is precisely what happened. This Court, thus, ﬁnds that

this method of service was reasonably calculated to give defendant

actual notice of the action at the time Judge Casey signed the order.

****

The Department of State’s argument that its protective detail

are not agents of the protectee for purposes of accepting service

and delivering papers to the protectee are unavailing. The Part I

Order does not require service on an agent of Li Peng; rather, it

required service on those law enforcement ofﬁcers closest to Li Peng

and accessible to plaintiffs because of the security net around

the former Chinese Premier. The purpose of plaintiffs’ ex parte

motion for an order authorizing an alternate means of service is

so they can effect service in a non-traditional way, which may

include serving persons who are not agents of the defendant for

accepting service. See Harkness, 689 N.Y.S.2d at 587 (“CPLR

308(5) gives a court ‘broad discretion to fashion proper methods

of notice in unpredictable circumstances.”

Immunities and Related Issues 585

Although the Department of State’s Security Detail’s function

is to provide security and not serve process, a tangential effect of

their existence should not be the immunization of protectees from

service of process. If a protectee, like Li Peng, wishes to assert a

immunity defense or raise any issues concerning human rights law

or the power to conduct foreign relations, those arguments should

be presented in a court of law. The physical presence of a Security

Detail does not insulate a protectee from the judicial process or

empower the Department of State to determine unilaterally who

among its protectees can be served with legal process. Finally, the

Government’s argument is further undermined by the axiomatic

principle that service is authorized on non-agents of a defendant

by the Federal Rules and the CPLR. See, e.g., Fed.R.Civ.P. 4(e)(2)

(permitting service on person of suitable age and discretion); N.Y.

C.P.L.R. 308(2) (same).

****

This Court is mindful of the difﬁcult task the Department of

State faces in protecting foreign dignitaries. However, the function

of the Diplomatic Security Detail is to protect foreign dignitaries,

like Li Peng, from physical harm, not service of process. Apart

from that, the unique way in which events unfolded in this case

is unlikely to be replicated thereby narrowing the scope of this

Court’s holding.

****

b. Wei Ye v. Jiang Zemin

On October 18, 2002, adherents of the Falun Gong movement

ﬁled a class action suit against then-President Jiang Zemin

of the People’s Republic of China. Wei Ye v. Jiang Zemin,

U.S. District Court for the Northern District of Illinois,

No. 02 C 7530. Three days later, plaintiffs obtained an ex parte

order authorizing alternative service of process by delivery

of the summons and complaint to security agents guarding

President Jiang during his visit to Chicago. The order pur-

ported to authorize service by delivery to agents of the State

Department security detail, the U.S. Secret Service, the FBI,

586 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

the Illinois State Police motorcade detail, hotel security,

and Chinese staff security, with instructions that the security

ofﬁcer was to forthwith serve the summons and complaint

on President Jiang.

The excerpts below from the corrected United States

Motion to Vacate October 21, 2002 Order and Statement of

Interest or, in the Alternative, Suggestion of Immunity set

forth the U.S. view that the service order was invalid because

it was not authorized by a waiver of U.S. sovereign immunity

and because it violated separation of powers principles, thus,

among other things, interfering with the conduct of foreign

relations and the protection of visiting foreign dignitaries

(footnotes deleted). See also B.1, supra.

The full text of the motion and attached declarations

referred to in the excerpts is available at www.state.gov/s/l/

c8183.htm.

****

The United States of America appears in this matter to move for

vacatur of the October 21, 2002 Order directing federal ofﬁcials

to serve process on Defendant Jiang Zemin, President of the

People’s Republic of China, during his October 22–23, 2002 visit

to Chicago. In addition, pursuant to 28 U.S.C. § 517, we further

state the United States’ interest with respect to the Order’s provision

for service on President Jiang through state and local security

ofﬁcials, note that service was not achieved under the Order’s

terms, and suggest, in the alternative, the immunity of President

Jiang as head of the People’s Republic of China.

INTRODUCTION

Fundamental, constitutionally based principles of sovereign

immunity and separation of powers preclude Article III courts

from ordering federal security personnel to serve process on a

visiting head of state during the course of their duty to protect

that foreign leader. Separation of powers principles are likewise

offended by an order that compels federal security personnel to

Immunities and Related Issues 587

serve process on a foreign head of state whom they are charged

with guarding. Such a method of service directly interferes with

the Executive Branch’s conduct of foreign relations, causing

diplomatic problems of the greatest magnitude at the highest levels

of our government. Indeed, the Court’s October 21 Order has had

direct impacts on foreign relations between the United States

Government and the People’s Republic of China, nations that have

an important yet delicate relationship. The harm to foreign relations

of an alternate service order such as the October 21 Order ﬂows

whether the ofﬁcials charged to effect service are federal, state, or

local law enforcement security personnel responsible for guarding

the visiting dignitary. It is, therefore, the United States’ position

that the October 21 Order is invalid and that it should be vacated.

Even if the October 21 Order had been validly entered, its

premise that the security ofﬁcials it identiﬁes would be in President

Jiang’s physical proximity and thus able personally to deliver a

copy of the summons and complaint to him was inapplicable with

regard to Chicago Police Commander Joseph P. Grifﬁn, who was

not responsible for guarding President Jiang. Additionally, Plaintiffs

have presented no evidence that service of the summons and

complaint on President Jiang was effected under the October 21

Order’s terms. Plaintiffs offer no evidence that they delivered a

copy of the summons and complaint to a security ofﬁcial helping

to guard President Jiang, or that any such security ofﬁcial delivered

a copy of the summons and complaint to President Jiang.

Finally, in the alternative, the United States suggests that, as

head of the People’s Republic of China, President Jiang enjoys

immunity from this lawsuit. The personal inviolability that derives

from head-of-state immunity in addition renders him immune from

service of process, and thus also from the jurisdiction of this Court.

****

1. The October 21, 2002 Order is Invalid as Unauthorized by

a Waiver of Sovereign Immunity and Violates Separation of

Powers Principles

The Court lacked jurisdiction to require federal security

personnel to serve process on a visiting head of state because no

588 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

waiver of the sovereign immunity of the United States allows such

an order. Moreover, enlisting federal and local ofﬁcials to serve

process on a visiting foreign dignitary whom they are charged

with protecting would so impair the Executive Branch’s ability

to conduct foreign relations that it would conﬂict with the con-

stitutional principle of separation of powers.

a. No Waiver of Sovereign Immunity Permits the Court to

Compel Ofﬁcers of the United States to Serve Process

The United States and its ofﬁcers are immune from judicial

proceedings unless there is an applicable congressional waiver of

sovereign immunity. See, e.g., United States v. Nordic Village,

Inc., 503 U.S. 30, 33–34 (1992); Block v. North Dakota, 461

U.S. 273, 287 (1983); Berman v. Schweiker, 713 F.2d 1290, 1300

(7th Cir. 1983). Only Congress may waive the United States’

sovereign immunity, and any waiver, “to be effective, must be

‘unequivocally expressed,’” Nordic Village, Inc., 503 U.S. at 33–

34 (quoting Irwin v. Department of Veterans Affairs, 498 U.S.

89, 95 [1990]), and “will not be implied,” Lane v. Pena, 518 U.S.

187, 192 (1996). Absent a clear waiver of sovereign immunity by

Congress, courts are without jurisdiction to exercise judicial

authority as to the United States or its ofﬁcers. E.g., United States

v. Mitchell, 445 U.S. 535, 538 (1980).

****

The October 21 Order expressly compels United States

ofﬁcials both to accept delivery of a copy of the summons and

complaint and to serve the copy on President Jiang: “[S]ervice

shall be accomplished by the delivery of a copy of the summons

and complaint to [] any of the security agents helping to guard

Defendant Jiang Zemin ...[S]aid security agent is to forthwith

serve said defendant with the said copy of the summons and

complaint . . .” However, neither the Order nor Plaintiffs’ ex parte

motion for the Order identiﬁes an express waiver of sovereign

immunity that permits U.S. courts to compel ofﬁcials of the United

States to accept a summons and complaint or to serve process.

Rather, Plaintiffs sought, and the Court evidently issued, the

Immunities and Related Issues 589

October 21 Order on the purported authority of Federal Rule of

Civil Procedure 4(e)(1) and, by incorporation, Illinois law regarding

service, 735 Ill. Comp. Stat. 5/2–203.1.

****

No waiver of the United States’ sovereign immunity authorized

the Court to direct ofﬁcials of the State Department, the Secret

Service, and the FBI to serve process on President Jiang, and thus

the Court was without jurisdiction to enter the October 21 Order.

See, e.g., Mitchell, 445 U.S. at 538. The October 21 Order is

therefore invalid as entered in violation of the United States’

sovereign immunity and without a jurisdictional basis.

b. Compelling Federal, State, and Municipal Security

Ofﬁcials to Serve Process on a Visiting Head of State

Offends Separation of Powers Principles

The ability of the Executive Branch to conduct foreign relations

is signiﬁcantly compromised by an order compelling federal and

municipal security ofﬁcials to serve process on a visiting head of

state whom they are responsible for guarding. Such an infringement

directly conﬂicts with the constitutional principle of separation of

powers.

It is well-established that the conduct of foreign relations is a

sensitive political function that the Constitution vests in the

Executive Branch or, in certain instances, the Executive Branch in

conjunction with the Legislative Branch. E.g., Department of the

Navy v. Egan, 484 U.S. 518, 529 (1988); Haig v. Agee, 453 U.S.

280, 293–94 (1981); Chicago & Southern Airlines, 333 U.S. 103,

111 (1948); United States v. Pink, 315 U.S. 203, 222–23 (1942);

Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918); Sampson

v. Federal Republic of Germany, 250 F.3d 1145, 1156 (7th Cir.

2001); Flynn v. Shultz, 748 F.2d 1186, 1190 (7th Cir. 1984).

Article II, § 2 of the Constitution provides that the President “shall

have Power, by and with the Advice and Consent of the Senate, to

make Treaties, provided two thirds of the Senators present concur,”

and “shall nominate, and by and with the Advice and Consent of

the Senate, shall appoint Ambassadors, other public Ministers and

590 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Consuls . . .” Article II, § 3 provides that the President “shall receive

Ambassadors and other public ministers . . .”

Taken together with the command of article II, § 3 that

the President “shall take Care that the Laws be faithfully

executed,” these constitutional provisions have come to be

regarded as explicit textual manifestations of the inherent

presidential power to administer, if not necessarily to

formulate in any autonomous sense, the foreign policy of

the United States.

Laurence H. Tribe, American Const. Law § 4–3 at 638 (3d ed.

2000). “ ‘As to these areas of Art. II duties the courts have tradi-

tionally shown the utmost deference to Presidential responsibil-

ities.’” Egan, 484 U.S. at 529–30 (quoting United States v. Nixon,

418 U.S. 683, 710 [1974] ). Accordingly, matters “vitally and

intricately interwoven with contemporaneous policies in regard to

the conduct of foreign relations . . . are so exclusively entrusted to

the political branches of government as to be largely immune from

judicial inquiry or interference.” Harisiades v. Shaughnessy, 342

U.S. 580, 588–89 (1952); see also INS v. Chadha, 462 U.S. 919,

951 (1983) (“The hydraulic pressure inherent within each of the

separate [b]ranches to exceed the outer limits of power, even to

accomplish desirable objectives, must be resisted.”); Adams v.

Vance, 570 F.2d 950, 955 (D.C. Cir. 1978) (“This country’s

interests in regard to foreign affairs and international agreements

may depend on the symbolic signiﬁcance to other countries of

various stances and on what is practical with regard to diplomatic

interaction and negotiation. Courts are not in a position to exercise

a judgment that is fully sensitive to these matters.”).

i. Alternative Service Orders Such as the October 21 Order

Have a Chilling Impact on the Executive Branch’s Conduct

of Foreign Relations

As explained in the attached Declaration of Donald W. Keyser,

Deputy Assistant Secretary of State for the Bureau of East Asian

and Paciﬁc Affairs, the October 21 Order and orders like it interfere

Immunities and Related Issues 591

substantially with the Executive Branch’s ability to foster an

environment that encourages heads of state and other foreign

dignitaries to visit the United States and that is conducive to

productive bilateral relations. (Decl. of Donald W. Keyser.)

There is a real risk that a foreign government whose leader is

served with process by host state protective personnel (e.g., State

Department Diplomatic Security, FBI, Secret Service, and local

police) will take offense at the service, viewing it at a minimum as

“incompatible with the proper role of security personnel to ensure

the safety and tranquility of the foreign dignitary during his or

her visit” or at worst as “acts of calculated duplicity to ensnare

the foreign leader.” (Id. ¶ 3.) “The foreign government may also

interpret such service as ofﬁcial United States Government support

for the underlying lawsuit.” (Id.)

Mr. Keyser’s declaration explains that these concerns are

magniﬁed when the foreign dignitary identiﬁed in an alternate

service order is a head of state such as President Jiang. (Id. ¶ 6.)

Indeed in this case, media reports that President Jiang had been

served with process through U.S. security personnel threatened to

impede the Crawford, Texas summit between President Bush and

President Jiang and to jeopardize U.S.-China relations. (Id. ¶ 7.)

Mr. Keyser explains that senior Chinese ofﬁcials protested the suit

repeatedly and “emphasized . . . particular dissatisfaction that

U.S. security personnel had reportedly accepted documents relating

to the suit, and had failed to ensure that President Jiang’s visit

was free of disruption.” (Id.) These concerns were considered so

serious that Chinese ofﬁcials warned that there could be “a most

deleterious impact on the atmosphere surrounding the Crawford

summit and on the bilateral relationship.” (Id.)

Not only did the October 21 Order risk a direct effect on a

presidential summit, but it and similar orders would have the

potential to cause foreign dignitaries to think twice before agreeing

to travel to and attend meetings in the United States. Mr. Keyser

describes the recent refusal of the Chinese government to send

representatives to the United States to participate in an important

anti-narcotics training course due to concerns about possible service

of process. (Id. ¶ 4.) The consequences of a reluctance among

foreign leaders to come to the United States to engage in diplomacy

592 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

are potentially serious for the government’s ability to conduct

foreign relations. (Id.)

Mr. Keyser further explains that on recent occasions Chinese

ofﬁcials have refused to accept ofﬁcial United States Government

communications from State Department ofﬁcers because of stated

concerns that those ofﬁcers might have been designated as process

servers by United States courts. (Id. ¶ 5.) For example, on August

8, 2002, the political counselor at China’s Embassy in Washington,

D.C. refused to accept documentation from the State Department’s

China desk director except by facsimile, for fear of unwittingly

accepting a court order or subpoena. (Id.) The exchange of diplo-

matic notes and written positions “is the essence of diplomacy.”

(Id.) A reluctance among foreign diplomats to accept such

diplomatic correspondence because of orders such as the October

21 Order poses yet another serious obstacle to the United States’

conduct of foreign affairs.

ii. Alternative Service Orders Such as the October 21 Order

Increase the Risk that Senior U.S. Ofﬁcials Will Be

Subjected to Service and Legal Proceedings Abroad

Were U.S. courts to permit service upon foreign heads of state

and other dignitaries in the fashion contemplated by the October

21 Order, foreign courts and authorities will be more likely to

issue similar orders regarding service on the President of the

United States and senior U.S. ofﬁcials during their travels abroad.

Mr. Keyser explains this concern regarding reciprocity:

To the extent that United States courts issue orders

authorizing alternate service of process on high-level visiting

foreign dignitaries—especially via our protective services—

it is increasingly likely that foreign governments and judicial

authorities will be inclined to permit service and legal

proceedings that may be detrimental and embarrassing to

high-level United States ofﬁcials visiting abroad. Indeed,

allowing such methods of service here would provide

foreign interests with ready-made grounds for initiating

retaliatory service and lawsuits against United States

Immunities and Related Issues 593

ofﬁcials overseas—actions that we might regard as offensive,

politically-motivated, and disruptive to the conduct of our

foreign relations.

(Id. ¶ 9.) Service of foreign lawsuits on the U.S. President or high-

level U.S. ofﬁcials while they are conducting the nation’s business

abroad would further disrupt the Executive Branch’s conduct

of foreign affairs, and is thus another potential harmful effect of

orders like the October 21 Order.

iii. Alternative Service Orders Such as the October 21 Order

Interfere with the Protection of Visiting Foreign Dignitaries

The Declaration of Peter E. Bergin, Principal Deputy Assistant

Secretary of State for the Bureau of Diplomatic Security (“DS”)

and Director of the Diplomatic Security Service, United States

Department of State, explains that the primary duty of DS

protective detail ofﬁcers is to insulate their charges from potential

dangers. (Decl. of Peter E. Bergin ¶ 4 [Attach. C].) Accomplishment

of this task “depends upon the ability of DS protective personnel

to operate in close physical proximity and with full access to

the protected foreign ofﬁcial,” and “in close coordination with

other security ofﬁcers, including those provided by the foreign

government.” (Id. ¶ 2). For the United States to provide optimal

security, the protective detail must be provided unfettered

information, including a detailed itinerary, and must “enjoy the

trust and conﬁdence of the protectee.” (Id.)

DS ofﬁcers’ protective duties do not encompass serving process

on foreign ofﬁcials at a court’s behest. (Id. ¶ 4) Mr. Bergin explains

that “should foreign dignitaries come to view their United States

Government and other protective personnel (including local police

and private security) as potential process servers, they would likely

withdraw from and otherwise limit cooperation with such per-

sonnel.” (Id. ¶ 5.) Such withdrawal and limitation of cooperation

could profoundly compromise the foundation of the protective

process. (Id.) Moreover, the prospect that security personnel might

be charged to act as process servers could “undermine the critical

element of trust and conﬁdence between protector and protectee

594 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

that is essential to the effective operation of the security function.”

(Id.) Were the trust and conﬁdence between protective per-

sonnel and foreign dignitaries so undermined, the results could be

“catastrophic”—not only to the United States’ ability to provide

security to visiting dignitaries, but also to its relations with foreign

nations. (Id. ¶ 6.) “Should death or injury occur to a foreign

leader during a visit to the United States, there would likely be

severe and lasting damage to our relations with that leader’s

government.” (Id.) These concerns are heightened in the current

climate of increased terrorist threats. (Id.)

The attached Declaration of Donald A. Flynn, Assistant

Director of the United States Secret Service for the Ofﬁce of

Protective Operations, likewise explains that orders for alternate

service through Secret Service agents is inconsistent with and could

distract the agents from their mission to protect visiting heads of

state in accordance with 18 U.S.C. § 3056. Indeed, if Secret Service

agents or other security personnel were expected to deliver service

of process to visiting heads of state whom they are guarding, they

would have to inspect the documents, an obvious distraction from

their job of observing the environment around their protectee in

order to identify potential threats. (See id. ¶ 6.) Mr. Flynn further

explains that “[i]f a foreign head of state were to perceive his or

her Secret Service protective detail as having any function other

than protection, he or she may push away the Secret Service’s

‘protective envelope’ thereby making [the individual] more vulner-

able to assassination or other physical harm.” (Decl. of Donald A.

Flynn ¶ 5 [Attach. D].) Mr. Flynn also underscores Mr. Bergin’s

warning about the possibly grave consequences of a breach in

security during a head of state’s visit to the United States: “For

obvious reasons, if the assassination of a foreign head of state

were ever to occur on American soil, the results could be

catastrophic from a foreign relations and national security

standpoint.” (Id. ¶ 7.)

The concerns related above are similar if the security ofﬁcial

directed to effect service on a visiting dignitary is a municipal

ofﬁcial charged with guarding the dignitary. It is reasonable to

anticipate that the foreign dignitary’s government may not dis-

tinguish between federal security personnel and state or municipal

Immunities and Related Issues 595

security personnel and instead view service effected through a state

or municipal security ofﬁcial as attributable to the United States.

In addition, the risk of compromised security if a foreign dignit-

ary were to withdraw from municipal security personnel or limit

cooperation with them are the same as the risks described by

Messrs. Bergin and Flynn in the case of federal protective personnel.

Again, were a foreign dignitary killed or injured during a visit to

the United States, the reaction of the dignitary’s government and

the harm to the United States’ relations with that government

likely would not differ if the security personnel involved were

municipal ofﬁcers rather than federal ofﬁcers.

****

As the declarations of Messrs. Keyser, Bergin, and Flynn make

clear, service of process on foreign dignitaries through the host

state protective personnel assigned to guard them is a matter

“vitally and intricately interwoven” with the Executive Branch’s

conduct of foreign relations. Harisiades, 342 U.S. at 588–89. Those

declarations further establish that orders for alternate service such

as the October 21 Order have a direct and detrimental impact on

the United States’ ability to conduct foreign relations. Such an

interference with the conduct of foreign relations is incompatible

with the respect for the separation of powers that the Constitution

mandates. See, e.g., id. at 589. For all of these reasons, the October

21 Order does not withstand constitutional scrutiny.

****

Cross Reference

U.S. sovereign immunity, Chapter 8.B.5.

Allie

Trade, Commercial Relations, Investment, and Transportation 597

597

CHAPTER 11

Trade, Commercial Relations,

Investment, and Transportation

A. TRANSPORTATION BY AIR

1. Bilateral Open Skies Agreements

a. New bilateral Open Skies agreements

On January 22, 2002, an agreement amending the U.S.-France

Air Transport Agreement of 1998 to incorporate “Open Skies”

principles entered into force. The United States and Uganda

initialed an “Open Skies” air-transport agreement on June

4, 2002. These were the twentieth Open Skies agreement

entered into with a European country and the eleventh with

an African country, respectively. In addition, a U.S.-Jamaica

Open Skies agreement was initialed on October 30, 2002.

As with other such agreements, these instruments elimin-

ate restrictions on how often carriers can ﬂy, the kind of

aircraft they can use, and the prices they can charge. The

agreements cover both passenger and cargo services, as

well as scheduled and charter operations. A fact sheet

listing U.S. Open Skies agreements initialed through October

2002 and links to texts of the agreements is available at

www.state.gov/e/eb/rls/fs/14441.htm.

In a press release on October 19, 2001, concerning the

U.S.-France agreement, the U.S. Department of Transport-

ation had noted that for France the new agreement:

598 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

. . . builds on the liberalized U.S.-France agreement that

was signed in June 1998. While that agreement provided

for the gradual elimination of restrictions on air services

between the two countries, today’s Open-Skies agreement

also removes restrictions on service to intermediate and

beyond countries.

As to the U.S.-Uganda agreement, a press release of June 4,

noted that:

The U.S.-Uganda agreement offers U.S. scheduled and

charter cargo carriers special beneﬁts that extend aviation

liberalization even beyond the standard Open-Skies

provisions by permitting U.S. airlines to ﬂy cargo from

Uganda to third countries without also serving the United

States. Operations consistent with the new agreement

may be implemented immediately.

The press release of the Department of Transportation

on the U.S.-France agreement is available at www.dot.gov/

affairs/dot11101.htm and for the U.S.-Uganda agreement at

www.dot.gov/affairs/dot05502.htm.

b. European Court of Justice ruling

On November 5, 2002, the European Court of Justice (“ECJ”)

ruled in eight cases ﬁled in 1998 by the European Commission

against seven EU member states that had signed Open Skies

air-transport agreements with the United States, and against

the UK on the basis of the 1977 (“Bermuda 2”) agreement

and subsequent 1995 amendments. In the eight separate

but parallel actions (brought against the UK, Denmark,

Sweden, Finland, Belgium, Luxembourg, Austria and

Germany), the ECJ found that the Member States (a) retained

the competence to conclude air services agreements with

the United States; (b) had infringed the external competence

of the Community with regard to computer reservation

systems and establishment of air fares on intra-Community

routes (except the UK); and (c) infringed the provisions of

Trade, Commercial Relations, Investment, and Transportation 599

the EC Treaty on the “right of establishment” by including

in the agreements a “nationality clause” that restricts in

practice the rights under each agreement to air carriers owned

and controlled by nationals of the parties. At the end of 2002

the United States had bilateral Open Skies agreements with

11 of the 15 member states (all but the UK, Greece, Ireland

and Spain) and with six EU candidate countries (the Czech

Republic, the Slovak Republic, Romania, Turkey, Malta, and

Poland), as well as Switzerland, Iceland and Norway.

Press guidance concerning the reaction of the United

States to the ECJ ruling and its effect is provided below.

We have read with interest the court’s judgments (eight of them

corresponding to the eight cases) and look forward to discussing

them with the EU member states and the European Commission.

• The court found against the Commission’s contention that

EU member states lack competence to conclude air services

agreements with the United States.

• The current agreements remain in force as the legal basis for

air services between the U.S. and individual EU member states.

• Signiﬁcantly, the court did not ﬁnd that the Commission has

the sole competence it has long sought to negotiate a

comprehensive civil aviation agreement with the United States.

Whether the commission will receive a negotiating mandate in

the future remains a matter to be decided by the EU member

states and the Commission.

• The court did ﬁnd that in two relatively limited areas—

computer reservation systems and pricing on routes within the

EU—the member states lack competence to negotiate.

Our existing bilateral agreements, however, recognize the

primacy of EU law in these areas, and the court’s ruling should

have no signiﬁcant effect on airline operations.

• The court also held that, in securing rights for airlines owned

and controlled by nationals of their country, each of the

defendant member states has failed to fulﬁll its obligations

under EU law on the right of establishment.

600 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

We are studying this aspect of the ruling and look forward to

discussing the implications with our European colleagues.

****

On November 20, 2002, the Ofﬁce of the Spokesman of the

Department of State responded to a question concerning

the reaction of the United States to “the European Com-

mission’s request that Members denounce their civil aviation

agreements with the United States in the wake of the recent

rulings by the European Court of Justice.”

His answer, set forth below in full, is available at

www.state.gov/r/pa/prs/ps/2002/15329.htm.

Answer: Our civil aviation agreements with European Union

member states provide the legal basis for air services between the

U.S. and individual member states. Our Open Skies agreements,

in particular, offer both countries’ airlines, consumers, shippers,

and national economies the enormous beneﬁts of a market-based

approach to international civil aviation.

The European Court of Justice decisions do not call for

European Union member states to denounce these agreements.

The court also ruled against the commission’s assertion that

member states lack competence to negotiate agreements. Instead,

the court found that our agreements are consistent with EU law,

except in three areas.

We see no utility in denunciation of our aviation agreements.

The United States is prepared to discuss with European Union

member states on a bilateral basis how to accommodate the

European Court of Justice’s speciﬁc legal ﬁndings. Such discussions

can occur without denunciation.

2. 1955 Hague Protocol

On July 31, 2002, President George W. Bush transmitted to

the Senate for advice and consent to ratiﬁcation the Protocol

to Amend the Convention for the Uniﬁcation of Certain Rules

Trade, Commercial Relations, Investment, and Transportation 601

Relating to International Carriage by Air Signed at Warsaw

on October 12, 1929, done at The Hague September 28, 1955

(“The Hague Protocol”). S. Treaty Doc. No. 107–14 (2002).

****

LETTER OF TRANSMITTAL

The White House, July 31, 2002.

To the Senate of the United States:

I transmit herewith, for Senate advice and consent to ratiﬁca-

tion, the Protocol to Amend the Convention for the Uniﬁcation of

Certain Rules Relating to International Carriage by Air Signed at

Warsaw on October 12, 1929, done at The Hague September 28,

1955 (The Hague Protocol). The report of the Department of

State, including an article-by-article analysis, is enclosed for the

information of the Senate in connection with its consideration of

The Hague Protocol.

The Warsaw Convention is the ﬁrst in a series of treaties relat-

ing to international carriage by air. The Hague Protocol amended

certain of the Warsaw Convention articles, including several

affecting the rights of carriers of international air cargo. A recent

court decision held that since the United States had ratiﬁed the

Warsaw Convention but had not ratiﬁed The Hague Protocol,

and the Republic of Korea had ratiﬁed The Hague Protocol but

had not ratiﬁed the Warsaw Convention, there were no relevant

treaty relations between the United States and Korea. This decision

has created uncertainty within the air transportation industry

regarding the scope of treaty relations between the United States

and the 78 countries that are parties only to the Warsaw Con-

vention and The Hague Protocol. Thus, U.S. carriers may not be

able to rely on the provisions in the Protocol with respect to claims

arising from the transportation or air cargo between the United

States and those 78 countries. In addition to quickly affording

U.S. carriers the protections of those provisions, ratiﬁcation of

the Protocol would establish relations with Korea and the ﬁve

additional countries (El Salvador, Grenada, Lithuania, Monaco,

and Swaziland) that are parties only to The Hague Protocol and

to no other treaty on the subject.

602 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

A new Convention for the Uniﬁcation of Certain Rules for

International Carriage by Air, done at Montreal May 28, 1999

(the “Montreal Convention”) is pending on the Senate’s Executive

calendar (Treaty Doc. 106– 45). I urge the Senate to give its advice

and consent to that Convention, which will ultimately establish

modern, uniform liability rules applicable to international air

transport of passengers, cargo, and mail among its parties. But the

incremental pace of achieving widespread adoption of the Montreal

Convention should not be allowed to delay the beneﬁts that

ratiﬁcation of The Hague Protocol would afford U.S. carriers of

cargo to and from the 84 countries with which it would promptly

enter into force.

I recommend that the Senate give early and favorable con-

sideration to The Hague Protocol and that the Senate give its

advice and consent to ratiﬁcation.

****

The attached report from the Secretary of State, submitting

the Hague Protocol to the President, provided further

background on the interrelated conventions and inter-carrier

agreements applicable to liability in international air trans-

portation. These include the Warsaw Convention and the

Hague Protocol, the 1975 Montreal protocols, the IATA

and ATA Inter-carrier Agreements (1997), and the 1999

Montreal Convention. See Digest 2000 at 670–674. For Chubb

& Son, also discussed in the report, see Digest 2001 at

555–565.

All transmittal documents, including the report of the

Secretary of State, which includes an article-by-article analysis,

are included in S. Treaty Doc. No. 107–14 (2002).

LETTER OF SUBMITTAL

The Secretary of State,

Washington, June 15, 2002.

The President.

****

Trade, Commercial Relations, Investment, and Transportation 603

BACKGROUND

Overview

The 1929 Warsaw Convention has been the subject of several

amendments and unsuccessful attempts at amendments over the

years. In 1955, The Hague Protocol, which doubled the passenger

liability limits and simpliﬁed cargo documentation requirements,

was adopted and was later ratiﬁed by most countries, but not by

the United States. In 1971, the Guatemala Protocol again sought

to raise the passenger limits, but was ratiﬁed by very few States

and never entered into force. In 1975, the so-called Montreal

Protocols (Nos. 1–4) were adopted. Of these four protocols, the

United States is a party only to Montreal Protocol No. 4, which

amended the Warsaw Convention as amended by The Hague

Protocol, modifying the cargo provisions of that instrument without

altering the passenger provisions. In 1999, a new Convention

was adopted to eliminate in their entirety the passenger liability

limits and modernize the other provisions of the Warsaw Con-

vention and The Hague Protocol. The 1999 Convention is intended

ultimately to replace the Warsaw Convention and its various

amendments. The United States signed the 1999 Montreal Con-

vention, and it was submitted for Senate advice and consent to

ratiﬁcation in September 2000.

****

7. Chubb & Son, Inc. v. Asiana Airlines

A recent decision by the U.S. Court of Appeals for the Second

Circuit in the case of Chubb & Son, Inc. v. Asiana Airlines (214

F.3d 301 (2d Cir. 2000), cert. denied, 121 S. Ct. 2459 (2001)) has

highlighted the fragmentation of the Warsaw Convention system

and raised uncertainties regarding the liability regime that applies

to U.S. carriers in certain situations. The question presented in

that case was whether the United States, a party to the Warsaw

Convention but not the Hague Protocol or to Montreal Protocol

No. 4 at the time the dispute arose, had treaty relations with the

Republic of Korea, a party only to The Hague Protocol. The court

held that the United States did not have treaty relations with Korea

under either The Hague Protocol or the Warsaw Convention,

ﬁnding that Korea’s adherence to The Hague Protocol did not

604 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

make Korea a party to the unamended Warsaw Convention, to

which the United States was a party.

Although the Chubb decision did not address the 1999 entry

into force of Montreal Protocol No. 4 for the United States, it

focused industry attention on the difﬁcult question of whether the

United States, by reason of its adherence to Montreal Protocol

No. 4 became a party to The Hague Protocol and therefore entered

into treaty relations under The Hague Protocol with other countries

party to that instrument (but not to Montreal Protocol No. 4).

U.S. carriers seek certainty regarding the applicability of the

Warsaw Convention system in such situations.

If Montreal Protocol No. 4 does not create treaty relations

under The Hague Protocol, the United States’ treaty relations with

the 78 countries that are parties to both the Warsaw Convention

and The Hague Protocol, but not to Montreal Protocol No. 4,

would be based on the Warsaw Convention unamended by any

later protocol. Further, under these circumstances, the United States

would have no treaty relations under the Warsaw Convention

system with Korea and the ﬁve other countries which are parties

only to The Hague Protocol (El Salvador, Grenada, Lithuania,

Monaco, and Swaziland).

The Warsaw Convention of 1929 contains antiquated rules in

the area of cargo documentation. Modern air cargo operations

bear no resemblance to those of 1929. The cumbersome rules of

the Warsaw Convention require much speciﬁc information on

the air waybill that has no commercial signiﬁcance today and is

irrelevant to modern shippers. The requirements for such extensive

documentation:

— Make international air cargo transactions time consuming

and inefﬁcient, and drive up their costs;

— Inhibit the free ﬂow of international air commerce; and

— Serve as a barrier to use of electronic information exchanges.

Under the Warsaw Convention, U.S. cargo carriers must com-

ply with commercially unnecessary and outmoded documentation

rules or risk non-application by courts of the liability limits for

cargo established in the Convention.

Trade, Commercial Relations, Investment, and Transportation 605

Ratiﬁcation of The Hague Protocol would resolve this problem,

ensuring U.S. carriers the beneﬁts of The Hague Protocol’s more

modern rules relating to documentation, which are critical to

the efﬁcient movement of air cargo. It would also provide a clear

basis for courts in determining the existence of treaty relations

between the United States and foreign countries. Ratiﬁcation of

The Hague Protocol will secure for the United States the application

of The Hague Protocol’s more modern rules in relations with the

84 countries party to that instrument (but not to Montreal Protocol

No. 4), pending the entry into force and widespread ratiﬁcation of

the 1999 Montreal Convention, which is currently awaiting Senate

advice and consent.

Upon its entry into force, where applicable, the 1999 Montreal

Convention will supersede the Warsaw Convention and all of its

protocols, and as a practical matter the voluntary inter-carrier

agreements, and will establish modern, uniform liability rules

applicable to international air transport of passengers, cargo and

mail. That Convention will enter into force when thirty states

have consented to be bound by it. As of May 24, 2002, 18 states

had deposited with ICAO, the depositary for the Convention,

instruments indicating their consent to be bound.

THE PROTOCOL

The primary focus of The Hague Protocol at the time it was

negotiated was the doubling of the passenger liability limit to

approximately $16,600. However, the 1966 Montreal Inter-carrier

Agreement and later the IATA and ATA Inter-carrier Agreements,

by which signatory carriers voluntarily waived such limits, have,

as a practical matter in most cases, superseded this meager recovery

limit. The Hague Protocol improved upon the 1929 Warsaw

Convention in several other ways. The principal changes to the

Warsaw Convention, many of which were later incorporated into

Montreal Protocol No. 4, to which the United States became a

party on March 4, 1999, are discussed below. A more detailed

review of the provisions of The Hague Protocol follows.

Court Costs. Although the new liability limit for passenger

death or injury included in The Hague Protocol is not applicable

606 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

in light of the later inter-carrier agreements, a useful related pro-

vision of that article (22(4)) adds language to the Warsaw Conven-

tion permitting courts to award to the claimant, in accordance

with domestic law, added amounts for court costs and other

litigation expenses, including attorney’s fees, with the proviso that

such recovery will not apply where the amount of the damages

awarded, excluding court costs, does not exceed any prompt

settlement offer made by the carrier.

Documentation. The Hague Protocol streamlines the cumber-

some documentation requirements of the Warsaw Convention,

particularly in the area of cargo transportation. Article 8 of the

Warsaw Convention requires that 17 separate categories of

information be included on cargo air waybills. Since much of

this information has no commercial signiﬁcance, modern air waybill

forms in use worldwide do not require this information. The Hague

Protocol signiﬁcantly reduces the information required to be

included in air waybills to those categories related to the application

of the Convention. Moreover, the Warsaw Convention provides

that non-compliance with any of several of these documentation

requirements would prohibit the carrier from enforcing the liability

limits of the Convention. In contrast, The Hague Protocol provides

that, with respect to cargo documentation requirements, only the

failure to make out an air waybill prior to loading the cargo on

board the aircraft, or to give notice as to the liability limitations,

would preclude the application of carrier liability limits.

Willful Misconduct. The Warsaw Convention was written in

French, with no authentic English text. Article 25 of the Warsaw

Convention, as translated from the original French text in the

United States, provided that a carrier’s liability will not be limited

when injury or death is caused by the “willful misconduct’’ of the

carrier or its agent. However, other countries adopted different

translations of this term that led to disparate interpretations, and,

as a consequence, led to confusion among lawyers and judges

attempting to apply the Warsaw Convention. The Hague Protocol

replaced the legal standard with a description of the conduct itself

that a jury would be able to understand. The Protocol revises the

provision to make the carrier’s liability without limit when damage

results from an act or omission of the carrier or its agent “done

Trade, Commercial Relations, Investment, and Transportation 607

with intent to cause damage or recklessly and with knowledge

that damage would probably result.’’ This standard, similar in all

substantive respects to the charge to the jury by a New York trial

court in a well-known case (Froman v. Pan American Airways,

Supreme Court of New York County, March 9, 1953), is recogn-

ized as the common law deﬁnition of willful misconduct and was

not intended to modify the scope of the standard.

****

B. INTERNATIONAL CONVEYANCES

Presidential Permits

On February 7, 2002, and June 17, 2002, the Department of

State made available fact sheets describing the application

process for Presidential permits for the construction, opera-

tion and maintenance of facilities on the U.S.-Canada and

U.S.-Mexico borders, respectively. Presidential permits are

required under Executive Order 11,423, 33 Fed. Reg. 11,741

(Aug. 16, 1968), as amended, which states that “. . . the proper

conduct of the foreign relations of the United States requires

that executive permission be obtained for the construction

and maintenance at the borders of the United States of

facilities connecting the United States with a foreign country.”

The Canada fact sheet is available at www.state.gov/p/wha/

rls/fs/7895.htm. The Mexico fact sheet is available at

www.state.gov/p/wha/ci/mx/rel_2001/fs/11148.htm.

C. NORTH AMERICAN FREE TRADE AGREEMENT

1. Claims under Chapter 11 against the United States

a. Award in Mondev International Ltd. v. United States

On October 11, 2002, an ad hoc tribunal issued a ﬁnal award

dismissing all claims against the United States in Mondev

International Ltd. v. United States of America. Mondev

608 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

International Ltd. (“Mondev”) is a Canadian real-estate

development corporation. In 1978 a Mondev subsidiary,

Lafayette Place Associates (“LPA”), entered into a contract

with the City of Boston and the Boston Redevelopment

Authority (“BRA”) to develop a shopping mall in a dilapidated

area in downtown Boston. The ﬁrst phase contemplated in

this tripartite agreement was completed in 1985. The tripartite

agreement also granted to LPA a contingent option to pur-

chase from the City an adjoining parcel of land, known as

the Hayward Place parcel (the “Hayward Parcel”) to develop

a second phase. The agreement did not, however, ﬁx the

price to be paid for the Hayward Parcel, its exact boundaries

or the exact parameters of the rights to be conveyed in the

land.

The transfer of ownership of that land did not occur

within the time speciﬁed in the contract. In February 1991

the mortgagor foreclosed on the mortgage held by LPA with

respect to the ﬁrst phase of the project. LPA brought

proceedings in state court against the City and BRA in March

1992. LPA asserted in its amended complaint that it had

been unfairly denied the opportunity to buy the Hayward

Parcel for the favorable price negotiated in the tripartite

agreement. It contended that the City and the BRA had failed

to negotiate in good faith and thereby prevented the sale of

the property from taking place before LPA’s purchase rights

expired. LPA also claimed that the BRA had illegally interfered

with its proposed sale of its rights to a third party and

prevented it from closing. In consequence, LPA claimed to

have lost proﬁts it would have received had either sale taken

place. LPA won in the trial court, but the Massachusetts

Supreme Judicial Court reversed the judgment in 1998,

ﬁnding, among other things, that the BRA was immune from

suit in the case.

In 1999 Mondev submitted its claim to arbitration against

the United States under Chapter 11 of NAFTA and the ICSID

Arbitration (Additional Facility) Rules on its own behalf,

seeking $50 million in damages for losses allegedly suffered

by LPA. Mondev alleged that these losses arose from the

Trade, Commercial Relations, Investment, and Transportation 609

decision by the Supreme Judicial Court of Massachusetts

and from Massachusetts state law.

The tribunal agreed with the United States that Mondev’s

NAFTA claims were without merit. The tribunal rejected

Mondev’s assertions that the acts by the City and the BRA in

the 1980s could violate the NAFTA, which did not enter into

force until 1994. As a result, the tribunal concluded that “the

only arguable basis of claim under NAFTA concerns the

conduct of the United States courts in dismissing LPA’s

claims. Moreover it is clear that Article 1105(1) provides the

only basis for a challenge to that conduct under NAFTA.”

As to that claim, the tribunal found that the decision

of the Massachusetts high court was consistent with

international standards of justice. It held further that Mass-

achusetts did not violate international law by making the

BRA immune from suit for interference with contractual

relations. Finally, it found that Massachusetts did not

discriminate against Mondev’s subsidiary on the basis of its

Canadian ownership. Excerpts below from the tribunal’s

opinion provide the basis for its holdings on these issues.

Footnotes have been omitted.

All U.S. pleadings and the tribunal’s rulings in Mondev

are available at www.state.gov/s/l/c3439.htm.

****

(1) Relevance of pre-Nafta events

68. The basic principle is that a State can only be internationally

responsible for breach of a treaty obligation if the obligation is in

force for that State at the time of the alleged breach. The principle

is stated both in the Vienna Convention on the Law of Treaties

and in the ILC’s Articles on State Responsibility, and has been

repeatedly afﬁrmed by international tribunals. There is nothing in

NAFTA to the contrary. Indeed Note 39 to NAFTA conﬁrms the

position in providing that “this Chapter covers investments existing

on the date of entry into force of this Agreement as well as

610 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

investments made or acquired thereafter”. Thus, as the Feldman

Tribunal held, conduct committed before 1 January 1994 cannot

itself constitute a breach of NAFTA.

****

70. [E]vents or conduct prior to the entry into force of an obligation

for the respondent State may be relevant in determining whether

the State has subsequently committed a breach of the obligation.

But it must still be possible to point to conduct of the State after

that date which is itself a breach. In the present case the only

conduct which could possibly constitute a breach of any provision

of Chapter 11 is that comprised by the decisions of the SJC and

the Supreme Court of the United States, which between them put

an end to LPA’s claims under Massachusetts law. Unless those

decisions were themselves inconsistent with applicable provisions

of Chapter 11, the fact that they related to pre-1994 conduct

which might arguably have violated obligations under NAFTA

(had NAFTA been in force at the time) cannot assist Mondev. The

mere fact that earlier conduct has gone unremedied or unredressed

when a treaty enters into force does not justify a tribunal applying

the treaty retrospectively to that conduct. Any other approach

would subvert both the intertemporal principle in the law of treaties

and the basic distinction between breach and reparation which

underlies the law of State responsibility.

****

75. For these reasons, the Tribunal concludes that the only arguable

basis of claim under NAFTA concerns the conduct of the United

States courts in dismissing LPA’s claims. Moreover it is clear that

Article 105(1) provides the only basis for a challenge to that

conduct under NAFTA.

****

79. . . . The only question for NAFTA purposes is whether the

claimant can bring its interest within the scope of the relevant

provisions and deﬁnitions.

80. In the present case, in the Tribunal’s view, Mondev’s claims

involved “interests arising from the commitment of capital or other

Trade, Commercial Relations, Investment, and Transportation 611

resources in the territory of a Party to economic activity in such

territory” as at 1 January 1994, and they were not caught by

the exclusionary language in paragraph (j) of the deﬁnition of

“investment”, since they involved “the kinds of interests set out

in subparagraphs (a) through (h)”. They were to that extent

“investments existing on the date of entry into force of this

Agreement”, within the meaning of Note 39 of NAFTA. In the

Tribunal’s view, once an investment exists, it remains protected

by NAFTA even after the enterprise in question may have failed.

This is obvious with respect to the protection offered by Article

1110: as the United States accepted in argument, a person remains

an investor for the purposes of Articles 1116 and 1117 even if the

whole investment has been deﬁnitively expropriated, so that all

that remains is a claim for compensation. The point is underlined

by the deﬁnition of an “investor” as someone who “seeks to make,

is making or has made an investment”. Even if an investment is

expropriated, it remains true that the investor “has made” the

investment.

81. Similar considerations apply to Articles 1102 and

1105. Issues of orderly liquidation and the settlement of claims

may still arise and require “fair and equitable treatment”,

“full protection and security” and the avoidance of invidious

discrimination. . . .

****

(2) Interpretation of NAFTA Article 1105(1)

94. There was extensive debate before the Tribunal as to the

meaning and effect of Article 1105. The debate included such

issues as the binding effect and scope of the FTC’s interpretation

of Article 1105, given on 31 July 2001, the origin and meaning of

the terms “fair and equitable treatment” and “full protection and

security” occurring in Article 1105(1), and the extent of the various

customary international law duties traditionally conceived as falling

within the rubric of the “minimum standard of treatment” under

international law.

****

612 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

101. In pursuance of these provisions, on 31 July 2001 the FTC

adopted, among others, “the following interpretations of Chapter

Eleven in order to clarify and reafﬁrm the meaning of certain of

its provisions”:

“B. Minimum Standard of Treatment in Accordance with

International Law

1. Article 1105(1) prescribes the customary international

law minimum standard of treatment of aliens as the

minimum standard of treatment to be afforded to

investments of investors of another Party.

2. The concepts of ‘fair and equitable treatment’ and

‘full protection and security’ do not require treatment in

addition to or beyond that which is required by the cus-

tomary international law minimum standard of treatment

of aliens.

3. A determination that there has been a breach of another

provision of the NAFTA, or of a separate international

agreement, does not establish that there has been a breach

of Article 1105(1).”

Copies of the interpretations were forwarded to the

Tribunal by the United States on the day of their issue.

Subsequently they were the subject of extended argument

both by the Claimant and the Respondent.*

****

120. The Tribunal has no difﬁculty in accepting that an arbitral

tribunal may not apply its own idiosyncratic standard in lieu of

the standard laid down in Article 1105 (1). In light of the FTC’s

interpretation, and in any event, it is clear that Article 1105 was

intended to put at rest for NAFTA purposes a long-standing and

divisive debate about whether any such thing as a minimum

* Mexico and Canada also made submissions under NAFTA Article

1128 arguing, among other things, that the FTC interpretation was binding

on the tribunal. See also Digest 2001 at 568–574.

Trade, Commercial Relations, Investment, and Transportation 613

standard of treatment of investment in international law actually

exists.50 Article 1105 resolves this issue in the afﬁrmative

for NAFTA Parties. It also makes it clear that the standard of

treatment, including fair and equitable treatment and full protection

and security, is to be found by reference to international law, i.e.,

by reference to the normal sources of international law determining

the minimum standard of treatment of foreign investors.

121. To this the FTC has added two clariﬁcations which are

relevant for present purposes. First, it makes it clear that Article

1105(1) refers to a standard existing under customary international

law, and not to standards established by other treaties of the three

NAFTA Parties. There is no difﬁculty in accepting this as an

interpretation of the phrase “in accordance with international law”.

Other treaties potentially concerned have their own systems of

implementation. Chapter 11 arbitration does not even extend to

claims concerning all breaches of NAFTA itself, being limited

to breaches of Section A of Chapter 11 and Articles 1503(2) and

1502(3)(a). If there had been an intention to incorporate by

reference extraneous treaty standards in Article 1105 and to make

Chapter 11 arbitration applicable to them, some clear indication

of this would have been expected. Moreover the phrase “Minimum

standard of treatment” has historically been understood as a

reference to a minimum standard under customary international

law, whatever controversies there may have been over the content

of that standard.

122. Secondly, the FTC interpretation makes it clear that in

Article 1105(1) the terms “fair and equitable treatment” and “full

protection and security” are, in the view of the NAFTA Parties,

references to existing elements of the customary international law

standard and are not intended to add novel elements to that

standard. The word “including” in paragraph (1) supports that

conclusion. To say that these elements are included in the standard

of treatment under international law suggests that Article 1105

does not intend to supplement or add to that standard. But it does

not follow that the phrase “including fair and equitable treatment

and full protection and security” adds nothing to the meaning of

Article 1105(1), nor did the FTC seek to read those words out of

the article, a process which would have involved amendment rather

614 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

than interpretation. The minimum standard of treatment as applied

by tribunals and in State practice in the period prior to 1994 did

precisely focus on elements calculated to ensure the treatment

described in Article 1105(1).

****

125. . . . For the purposes of this Award, the Tribunal need

not pass upon all the issues debated before it as to the FTC’s

interpretations of 31 July 2001. But in its view, there can be no

doubt that, by interpreting Article 1105(1) to prescribe the

customary international law minimum standard of treatment of

aliens as the minimum standard of treatment to be afforded to

investments of investors of another Party under NAFTA, the term

“customary international law” refers to customary international

law as it stood no earlier than the time at which NAFTA came

into force. It is not limited to the international law of the 19th

century or even of the ﬁrst half of the 20th century, although

decisions from that period remain relevant. In holding that

Article 1105(1) refers to customary international law, the FTC

interpretations incorporate current international law, whose

content is shaped by the conclusion of more than two thousand

bilateral investment treaties and many treaties of friendship

and commerce. Those treaties largely and concordantly provide

for “fair and equitable” treatment of, and for “full protection

and security” for, the foreign investor and his investments.

Correspondingly the investments of investors under NAFTA are

entitled, under the customary international law which NAFTA

Parties interpret Article 1105(1) to comprehend, to fair and

equitable treatment and to full protection and security.

****

151. In the Tribunal’s opinion, circumstances can be envisaged

where the conferral of a general immunity from suit for conduct

of a public authority affecting a NAFTA investment could amount

to a breach of Article 1105(1) of NAFTA. Indeed the United States

implicitly accepted as much. It did not argue that public authorities

could, for example, be given immunity in contract vis-à-vis NAFTA

investors and investments.

Trade, Commercial Relations, Investment, and Transportation 615

152. But the distinction between conduct compliant with or in

breach of NAFTA Article 1105(1) cannot be co-extensive with the

distinction between tortious conduct and breach of contract. . . .

153. The function of the present Tribunal is not, however, to

consider hypothetical situations, or indeed any other statutory

immunity than that for tortious interference with contractual

relations. This was the immunity relied on by BRA and upheld by

the trial judge and the appeal courts. In that speciﬁc context,

reasons can well be imagined why a legislature might decide to

immunize a regulatory authority, mandated to deal with com-

mercial redevelopment plans, from potential liability for tortious

interference. Such an authority will necessarily have both detailed

knowledge of the relevant contractual relations and the power to

interfere in those relations by granting or not granting permissions.

If sued, it will be able to plead that it was acting in good faith and

in the exercise of a legitimate mandate—but such a claim may

well not justify summary dismissal and will thus be a triable issue,

with consequent distraction to the work of the Authority.

154. After considering carefully the evidence and argument

adduced and the authorities cited by the parties, the Tribunal is

not persuaded that the extension to a statutory authority of a

limited immunity from suit for interference with contractual

relations amounts in this case to a breach of Article 1105(1). Of

course such an immunity could not protect a NAFTA State Party

from a claim for conduct which was substantively in breach of

NAFTA standards—but for this NAFTA provides its own remedy,

since it gives an investor the right to go directly to international

arbitration in respect of conduct occurring after NAFTA’s entry

into force. In a Chapter 11 arbitration, no local statutory immunity

would apply. On the other hand, within broad limits, the extent

to which a State decides to immunize regulatory authorities from

suit for interference with contractual relations is a matter for the

competent organs of the State to decide.

155. In the same context Mondev complained that the

Massachusetts Act dealing with unfair or deceptive practices in

trade and commerce (G.L. Chapter 93A) was held by the trial

judge to be inapplicable to BRA notwithstanding that it engaged

in the regulation of commercial activity or acted for commercial

616 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

motives. But if what has been said above as to the partial immunity

of BRA from suit is correct, then a fortiori there could be no

breach of Article 1105(1) in holding Chapter 93A inapplicable to

BRA. NAFTA does not require a State to apply its trade practices

legislation to statutory authorities.

156. In reaching these conclusions, the Tribunal has been

prepared to assume that the decision to allow BRA’s statutory

immunity could have involved conduct of the Respondent State in

breach of Article 1105(1) after NAFTA’s entry into force on 1

January 1994. That assumption may be questioned. The United

States’ courts, operating in accordance with the rule of law, had

no choice but to give effect to a statutory immunity existing at the

time the acts in question were performed and not subsequently

repealed, once they had concluded that the statute in question did

apply. It is not disputed by the Claimant that this decision was in

accordance with Massachusetts law, and it did not involve on its

face anything arbitrary or discriminatory or unjust, i.e., any new

act which might be characterized as in itself a breach of Article

1105(1). In other words, if it was not in December 1993 a breach

of NAFTA for BRA to enjoy immunity from suit for tortious

interference (and, because NAFTA was not then in force, it could

not have been such a breach), it is far from clear how the (ex

hypothesi correct) decision of the United States courts as to the

scope of that immunity, after 1 January 1994, could have been in

itself unfair or inequitable. On this ground alone, it may well be

that Mondev’s Article 1105(1) claim was bound to fail, and to fail

whether or not one classiﬁes BRA’s statutory immunity as

“procedural” or “substantive”.

b. Partial award in Methanex Corporation v. United States

On August 7, 2002, a NAFTA arbitration tribunal issued a

First Partial Award in Methanex Corporation v. United States

of America. The tribunal found that Methanex Corporation

(“Methanex”) had not clearly established the tribunal’s

jurisdiction. Methanex was given ninety days to ﬁle a new

pleading, following which the tribunal would decide whether

Trade, Commercial Relations, Investment, and Transportation 617

to proceed to a hearing on a threshold and determinative

issue or to hold a hearing on all merits issues.

Methanex, a Canadian marketer and distributor of

methanol, submitted a claim to arbitration under the

UNCITRAL Arbitration Rules on its own behalf for alleged

injuries resulting from a California ban on the use or sale in

California of the gasoline additive MTBE. Methanol is an

ingredient used to manufacture MTBE. Methanex contended

that a California executive order and regulations banning

MTBE in California gasoline effective December 31, 2003,

expropriated parts of its investments in the United States in

violation of Article 1110, denied it fair and equitable treatment

in accordance with international law in violation of Article

1105, and denied it national treatment in violation of Article

1102. Methanex claimed damages of $1 billion. The United

States denied that the tribunal had jurisdiction over the claims

and denied that any of the alleged measures violated the

NAFTA. See discussion in Digest 2001 at 574–611.

In its Partial Award, the tribunal found that Methanex’s

original statement of claim did not support jurisdiction

because the California measure did not sufﬁciently relate

to Methanex and its investments so as to be covered by

NAFTA’s investment chapter. It found further that the only

basis for Methanex’s amended statement of claim that could

potentially meet this requirement was its allegation that

California intended to harm foreign methanol producers on

the basis of their nationality. The tribunal also concluded

that it had no power to rule on U.S. challenges to admissibility

of certain claims at the jurisdictional stage. The tribunal

ordered Methanex to ﬁle a “fresh pleading” addressing the

intentional harm issue within ninety days of the partial

award.

Excerpts are provided below from the partial award

(footnotes omitted). The full text of the award and other

documents in the Methanex arbitration are available at

www.state.gov/s/l/c3439.htm. The award is also published at

14 World Trade & Arbitration Materials 109 (2002).

618 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

(1) Partial award

****

CHAPTER H—JURISICTION: THE TRIBUNAL’S

GENERAL APPROACH

****

(8) The Admissibility Challenges

****

123. Article 21(1) of the UNCITRAL Arbitration Rules does not

accord to the Tribunal any power to rule on objections relating

to admissibility. There is no express power; and it is not possible

to infer any implied power. The most analogous procedure under

the UNCITRAL Arbitration Rules would be a partial award on a

preliminary issue tried on assumed facts, pursuant to Article 32

of the UNCITRAL Arbitration Rules13, or possibly a motion to

strike (or “strike out”) a pleading for failure to state a cause of

action, taken from national court procedures. The ﬁrst procedure,

however, does not relate to jurisdiction; it necessarily assumes

the exact opposite; and its existence conﬁrms that it would be

inappropriate to imply a like procedure into Article 21. The same

is true of the second procedure, even if it were permissible to

import that court procedure into a transnational arbitration. The

contrary position would produce a curious result in an arbitral

procedure where the tribunal’s awards on the merits are intended

to be “ﬁnal and binding” (Article 32 of the UNCITRAL Arbitration

Rules14). As contended by the USA, a decision on “inadmissibility”

under Article 21 would be more easily reviewable, de novo, before

the state courts of NAFTA Parties; and in that event the procedure

before the tribunal would be duplicated at least twice over, for no

obviously good purpose.

124. Nor is such a power to be found elsewhere in Chapter 11

NAFTA. Where the procedures set out in Chapter 11 are met,

the NAFTA Party consents to arbitration; and such consent takes

effect under Article II of the UN’s 1958 New York Arbitration

Convention (Article 1122). There is here no express power to

Trade, Commercial Relations, Investment, and Transportation 619

dismiss a claim on the grounds of “inadmissibility”, as invoked by

the USA; and where the UNCITRAL Arbitration Rules are silent,

it would be still more inappropriate to imply any such power

from Chapter 11.

****

126. Conclusion: . . . . This Tribunal has no express or implied

power to reject claims based on inadmissibility. Accordingly, we

reject the USA’s admissibility challenges generally.

CHAPTER J—The USA’s JURISDICTIONAL CHALLENGE III:

ARTICLE 1101(1) NAFTA

(3) The Ordinary Meaning [of the phrase “relates to”]

135. . . . [U]nder Article 31(1) of the Vienna Convention, the ﬁrst

issue turns on the ordinary meaning of the phrase “relating to”. . . .

136. In the Tribunal’s view, none of the [suggested] diction-

ary deﬁnitions decide the issue. To a limited extent, they support

the USA’s reliance on the requirement of a “connection”. These

deﬁnitions imply a connection beyond a mere impact, which is all

that the term “affecting” involves on Methanex’s interpretation.

Nevertheless, we do not consider that this issue can be decided on

a purely semantic basis; and there is a difference between a literal

meaning and the ordinary meaning of a legal phrase. It is also

necessary to consider the ordinary meaning of the term in its

context and in the light of the object and purpose of NAFTA and,

in particular, Chapter 11 (as required by Article 31(1) of the Vienna

Convention).

(4) Context, Object and Purpose

137. For Methanex, the phrase “relating to” should be interpreted

in the context of a treaty chapter concerned with the protection

of investors; and hence, a broad interpretation is appropriate.

Because of its simple application, it is an attractive interpretation;

but it is also a brave submission. If the threshold provided by

620 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Article 1101(1) were merely one of “affecting”, as Methanex con-

tends, it would be satisﬁed wherever any economic impact was felt

by an investor or an investment. For example, in this case, the test

could be met by suppliers to Methanex who suffered as a result

of Methanex’s alleged losses, suppliers to those suppliers and so

on, towards inﬁnity. As such, Article 1101(1) would provide no

signiﬁcant threshold to a NAFTA arbitration. A threshold which

could be surmounted by an indeterminate class of investors making

a claim alleging loss is no threshold at all; and the attractive

simplicity of Methanex’s interpretation derives from the fact that

it imposes no practical limit. It may be true, to adapt Pascal’s

statement, that the history of the world would have been much

affected if Cleopatra’s nose had been different, but by itself that

cannot mean that we are all related to the royal nose. The Chaos

theory provides no guide to the interpretation of this important

phrase; and a strong dose of practical common-sense is required.

138. In a legal instrument such as NAFTA, Methanex’s inter-

pretation would produce a surprising, if not an absurd, result.

The possible consequences of human conduct are inﬁnite, especially

when comprising acts of governmental agencies; but common

sense does not require that line to run unbroken towards an endless

horizon. In a traditional legal context, somewhere the line is

broken; and whether as a matter of logic, social policy or other

value judgment, a limit is necessarily imposed restricting the con-

sequences for which that conduct is to be held accountable. . . .

139. The approach here can be no different. Methanex’s

interpretation imposes no practical limitation; and an interpretation

imposing a limit is required to give effect to the object and purpose

of Chapter 11. The alternative interpretation advanced by the

USA does impose a reasonable limitation: there must a legally

signiﬁcant connection between the measure and the investor or

the investment. [W]hilst the exact line may remain undrawn, it

should still be possible to determine on which side of the divide a

particular claim must lie.

140. UN New York Convention: This interpretation is

supported by the reference to the UN 1958 New York Convention

in Article 1222 NAFTA, whereby the consent of the NAFTA Party

to arbitration under Article 1122(1) is to be treated as satisfying

Trade, Commercial Relations, Investment, and Transportation 621

the requirement of Article II of the New York Convention. Article

II(1) of the New York Convention limits the recognition of written

agreements to arbitrate differences that may arise “in respect of a

deﬁned legal relationship”: “Each Contracting State shall recognize

an agreement in writing under which the parties undertake to

submit to arbitration all or any differences which have arisen

or which may arise between them in respect of a deﬁned legal

relationship, whether contractual or not, concerning a subject

matter capable of settlement by arbitration.”

It is therefore not sufﬁcient for the purpose of Article II(1)

that there be a limitless agreement to arbitrate any future disputes

that may ever arise between the parties. More is required for

a valid arbitration agreement: the dispute must arise in respect of

“a deﬁned legal relationship”.

****

147. Conclusion: We decide that the phrase “relating to” in

Article 1101(1) NAFTA signiﬁes something more than the mere

effect of a measure on an investor or an investment and that it

requires a legally signiﬁcant connection between them, as the USA

contends. Pursuant to the rules of interpretation contained in

Article 31(1) of the Vienna Convention, we base that decision

upon the ordinary meaning of this phrase within its particular

context and in the light of the particular object and purpose in

NAFTA’s Chapter 11. As indicated above, it is not necessary for

us to address other submissions advanced by the USA in support

of its interpretation based on Article 31(3) of the Vienna Con-

vention (supported by Canada and Mexico).

****

CHAPTER K—ARTICLE 1101(1) NAFTA:

APPLICATION TO THE ASSUMED FACTS

****

154. On the sole basis of [the] assumed facts and inferences, it is

doubtful that the essential requirement of Article 1101(1) is met.

It could be said with force that the intent behind the measures

would be, at its highest, to harm foreign MTBE producers with no

622 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

speciﬁc intent to harm suppliers of goods and services to such

MTBE producers. If so, the measures would not relate to methanol

suppliers such as Methanex; and accordingly, even with such intent

as alleged by Methanex, we would have no jurisdiction to decide

Methanex’s amended claim. However, Methanex’s case does not

stop here. It is further alleged that Governor Davis had a broader

objective: to favour ADM and the US ethanol industry, to penalise

“foreign” MTBE producers and “foreign” methanol producers,

such as Methanex.

155. The USA responds that this cannot be a credible allegation,

for several reasons. First, on the assumed facts, there is no reason

why ADM should be concerned with disadvantaging methanol

suppliers because ADM’s commercial objective is already achieved

by the ban on MTBE. Second, on the assumed facts, Governor

Davis fulﬁls his own objectives by penalising MTBE producers;

and there is no reason why he should also be concerned with the

suppliers to these producers or their products, such as methanol and

Methanex. Third, the USA contends that there are strong grounds

for inferring that Governor Davis could not have intended to penal-

ise “foreign” methanol producers because there is a substantial

US methanol industry equally subject to such intentional harm.

156. In addition, the USA contends that there is no sufﬁcient

reason for attributing ADM’s motives to Governor Davis. . . .

157. These are powerful points; and if it were possible for

us safely to conclude at this stage that there was nothing more

to Methanex’s case, we would be minded to decide that the

requirements of Article 1101(1) were still not met with a sufﬁciently

credible allegation of intent. However, Methanex also alleges that

it supplies the majority of methanol in California; that California

had no methanol industry of its own; and that as regards MTBE

in California, it is essentially Methanex’s methanol which pro-

vides the relevant “foreign” characteristic which allowed ADM

to promote ethanol to Governor Davis to the disadvantage of

MTBE. Whatever the position elsewhere in the USA, methanol

and Methanex were “foreign” in California; and this, it is sug-

gested, explains why anti-foreigner action could be taken against

methanol in California which on its face would appear to hurt US

producers of methanol. In short, it is contended, as regards

Trade, Commercial Relations, Investment, and Transportation 623

Governor Davis, that his constituency was the State of California;

a “foreign” product was a product foreign to California, which

to him, as inﬂuenced by ADM, signiﬁed methanol produced by

Methanex, a “foreign” product produced by “foreigners”; and his

intent was to harm Methanex.

158. In these circumstances, we do not consider the case clear

enough to determine whether or not Methanex’s allegations based

on “intent” are sufﬁciently credible. Accordingly, it is not possible

for us to decide, at this stage, that any measure does or does not

relate to Methanex or its investments. In particular, decrees and

regulations may be the product of compromises and the balancing

of competing interests by a variety of political actors. As a result,

it may be difﬁcult to identify a single or predominant purpose

underlying a particular measure. Where a single governmental actor

is motivated by an improper purpose, it does not necessarily follow

that the motive can be attributed to the entire government. Much

if not all will depend on the evidential materials adduced in the

particular case.

159. Accordingly, given the procedural solution on which we

have decided below, it would be inappropriate here to develop

any further analysis of Methanex’s factual case. As we have said

already, we do not wish to pre-judge the evidence on disputed

issues or indeed further submissions on that evidence; and so far

we have heard neither.

c. The Loewen Group, Inc. and Raymond L. Loewen v.

United States of America

The Loewen Group, Inc. (“TLGI”), a Canadian corporation

involved in the death-care industry, and Raymond L. Loewen,

TGLI’s chairman and CEO at the time of the events at issue,

ﬁled claims under the ICSID Arbitration (Additional Facility)

Rules in their individual capacities and on behalf of Loewen

Group International, Inc., TLGI’s U.S. subsidiary (collectively

“Loewen”). Loewen sought damages for alleged injuries

arising out of litigation in which the company was involved

in Mississippi state courts in 1995–96. Loewen alleged viola-

tions of three provisions of NAFTA—the anti-discrimination

624 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

principles set forth in Article 1102, the minimum standard of

treatment required under Article 1105, and the prohibition

against uncompensated expropriation set forth in Article 1110.

Loewen requested damages in excess of $600 million. See

discussion in Digest 2001 at 623–642.

In January 2002 the United States objected to the continu-

ing competence of the tribunal over the claims of Loewen fol-

lowing a corporate reorganization. The United States argued

that as a result of the reorganization, Loewen could no longer

satisfy the international law requirement of continuous nation-

ality from the time of injury through the date of the ﬁnal

award, fully applicable to NAFTA Chapter Eleven proceedings.

Excerpts below from the U.S. Memorial on Matters of

Jurisdiction and Competence Arising from the Restructuring

of Loewen, ﬁled March 1, 2002, provide the U.S. arguments

with respect to Loewen’s loss of continuous nationality and

the requirement for such continuity under international law.

The U.S. Reply to the Loewen Counter-Memorial, April 26,

2002, elaborated on the argument that NAFTA does not

contain language derogating from the continuous nationality

rule under customary international law.

The full text of the pleadings is available at www.state.gov/

s/l/c3439.htm.

(1) U.S. Memorial on Matters of Jurisdiction and Competence Arising

from the Restructuring of the Loewen Group, Inc., March 1, 2002

For well more than a year, claimant The Loewen Group, Inc.

(“TLGI”) has been proposing to reorganize all of its business

operations under the umbrella of a United States, rather than

Canadian, corporate parent in order to reap certain beneﬁts of

U.S. corporate citizenship. At the same time, TLGI has been

warning its creditors and investors that such a reorganization

could result in the loss of the Tribunal’s jurisdiction over TLGI’s

NAFTA claims. On January 2, 2002, TLGI’s plan of reorganization

became effective and, as a result, the risk of which TLGI warned

has ﬁnally come to pass.

Trade, Commercial Relations, Investment, and Transportation 625

As part of its reorganization, TLGI ceased to exist as an

ongoing business entity and transferred all of its business operations

to its former United States subsidiary, The Loewen Group Inter-

national, Inc. (“LGII”), which is now called the “Alderwoods

Group, Inc.” Fully aware that a complete transformation of TLGI

into a United States corporation would destroy its NAFTA claims,

TLGI has engaged in an elaborate corporate shell-game in an effort

to create a dual illusion: (1) that Loewen remains a viable Canadian

enterprise, and (2) that the NAFTA claims are still owned by a

Canadian national. Neither, however, is true. As a result, this

Tribunal now lacks jurisdiction over TLGI’s claims.

****

I. THE TRIBUNAL IS WITHOUT JURISDICTION TO

AWARD ANY RELIEF TO TLGI BECAUSE TLGI IS

NO LONGER A “DISPUTING PARTY” TO THIS

ARBITRATION

Arbitration under NAFTA Chapter Eleven, like other forms of

arbitration, requires the parties to remain in existence during the

pendency of their dispute. . . .

To be a “disputing party” under NAFTA Chapter Eleven, a

claimant must be a “disputing investor” which, in turn, requires

(inter alia) that the claimant be a national of a foreign Party

or “an enterprise constituted or organized under the law” of

that foreign Party.

As a consequence of the Loewen Group’s

restructuring, TLGI has ceased to exist as an entity properly

constituted or organized under the relevant Canadian law and,

therefore, is no longer a “disputing party” to this arbitration.

****

In short, despite Loewen’s efforts to maintain the illusion of

TLGI’s continued existence, TLGI is, in reality, completely defunct

NAFTA Articles 201, 1139.

****

626 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

as a matter of both fact and applicable law.

It has divested itself

of all meaningful assets, carries on no business operations and,

indeed, has no ofﬁcers, directors or employees who could do so.

Because TLGI is thus no longer in good standing as a corporation

duly organized under Canadian law, it is no longer a “disputing

party” to this arbitration and, therefore, can assert no claim over

which this Tribunal ha jurisdiction.

****

II. TLGI’s CLAIMS SHOULD BE DISMISSED BECAUSE

THEY ARE NOW OWNED BY A NATIONAL OF

THE UNITED STATES

Under the terms of the NAFTA and well-established principles of

international law, no person or entity can maintain an international

claim against its own State. TLGI concedes as much by having

gone to great lengths to conceal Alderwood’s ownership of the

NAFTA claims behind a Canadian facade. Despite this elaborate

(albeit transparent) gamesmanship, TLGI cannot disguise the fact

that the true ownership of its NAFTA claims, along with all of

its other assets, has devolved to the Alderwoods Group, a U.S.

national with no rights to assert any NAFTA claims against the

United States.

A. The NAFTA Claims Must Be Continuously Owned by a

Non-U.S. National Through the Date of the Final Award

As this Tribunal has acknowledged, Article 1131(1) of the NAFTA

requires it to “decide the issues in accordance with the provisions

of the NAFTA and applicable rules of international law.” Decision

on Jurisdiction ¶ 50. Among the applicable customary international

See L. Sohn & R. Baxter, Convention on the Responsibility of States

for Injuries to Aliens (Draft No. 12 with Explanatory Notes, Apr. 15, 1961)

(“Harvard Draft Convention”), Explanatory note to art. 21(3)(d) at 181

(“A juristic person, unlike a natural one, requires the operation of some

legal system to endow it with existence.”).

Trade, Commercial Relations, Investment, and Transportation 627

law rules is the well-established principle of “continuous national-

ity,” which provides that,

from the time of the occurrence of the injury until the

making of the award, the claim must continuously and

without interruption have belonged to a person or to a

series of persons . . . not having the nationality of the state

against whom it is put forward.

I Oppenheim’s International Law (R. Jennings & A. Watts eds.,

9th ed. 1992) 512–513 (emphasis added). See also, Ian Brownlie,

Principles of Public International Law 482–83 (5th ed. 1998).

The rule establishes a time frame for assessing a claimant’s nation-

ality starting with the date of injury (dies a quo) and ending with

the date of the award (dies ad quem). To recover, a claimant

cannot become a national of the respondent State, or transfer

beneﬁcial ownership of the claim to a national of that State, at

any time during this period. If such a change in nationality does

occur, the “right to press [that] claim is cut off completely, whether

the individual has not yet acted or is actively pressing his claim.”

Sohn & Baxter, Harvard Draft Convention, art. 22(8) & note,

at 187, 197.

Application of this rule in State practice is well-documented.

Consistent with this State practice, the rule has also been applied

According to these and a number of other authorities, any change in

nationality, even to a State other than the respondent State, will result in the

denial of the claim. See Oppenheim’s International Law at 512–13 (“the

claim must continuously and without interruption have belonged to a person

or to a series of persons . . . having the nationality of the state by whom it is

put forward”); Brownlie, Principles of Public International Law at 482

(quoting same). The Tribunal need not address whether this broader principle

applies to NAFTA Chapter Eleven claims, because Loewen’s reorganization

has resulted in a transfer of TLGI’s claims to a national of the respondent

State. Moreover, this is not a case of a coerced or involuntary change in

nationality, such as one brought about by State succession. See Brownlie,

Principles of Public International Law at 482. In the present case, Loewen

voluntarily chose to become a U.S. national.

See, e.g., Bases of Discussion for the Conference Drawn up by

the Preparatory Committee, League of Nations Doc. C.75.M.69.1929.V. at

628 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

repeatedly by international tribunals to deny claims that have

changed nationality during the course of proceedings. See e.g.,

Joseph Kren v. Yugoslavia (U.S. Int’l Cl. Comm’n), [1953] I.L.R.

233, 236 (1957) (“there is ample authority under the decisions of

international tribunals that a claim must have a continuous national

character from the date of its origin to the date of settlement.”).

140–45 (1929), reprinted in 2 S. Rosenne, League of Nations Conference

for the Codiﬁcation of International Law [1930] 423, 562–67 (1975)

(observing that many States—including Australia, Egypt, Germany, Great

Britain, India, Japan, New Zealand and South Africa—agree that the injured

person must retain the nationality of the claimant State through the date of

the award); id. at 567 (“[a]ccording to the opinion of the majority [of States

that responded to the Committee’s request for information], and to

international jurisprudence, the claim requires to have the national character

at the moment when the damage was suffered, and to retain that character

down to the moment at which it is decided”); 5 G. Hackworth, Digest of

International Law 805 (1943) (where an American claimant Ebenezer Barstow

died after his claim was presented to the Japanese government, the U.S.

declined to continue to espouse the claim because the decedent’s wife, who

was the new owner of the claim, was Japanese); F. Nielsen, American and

British Claims Arbitration 30 (1926) (in the Hawaiian Claims case before

the American and British Claims Tribunal, the British Government voluntarily

withdrew the claims of three claimants, “the claimants having acquired

American nationality” during the 14 years between the date the claims were

ﬁrst ﬁled and the date the memorial was ﬁled); U.S. Dep’t of State, Claims

Circular: General Instructions for Claimants, reprinted in S. Doc. No. 66–

67, at 8 (1919) (“the Government of the United States, as a rule, declines to

support claims that have not belonged to [American citizens] from the date

the claim arose to the date of its settlement.’”); 60 French and American

Claims Commission, 1880–1884, Records of Claims (Gibson Bros., Washing-

ton, D.C., undated) (reproducing arguments of the U.S. and France in Chopin

case) (the French and U.S. Governments agreed that the continuous nationality

requirement extends to the date of award).

See also, e.g., Eschauzier, (Gr. Brit.-Mex. Cl. Comm’n of 1931) 5

R.I.A.A. 207 (dismissing a claim by a former British national who became

a U.S. citizen by marriage after ﬁling the claim); Guadalupe (unpublished)

(Fr.-Mex. Reorganized Cl. Comm’n 1931), discussed in A. Feller, The Mexican

Claims Commissions: 1923–1934 at 97 (1935) (denying claim where French

nationality was lost “not only subsequent to the ﬁling but also after the

speciﬁc claim had been listed as receivable in the Supplementary French-

Mexican Convention of 1930”); Chopin (Fr.-U.S. Mixed Cl. Comm’n

of 1880), reprinted in 2 J. Moore, International Arbitrations 1150 (1898)

Trade, Commercial Relations, Investment, and Transportation 629

As the U.S. Foreign Claims Settlement Commission explained in

American Security and Trust Co. v. Hungary (U.S. For. Cl. Settle-

ment Comm’n 1957), reprinted in 26 [1958-II] I.L.R. 322 (1963),

there is “a long list of authorities who have expressed” the

view that, “ ‘up to the last moment of its activities, [a Tribunal]

remains concerned with the question on whose behalf the claim is

prosecuted and to whom the proceeds of an award will ﬂow. . . .’”

(quoting Administrative Decision No. V, Decisions and Opinions

145, 164 (U.S.-Germany Mixed Claims Commission)).

Leading commentators also agree that the continuous national-

ity requirement extends throughout the proceedings to the date of

the ﬁnal award. As Professor Brownlie observes, “the majority of

governments and of writers take the date of the award or judgment

as the critical date.”

See also F.V. Garcia-Amador, et al., Recent

Codiﬁcation of the Law of State Responsibility for Injuries to

Aliens 82 (1974) (“[T]he predominant opinion both in diplomatic

practice and in international case-law is unquestionably” that

the continuous nationality rule applies through the date of the

award.).

Professor Christopher Greenwood, whose third written

opinion in this proceeding is attached hereto at Tab B, also agrees

that, “from the date of the original injury to the date on which the

award or judgment is given,” an international claim “must be

(“The commission, holding that the treaty requirement as to the claimant’s

citizenship applied as well to the time when the claim was sought to be

collected as to the time when it arose, uniformly decided that it had no

jurisdiction to award anything against the United States in favor of a person

who was not at the time of the award a citizen of France[.]”); Gribble

(Brit.-Am. Mixed Cl. Comm’n, 1872), Report of Robert S. Hale, Esq., Agent

and Counsel of United States, [1873, Part II, Vol. III] U.S. Foreign Relations

14 (1874) (commission was unanimous that the claimant’s naturalization as

a U.S. citizen after the ﬁling of his memorial deprived him of standing); see

also Biens Britanniques au Maroc Espagnol—Benchiton (Gr. Brit. v. Spain),

2 R.I.A.A. 615, 706 (1924) (“the claim must remain national up to the time

of the judgment, or at least up to the time of the termination of the argument

relating thereto”).

Brownlie, Principles of Public International Law at 484.

See also, M. Shaw, International Law 565 (4th ed. 1997); Sohn &

Baxter, Harvard Draft Convention, art. 23(7) at 200.

630 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

owned continuously by a national or nationals of the claimant

State and must not be owned at any part of this period by a

national of the respondent State.” Greenwood Third Op. at ¶ 21.

NAFTA Chapter Eleven does not derogate from this established

principle.

To the contrary, the requirement of continuous

nationality is consistent with various of the Agreement’s provisions.

Indeed, the dispute resolution provisions of Chapter Eleven, on

their face, pertain to “Disputes between a Party and an Investor

of Another Party” (NAFTA Section B) (emphasis added), thus

expressly incorporating the basic requirement that a claimant

have a nationality other than that of the respondent State. See

Feldman v. United Mexican States, Interim Decision on Preliminary

Jurisdictional Issues, 40 I.L.M. 615, 620 at ¶ 34 (2001) (“the

deﬁnition in Article 1139 of the ‘investor of a Party’ ..., in the

scope of application of Article 1117(1), refers to an investor of

a Party other than the one in which the investment is made”)

(emphasis added). This basic requirement is similarly reﬂected in

Article 1117(4), which speciﬁes that an “investment” cannot assert

a claim under the Chapter, but must instead rely upon an investor

of another Party to bring a claim on its behalf.

The award enforcement provisions of Chapter Eleven also

accord with a continuous nationality requirement through the time

of the award. For example, Article 1136(5) provides that a “Party

whose investor was a party to the arbitration” can invoke the

procedures of NAFTA Chapter Twenty and seek a decision from

a panel established by the Free Trade Commission enforcing the

award against the “disputing Party.” The procedure established

by this provision, which is analogous to a traditional espousal

claim, assumes a continuing connection between the investor and

the non-disputing Party through the time of the award, so as to

allow that Party to pursue a State-to-State arbitration on behalf of

the investor. Without such a requisite connection, no Party would

See Greenwood Third Op. at ¶ 27 (observing that, while “States

are, of course, free to waive or vary the [continuous nationality] doctrine by

treaty should they so wish[,] [t]here is no indication that the parties to

NAFTA intended to do anything of the kind”).

Trade, Commercial Relations, Investment, and Transportation 631

have an interest in seeking enforcement on the investor’s behalf.

Similarly, a “disputing investor” may seek enforcement of an award

on its own under the ICSID Convention, the New York Convention

or the Inter-American Convention. See NAFTA Article 1136(6).

The term “disputing investor,” however, is speciﬁcally deﬁned

in Article 1139 to mean “an investor that makes a claim under

[Chapter Eleven] Section B.” As discussed above, Articles 1116

and 1117 prohibit a claimant investor from possessing the same

nationality as the respondent Party. Article 1136(6) carries this

requirement forward through the enforcement stage. Thus, each

NAFTA Party contemplated enforcement of Chapter Eleven awards

against itself only by investors of another NAFTA Party.

Even in the absence of these provisions, the continuous

nationality rule would continue to apply to Chapter Eleven claims.

As this Tribunal has recognized, “an important principle of

international law should not be held to have been tacitly dispensed

with by an international agreement, in the absence of words making

clear an intention to do so.” Decision on Jurisdiction ¶ 73 (citing

Elettronica Sicula SpA (ELSI) (U.S. v. Italy), 1989 I.C.J. 15 at 42);

see also Sambiaggio Case (Italy-Venez. Mixed Cl. Comm’n of

1903), 10 R.I.A.A. 499, 521 (“something in derogation of the

general principles of international law . . . would naturally have

found direct expression in the protocol itself and would not have

been left to doubtful interpretation”).

If the Parties to the NAFTA

See also NAFTA Articles 1116 & 1117 (allowing for claims only by

an “investor of a Party” against “another Party.”); NAFTA, Article 1115

(purpose of Section B is to establish “a mechanism for the settlement of

investment disputes that assures . . . equal treatment among investors of the

Parties in accordance with the principle of international reciprocity....”)

(emphasis added).

Likewise, the NAFTA Chapter Eleven tribunal in Feldman v. Mexico

considered the effect of the claimant’s dual nationality on the claim, a mat-

ter on which Chapter Eleven is silent. The tribunal not only “deem[ed]

it appropriate to recall” international law principles “in matters of standing

in international adjudication or arbitration or other form of diplomatic

protection,” 40 I.L.M. at 619 ¶ 30, but it also checked the result “obtained

under general principles of international law . . . against the NAFTA legal

framework,” id. at 620 ¶ 33, and found that the NAFTA could be interpreted

consistently with such principles. Id. at 621 ¶ 36.

632 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

had intended to derogate from the longstanding requirement

of continuous nationality through the date of award, they could

easily have included language to that effect. It is signiﬁcant that

they did not.

Indeed, other international agreements have contained express

provisions modifying the requirements of the continuous nationality

rule. For example, the Claims Settlement Declaration between the

United States and Iran under the Algiers Accords, which establishes

the jurisdiction of the Iran-United States Claims Tribunal in

disputes outstanding as of January 19, 1981, requires a claim to be

“owned continuously, from the date on which the claim arose to

the date on which this agreement enters into force, by nationals of

that state.”

The Claims Settlement Declaration thus speciﬁcally

modiﬁes the end point (dies ad quem) of the continuous nationality

rule. See Development Resources Corp. v. Iran, 25 Iran-U.S. Cl.

Trib. Rep. 20, 28 (1990). Similarly, the Agreement of 1964 between

the United States and Yugoslavia, which resolved disputes arising

between July 19, 1948 and November 5, 1964, deﬁnes “claims of

nationals of the United States” as “claims which were owned by

nationals of the United States on the date on which the property

. . . was nationalized . . . and on the date of the Agreement.”

Thus,

in addition to speciﬁcally modifying the dies ad quem, the Yugoslav

Agreement appears to abandon the requirement of continuity of

ownership throughout the relevant period. In another example,

the Agreement of 1963 between the United States and Bulgaria

modiﬁed both the starting and ending dates for the continuous

nationality rule. The Bulgaria Agreement contains three different

Article VII(2), Declaration of the Government of the Democratic

and Popular Republic of Algeria Concerning the Settlement of Claims by

the Government of the United States of America and the Government of the

Islamic Republic of Iran (“Claims Settlement Declaration”), entered into

Jan. 19, 1981, reprinted in 20 I.L.M. 230, 233 (1981).

Article I, Agreement Between the Government of the United States

of American and the Government of the Socialist Federal Republic of

Yugoslavia Regarding Claims of United States Nationals, dated November

5, 1964, entered into January 20, 1965, reprinted in 16 U.S.T. 1 [TIAS

5750] (1965).

Trade, Commercial Relations, Investment, and Transportation 633

deﬁnitions of the term “claims of nationals of the United States.”

Depending on the type of claim, the term refers to claims

owned by U.S. nationals from a certain starting date “and con-

tinuously thereafter until ﬁled with the Government of the United

States of America.”

The NAFTA, in contrast, contains no such

provisions.

Moreover, permitting claims to proceed even after the holder

of the claim has become a national of the respondent State

would contravene principles of international reciprocity and the

sovereignty of each of the Parties to the Agreement, which are

fully recognized in the NAFTA’s investor-State dispute resolution

provisions.

It would be a signiﬁcant affront to the intentions of

the Parties—and, indeed, the sovereignty of each of those Parties—

for a Chapter Eleven tribunal to require a NAFTA Party to pay

an award to an enterprise that is owned or controlled by its own

nationals. As the United States Supreme Court has explained,

[i]ndependently of the express provisions of the treaty, it could

not reasonably be urged that the award should inure to the beneﬁt

of citizens of the United States. It would be a remarkable thing,

and we think without precedent in the history of diplomacy, for

the government of the United States to make a treaty with another

country to indemnify its own citizens for injuries received from

its own ofﬁcers. Burthe v. Denis, 133 U.S. 514, 520–21 (1890)

(holding that claimants claiming against the United States before

the French-American Claims Commission needed to be citizens of

France both at time of presentment of the claim and “of judgment

thereon”).

Article I(2), Agreement Between the Government of the United States

of America and the Government of the People’s Republic of Bulgaria

Regarding Claims of United States Nationals and Related Financial Matters,

dated July 2, 1963, entered into July 2, 1963, reprinted in 14 U.S.T. 969,

970 [TIAS 5387] (1963).

See, e.g., NAFTA Articles 1101(4), 1115; 1117(4); see generally

NAFTA Chapter Twenty.

****

634 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

B. Alderwoods, a U.S. National, Is Now the Owner of

the NAFTA Claims

The purpose and effect of Loewen’s reorganization is clear:

to transform Loewen into a U.S. corporate family led by the

Alderwoods Group, via the dissolution of TLGI and the transfer

of its assets to Alderwoods. . . .

****

1. TLGI Has Assigned Away its NAFTA Claims

****

Although TLGI purports to retain legal title to the NAFTA

claims, it is the equitable, not the nominal, owner that determines

the nationality of the claim in circumstances like those present

here. Indeed, it is well-established that an international claim

“terminates if the holder of the beneﬁcial interest in the claim

becomes a national of the . . . [respondent] State”, even if the

allegedly “injured alien” remains a foreign national. Sohn &

Baxter, Harvard Draft Convention, art. 22(8) (emphasis added).

For this reason, international tribunals generally determine the

nationality of claims by “look[ing] to the citizenship of the real

claimant and equitable owner rather than of the nominal claimant

and ostensible owner.” Edwin M. Borchard, Diplomatic Protection

of Citizens Abroad 666 (1915).

Numerous international authorities support the principle that

“the national character of a claim must be tested by the nationality

of individuals holding a beneﬁcial interest therein rather than

by the nationality of the nominal or record holders of the claim.”

American Security and Trust Co. v. Hungary (U.S. For. Cl.

Settlement Comm’n 1957), reprinted in 26 [1958-II] I.L.R. 322–

23 (1963) (where the trustee presenting the claim was a U.S. citizen,

but its beneﬁciaries were not, the commission rejected the claim,

See also Oppenheim’s International Law at 514 (“it will usually be

the nationality of the holder of the beneﬁcial interest which will be the

determining factor for purposes of an international claim”).

Trade, Commercial Relations, Investment, and Transportation 635

noting that “[p]recedents for the foregoing well-settled proposition

are so numerous that it is not deemed necessary to document it

with a long list of authorities”); Binder-Haas v. Yugoslavia (U.S.

Int’l Cl. Comm’n 1953), reprinted in [1953] I.L.R. 236–38 (1957)

(holding that “ostensible owner” of shares was not entitled to

bring a claim on his own behalf and looking to the nationality

of the beneﬁcial owners). Contemporary commentators have con-

ﬁrmed the continuing validity of this proposition. See Brownlie,

Principles of Public International Law, at 482–83 (following

American Security and Trust Co.). As Professor Greenwood

explains, “[t]here is a general consensus that, in determining the

nationality of a claim, international law looks to the substance,

not the form.” Greenwood Third Op. at ¶ 5.

For example, in the Coleman case, the British-American Mixed

Claims Commission disallowed a claim against the United States

where the nominal British claimant had assigned the beneﬁcial

interests in his claim to an American company.

“The claim was

prosecuted before the commission by [the American assignees] at

their own cost and for their own beneﬁt, though in the name of

Charles Coleman.”

The Commission accepted the United States’

contention that the Commission had lost jurisdiction over the

claim because “the case was in substance one between the United

States and its own now citizens . . . and was not . . . a bona-ﬁde

controversy between a subject of Great Britain and the government

of the United States as the treaty contemplated.”

In the Lederer case, the Great Britain-Germany Mixed Arbitral

Tribunal refused a claim, originally notiﬁed by a British national

Charles Coleman v. United States (Am.-Brit. Mixed Cl. Comm’n

1872), reprinted in Report of Robert S. Hale, Esq., Agent and Counsel of

United States, [1873, Part II, Vol. III] U.S. Foreign Relations 98–100 (1874).

See also J. Ralston, The Law and Procedure of International Tribunals (1926)

(1973 ed.) at 175 (explaining that the Commission “in the Coleman case

refused an award to American assignees of a claim against the United States

which was originally British, apparently considering with propriety that the

commission lost jurisdiction, such a transfer to citizens of the respondent

nation being made”).

Coleman at 99.

Id. at 100.

636 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

against Germany but pursued by executors of his estate after his

death, to the extent that “compensation would be ultimately

awarded to a German beneﬁciary” of the decedent’s estate.

The

tribunal reasoned that to allow such relief would “be inconsistent

with the meaning of the Treaty, for it would lead in effect to

payments . . . by Germany to German nationals.”

Similarly, in Parrot’s Case, 3 Moore’s, International

Arbitrations 3009 (1898), the U.S.-Mexico Claims Commission

denied a claim brought by a U.S. citizen against Mexico based

upon the action of Mexican courts in disposing of a lawsuit ﬁled

by Parrot. The Commission found that Parrot had assigned all of

his property and “all his credits and claims, except such claims as

he might have against the Government of Mexico” to his Mexican

creditors. Despite his speciﬁc reservation of claims against Mexico,

the Commission decided that Parrot had “no valid claim” relating

to the lawsuit after the assignment. Id. The Iran-U.S Claims

Tribunal, as well, regularly considers the beneﬁcial owner, rather

than the record owner, of property in certain matters of jurisdiction

where evidence indicates that the beneﬁcial owner is “in reality

the true owner of the property.” Reza Nemazee, Award 575–4–3

at ¶ 54; see also Charles N. Brower & Jason D. Brueschke, The

Iran-United States Claims Tribunal 111 (1998) (“Consistent with

historical claims practice, the Tribunal has favored beneﬁcial over

nominal ownership for the purposes of [Article VII of the Claims

Settlement Declaration].”) (footnote omitted).

****

2. Alderwoods Is the Real Owner of the NAFTA Claims

Because Nafcanco Is Not an Independent Entity

****

Exors. of F. Lederer v. German Government (Interlocutory Decision)

(Gr. Brit.-Germ. Mixed Arbitral Tribunal 1923) in Recueil des Décisions des

Tribunaux Arbitraux Mixtes 762, 765 (1924) (the tribunal did not consider

itself “empowered by the Treaty to go in [its] award further than is necessary

to ensure the compensation due to the British beneﬁciaries”).

Lederer (Decision on an Application under the Provisions of Rule 40)

in id. at 766, 770.

Trade, Commercial Relations, Investment, and Transportation 637

International tribunals have cast a particularly wary eye on

transfers of claims to corporate entities, like Nafcanco, that appear

to have been created solely for the purpose of establishing or

maintaining the requisite nationality for pursuing the claim. See 8

Marjorie M. Whiteman, Digest of International Law 1270–1272

(1967) (collecting cases). As Professor Brownlie has explained,

“international law has a reserve power to guard against giving

effect to ephemeral, abusive and simulated creations.” Brownlie,

Principles of Public International Law at 489; see also Restatement

(Third) of the Foreign Relations Law of the United States § 213

n. 2 (1986) (“[A] respondent state is entitled to reject representation

by the state of incorporation where that state was chosen solely for

legal convenience, for example as a tax haven, and the corporation

has no substantial links with that state, such as property, an ofﬁce

or commercial or industrial establishment, substantial business

activity, or residence of substantial shareholders.”). In such circum-

stances, customary international law recognizes a limitation to the

general principle that a corporation has a legal identity separate

from that of its shareholders. As the International Court of Justice

acknowledged in Barcelona Traction,

the law has recognized that the independent existence of

the legal entity cannot be treated as an absolute. It is in

this context that the process of “lifting the corporate veil”

or “disregarding the legal entity” has been found justiﬁed

and equitable in certain circumstances or for certain

purposes. The wealth of practice already accumulated on

the subject in municipal law indicates that the veil is lifted,

for instance, to prevent the misuse of the privileges of legal

personality, as in certain cases of fraud or malfeasance, to

protect third persons such as a creditor or purchaser, or to

prevent the evasion of legal requirements or obligations. . . .

[T]he process of lifting the veil, being an exceptional one

admitted by municipal law in respect of an institution of

its own making, is equally admissible to play a similar role

in international law.

Barcelona Traction (Belg. v. Spain), 1970 I.C.J. 39 ( Judgment

Feb. 5) (emphasis added); see also Autopista Concesionada de

638 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Venezuela, C.A. v. Bolivarian Republic of Venezuela, ICSID Case

No. ARB/00/5, (Decision on Jurisdiction Sept. 27, 2001) at 116,

122 (where, in determining the “foreign control” required for

jurisdictional purposes under the Convention, the tribunal found

it had “to review the concrete circumstances of the case without

being limited by formalities” to ascertain whether “the purposes

of the Convention have [ ] been abused,” e.g., whether a “cor-

poration of convenience exert[ed] a purely ﬁctional control for

jurisdictional purposes”).

In addition, international authorities fully support the rejection

of international claims “of foreign juristic persons in which

nationals of the respondent State hold the controlling interest,”

particularly in “the case of a juristic person whose [foreign]

nationality is more ﬁctitious or nominal than real.” F.V. Garcia-

Amador, et al., Recent Codiﬁcation of the Law of State

Responsibility for Injuries to Aliens 83 (1974) (emphasis added);

see also Revised Draft Articles on International Responsibility

of the State for Injuries Caused in it Territory to the Person or

Property of Aliens, art. 23(4), in id. at 132 (“A State may likewise

not bring a claim on behalf of foreign juristic persons in which

nationals of the respondent State hold the controlling interest.”).

While the Harvard Draft Convention on State Responsibility,

like NAFTA Chapter Eleven, generally bases the nationality of

a juridical entity on the law under which it is incorporated, it

nevertheless would preclude a corporation from presenting a claim

“if the controlling interest in that [juridical] person is in nationals

of a State alleged to be responsible or in an organ or agency of

that State.” Sohn & Baxter, Harvard Draft Convention, art. 22(7)

at 187; see also id. art. 23(4) at 199.

Consistent with this authority, the U.S.-Mexican Claims

Commission in the claim of Monte Blanco Real Estate Corp. (U.S.

v. Mexico) denied the claim of Monte Blanco because it found

that Mexican nationals had formed the claimant corporation for

As an explanatory note to the Harvard Draft Convention makes

clear, “[t]he test to be applied is one of control, not of ownership.” Sohn &

Baxter, Harvard Draft Convention, Explanatory note to art. 22(7) at 196.

Trade, Commercial Relations, Investment, and Transportation 639

the sole purpose of seeking diplomatic protection from the United

States against Mexico. The Commission explained:

Claimant urges that it is an American national; that

a corporation is a distinct personality apart from its

stockholders, and that it is recognized as a separate entity

in American law. However, even if the stock of the claimant

company were owned by American nationals, such

ownership would not be sufﬁcient to justify the claim’s

espousal by the American Government if it were merely

a colorable ownership concocted for the purpose of pro-

tecting non-American interests.

Monte Blanco Real Estate Corp., Decision No. 37-B (Am.-Mex.

Cl. Comm’n of 1942), reprinted in Report to the Secretary of

State 191, 195 (1948).

A similar result was obtained in a case involving the sinking of

the “I’m Alone” (a British Ship of Canadian registry) by the United

States. S.S. “I’m Alone” (Can. v. U.S.), (Special Agreement,

Convention of Jan. 23, 1924) 3 R.I.A.A. 1610, 1617–18 (1935).

At the time of sinking, the “I’m Alone” was formally registered

in Nova Scotia and owned by a Canadian company, all of whose

shareholders were nominally British. However, despite the

ostensible Canadian and British ownership of the “I’m Alone,”

the United States argued that the ultimate American owners of the

shipping company “abused the privilege of both Canadian registry

and Canadian incorporation.”

The Commission agreed, ﬁnding

that the ship was “de facto owned, controlled, and at the critical

times, managed, and her movements directed and her cargo dealt

with and disposed of, by a group of persons acting in concert who

were entirely, or nearly so, citizens of the United States, and who

Answer of the Government of the United States of America to the

Claim of His Majesty’s Government in Canada in Respect of the Ship “I’m

Alone,” Publications of the Department of State, Arbitration Series No. 2(3),

at 1–2 (1931).

****

640 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

employed her for the [illicit] purposes mentioned.” Id. at 1617–

18. Accordingly, the Commission denied the claim even though

the relevant convention merely required that the ship be a British

ﬂag vessel in order for a claim to be presented. See Convention of

January 23, 1924 Between the United States and Great Britain to

Aid in the Prevention of Smuggling of Intoxicating Liquors into

the United States, art. 4, reprinted in, 3 R.I.A.A. 1611–13.

Like the purportedly Mexican corporation in Monte Blanco

and the Canadian-registered I’m Alone, Nafcanco was “concocted”

for the sole purpose of masking an American interest behind

“colorable” foreign ownership. For all practical purposes,

Nafcanco is a part of Alderwoods and Alderwoods is in de facto

ownership and control of the NAFTA Claims.

****

III. TLGI’S ARTICLE 1117 CLAIM SHOULD BE

DISMISSED BECAUSE TLGI NO LONGER

“OWNS OR CONTROLS” LGII

NAFTA Article 1117 allows “[a]n investor of a Party” to make

a claim “on behalf of an enterprise of another Party . . . that the

investor owns or controls directly or indirectly” for damages

suffered by the investment enterprise. TLGI has brought such a

claim against the United States on behalf of its former subsidiary,

LGII. However, as a result of the reorganization, TLGI no longer

“owns or controls” that enterprise. Indeed, it has no connection

at all to Alderwoods or the rest of the Alderwoods Group.

Therefore, TLGI cannot maintain a claim on behalf of LGII.

As the United States explained during the jurisdictional phase

of this proceeding, Article 1117 makes clear the intention of the

NAFTA Parties that ownership or control of an investment

enterprise must be ongoing in order for an investor to maintain a

See, e.g., Disclosure Statement at 75–76 (U.S. App. at 1455–56)

(“Immediately following the consummation of the Restructuring Transactions,

TLGI will have . . . no relationship to Reorganized LGII or any of its

subsidiaries other than as a result of the transactions relating to the NAFTA

Claims.”).

Trade, Commercial Relations, Investment, and Transportation 641

claim on behalf of that enterprise.

Without such ongoing owner-

ship or control, a claimant has no authority to speak on behalf of

the enterprise (e.g., for purposes of settlement of the claim, or

otherwise in the course of the proceedings), to consult with the

enterprise, or obtain documents or other information from the

enterprise. Indeed, it would be nothing short of absurd to allow

an investor to advance an international claim on behalf of an

enterprise owned or controlled by someone else. As Chapter Eleven

makes clear, the NAFTA Parties contemplated claims on behalf of

investments only by those investors who maintained such authority

throughout the entire proceedings. Thus, by voluntarily surrender-

ing its ownership of LGII/Alderwoods, TLGI has also surrendered

its right to assert a claim on that enterprise’s behalf.

****

d. ADF Group Inc. v. United States

ADF Group Inc. (“ADF”), a Canadian corporation that

designs, engineers, fabricates, and erects structural steel,

ﬁled a claim under the ICSID Arbitration (Additional Facility)

Rules on its own behalf and on behalf of ADF International

Inc., its Florida subsidiary. ADF claimed damages for alleged

injuries resulting from the federal Surface Transportation

Assistance Act of 1982 and the Department of Transport-

ation’s implementing regulations, which require that federally-

funded state highway projects use only domestically produced

steel. At issue in the case was a procurement contract

between the Department of Transportation of the State

of Virginia and Shirley Contracting Corporation, and a

sub-contract between Shirley and ADF International. The

Virginia project was partially funded by the Federal Highway

See U.S. Jurisdictional Mem. at 91–92; U.S. Response on Jurisdiction

at 92–94; see also NAFTA Article 1117 (allowing investors to make claims

on behalf of an enterprise that “the investor owns or controls directly or

indirectly”); Article 1135(2) (directing payment, for Article 1117 claims, to

the enterprise); Article 1136 (providing for enforcement of any award under

Article 1117 only by a disputing party, not by an investment).

642 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Administration, which required a “Buy America” provision

to be included in the Virginia contract with Shirley. ADF

claimed $90 million in damages for violations of the national

treatment requirement of Article 1102, the minimum standard

of treatment requirement of Article 1105(1), and the prohi-

bition against performance requirements contained in Article

1106. See discussion in Digest 2001 at 611–623.

The United States ﬁled a Rejoinder on Competence and

Liability on March 29, 2002. Following a hearing on April

16–18, 2002, the United States made two post-hearing

submissions, dated June 27 and August 1, 2002. Excerpts

below from the Rejoinder provide the U.S. view that the

action complained of in this case constituted “procurement

by a Party.” Excerpts from the post-hearing submissions

focus on the interpretation of NAFTA Article 1105(1). In its

discussion, the United States explains its disagreement with

dicta in an award in Pope & Talbot v. Canada concerning

the Free Trade Commission interpretation of that provision

(see also Mondev Award, supra). The tribunal in that case

awarded damages to the U.S. claimant in an award of May

31, 2002; see also Digest 2000 at 674–694.

(1) Rejoinder on Competence and Liability, March 29, 2002

****

ADF errs when it argues that “procurement by a Party” is not at

issue here because “[t]here was no procurement or procurement

contract between the U.S. and any supplier of goods and services.”

Reply ¶ 43. ADF’s contention is based on a distinction between

federal and state governments that ﬁnds no support in the text of

Article 1108’s exclusion for “procurement by a Party.”

The Parties to the NAFTA are three States under international

law: Canada, the United States of America and the United Mexican

States. The State in international law is responsible for the ensemble

of governmental activity within the territory of the State, regardless

of how governmental authority is divided within the State under

Trade, Commercial Relations, Investment, and Transportation 643

its internal law. As Professors Patrick Daillier and Alain Pellet

note in their recent treatise on public international law:

[A State’s] “government,” from the perspective of

public international law, includes not only the executive

authorities of the State, but the ensemble of its “public

powers.” It is the entirety of the internal political, judicial

and administrative order that is envisaged.

Article 4(1) of the Draft Articles on Responsibility of States

for Internationally Wrongful Acts, adopted by the International

Law Commission last summer, states this accepted principle of

customary international law as follows:

The conduct of any State organ shall be considered an

act of that State under international law, whether the

organ exercises legislative, executive, judicial or any other

functions, whatever position it holds in the organization

of the State, and whatever its character as an organ of the

central government or of a territorial unit of the State.

The use of the term “Party” in Chapter Eleven reﬂects an

understanding that is consistent with that of the State in inter-

national law: the term “Party” encompasses state, federal and

local governments, whether acting independently or in concert.

Article 1102(1), for example, requires that a “Party” accord

national treatment with respect to investments. As Article 1102(3)

explicitly makes clear, however, the “Party” that bears that national

treatment obligation includes the states and provinces.

Similarly,

although other obligations in Chapter Eleven are also imposed on

Nguyen Quoc Dinh, Droit international public 413 ¶ 272

(Patrick Daillier & Alain Pellet eds., 6th ed. 1999).

Report of the International Law Comm’n, 53rd sess., U.N.

Doc. A/56/10, at 84 (2001) (emphasis added).

See NAFTA art. 1102(3) (“The treatment accorded by a Party under

paragraphs 1 and 2 means, with respect to a state or province, treatment

no less favorable than the most favorable treatment accorded, in like

circumstances, by that state or province to investors, and to the investments

of investors, of the Party of which it forms a part.”).

644 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

a “Party,” Article 1108(1) sets forth varying exceptions to those

obligations for federal, state and local measures—exceptions

that would be unnecessary if the term “Party” did not include

states, provinces, localities and other governmental subdivisions.

Contemporaneous statements made by Canada in implementing

the NAFTA conﬁrm this view: in its Statement of Implementa-

tion, Canada observed that “section A [of Chapter Eleven] covers

measures by a Party (i.e., any level of government in Canada).”

Thus, as noted in the U.S. Counter-Memorial, while distinctions

between different levels of government are expressly relevant to

the scope of Chapter Ten of the NAFTA, such distinctions are not

relevant to the scope of Article 1108’s exclusion for “procurement

by a Party.” By the use of the term “Party,” Articles 1108(7) and

1108(8) make clear that any form of government procurement at

all levels of government are encompassed within the exception.

Here, the speciﬁcation that U.S. steel be used in the Project

—whether viewed as a speciﬁcation of the Commonwealth of

Virginia, the federal government or as a federal/state governmental

collaboration—clearly emanates from the United States of America.

The United States is a Party to the NAFTA. Under the plain

meaning of Article 1108, therefore, the procurement at issue here

is that of a Party.

****

See NAFTA art. 1108(1)(a)(i) (specifying that certain articles do not

apply to “a Party at the federal level”); NAFTA art. 1108(1)(a)(ii) (specifying

that certain articles do not apply to measures maintained by “a state or

province”); NAFTA art. 1108(1)(a)(iii) (specifying that certain articles do

not apply to measures maintained by a local government). See also generally

NAFTA art. 105 (“The Parties shall ensure that all necessary measures are

taken in order to give effect to the provisions of this Agreement, including

their observance, except as otherwise provided in this Agreement, by state

and provincial governments.”).

Department of External Affairs, North American Free Trade

Agreement: Canadian Statement on Implementation, in Canada Gazette 68,

148 (Jan. 1, 1994) [hereinafter CSI] (emphasis added).

Cf. Article 1128 Submission of the United Mexican States (Jan. 18,

2002) at 2 (“this Tribunal has no jurisdiction to consider what is in reality a

complaint about U.S. government procurement practices.”).

****

Trade, Commercial Relations, Investment, and Transportation 645

ADF’s argument rests on the false assumption that preserving

and promoting states’ and provincial rights is one of the NAFTA’s

objectives.

Nowhere, however, does the NAFTA suggest as an

object and purpose a desire that the NAFTA Parties’ federal

governments refrain from encouraging sub-central governments

to adopt policies deemed to be in the national interest. Contrary

to ADF’s contentions, the existence and extent of sub-central

governments’ policy-making independence from the NAFTA

Parties’ central governments is not a concern of the NAFTA.

Indeed, it would be odd for the NAFTA Parties to enter into an

international agreement for the purpose of effecting changes to

the relationships between their own central and sub-central

governments. And, most importantly, the langu-age of Article 1108

belies any such purported purpose—it does not differentiate

between procurement by different levels of the government of the

Party in its exclusion of all “procurement by a Party.”

Nor, contrary to ADF’s suggestion, is there any rule of treaty

interpretation that authorizes a tribunal to broaden or expand a

treaty’s terms in order to advance goals that the Parties reserved

for future decision. Yet, this is precisely what ADF advocates in

relying on Article 1024 to justify an extension of national-treatment

and performance-requirement obligations to federally-funded

state procurement.

ADF is correct that the NAFTA Parties

indicated in Article 1024 an intent to engage in future negotiations

to attempt to reach agreement to extend these and other obligations

See, e.g., Reply ¶ 38 (“Rather than permitting the state governments

to make their own policy decisions respecting what is appropriate in their

trading relations, the federal government seeks to impose a choice for them

and a choice that runs directly contrary to the stated object and purpose of

NAFTA.”); id. at ¶ 64 (“the Parties did not want to bind states or provinces

against their will.”).

See Reply ¶ 93 (stating that the United States’ position “runs directly

contrary to the object and purpose of NAFTA but also to the express

obligation that the Parties have undertaken ‘to commence negotiations

. . . with a view to the further liberalization of their respective government

procurement markets’ and to seek ‘to expand the coverage’ of Chapter Ten.”)

(quoting NAFTA art. 1024).

646 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

See NAFTA art. 1131(1) (“A Tribunal established under this Section

shall decide the issues in dispute in accordance with this Agreement. . . .”)

(emphasis added); see also Article 1128 Submission of the United Mexican

States, supra n. 13, at 2 (“the Tribunal has no jurisdiction to supplement or

otherwise expand upon the rights and obligations contained in the NAFTA.”).

to sub-central procurement. That statement of intent, however,

does not mean that a tribunal may substitute its decision for the

negotiated resolution the Parties agreed to attempt in Article 1024.

The Parties have not yet agreed to expand their Agreement to

reach sub-central procurement. It is the Agreement as written that

this Tribunal must apply.

****

The United States’ point . . . is a simple one: in order to make

out an Article 1102 claim, ADF must prove the elements required

by that Article. Article 1102 requires a showing of less favorable

treatment “with respect to . . . investments,” not with respect to

trade in goods or services. NAFTA art. 1102(1) & (2) (emphasis

added). Article 1102 does not prohibit discrimination against

goods of different national origin: instead, the text of that Article

only prohibits treating investors and investments of investors

less favorably than U.S. investors and U.S. investments in like

circumstances.

The Article’s focus on investment rather than goods was no

oversight. Article 1003(1), by contrast, expressly requires national

treatment of “the goods of another Party, [of] the suppliers of

such goods and [of] service suppliers of another Party.” (Emphasis

added.) The drafters of the NAFTA thus clearly understood how

to craft a provision addressing national treatment of goods and

suppliers. Their use of different language in Article 1102 conﬁrms

that that article addresses a different topic.

The text of the NAFTA thus provides no support for

ADF’s claim of an Article 1102 violation. ADF’s assertion that

the 1982 Act discriminates against Canadian steel in favor of

U.S. steel, even if proven true, cannot establish a violation

of Article 1102’s national-treatment obligation—because that

obligation addresses different treatment of investments, not

Trade, Commercial Relations, Investment, and Transportation 647

goods.

Nor can ADF establish a violation of Article 1102 by

suggesting, as it does repeatedly, that the measure treats suppliers

of Canadian-fabricated steel or their steel differently than suppliers

of U.S.-fabricated steel.

ADF, rather, must demonstrate that it

has received less favorable treatment than U.S. investors or U.S.-

owned investments. This it has failed to do.

ADF further errs in characterizing as an “artiﬁcial distinction”

that between “the services provided by the investor, which are,

necessarily, outside of the territory in which the investment is

located, and those provided by its investments. . . .” Reply ¶ 204.

This distinction between services provided by an investor and those

provided by an investment is not, as ADF suggests, “artiﬁcial,”

but is, rather, one drawn by the express terms of Chapter Eleven.

The scope of application of Chapter Eleven is limited, in pertinent

part, to “measures . . . relating to . . . investments of investors of

another Party in the territory of the Party.” NAFTA art. 1101(1)

(emphasis added). Article 1102(1) requires a comparison between

the treatment accorded domestic and foreign investors with respect

to investments. Article 1102(2) requires one between the treatment

accorded domestically-owned and foreign-owned investments with

respect to investments. No provision in Chapter Eleven authorizes

See also Article 1128 Submission of the United Mexican States,

supra n. 13, at 2 (“Mexico agrees with the United States that the measures

complained of by the Claimant relate to the treatment of goods in a

government procurement context, not investments, and therefore are not

within the scope of Chapter Eleven.”).

See, e.g., Reply ¶ 184 (asserting that the measure “modif[ied] the

condition of competition in favour of domestic suppliers compared to non-

national suppliers”); id. ¶ 211 (“The Buy America provision in question is

effectively a bar to the importation of fabricated steel for certain markets.”).

Thus, ADF cannot demonstrate an Article 1102 violation even if it

could prove that ADF Group was unable to supply steel from its Canadian

plant to the Project. In this respect, ADF Group is no different from any other

Canadian or Mexican supplier of steel that is not an investor and does not

have an investment in the United States. No one would argue that those

suppliers could challenge under NAFTA Article 1102 their inability to supply

steel to a project due to the application of the 1982 Act. ADF lacks standing

to submit a claim for effects that the 1982 Act may have on it that are in no

way based on the United States’ treatment of it as an investor in the United

States.

648 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

a national treatment comparison between investors and invest-

ments. The express terms of the NAFTA thus provide no support

for ADF’s claim of a national-treatment violation.

****

Furthermore, ADF’s speculative claim for “damages in respect

of all future contracts” is precluded by the NAFTA in any event.

Reply ¶ 267 (emphasis added). NAFTA investor-State arbitration

is inherently retrospective in application. Articles 1116 and 1117,

which allow for the submission of claims only “that another Party

has breached an obligation . . . and that the [investor/enterprise] has

incurred loss or damage by reason of, or arising out of, that breach,”

are drafted in the past tense. NAFTA arts. 1116(1), 1117(1)

(emphasis added). Similarly, under Article 1120, six months must

elapse from the events giving rise to the claim before a claim may

be submitted to arbitration. NAFTA art. 1120(1). No claim based

on speculation as to future breaches may be submitted consistent

with these provisions. Thus, as Chapter Eleven allows a disputing

investor to submit claims only for breaches that have actually

occurred, ADF may not submit a claim for possible future breaches.

(2) Post-Hearing Submission of June 27, 2002

****

The “international minimum standard” embraced by Article

1105(1) is an umbrella concept incorporating a set of rules that

over the centuries have crystallized into customary international

law in speciﬁc contexts.

The treaty term “fair and equitable

See Transcript of Hearing, Apr. 17, 2002, at 758–60 (statement by

Mr. Legum); see also Ian Brownlie, Principles of Public International

Law 531 (5th ed. 1998) (“there is no single standard but different standards

relating to different situations.”); see also id. at 529 (“The basic point would

seem to be that there is no single standard.”); 5 Charles Rousseau, Droit

International Public 46 (1970) (“The great majority of commentators

hold that there exists in this respect an international minimum standard

according to which States must accord to foreigners certain rights . . . , even

where they refuse such treatment to their own nationals.”) . . . (emphasis

supplied; translation by counsel).

Trade, Commercial Relations, Investment, and Transportation 649

treatment” refers to the customary international law minimum

standard of treatment.

The rules grouped under the heading of

the international minimum standard include those for denial of

justice, expropriation and other acts subject to an absolute,

minimum standard of treatment under customary international

law.

The treaty term “full protection and security” refers to the

minimum level of police protection against criminal conduct that

is required as a matter of customary international law.

The rules encompassed within the customary international law

minimum standard of treatment are speciﬁc ones that address

See U.S. Rejoinder at 42 n. 62 & accompanying text; accord

Transcript, Apr. 17, 2002, at 761 (statement by Mr. Legum).

See, e.g., Swiss Dep’t of External Affairs, Mémoire, 36 Ann. Suisse

de Droit Int’l 174, 179 (1980) (“So far as the content of this standard is

concerned, we can limit ourselves to describing it as it relates to the property

rights of foreigners since article 2 of the BIT addresses ‘fair and equitable

treatment’ of only ‘investments.’ On this point, it is appropriate to note the

following: foreign property can be nationalized or expropriated only upon

prompt payment of an effective and adequate indemnity. The foreigner must

also have access to the judiciary to defend himself against wrongful acts

against his property by individuals. Moreover, the alien may require that his

person and his goods be protected by the authorities in the event of riots, in

a state of emergency, etc. . . . The expression ‘fair and equitable treatment’

encompasses the ensemble of these elements.”) . . .

Tribunals have found the obligation of full protection and security to

have been breached only in cases where the criminal conduct involved a

physical invasion of the person or property of an alien. See, e.g., American

Manufacturing & Trading, Inc. (U.S.) v. Zaire, 36 I.L.M. 1531 (1997) (ﬁnding

violation of protection and security obligation in case involving destruction

and looting of property); Asian Agricultural Products Ltd. (U.K.) v. Sri

Lanka, 30 I.L.M. 577 (1991) (similar ﬁnding in case involving destruction

of claimant’s property); Case Concerning United States Diplomatic and

Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3 (May 24) (similar

ﬁnding in case involving hostage-taking of foreign nationals); Chapman v.

United Mexican States (U.S. v. Mex.), 4 R.I.A.A. 632 (Mex.-U.S. Gen. Cl.

Comm’n 1930) (similar ﬁnding in case where claimant was shot and seriously

wounded); H.G. Venable (U.S. v. Mex.), 4 R.I.A.A. 219 (Mex.-U.S. Gen. Cl.

Comm’n 1927) (bankruptcy court indirectly responsible for physical damage

to attached property); Biens Britanniques au Maroc Espagnol (Réclamation

53 de Melilla—Ziat, Ben Kiran) (Spain v. Gr. Brit.), 2 R.I.A.A. 729 (1925)

(no violation where police protection under the circumstances would not

have prevented mob from destroying claimant’s store).

650 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

particular contexts. There is no single standard applicable to all

contexts. The customary international law minimum standard

is in this sense analogous to the common-law approach of dis-

tinguishing among a number of distinct torts potentially applicable

to particular conduct, as contrasted with the civil-law approach

of prescribing a single delict applicable to all conduct. As with

common-law torts, the burden under Article 1105(1) is on the

claimant to identify the applicable rule and to articulate and prove

that the respondent engaged in conduct that violated that rule.

Thus, for example, in a case in which a claimant asserts that it

has suffered injury as a result of an allegedly unjust court judgment,

the factors a tribunal applying Article 1105(1) must take into

account are those for an alleged substantive denial of justice:

whether the judgment in question effects a “manifest injustice” or

“gross unfairness,”

“ﬂagrant and inexcusable violation,”

“palpable deviation” in which “[b]ad faith—not judicial error

seems to be the heart of the matter.”

Where a claimant asserts

that it suffered injury as a result of the destruction of its property

by private citizens, the factors a tribunal applying Article 1105(1)

must take into account are those for an alleged denial of full

protection and security: whether, under all the circumstances, the

J.W. Garner, International Responsibility of States for Judgments of

Courts and Verdicts of Juries Amounting to Denial of Justice, 1929 Brit.Y.B.

Int’l L. 181, 183; see also id. at 188 (“manifestly or notoriously unjust”

decisions).

Eduardo Jiménez de Aréchaga, International Law in the Past Third

of a Century, 159 R.C.A.D.I. 267, 281 (1978).

2 Daniel P. O’Connell, International Law 948 (2d ed. 1970);

see also, e.g., Garrison’s Case (U.S. v. Mex.) (1871), 3 Moore’s Int’l

Arbitration 3129 (1868) (an “extreme” case where court “act[ing] with

great irregularity” refused Garrison’s appeal “by intrigues or unlawful

transactions”); Rihani, Am.-Mex. Cl. Comm’n (1942), 1948 Am. Mex. Cl.

Rep. 254, 257–58 (ﬁnding decision of the Supreme Court of Justice of Mexico

“such a gross and wrongful error as to constitute a denial of justice”); The

Texas Company, Am.-Mex. Cl. Comm’n (1942), 1948 Am. Mex. Cl. Rep.

142, 144 (rejecting claim for failure to show error by Supreme Court of

Justice of Mexico “resulting in a manifest injustice”); Chattin (U.S.) v. Mexico

(1927), 4 R.I.A.A. 282, 286–87 (requiring that injustice committed by

judiciary rise to the level of “an outrage, bad faith, wilful neglect of duty, or

insufﬁciency of action apparent to any unbiased man”).

Trade, Commercial Relations, Investment, and Transportation 651

police exerted the minimum level of protection against criminal

conduct required as a matter of customary international law.

****

The Pope tribunal was wrong to suggest in dicta that the

NAFTA grants it the authority to sit in judgment of the NAFTA

Parties’ acts undertaken pursuant to NAFTA Chapter Twenty.

Although the NAFTA contemplates that both the Free Trade

Commission and Chapter Eleven tribunals may have reason to

interpret the meaning of a provision of the Agreement, the text of

the NAFTA conﬁrms the subsidiary role of Chapter Eleven

tribunals vis-à-vis the FTC in that regard.

In Chapter Twenty, the three NAFTA Parties gave the FTC

plenary authority over the implementation and interpretation

of the NAFTA generally. Among other things, Chapter Twenty

provides that “[t]he Commission shall . . . supervise the imple-

mentation of this Agreement,” and it shall resolve, without

qualiﬁcation, “disputes that may arise regarding its interpretation

or application[.]” NAFTA art. 2001(2)(a), (c) (emphasis added).

The three Parties thus manifested their shared intent “to arrive

at a mutually satisfactory resolution”—through the Free Trade

Commission—“of any matter that might affect [the NAFTA’s]

operation.” Id. art. 2003 (emphasis added).

Chapter Eleven, in contrast, authorizes ad hoc Chapter Eleven

tribunals to settle only a limited range of investment disputes and,

likewise, grants each tribunal limited authority over a particular

investment dispute and the individual claimant and NAFTA Party

involved. See NAFTA arts. 1116–1117; art. 1136(1) (“An award

made by a Tribunal shall have no binding force except between

disputing parties and in respect of the particular case.”).

Thus,

See authorities cited supra n. 6.

****

See Pope Damages Award ¶¶ 23–24.

See also NAFTA art. 1134 (Chapter Eleven tribunals may not even

issue recommendations with respect to the measure alleged to constitute a

breach).

652 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

although a tribunal may be called upon to apply a provision of

the NAFTA in settling an investment dispute (see id. art. 1131(1)),

its own interpretation of such a provision does not bind other

Chapter Eleven tribunals.

The same is not true, however, of an interpretation by the

FTC, which binds all Chapter Eleven tribunals. Indeed, the NAFTA

directly addresses the possibility that a Chapter Eleven tribunal

may have to apply a provision of the NAFTA as to which the FTC

has issued an interpretation. In such a case, the FTC’s plenary

power overrules a tribunal’s authority to interpret particular

NAFTA provisions in deciding issues in investment disputes: “An

interpretation by the Commission of a provision of this Agreement

shall be binding on a Tribunal established under [Section B of

Chapter Eleven].”

It follows that a Chapter Eleven tribunal may

not disregard an interpretation of a provision of the NAFTA by

the NAFTA Parties, acting through the FTC pursuant to Chapter

Twenty, or interpret that provision in a manner inconsistent with

an FTC interpretation.

The NAFTA Parties thus expressly limited

the powers of Chapter Eleven tribunals with respect to the

interpretation of the NAFTA, and made those powers subject to

decisions taken by the Free Trade Commission.

****

As the United States previously demonstrated and the FTC

conﬁrmed, the Pope tribunal erred in its interpretation of Article

NAFTA art. 1131(2) (emphasis added). Even the Pope tribunal recog-

nized that such an interpretation binds all constituted tribunals, regardless

of the phase of the pending arbitration. See Pope Damages Award ¶ 51.

Indeed, the NAFTA considers the views of the Parties regarding

questions of interpretation to be of signiﬁcant importance even when not

expressed in the form of a binding interpretation under Article 1131(2). See,

e.g., NAFTA art. 1128 (allowing non-disputing Parties to make submissions

to a tribunal regarding questions of interpretation); id. art. 2020 (calling on

the NAFTA Parties to seek agreement on an interpretation of the NAFTA

when the issue of interpretation arises in a domestic proceeding); see also id.

art. 1132 (providing that, where a defense is asserted based on a reservation

or exception set out in an Annex, an interpretation by the Commission

“shall be binding” on a tribunal, and only if no interpretation is submitted

shall the tribunal decide the issue).

Trade, Commercial Relations, Investment, and Transportation 653

1105(1) in its April 10, 2001 Award on the Merits (“Pope Merits

Award”).

This incorrect interpretation, which the Pope tribunal

reiterated in its May 31, 2002 Damages Award (but ultimately

did not apply), deﬁes established principles of treaty interpretation

in several respects.

First, the Pope tribunal admitted that its interpretation of Art-

icle 1105(1) is inconsistent with the plain meaning of that Article’s

text.

Such an approach ﬂatly disregards the cardinal rule, set forth

in the Vienna Convention on the Law of Treaties (“Vienna Conven-

tion”), that “[a] treaty shall be interpreted . . . in accordance with

the ordinary meaning to be given to the terms of the treaty[.]”

Second, there is no basis in international law for the Pope

tribunal’s analysis of the phrase “international law” in Article

1105(1) based solely on the reference to that term in the Statute of

the International Court of Justice, a treaty not related to the

NAFTA.

To the contrary, customary international law requires

that treaty terms be construed “in their context and in the light of

[the treaty’s] object and purpose.”

That context includes the text

of the treaty and certain related instruments, but does not include

unrelated treaties.

See Counter-Mem. at 49–50; Rejoinder at 33.

See Pope Damages Award ¶¶ 9, 44.

See id. ¶ 9 (“[T]he Tribunal determined that, notwithstanding the

language of Article 1105, which admittedly suggests otherwise, the

requirement to accord NAFTA investors fair and equitable treatment was

independent of, not subsumed by the requirement to accord them treatment

required by international law.”) (emphasis added).

Vienna Convention on the Law of Treaties, May 23, 1969, 1155

U.N.T.S. 331 (“Vienna Convention”), art. 31(1).

See Pope Damages Award ¶ 46 & n. 35 (relying exclusively on

Article 38 of the Statute of the International Court of Justice). Contrary to

the Pope tribunal’s approach, Article 38 does not purport to deﬁne the term

“international law” in any event.

Vienna Convention art. 31(1) (emphasis added).

See id. art. 31(2) (“The context for the purpose of the interpretation

of a treaty shall comprise, in addition to the text . . . : (a) any agreement

relating to the treaty which was made between all the parties in connection

with the conclusion of the treaty; (b) any instrument which was made by one

or more parties in connection with the conclusion of the treaty and accepted

by the other parties as an instrument related to the treaty.”).

654 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The context of Article 1105(1), which the Pope Damages

Award does not consider, unequivocally demonstrates that the

NAFTA Parties did not intend to incorporate the entirety of inter-

national law in that provision. Notably, the NAFTA’s provisions

show that, although the Parties were well aware of the international

legal obligations contained in the NAFTA and in other agreements

in force between them,

they intended to subject to investor-State

arbitration only a narrow range of obligations: Articles 1116(1) and

1117(1) provide for investor-State arbitration only of “a claim that

another Party has breached an obligation under . . . Section A or

Article 1503(2) ...or...Article 1502(3)(a)[.]” (Emphasis added).

Reading Article 1105(1) to encompass all international legal

obligations would render meaningless the clearly stated limitation

in Articles 1116 and 1117. If the NAFTA Parties intended to offer

Chapter Eleven arbitration for breaches of any international legal

obligation, including those contained in the NAFTA, they would

not have drafted Articles 1116 and 1117 as they did.

For example, the NAFTA states various obligations of the

NAFTA Parties with respect to sanitary and phytosanitary meas-

ures. See, e.g., NAFTA Chapter Seven, Section B, arts. 709–723.

The NAFTA, of course, is an international convention within the

meaning of Article 38(1)(a) of the Statute of the International Court

of Justice, and the obligations with respect to sanitary and phyto-

sanitary measures are obligations in international law as among the

NAFTA Parties. Articles 1116(1) and 1117(1) make perfectly clear,

however, that the NAFTA Parties did not intend to subject claims of

violations of those international law obligations to investor-State

arbitration under Chapter Eleven of the NAFTA. Reading Article

1105(1) to encompass all international legal obligations, including

these, cannot be reconciled with the context of the provision.

Similarly, under the Pope tribunal’s interpretation of Article

1105(1), it would be unnecessary for a claimant under Chapter

Eleven to specify that it was bringing a claim under any article of

Section A of Chapter Eleven other than Article 1105(1). Rather,

See NAFTA art. 103 (“In the event of any inconsistency between

this Agreement and such other agreements, this Agreement shall prevail to

the extent of the inconsistency. . . .”).

Trade, Commercial Relations, Investment, and Transportation 655

under the Pope tribunal’s reading, a claim of a violation of, for

example, Chapter Eleven’s national treatment provision would be

subsumed in an Article 1105(1) claim. Those incongruous results

are not what the NAFTA Parties intended. Indeed, the binding

FTC Interpretation has made it clear that “[a] determination that

there has been a breach of another provision of the NAFTA, or of

a separate international agreement, does not establish that there

has been a breach of Article 1105(1).” FTC Interpretation (July

31, 2001) ¶ B(3).

The context of Article 1105(1) further shows that the

international legal obligations the NAFTA Parties had in mind in

Article 1105(1) were those setting forth minimum standards of

treatment of foreign persons and their property in the territory of

the host State. NAFTA Article 1105(1) itself reﬂects the NAFTA

Parties’ commitment to provide “investments of investors of another

Party” with the international minimum standard of treatment.

The title of the article is “Minimum Standard of Treatment.”

There is a body of international law that sets forth minimum

standards of treatment for property of nationals of a State in the

territory of another State. As the FTC observed in its clariﬁcation,

that body of law is one established under customary international

law, and it is known as the customary international law minimum

standard of treatment of aliens.

Thus, the context of Article

See also NAFTA art. 1101(1)(a)–(b) (limiting the scope of application

of Chapter Eleven, in pertinent part, to “measures maintained or adopted by

a Party relating to . . . investments of investors of another Party in the territory

of the Party”).

See FTC Interpretation ¶ B(1)–(2). Contrary to the Pope tribunal’s

erroneous suggestion, the NAFTA Parties did not seek, by issuing the

interpretation of Article 1105(1), to modify the phrase “international law.”

See Pope Damages Award at n. 9 (“the clariﬁcation consisted of adding

the word ‘customary’ as a modiﬁer.”); id. at n. 37 (characterizing the United

States’ position as arguing “that the term ‘international law’ in Article 1105

means customary international law”). Rather, in paragraph B(1) of the July

31, 2001 Interpretation, the three NAFTA Parties interpreted the meaning

of the obligation agreed to in Article 1105(1): “Article 1105(1) prescribes

the customary international law minimum standard of treatment of aliens as

the minimum standard of treatment to be afforded to investments of investors

of another Party.”

656 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

1105(1) conclusively conﬁrms the correctness of the FTC inter-

pretation and rejects the ill-considered views of the Pope tribunal.

Third, the Pope tribunal similarly erred in its reliance on

provisions of bilateral investment treaties (“BITs”) to interpret

NAFTA Article 1105(1).

Those treaties are not part of the

context for interpreting Article 1105(1) as deﬁned by Article 31(2)

of the Vienna Convention. The Vienna Convention clearly deﬁnes

the “context” of a treaty to include only those “agreement[s]

. . . which [were] made between all the parties” of the treaty and

“instrument[s] . . . made by one or more parties . . . and accepted

by the other parties as an instrument related to the treaty.”

Neither Mexico nor Canada has entered into a BIT with the United

States. Nor has any NAFTA Party accepted, as contemplated by

Article 31(2) of the Vienna Convention, the BITs as instruments

related to the NAFTA. Therefore, the Pope tribunal erred in relying

on the BITs as “context” to interpret the NAFTA.

Moreover, there is no foundation in any event for the Pope

Award’s suggestion of “stark inconsistencies” between the BITs’

provisions on “fair and equitable treatment” and the text of Article

1105(1).

The Pope tribunal’s reading of those BIT provisions,

based in particular on the views of academics regarding United

States BITs, is ﬂatly inconsistent with what the United States

Department of State repeatedly has advised the United States Senate

that provision means in submitting the treaties for constitutionally-

required advice and consent: that the provision was intended to

require a minimum standard of treatment based on customary

international law.

The United States’ understanding of the BITs

it negotiated is the same as the understanding of NAFTA Article

See Pope Merits Award ¶¶ 110–117; Pope Damages Award ¶¶ 9,

27, 44, 61–62.

Vienna Convention art. 31(2) (emphasis added).

See Pope Damages Award ¶ 25.

See U.S. Rejoinder at nn. 59–61 & accompanying text (listing

Department of State letters submitting U.S. BITs to Congress that clarify

that “ ‘fair and equitable’ treatment in accordance with international law . . .

sets out a minimum standard of treatment based on customary international

law”).

Trade, Commercial Relations, Investment, and Transportation 657

1105(1) expressed in the Canadian Statement of Implementation,

issued on January 1, 1994, the day the NAFTA entered into force:

“Article 1105 . . . provides for a minimum absolute standard of

treatment, based on long-standing principles of customary inter-

national law.”

The Pope tribunal therefore erred in suggesting

that there were inconsistencies between the “fair and equitable

treatment” provisions of the BITs and Article 1105(1).

****

As the United States has previously advised this Tribunal,

customary international law, including the minimum standard of

treatment of aliens, may evolve over time. Cf. Pope Damages

Award ¶ 58 (rejecting “static conception of customary international

law”). In addition, treaties, including BITs, may constitute a form

of State practice as between or among the parties to a given treaty.

However, the United States disagrees with the Pope Damages

Award in that it appears to ascribe legal signiﬁcance to this form

of State practice without further analysis.

It is elemental that a rule may be considered to form part of

customary international law only where the rule is established

by a general and consistent practice of States followed by them

Canadian Statement of Implementation at 149 (Jan. 1, 1994)

(emphasis added).

The Pope tribunal mischaracterized the United States as having

“asserted that the difference [between the text of the BITs and Article 1105(1)

of the NAFTA] was the product of a conscious decision by the NAFTA

Parties to change the approach in the BITs.” Pope Damages Award ¶ 27.

Rather, the United States explained to the Pope tribunal that the NAFTA

Parties, in Article 1105(1), merely “chose a formulation that expressly tied

fair and equitable treatment to the customary international minimum

standard” to exclude any other conclusion in light of the academic debate

concerning the meaning of the phrase “fair and equitable treatment” as it

appears in the BITs without express reference to customary international

law. Fourth Submission of the United States in Pope & Talbot, Inc. v. Canada

(Nov. 1, 2000) ¶¶ 7–8. Notwithstanding the academic debate, however,

neither the U.S. BITs nor NAFTA Article 1105(1) requires treatment beyond

the minimum standard of treatment based on customary international law.

****

658 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

from a sense of legal obligation.

In other words, a customary

international law rule is established by two elements: “a concordant

practice of a number of States acquiesced in by others; and a

conception that the practice is required by or consistent with the

prevailing law (the opinio juris).”

In addition, the International Court of Justice has observed

that several factors must be considered in assessing whether a

treaty-based rule reﬂects opinio juris supporting the existence of a

customary, rather than simply a treaty-based, obligation. In North

Sea Continental Shelf (F.R.G. v. Den.; F.R.G. v. Neth.), the Court

held that, in order for a provision to become part of customary

international law, among other things, it must be “a norm-creating

provision,” one which “is now accepted as [a norm of the general

corpus of international law] by the opinio juris, so as to have

become binding even for countries which have never, and do not,

become parties to the Convention.”

While a bilateral investment treaty may reﬂect State practice

between the two parties to that BIT, the Pope tribunal erred in its

analysis of the BITs. It made no attempt to analyze either the

consistency of State practice in investment treaties or whether any

such State practice evidenced the opinio juris necessary to establish

customary international law.

The tribunal does not even mention

opinio juris, let alone cite any evidence of it. Indeed, as mentioned

above, the Pope tribunal found “stark inconsistencies between

the provisions of BITs and corresponding commitments of Art-

icle 1105.”

Thus, because it failed even to attempt the requisite

analysis, the Pope tribunal’s statement that BITs are State practice

cannot support a view that any particular BIT obligation has

crystallized into a rule of customary international law.

3. The Pope Tribunal Erred In Its Analysis Of Authority

Purportedly Supporting Its Award.

See Restatement (Third) of Foreign Relations Law of the

United States § 102(2) (1987).

Clive Parry, John P. Grant, Anthony Parry & Arthur D.

Watts, Encyclopaedic Dictionary of International Law 82 (1986).

1969 I.C.J. 3, 41 ¶ 71 (Feb. 20).

See Pope Damages Award ¶¶ 59–62.

Id. ¶ 25.

Trade, Commercial Relations, Investment, and Transportation 659

Finally, the United States notes that the decision of the Chamber

of the International Court of Justice in Elettronica Sicula S.P.A.

(ELSI) (U.S. v. Italy), 1989 I.C.J. 15 (July 20), does not support

the Pope tribunal’s conclusions with respect to the evolution and

content of customary international law.

In ELSI, the ICJ interpreted a treaty provision, not replicated

in the text of the NAFTA, which prohibited certain “arbitrary”

measures.

The ICJ was not applying customary international

law to the claims of arbitrariness presented in ELSI. Thus, contrary

to the Pope tribunal’s suggestion, the decision in ELSI cannot

reﬂect an evolution in customary international law. Of course,

citation to a single authority applying a conventional standard

does not demonstrate the requisite State practice or opinio juris

necessary to establish the existence of a principle of customary

international law.

In fact, ELSI did not even purport to address

customary international law standards requiring treatment of an

alien amounting to an “outrage” for a ﬁnding of a violation. In any

event, ELSI clearly does not establish that any relevant standard

under customary international requires mere “surprise.”

(3) Post-Hearing Submission of August 1, 2002

****

See Pope Damages Award ¶¶ 63–64.

See ELSI, 1989 I.C.J. at 72 (quoting Article I of the Supplementary

Agreement to the 1948 FCN Treaty between Italy and the United States

as follows: “The nationals, corporations and associations of either High

Contracting Party shall not be subjected to arbitrary or discriminatory

measures. . . .”). Even assuming the Pope tribunal’s broad view of the

meaning of Article 1105(1) is correct (and it is not), because the FCN Treaty

in ELSI is not in force as between Canada, Mexico and the United States,

the ELSI cannot provide any rule of decision applicable here. See Statute

of the International Court of Justice art. 38(1)(a) (stating that the ICJ shall

apply “international conventions . . . establishing rules expressly recognized

by the contesting states”).

See supra nn. 53–54 and accompanying text.

See Pope Damages Award ¶ 64.

****

660 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

As a preliminary matter, all three NAFTA Parties conﬁrm in their

submissions that, contrary to the views expressed by the Pope

tribunal, the NAFTA does not permit a Chapter Eleven tribunal

to review an interpretation of the NAFTA Parties, sitting as

members of the FTC, and disregard it on the ground that the

tribunal considers it to be an “amendment.”

Thus, there is

agreement among the Parties that the Pope tribunal erred when it

determined that it should question whether the FTC interpretation

was binding on it.

***

Furthermore, all three NAFTA Parties agree that the Pope

tribunal was wrong in suggesting in dicta that the FTC

Interpretation was an amendment.

As the FTC Interpretation

makes clear, the interpretation does not change the meaning of

Article 1105(1)—it merely clariﬁes the meaning that the Article

has always had.

As all three NAFTA Parties have noted,

interpreting the words “international law” in Article 1105(1) to

refer to all international law, as the Pope tribunal suggested, runs

afoul of well-established principles of treaty interpretation—

notably, by depriving Articles 1116 and 1117 of their effectiveness

and by disregarding statements made by Canada contem-

poraneously with the NAFTA’s entry into force.

****

See Can. Submission ¶¶ 7–17; Mex. Submission at 18–19; U.S.

Submission at 8–12.

See generally id.

See Can. Submission ¶¶ 7, 18–29. See generally Mex. Submission at

3–10, 18–19; U.S. Submission at 12–19.

See FTC Interpretation of July 31, 2001 chapeau (“[T]he Free Trade

Commission hereby adopts the following interpretations of Chapter Eleven

in order to clarify and reafﬁrm the meaning of certain of its provisions[.]”)

(emphasis added).

See Can. Submission ¶¶ 23, 25, 29; Mex. Submission at 4–6; U.S.

Submission at 13–15, 17–18. The United States notes that even ADF can

explain the Pope tribunal’s analysis of the meaning of Article 1105(1) only

by assuming that the tribunal, without so stating, drew an adverse inference

against Canada for Canada’s purported failure to produce all of the

negotiating history pertaining to Article 1105(1). See ADF Submission ¶ 20.

Trade, Commercial Relations, Investment, and Transportation 661

The International Court of Justice has squarely rejected the con-

tention that a general obligation of “good faith” exists, holding that:

The principle of good faith is, as the Court has observed,

“one of the basic principles governing the creation and per-

formance of legal obligations” (Nuclear Tests, I.C.J. Reports

1974, p. 268, para. 46; p. 473, para. 49); it is not in itself

a source of obligation where none would otherwise exist.

In Land and Maritime Boundary (Cameroon v. Nig.), 1998 I.C.J.

275 (June 11), the I.C.J. reafﬁrmed the proper role of good faith

articulated above. The Court further noted that there was “no

speciﬁc obligation in international law” applicable to the conduct

at issue in that case, and concluded: “In the absence of any such

obligations and of any infringement of Nigeria’s corresponding

rights, Nigeria may not justiﬁably rely upon the principle of good

faith in support of its submissions.”

While it is clear that there is no general obligation of good

faith, the United States recognizes that international law does

impose obligations of good faith in certain speciﬁc circumstances.

For example, the United States agrees with ADF that the customary

international law rule of pacta sunt servanda holds that “[e]very

treaty in force is binding on the parties to it and must be performed

by them in good faith.”

Here, of course, the Buy America pro-

visions were not issued to implement treaty obligations. ADF

therefore has no basis to contend that the United States performed

any treaty obligations in bad faith.

****

2. Claim under Chapter 11 against Canada

United Parcel Service of America, Inc., a U.S. parcel delivery

service provider, submitted claims against Canada under

Border and Transborder Armed Actions (Nicar. v. Hond.), 1988

I.C.J. 69, 105 ¶ 94 (Dec. 20) (emphasis added).

Land and Maritime Boundary, 1998 I.C.J. at 297 ¶ 39.

Vienna Convention art. 26; see ADF Submission ¶ 88.

662 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

the UNCITRAL rules, alleging that Canada Post engaged in

anti-competitive practices. Speciﬁcally, UPS alleged that, in

providing its non-monopoly courier and parcel services

(Xpresspost and Priority Courier), Canada Post unfairly used

its postal monopoly infrastructure to reduce the costs of

delivering its non-monopoly services. UPS claimed that

Canada had breached its obligations under the NAFTA (1)

to supervise a “government monopoly” and “state entity”

(Arts. 1502(3)(a) and 1503(2)); (2) to accord treatment no

less favorable than it accords, in like circumstances, to its

own investors (Article 1102); and (3) to accord treatment in

accordance with international law (Article 1105). UPS sought

US$160 million in damages.

On November 22, 2002, the tribunal issued an Award on

Jurisdiction. The Award is available at www.dfait-maeci.gc.ca/

tna-nac/documents/Jurisdiction%20Award.22Nov02.pdfIt. The

award dismissed a number of UPS’s claims, including its

claims under NAFTA chapter ﬁfteen, to the extent those

claims were not limited to alleged violations of obligations

in section A of NAFTA chapter eleven, and UPS’s article 1105

claim. The tribunal found no customary international law

prohibiting or regulating anticompetitive behavior. Also,

the tribunal rejected Canada’s jurisdictional challenge to

UPS’s article 1102 claim, and joined two other jurisdictional

challenges to the merits.

The United States had ﬁled submissions pursuant to

NAFTA Article 1128 on May 13, 2002 (second submission)

and August 23, 2002 (third submission). Excerpts from the

third submission are set forth below. The third submission

also referred the tribunal to the U.S. position on the May 31

Pope & Talbot award concerning article 1105(1) as set forth in

U.S. submissions in ADF Group, discussed supra.

****

Relationship Between Chapters Fifteen and Eleven

2. The three NAFTA Parties agree that Article 1116(1)(b)

allows an investor to submit a claim to arbitration for an alleged

Trade, Commercial Relations, Investment, and Transportation 663

breach of Article 1502(3)(a) only where the claim is that the re-

spondent NAFTA Party failed to ensure that the subject monopoly

acts in a manner that is not inconsistent with an obligation

embodied in a provision of Section A of Chapter Eleven.

3. Contrary to certain arguments advanced at the hearing, the

three NAFTA Parties’ common interpretation of Article 1116(1)(b)

is in no way inconsistent with the plain language of Article

1502(3)(a).

Article 1502(3)(a) makes clear that a NAFTA Party

cannot circumvent any of its obligations under the NAFTA simply

by delegating governmental authority to a privately-owned or

government monopoly.

A violation of Article 1502(3)(a) with

respect to any provision in the NAFTA could be subject to State-

to-State dispute resolution under Chapter Twenty.

By contrast,

and as Article 1116(1)(b) explicitly states, a violation of Article

1502(3)(a) is also subject to investor-State dispute resolution

under Chapter Eleven, but only with respect to “obligations under

Section A” of Chapter Eleven.

4. The contrary interpretation advanced at the hearing would

lead to absurd results. Under that interpretation, an investor could

submit a claim to investor-State arbitration for acts of a privately-

owned or government monopoly alleged to be inconsistent with

any provision of the NAFTA. By contrast, an investor could submit

a claim to investor-State arbitration based on an act by a NAFTA

Party or state enterprise only when the NAFTA Party itself or the

state enterprise acted inconsistently with an obligation embodied

in Section A of Chapter Eleven. There simply is no rational basis

See, e.g., July 29, 2002 Hearing Transcript (“7/29/02 Tr.”) at 25,

28–29; Mexico’s Submission Under NAFTA Article 1128 (“Mexico Sub.”),

dated May 14, 2002, ¶ 15(8) at 6; Second Submission of the United States

of America (“U.S. Second Sub.”), dated May 13, 2002, ¶ 6 at 3.

See July 30, 2002 Hearing Transcript (“7/30/02 Tr.”) at 287–89.

See Mexico Sub. ¶ 15(1) at 5 (Article 1502(3)(a) “is designed to

ensure that a State does not use a monopoly that exercises delegated powers

to take action that would be inconsistent with the Agreement if such action

were taken directly by the State itself.”).

Certain provisions of the NAFTA, however, are excepted even from

the State-to-State dispute resolution mechanism in Chapter Twenty. See,

e.g., NAFTA art. 1501(3).

664 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

for deciding the applicability of Chapter Eleven’s dispute resolution

mechanism on the basis of whether the subject actor is a monopoly

(referenced in Article 1502(3)(a) ), rather than the respondent

NAFTA Party itself or a state enterprise.

The NAFTA Parties did

not intend such a distinction. And, indeed, they agree that the text

of the NAFTA imposes a uniform and consistent requirement:

whether the alleged breach is by a NAFTA Party itself, a referenced

monopoly or a state enterprise, acts that are inconsistent with an

obligation of the respondent NAFTA Party under Section A must

be shown.

Delegated “Governmental Authority”

5. The United States agrees with Canada’s position at

the hearing, with which Mexico also agrees, that a breach of

Article 1502(3)(a) may only occur wherever a referenced monopoly

“exercises” delegated “governmental authority.”

6. Moreover, contrary to certain arguments at the hearing,

jurisdiction does not attach over a claim where the averred

inconsistency with an obligation embodied in Section A of Chapter

Eleven is alleged to result solely from the fact that a monopoly

referenced in Article 1502(3)(a) is a monopoly—that is, that the

monopoly functions as, possesses the status of, or is authorized

to be a sole provider of a good or service.

Indeed, otherwise,

Also, the United States notes that, contrary to Claimant’s assertion at

the hearing, Article 1503(2) does not provide a basis for a claim under

Section B of Chapter 11 for alleged violations of Sections B and C of Chapter

11. See 7/30/02 Tr. at 277. The Article 1503(2) reference to Chapter Eleven

is to Section A only: as Sir Kenneth noted, id. at 280, a state enterprise

cannot act in a manner inconsistent with a provision of Section B, which

established the process by which NAFTA Parties—not state enterprises—

engage in investor-State arbitration under the NAFTA; Section C, which

merely includes deﬁnitions, prescribes no obligations of any kind.

The concept of delegated “government authority” is the same in

Articles 1502(3)(a) and 1503(2). Therefore, although the discussion that

follows refers only to Article 1502(3)(a), the points made apply equally with

respect to Article 1503(2).

See 7/29/02 Tr. at 42; Mexico Sub. ¶ 15(6) at 5; U.S. Second Sub.

¶ 8 at 3–4.

See, e.g., 7/29/02 Tr. at 49, 53, 91, 92, 96–97.

Trade, Commercial Relations, Investment, and Transportation 665

the requirement that a referenced monopoly exercise delegated

“governmental authority” would be entirely superﬂuous. As noted

above (see ¶ 2), for a claim to be submitted under Chapter Eleven,

the monopoly, in exercising its delegated “governmental authority,”

must allegedly have acted in a manner that is inconsistent with the

respondent NAFTA Party’s obligations under Section A of Chap-

ter Eleven.

Relationship Between “Anticompetitive Practices”

and NAFTA Articles 1102 and 1105.

7. The United States notes that the NAFTA does not deﬁne

the term “anticompetitive practices,” which is a complex term

based on concepts of competition and regulation.

Accordingly,

contrary to a suggestion at the hearing, a showing of “anticom-

petitive practices” does not, in and of itself, establish that a NAFTA

Party has not accorded “treatment no less favorable” in the sense

of Article 1102; nor does it establish a violation of the Article 1105

requirement to “accord to investments of investors of another Party

treatment in accordance with international law, including fair and

equitable treatment.”

****

At the hearing, questions regarding delegated “governmental

authority” were asked based on the example of an operator of a prison. An

example of the exercise of “governmental authority” delegated by a NAFTA

Party (within the meaning of Article 1502(3)(a)) that also involves pro-

curement by a government agency of a service for governmental purposes

could be the contract operation of prisons for law enforcement authorities.

Such procurement would be exempted from the application of Article 1502(3)

by reason of Article 1502(4).

See, e.g., WTO Working Group on the Interaction Between Trade and

Competition Policy, “Overview of Members’ National Competition Legisla-

tion,” Note by the Secretariat (Revisions, July 4, 2001), WT/WGTCP/W/

128/Rev.2 (available at www.wto.org/english/tratop_e/comp_e/comp_e.htm).

See 7/30/02 Tr. at 261–63.

666 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

3. State-to-State Arbitration under Chapter 20: Operation in

the United States of Motor Carriers Owned or Controlled

by Persons of Mexico

a. Presidential determination modifying moratorium

On November 27, 2002, President George W. Bush issued a

determination under the Interstate Commerce Commission

Termination Act of 1995, modifying a previously imposed

moratorium on the issuance of certiﬁcates or permits to

motor carriers domiciled in, or owned or controlled by

persons of, a contiguous foreign country. 67 Fed. Reg. 71,795

(Dec. 2, 2002). Under U.S. law, foreign motor carriers are

permitted to enter the United States only if authorized to do

so. See 49 U.S.C. §§ 13501–13541, 13901–13908; 49 C.F.R.

§ 365.101–.511(2002). The President’s November 27, 2002,

determination explained the U.S. regulation of such cross-

border transportation as follows:

Section 6 of the Bus Regulatory Reform Act of 1982,

Public Law 97–261, 96 Stat. 1103, imposed a moratorium

on the issuance of certiﬁcates or permits to motor carriers

domiciled in, or owned or controlled by persons of, a

contiguous foreign country and authorized the President

to modify the moratorium. The Interstate Commerce

Commission Termination Act of 1995 (ICCTA), Public

Law 104–88, 109 Stat. 803, maintained these restrictions,

subject to modiﬁcations made prior to the enactment of

the ICCTA, and empowered the President to make further

modiﬁcations to the moratorium.

President Ronald Reagan had lifted a moratorium origin-

ally imposed regarding such motor carriers associated with

Canada in 1982, following conclusion of “an understanding

between the United States and Canada . . . to ensure fair and

equitable treatment for both Canadian and United States

trucking interests on both sides of the border.” 47 Fed. Reg.

54,053 (Dec. 1, 1982).

Trade, Commercial Relations, Investment, and Transportation 667

As to Mexico, however, the moratorium had been

continued, with certain exceptions. On February 6, 2001, a

NAFTA arbitral tribunal established at the request of Mexico

under chapter 20 of NAFTA determined that the continued

moratorium violated NAFTA. In the Matter of Cross-Border

Trucking Services (Secretariat File No. USA-MEX-98-2008-01),

February 6, 2001, available at www.nafta-sec-alena.org/images/

pdf/ub98010e.pdf.

As explained in the arbitral decision, annex I of NAFTA

required that “a Mexican national will be permitted to

obtain operating authority to provide cross-boundary trucking

services in border states three years after the signing of

NAFTA, i.e., December 18, 1995, and cross-border trucking

services throughout the United States six years after the date

of entry into force of NAFTA, i.e., January 1, 2000.” Id. ¶ 67.

Similar requirements required phase out in 1995 of re-

strictions with respect to investments for the establishment

of enterprises providing international trucking services. Id.

¶ 68. Despite coordinated efforts to reach agreement to

meet those deadlines, the two governments failed to do so.

Id. ¶¶ 69–86. The United States explained that its actions

were based on concerns relating to the safety of Mexican

trucks, citing signiﬁcant differences between U.S. and Mexican

truck-safety regulations. Id. ¶¶ 78–79.

In its decision, the panel determined that the “U.S.

blanket refusal to review and consider for approval any

Mexican-owned carrier applications for authority to provide

cross-border trucking services” breached U.S. NAFTA obliga-

tions; that the “inadequacies of the Mexican regulatory system

provide an insufﬁcient legal basis” for the continued U.S.

moratorium, and that the United States remained in breach

of its NAFTA obligations “to permit Mexican nationals to

invest in enterprises in the United States that provide trans-

portation of international cargo within the United States.”

Id. ¶¶ 295–297. The panel also noted, however, that it was

not “determining that the Parties to NAFTA may not set the

level of protection that they consider appropriate in pursuit

of legitimate regulatory objectives . . . disagreeing that the

668 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

safety of trucking services is a legitimate regulatory objective

. . .[or] imposing a limitation on the application of safety

standards properly established and applied.” Id. ¶ 298. As a

result, the panel also noted in its recommendations that

U.S. compliance with its NAFTA obligations would not require

favorable consideration of all Mexican applications without

regard to compliance with safety regulations, nor that Mexican

applications be treated in the same manner as applications

from U.S. or Canadian ﬁrms, as long as they are reviewed on

a case-by-case basis. Id. ¶¶ 300–301.

Following the NAFTA decision, on June 5, 2001, President

George W. Bush modiﬁed the existing moratorium to allow

Mexican owned or controlled motor carriers domiciled in

the United States to obtain operating authority between

points in the United States. 66 Fed. Reg. 30,799 (June 7,

2001). President Bush also announced his intent to comply

with the panel’s ruling by further modifying the moratorium

as it applied to Mexican-domiciled trucks once the Federal

Motor Carrier Safety Administration, U.S. Department of

Transportation (“FMCSA”), issued necessary regulations

governing trucks domiciled in Mexico seeking United States

operating authority.

Three regulations were issued by FMSCA for this purpose

as Interim Final Rules on March 19, 2002: (1) Application by

Certain Mexico-Domiciled Motor Carriers to Operate Beyond

United States Municipalities and Commercial Zones on the

United States-Mexico Border, 67 Fed. Reg. 12, 702 (Mar. 19,

2002); (2) Safety Monitoring System and Compliance

Initiative for Mexico-Domiciled Motor Carriers Operating in

the United States, 67 Fed. Reg. 12, 758 (Mar. 19, 2002) and

(3) Certiﬁcation of Safety Auditors, Safety Investigators, and

Safety Inspectors, 67 Fed. Reg. 12, 776 (Mar. 19, 2002).

Excerpts below from the President’s November 27, 2002

determination explain the decision to modify the moratorium

as to Mexico-domiciled motor carriers.

****

Trade, Commercial Relations, Investment, and Transportation 669

Pursuant to 49 U.S.C. 13902(c)(3), I modiﬁed the moratorium on

June 5, 2001, to allow motor carriers domiciled in the United

States that are owned or controlled by persons of Mexico to obtain

operating authority to transport international cargo by truck

between points in the United States and to provide bus services

between points in the United States.

The North American Free Trade Agreement (NAFTA) estab-

lished a schedule for liberalizing certain restrictions on the provision

of bus and truck services by Mexican-domiciled motor carriers in

the United States. Pursuant to 49 U.S.C. 13902(c)(3), I hereby

determine that the following modiﬁcations to the moratorium are

consistent with obligations of the United States under NAFTA

and with our national transportation policy and that the mor-

atorium shall be modiﬁed accordingly.

First, qualiﬁed motor carriers domiciled in Mexico will be

allowed to obtain operating authority to transport passengers

in cross-border scheduled bus services. Second, qualiﬁed motor

carriers domiciled in Mexico will be allowed to obtain operating

authority to provide cross-border truck services. The moratorium

on the issuance of certiﬁcates or permits to Mexican-domiciled

motor carriers for the provision of truck or bus services between

points in the United States will remain in place. These modiﬁcations

shall be effective on the date of this memorandum.

Furthermore, pursuant to 49 U.S.C. 13902(c)(5), I hereby

determine that expeditious action is required to implement this

modiﬁcation to the moratorium. Effective on the date of this

memorandum, the Department of Transportation is authorized

to act on applications, submitted by motor carriers domiciled in

Mexico, to obtain operating authority to provide cross-border

scheduled bus services and cross-border truck services. In reviewing

such applications, the Department shall continue to work closely

with the Department of Justice, the Ofﬁce of Homeland Security,

and other relevant Federal departments, agencies, and ofﬁces in

order to help ensure the security of the border and to prevent

potential threats to national security.

Motor carriers domiciled in Mexico operating in the

United States will be subject to the same Federal and State laws,

regulations, and procedures that apply to carriers domiciled in the

670 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

United States. These include safety regulations, such as drug and

alcohol testing requirements; insurance requirements; taxes and

fees; and other applicable laws and regulations, including those

administered by the United States Customs Service, the Immigration

and Naturalization Service, the Department of Labor, and Federal

and State environmental agencies.

b. Litigation in U.S. courts

On May 1, 2002, labor, environmental and consumer groups

ﬁled petitions challenging the validity of the new regulations

promulgated by the Federal Motor Carrier Safety Administra-

tion on March 19, 2002, noted above. Public Citizen v. Dep’t

of Transportation, No. 02–70986 and Int’l Brotherhood of

Teamsters v. Dep’t of Transportation, No. 02–71249 (9

Cir.

2002). The actions alleged violations of the procedural

requirements of the National Environmental Policy Act, 42

U.S.C. §§ 4321–4370f et seq. the Clean Air Act, 42 U.S.C.

§§ 7401–7671q. The U.S. Court of Appeals for the Ninth

Circuit, which had jurisdiction to review the petitions under

28 U.S.C. § 2342(3)(A) providing for direct review in the

court of appeals of certain administrative actions, consolid-

ated the petitions on May 22, 2002. The litigation was

pending at the end of 2002.

D. WORLD TRADE ORGANIZATION

1. WTO Cases Involving the United States

a. U.S. anti-subsidy law involving steel

On November 28, 2002, the WTO Appellate Body upheld

key provisions of a U.S. trade law that provided a remedy

against unfairly subsidized imports. In a case brought by

the European Union involving subsidized German steel, the

Appellate Body found that the U.S. trade laws were consistent

with U.S. WTO obligations. Excerpts below from a press

Trade, Commercial Relations, Investment, and Transportation 671

release issued by the U.S. Trade Representative described

the case and its signiﬁcance for the United States.

The full text of the press release is available at

www.ustr.gov/releases/2002/11/02-113.htm. The decision by

the Appellate Body is available at http://docsonline.wto.org/

gen_search.asp (WT/DS213/AB/R). U.S. submissions in the

case are available at www.ustr.gov/enforcement/briefs.shtml.

****

. . . . This is a victory not only for the United States, but for the

multilateral trading system. With today’s report, the Appellate Body

has done what it should—interpret the WTO agreements as written.

****

Background:

The WTO Appellate Body report released today arose out of a

sunset review conducted by the U.S. Department of Commerce

(Commerce) of the 1993 countervailing duty order on corrosion-

resistant carbon steel products from Germany. In August, 2000,

Commerce issued a ﬁnal sunset review determination to the effect

that revocation of the order would likely lead to a continuation

or recurrence of subsidization. In December, 2000, the U.S.

International Trade Commission (ITC) determined that revoca-

tion of the order would likely lead to a continuation or recurrence

of material injury to the U.S. industry concerned. In light of

these two ﬁndings, Commerce determined to leave the order in

place.

On November 10, 2000, the EU requested dispute settlement

consultations, and on August 8, 2001, the EU requested the estab-

lishment of a WTO dispute settlement panel. The EU challenged

the speciﬁc Commerce determination, as well as certain aspects

of the sunset review provisions of the U.S. countervailing duty

law. The WTO panel circulated its ﬁnal report on July 3, 2002.

Although the report largely favored the United States, the panel

did ﬁnd against the United States on a few issues. Accordingly, the

United States appealed, and the EU subsequently ﬁled a cross-

appeal with respect to the issues on which it lost.

672 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Taking the Appellate Body and panel reports together, the

following ﬁndings were made:

The Appellate Body afﬁrmed the panel’s ﬁnding that the U.S.

system of automatically self-initiating sunset reviews is WTO-

consistent. The EU claim to the contrary, if accepted, would have

imposed an additional burden on U.S. industries seeking relief

from subsidized imports.

The Appellate Body reversed the panel and found that the

standard used in sunset reviews by Commerce for purposes of deter-

mining when subsidies are de minimis—and, thus, non-actionable—

was not WTO-inconsistent. Here, too, the EU claim, if accepted,

would have weakened the remedy against subsidized imports.

The Appellate Body afﬁrmed the panel’s ﬁnding that the

U.S. countervailing duty law is not inconsistent with an author-

ity’s obligation under the Subsidies Agreement to determine the

likelihood of continuation or recurrence of subsidization in a sunset

review.

The Appellate Body afﬁrmed the panel’s ﬁnding that certain EU

claims were not properly before the panel. These claims involved

the EU’s allegations that with respect to the U.S. countervailing

duty law in general, and the sunset review on German steel in

particular, interested parties are not given ample opportunity to

submit evidence, as required by the Subsidies Agreement.

The EU did not appeal the panel’s ﬁnding that the EU claim

concerning the U.S. expedited sunset review procedure was not

properly before the panel.

The United States did not appeal the panel’s ﬁnding that in

the particular sunset review on corrosion-resistant carbon steel

products from Germany, Commerce failed to properly determine

whether a continuation or resumption of subsidization was likely.

b. Challenge to U.S. trademark provision

On January 2, 2002, the Appellate Body of the WTO issued a

report (WT/DS176/AB/R) in a case in which the European

Union challenged a U.S. law limiting the ability of Cuban

entities or their successors to claim ownership of trademarks

and trade names that were conﬁscated unless the original

Trade, Commercial Relations, Investment, and Transportation 673

owner has consented. The report is available at http://

docsonline.wto.org/gen_search.asp. The EU had requested

consultations on section 211 of the Omnibus Appropriations

Act of 1998, Pub. L. No. 105–277, 112 Stat. 2681, in July 1999,

claiming that the U.S. law violated the Agreement on Trade-

Related Intellectual Property Rights (TRIPs). Section 211

provides:

(a) (1) Notwithstanding any other provision of law, no

transaction or payment shall be authorized or approved

pursuant to section 515.527 of title 31, Code of Federal

Regulations, as in effect on September 9, 1998, with

respect to a mark, trade name, or commercial name that

is the same as or substantially similar to a mark, trade

name, or commercial name that was used in connection

with a business or assets that were conﬁscated unless

the original owner of the mark, trade name, or com-

mercial name, or the bona ﬁde successor-in-interest has

expressly consented.

(2) No U.S. court shall recognize, enforce or

otherwise validate any assertion of rights by a designated

national based on common law rights or registration

obtained under such section 515.527 of such a conﬁscated

mark, trade name, or commercial name.

(b) No U.S. court shall recognize, enforce or

otherwise validate any assertion of treaty rights by a

designated national or its successor-in-interest under

sections 44 (b) or (e) of the Trademark Act of 1946

(15 U.S.C. § 1126 (b) or (e)) for a mark, trade name, or

commercial name that is the same as or substantially

similar to a mark, trade name, or commercial name that

was used in connection with a business or assets that

were conﬁscated unless the original owner of such mark,

trade name, or commercial name, or the bona ﬁde

successor-in-interest has expressly consented.

A WTO panel, composed in October 2000 to consider the

EU’s complaint, circulated its report on August 6, 2001. Both

the United States and the EU appealed aspects of that report.

674 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The Appellate Body report found that the law’s treatment of

U.S. and Cuban companies was contrary to the national

treatment and most-favored-nation obligations under WTO

rules. At the same time, it overturned the earlier panel report

ﬁnding that section 211 denied parties fair and equitable

judicial procedures to enforce trademark rights. Excerpts below

from the Appellate Body decision describe the applicability

of section 211 (footnotes omitted).

The full text of the Appellate Body report is available at

http://docsonline.wto.org. Submissions by the United States in

the case are available at www.ustr.gov/enforcement/briefs.shtml.

****

4. Section 211 applies to a deﬁned category of trademarks,

trade names and commercial names, speciﬁcally to those trade-

marks, trade names and commercial names that are “the same as

or substantially similar to a mark, trade name, or commercial

name that was used in connection with a business or assets that

were conﬁscated” by the Cuban Government on or after 1 January

1959. Section 211(d) states that the term “designated national”

as used in Section 211 has the meaning given to that term in

Section 515.305 of Title 31, Code of Federal Regulations (“CFR”),

and that it includes “a national of any foreign country who is

a successor-in-interest to a designated national.” The term

“conﬁscated” is deﬁned as having the meaning given that term in

Section 515.336 of Title 31 CFR. Part 515 of Title 31 CFR sets

out the Cuban Assets Control Regulations (the “CACR”), which

were enacted on 8 July 1963 under the Trading with the Enemy

Act of 1917. Under these regulations, “designated national” is

deﬁned as Cuba, a national of Cuba or a specially designated

national. “Conﬁscated” is deﬁned as nationalized or expropriated

by the Cuban Government on or after 1 January 1959 without

payment of adequate and effective compensation.

5. Section 211(a)(1) relates to licensing regulations contained

in the CACR. The CACR are administered by the Ofﬁce of Foreign

Assets Control (“OFAC”), an agency of the United States Depart-

ment of the Treasury. Under United States law, all transactions

Trade, Commercial Relations, Investment, and Transportation 675

involving property under United States jurisdiction, in which a

Cuban national has an interest, require a licence from OFAC.

OFAC has the authority to grant either of two categories of

licences, namely general licences and speciﬁc licences. A general

licence is a general authorization for certain types of transactions

set out in OFAC regulations. Such a licence is, in effect, a standing

authorization for the types of transactions that are speciﬁed in the

CACR. A speciﬁc licence, by contrast, is one whose precise terms

are not set out in the regulations, so that a person wishing to

engage in a transaction for which a general licence is not available

must apply to OFAC for a speciﬁc licence.

6. Section 211 refers to Section 515.527 of Title 31 CFR.

Prior to the entry into force of Section 211, a general licence was

available under Section 515.527 for the registration and renewal

of trademarks previously owned by Cuban nationals irrespective

of whether such trademarks had been conﬁscated by the Cuban

Government. . . .

7. On 10 May 1999, some six months after the entry into

force of Section 211, the CACR were amended by adding a new

subparagraph (a)(2) to Section 515.527, which effectively prohibits

registration and renewal of trademarks and trade names used in

connection with a business or assets that were conﬁscated without

the consent of the original owner or bona ﬁde successor-in-interest.

This provision reads:

(a) (2) No transaction or payment is authorized or approved

pursuant to paragraph (a)(1) of this section with respect to a mark,

trade name, or commercial name that is the same as or substantially

similar to a mark, trade name, or commercial name that was used

in connection with a business or assets that were conﬁscated, as

that term is deﬁned in section 515.336, unless the original owner

of the mark, trade name, or commercial name, or the bona ﬁde

successor-in-interest has expressly consented.

8. The effect of Section 211, as read with the relevant provi-

sions of the CACR, is to make inapplicable to a deﬁned category

of trademarks and trade names certain aspects of trademark and

trade name protection that are otherwise guaranteed in the

trademark and trade name law of the United States. In the United

States, trademark and trade name protection is effected through

676 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

the common law as well as through statutes. The common law

provides for trademark and trade name creation through use. The

Trademark Act of 1946 (the “Lanham Act”) stipulates substantive

and procedural rights in trademarks as well as trade names and

governs unfair competition. Section 211(b) refers to Sections 44(b)

and (e) of the Lanham Act.

****

Excerpts from a press release from USTR issued January 2,

2002, described the holding by the WTO.

The full text of the press release is available at

www.ustr.gov/releases/2002/01/02-01.htm.

****

Today’s WTO report conﬁrms the longstanding U.S. position

that WTO intellectual property rights rules leave WTO Members

free to protect trademarks by establishing their own trademark

ownership criteria. The ruling does not call into question the

distinction that the U.S. law in question (section 211 of the FY1999

Omnibus Appropriations Act) draws between original trademark

owners and companies that acquire a trademark as part of a

government conﬁscation.

In another key ﬁnding requested by the United States, the WTO

report, issued by the Appellate Body, also overturned an earlier

WTO panel report ﬁnding that section 211 denied parties fair and

equitable judicial procedures to enforce trademark rights. It found,

however, that the law’s treatment of U.S. and Cuban companies

is contrary to the national treatment and most-favored-nation

obligations under WTO rules.

Today’s report suggests that in the absence of discrimination

a law along the lines of section 211 would be consistent with

WTO rules, and therefore those trademark owners who currently

enjoy protection under section 211 could continue to enjoy that

protection.

****

Trade, Commercial Relations, Investment, and Transportation 677

c. Foreign Sales Corporation Dispute

(1) Final Report of WTO Dispute Settlement Body

In 2002 the WTO Dispute Settlement Body adopted a ﬁnal

report ﬁnding that the extraterritorial income exclusion pro-

visions of U.S. tax law were inconsistent with U.S. obliga-

tions under the WTO. Available at http://docsonline.wto.org/

gen_search.asp(WT/DS108/AB/R). The dispute was based on

a challenge by the European Union in 1997 to foreign sales

corporation (“FSC”) provisions in U.S. tax law at that time.

In response to a ruling of March 20, 2000, ﬁnding the FSC

provisions of U.S. tax law to be an export subsidy inconsistent

with WTO obligations, the United States had enacted the

FSC Repeal and Extraterritorial Income Exclusion Act of 2000

(“ETI Act”), signed into law November 15, 2000. Pub. L.

No. 106–519, 114 Stat. 2423. The current decision resulted

from a WTO dispute initiated by the EU on November 17,

2000, alleging that the ETI Act failed to eliminate the

deﬁciencies in the FSC provisions. See discussion in Digest

2001 at 653–663.

Testimony by Kenneth W. Dam, Deputy Secretary of the

Treasury, before the U.S. Senate Finance Committee on July

30, 2002, explained the views of the United States on the

decision, provided a history of the case, and described U.S.

views on continuing aspects of the dispute.

The full text of the testimony is available at www.state.gov/

e/eb/rls/rm/2002/12385.htm.

****

On January 29, 2002, the WTO Dispute Settlement Body adopted

a ﬁnal report ﬁnding that the ETI provisions are inconsistent with

the United States’ obligations under the WTO. That decision is

the culmination of a challenge brought by the European Union in

late 1997 against the foreign sales corporation (FSC) provisions

then contained in the U.S. tax law. However, the origins of this

dispute go back almost 30 years, predating the World Trade

678 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Organization itself. The United States has vigorously pursued this

matter and defended its laws because of the importance of the

provisions and principles at stake.

A WTO arbitration panel currently is considering the European

Union’s request for authority from the WTO to impose trade

sanctions on $4.043 billion worth of U.S. exports. The arbitration

panel is expected to issue its report on the appropriate level of

trade sanctions in the next few weeks. Following the issuance of

that report, the European Union will be in a position to receive

authority to begin imposing trade sanctions on U.S. exports up to

the level set by the arbitrators and the authority for such sanctions

will continue until the United States rectiﬁes the WTO violation.

This is an urgent matter that requires our immediate attention.

The threat of substantial retaliatory sanctions against U.S. exports

is not something that any of us takes lightly. Such sanctions, if

imposed, would do real damage to U.S. businesses and American

workers. And the imposition of such sanctions would have serious

adverse consequences for the overall trade relationship between

the United States and the European Union beyond those sectors

directly targeted with sanctions, which would have a direct and

detrimental effect on U.S. consumers. Of course the urgency is not

just about the critical need to avert costly retaliation. The WTO

has issued its ﬁnal decision in this case, and we must comply with

that decision. That is a matter of principle.

The President has spoken on this and his message is clear. The

United States will honor its WTO obligations and will come into

compliance with the recent WTO decision. To do so will require

legislation to change our tax law. The Administration is committed

to working closely with the Congress in the development and

enactment of the legislation necessary to bring the United States

into compliance with WTO rules.

The analysis of the current WTO rules reﬂected in the decision

in the FSC/ETI case makes it apparent that legislation attempting

to replicate FSC or ETI beneﬁts will not pass muster in the WTO.

Nor can we satisfy our WTO obligations and comply with WTO

rules through “tweaks” to the ETI provisions. The WTO Appellate

Body made clear that a beneﬁt tied to export activity, such as is

provided through the ETI provisions, is not permitted. Therefore,

Trade, Commercial Relations, Investment, and Transportation 679

it will not be fruitful to pursue again a replacement of the ETI

provisions.

Addressing the WTO decision through the tax law will require

real and meaningful changes to our current international tax laws.

While the WTO decision is a bitter pill, we must look forward

and take a fresh look at our tax laws and the extent to which they

enhance or harm the position of the U.S. in the global marketplace.

As we evaluate the changes we might consider, it is imperative

that we make choices that will enhance—and not adversely affect—

the competitive position of American workers and U.S.-based

businesses in today’s global marketplace.

In stating his commitment to compliance in this case, the

President has said we must focus on enhancing America’s com-

petitiveness in the global marketplace because that is the key to

protecting American jobs. At its core, this case raises fundamental

questions regarding a level global playing ﬁeld with respect to tax

policy. The ETI provisions, like the FSC provisions that preceded

them, represent an integral part of our larger system of international

tax rules. These provisions were designed to help level the global

playing ﬁeld for U.S.-based businesses that are subject to those

international tax rules. In modifying our tax laws to comply with

this decision, we must not lose sight of that objective and what it

means: the health of the US economy and the jobs of American

workers.

Much can be done to rationalize our international tax rules

through reforms both small and large. The need for reform of

our international tax rules is something I know you recognize,

Mr. Chairman. You have led the way on a bipartisan basis with

proposals to reform our international tax rules.

The U.S. international tax rules can operate to impose a burden

on U.S.-based companies that is disproportionate to the tax burden

imposed by our trading partners on the foreign operations of their

companies. The U.S. rules for the taxation of foreign-source income

are unique in their breadth of reach and degree of complexity.

The recent activity involving so-called corporate inversion trans-

actions is evidence that the competitive disadvantage caused

by our international tax rules is a serious issue with signiﬁcant

consequences for U.S. businesses and the U.S. economy. Foreign

680 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

acquisition of U.S. multinationals that arises out of distortions

created by our international tax system raises similar concerns.

We must address these tax disadvantages to reduce the tilt away

from American workers and U.S.-based companies. And as we

consider appropriate reform of our system of international tax

rules, we should not underestimate the beneﬁts to be gained from

reducing the complexity of the current rules.

The bottom line is clear and simple. Our economy is truly

global. U.S.-based companies must be able to compete in today’s

global marketplace. Our system of international tax rules should

not disadvantage them in that competition. If we allow our inter-

national tax rules to act as an impediment to successful competi-

tion, the cost will be measured in lost opportunities and lost jobs

here at home.

While we work toward the needed changes to our international

tax rules, we must continue a dialogue with the European Union.

We must take every step needed to ensure that this dispute does

not further escalate to the detriment of the global trading environ-

ment. It is essential that we achieve a resolution of this matter that

is clear, fair and ﬁnal—a resolution that protects America’s interests

and satisﬁes our obligations under the WTO.

****

Overview of the History of the WTO Case

The FSC provisions were enacted in 1984. They provided an

exemption from U.S. tax for a portion of the income earned from

export transactions. This partial exemption from tax was intended

to provide U.S. exporters with tax treatment that was more

comparable to the treatment provided to exporters under the tax

systems common in other countries.

The FSC provisions were enacted to resolve a General

Agreement on Tariffs and Trade (GATT) dispute involving a prior

U.S. tax regime—the domestic international sales corporation

(DISC) provisions enacted in 1971. Following a challenge to the

DISC provisions brought by the European Union and a counter-

challenge to several European tax regimes brought by the United

Trade, Commercial Relations, Investment, and Transportation 681

States, a GATT panel in 1976 ruled against all the contested tax

measures. This decision led to a stalemate that was resolved with

a GATT Council Understanding adopted in 1981 (the “1981

Understanding”). Pursuant to this 1981 Understanding regarding

the treatment of tax measures under the trade agreements, the

United States repealed the DISC provisions and enacted the FSC

provisions.

The European Union formally challenged the FSC provisions

in the WTO in November 1997. Consultations to resolve the matter

were unsuccessful, and the EU challenge was referred to a WTO

dispute resolution panel. In October 1999, the WTO panel issued

a report ﬁnding that the FSC provisions constituted a violation

of WTO rules. The United States appealed the panel report; the

European Union also appealed the report. In February 2000, the

WTO Appellate Body issued its report substantially upholding

the ﬁndings of the panel.

Although the United States argued forcefully that the FSC

provisions were blessed by the 1981 Understanding, the WTO

panel disagreed, concluding that the 1981 Understanding had no

continuing relevance in the interpretation of current WTO rules.

The panel’s analysis focused mainly on the application of the WTO

Agreement on Subsidies and Countervailing Measures. The panel

found that the FSC provisions constituted a prohibited export

subsidy under the Subsidies Agreement.

In response to the WTO decision against the FSC provisions,

the FSC Repeal and Extraterritorial Income Exclusion Act was

enacted on November 15, 2000. The legislation repealed the FSC

provisions and adopted in their place the ETI provisions. The

legislation was intended to bring the United States into compliance

with WTO rules by addressing the analysis reﬂected in the WTO

decision. At the same time, the legislation also was intended to

ensure that U.S. businesses not be foreclosed from opportunities

in the global marketplace because of differences in the U.S. tax

laws as compared to the laws of other countries.

Immediately following the enactment of the ETI Act, the

European Union brought a challenge in the WTO. In August 2001,

a WTO panel issued a report ﬁnding that the ETI provisions

also violate WTO rules. The panel report contained sweeping

682 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

language and conclusory statements that had broad implications

beyond the case at hand. Because of the importance of the issues

involved and the troubling implications of the panel’s analysis,

the United States appealed the panel report. The WTO Appellate

Body generally afﬁrmed the panel’s ﬁndings, although it modiﬁed

and narrowed the panel’s analysis in some respects. The Dispute

Settlement Body adopted the report as modiﬁed by the Appellate

Body on January 29, 2002.

The Appellate Body report makes four main ﬁndings with

respect to the ETI provisions: (1) the ETI provisions constitute a

prohibited export subsidy under the WTO Subsidies Agreement;

(2) the ETI provisions constitute a prohibited export subsidy under

the WTO Agriculture Agreement; (3) the limitation on foreign

content contained in the ETI provisions violate the national

treatment provisions of Article III:4 of GATT; and (4) the transition

rules contained in the ETI Act violate the WTO’s prior recom-

mendation that the FSC subsidy be withdrawn with effect from

November 1, 2000.

When it challenged the ETI Act in November 2000, the

European Union simultaneously requested authority from the WTO

to impose trade sanctions on $4.043 billion worth of U.S. exports.

The United States responded by initiating a WTO arbitration

proceeding on the grounds that the amount of trade sanctions

requested by the European Union was excessive under WTO

standards. This arbitration was suspended pending the outcome

of the European Union’s challenge to the WTO-consistency of the

ETI Act, and resumed on January 29th with the Dispute Settlement

Body’s adoption of its ﬁnal report. As I noted at the outset, the

arbitration panel is expected to issue its report on the appropriate

level of trade sanctions in the next few weeks and, following the

issuance of that report, the European Union will be in a position

to be authorized to begin imposing trade sanctions on U.S. exports

up to the level set by the arbitrators.

Competitiveness and U.S. Tax Policy

The U.S. international tax rules have developed in a patchwork

fashion, beginning during the 1950s and 1960s. They are founded

Trade, Commercial Relations, Investment, and Transportation 683

on policies and principles developed during a time when America’s

foreign direct investment was preeminent abroad, and competition

from imports to the United States was scant. Today, we have a

truly global economy, in terms of both trade and investment. The

value of goods traded to and from the United States increased

more than three times faster than GDP between 1960 and 2000,

rising to more than 20 percent of GDP. The ﬂow of cross-border

investment, both inﬂows and outﬂows, rose from a scant 1.1 per-

cent of GDP in 1960 to 15.9 percent of GDP in 2000.

****

To understand the effect of U.S. tax policy on the competitiveness

of U.S. business, we must consider how U.S. businesses com-

pete in today’s global marketplace. A U.S. business operating at

home and abroad must compete in several ways for capital and

customers. Competition may be among:

— U.S.-managed ﬁrms that produce within the United States;

— U.S.-managed ﬁrms that produce abroad;

— Foreign-managed ﬁrms that produce within the United States;

— Foreign-managed ﬁrms that produce abroad within the foreign

country in which they are headquartered; and

— Foreign-managed ﬁrms that produce abroad within a foreign

country different from the one in which they are headquartered.

These entities may be simultaneously competing for sales within

the United States, within a foreign country against local foreign

production (either U.S., local, or other foreign managed), or within

a foreign country against non-local production. Globalization

requires that U.S. companies be competitive both in foreign markets

and at home.

Other elements of competition among ﬁrms exist at the

investor level: U.S.-managed ﬁrms may have foreign investors and

foreign-managed ﬁrms may have U.S. investors. Portfolio invest-

ment accounts for approximately two-thirds of U.S. investment

abroad and a similar fraction of foreign investment in the United

States. Firms compete in global capital markets as well as global

consumer markets.

684 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

In a world without taxes, competition among these different

ﬁrms and different markets would be determined by production

costs. In a world with taxes, however, where countries make dif-

ferent determinations with respect to tax rates and tax bases, these

competitive decisions inevitably are affected by taxes. Assuming

other countries make sovereign decisions on how to establish their

own tax systems and tax rates, it simply is not possible for the

United States to establish a tax system that restores the same com-

petitive decisions that would have existed in a world without taxes.

The United States can, for example, attempt to equalize the

taxation of income earned by U.S. companies from their U.S.

exports to that of U.S. companies producing abroad for the same

foreign market. However, in equalizing this tax burden, it may be

the case that the U.S. tax results in neither type of U.S. company

being competitive against a foreign-based multinational producing

for sale in this foreign market.

The manner in which balance is achieved among these

competitive concerns changes over time as circumstances change.

For example, as foreign multinationals have increased in their

worldwide position, the likelihood of a U.S. multinational company

competing against a foreign multinational in a foreign market has

increased relative to the likelihood of U.S. export sales competing

against sales from a U.S. multinational producing abroad. The

desire to restore competitive decisions to those that would occur

in the absence of taxation therefore may place greater weight

today on U.S. taxes not impeding the competitive position of

U.S. multinationals vis-à-vis foreign multinationals in the global

marketplace. Similarly, while at one time U.S. foreign production

may have been thought to be largely substitutable with U.S.

domestic production for export, today it is understood that foreign

production may provide the opportunity for the export of ﬁrm-

speciﬁc know-how and domestic exports may be enhanced by

the establishment of foreign production facilities through supply

linkages and service arrangements. Ensuring the ability of U.S.

multinationals to compete in foreign markets thus provides direct

opportunities at home for American workers.

Given the signiﬁcance today of competitiveness concerns, it is

important to understand the major features of the U.S. tax system

Trade, Commercial Relations, Investment, and Transportation 685

and how they differ from those of our major trading partners. The

primary features of the U.S. tax system considered here are: (i) the

taxation of worldwide income; (ii) the current taxation of certain

types of active foreign-source income; (iii) the limitations placed on

the use of foreign tax credits; and (iv) the unintegrated taxation of

corporate income at both the entity level and the individual level.

U.S. Worldwide Tax System

The United States, like about half of the OECD countries, including

the United Kingdom and Japan, operates a worldwide system of

income taxation. Under this worldwide approach, U.S. citizens

and residents, including U.S. corporations, are taxed on all their

income, regardless of where it is earned. Income earned from

foreign sources potentially is subject to taxation both by the country

where the income is earned, the country of source, and by the

United States, the country of residence. To provide relief from this

potential double taxation, the United States allows taxpayers a

foreign tax credit that reduces the U.S. tax on foreign-source income

by the amount of foreign income and withholding taxes paid on

such income.

The U.S. worldwide system of taxation is in contrast to the

territorial tax systems operated by the other half of the OECD

countries, including Canada, Germany, France, and the Nether-

lands. Under these territorial tax systems, domestic residents and

corporations generally are subject to tax only on their income

from domestic sources. A domestic business is not subject to

domestic taxation on the active income earned abroad by a foreign

branch or on dividends paid from active income earned by a foreign

subsidiary. A domestic corporation generally is subject to tax on

other investment-type income, such as royalties, rent, interest, and

portfolio dividends, without regard to where such income is earned;

because this passive income is taxed on a worldwide basis, relief

from double taxation generally is provided through either a foreign

tax credit or a deduction allowed for foreign taxes imposed on

such income. This type of territorial tax system sometimes is

referred to as a “dividend exemption” system because active foreign

business income repatriated in the form of a dividend is exempt

686 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

from taxation. By contrast, a pure territorial system would provide

an exemption for all income received from foreign sources,

including investment-type income. Such pure territorial systems

have existed only in a few developing countries.

Differences between a worldwide tax system and a territorial

system can affect the ability of U.S.-based multinationals to com-

pete for sales in foreign markets against foreign-based multina-

tionals. The key difference between the two systems is which tax

rate—source country or home country—applies to foreign-source

income. Under a worldwide tax system, repatriated foreign income

is taxed at the higher of the source country rate or the residence

country rate. In contrast, foreign income under a territorial tax

system is subject to tax at the source country rate. The effect of

this difference depends on how the tax rate in the country where

the income is earned compares to the tax rate in the company’s

home country. The effect on U.S.-based businesses depends upon

their mix of foreign-source income, but the imposition of residual

U.S. tax on income earned abroad can impose a cost for U.S.

businesses that is not imposed on their foreign competitors. Dif-

ferences between these systems also can affect decisions about

whether and when to repatriate earnings, which in turn affect

investment decisions in the United States.

It is important to note that both worldwide and territorial

systems involve the taxation of income. The complexities present

in taxing income generally are heightened in determining the

taxation of income from multinational activities, where in addition

to measuring the income one must determine its source (foreign or

domestic). This complexity affects both tax administrators and

taxpayers. Indeed, the U.S. international tax rules have been

identiﬁed as one of the largest sources of complexity facing U.S.

corporate taxpayers.

Given the complexity of the task of taxing multinational income

under a worldwide or territorial system on top of the general

complexity of the income tax system, some consideration might

be given to alternative tax bases other than income. Other OECD

countries typically rely on taxes on goods and services, such as

under a value added tax, for a substantial share of tax revenues.

In the European OECD countries, for example, these taxes raise

Trade, Commercial Relations, Investment, and Transportation 687

nearly ﬁve times the amount of revenue as does the U.S. corporate

income tax as a share of GDP.

Comparison With Other Worldwide Tax Systems

As described above, about half of the OECD countries employ a

worldwide tax system as does the United States. However, the

details of our system are such that U.S. multinationals may be

disadvantaged when competing abroad against multinational

companies established in other countries using a worldwide tax

system. This is because the United States employs a worldwide tax

system that, unlike other worldwide systems, taxes active forms

of business income earned abroad before it has been repatriated

and more strictly limits the use of the foreign tax credits that

prevent double taxation of income earned abroad.

Limitations on Deferral

Under the U.S. international tax rules, income earned abroad by a

foreign subsidiary generally is subject to U.S. tax at the U.S. parent

corporation level only when such income is distributed by the

foreign subsidiary to the U.S. parent in the form of a dividend. An

exception to this general rule is provided with the rules of subpart

F of the Code, under which a U.S. parent is subject to current U.S.

tax on certain income of its foreign subsidiaries, without regard to

whether that income is actually distributed to the U.S. parent. The

focus of the subpart F rules is on passive, investment-type income

that is earned abroad through a foreign subsidiary. However, the

reach of the subpart F rules extends well beyond passive income

to encompass some forms of income from active foreign business

operations. No other country has rules for the immediate taxation

of foreign-source income that are comparable to the U.S. rules in

terms of breadth and complexity. The effect of these rules is to

force U.S.-based companies either to structure their operations in

a manner that is less than optimal from a business perspective or

to incur current U.S. tax in addition to the local tax. The foreign-

based companies against which our companies must compete do

not face this same tradeoff.

688 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Several categories of active business income are covered by

the subpart F rules. Under subpart F, a U.S. parent company is sub-

ject to current U.S. tax on income earned by a foreign subsidiary

from certain sales transactions. Accordingly, a U.S. company

that uses a centralized foreign distribution company to handle

sales of its products in foreign markets is subject to current U.S.

tax on the income earned abroad by that foreign distribution

subsidiary. In contrast, a local competitor making sales in that

market is subject only to the tax imposed by that country.

Moreover, a foreign competitor that similarly uses a centralized

distribution company to make sales into the same markets also

generally will be subject only to the tax imposed by the local

country. This rule has the effect of imposing current U.S. tax on

income from active marketing operations abroad. U.S. companies

that centralize their foreign distribution facilities therefore face

a tax penalty not imposed on their foreign competitors. This

increases the cost of selling goods that are produced in the United

States.

The subpart F rules also impose current U.S. taxation on

income from certain services transactions performed abroad. In

addition, a U.S. company with a foreign subsidiary engaged in

shipping activities or in certain oil-related activities, such as

transportation of oil from the source to the consumer, will be

subject to current U.S. tax on the income earned abroad from

such activities. In contrast, a foreign competitor engaged in the

same activities generally will not be subject to current home-country

tax on its income from these activities. These rules operate to

subject U.S.-based companies to an additional tax cost on some

classes of income arising from active business operations structured

and located in a particular country for business reasons wholly

unrelated to any tax considerations.

Limitations on Foreign Tax Credits

Under the worldwide system of taxation, income earned abroad

potentially is subject to tax in two countries—the taxpayer’s

country of residence and the country where the income was earned.

Relief from this potential double taxation is provided through the

Trade, Commercial Relations, Investment, and Transportation 689

mechanism of a foreign tax credit, under which the tax that

otherwise would be imposed by the country of residence may be

offset by tax imposed by the source country. The United States

allows U.S. taxpayers a foreign tax credit for taxes paid on income

earned outside the United States.

The foreign tax credit may be used only to offset U.S. tax on

foreign-source income and not to offset U.S. tax on U.S.-source

income. The rules for determining and applying this limitation

are detailed and complex and can have the effect of subjecting

U.S.-based companies to double taxation on their income earned

abroad. The current U.S. foreign tax credit regime also requires that

the rules be applied separately to separate categories or “baskets”

of income. Foreign taxes paid with respect to income in a particular

category may be used only to offset the U.S. tax on income from

that same category. Computations of foreign and domestic source

income, allocable expenses, and foreign taxes paid must be made

separately for each of these separate foreign tax credit baskets,

further adding to the complexity of the system. Moreover, the

U.S. foreign tax credit regime requires the allocation of U.S. interest

expense against foreign-source income in a manner that reduces

the foreign tax credit limitation by understating foreign income.

The practical effect of these interest allocation rules can be the

denial of a deduction for interest expense incurred in the United

States, which increases the cost of investment and expansion here

at home.

Other countries do not have restrictions and limitations on

foreign tax credits that are nearly as extensive as our rules. These

rules can have the effect of denying U.S.-based companies the full

ability to credit foreign taxes paid on income earned abroad against

the U.S. tax liability with respect to that income. The result is that

U.S.-based companies are subject to just the double taxation that

the foreign tax credit is intended to eliminate.

U.S. Corporate Taxation

While concern about the effects of the U.S. tax system on

international competitiveness may focus on the tax treatment of

foreign-source income, competitiveness issues arise in very much

690 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

the same way in terms of the general manner in which corporate

income is subject to tax in the United States.

One aspect of the U.S. tax system is that the income from an

equity-ﬁnanced investment in the corporate sector is taxed twice.

Equity income, or proﬁt, is taxed ﬁrst under the corporate income

tax. Proﬁt is taxed again under the individual income tax when

received by the shareholder as a dividend or as a capital gain on

the appreciation of corporate shares. In contrast, most other OECD

countries offer some form of integration, under which corporate

tax payments are either partially or fully taken into consideration

when assessing shareholder taxes on this income, eliminating or

reducing the double tax on corporate proﬁts.

The non-integration of corporate and individual tax payments

on corporate income applies equally to domestically earned income

or foreign-source income of a U.S. company. This double tax

increases the “hurdle” rate, or the minimum rate of return required

on a prospective investment. In order to yield a given after-tax

return to an individual investor, the pre-tax return must be

sufﬁciently high to offset both the corporate level and individual

level taxes paid on this return. Whether competing at home against

foreign imports or competing abroad through exports from the

United States or through foreign production, the double tax makes

it more difﬁcult for the U.S. company to compete successfully

against a foreign competitor.

As noted above, most OECD countries offer some form of tax

relief for corporate proﬁts. This integration typically is provided

by reducing personal income tax payments on corporate distri-

butions rather than by reducing corporate level tax payments. Inter-

national comparisons of corporate tax burdens, however, sometimes

fail to account for differences in integration across countries and

consider only corporate level tax payments. To be meaningful,

comparisons between the total tax burden faced on corporate

investments by U.S. companies and those of foreign multinational

companies must take into account the total tax burden on corporate

proﬁts at both the corporate and individual levels.

****

Trade, Commercial Relations, Investment, and Transportation 691

As indicated in Secretary Dam’s testimony, the United States

had continued to contest the amount of trade sanctions

claimed by the European Union in the dispute. The United

States instituted an arbitration proceeding to challenge the

European Union’s claim of $4.043 billion. On February 14,

2002, the United States ﬁled a submission asserting that the

proper amount of sanctions was no more than $956 million.

Excerpts below from a press release issued by the Ofﬁce of

the U.S. Trade Representative that day describe the U.S.

submission.

The full text of the USTR press release is available at

http://www.ustr.gov/releases/2002/02/02-20.pdf. The U.S. sub-

mission is available at www.ustr.gov/enforcement/briefs.shtml

In today’s additional submission, the United States laid out in

greater detail its views regarding the proper method for calculating

sanctions in the FSC dispute, including the following key points:

• The amount of sanctions to which the EU is entitled must be

based on the purported impact of the FSC on EU trade interests.

• An appropriate method of calculating the alleged trade impact

on the EU in this case is to allocate to the EU a portion of the

total amount of the FSC subsidy based on the EU’s share of

total non-U.S. global goods production.

• Applying this method, and after making appropriate adjust-

ments to the total amount of the FSC subsidy estimated by

the EU, the appropriate amount of sanctions is no more than

$956 million.

The U.S. submission will be available on USTR’s website. The

EU also made a submission today, but has not made it public.

Both the United States and the EU will ﬁle rebuttal submissions on

February 26.

****

692 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

(2) Decision of the arbitrator on amount of sanctions

On August 30, 2002, the WTO released the decision of

the arbitrator in the Foreign Sales Corporation dispute. The

arbitrator ruled that the European Union could impose

the $4 billion in trade sanctions that it had claimed. Excerpts

below from a USTR press release of the same day describe

the U.S. reaction to the judgment.

The full text of the press release is available at

www.ustr.gov/releases/2002/08/02-85.pdf. The full text of the

arbitrator’s decision is available at www.state.gov/e/eb/rls/

rm/2002/12385.htm. U.S. submissions in the case are available

at www.ustr.gov/enforcement/briefs.shtml.

****

The United States contended that sanctions should have been

limited to $1 billion based on the actual impact of the FSC

provisions on EU commercial interests.

“I’m disappointed that the arbitrator did not accept the lower

ﬁgure put forward by the United States. We believe that $1 billion

is much more accurate,” said United States Trade Representative

Robert B. Zoellick. “Nevertheless, the key point, as the President

has said, is that the Executive branch will work with Congress to

fully comply with our WTO obligations. I believe that today’s

ﬁndings will ultimately be rendered moot by U.S. compliance with

the WTO’s recommendations and rulings in this dispute.”

****

“One of the ironies of this case,” said Zoellick, “is that when

the dust has settled, we hope to ﬁnd that the competitiveness of

U.S. ﬁrms has been strengthened, rather than diminished.”

Under WTO rules, the WTO Dispute Settlement Body must

provide its formal approval before the EU can actually impose

trade sanctions. However, there is no deadline by which the EU

must submit such a request, and EU ofﬁcials previously have

indicated that they would refrain from imposing sanctions so long

Trade, Commercial Relations, Investment, and Transportation 693

as the United States is making progress on eliminating the FSC

subsidy.

****

d. Establishment of panels related to safeguard measures on

imports of certain steel products

(1) U.S. deﬁnitive safeguard measures on imports of certain

steel products

On June 3, 2002, the WTO Dispute Settlement Body

established a panel to examine Proclamation No. 7529,

entitled “To Facilitate Positive Adjustment to Competition

from Imports of Certain Steel Products,” issued by President

George W. Bush on March 5, 2002, available at www.wto.org/

english/news_e/news02_e/dsb_03june02_e.htm. The panel was

established in response to a request, among others, by the

European Community of May 7, 2002. As stated in the EC

request for establishment of the panel,

By [this proclamation] the United States of America (“the

US”) imposed deﬁnitive safeguard measures in the form

of an increase in duties on imports of certain steel

products and in the form of a tariff rate quota on imports

of “slabs”. These measures are effective as of 20 March

2002.

In the view of the European communities, these

measures and the reports of the US International Trade

Commission (“the ITC”) to which they refer are

inconsistent with the US obligations under the covered

agreements within the meaning of Article 1.1 of the

Understanding on Rules and Procedures Governing the

Settlement of Disputes (DSU).

WT/DS248/12, May 8, 2002. The panel’s review was pending

at the end of 2002.

The proclamation issued by President Bush at issue in

this case, published at 67 Fed. Reg. 10,953 (Mar. 7, 2002),

694 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

was based on a report by the United States International

Trade Commission (“ITC”) under section 202 of the Trade

Act of 1974, as amended (“Trade Act”), 19 U.S.C. § 2252,

transmitted to the President on December 19, 2001. In its

report, the ITC made determinations under § 202(b) of the

Trade Act that certain steel products were being imported

into the United States in such increased quantities as to be

a substantial cause of serious injury, or threat of serious

injury, to domestic industries producing like or directly

competitive articles. The President, acting pursuant to § 203

of the Trade Act, 19 U.S.C. § 2253, determined to implement

safeguard measures against such steel products imported

from countries other than Canada, Israel, Jordan, and Mexico,

as provided in the excerpts from the proclamation provided

below.

Documents related to U.S. actions on steel products are

available at www.ustr.gov/sectors/industry/steel.shtml.

****

7. Pursuant to section 203 of the Trade Act (19 U.S.C. 2253),

and after taking into account the considerations speciﬁed in

section 203(a)(2) of the Trade Act and the ITC supplemental

report, I have determined to implement action of a type described in

section 203(a)(3) (a “safeguard measure”) with regard to [enumer-

ated] steel products:

****

The steel products listed in clauses (i) through (ix) of sub-

division (b) of U.S. Note 11 to subchapter III of chapter 99 of the

HTS (“Note 11”) in the Annex to this proclamation were excluded

from the determinations of the ITC described in paragraph 2, and

are excluded from these safeguard measures. I have also determined

to exclude from these safeguard measures the steel products listed

in the subsequent clauses of subdivision (b) of Note 11 in the

Annex to this proclamation.

8. Pursuant to section 312(a) of the NAFTA Implementation

Act (19 U.S.C. 3372(a) ), I have determined after considering the

Trade, Commercial Relations, Investment, and Transportation 695

report and supplemental report of the ITC that imports from each

of Canada and Mexico of certain ﬂat steel, tin mill products, hot-

rolled bar, cold-ﬁnished bar, rebar, certain tubular products, carbon

and alloy ﬁttings, stainless steel bar, stainless steel rod, and stainless

steel wire, considered individually, do not account for a substantial

share of total imports or do not contribute importantly to the

serious injury or threat of serious injury found by the ITC. Accord-

ingly, pursuant to section 312(b) of the NAFTA Implementation

Act (19 U.S.C. 3372(b)), I have excluded certain ﬂat steel, tin mill

products, hot-rolled bar, cold-ﬁnished bar, rebar, certain tubular

products, carbon and alloy ﬁttings, stainless steel bar, stainless

steel rod, and stainless steel wire the product of Mexico or Canada

from the actions I am taking under section 203 of the Trade Act.

9. Pursuant to section 203 of the Trade Act (19 U.S.C. 2253),

the actions I have determined to take shall be safeguard measures

in the form of:

(a) a tariff rate quota on imports of slabs described in paragraph

7, imposed for a period of 3 years plus 1 day, with annual

increases in the within-quota quantities and annual reductions

in the rates of duty applicable to goods entered in excess of

those quantities in the second and third years; and

(b) an increase in duties on imports of certain ﬂat steel, other than

slabs (including plate, hot-rolled steel, cold-rolled steel and

coated steel), hot-rolled bar, cold-ﬁnished bar, rebar, certain

welded tubular products, carbon and alloy ﬁttings, stainless

steel bar, stainless steel rod, tin mill products, and stainless

steel wire, as described in paragraph 7, imposed for a period

of 3 years plus 1 day, with annual reductions in the rates of

duty in the second and third years, as provided in the Annex

to this proclamation.

10. The safeguard measures described in paragraph 9 shall

not apply to the products listed in clauses following clause (ix) in

subdivision (b) of Note 11 in the Annex to this proclamation.

11. These safeguard measures shall apply to imports from all

countries, except for products of Canada, Israel, Jordan, and

Mexico.

696 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

12. These safeguard measures shall not apply to imports of any

product described in paragraph 7 of a developing country that is a

member of the World Trade Organization (WTO), as long as that

country’s share of total imports of the product, based on imports

during a recent representative period, does not exceed 3 percent,

provided that imports that are the product of all such countries

with less than 3 percent import share collectively account for not

more than 9 percent of total imports of the product. If I determine

that a surge in imports of a product described in paragraph 7 of a

developing country WTO member undermines the effectiveness of

the pertinent safeguard measure, the safeguard measure shall be

modiﬁed to apply to such product from such country.

13. The in-quota quantity in each year under the tariff rate

quota described in paragraph 9 shall be allocated among all coun-

tries except those countries the products of which are excluded

from such tariff rate quota pursuant to paragraphs 11 and 12.

14. Pursuant to section 203(a)(1)(A) of the Trade Act (19

U.S.C. 2253(a)(1)(A)), I have further determined that these safe-

guard measures will facilitate efforts by the domestic industry to

make a positive adjustment to import competition and provide

greater economic and social beneﬁts than costs. If I determine that

further action is appropriate and feasible to facilitate efforts by

the pertinent domestic industry to make a positive adjustment to

import competition and to provide greater economic and social

beneﬁts than costs, or if I determine that the conditions under

section 204(b)(1) of the Trade Act are met, I shall reduce, modify,

or terminate the action established in this proclamation accordingly.

In addition, if I determine within 30 days of the date of this pro-

clamation, as a result of consultations between the United States

and other WTO members pursuant to Article 12.3 of the WTO

Agreement on Safeguards that it is necessary to reduce, modify, or

terminate a safeguard measure, I shall proclaim the corresponding

reduction, modiﬁcation, or termination of the safeguard measure

within 40 days.

15. Section 604 of the Trade Act, as amended (19 U.S.C. 2483),

authorizes the President to embody in the HTS the substance of

the relevant provisions of that Act, and of other acts affecting

import treatment, and actions thereunder, including the removal,

Trade, Commercial Relations, Investment, and Transportation 697

modiﬁcation, continuance, or imposition of any rate of duty or

other import restriction.

****

(2) EC steel restrictions

On September 16, 2002, the WTO Dispute Settlement

Body established a panel to examine the European Com-

munity’s provisional safeguard measures on imports of

certain steel products, imposed in response to the U.S. deﬁn-

itive safeguard measures discussed supra. The panel was

established at the request of the United States, which asserted

that the safeguard measures were inconsistent with WTO

rules. The United States argued that the EC had imposed

measures without following the investigatory process and

without clear evidence that increased imports were causing

or threatening to cause serious injury. See www.wto.org/

english/news_e/news02_e/dsb_17sep02_e.htm. The action was

pending at the end of 2002.

2. U.S. Proposals in World Trade Organization Negotiations

a. Request for public comment

On March 19, 2002, the Trade Policy Staff Committee of

the Ofﬁce of the United States Trade Representative pub-

lished a notice in the Federal Register seeking public com-

ments regarding the Doha Multilateral Trade Negotiations

and Agenda in the WTO. 67 Fed. Reg. 12,637 (March 19,

2002). The notice requested written public comments on

general U.S. negotiating objectives as well as country- and

item-speciﬁc priorities for the negotiations and work program

launched at the WTO’s Fourth Ministerial Conference in

November 2001. Excerpts below from the Federal Register

notice describe the agenda established at Doha.

****

698 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The Doha Development Agenda agreed to at the WTO’s Fourth

Ministerial Meeting establishes a negotiating agenda that is to

conclude within three years (not later than 1 January 2005), and

sets out a certain number of issues to be considered further at the

next ministerial meeting of the WTO in 2003. In addition to the

mandated negotiations in agriculture and services, the negotia-

tion of a multilateral system of notiﬁcation and registration of

geographical indications for wine and spirits, and the negotiation

of improvements to the Dispute Settlement Understanding (DSU),

negotiations at Doha were launched on market access for non-

agricultural products; WTO rules (on antidumping, subsidies,

ﬁsheries subsidies, and regional trade agreements); and negotia-

tions on limited aspects of the relationship between WTO and

multilateral environmental agreements. The Doha agenda fore-

sees further work on the so-called Singapore issues of Trade and

Competition, Trade and Investment, Transparency in Government

Procurement, and Trade Facilitation, leading to decisions on

negotiations by the time of the WTO’s Fifth Ministerial Meet-

ing in 2003. In addition, the Doha agenda focuses on a variety

of issues relating to the regular work program of the WTO

which have a bearing on the negotiations, including: further work

on implementation of the existing Agreements; integration of

developing countries into the multilateral trade system; trade-

related technical assistance and capacity building; small economies;

special and differential treatment; treatment of least-developed

countries; electronic commerce; trade, debt and ﬁnance; trade

and technology, and the work of the Committee on Trade and

Environment (CTE).

b. Proposals submitted to WTO

(1) Zero tariffs on all consumer and industrial products

On November 26, 2002, the United States announced a

proposal calling on WTO members to eliminate tariffs on

all industrial and consumer goods worldwide by 2015, as

a component of the WTO negotiations launched in Doha,

Qatar, in 2001. The excerpts below from the press release

Trade, Commercial Relations, Investment, and Transportation 699

from the Ofﬁce of the U.S. Trade Representative describe

the proposal and the U.S. view that it would beneﬁt both

developed and developing countries.

The press release and other information on the proposal

is available at www.ustr.gov/new/Zero_Tariff.htm

****

This proposal, combined with the far-reaching U.S. agricultural

reform proposal submitted to the WTO in July, would eliminate

tariffs on the nearly $6 trillion in annual world goods trade, lifting

the economic fortunes of workers, families, businesses, and con-

sumers. These two proposals call on all WTO members to advance

free trade and complete the tariff-cutting work that began more

than 50 years ago with the creation of the General Agreement on

Tariffs and Trade in 1948.

****

The U.S. proposal would eliminate tariffs on a full-range of

consumer and industrial goods ranging from women’s shoes, to

tractors, to children’s toys. The proposal, which will be presented

to WTO members next week in Geneva, Switzerland, calls for a

two-step approach to tariff elimination. First, WTO members must

cut and harmonize their tariffs in the ﬁve year period from 2005

to 2010. Speciﬁcally, WTO members would eliminate all tariffs at

or below 5 percent by 2010, cut all other tariffs through a “tariff

equalizer” formula to less than 8 percent by 2010, and eliminate

tariffs in certain highly traded industry sectors as soon as possible,

but not later than 2010.

The second step calls for all members to make equal annual

cuts in remaining tariffs between 2010 and 2015. These cuts would

result in zero tariffs. The proposal also calls for a separate program

to identify and eliminate non-tariff barriers, which would run on a

parallel track with the negotiations on industrial tariffs. The United

States will put forward an initial list of such barriers in January.

The elimination of U.S. tariffs would signiﬁcantly beneﬁt U.S.

families and consumers through lower import taxes and a more

competitive economy. Last year alone, hidden import taxes cost

700 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

American consumers $18 billion. Duty-free trade would eliminate

these hidden costs and lower prices for consumers. While this

proposal would offer substantial beneﬁts to all Americans, it would

particularly help low-income families. A recent study by the

Progressive Policy Institute found that cutting U.S. import taxes

especially beneﬁts single-parent, low-income families, who typically

pay a higher proportion of their income on import taxes than

other households. A University of Michigan study found that the

U.S. economy would expand by $95 billion as a result of tariff-

free trade—contributing to job-creation and higher wages.

U.S. consumer and industrial goods exports totaled more than

$670 billion in 2001. U.S. exports support an estimated 12 million

American jobs, and jobs supported by goods exports typically pay

13 percent to 18 percent higher than the average U.S. wage. The

University of Michigan study also found that the elimination of

industrial tariffs by other countries could increase U.S. exports

by $83 billion annually. Highly-traded goods exports, such as

chemicals, paper, and scientiﬁc equipment, which are targeted in

the U.S. proposal for expedited tariff elimination, account for

60 percent of total U.S. goods exports.

Developing countries also have much to gain from a tariff-free

world. According to a World Bank estimate, there would be a

world income gain of $832 billion from free trade in all goods

including agriculture, of which $539 billion (65 percent) would

ﬂow to developing countries. This represents $544 for a family of

four. The World Bank estimates that free trade in goods and

services could help lift 300 million people out of poverty—a

number greater than the entire population of the United States.

The U.S. proposal on consumer and industrial goods tariffs

results in tariff-free trade for 91 percent of world goods trade. For

the remaining 9 percent of world goods trade, the U.S. agriculture

proposal would cut global tariffs by 76 percent in ﬁve years as a

step towards eventual tariff elimination.

Background:

The reduction and elimination of tariffs on consumer and industrial

goods is a component of the WTO negotiations launched in Doha,

Qatar in 2001 to be completed by January 1, 2005.

Trade, Commercial Relations, Investment, and Transportation 701

Throughout the year, United States leadership has continued

to spur momentum on the Doha Development Agenda in the WTO:

— On July 1, the United States announced proposals for

liberalizing global trade in services, designed to remove foreign

barriers in areas such as ﬁnancial services, telecommunications,

and environmental services.

— On July 25, the United States became the ﬁrst WTO member

to put forward a comprehensive agricultural trade reform

proposal, calling for elimination of export subsidies, cuts of

$100 billion in annual allowed global trade-distorting domestic

subsidies, and lowering average allowed global tariffs from 62

percent to 15 percent. The United States also proposed that

WTO members agree in this negotiation to a speciﬁc date for

elimination of agricultural tariffs and trade-distorting domestic

support.

— On August 9, the United States submitted a proposal to expand

transparency and public access to World Trade Organiza-

tion dispute settlement proceedings. The proposal would open

WTO dispute settlement proceedings to the public for the

ﬁrst time and give greater public access to briefs and panel

reports.

— On October 17, the United States submitted a paper high-

lighting the importance of strengthening transparency and due

process in the application of trade remedies (antidumping,

subsidies, and safeguard actions). It addresses the basic concepts

and principles of the trade remedy rules against unfair trade,

and the importance of tackling the trade-distorting practices

that are frequently the root causes of unfair trade. The U.S.

also submitted a paper presenting a number of ideas and

recommendations for addressing trade- and market-distorting

practices in the steel sector.

(2) Agriculture

The comprehensive agricultural trade reform proposal by the

United States, referred to in (1) above, called for eliminating

export subsidies, cutting allowed trade-distorting domestic

702 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

subsidies, and lowering average allowed global tariffs. The

United States also proposed negotiations on a sector-speciﬁc

basis on further reform commitments. Excerpts below from

a fact sheet made available on August 23, 2002, describe the

proposal in greater detail.

The fact sheet is available at www.state.gov/g/oes/rls/fs/

2002/12963.htm.

The United States is proposing ambitious reforms for agricul-

tural trade in the World Trade Organization (WTO) negotiations.

Taken as a package, the U.S. proposal on export competition,

market access and domestic support would result in reductions

in trade barriers for agricultural products, greater equity in world

agriculture, and expanding growth opportunities for the sale of

agricultural products.

The United States is proposing a two-phase process:

The ﬁrst phase eliminates export subsidies and reduces world-

wide tariffs and trade-distorting domestic support over a ﬁve-year

period. This would be accomplished by harmonizing tariffs and

trade-distorting domestic support at substantially lower levels then

what is currently allowed.

The second phase is the eventual elimination of all tariffs and

trade-distorting domestic support.

Export Competition

Export Subsidies. The United States proposes the elimination of

export subsidies, with reductions phased in over a ﬁve-year period

in equal annual increments.

Current WTO rules cap annual budgetary outlays on export

subsidies and the quantity of subsidized exports, on a product-

speciﬁc basis. Speciﬁc caps on the use of export subsidies were

derived from export subsidy activity in the 1986–1990 period.

Consequently, the European Union (EU) has recourse to extensive

use of export subsidies, and spent over $2 billion in 2000. The

United States also has the ability to use substantial amounts of

export subsidies for certain products. However, the United States

only spent $20 million in 2000.

Trade, Commercial Relations, Investment, and Transportation 703

State Trading Enterprises. The United States proposes elimina-

tion of export monopolies, thus allowing any producer, distributor,

or processor to export agricultural products. The United States

proposes ending special ﬁnancial privileges granted state traders

and expanding their WTO transparency obligations.

WTO rules allow for state trading enterprises such as the

Canadian Wheat Board to beneﬁt from special rights or privileges

in export sales, including special ﬁnancing privileges. These

privileges can create perverse incentives for exporters and producers

that result in market distortions, and can hide export subsidy

activity.

Export Taxes. The Unites States proposes prohibiting export

taxes on agricultural products. An exception would be made for

developing countries for revenue-generating purposes under certain

conditions.

Current WTO rules allow countries to impose export taxes

on agricultural products with few restrictions. These taxes can

contribute to market distortions, particularly when applied during

periods of global short supply or when they are used to discourage

exports of basic products and encourage exports of semi-processed

and processed products. The United States is constitutionally

prohibited from levying export taxes.

Export Credits, Credit Guarantees, and Insurance. The United

States proposes the establishment of speciﬁc rules to govern

export credit activity by identifying permissible practices across

the range of tools currently employed by WTO members. Practices

that are inconsistent with these disciplines would be considered

export subsidies and subject to the strict rules prohibiting export

subsidies.

Current WTO rules allow for the use of export credit programs,

including those with a subsidy element, as long as they are

consistent with multilateral disciplines. A number of countries use

export credit programs in agriculture, including the United States,

employing a broad range of speciﬁc practices. In order to guard

against circumvention of export subsidy disciplines, WTO members

will develop speciﬁc disciplines on export credit programs.

Food Aid. The United States proposes to expand reporting

requirements in the WTO to increase transparency of food aid

704 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

activities and to strengthen the market displacement analysis

in international organizations charged with reviewing food aid

activity.

WTO rules allow for the use of food aid, as long as food aid

practices are consistent with guidelines established under the Food

Aid Convention and the Food and Agriculture Organization. In

order to guard against circumvention of export subsidy disciplines,

some WTO members have proposed reviewing food aid disciplines

in the negotiations.

Market Access

Tariffs: The United States proposes the use of a harmonizing

formula (the “Swiss formula”) for reducing all agricultural tariffs

(out-of-quota duties and tariff-only items) that will cut high tariffs

more than low tariffs, ensuring no individual tariff exceeds 25 per-

cent after a ﬁve year phase in period. The United States proposes

that tariff cuts be implemented from applied rates and that tariff

application be simpliﬁed to either single ad valorem or speciﬁc

tariffs. The United States proposes that WTO members agree in

the negotiations to a speciﬁc date for the eventual elimination of

all agricultural tariffs.

Current WTO rules require all countries to cap the maximum

tariff that can be applied on any product.

While tariffs have come down in recent years, the level of

allowed tariff is often substantial. The world average on agricul-

tural products is 62 percent, while the U.S. average agricultural

tariff is 12 percent.

Tariff-Rate Quotas (TRQs). The United States proposes

expanding all TRQs by 20 percent and eliminating in-quota duties,

phased in over a ﬁve-year period. The United States proposes

tightening rules on TRQ administration to encourage quota-ﬁll

and greater transparency, including by prohibiting certain

restrictions on imports and requiring the establishment of TRQ

reallocation mechanisms. The United States proposes reserving a

share of TRQ increases for non-traditional developing country

suppliers.

A number of WTO Members allow a speciﬁc quantity of

imports access at a low tariff rate, with all other imports subject

Trade, Commercial Relations, Investment, and Transportation 705

to a higher tariff—a TRQ. The United States maintains TRQs for

beef, dairy, peanuts, sugar, tobacco, and cotton.

State Trading Enterprises. The United States proposes

expanding trading rights to allow any interested entity to import

products. The United States proposes, where TRQs exist, that a

growing share of import activity under the TRQs be directed to

entities other than those afﬁliated with the government.

Current WTO rules allow countries to channel imports through

a single entity, creating opportunities for import restrictions and

resulting in unmet demand for import products.

Special Agricultural Safeguard. The United States proposes

elimination of this special safeguard.

Current WTO rules allow for the application of additional

tariffs when triggered by a surge of imports or a decline in price,

for a speciﬁc list of products. In the United States this safeguard

can be used for beef, dairy, peanuts, sugar, and cotton products

but has not been used in any meaningful way. The United States

has identiﬁed the need for WTO members to improve import relief

mechanisms for seasonal and perishable products in the context

of the WTO negotiations.

Domestic Support

Trade-Distorting Domestic Support: The United States proposes

using a formula to limit all countries’ use of trade-distorting support

to 5 percent of the total value of agricultural production, with

reductions made from current caps over a ﬁve-year period. The

United States proposes simplifying the current system of calculating

trade-distorting domestic support by including trade-distorting

support linked to production limitations against the WTO cap.

The United States proposes that WTO members agree in the

negotiations to a speciﬁc date for the elimination of all trade-

distorting support.

Current WTO rules distinguish between trade-distorting

support, and non-trade distorting support. Trade-distorting support

that is subject to the cap generally consists of measures that distort

producers’ incentives, such as price supports and input subsidies,

leading to over-production and distorting international markets.

Trade-distorting support linked to production limitations is

706 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

currently not included against the annual cap. The allowed levels

of trade-distorting support were derived from subsidy activity

in the 1986–1988 period. The EU can provide over $60 billion

annually in trade-distorting domestic support, and provides

substantial support through so-called production-limiting pro-

grams. Japan can provide over $30 billion. The U.S. limit is $19

billion. Most other countries have very minimal allowances for

trade-distorting support, although some small European countries

provide a substantial level of support relative to the size of their

agricultural economy. Current rules for excluding low levels of

support would be maintained under the U.S. proposal.

Non-Trade Distorting Support (“Green Box”). The United

States proposes maintaining the basic criteria for non-trade

distorting support.

Non-trade distorting support generally consists of measures

delinked from production incentives, such as food stamps, research,

extension, pest and disease control, and delinked direct payments.

There are no caps on non-trade distorting support, as long as

policies are consistent with speciﬁc criteria designed to minimize

production distortions.

Sectoral Initiatives

The United States proposes that WTO Members engage in negotia-

tions on a sector-speciﬁc basis on further reform commitments

that go beyond the basic reductions that will apply to all products.

These would include deeper tariff reductions, product-speciﬁc limits

on trade-distorting domestic support, and other commitments to

more effectively address the trade-distorting practices in the affected

commodity sectors.

Special and Difference Treatment

GATT and WTO negotiations have traditionally recognized that

developing countries, and in particular least developed countries,

may require special and differential treatment under trade rules to

give them more time to adjust to competition and to allow mechan-

isms to address economic development needs. A number of

countries have proposed speciﬁc approaches for including special

and differential treatment in these WTO negotiations.

Trade, Commercial Relations, Investment, and Transportation 707

The United States and developing countries share many interests

in these negotiations, and U.S. proposals will yield many beneﬁts

for farmers in developed and developing countries alike. These

include: elimination of export subsidies, continuation of export

credit and food aid programs, tariff reductions and reducing trade-

distorting domestic support.

Regarding market access, the United States proposes provid-

ing to nontraditional developing country suppliers a share of the

expansion in the TRQ quantities. Under export competition, the

United States proposes that only developing countries would be

able to use export taxes. Concerning domestic support, the United

States proposes identifying speciﬁc support programs oriented

towards subsistence, resource-poor and low-income farmers that

would be exempt from subsidy limits. The United States will

continue to engage with developing countries to address their

transitional and development objectives consistent with the overall

objectives of liberalizing world agricultural trade and reducing

disparities that exist in protection and trade-distorting support.

(3) Export Credits

On November 20, 2002, the United States submitted its

proposal to establish disciplines to govern the provision of

ofﬁcially supported export credits, export credit guarantees,

and export credit insurance. The U.S. submission is provided

below in full, and is available at http://usinfo.state.gov/topical/

econ/wto/exportcredits021120htm.

The United States proposes, as part of the comprehensive reform

of trade-distorting measures under the three pillars, the following

disciplines on export credits, credit guarantees, and export credit

insurance.

1. Consistency with Article 10.2

This Article establishes internationally agreed disciplines to govern

the provision of ofﬁcially supported export credits, export credit

708 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

guarantees, and export credit insurance programs in accordance

with Article 10.2 of the Uruguay Round Agreement on Agriculture.

(Such provision hereafter is referred to as “export ﬁnancing”.)

Agricultural products for the purpose of this Article are those

listed in Annex 1 of the Uruguay Round Agreement on Agriculture

and the products thereof.

2. Scope of Article

These disciplines apply to all forms of ofﬁcial support including

direct credits/ﬁnancing; reﬁnancing; interest-rate support; export

credit insurance and guarantees; deferred invoicing; and any other

form of involvement, direct or indirect, by providers of ofﬁcial

support. Ofﬁcial support may exist although governments do not

make any payment to the after-mentioned institutions or bodies.

Providers of ofﬁcial support to be subject to disciplines in-

clude government departments, agencies, or statutory bodies; any

ﬁnancial institution or entity engaged in export ﬁnancing in which

there is governmental participation by way of equity, provision

of loans or underwriting of losses; any governmental or non-

governmental enterprises, including marketing boards, which have

been granted exclusive or special rights or privileges, including

statutory or constitutional powers, in the exercise of which or by

virtue of which they inﬂuence through their purchases or sales the

level or direction of exports; and any bank or other private ﬁnancial

institution which acts on behalf of or at the direction of govern-

ments or their agencies.

3. Prohibition

Except to the extent provided under Article 10.4 under the Uruguay

Round Agreement on Agriculture, Members shall be prohibited

from using export credit, export credit guarantee and export credit

insurance programs that do not meet the provisions of this article.

4. Notiﬁcation

Within ninety days of the entry into force of this agreement, a

Member shall notify any program that it maintained before the

Trade, Commercial Relations, Investment, and Transportation 709

entry into force of this agreement. A Member shall not maintain

programs that were not so notiﬁed.

No later than the next semi-annual reporting date, a Member

shall notify the terms and conditions of any new programs and

any exclusive or special rights or privileges, including statutory or

positional powers granted, implemented after the beginning of the

implementation period of this agreement. Failure to notify shall

result in the prohibition of use.

5. Transparency and Reporting

Members shall assure transparency in the use of export credit

programs. Semi-annual reporting shall be as set out in Annex 1 of

this Agreement.

6. Terms and Conditions

A Member shall not maintain export ﬁnancing programs other

than in accordance with the following provisions:

(a.) Repayment term

The maximum repayment term of 180 days shall begin at the

starting point of export ﬁnancing and end on the contractual date

of the ﬁnal payment.

(b.) Period of validity

Credit terms and conditions (e.g., interest rates for ofﬁcial

ﬁnancing support and all risk-based terms and conditions) offered

for an individual export credit or line of credit shall not be ﬁxed

for a period exceeding six months without payment of the

premium.

(c.) Starting point of export ﬁnancing

The starting point of export ﬁnancing shall not be later than

the actual date of shipment of the goods to the recipient country.

(d.) Repayment of principal

The principal sum shall be repaid no later than 180 days after

the starting point of export ﬁnancing.

(e.) Repayment of interest

Interest shall be paid no later than 180 days after the start-

ing point of export ﬁnancing. In the case of ofﬁcial ﬁnancing

710 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

support

, interest excludes (i) any payment of premium or other

charge for insuring or guaranteeing supplier credits or ﬁnancial

credits; (ii) any other payment of banking fees or commissions

relating to the export credit; and (iii) any withholding taxes

imposed by the importing country.

(f.) Minimum interest rate

Interest rates offered for ofﬁcial ﬁnancing support shall not be

below the actual costs of borrowing for the funds so employed

(including costs of funds if capital was borrowed on international

markets in order to obtain funds of the same maturity), plus a

risk-based spread reﬂective of prevailing market conditions.

(g.) Premiums

Premiums charged under export ﬁnancing programs shall

be consistent with the following provisions: premiums shall be

adequate to cover long-term operating costs and losses; premiums

shall be expressed in percentages of the principal value of the

credit; and premiums shall be paid in full at date of issuance and

shall not be ﬁnanced.

(h.) Coverage

Export ﬁnancing shall cover less than the full value of a

transaction.

(i.) Rebates Rebates in any form shall be explicitly prohibited.

(j.) Foreign exchange risk

Export credits, export credit guarantees, export credit insur-

ance, and related ﬁnancial support shall be provided in freely traded

currencies. Foreign exchange exposure deriving from credit that is

repayable in the currency of the importer shall be fully hedged,

such that the market risk and credit risk of the transaction to the

supplier/lender/guarantor is not increased. The cost of the hedge

shall be incorporated into and be in addition to the premium rate

determined according to Article 6 (g).

Ofﬁcial ﬁnancing support includes direct credits/ﬁnancing,

reﬁnancing and interest rate support (G/AG/NG/S/13).

Trade, Commercial Relations, Investment, and Transportation 711

7. Special and Differential Treatment:

Special and differential treatment in favor of recipient developing

countries shall take the form of the following export credits terms

and conditions:

(a.) The maximum repayment term of thirty months for

developing countries shall begin at the starting point of export

ﬁnancing and end on the contractual date of the ﬁnal payment.

(b.) The principal sum shall be repaid in equal and regular

installment not less frequently than annually with the ﬁrst payment

due no later than twelve months after the starting point of credit.

(c.) Interest shall be paid not less frequently than annually,

with the ﬁrst payment to be made no later than twelve months

after the starting point of export ﬁnancing.

8. Emergency Exception

An emergency is deﬁned as a sudden, signiﬁcant, and unusual

deterioration in a recipient country’s economy, which may have

far-reaching consequences such as social deprivation or unrest. In

the event of an emergency the recipient country Member may

request of the providing Member more generous terms for either

export credits, export credit guarantees, or export credit insurance

programs. The recipient Member shall notify the Committee on

Agriculture in writing of any request for more generous terms.

The providing Member shall consider all requests for more

generous terms in accordance with the need to sustain the viability

of their export credits, export credit guarantees, or export credit

insurance programs.

(4) Transparency in WTO Dispute Settlement Proceedings

The Doha meeting in November 2001 speciﬁcally called

for negotiations to clarify and improve the WTO Under-

standing on Rules and Procedures Governing the Settle-

ment of Disputes. On August 9, 2002, the United States

submitted its ﬁrst proposal in those negotiations, to expand

712 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

transparency and public access to WTO dispute settlement

proceedings. The proposal would open most substantive

panel, appellate body, and arbitration meetings and would

provide greater public access to briefs and panel reports. It

also called on WTO members to consider rules establish-

ing guidelines for how amicus curiae submissions are to

be considered. The text of the proposal is provided below

in full, and is available at http://usinfo.state.gov/topical/econ/

wto/dsu020809.htm.

I. Introduction

The Uruguay Round of multilateral trade negotiations was able

to achieve agreement on a wide range of new disciplines designed

to reduce banters to trade while recognizing the legitimate needs

of Members to pursue policy objectives. Those new disciplines

reached areas of government action additional to those areas that

had traditionally been the subject of trade disciplines. Members

also agreed on a new dispute settlement system in order to help

resolve problems arising from the application of these World Trade

Organization (“WTO”) disciplines.

Experience under the WTO dispute settlement system since

1995 has demonstrated that the recommendations and rulings

of the Dispute Settlement Body [DSB] can affect large sectors

of civil society. At the same time, increased membership in the

WTO has also meant that more governments and their citizens

have an interest in those recommendations and rulings. Yet civil

society and Members not party to a dispute have been unable

even to observe the arguments or proceedings that result in these

recommendations and rulings.

Other international dispute settlement fora and tribunals are

open to the public, such as the International Court of Justice (1),

the International Tribunal for the Law of the Sea (2), the Inter-

national Criminal Tribunal for the former Yugoslavia (3), the

International Criminal Tribunal for Rwanda (4), the European

Court of Human Rights (5), and the African Court on Human

Trade, Commercial Relations, Investment, and Transportation 713

and Peoples’ Rights. (6) Those fora deal with issues that are

intergovernmental in nature and are at least as sensitive as those

involved in WTO disputes. For example, these fora have addressed

boundary disputes, use of force, nuclear weapons, human rights

violations, and genocide.

There is no reason why the WTO should be different in this

respect. The public has a legitimate interest in the proceedings.

WTO trade disputes, like other intergovernmental disputes,

could beneﬁt from being more transparent to the public. Indeed,

implementation of the DSB recommendations and rulings may

be facilitated if those being asked to assist in the task of im-

plementation, such as the constituencies of legislators, have

conﬁdence that the recommendations and rulings are the result

of a fair and adequate process.

At the same time, non-party WTO Members would beneﬁt

from being able to observe the arguments and proceedings of

WTO disputes. (7) This would assist Members, including dev-

eloping countries, in understanding the issues involved as well as

gaining greater familiarity and experience with dispute settlement.

Being better informed about disputes generally could aid Members

in deciding whether to assert third party rights is a particular

dispute.

A more open and transparent process would be a signiﬁcant

improvement to the DSU, in keeping with the commitment by Min-

isters “to promote a better public understanding of the WTO”,

and “to making the WTO’s operations more transparent, including

through mare effective and prompt dissemination of information.

(8) Such a more open and transparent process could be achieved

by providing an opportunity to observe the arguments and evidence

submitted in proceedings as well as observing those proceed-

ings, subject to appropriate safeguards such as for conﬁdential

information and security. In addition, the ﬁnal results of those

proceedings should be made available to the public as soon as

possible. The following proposals are intended to help achieve,

such a more open and transparent process. In no case are these

proposals designed to afford Members fewer or more limited rights

than those available to civil society.

714 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

II. Open Meetings

The DSU should provide that the public may observe all substantive

panel, Appellate Body and arbitration (9) meetings with the parties

except those pardons dealing with conﬁdential information (such

as business conﬁdential information or law enforcement methods).

The DSU could provide a basic set of procedures for this purpose

with some ﬂexibility for the relevant body to reﬁne these in

light of the particular circumstances of a speciﬁc proceeding. For

example, the procedures could provide a number of options for

allowing the public to observe the meetings, such as broadcasting

meetings to special viewing facilities.

III. Timely Access to Submissions

The DSU should provide that parties’ submissions and written

versions of oral statements in panel, Appellate Body, or arbitration

proceedings are public, except those portions dealing with con-

ﬁdential information.

To help facilitate public access to these documents, the

Secretariat should maintain them in a central location that would

be responsible for making these documents available to the public.

IV. Timely Access to Final Reports

The WTO should make a ﬁnal panel report available to VITO

Members and the public once it is issued to the parties, although

only circulation would trigger the relevant DSU deadlines.

V. Amicus Curiae Submissions

In light of the experience to date with amicus curiae submissions

to panels and the Appellate Body, Members may wish to consider

whether it would be helpful to propose guideline procedures for

handling amicus curiae submissions to address those procedural

concerns that have been raised by Members, panels and the

Appellate Body.

Trade, Commercial Relations, Investment, and Transportation 715

(1) Article 59, Rules of Court.

(2) Article 74, Rules of the Tribunal.

(3) Rule 78, Rules of Procedure and Evidence.

(4) Rule 78, Rules of Procedure and Evidence.

(5) Rule 33, Chapter I, Title II, Rules of Court.

(6) Article 10, on the Establishment of an African Court of

Human and Peoples’ Rights, Protocol to the African Charter on

Human and Peoples’ Rights.

(7) We note that other Members have expressed an interest in

this.

(8) Paragraph 10 of the Doha Ministerial Declaration.

(9) This would include arbitration under Articles 21.3(c), 22.6

and 25 of the DSU.

(5) U.S. moratorium on dispute settlement regarding medicines

for HIV/AIDS and other health crises in absence of WTO

consensus

On December 20, 2002, the U.S. Trade Representative

(“USTR”) announced an interim plan to help poor coun-

tries ﬁght HIV/AIDS and other health crises in the absence

of WTO consensus. In the November 2001 Doha trade

negotiations, WTO ministers afﬁrmed that global trade rules

permit compulsory licensing of drugs for domestic health

emergencies such as HIV/AIDS, malaria, tuberculosis, and

other types of infectious epidemics. Subsequent negotiations

in the WTO had failed to ﬁnd consensus on a new multilateral

rule to enable poor countries without domestic production

capacity to import from third countries under compulsory

license the drugs needed for such domestic health emer-

gencies. While stating that it continued to work with other

WTO members toward a solution within the WTO, the United

States announced its own interim plan, as described in

excerpts from the USTR press release set forth below. U.S.

Trade Representative Robert B. Zoellick urged other countries

“to join us in this moratorium to help poor countries get

access to emergency life-saving drugs.”

716 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The full text of the press release is available at

www.ustr.gov/releases/2002/12/02-119.htm.

The United States today announced an immediate practical

solution to allow African and other developing countries to gain

greater access to pharmaceuticals and HIV/AIDS test kits when

facing public health crises. The U.S. pledged to permit these

countries to override patents on drugs produced outside their

countries in order to ﬁght HIV/AIDS, malaria, tuberculosis, and

other types of infectious epidemics, including those that may arise

in the future.

****

The United States will continue to work with other WTO

Members to try to ﬁnd a solution within the WTO. In the

meantime, the United States will implement the Doha Declara-

tion by pledging not to challenge any WTO Member that breaks

WTO rules to export drugs produced under compulsory license to

a country in need, and called on others to join the United States in

this moratorium on dispute settlement.

****

Interim Measure by the United States Government:

At Doha, Ministers afﬁrmed their commitment to the TRIPS

Agreement and conﬁrmed Members’ ability to use the ﬂexibility

in the Agreement, including the ability to override patents, to

address public health crises.

However, many least-developed countries, for example in

Africa, and some developing countries, lack sufﬁcient manu-

facturing capacity in the pharmaceutical sector to make effective

use of compulsory licensing as currently provided by the TRIPS

Agreement. The interim solution that the United States is

announcing today is designed to help those countries combat

HIV/AIDS, malaria, tuberculosis, and other infectious epidemics

of comparable gravity and scale, including those that may arise in

the future, by enabling them to treat these diseases by importing

drugs from other WTO Members under the compulsory licensing

Trade, Commercial Relations, Investment, and Transportation 717

rules of the TRIPS Agreement. Such infectious diseases would

include, for example, ebola, African trypanosomiasis, cholera,

dengue, typhoid, and typhus fevers.

The United States expects that all countries will cooperate to

ensure that the drugs produced are not diverted from countries in

need to wealthier markets.

The United States remains committed to ﬁnding a workable,

transparent, sustainable, and legally certain solution that will fulﬁll

the Doha Declaration directive as soon as possible. We encourage

all countries to reﬂect on the original purpose of the Doha Declara-

tion and to work for a solution that is consistent with it.

This special measure will not apply to developed country

Members of the WTO or those developing economy Members

classiﬁed by the World Bank as high income countries—Barbados,

Brunei, Cyprus, Hong Kong, Israel, Kuwait, Liechtenstein, Macao,

Malta, Qatar, Singapore, Slovenia, Taiwan, and the United Arab

Emirates. These countries have sufﬁcient production capacity in

the pharmaceutical sector or sufﬁcient ﬁnancial resources to address

such public health problems and thus do not need to import under

compulsory licenses.

After a year of intensive negotiations, WTO Members have

not been able to reach a consensus to implement the remaining

elements of the Doha Declaration on the TRIPS Agreement and

Public Health because some countries insisted that the solution

cover all health problems, including non-emergencies. Further,

some Members have insisted that the limited exception be available

to all countries regardless of their manufacturing capacities or

ﬁnancial resources. This element of the Doha Declaration was

intended to focus international action on the grave public health

crises afﬂicting the poor and to assist countries lacking capacity

and resources to obtain access to needed medicines for infectious

epidemics. Unless WTO Members focus on infectious epidemics

and truly needy countries, the solution called for at Doha will not

beneﬁt those for which it was intended.

Background:

Several U.S. pharmaceutical companies have formed partnerships

with African countries and are working together to address many

718 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

of the problems related to providing treatment to those in need.

Their policies include the sale of critical medicines at very low

prices, as well as the building of an improved infrastructure for

getting these medicines to those in need. More than 50 percent of

all new medicines are invented in the United States. Therefore, we

recognize that the solution both to today’s health problems—and

tomorrow’s—in terms of new medicines, will likely come from

U.S. companies.

At the Doha Ministerial, Ministers acknowledged the serious

public health crises afﬂicting Africa and other developing and least-

developed countries, especially those resulting from HIV/AIDS,

malaria, tuberculosis and other infectious epidemics. Ministers

agreed on the need for a balance between the needs of poor coun-

tries without the resources to pay for cutting edge pharmaceuticals

and the need to ensure that the patent rights system which pro-

vides the incentives for continued development and creation of

new lifesaving drugs is promoted. One major part of the Doha

Declaration was agreement to provide an additional ten-year trans-

ition period (until 2016) for least developed countries, as proposed

by the United States and agreed upon by all WTO Members.

Paragraph 6 of the Doha Ministerial Declaration on the TRIPS

(Trade-Related Aspects of Intellectual Property Rights) Agreement

and Public Health recognizes that WTO Members with insufﬁcient

or no manufacturing capacities in the pharmaceutical sector could

face difﬁculties in making effective use of compulsory licensing

under the TRIPS Agreement in order to address these health

problems. WTO Ministers directed the TRIPS Council to ﬁnd a

solution to this problem and to report to the General Council

before the end of 2002.

Under current WTO patent rules, a country is free to override

a patent, under certain conditions, to allow production of the

patented product in its domestic market. This is commonly referred

to as “compulsory licensing.” The Doha Declaration afﬁrmed that

Members may use compulsory licensing to address public health

crises. However, under current WTO rules, products produced

under compulsory license generally cannot be exported to other

WTO Members. The U.S. solution is intended to eliminate this

export restriction so medicine can be supplied to countries most

in need that cannot manufacture their own pharmaceuticals.

Trade, Commercial Relations, Investment, and Transportation 719

E. OTHER TRADE AGREEMENTS AND RELATED ISSUES

1. Trade Promotion Authority

a. Legislation enacted

On August 6, 2002, President George W. Bush signed into

law the Trade Act of 2002. Title XXI of the act, entitled

Bipartisan Trade Promotion Authority Act of 2002, established

objectives, policies, and priorities for trade agreements that

would be reviewed by Congress on an expedited basis, known

as trade promotion authority. Pub L. No. 107–210, 116 Stat.

933. Section 2102 of the act established trade negotiating

objectives, including principal negotiating objectives in the

following areas: reduction or elimination of trade barriers and

distortions, trade in services, foreign investment, intellectual

property, transparency, anti-corruption, improvement of the

WTO and multilateral trade agreements, regulatory practices,

electronic commerce, and reciprocal trade in agriculture.

Section 2103 authorizes the President to enter into trade

agreements regarding reduction or elimination of tariff and

nontariff barriers with foreign countries under certain con-

ditions before June 1, 2005, with a possible extension through

June 1, 2007. Such agreements would be considered under

expedited procedures established under section 151 of the

Trade Act of 1974, 19 U.S.C. § 2192 (2003). Section 2104

establishes consultation and assessment requirements,

including a requirement that the President provide written

notice to Congress at least 90 calendar days before initiating

negotiations setting forth the date negotiations will be initi-

ated and the speciﬁc U.S. objectives; and consult with Con-

gressional committees and a congressional oversight group

established pursuant to § 2107 regarding the negotiations.

Additional requirements are established for negotiations

regarding agriculture, ﬁsh and shellﬁsh, and textiles. Under

§ 2105, the President must notify Congress 90 calendar days

before the day on which the President enters into a trade

agreement under this authority, must submit to Congress

within 60 days after entering into the agreement a description

720 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

of needed changes to existing laws to comply with the

agreement, and must provide a copy of the ﬁnal legal text

and supporting documents after entering into the agreement.

Excerpts below from the President’s remarks in signing the

law provide his views on its signiﬁcance.

The full text of the signing statement is available at http://

www.whitehouse.gov/news/releases/2002/08/20020806-4.html.

****

With trade promotion authority, the trade agreements I

negotiate will have an up-or-down vote in Congress, giving other

countries the conﬁdence to negotiate with us. Five Presidents before

me had this advantage, but since the authority elapsed in 1994,

other nations and regions have pursued new trade agreements

while America’s trade policy was stuck in park. With each passing

day, America has lost trading opportunities and the jobs and

earnings that go with them. Starting now, America is back at the

bargaining table in full force.

I will use trade promotion authority aggressively to create more

good jobs for American workers, more exports for American

farmers, and higher living standards for American families. Free

trade has a proven track record for spurring growth and advancing

opportunity for our working families. Exports accounted for

roughly one-quarter of all U.S. economic growth in the 1990s.

Jobs in exporting plants pay wages that are up to 18 percent

higher than jobs in nonexporting plants. And our two major trade

agreements, NAFTA and the Uruguay Round, have created more

choices and lower prices for consumers while raising standards of

living for the typical American family of four by $2,000 a year.

America will build on this record of success. A completely free

global market for agricultural products, for example, would result

in gains of as much as $13 billion a year for American farmers

and consumers. Lowering global trade barriers on all products

and services by even one-third could boost the U.S. economy by

$177 billion a year and raise living standards for the average

family by $2,500 annually. In other words, trade is good for the

Trade, Commercial Relations, Investment, and Transportation 721

American people, and I’m going to use the trade promotion

authority to bring these beneﬁts to the American people.

Free trade is also a proven strategy for building global pro-

sperity and adding to the momentum of political freedom. Trade

is an engine of economic growth. It uses the power of markets to

meet the needs of the poor. In our lifetime, trade has helped lift

millions of people and whole nations and entire regions out of

poverty and put them on the path to prosperity. History shows

that as nations become more prosperous, their citizens will demand

and then can—and can afford a cleaner environment. And greater

freedom for commerce across the borders eventually leads to greater

freedom for citizens within the borders.

The members of the diplomatic corps with us today under-

stand the importance of free trade to their nations’ success. They

understand that trade is an enemy of poverty and a friend of

liberty. I want to thank the ambassadors for their role in getting

this bill passed, especially the Andean ambassadors, who are

such strong advocates for the Andean Trade Preference Act.

By providing trade preference for products from four Andean

democracies, we will build prosperity, reduce poverty, strengthen

democracy, and ﬁght illegal drugs with expanding economic

opportunity.

Trade promotion authority gives the United States an important

tool to break down trade barriers with all countries. We’ll move

quickly to build free trade relationships with individual nations,

such as Chile and Singapore and Morocco. We’ll explore free

trade relationships with others, such as Australia. The United States

will negotiate a Free Trade Area of the Americas and pursue

regional agreements with the nations of Central America and the

Southern African Customs Union. We’ll move forward globally,

working with all nations to make the negotiations begun last year

in Doha a success. A little more than a week ago, the United

States put forward a far-reaching proposal to lower worldwide

agricultural trade barriers. These innovative set of ideas can lead

to real progress in this challenging area.

Trade gives all nations the hope of sharing in the great eco-

nomic and social and political progress of our age. And trade will

give American workers the hope that comes from better and higher

722 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

paying jobs. America’s committed to building a world that trades in

freedom and grows in prosperity and liberty. Today we have the

tools to pursue that vision, and I look forward to the work ahead.

b. Agreements to be negotiated

During 2002, Robert B. Zoellick, U.S. Trade Representative,

notiﬁed Congress of the President’s intention to initiate

negotiations for FTAs with Morocco (October 1), Central

America (October 1), the South African Customs Union

(Botswana, Lesotho, Namibia, South Africa and Swaziland)

(November 4), and Australia (November 13).

Excerpts from Mr. Zoellick’s letter of October 1, 2002, to

Senator Robert C. Byrd, President Pro Tempore, U.S. Senate,

concerning negotiation of an agreement with Morocco, are

set forth below.

The full texts of all letters notifying Congress are available

by month at www.ustr.gov/releases/2002.

At the direction of the President, I am pleased to notify the

Congress that the President intends to initiate negotiations for a

free trade agreement (FTA) with Morocco 90 days from the date

of this letter. This notiﬁcation is in accordance with section

2104(a)(1) of the Trade Act of 2002. It is crucial that we move

forward on this and other trade agreements in order to restore

America’s leadership on trade.

The Administration is committed to bringing back trade

agreements that open markets to beneﬁt our farmers, workers,

businesses, and families. With the Congress’ continued help, we

can move promptly to advance America’s trade interests.

In my letter of August 22, 2002, to the Congressional leadership

and trade committees, I outlined the reasons that it is in the United

States’ interest to pursue a free trade agreement with Morocco.

An FTA will create improved commercial and market

opportunities for U.S. exports to Morocco and to North and West

Africa. It will foster economic growth, increase living standards,

Trade, Commercial Relations, Investment, and Transportation 723

and create higher paying jobs in the United States and Morocco

by reducing and eliminating bilateral barriers to trade, while

reinforcing important American values in the region. This FTA

will also further strengthen our relations with a country that was

one of the ﬁrst to condemn the September 11 terrorist attacks and

has stood by our side ever since.

Trade liberalization with Morocco will support this Adminis-

tration’s commitment to promote more tolerant, open, and pro-

sperous Muslim societies. A U.S.-Morocco FTA will support the

signiﬁcant economic and political reforms underway in Morocco,

enhance the Moroccan government’s efforts to attract new trade

and investment, and promote sustainable development.

Such increased trade and investment can help create better

jobs for Morocco’s citizens. For both Morocco and the United

States, implementation of the agreement of course will be critical

to realizing its beneﬁts. The Administration therefore intends to

target ongoing development assistance and trade-related technical

assistance to help Morocco follow through on the commitments it

will make as part of the FTA.

Initial consultations with Members of Congress regarding an

FTA with Morocco have been positive, and we believe that there is

broad bipartisan interest in such an agreement. The Administration

will continue to consult closely with the Congress, including the

new Congressional Oversight Group.

****

c. Agreements to be concluded

The United States reached agreement on the text of a free

trade agreement with Singapore on November 19, and with

Chile on December 11, 2002. A summary of the agreement

with Chile is available at www.ustr.gov/releases/2002/12/

02-114.htm. Under the Trade Act of 2002, the executive branch

must notify Congress at least 90 days before signing the

agreement. Notiﬁcation of these two FTAs was expected to

occur in January 2003.

724 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

d. Negotiation in progress: Free Trade Area of the Americas

On November 1, 2002, the trade ministers of the 34

democracies in the Western Hemisphere held their Seventh

Ministerial meeting in Quito, Ecuador, to review progress

in negotiations to establish a Free Trade Area of the Americas

(“FTAA”). The aim of the negotiations is to complete the

FTAA by January 1, 2005, a deadline established at the Third

Summit of the Americas, held in Quebec City in April 2001. A

fact sheet issued by the Ofﬁce of the U.S. Trade Representat-

ive before the meeting summarized the goals and status of

the FTAA as follows:

Why FTAA? With more than 800 million people through-

out the Western Hemisphere, the FTAA will be the largest

free-trade area in the world. In the 1990s, U.S. exports

to Latin America grew faster than exports to any other

region, but U.S. businesses, workers, farmers and

ranchers still face many market access barriers in the

region, such as import taxes that are often ﬁve times

higher than U.S. import taxes.

Current Status. On May 15, 2002, negotiators began

work on market access commitments in agriculture,

industrial goods, services, investment and government

procurement. Negotiations and discussions are also

proceeding in intellectual property; subsidies, dumping

and countervailing duties; competition policy and dis-

pute settlement. Discussions on ecommerce, smaller

economies, and interaction with civil society are also

taking place. The talks are about to enter a key phase

of speciﬁc, concrete bargaining. For market access

negotiations, countries will table their initial “offers”

between December 15, 2002 and February 15, 2003, with

requests for improvements to these offers due before

June 15, 2003. Final revised offers are due by July 15,

2003.

At the November 1 meeting, the United States and Brazil

assumed co-chairmanship of the FTAA.

Trade, Commercial Relations, Investment, and Transportation 725

The full text of the fact sheet and other information

concerning the meetings is available at www.ustr.gov/new/

ftaa-quito.htm. The Ministerial Declaration of Quito is available

at www.ftaa-alca.org/ministerials/quito/minist_e.asp.

2. U.S.-Cambodia Textile Agreement

On January 7, 2002, the ofﬁce of the United States Trade

Representative announced that agreement had been reached

to extend the U.S.-Cambodia Bilateral Textile Agreement

for an additional three years, through December 31, 2004.

The action was cited by U.S. Trade Representtive Robert B.

Zoellick as “an excellent example of the way trade agreements

lead to economic growth and promote a greater respect for

workers’ rights.” Excerpts from the USTR press release are

provided below.

The full text of the press release is available at

www.ustr.gov/releases/2002/01/02-03.htm

The Memorandum of Understanding increases Cambodia’s

quota for textile imports by nine percent, in addition to a six

percent increase that is normal for most textile import quotas—

a total increase of 15 percent. The nine percent increase for 2002

reﬂects Cambodia’s progress towards ensuring that working

conditions in its garment sector are in “substantial compliance”

with internationally recognized labor standards and provisions of

Cambodia’s labor law, and follows recent formal U.S.-Cambodian

labor consultations. The International Labor Organization (ILO)

also has two projects underway assisting Cambodia with the imple-

mentation of its labor law.

As in the original agreement, Cambodia will be eligible for

future additional quota increases if working conditions in the

garment industry substantially comply with internationally recog-

nized core labor standards. The U.S. and Cambodian governments

agreed to increase this potential quota reward for full compliance

from 14 to 18 percent. The United States and Cambodia will

keep working conditions in the Cambodian garment sector under

726 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

ongoing review, and will conduct two rounds of labor consultations

in 2002, as provided for in the Agreement. Should it be determined

that Cambodia has made further, substantial progress towards

achieving this benchmark of “substantial compliance,” the 2002

annual quota bonus level could be increased further.

In the ﬁrst ten months of 2001, total U.S. imports from

Cambodia were $826.7 million, of which $818.2 million were

textiles and apparel. During the same period, U.S. companies

increased textile and apparel exports to Cambodia by 225 percent;

exports were valued at $652,000.

F. OTHER ISSUES

1. Export-Import Bank Reauthorization Act of 2002

On June 14, 2002, President George W. Bush signed into

law the Export-Import Bank Reauthorization Act of 2002,

Pub. L. No. 107–189, 116 Stat. 698, “to ensure the continued

effective operation of the Export-Import Bank, which will

advance U.S. trade policy, facilitate the sale of U.S. goods

and services abroad, and create jobs at home.” In so doing,

however, he made comments concerning interpretation of

certain provisions of the act as provided in the excerpt below.

****

The executive branch shall carry out section 7(b) of the bill,

which relates to certain small businesses, in a manner consistent

with the requirements of equal protection under the Due Process

Clause of the Fifth Amendment to the Constitution.

Subsections 10(a) and 10(b)(2) of the bill purport to require

the Secretary of the Treasury to negotiate with foreign countries

and international organizations to achieve particular purposes

and to require the Secretary to submit a report to congressional

committees on the contents of negotiations and certain related

executive deliberations. These provisions interfere with the Pre-

sident’s constitutional authority to conduct the Nation’s foreign

Trade, Commercial Relations, Investment, and Transportation 727

affairs, supervise the unitary executive branch, and withhold

information the disclosure of which could impair foreign relations,

the national security, the deliberative processes of the executive,

or the performance of the executive’s constitutional duties. Accord-

ingly, the executive branch shall construe these provisions as

precatory rather than mandatory.

The executive branch shall construe the reference to the

“Universal Declaration of Human Rights adopted by the United

Nations General Assembly on December 10, 1948,” added to

section 2(b)(1)(B) of the Export-Import Bank Act by section 15

of the bill, as only providing examples of types of human rights

that the President may wish to consider in making a determination

under section 2(b)(1)(B) and not as giving the Universal Declaration

the force of U.S. law. www.whitehouse.gov/news/releases/2002/06/

2002.0614.html.

2. OECD Guidelines for Multinational Enterprises

In May 2002, the Bureau of Economic and Business Affairs,

U.S. Department of State, established a national contact

point and made available an information booklet on the

Organization for Economic Cooperation and Development

(“OECD”) Guidelines for Multinational Enterprises. The

OECD guidelines are non-binding recommendations for

appropriate corporate behavior made to multinational

enterprises by the 30 OECD member countries and six

non-member countries. As a member of the OECD adhering

to the guidelines, the United States agreed to establish a

national contact point. As described in the booklet, the role

of the national contact point (“NCP”) is “to promote the

Guidelines, handle inquiries, and discuss with concerned

parties matters covered by the Guidelines. The Guidelines

also provide for NCPs to cooperate with each other where

appropriate, to meet annually to share experiences, and to

report on their activities.”

The booklet provides a summary of the guidelines and

contains excerpts from a statement by Alan P. Larson, Under

728 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Secretary of State for Economic, Business, and Agricultural

Affairs, at the OECD Ministerial Conference on 27 June 2000,

set forth below.

The full text of the booklet is available at www.state.gov/

e/eb/oecd/book/10215.htm.

Globalization and foreign direct investment are powerful forces

for good and can raise living standards by spreading the beneﬁts

of increased economic opportunity throughout the world. Pro-

moting broad standards of appropriate corporate behavior will

enhance the investment climate. For societies to beneﬁt fully from

this improved investment climate, we need to raise standards

in important areas of social concern. OECD and U.S. companies

are world leaders in good corporate citizenship and take their

commitment to high standards with them around the world in

their everyday operations. The adoption of these Guidelines will

help ensure that others match our standards and will promote a

form of globalization that not only generates wealth, but also raises

standards on social, labor, environmental, and human rights issues.

We are committed to the effective use of the Guidelines. The

United States will not shrink from our responsibility to continue

to encourage the observance of high standards of conduct where

it is lacking. Nor will we allow these Guidelines to become a vehicle

for unfairly tarnishing the reputation of good corporate citizens.

If all OECD Members, as well as other countries which

we encourage to adhere to the Declaration, share our commit-

ment, I am conﬁdent the OECD Guidelines will become a global

benchmark for corporate responsibility and continue to reinforce

high standards of corporate behavior. Our adoption today of the

revised Guidelines demonstrates how globalization can work for

the betterment of societies around the world. It represents an

important step in the governance of the global economy.

3. Rough Diamonds: Kimberley Process Certiﬁcation Scheme

On November 5, 2002, the United States joined 47 other

governments participating in the Kimberley Process in

Trade, Commercial Relations, Investment, and Transportation 729

Interlaken, Switzerland, in agreeing to eliminate conﬂict

diamonds from international trade beginning January 1, 2003.

Excerpts from a press release issued by the State Department

of the same date described the U.S. view.

The press release is available at www.state.gov/r/pa/prs/

ps/2002/14913.htm. The Inerlaken Ministerial Declaration is

available at www.kimberleyprocess.com/BulletinDisplay.asp?

The Interlaken Declaration is the culmination of two years of

intensive coordination and cooperation among governments in a

global coalition, including the diamond industry and civil society,

to cut off the use of diamonds to ﬁnance rebel movements which

have destabilized governments and terrorized people in Africa.

These negotiations led to creation of a global rough diamond

certiﬁcation system, which has been endorsed by the United

National General Assembly.

The United States has worked intensively over the past two

years to combat the conﬂict diamonds trade. The creation of this

trading system fulﬁlls an international commitment to the innocent

victims of conﬂicts that have been fueled by the proceeds of conﬂict

diamond transactions. The Kimberley Process will help curb the

ﬁnancing of rebel movements in the future and curtail their ability

to threaten civilians. It enables governments to use their diamond

resources to ﬁnance economic and social development, to the

beneﬁt of their people. And it protects the legitimate diamond

industry, which is responsible for the vast majority of rough

diamonds traded worldwide.

Cross Reference

Enforcement of foreign tax claim in the United States, Chap-

ter 15.A.4.

730 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Territorial Regimes and Related Issues 731

731

CHAPTER 12

Territorial Regimes and

Related Issues

A. LAW OF THE SEA AND RELATED ISSUES

1. United Nations Convention on Law of the Sea

On January 7, 2002, Secretary of State Colin L. Powell

responded to a letter from UN Secretary-General Kofﬁ Annan

concerning the importance of the United States becoming

a party to the UN Convention on the Law of the Sea, with

Annexes, done at Montego Bay, December 10, 1982, 1933

U.N.T.S. 397 (1982), 21 I.L.M. 1261 (1982) (“UNCLOS”).

Secretary Powell’s letter is set forth in full below.

Thank you for your letter calling attention to the importance

of universal participation in the United Nations Convention on

the Law of the Sea. As you note, the Convention has brought

certainty and stability to the law governing the oceans and has

contributed to international peace and security, especially through

freedom of navigation.

We are aware of the elections scheduled for April 2002 for

the International Tribunal for the Law of the Sea and the Com-

mission on the Limits of the Continental Shelf. The United

States would indeed beneﬁt from representation on these bodies,

where we could inﬂuence the delimitation of continental shelves

throughout the world—an issue of keen interest to our oil and

gas industry—and help to steer the future development of the rule

732 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

of law under the Convention. Also of importance would be the

opportunity for the United States to exercise leadership in other

aspects of the Convention to ensure freedom of the seas and ocean

uses consistent with sound commercial principles, as we did during

negotiation of the Convention and the 1994 agreement amending

Part XI.

The United States Senate plays a critical role in the decision to

accede to a treaty, and President Bush’s Administration is exploring

with the Senate the United States’ accession to the Convention.

Thank you for the copy of the compendium recently issued by

the International Seabed Authority. This collection of documents

related to the Convention will be very useful to many of us here at

the State Department. We appreciate the efforts of Secretary-

General Satya Nandan in preparing this helpful volume.

2. Outer Limits of Extended Continental Shelf

On December 21, 2001, the Russian Federation became the

ﬁrst country to make a submission to the Commission on

the Limits of the Continental Shelf pursuant to article 76,

paragraph 8, of UNCLOS. As described in a press release by

the Commission:

The submission contains data and information on

the proposed outer limits of the continental shelf of the

Russian Federation beyond 200 nautical miles from the

baselines from which the breadth of the territorial sea is

measured (often referred to as an extended continental

shelf ).

****

In accordance with rule 49 of the Rules of Procedure

of the Commission (CLCS/3/Rev.3 and Corr. 1), which

requires that the proposed outer limits of the extended

continental shelf pursuant to the submission be made

public, a note verbale was circulated to all Member States

of the United Nations, including the States Parties to

the Convention. The note verbale contains the information

Territorial Regimes and Related Issues 733

regarding the outer limits of the Russian continental shelf

in the Arctic and Paciﬁc Oceans. It includes geographical

coordinates of points delineating the proposed outer

limits, as well as illustrative maps. . . .

Press Release SEA/1729, available at www.un.org/News/Press/

docs/2001/sea1729.doc.htm.

In response, Canada, Denmark, Japan, Norway, and the

United States ﬁled comments on the Russian Federation

submission. In its comments, dated February 28, 2002, the

United States indicated that it believed that the submis-

sion had major ﬂaws as related to the continental shelf

claim in the Arctic. The cover letter stressed that “the inte-

grity of the Convention and the process for establishing

the outer limit of the continental shelf beyond 200 nautical

miles ultimately depends on adherence to legal criteria and

whether the geological criteria and interpretations applied

are accepted as valid by the weight of informed scientiﬁc

opinion.” Excerpts below from the U.S. submission of

February 28 provide its analysis of key elements of the Russian

submission.

The full text of the U.S. submission is available at

www.un.org/Depts/los/clcs_new/submissions_ﬁles/

CLCS_01_2001_LOS__USAtext.pdf.

****

BASELINES

The Government of the United States of America is of the view

that, while the Commission has no competence over questions of

baselines from which the breadth of the territorial sea is measured,

it should not bbe perceived as endorsing particular baselines. In

any event, the Commission should ensure that it does not, on a

global basis, endorse baselines, whether or not they may be

inconsistent with international law. It might, for example, indicate

in all recommendations regarding all submissions, that it is not

taking a position regarding baselines.

734 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

MARITIME BOUNDARIES

The Government of the United States of America wishes to note

that the Russian submission utilizes the boundary embodied in

the Maritime Boundary Agreement between the United States of

America and the Union of the Soviet Socialist Republics (signed

on June 1, 1990), notwithstanding the fact that the Russian Duma

has not yet approved the treaty. The use of that boundary is

consistent with the mutual interests of Russia and the United

States in stability of expectations, and with Article 9 of Annex II

of the Convention, which provides that the actions of the Com-

mission shall not prejudice matters relating to delimitation of

boundaries between States with opposite or adjacent coasts.

****

RIDGES

Paragraph 3 of Article 76 states: “The continental margin comprises

the submerged prolongation of the land mass of the coastal State.

It does not include the deep ocean ﬂoor with its oceanic ridges or

the subsoil thereof.”

ALPHA-MENDELEEV RIDGE

Mounting geologic and geophysical evidence indicates the Alpha-

Mendeleev Ridge System is the surface expression of a single

continuous geologic feature that formed on oceanic crust of the

Arctic Ocean basin by volcanism over a “hot spot.” (A “hot spot”

is a magma source rooted in the Earth’s mantle that is persistent

for at least a few tens of millions of years and intermittently

produces volcanoes on the overlying earth’s crust as it drifts across

the hot spot during continental drift.) The Alpha-Mendeleev hot

spot was formed by magma that was funneled from a hot spot

to the spreading axis that created the Amerasia Basin of the

Arctic Ocean 130 to 120 million years ago, and built a volcanic

ridge about 35 km thick on the newly formed oceanic crust.

Both aeromagnetic and bathymetric data show that the ridge

extends entirely across the Arctic Ocean, and that its characteristic

Territorial Regimes and Related Issues 735

aeromagnetic expression ends at the continental margins at

both ends and is absent from the adjacent continental shelves. The

Alpha-Mendeleev Ridge is identical in origin to the Iceland-Faroe

Ridge, an oceanic ridge of volcanic origin of similar thickness and

morphology that is now forming from magma funneled from a

hot spot to the actively spreading Mid-Atlantic Ridge. The Alpha-

Mendeleev Ridge System is therefore a volcanic feature of oceanic

origin that was formed on, and occurs only within the area of, the

oceanic crust that underlies the Arnerasia Subbasin of the deep

Arctic Ocean Basin. It is not part of any State’s continental shelf.

Sonic speciﬁc supporting data are:

— The sea ﬂoor of the Alpha-Mendeleev Ridge is bathymetrically

rough and the overall (average) slope of its ﬂanks is low to

moderate. In these characteristics it resembles the morphology

of the oceanic lceland-Faroe Ridge and differs markedly from

the morphology of ridges in the ocean that are composed of

continental rock, which have ﬂat or gently convex crests and

steep slopes.

— Modern aeromagnetic data, which cover essentially all of

the Arctic Ocean, show that the Alpha-Mendeleev Ridge

System is the bathymetric expression of a single, extensive

ﬁeld of magnetic anomalies of distinctive character that lies

within the conﬁnes of the deep water, oceanic part of the

Arctic Ocean Basin. This anomaly ﬁeld, which is characterized

by geometrically irregular short wavelength, high amplitude

anomalies, does not cross the Russian continental margin

and is absent from the adjacent broad continental shelf of the

East Siberian Sea. It is similar in magnetic character to the

magnetic anomaly ﬁeld generated by the oceanic lceland-Faroe

Ridge. The Alpha-Mendeleev Ridge System is not, therefore, a

submerged prolongation of the land mass of Russia.

****

LOMONOSOV RIDGE

Lomonosov Ridge raises questions relating to natural prolongation.

The ridge is a freestanding feature in the deep, oceanic part of the

736 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Arctic Ocean Basin, and not a natural component of the continental

margins of either Russia or any other State.

“SUBMARINE RIDGES”

The issue of ridges is complicated by the provision of Article 76,

paragraph 6, which speaks of “submarine ridges.” In that regard,

the Government of the United States of America understands that

the ﬁrst sentence of that paragraph was not used by Russia in

establishing the outer limit of the continental shelf beyond 200

nautical miles. Furthermore, that provision could not be so applied.

U.S. CONCLUSIONS AND RECOMMENDATIONS

The integrity of the Convention and the process for establishing

the outer limit of the continental shelf beyond 200 nautical miles

ultimately depends on adherence to legal criteria and whether the

geologic criteria and interrelations applied are accepted as valid

by the weight of informed scientiﬁc opinion. A broad scientiﬁc

consensus of the relevant experts, not conﬁned to the Commission,

is critical to the credibility of the Commission and the Convention.

The recommendations of the Commission must be based on a

high degree of conﬁdence that they will withstand the test of time.

If the Commission is unsure, it should not make a recommendation

but should announce that it needs further data, analysis and debate.

If a State has doubts, it should perhaps make a partial submission,

leaving further ampliﬁcation to a later submission.

In the aforementioned scientiﬁc respects there are substantial

differences between the Russian submission on the one hand and

others in the relevant scientiﬁc community on the other hand,

regarding key aspects of the proposed submission, based on reports

in the open, peer-reviewed scientiﬁc literature. The Government

of the United States of America proposes further consideration

and broad debate before any recommendation is made by the

Commission.

It will also be important that the Commission acts on

procedural matters in a manner that enhances its integrity and

Territorial Regimes and Related Issues 737

public appearance. In the absence of a code of ethics, which we

believe should be developed by the Commission, the Commissioners

should ensure that there are no conﬂicts of interest or the

appearance thereof.

The Russian submission is particularly complex and should be

considered in a deliberate manner. A signiﬁcant period of debate

and reﬂection will be required for the Convention to be carefully

applied in a manner to promote stability. Insofar as no applications

to explore or exploit the Area have been made or are likely to be

made in the Arctic for the foreseeable future, no prejudice is likely

to result from a deliberative process.

At its eleventh session, held in New York, June 24–28, 2002,

the Commission adopted recommendations prepared by a

subcommission established for the purpose of reviewing

the Russian submission. The recommendations were pro-

vided to the Russian Federation in the context of further

consideration of its submission. A short summary of the

recommendations was included in the Report of the Secretary-

General to the ﬁfty-seventh session of the UN General

Assembly, October 8, 2002, “Oceans and the Law of the

Sea.” A/57/57/Add.1, available at http://ods-dds-ny.un.org/doc

UNDOC/GEN/N02/629/28/PDF/N0262928.pdf ?OpenElement.

3. Rights and Freedoms of International Community

in Navigation

On January 4, 2002, the United States provided information

to the Government of Mauritius concerning a U.S. military

aircraft that fell near Chagos Bay, Diego Garcia. The Govern-

ment of Mauritius had raised questions about the possible

risks to Mauritian ﬁshermen from possible unexploded

ordnance or other materials aboard the aircraft. The U.S.

response, provided in a telegram of January 3, 2002, to the

American embassy in Port Louis, is excerpted below.

****

738 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The Department has been informed that the aircraft is located

in the area between 6–21.3 S 06–31.3 S and 072–18.4 E 072–

28.5 E. It is the USG’s view that the aircraft is located on the high

seas. The wreckage and unexploded ordnance may create a hazard

to navigation; therefore all mariners are advised to stay well clear

of the area. The aircraft, and all articles and equipment associated

with it, remain the sovereign property of the United States and

should not be disturbed or removed without the express permis-

sion of the U.S. Government. If any wreckage associated with

the aircraft is found, it should be immediately turned over to the

nearest U.S. Government representative. The Untied States has

issued HYROPAC 2062/01 (61) (NIMA NAVSAFETY Bethesda,

MD 181445Z Dec 01) providing general warnings and similar

information concerning the matter.

****

4. Litigation Concerning Submerged lands off the

Coast of Alaska

On July 24, 2002, the United States ﬁled motions for partial

summary judgment on three of four counts of a suit brought

by the state of Alaska to quiet title to certain marine

submerged lands. Alaska brought the case as an original

action in the U.S. Supreme Court. State of Alaska v. United

States of America, No. 128, Original. In its amended complaint,

Alaska argued in count I that disputed submerged lands in

the vicinity of the Alexander Archipelago were historic inland,

i.e., internal, waters within the meaning of the Convention

on the Territorial Sea and the Contiguous Zone, Sept. 10,

1964, 15 U.S.T. 1606, 516 U.N.T.S. 205 (1964) (“the

Convention”). In count II, in the alternative, Alaska argued

that the disputed lands were encompassed within one or

more juridical bays, as deﬁned by the Convention. The United

States also ﬁled a motion for partial summary judgment in

count IV, seeking an order ruling that the United States

reserved the marine submerged lands within Glacier Bay

National Monument at the time of Alaska’s admission to

Territorial Regimes and Related Issues 739

the Union. Counts I and II, which involve international law

issues, are discussed further below. Internal references to

other pleadings and supporting documents as well as foot-

notes have been deleted.

The full texts of the briefs on counts I, II and IV are

available at www.state.gov/s/l/c8183.htm.

a. Historical waters

The United States moved in count I for an order ruling that

the waters of the Alexander Archipelago are not historic inland

waters, and decreeing that Alaska did not possess title to

the associated submerged lands that it claimed on that basis.

In the view of the United States the waters at issue are

territorial sea. The United States noted that resolution of the

dispute would have two major consequences, one domestic

and one international. Domestically, if the waters at issue

were inland, then title to the seabed beneath them, unless

reserved by the United States, was transferred to Alaska

at statehood under the equal footing doctrine. On the

international front, if the waters at issue were inland, they

would be totally subject to the United States’ sovereignty

and dominion. If, on the other hand, they were part of the

territorial sea, then, pursuant to the Convention, they would

be subject to the international right of innocent passage.

Excerpts below from the brief ﬁled by the United States

on count I explain the interests of the United States in

maintaining its position that the area in question constitutes

territorial waters and the legal basis for doing so under both

international and U.S. law.

****

The United States has compelling reasons for objecting to Alaska’s

historic waters claims. As an initial matter, Alaska’s theory would

dispossess the United States of lands that are held by the United

States under the Outer Continental Shelf Lands Act (OCSLA),

740 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

43 U.S.C. 1331 et seq., for the beneﬁt of all the American people.

The United States determined, more than 30 years ago, through

its Law of the Sea Committee on the Delineation of the Coastline

of the United States (the Coastline Committee) that those lands

are not located within inland waters. See 3 Reed, Shore and Sea

Boundaries, 359–361, 415–418 (2000). If Alaska’s claims are

accepted, the United States would irretrievably be dispossessed

of approximately 777 square statute miles of submerged lands

that are held for the beneﬁt of all of its citizens. The issues here,

however, transcend that acreage, which appears to have limited

economic value. The international precedent of this case has

important consequences for the United States’ foreign relations

and national defense.

As a maritime nation and naval power, the United States has

consistently championed a policy of freedom of the seas. See, e.g.,

Roach & Smith, United States Responses to Excessive Maritime

Claims 3–6 (1996); Swartztrauber, The Three Mile Limit of

Territorial Seas 252 (1982); Bouchez, The Regime of Bays in

International Law 84 (1964); Hearings on Submerged Lands before

the Sen. Committee on Interior and Insular Affairs, 83rd Cong.,

27–28 (1953). That policy is “essential to [the United States’]

maritime commerce and national security.” Roach, supra, at 3.

As the Department of the Navy explained to Congress more than

50 years ago: The time-honored position of the Navy is that the

greater the freedom and range of its warships and aircraft, the

better protected are the security interests of the United States

because greater utilization can be made of warships and military

aircraft. H. Rep. No. 82–2515, at 18 (1952). Given the United

States’ “dependence on the sea to preserve legitimate security

and commercial ties, the freedom of the seas will remain a vital

interest. . . . Recent events in the Gulf, Liberia, Somalia, and else-

where show that American seapower, without arbitrary limits on

its . . . operations, makes a strong contribution to global stability

and mutual security.” Roach, supra, at 3 n. 3 (quoting National

Security Strategy of the United States (Aug. 1991) ).

In order to protect national security, and as a matter of

demonstrating its own self-restraint in conformity with that interest,

the United States has both restricted its inland water claims and

Territorial Regimes and Related Issues 741

resisted the extravagant claims of others. It has regularly advocated,

through diplomatic channels and in international fora, that foreign

nations likewise deﬁne their own inland waters narrowly to

preserve the right of innocent passage through coastal waters and

that they join the United States in resisting such claims by other

nations. Roach, supra, at 3–4. Indeed, the United States has been

at the forefront in actively and forcefully opposing extravagant

foreign claims of maritime sovereignty. For example, since 1948

the United States has ﬁled more than 140 diplomatic notes opposing

excessive foreign maritime claims. Roach, supra, at 7. See, e.g., id.

at 15–28, 31–34, 77–81, 161, 172, 186–192, 203–208, 214–

222, 236–251, 266–267, 296–359 (describing diplomatic actions).

The United States has further reinforced its diplomatic stance

through military action. Beginning in 1979, the United States

initiated its Freedom of Navigation Program “to further the recogni-

tion of the vital national need to protect maritime rights through-

out the world.” Id. at 5. That program includes “[o]perations

by U.S. naval and air forces designed to emphasize internationally

recognized navigational rights and freedoms.” Id. at 10. Those

forces “have exercised their rights and freedoms in all oceans

against objectionable claims of more than 35 countries at the rate

of some 30–40 per year.” Id. at 11. See, e.g., id. at 49–52 and

242–251 (Russia), 141–142 (Libya), and 339–353 (Canada).

As part of its international policy, to set a conservative example

and avoid precedents which might be cited in support of foreign

claims, the United States has limited this Nation’s inland water

claims. The United States must therefore voice strong objections

when a State of the Union urges the Supreme Court to adopt

historic inland waters principles that are inconsistent with that

important and established foreign policy. The legal theory that

Alaska puts forward in Count I is inconsistent with governing

legal principles and the positions that the United States puts

forward in the international arena. Although historic waters claims

often entail a fact-intensive inquiry, in this case, Alaska’s legal

theory is plainly inadequate to support judgment in its favor under

the controlling principles of law. Because there appear to be no

genuine issues of material fact in dispute as to the controlling legal

considerations and the federal government is entitled to judgment

742 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

as a matter of law, the United States moves for summary judgment

on Count I. See Fed. R. Civ. P. 56(b) & (c).

****

STATEMENT

****

A. The Legal Requirements for Establishing An Historic

Waters Claim

The Convention on the Territorial Sea and the Contiguous Zone

preserves the rights of coastal nations to claim inland waters based

on historic practices. See Art. 7(6), 15 U.S.T. 1609. Nevertheless,

international law recognizes that such claims are “exceptional.”

E.g., Blum, Historic Titles In International Law 261 (1965). Such

claims are rarely recognized and narrowly construed precisely

because they are “contrary to the generally applicable rules of

international law.” Bouchez, The Regime of Bays in International

Law 281 (1964). See, e.g., 3 Gidel, Le Droit International Public

de la Mer 623 (1934). Those claims “share one all-important and

never-to-be-forgotten attribute: That is that they are normally

established at the expense, and to the detriment, of the community

of nations as a whole.” Blum, supra, at 248.

The Supreme Court has articulated comparable standards,

drawn from principles of international law, for discerning the

United States’ historic inland waters in domestic disputes. United

States v. Alaska, 521 U.S.1, 11 (1997). For a body of water to

qualify as an historic bay, the coastal nation “must have effectively

exercised sovereignty over the area continuously during a time

sufﬁcient to create a usage and have done so under the general

toleration” of the community of nations. Ibid. ((quoting Juridical

Regime of Historic Waters, Including Historic Bays, [1962] 2

Y.B.Int’l L. Comm’n 1, ¶ 132, U.N. Doc. A/CN.4/143 (1962)

(Juridical Regime), US-I-4. Accord United Statesv. Maine, 475

U.S. 89, 95 & n. 10 (1986); United States v. Louisiana, 470 U.S.

93, 101–102 (1985); United States v. Alaska, 422 U.S. 184, 189

(1975); United States v. Louisiana, 394 U.S. 11, 23–24 n. 27 (1969);

Territorial Regimes and Related Issues 743

United States v. California, 381 U.S. 139, 172 (1965). “Accord-

ingly, where a State within the United States wishes to claim

submerged lands based on an area’s status as historic inland waters,

the State must demonstrate that the United States: (1) exercises

authority over the area; (2) has done so continuously; and (3) has

done so with the acquiescence of foreign nations.” Alaska, 521

U.S. at 11. The State bears the heavy burden of satisfying these

“strict evidentiary requirements.” Ibid.

1. The actual exercise of sovereign authority. Under inter-

national and domestic law, an historic waters claim cannot be

predicated upon a mere proclamation of jurisdiction over the

relevant waters. Rather the coastal nation must take actions that

demonstrate its claim of sovereignty. As the Supreme Court has

stated, “a legislative declaration of jurisdiction without evidence

of further active and continuous assertion of dominion over the

waters is not sufﬁcient to establish the claim.” California, 381

U.S. at 174. See, e.g., Juridical Regime ¶ 98 (“On this point there

is full agreement in theory and practice. Bourquin expresses the

general opinion in these words: ‘Sovereignty must be effectively

exercised; the intent of the [coastal nation] must be expressed by

deeds and not merely by proclamations.’”); see, e.g., Bouchez,

supra at 239 (“Therefore, our starting point is that, when a [coastal

nation] wants to create exclusive territorial competencies contrary

to the generally applicable rules of international law, the exercise

of sovereignty must be effectively demonstrated.”); Pharand,

The Law of the Sea of the Arctic 107 (1973) (“the coastal [nation]

must exercise an effective control over the maritime area being

claimed to the exclusion of all other [nations] from the area”).

It is “essential that, to the extent that action on the part of the

[coastal nation] and its organs was necessary to maintain authority

over the area, such action was undertaken.” Louisiana, 470 U.S.

at 114 (quoting Juridical Regime ¶ 99).

Furthermore, the coastal nation’s actions must be consistent

with the type of historic claim that it asserts. A coastal nation

relying on historic title may claim the disputed waters as historic

inland waters or as historic territorial sea. Alaska, 422 U.S. at 197;

Louisiana, 394 U.S. at 24 n. 28; Juridical Regime ¶ 13. Accord-

ingly, the Court has recognized that a coastal nation’s “exercise of

744 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

authority necessary to establish historic title must be commensurate

in scope with the nature of the title claimed.” Alaska, 422 U.S. at

197; see Louisiana, 394 U.S. at 24 n. 28 (quoting Juridical Regime

¶ 13). To establish a claim of historic inland waters, the coastal

nation’s “exercise of sovereignty must have been, historically, an

assertion of power to exclude all foreign vessels and navigation.”

Alaska, 422 U.S. at 197. See Juridical Regime ¶ 164 (“If the

claimant [nation] allowed the innocent passage of foreign ships

through the waters claimed, it could not acquire an historic title

to these waters as internal [i.e., inland] waters, only as territorial

sea.”).

A coastal nation may not only claim historic title, but it may

also abandon or disclaim any historic rights. Louisiana, 394 U.S.

at 28–29; California, 381 U.S. at 175. Obviously, if the coastal

nation publicly disclaims an area as historic inland waters, that

action would normally eliminate any question that the area should

be treated as such. In situations in which the United States

has publicly disclaimed inland waters contrary to the interest of

an individual State, the Court has nevertheless evaluated the

circumstances to ensure that the disclaimer is effective. Louisiana,

470 U.S. at 111–112. California, 381 U.S. at 175. The Court has

indicated that a disclaimer is normally “decisive” unless the

evidentiary basis for an historic waters claim is “clear beyond

doubt.” Ibid. The Court has further indicated, however, that the

United States cannot disclaim “ripened” historic title in ongoing

domestic litigation simply to obtain an advantage over a State of

the Union. Louisiana, 470 U.S. at 111–112; see also Louisiana,

394 U.S. at 77.

2. The continuous usage requirement. Under international and

domestic law, the exercise of overt sovereign authority over the

claimed waters must continue for a sufﬁcient period of time “to

create a usage.” Louisiana, 470 U.S. at 102 (quoting Juridical

Regime ¶ 132); accord Louisiana, 394 U.S. at 23–24 n. 27; see

Blum, supra, at 335–336; Bouchez, supra, at 250–254; Pharand,

supra, at 108; 1 O’Connell, The International Law of the Sea 433

(1982). The Court has recognized that “no precise length of time

can be indicated as necessary to build the usage on which the

historic title must be based. It must remain a matter of judgment

Territorial Regimes and Related Issues 745

when sufﬁcient time has elapsed for the usage to emerge.”

Louisiana, 470 U.S. at 102 n. 3 (quoting Juridical Regime ¶ 104).

Nevertheless, given that a continuous usage must be established

among nations, the appropriate length of time must necessarily

be “a long period.” Jessup, The Law of Territorial Waters And

Maritime Jurisdiction 476 (1927); cf. Bouchez, supra, at 256

(suggesting that time “immemorial,” although sometimes been

used, may be too onerous). If the government has disclaimed

historic title before that title has “ripened,” then the requirement

of “continuity” would not be satisﬁed.

3. The acquiescence of foreign nations. Under international

law, a coastal nation’s claim to historic waters, even if supported

by sovereign acts and continuing over a long period of time, is

ineffective in the absence of acceptance by the community of

nations. Juridical Regime ¶ 126. See, e.g., Blum, supra, at 248–

249 (the coastal nation must show that the nation “whose rights

have been encroached upon, or are likely to be infringed, by an

historic claim has, by its conduct, acquiesced in such an exceptional

claim”). “The United States has taken the position that an actual

showing of acquiescence by foreign states in such a claim is

required, as opposed to a mere absence of opposition.” Roach,

supra, at 31. Accord 2 Max Plank Institute, Encyclopedia of Public

International Law 713 (1995) (“Since maritime historic rights are

acquired at the expense of the whole international community,

their establishment requires ‘international acquiescence’ of a

representative body of States reﬂecting international toleration of

an otherwise illegal situation.”). The Supreme Court has likewise

adopted a requirement of “acquiescence.” Alaska, 521 U.S. at 11.

Obviously, the community of nations can acquiesce in a claim by

the United States of historic title only if those nations know, or

have reason to know, that the United States is claiming sovereignty

over a body of water on that basis. The Supreme Court has

speciﬁcally applied that principle to litigation between the United

States and Alaska in the case of Cook Inlet, stating: The failure of

other countries to protest is meaningless unless it is shown that

the governments of those countries knew or reasonably should

have known of the authority being asserted. Alaska, 422 U.S. at

200. Accordingly, “[i]n the absence of any awareness on the part

746 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

of foreign governments of a claimed territorial sovereignty over

lower Cook Inlet, the failure of those governments to protest is

inadequate proof of the acquiescence essential to historic title.”

Ibid. Cf. Louisiana, 470 U.S. at 110 (where “the United States

publicly and unequivocally stated that it considered Mississippi

Sound to be inland waters,” the “failure of foreign governments

to protest is sufﬁcient proof of the acquiescence or toleration

necessary to [establish] historic title”).

4. The burden and quantum of proof. Under international and

domestic law, “[t]he onus of proof rests on the [coastal nation]

which claims that certain maritime areas close to its coast possess

the character of internal waters which they would not normally

possess.” Juridical Regime ¶ 150 (quoting 3 Gidel, supra, at 632).

The burden rests with the coastal nation because that nation’s

claims “constitute an encroachment on the high seas; . . . which

remains the essential basis of the whole public international law

of the seas.” Ibid. See also id. at 62–63; Strohl, The International

Law of Bays 252 (1963); Bouchez, supra, at 281; Blum, supra,

at 232; 4 Whiteman, Digest of International Law 250 (1965);

US-I-1 p.37–39. Furthermore, the coastal nation must put forward

an extraordinary quantum of proof:

If the right to “historic waters” is an exceptional title which

cannot be based on the general rules of international

law or which may even be said to abrogate these rules in

a particular case, it is obvious that the requirements

with respect to proof of such title will be rigorous. In

these circumstances the basis of the title will have to be

exceptionally strong. The reasons for accepting the title

must be persuasive; for how could one otherwise justify

the disregarding of the general rule in the particular

case?

Juridical Regime ¶ 40; see ibid. (Because “[T]he coastal [nation]

which makes the claim of ‘historic waters’ is asking that they

should be given exceptional treatment; such exceptional treatment

must be justiﬁed by exceptional conditions.” (quoting 3 Gidel,

supra, at 635) ); accord Westerman, The Juridical Bay 180 (1987)

Territorial Regimes and Related Issues 747

(The coastal nation asserting an historic claim must provide

“extraordinary proof of historic usage.”).

The Supreme Court has likewise made clear that, if a State

“wishes to claim submerged lands based on an area’s status

as historic inland waters,” the State “must demonstrate” that

the necessary conditions are satisﬁed. Alaska, 521 U.S. at 11.

The Court has further characterized those conditions as “strict

evidentiary requirements.” Ibid. If the United States has disclaimed

historic title, then “questionable evidence of continuous and

exclusive assertions of dominion over the disputed waters” is

insufﬁcient to overcome that disclaimer. California, 381 U.S. at

175. Rather, the disclaimer is normally “decisive” unless historic

title is “clear beyond doubt.” Ibid. A disclaimer would be

ineffective only if the United States has disclaimed historic title

after the onset of litigation with the affected State and after historic

title has ripened. See Louisiana, 470 U.S. at 112.

****

The United States is entitled to summary judgment because Alaska

has failed to present a sufﬁcient basis, as a matter of law, to

establish an historic inland waters claim. To establish that claim,

Alaska must show that the United States: (1) actually exercised

sovereignty over the waters of the Alexander Archipelago as inland

waters; (2) has done so continuously over a period of time

sufﬁciently lengthy to create a usage among nations; and (3) has

done so with the acquiescence of the community of nations.

Alaska’s case fails on each of those elements without regard to

any dispute among the parties over questions of fact.

****

b. Juridical bays

The United States moved in count II for an order ruling that

the islands of the Alexander Archipelago cannot be

assimilated to the mainland or each other to create one or

more juridical bays, as deﬁned by the Convention on the

Territorial Sea and the Contiguous Zone, Sept. 10, 1964, 15

U.S.T. 1606, 516 U.N.T.S. 205 (1964) (“Convention”). The

748 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

order sought would also decree that Alaska does not possess

title to the associated submerged lands that it claims on

that basis. In its introduction to the U.S. brief on count II,

the United States described Alaska’s contentions as follows:

[I]f certain islands were selected from the more than

1000 islands that create the Alexander Archipelago, and

those carefully selected islands are collectively treated as

mainland, then the ‘assimilation’ of the islands would

create indentations in the mainland. Alaska further

contends that those indentations would be sufﬁciently

well-marked, have sufﬁciently limited closing lines, have

sufﬁcient depth of penetration, and enclose sufﬁcient

waters therein to meet the requirements, set out in Article

7 of the Convention, for juridical bays.

The U.S. brief explained that, although it disputed both

aspects of Alaska’s claim (that the islands bear a sufﬁcient

relationship to the mainland to qualify for assimilation and

that, if assimilated, they would create juridical bays), the

United States limited its motion for summary judgment to

the ﬁrst of the contentions, as excerpted below. It did so for

two reasons: ﬁrst, that the governing legal principles do not

permit assimilation and second, because, “if the Master

found it necessary to consider that question, he might beneﬁt

from hearing testimony on the controlling legal principles,

which rest, in important part, on international law.”

****

STATEMENT

****

A. The Convention’s Requirements

The Supreme Court has determined, and Alaska acknowledges,

that the Convention [on the Territorial Sea and the Contiguous

Zone] provides the criteria for determining whether a particular

Territorial Regimes and Related Issues 749

body of water is a juridical bay. Three provisions of the Conven-

tion are particularly relevant here: (1) Article 7, which provides

the speciﬁc criteria for delimiting juridical bays (15 U.S.T. 1609);

(2) Article 10, which deﬁnes an “island” for purposes of the

Convention (15 U.S.T. 1609–1610); and (3) Article 4, which

allows, but does not require, nations to enclose fringing islands,

such as the Alexander Archipelago, within straight baselines (15

U.S.T. 1608).

1. Article 7. Article 7 sets out the speciﬁc criteria that must be

satisﬁed to establish that a physical feature constitutes a juridical

bay. The most signiﬁcant provision, for present purposes, is Article

7(2), which speciﬁes that “a bay is a wellmarked indentation whose

penetration is in such proportion to the width of its mouth as

to contain landlocked waters and constitute more than a mere

curvature of the coast.” 15 U.S.T. 1609. See, e.g., United States v.

Louisiana, 394 U.S. 11 (1969).

2. Article 10. Article 10 of the Convention provides a speciﬁc

deﬁnition of an island that distinguishes that physical feature from

the mainland:

An island is a naturally-formed area of land, surrounded

by water, which is above water at high tide.

15 U.S.T. 1609. See, e.g., Alaska, 521 U.S. at 22–32 (applying

Article 10 to an offshore feature). The Convention makes no

express provision for assimilating islands to the mainland.

3. Article 4. Article 4 of the Convention provides an alternative

rule for determining the seaward line of inland waters . . . in

“localities where the coast line is deeply indented and cut into, or

if there is a fringe of islands along the coast in its immediate

vicinity.” In those circumstances,

the method of straight baselines joining appropriate points

may be employed in drawing the baseline from which the

breadth of the territorial sea is measured.

15 U.S.T. 1608. Article 4 further provides, among other things,

that the coastal nation “must clearly indicate straight baselines on

750 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

charts, to which due publicity must be given.” Ibid. The Supreme

Court has determined that the decision whether to draw straight

baselines “is permissive, not mandatory,” and rests with the coastal

nation. Alaska, 521 U.S. at 9–10. The Court has also recognized

that the United States, in keeping with its policy of minimizing

inland water claims, “has never opted to draw straight baselines

under Article 4.” Id. at 10.

B. The Supreme Court’s Application Of Island

Assimilation Principles

Although the Convention makes no express provision for assimilat-

ing islands to the mainland, the Supreme Court has ruled that

assimilation is permissible in exceptional circumstances. The Court

ﬁrst recognized that possibility in Louisiana, 394 U.S. at 60–66.

Nevertheless, in the course of its many decisions delimit-

ing coastlines, the Court has actually considered and held that

assimilation of an island is appropriate in the case of only one

such insular formation—New York’s Long Island. United States

v. Maine, 469 U.S. 504, 514–520 (1985). . . .

****

ARGUMENT

I. Alaska’s Theory That A Part Of The Alexander Archipelago

Should Be Viewed As Part Of the Mainland Is Untenable

As A Matter of Law

****

A. The Island-Complex That Alaska Seeks To Assimilate

“Cannot Realistically Be Considered Part of the Mainland”

The Court has adopted a “common-sense approach” to whether

islands may be assimilated that focuses on a realistic assessment

of the actual geography of the coast in question. Maine, 469 U.S.

at 517, citing Louisiana, 394 U.S. at 64. In this case, the actual

Territorial Regimes and Related Issues 751

geography of the island-complex shows that it is part of a much

larger archipelago of fringing islands, rather than a part of the

mainland, and that the island-complex does not enclose any

geographically obvious bay. The Convention, through Article 4,

speciﬁcally addresses that type of geographic feature, and it gives

the coastal nation the option to determine whether such waters

will be treated as inland waters through the construction of straight

baselines. A ruling that the United States must treat such a feature

as assimilated would eviscerate the United States’ discretion under

Article 4 and undermine the United States’s vital national interests

while advancing no vital interest of Alaska.

1. The island-complex is part of a system of fringing islands

rather than part of the mainland. A “mere glance at a map of the

region” (Maine, 469 U.S. at 514) reveals the geographic reality of

Southeast Alaska. That coastal area encompasses the Alexander

Archipelago, which consists of “fringing islands” along a deeply

indented mainland coast. The Alexander Archipelago consists

of numerous islands that stretch continuously nearly 260 miles

along the mainland. Alaska does not dispute that the island-

complex that it seeks to assimilate is part of that archipelago.

Alaska nevertheless would have the Master ignore that reality and

selectively treat the island-complex, not as part of the archipelago,

but as part of the mainland. By doing so, Alaska would have the

Master divide the area into two large—and heretofore unnoticed—

“bays” and thereby enclose the entire area as inland waters.

Alaska’s proposed course is misguided because the geography

at issue here, when viewed in its totality rather than in light of an

artiﬁcially segmented element, presents a familiar situation that

the Convention expressly addresses, rather than an exceptional

situation that the Convention does not. The Alexander Archipelago,

including the island-complex, present the type of “fringe of islands”

that Article 4 provides may, at the discretion of the coastal nation,

be enclosed by straight baselines. See 15 U.S.T. 1608. Indeed, the

Alexander Archipelago is strikingly similar to Norway’s skjaergaard

coast, which inspired the concept of “straight baselines.” The

International Court of Justice ruled in the Fisheries Case (United

Kingdom v. Norway), [1951] I.C.J. 116, that Norway was entitled,

but not required, to draw straight baselines to enclose the

752 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

skjaergaard. See 1 Shalowitz, supra, at 63–75 (discussing the

Fisheries Case). Article 4 of the Convention was formulated to

allow, but not require, Norway’s practice. See Louisiana, 394

U.S. at 68–71.

. . . [F]or important foreign policy reasons, the United States

has never opted to draw straight baselines there or anywhere else

on its coast. See Alaska, 521 U.S. at 10. Rather, the United States

has strictly followed the Convention’s “normal baseline” rules,

which result in the pockets of OSCLA lands at issue in this case.

See id. at 8–9 (noting that the normal baseline principles create

analogous enclaves on Alaska’s northern coast).

. . . As the Court has recognized and repeatedly reafﬁrmed,

Article 4 preserves the option, within the United States’ control,

to decline to draw straight baselines to effectuate its international

policies. Id. at 72–73; see United States v. Maine, 475 U.S. 89, 94

n. 9 (1986); United States v. Louisiana, 470 U.S. 93, 99 (1985);

United States v. California, 381 U.S. 139, 168 (1965). Alaska’s

proposed application of assimilation principles to selected islands

of the Alexander Archipelago, however, would render that option

a nullity. Under Alaska’ view of the pertinent geography, the

selective assimilation of the island-complex would require the

United States, against its will, to treat the entire area enclosed

within the Alexander Archipelago as inland water.

. . . [I]f selected islands are extracted from the Alexander

Archipelago, viewed in isolation, and treated as if they were

mainland, then—under Alaska’s interpretation of assimilation

principles that are nowhere explicitly set forth in the Convention

—those areas would become inland waters that, unlike the ter-

ritorial sea, are not subject to the right of innocent passage. The

anomaly that Alaska’s theory creates is striking. It does not reﬂect

a “common sense approach” to application of the Convention.

Maine, 469 U.S. at 517. Rather, it is simply a contrivance designed

to evade the clear import of Article 4.

2. The supposed juridical bays that Alaska seeks to create

through assimilation are not geographically obvious. Alaska’s

assimilation theory introduces another jarring departure from

geographic reality. The supposed juridical bays that Alaska

identiﬁes—which it names “North Southeast Bay” and “South

Territorial Regimes and Related Issues 753

Southeast Bay”—are entirely ﬁgments of this lawsuit. They are

not marked or identiﬁed on any map—save those produced for

this litigation. . . .

****

The Convention recognizes that the mariner, whether commer-

cial or military, has the right to navigate through territorial seas

in innocent passage, but not through inland waters, such as bays.

See Art. 14, 15 U.S.T. 1610. Thus, the mariner must be able to

identify readily an entrance to inland waters through tools that

are readily available, such as nautical charts. For that reason,

Article 4 provides that a coastal nation that elects to enclose waters

within fringing islands “must clearly indicate straight baselines

on charts, to which due publicity must be given.” Art. 4(6), 15

U.S.T. 1608. But the Convention imposes no such requirement for

juridical bays whose mouths are less than 24 miles wide. Art. 7(4),

15 U.S.T. 1609. To the contrary, waters that satisfy assimilation

principles and otherwise qualify as juridical bays are inland waters

whether or not the coastal nation has publicly claimed them. Ibid.

It is therefore imperative, to avoid international conﬂicts, that

United States courts not set precedents that encourage coastal

nations to apply assimilation principles in a contrived manner for

the purpose of creating geographically non-obvious inland waters.

****

3. The geography of the Alexander Archipelago does not require

assimilation to satisfy the interests of the territorial sovereigns.

The Supreme Court stated in Maine that “[t]he ultimate justiﬁcation

for treating a bay as inland waters, under the Convention and

under international law, is that, due to its geographic conﬁguration,

its waters implicate the interests of the territorial sovereign to a

more intimate and important extent than do the waters beyond an

open coast.” Maine, 469 U.S. at 519. Article 4 recognizes that a

“fringe of islands,” like the Alexander Archipelago, presents

a geographic conﬁguration that is not the equivalent of a bay

and does not necessarily implicate the interests of the territorial

sovereign to the same extent. The Convention accordingly gives

the coastal nation the discretion to determine whether that

754 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

conﬁguration should be enclosed by straight baselines. The United

States has determined that, on balance, the national interest is not

well served by treating such areas as inland waters. That self-

restraint is essential if the United States is to avoid setting

precedents that would inhibit this Nation’s ability to navigate in

areas off foreign coasts. Alaska has no vital competing territorial

interests that warrant undermining the United States’ policy of

self-restraint under Article 4 through an expansive application of

assimilation principles.

****

At bottom, Alaska’s theory of assimilation overlooks the most

fundamental sovereign interest that is at stake in this case—the

United States’ longstanding interest in maintaining a consistent

and coherent approach to coast line delimitation to promote this

Nation’s longstanding policy of freedom of the seas. Alaska’s

expansive theory of island assimilation, which would override the

discretion that Article 4 grants coastal nations to exercise restraint

in claiming inland waters, is inconsistent with that policy. Alaska’s

assimilation theory not only rests on an unrealistic vision of the

overall geography at issue, but reﬂects a short-sighted view of the

overarching national interests at stake.

****

C. The United States’ Foreign Relations And National Defense

Interests Counsel Against Extension Of The Assimilation

Principle To This Case

For more than 100 years, the United States has deemed its

international interests best served by minimizing national claims

of maritime sovereignty. As a naval power and international trader,

it has sought to maximize the ability of all vessels to sail the

oceans without interference from coastal nations. That interference

often begins with liberal interpretations of principles for

delimitation of inland waters, typically in the form of excessive

claims of historic inland waters or radical applications of straight

baseline systems. The United States has identiﬁed claims of more

Territorial Regimes and Related Issues 755

than 80 nations whose illegal maritime claims “threaten the rights

of other States to use the oceans.” Roach & Smith, United States

Responses to Excessive Maritime Claims 15 (1996). Additionally

they note that the historic trend points toward further diminishment

of commonly shared rights to free navigation. Id. at 4.

“As a maritime nation, the United States’ national security

depends on a stable legal regime assuring freedom of navigation

on, and overﬂight of, international waters.” Roach, supra, at 4.

The United States has been the world’s preeminent advocate

of conservative delimitation principles, discouraging excessive

maritime claims primarily through diplomacy but also, where

necessary, through military intervention. Id. at 4–11. “Even though

the United States may have the military power to operate where

and in the manner it believes it has the right to, any exercise of

that power is signiﬁcantly less costly if it is generally accepted as

being lawful.” Id. at 8. Many of the excessive maritime claims

at which those efforts are directed result from coastal nations’

stretching inland water delimitation principles much as Alaska

seeks to do here. Alaska’s efforts to stretch assimilation principles

to turn the straits of the Alexander Archipelago into juridical bays

are, in principle, no different than the efforts of foreign nations to

stretch Article 4’s straight baseline principles or internationally

accepted historic waters principles to turn territorial seas into inland

waters.

If the Court were to endorse Alaska’s approach, the United

States’ efforts to discourage excessive claims would be seriously

undermined. Once unleashed from the status of an “exceptional”

claim, the concept of assimilation cannot be readily cabined. For

example, if Mitkof, Kupreanof, and Kuiu Islands are assimilated

to the mainland, then why not the islands of the Canadian or

Russian Arctic? The United States has a long-standing interest in

freedom of navigation in both areas and has aggressively opposed

those nations’ jurisdictional claims. Similarly, under the inevitable

extensions of Alaska’s theory, is Vancouver Island part of the

British Columbia mainland, creating bays of the Straits of Georgia

and Queen Charlotte Strait? Are the islands of Tierra del Fuego

actually mainland? Why not assimilate Cape Breton Island to Nova

Scotia? If the standards of assimilation are so malleable that the

756 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Alexander Archipelago can be converted into two juridical bays,

with mouths of more than 120 and 150 miles, then the possibilities

for foreign excessive claims is vast. In each instance, the foreign

nation might point to the Court’s decision in this case as justiﬁca-

tion for the extravagant claim.

The leap from Louisiana and Maine to this case is enormous.

The island assimilations that the Court recognized in Louisiana were

limited to canal-riddled marshlands that both parties recognized

as mainland. The Court’s conclusion in Maine that Long Island

was assimilated to the mainland had limited international con-

sequences, because Long Island is so closely and uniquely associated

with New York City, and the international community had already

recognized Long Island Sound as historic inland waters. Neither

decision produced a wholesale change in the status of an enormous

waterbody. A ﬁnding of assimilation here would have exactly that

effect.

****

5. Prohibition on Alien Crewmen Performing Longshore Work

In keeping with section 258 of the Immigration and Nation-

ality Act of 1952, 8 U.S.C. § 1288, alien crewmen may not

perform longshore work in the United States, with certain

exceptions. One of the exceptions is based on reciprocity, as

explained in the excerpts below from the Department of

State’s proposed rule to update the list of countries whose

laws, regulations, or practices prohibit crewmembers on U.S.

ships from performing longshore work. 67 Fed. Reg. 6447

(Feb. 12, 2002).

****

. . . Section 258(e), entitled the “Reciprocity exception,”

allows the performance of activities constituting longshore work

by alien crewmen aboard vessels ﬂagged and owned in countries

where such activities are permitted by crews aboard U.S. ships.

The Secretary of State (hereinafter, “the Secretary”) is directed

to compile and annually maintain a list, of longshore work

Territorial Regimes and Related Issues 757

by particular activity, of countries where performance of such a

particular activity by crewmembers aboard United States vessels

is prohibited by law, regulation, or in practice in the country.

The Attorney General will use the list to determine whether to

permit an alien crew member to perform an activity constituting

longshore work in the United States or its coastal waters, in

accordance with the conditions set forth in the Act.

The Department of State (hereinafter, “the Department”)

published such a list as a ﬁnal rule on December 27, 1991 (56 FR

66970), corrected on January 14, 1992 (57 FR 1384). An updated

list was initially published on December 13, 1993 (57 FR 65118),

and was last published on June 13, 1996.

The Department bases the list on reports from U.S. diplomatic

posts abroad and submissions from interested parties in response

to the notice-and-comment process. On July 14, 2000, the Depart-

ment sent instructions to U.S. Embassies and Consulates in

countries, dependencies and other areas with seaports to determine

whether crewmembers aboard U.S. vessels are prohibited from

performing longshore work by law, regulation, or in practice

in those countries. On the basis of the information received from

the Embassies and Consulates, the Department is hereby issuing

an amended list.

The list includes 24 new countries: Albania, Antigua, Barbados,

Burnei, Chile, Cook Islands, Grenada, Kazakhstan, Latvia,

Lebanon, Macau, Namibia, Nigeria, Oman, Russia, St. Christopher

and Nevis, Singapore, Sudan, Syria, Tonga, Turkey, Tuvalu, United

Arab Emirates and Vietnam. Two countries were dropped from

the list because the most recent information indicates that they do

not restrict longshore activities by crewmembers of U.S. vessels:

Estonia and Micronesia.

****

B. OTHER BORDER ISSUES: U.S.-MEXICO AGREEMENT

ON DELIVERY OF RIO GRANDE WATER TO

UNITED STATES

On June 28, 2002, commissioners for the United States and

Mexico on the International Boundary and Water Commission

758 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

(“IBWC”) signed Minute 308, “United States Allocation of

Rio Grande Waters During the Last Year of the Current Cycle.”

As described in excerpts below from the Summer 2002

edition of The Boundary Marker, the signing of the minute

resolved a long-standing dispute concerning allocation of

water from the Rio Grande to the two countries. See Digest

2001 at 714–716.

The full text from The Boundary Marker, a quarterly

publication of the IBWC, is available at www.ibwc.state.gov/

PAO/BndrMkSm2002.pdf. Minute 308, signed at Ciudad

Juarez, Chihuahua, Mexico, June 28, 2002, is available at

www.ibwc.state.gov/Files/Minutes/Minute308.pdf.

****

On June 28, U.S. Section Commissioner Carlos M. Ramirez and

Mexican Section Commissioner Arturo Herrera Solis signed Minute

308, “United States Allocation of Rio Grande Waters During the

Last Year of the Current Cycle.” The minute, which had been the

subject of high-level negotiations in Washington, DC, provides

for an immediate transfer to the United States of 90,000 acre feet

of water from Mexican storage at Amistad and Falcon International

Storage Reservoirs to meet the urgent needs of South Texas

irrigators. The minute also provides a framework for cooperative

efforts to promote water conservation projects and sustainable

management of the basin.

Under a 1944 treaty between the two countries, Mexico is

required to deliver water to the United States from six of its

tributaries to the Rio Grande. The treaty also provides for the

United States to deliver Colorado River water to Mexico. Over

the past decade, Mexico has incurred an unprecedented deﬁcit in

water deliveries to the United States. Efforts to address this issue

have been a top priority for the IBWC in recent years and a major

concern for President Bush, who has raised the matter directly

with Mexican President Fox on a number of occasions.

Minute 308 provides for discussions to continue through

the IBWC regarding additional measures to be taken about the

Territorial Regimes and Related Issues 759

water deﬁcit. Under the agreement, both governments indicate

their support for water conservation projects and an interest in

developing measures within the IBWC to ensure that these con-

served waters on the Mexican side are conveyed to the Rio Grande.

Additionally, the minute gives support for drought planning and

development of a binational sustainable management plan for

the basin. To strengthen the IBWC’s role in the area of sustainable

management and drought planning, the minute provides for estab-

lishment of a forum for the exchange of information and advice to

the Commission from government and non-government organiza-

tions in both countries, subject to funding.

A Joint Communique by the two governments states that the

agreement, “contributes to resolving the water problems along

the border taking into account immediate needs, as well as concrete

actions to be taken in the medium and long term. In this way, both

Governments will assure more efﬁcient use of water in the Rio

Grande basin, which will permit guaranteed supply for Mexican

users, and compliance with the obligations established under the

1944 Treaty for the beneﬁt of U.S.

C. OUTER SPACE

The Legal Subcommittee of the United Nations Committee

on the Peaceful Uses of Outer Space (“COPUOS”) held its

session in Vienna, April 2–12, 2002. At this session, the

United States reiterated its support for the efforts underway

to draft the Space Assets Protocol to the UNIDROIT

Convention on International Interests in Mobile Equipment

and its views on the importance of all countries to consider

becoming parties to the four core outer space law treaties.

It also restated its opposition to adoption of a deﬁnition

or delimitation of outerspace, which it believed would

be counterproductive at this point, and noted that the

geostationary orbit, as part of outer space, is not subject to

national appropriation by claim of sovereignty of any state,

citing articles 1 and 2 of the 1967 Outer Space Treaty. See

Digest 2001 at 716–725. Excerpts below from statements of

760 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

the U.S. delegation provide its views on three additional

topics: U.S. implementation of relevant treaties, review and

possible revision of principles relevant to the use of nuclear

power sources in outer space, and review of the concept of

the “launching state.”

The full text of the U.S. statements at the 41

session

is available at www.state.gov/s/l/c8183.htm. The Report

of the 41

Session (U.N. Doc A/AC.105/787) is available at

www.oosa.unvienna.org/repidx.html.

1. Status of International Treaties Governing the Use

of Outer Space

****

. . . I would like to touch upon the issue of domestic implementation

of the treaties. During last year’s LSC meeting, I emphasized the

United States’ view that we must all focus on our domestic

implementation of the treaties. As you are aware, the Registration

Convention provides that a launching State shall register a space

object on its registry. In that regard, I would like to share with

you some steps that the United States is taking with respect to this

Convention. During the past year, the United States has been

engaged in a process of upgrading the U.S. national registry of

space objects so it is accessible via the Internet and can be updated

electronically, to enhance the utility of our national registry. As

part of that process, we have undertaken to clarify the domestic

criteria for including objects on the U.S. Registry. This is intended

to ensure that U.S. owners/operators of space objects and non-

U.S. entities have a clear understanding as to the circumstances

under which space objects are and are not registered by the United

States. We intend to include on the U.S. registry all space objects

that are owned or operated by U.S. private or governmental entities

and launched from inside or outside U.S. territory. In general, the

United States will not include on its registry non-U.S. payloads

that are launched from U.S. territory or facilities. It is our view

that such non-U.S. payloads should be included on the registry of

the State of the payload’s owner/operator because that State is

Territorial Regimes and Related Issues 761

best positioned to exercise continuing supervision. In addition, we

will continue our practice of including certain non-functional

objects on the U.S. Registry.

We are also carefully reviewing those objects brought to our

attention by the Ofﬁce for Outer Space Affairs, based on its search

of the UN online database, that represent potential U.S. objects

that have not been registered, or objects that have been registered

by the United States and another State, to determine whether

revisions to the Registry are required and how to avoid such

problems in the future.

We invite other States to undertake a similar clariﬁcation of

their registration practice. As States clarify and improve their

domestic practice, overall international practice will be enhanced

and all nations will beneﬁt. The promotion of increased inter-

national cooperation in the registration area may be an appropriate

activity for this Subcommittee and the UN Ofﬁce for Outer Space

Affairs.

2. Review and Possible Revision of the Principles Relevant

to the Use of Nuclear Power Sources in Outer Space

****

My delegation ﬁrmly believes that the continued implementation

of the [Scientiﬁc and Technical Committee’s (“STSC’s”)] work

plan will be crucial for establishing a ﬁrm scientiﬁc and technical

consensus for any future [Principles Relevant to the Use of Nuclear

Power Sources in Space (“NPS”)] deliberations. The report reﬂect-

ing several years of data gathering and deliberations was completed

by the NPS Working Group and adopted by the STSC. The progress

that has been made to date within the STSC has been signiﬁcant

and has set the stage for the ﬁnal year of the STSC work plan next

year. At that time, we will have an opportunity to consider what

next steps with regard to NPS should be taken within COPUOS,

if any. . . .

****

762 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

3. Review of the Concept of the “Launching State”

****

With respect to the issue of the deﬁnition of “launching State,”

my government would like to reiterate the point it made last year

that problems have not arisen in practice with regard to the

deﬁnition of the term launching State as used in the Registration

and Liability Conventions. The Registration and Liability Con-

ventions deﬁne the term a “launching State” as a State that launches

or procures the launching of a space object or a State from whose

territory or facility a space object is launched. Although both

Conventions create certain obligations for launching States, they

have separate purposes. The Liability Convention deﬁnes the

circumstances in which a launching State bears liability to pay

compensation for certain damage caused by its space object. The

drafters of the 1972 Liability Convention emphasized the victim-

oriented nature of the Convention, seeking to maximize the

potential for recovery by injured parties with a broad deﬁnition of

the term “launching State.”

Under Article VI of the Outer Space Treaty, States Parties

bear international responsibility for national activities in outer

space and the activities of non-governmental entities in outer space

require authorization and continuing supervision by the appropriate

State party to the treaty. As the Secretariat’s report notes, ensuring

the safety of space activities is an important policy behind most

national space laws, in particular laws governing the launch of

objects into outer space. Individual launching States are uniquely

suited to attain the goal of protecting nationals through domestic

licensing regimes. This conclusion is supported by not only the

report of the Secretariat and the work of the Chairman of the

Working Group on the Launching State agenda item, Kai-Uwe

Schrogl, but also by recent industry/academic fora on the subject,

including the Workshop on International Legal Regimes Governing

Space Activities, held in early December 2001, in Scottsdale,

Arizona, by the American Astronautical Society.

The Registration Convention requires at least one launching

State as registrant for a space object. The nature and criteria of

registration, however, are not explicitly linked to a launching State’s

Territorial Regimes and Related Issues 763

responsibility under the Liability Convention, including vis-à-vis

other launching States, or of responsibility a State may bear as a

State Party to the Outer Space Treaty. In practice, the frameworks

established by the Registration and Liability Conventions have

been effective in facilitating outer space activities, including

launch activities. Both governmental and private launches occur

on a regular basis and they have been able to proceed with the

support of private insurance.

****

Cross References

Interdiction of vessel carrying scud missiles to Yemen, Chapter

18.C.3.f.

Protection of marine environment and marine conservation,

Chapter 13.A.3.

Control over certain submerged lands and marine resources off

the coast of the Northern Mariana islands, Chapter 5.B.

Allie

Environment and other Transnational Scientiﬁc Issues 765

765

CHAPTER 13

Environment and other

Transnational Scientiﬁc Issues

A. ENVIRONMENT

1. World Summit on Sustainable Development

On September 4, 2002, the United States joined consensus

in the adoption of the Johannesburg Declaration on Sustain-

able Development and the Johannesburg Plan of Imple-

mentation of the World Summit on Sustainable Development.

The United States supported a UN proposal to use the

summit process as a vehicle to create new voluntary, project-

speciﬁc partnerships among governments, international

organizations, and non-governmental entities (including

the private sector). The United States launched twenty-seven

such initiatives, including four “signature partnerships”:

(1) Water for the Poor Initiative; (2) Clean Energy Initiative;

(3) Initiative to Cut Hunger in Africa; and (4) Congo Basin

Forest Partnership. Information concerning these and other

partnerships is available at www.state.gov/g/oes/sus/pr.

Secretary of State Colin L. Powell welcomed the outcome of

the summit:

This Summit has cemented a new vision of sustain-

able development. The Johannesburg Plan of Action

consolidates our work plans into one common agenda

that includes our best thinking on sustainable develop-

ment. Plans are good. But [only] actions can put clean

water in the mouths of thirsty girls and boys, prevent the

766 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

transmission of a deadly virus from mother to child, and

preserve the biodiversity of a fragile African ecosystem.

The full text of the Secretary’s remarks is available at

www.state.gov/secretary/rm/2002/13235.htm.

a. U.S. goals for summit

The U.S. goals for the summit had been set forth in a

vision statement by Under Secretary of State for Global Affairs

Paula J. Dobriansky, issued on May 23, 2002, and excerpted

below.

The full text of Secretary Dobriansky’s statement is

available at www.state.gov/g/oes/sus/wssd.

****

We believe sustainable development begins at home and is sup-

ported by effective domestic policies, and international partner-

ships. Self-governing people prepared to participate in an open

world marketplace are the very foundation of sustainable devel-

opment. President Bush has emphasized that the hopes of all

people, no matter where they live, lie in greater political and

economic freedom, the rule of law, and good governance. These

fundamental principles will generate and harness the human and

ﬁnancial resources needed to promote economic growth, a vibrant

civil society, and environmental protection. Democracy and respect

for human rights empower people to take charge of their own

destinies. We pledge strong support for efforts to promote peace,

security, and stability, and to enhance democracy, respect for

human rights, open and transparent governance, and the rule

of law.

We endorse and continue to support national efforts to improve

transparency and domestic governance, and to ﬁght against cor-

ruption because we share, together with our partners, a strong

commitment to the reality that only open, law-based societies that

foster private investment, enterprise and entrepreneurship can

unleash our human potential to build lasting and widely-shared

Environment and other Transnational Scientiﬁc Issues 767

prosperity. We also believe investment in basic health, education,

and the environment is vital to advance social development and

give every person, especially children, a chance at sharing in the

beneﬁts of economic growth.

We recognize poverty remains a global problem of huge

proportions that demands our action. Following the successful

outcomes of the Doha Trade Ministerial, the Monterrey Conference

on Financing for Development and the World Food Summit, the

World Summit on Sustainable Development can take practical

measures to enhance human productivity, reduce poverty and foster

economic growth and opportunity together with environmental

quality. We can strive together for freer and more open societies,

thriving economies, healthy environments, and help developing

countries integrate fully into the global economy to reap the beneﬁts

from international trade, investment, and cooperative partnerships.

We will work effectively to address the challenges of sustainable

development in partnership with governments, the private sector,

NGOs, and other elements of civil society. We invite developed

and developing nations alike to join us to:

• Open our economies and societies to growth;

• Provide freedom, security, and hope for present and future

generations;

• Provide all our people with the opportunity for healthy

and productive lives;

• Serve as good stewards of our natural resources and our

environment.

To this end, we will work to advance through concrete actions the

following goals:

• Reduce the number of people living without safe drinking

water and provide integrated, watershed approaches to

manage water and land resources;

• Enhance access to and adoption, where appropriate,

of clean energy, including renewables, from village to

metropolis;

• Stem the global pandemic of AIDS, and drastically reduce

tuberculosis and malaria;

• Ensure universal access to basic education, and eliminate

gender disparities;

768 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

• Reduce hunger and increase sustainable agricultural product-

ivity in the developing world without further degradation

of forests and fragile lands; and

• Manage and conserve our forests and the vital resources

of our oceans.

In partnership, we will work to unite governments, the private

sector and civil society to strengthen democratic institutions of

governance, open markets, and to mobilize and use all development

resources more effectively. These resources include domestic sav-

ings, trade and investment, traditional aid and private philanthropy,

capacity building programs, and efforts to promote the spread of

environmentally sensitive industrial, agricultural, educational and

scientiﬁc technologies. Our shared commitment will be to provide

all people with the opportunities to lead healthy, productive, and

fulﬁlling lives.

b. U.S. interpretation of summit declaration

The United States submitted a written statement on

interpretation of the declaration, set forth below. The state-

ment is included in the ﬁnal report of the World Summit on

Sustainable Development. U.N. Doc. A/CONF.199/20 at

145.

The U.S. statement is available at www.state.gov/s/l/

c8183.htm.

Principle 7 of the Rio Declaration on Environment

and Development

As the United States of America stated for the record at the 1992

United Nations Conference on Environment and Development,

the United States understands and accepts that principle 7 of the

Rio Declaration on Environment and Development highlights

the special leadership role of developed countries, based on their

industrial development, experience with environmental pro-

tection policies and actions, and wealth, technical expertise and

Environment and other Transnational Scientiﬁc Issues 769

capabilities. The United States does not accept any interpretation

of principle 7 that would imply a recognition or acceptance by the

United States of any international obligations or liabilities, or any

diminution of the responsibilities of developing countries under

international law.

The phrase “common but differentiated responsibilities” is

contained in the second sentence of Rio principle 7, which pro-

vides that “in view of the different contributions to global envir-

onmental degradation, States have common but differentiated

responsibilities.” The United States interprets references to common

but differentiated responsibilities in the Plan of Implementation in

this manner.

Corporate responsibility

During the conference, the Chairman of the Main Committee

stated that it was “the collective understanding” of the contact

group on means of implementation that paragraph 49 of the

Plan of Implementation, regarding corporate responsibility and

accountability, refers to existing intergovernmental agreements

and international initiatives, and that this understanding should

be reﬂected in the ﬁnal report of the conference. The United

States associates itself with this statement and notes that this

understanding is of critical importance to the proper understanding

and implementation of paragraph 49.

Biological diversity

While joining the consensus on the Plan of Implementation, the

United States reserves its position with respect to paragraph 44(o).

This paragraph envisages the negotiation “within the framework

of the Convention on Biological Diversity, bearing in mind the

Bonn Guidelines, an international regime to promote and safe-

guard the fair and equitable sharing of beneﬁts arising out of the

utilization of genetic resources.” In the context of the ﬁnal

negotiations on this paragraph, the words “legally binding” were

deleted before the word “regime” at the request of numerous

770 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

delegations. In light of this negotiating history, the United States

understands that the undertaking envisaged in this paragraph

would not entail the development of a legally binding instrument.

The United States further considers that this paragraph constitutes

an invitation for States to explore non-binding tools to better

implement the Convention on Biological Diversity and the Bonn

Guidelines, the latter of which were adopted in April of this year.

It is the view of the United States that any initiatives in this area

must fully accord access to genetic resources and respect rights

and obligations under international law.

Health

The United States understands that no language in the Plan of

Implementation, including references to health, “reproductive and

sexual health”, “basic health services” and “health-care services”,

or references to rights or freedoms, can in any way be interpreted

as including or promoting abortion or the use of abortifacients.

Similarly, the United States does not consider any reference in the

document to United Nations conferences or summits, including

the World Summit for Children, the United Nations Conference

on Environment and Development, the International Conference

on Population and Development, the World Summit for Social

Development, and the Fourth World Conference on Women, and

their follow-ups, to constitute an endorsement or promotion of

abortion. The United States does, however, support the treatment

of injuries or illnesses caused by illegal or legal abortion, including,

for example, compassionate post-abortion care.

Ofﬁcial development assistance

The United States reafﬁrms that it does not accept international

aid targets based on percentages of donor gross national product.

The United States does believe that aid should be increased to

those developing countries making a demonstrated commitment

to governing justly, investing in their own people, and promoting

enterprise and entrepreneurship.

Environment and other Transnational Scientiﬁc Issues 771

Nature of the Plan of Implementation and the

Johannesburg Declaration

The United States highlights the importance of the Plan of

Implementation and the Johannesburg Declaration and notes

that, like other such declarations and related documents, these

documents adopted at this conference contain important political

goals and coordinated plans of action, but do not create legally

binding obligations on States under international law.

2. Pollution and Related Issues

a. Stockholm Convention on Persistent Organic Pollutants

(1) Transmittal to Senate for advice and consent to ratiﬁcation

On May 6, 2002, President George W. Bush transmitted to

the Senate for advice and consent to ratiﬁcation the Stock-

holm Convention on Persistent Organic Pollutants, done at

Stockholm, May 22–23, 2001. S. Treaty Doc. No. 107–5 (2002);

see also 40 I.L.M 532 (2001). The letter from the President to

the Senate and excerpts from the letter and report from

Secretary of State Colin L. Powell submitting the treaty to

the President are provided below.

LETTER OF TRANSMITTAL

The White House, May 6, 2002.

To the Senate of the United States:

With a view to receiving the advice and consent of the Senate

to ratiﬁcation, I transmit herewith the Stockholm Convention on

Persistent Organic Pollutants, with Annexes, done at Stockholm,

May 22–23, 2001. The report of the Secretary of State is also

enclosed for the information of the Senate.

The Convention, which was negotiated under the auspices of

the United Nations Environment Program with the leadership and

772 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

active participation of the United States, commits Parties to take

signiﬁcant steps, similar to those already taken by the United States,

to eliminate or restrict the production, use, and/or release of 12

speciﬁed persistent organic pollutants (POPs). When I announced

that the United States would sign the Convention, I noted that

POPs chemicals, even when released abroad, can harm human

health and the environment in the United States. The Convention

obligates Parties to take measures to eliminate or restrict the pro-

duction, use, and trade of intentionally produced POPs, to develop

action plans to address the release of unintentionally produced

POPs, and to use best available techniques to reduce emissions

from certain new sources of unintentionally produced POPs. It

also includes obligations on the treatment of POPs stockpiles and

wastes, as well as a science-based procedure to add new chemicals

that meet deﬁned criteria.

The United States, with the assistance and cooperation of

nongovernmental organizations and industry, plays an important

international leadership role in the safe management of hazardous

chemicals and pesticides. This Convention, which will bring over

time an end to the production and use of certain of these toxic

chemicals beyond our borders, will positively affect the U.S.

environment and public health. All relevant Federal agencies

support early ratiﬁcation of the Convention for these reasons, and

we understand that affected industries and interest groups share

this view.

I recommend that the Senate give prompt and favorable

consideration to the Convention and give its advice and con-

sent to ratiﬁcation, subject to the understandings described in

the accompanying report of the Secretary of State, at the earliest

possible date.

George W. Bush.

LETTER OF SUBMITTAL

August 1, 2001.

The President,

The White House.

The President:

****

Environment and other Transnational Scientiﬁc Issues 773

Chemical synthesis and production advances have been

responsible for many important beneﬁts currently enjoyed by

modern society. However, as scientiﬁc knowledge about these

substances has increased, it has become clear that the continued

production and use of certain chemicals and pesticides with

particular traits carries with it inherent risks and poses both

environmental and health hazards. The chemicals of global con-

cern that are the subject of this Convention are often referred to

as persistent organic pollutants (POPs). These harmful chemicals

share four basic characteristics that cause them to adversely affect

human health and the environment: (1) they are toxic; (2) they

persist in the environment for long periods of time; (3) they circulate

globally through the atmosphere and oceans to regions far from

their source of origin; and (4) they biomagnify as they move up

through the food chain, accumulating in the fatty tissue of higher

organisms, including in other foods consumed by Americans.

There is evidence of continuing transboundary deposition of

POPs chemicals far from their sources. Indigenous people in Alaska

and elsewhere in the United States are particularly at risk due to

their reliance on a subsistence diet. This Convention will reduce

or eliminate certain POPs that continue to be released outside the

United States and which pose a threat to U.S. public health and

the environment.

The United States has already taken substantial action to

address the risks associated with those POPs chemicals currently

covered by the Convention. Many other countries, including some

developing countries, have also taken steps to address these risks.

Nonetheless, certain of these chemicals continue to be used and

produced, mostly in developing countries.

The Convention commits Parties to take signiﬁcant steps,

similar to those already taken by the United States, to eliminate or

restrict the production, use and/or release of speciﬁed POPs. It

initially identiﬁes twelve chemicals, often referred to as the “dirty

dozen.” Several of these are intentionally produced for use either

as pesticides or industrial chemicals (e.g., DDT); some are produced

and released as incidental byproducts of other processes (e.g.,

dioxin). Under the Convention, all of the intentionally produced

POPs except DDT are slated for elimination of production and

774 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

use. In recognition of the humanitarian need to use DDT for disease

vector control, notably to ﬁght malaria, the Convention allows its

use for this purpose, while encouraging the development of effective

and economically viable alternatives. The Convention obligates

Parties to develop action plans to address the release of byproduct

POPs and to use best available techniques to reduce emissions

from certain new sources of such POPs. It also imposes controls

on the handling of POPs wastes and on trade in POPs chemicals.

Additionally, it includes a science-based procedure to add new

chemicals that meet deﬁned criteria to the lists of POPs subject to

the Convention.

The Convention does not differentiate in its basic obligations be-

tween developing and developed countries. The Convention does

establish a ﬂexible framework to provide technical and ﬁnancial as-

sistance to help developing countries implement their commitments.

The United States played a leading role in negotiating the

Convention, which was developed under the auspices of the United

Nations Environment Program (UNEP). Throughout the negotia-

tions, the Department of State and interested Federal agencies,

including the Environmental Protection Agency (EPA), the Depart-

ment of Commerce, the United States Trade Representative, the

Department of Health and Human Services, and the Department

of Agriculture, consulted with the Congress, industry and envir-

onmental organizations. The relevant Federal agencies support

expeditious ratiﬁcation of the Convention by the United States.

The Convention has the strong support of U.S. industry and

environmental organizations.

The following analysis reviews the Convention’s key provisions

and sets forth the proposed understandings of the United States

with respect to several elements.

****

Article 2—Deﬁnitions

. . . It should be noted that, with respect to obligations that

require Parties to take action on chemicals listed in Annexes A, B

or C, the term “Party” includes only those Parties that are bound

by particular listings for chemicals that are added in the future.

Environment and other Transnational Scientiﬁc Issues 775

In order to make this deﬁnition clear, it is recommended that the

following understanding be included in the U.S. instrument of

ratiﬁcation:

The United States understands that the term “Party” as

deﬁned in Article 2 includes only those Parties that are

bound by particular listings for chemicals that are added

in the future to Annexes A, B or C with respect to the

obligations to take action on those chemicals.

****

Article 6—measures to reduce or eliminate releases

from stockpiles and wastes

Article 6, which contains obligations regarding the treatment

of POPs wastes, generally requires that Parties take certain speciﬁed

measures to ensure that such wastes are managed in a manner

protective of human health and the environment. The United States

has sufﬁcient existing authority under the [Federal Insecticide,

Fungicide and Rodenticide Act (“FIFRA”) and the Toxic Sub-

stances Control Act (“TSCA”)], the Comprehensive Environmental

Responsibility, Compensation and Liability Act, 42 U.S.C. Sec.

9601 et seq., and the Resource Conservation and Recovery Act,

42 U.S.C. Sec. 6901 et seq., (“RCRA”) to implement almost all of

the obligations in Article 6.

****

Paragraph 2 directs the [Conference of the Parties (“COP”)]

to cooperate with the appropriate bodies of the Basel Convention

on the Control of Transboundary Movements of Hazardous Wastes

and their Disposal to develop certain guidance relating to the

handling of POPs waste. Paragraph 2(c) calls on the COP to work

to establish, in cooperation with the Basel COP, “as appropriate,”

the concentration levels of the chemicals listed in Annexes A, B

and C in order to deﬁne the low POP content referred to in

paragraph 1(d). The criteria of what constitutes “low” POP content

is an important factor in determining whether “other disposal’’

is permitted under paragraph 1(d). The United States does not

776 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

interpret paragraph 2(c), however, as giving a mandate to the

COP to set a deﬁnition of the term “low” that would be binding

on Parties through paragraph 1(d): indeed, paragraph 1(d) makes

it clear that meaning of “low” is to be determined “taking into

account international rules, standards and guidelines, including

those that may be developed pursuant to paragraph 2. . . .” In

order to clarify and emphasize this view, it is recommended that

the following understanding be included in the U.S. instrument

of ratiﬁcation:

It is the understanding of the United States of America

that any work completed by the Conference of the Parties

under paragraph 2(c) of Article 6 would not be considered

binding on Parties, but rather would constitute non-binding

guidance on the meaning of the term “low” that Parties

would take into account in accordance with paragraph 1(d)

of Article 6.

****

Domestic implementation of the POPs Convention

As noted above, the United States could implement nearly

all Convention obligations under existing authorities. There are

exceptions, however, where limited additional legislative authority,

through changes to FIFRA and TSCA, will be sought to ensure the

United States’ ability to implement provisions of the Convention.

These changes primarily concern the obligations in Article 3, which

concerns measures to eliminate production and use of listed

chemicals, as well as to control their import and export. In addition,

statutory authority to prohibit any recycling of POPs substances

will also be sought, in order to ensure effective U.S. compliance

with paragraph 1(d)(iii) of Article 6. Other targeted changes may

also be sought to ensure our ability to participate effectively in

negotiations regarding proposed amendments to add chemicals,

and to ensure that the United States is able to ratify such amend-

ments in a timely manner, if it so chooses.

****

Respectfully submitted,

Colin L. Powell.

Environment and other Transnational Scientiﬁc Issues 777

(2) Implementing legislation

On April 11, 2002, the Secretary of State and the Administrator

of the Environmental Protection Agency submitted to the

Congress legislation needed to implement not only the

Stockholm Convention but also the Rotterdam Conven-

tion on the Prior Informed Consent Procedure for Certain

Hazardous Chemicals and Pesticides in International Trade,

38 I.L.M. 1 (1999), and the Protocol on Persistent Organic

Pollutants to the 1979 Convention on Long-Range Trans-

boundary Air Pollution, 37 I.L.M. 505 (1998). This legislation

would amend the Toxic Substances Control Act (“TSCA”) as

well as the Federal Insecticide, Fungicide and Rodenticide

Act (“FIFRA”) by providing the EPA with the authority to

eliminate or restrict the production, use, and release of the

12 chemicals targeted in the Stockholm convention. Imple-

menting legislation had not been enacted at the end of 2002.

b. Stratospheric ozone depletion

On October 9, 2002, the Senate gave advice and consent

to ratiﬁcation of amendments to the Montreal Protocol

on Substances that Deplete the Ozone Layer, adopted at

Montreal on September 15–17, 1997, by the Ninth Meeting

of the Parties to the Montreal Protocol, and at Beijing by

the Eleventh Meeting of the Parties to the Montreal Pro-

tocol, December 3, 1999 148 CONG. REC. S10,232 (Oct. 9,

2002). The documents transmitting the amendments to

the Protocol to the Senate are available in S. Treaty Doc.

No. 106–10 (1999) and S. Treaty Doc. No. 106–32 (2000)

respectively.

c. Climate change

(1) Clear skies and global climate change initiatives

On February 14, 2002, President George W. Bush announced

the clear skies and global climate change initiatives. The

778 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

clear skies initiative would cut power plant emissions of the

three worst air pollutants—nitrogen oxides, sulfur dioxide,

and mercury—by 70 percent. See Fact Sheet: President Bush

Announces Clear Skies & Global Climate Change Initiatives,

www.whitehouse.gov/news/releases/2002/02/20020214.html.

Excerpts below from a fact sheet issued by the Depart-

ment of State on October 23, 2002, describe the global

climate change initiative.

The full text of the fact sheet is available at www.state.gov/

g/oes/rls/fs/2002/14576.htm.

On February 14, 2002, President Bush committed the United

States to an ambitious climate change strategy that will reduce

domestic greenhouse gas (GHG) emissions relative to the size of

the American economy. The United States will achieve this goal by

cutting its GHG intensity—how much it emits per unit of economic

activity—by 18 percent over the next 10 years. This strategy will

set America on a path to slow the growth of greenhouse gas emis-

sions, and—as the science justiﬁes—to stop, and then reverse that

growth. The President’s policy also continues the United States’

leadership role in supporting vital climate change research, laying

the groundwork for future action by investing in science, tech-

nology, and institutions. In addition, the United States’ strategy

emphasizes international cooperation and promotes working with

other nations to develop an efﬁcient and coordinated response

to global climate change. In taking prudent environmental action

at home and abroad, the United States is advancing a pro-growth,

pro-development approach to addressing this important global

challenge.

Cutting GHG Intensity By 18 percent Over The Next 10 Years

GHG intensity is the ratio of greenhouse gas emissions to economic

output. The President’s goal is to lower the United States’ rate of

emissions from an estimated 183 metric tons per million dollars

of Gross Domestic Product (GDP) in 2002, to 151 metric tons

Environment and other Transnational Scientiﬁc Issues 779

per million dollars of GDP in 2012. By slowing the growth of

greenhouse gases, this policy will put America on a path toward

stabilizing GHG concentration in the atmosphere in the long

run, while sustaining the economic growth needed to ﬁnance our

investments in a new, cleaner energy structure. America is already

improving its GHG intensity; new policies and programs will

accelerate that progress, avoiding more than 500 million metric

tons of GHG emissions over the next 10 years—the equivalent of

taking nearly one out of every three cars off the road. This goal is

comparable to the average progress that nations participating in

the Kyoto Protocol are required to achieve.

Laying the Groundwork for Current and Future Action

Unprecedented Funding for Climate Change-Related Programs.

The President’s FY 2003 budget request provides $4.5 billion

for global climate change-related activities—a $653 million or 17

percent increase over FY 2002—more than any other nation’s

commitment. This increase includes nearly $1.8 billion for climate

change science, $1.3 billion for climate technologies, and $555

million for the ﬁrst year of funding for a 5-year, $4.6 billion

commitment to tax credits for renewable energy and energy efﬁcient

sources and technologies. The budget request also includes $279

million for international activities—a 29 percent increase.

A New Tool to Measure and Credit Emissions Reductions.

In his February announcement, the President directed the Secretary

of Energy to recommend reforms to the Department’s existing

voluntary greenhouse gas registry, to: (1) ensure that businesses

that register voluntary reductions are not penalized under a future

climate policy, and (2) give credit to companies that can show

real emissions reductions. Toward this end, the United States

will improve its voluntary GHG registry to enhance the registry’s

accuracy, reliability and veriﬁability, working with and taking

into account emerging domestic and international approaches.

These improvements will give businesses incentives to invest in

new, cleaner technology and voluntarily reduce greenhouse gas

emissions.

780 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

National Energy Policy. The United States’ National Energy

Policy recommends tax incentives, business sector challenges, and

improved transportation programs, to promote energy efﬁciency

and conservation and to reduce emissions of greenhouse gases

through the use of alternative, renewable, and cleaner forms of

energy.

Increased Incentives for Carbon Sequestration. To increase

the amount of carbon stored by America’s farms and forests, the

United States will invest up to $47 billion in the next decade for

conservation on its farms and forest lands. This partnership with

farmers and small land owners will help protect land, water, and

air, secure and enhance habitat for wildlife, and greatly expand

opportunities to store signiﬁcant quantities of carbon in trees

and the soil, as well as promote other activities to mitigate GHG

emissions.

Working With Other Nations to Develop an Efﬁcient and

Effective Global Response

Enhanced support in the developing world and for bilateral inter-

national cooperation on climate change initiatives. The President’s

FY2003 budget supports signiﬁcant funding for science and

technology research, development and transfer, including:

$155 million for the United States Agency for International

Development (USAID), which continues to be a major source

of climate technology assistance to developing countries.

$50 million for tropical forest conservation, including

$40 million under the Tropical Forest Conservation Act

to help countries redirect debt payments toward protecting

tropical forests, which store millions of tons of carbon.

A signiﬁcant share of the overall funding required to meet

the President’s commitment of $25 million for climate

observation systems in developing countries.

$68 million for the Global Environment Facility (GEF),

to help developing countries better measure and reduce

emissions, and invest in clean and renewable energy

technologies. In addition, the United States has pledged

Environment and other Transnational Scientiﬁc Issues 781

$500 million over the next four years for the GEF, to

help developing countries address environmental problems

with potential global impact. The commitment represents

a 16 percent increase over our contribution to the previous

replenishment.

Bilateral partnerships. The United States is committed to working

with other nations, especially developing countries, to build future

prosperity along a cleaner and better path. The President’s strategy

promotes cooperative relationships with other countries, so that

our objectives and activities complement each other in addressing

climate change effectively. Over the past year, the United States

has engaged in bilateral partnerships with Australia, Canada,

China, seven Central American countries (Belize, Costa Rica, El

Salvador, Guatemala, Honduras, Nicaragua, and Panama), the

European Union, India, Italy, Japan, the Republic of Korea and

New Zealand, on issues ranging from climate change science to

energy and sequestration technology to policy approaches.

(2) UN Framework Convention on Climate Change

Harlan L. Watson, Senior Climate Negotiator and Special

Representative and head of the U.S. Delegation, provided the

views of the United States in remarks to the eighth session of

the Conference of Parties (COP-8) to the UN Framework

Convention on Climate Change in New Delhi, October 25,

2002. Excerpts from his remarks are set forth below.

The full text of Mr. Watson’s remarks is available at

www.state.gov/g/oes/rls/rm/2002/14758.htm.

****

First, we believe that the Delhi Declaration should welcome the

increased focus in the [UN Framework Convention on Climate

Change (“UNFCCC”)] on adaptation. Effective, results-based

adaptation strategies will be a key component, along with

mitigation policies, of an effective climate change strategy for both

developing and developed countries.

782 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Second, we believe that the Delhi Declaration should highlight

the importance of addressing climate change in the broader context

of sustainable development.

The year 2002 will be remembered as an historic one in our

universal quest for sustainable development. At the World Summit

on Sustainable Development (WSSD) in Johannesburg, which built

upon outcomes achieved earlier this year at Monterrey and Doha,

we reafﬁrmed our commitment to sustainable development in the

Johannesburg Declaration on Sustainable Development.

****

It is then, in this broader context that we see our efforts to

address climate change. Both climate change and sustainable

development are complex, long-term challenges that will require

sustained commitment and focus on the part of the nations of

the world. Our choice of approaches to address climate change,

if they are to be effective in the long run, must recognize that

the hope of growth and opportunity and prosperity is universal

—that it is the dream and right of every society on our globe.

And we must also recognize that it would be unfair—indeed,

counterproductive—to condemn developing nations to slow

growth or no growth by insisting that they take on impractical

and unrealistic greenhouse gas targets.

The United States is committed to a sustainable climate change

policy—one that is based on the common-sense idea that economic

growth is key to environmental progress, because it is growth that

provides the resources for investment in clean technologies. We

are also working to foster technological advances through research

and development, investing in institutions and initiating public-

private partnerships that will promote sustainable development

and climate change policy.

We believe this is an approach that will harness the power of

markets, the creativity of entrepreneurs, and draw upon the best

scientiﬁc research—one that will make possible a new partnership

with the developing world to meet our common environmental

and economic goals.

****

Environment and other Transnational Scientiﬁc Issues 783

d. Disposal of hazardous wastes

On October 9, 2002, the United States and India entered

into an agreement pursuant to Article 11 of the Basel

Convention on the Control of Transboundary Movement of

Hazardous Wastes and their Disposal, adopted in Basel on

March 22, 1989, UN Doc. EP/IG.80/3, reprinted in 28 I.L.M.

649 (1989) (“the Basel Convention”). The agreement, which

entered into force upon signature for one year, provides for

the transboundary movement of glass cullet contaminated

with mercury from India to the United States. On October

15, 2002, the United States and Costa Rica also renewed

their bilateral agreement under article 11 for another year.

India and Costa Rica are both parties to the Basel

Convention, but the United States, while a signatory, is not

at present a party. Under article 4 ¶ 5 of the Basel Convention,

parties are prohibited from permitting hazardous wastes or

other wastes to be exported to a non-party or to be imported

from a non-party. Article 11 ¶ 1, however, provides that

notwithstanding the provisions of article 4 ¶ 5, parties may

enter into bilateral, multilateral or regional agreements

or arrangements regarding transboundary movement of

hazardous wastes or other wastes with parties or non-parties,

provided that such agreements or arrangements do not

derogate from the environmentally sound management of

hazardous wastes and other wastes as required by the Basel

Convention. Such agreements or arrangements must also

stipulate provisions that are not less environmentally sound

than those provided for by the Basel Convention, in particular

taking into account the interests of developing countries.

Article 1 of the agreement between the United States

and India obligates India to comply with the provisions of

the Basel convention as well as the provisions of the agree-

ment. Under the agreement, the Ministry of Environment

and Forests, as the competent authority for India, notiﬁes

the Environmental Protection Agency, as the competent

authority for the Untied States, of proposed shipments of

mercury-contaminated glass cullet. As to the United States,

784 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

article 2 of the agreement, set forth below, makes clear that

its obligations under the agreement are subject to U.S. law.

Article 4 of the agreement also requires India to ensure that,

if the transboundary movement of contaminated glass cullet

cannot be completed in accordance with the terms of the

contract and alternative environmentally sound arrangements

for its management cannot be made, the glass cullet is taken

back to India by the exporter, or, if necessary, by India itself.

In the United States, regulations implementing the

terms of such bilateral hazardous waste agreements are

promulgated under the Resource Conservation and Recovery

Act, Pub. L. No. 94–580, 90 Stat. 2795, 42 U.S.C. §§ 6901–

6992(k) (“RCRA”). Regulations relevant to hazardous waste

management under the U.S.-India and U.S.-Costa Rica

agreements can be found at 40 C.F.R. § 262.60 (2002).

The full text of the U.S.-India agreement is available at

www.state.gov/s/l/c8183.htm.

****

Article 2

Notiﬁcation and Consent

1. The competent authority of India, which for the purposes

of this agreement is the Ministry of Environment and Forests

(MoEF), shall notify, in writing, the competent authority of

the United States, which for the purposes of this agreement is

the Environmental Protection Agency (EPA), of the proposed

transboundary movement(s) of glass cullet containing mercury

to be carried out pursuant to this agreement. This notice shall

contain the declarations and information speciﬁed in Annex V

A of the Basel Convention. If any information in the notice

changes, then a new notice shall be provided.

2. The EPA shall, in accordance with applicable U.S. law,

respond to MoEF in writing, consenting to the transboundary

movement(s) with or without conditions, denying permission

for the transboundary movement(s), or requesting additional

information. EPA shall seek to respond within 30 days of

receipt of the notice.

Environment and other Transnational Scientiﬁc Issues 785

3. EPA’s consent, including conditional consent, may be with-

drawn or modiﬁed for good cause; in such case, EPA shall

notify MoEF as soon as possible.

4. India shall not allow a transboundary movement of glass cullet

containing mercury to commence until:

(a) MoEF has received conﬁrmation from the exporter of

the existence of a contract between the exporter and the

intended facility in the United States specifying:

(i) The environmentally sound management of the glass

cullet containing mercury, (which is satisﬁed by

specifying that it will be managed in accordance with

applicable U.S. laws); and

(ii) Alternative arrangements, including which party to

the contract is to pay for alternative arrangements, for

the proper management in an environmentally sound

manner of the glass-cullet containing mercury in the

United States or India, in the case where the intended

facility cannot or will not accept it; and,

(b) MoEF has received from EPA written consent to the trans-

boundary movement(s).

5. India shall not allow a transboundary movement to commence

if it has reason to believe that glass cullet containing mercury

will not be managed in an environmentally sound manner.

6. The management of the glass cullet containing mercury once

subject to the jurisdiction of the United States, pursuant to

this agreement, shall be subject to applicable U.S. law.

****

3. Protection of the Marine Environment and

Marine Conservation

a. Oceans

On December 10, 2002, Ambassador Mary Beth West,

Deputy Assistant Secretary for Oceans and Fisheries, U.S.

Department of State, addressed the 57

session of the United

Nations, in Plenary Session. In her prepared statement, she

786 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

indicated that the United States co-sponsored agenda item

25, a resolution on oceans and the law of the sea introduced

by Brazil. Ambassador West also introduced Resolution A57/

L.49 concerning a number of ﬁsheries issues, and resolution

A57/L.50 concerning the UN Fish Stocks Agreement. Excerpts

below provide the views of the United States on these related

issues.

The full text of Ambassador West’s prepared statement

is available at www.un.int/usa/02_214.htm.

****

We see the resolutions before us today as a thoughtful and balanced

assemblage of current oceans issues drawn from the priorities and

interests of member states. The resolutions are not all-inclusive,

but they represent consensus on ways to tackle many of the chal-

lenges we face in making the oceans safe and healthy environments

for sustainable development.

****

The United States believes that ratifying and carrying out inter-

national ﬁsheries management agreements is an important tool in

protecting international ﬁsh stocks, promoting sustainable use of

living marine resources, and providing food security.

We are pleased that the importance of implementation and

the means to build capacity for better management are emphasized

in both of the ﬁsheries resolutions before us today.

A year ago the UN Fish Stocks Agreement entered into force,

a real milestone for international ﬁsheries management and for

implementation of UNCLOS. The United States believes that the

Fish Stocks Agreement is a signiﬁcant adjunct to UNCLOS. We

urge all States to become parties to the Fish Stocks Agreement as

well as to the FAO Compliance Agreement. We look forward to

participating in the second informal consultation between States

Parties to the Fish Stocks Agreement. We are also pleased that

next year we can look forward to a single ﬁsheries resolution, a

format we believe will reﬂect and facilitate a more uniﬁed approach

to ﬁsheries issues at the UN.

Environment and other Transnational Scientiﬁc Issues 787

This year included another international milestone, the

successful World Summit on Sustainable Development-WSSD.

The Plan of Implementation agreed at the WSSD is ambitious in

its breadth of topics and scope of activities. The United States

welcomes the steps taken in the two ﬁsheries resolutions and the

oceans resolution that begin implementation of the WSSD plan.

The WSSD plan calls on the world community to establish,

by 2004, a regular United Nations process for global reporting

and assessment of the state of the marine environment, based on

existing regional assessments. This oceans resolution responds by

taking the ﬁrst step: requesting the Secretary-General—in close

consultation with member states and relevant United Nations

programs and agencies—to present an implementing proposal to

the next session of the General Assembly. The United States looks

forward to consulting with the Secretariat on issues such as how

to make the best use of the existing expertise of the “Joint Group

of Experts on the Scientiﬁc Aspects of Marine Environmental

Protection (GESAMP),” the most appropriate role for the Inter-

governmental Oceanographic Commission, and the convening of

an intergovernmental meeting.

The WSSD plan calls on the world community to elaborate

regional programs of action and improve links with strategic plans

for the sustainable development of coastal and marine resources.

The oceans resolution before us similarly calls upon States to

develop national, regional, and international programs for halting

the loss of marine biodiversity. The United States welcomes this

emphasis on integrated, regional approaches to oceans issues.

In this context, we would like to bring to this body’s attention

the “White Water to Blue Water” oceans partnership initiative

currently being planned for the Caribbean.

“White Water to Blue Water” aims for an integrated approach

to the management of freshwater watersheds and marine eco-

systems. Its focus will be practical and results-driven. The initiative

will strive to improve cooperation and capacity on the national

and regional level, and to promote public-private partnerships

between and among governments, international organizations, non-

governmental organizations, and the private sector. “White Water

to Blue Water” begins in the Wider Caribbean Region in 2003.

788 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

We hope it might serve as a successful model for similar efforts

in other regions of the world.

The oceans resolution before us today continues the practice

of informal UN consultations on oceans issues. We welcome this

decision, look forward to future discussions, and expect our

collective experiences and ideas to continue strengthening this

body’s understanding and consideration of critical oceans issues.

As we explore topics that may not have been foreseen twenty

years ago, we expect to be able to ﬁnd solutions within the

applicable juridical framework.

The United States also looks forward to the collective efforts

to establish an inter-agency coordination mechanism on oceans

and coastal issues within the United Nations system. We support

the goals that have been articulated for this mechanism—among

others, transparency, effectiveness, responsiveness, inclusiveness,

clarity of mandate, cooperativeness, and liaison with regional

organizations—and we realize that achieving these goals will

require continued effort over time.

Before closing, it seems appropriate to reference the many

important areas currently being addressed by the International

Maritime Organization, the IMO. From ballast water and other

threats to the marine environment, to the suppression of unlawful

acts against navigation, to countering the threat of terrorism, the

IMO is steadily facilitating global understandings and guidelines.

The United States fully endorses the calls in this oceans resolution

to support various aspects of the work of the IMO.

****

b. Particularly Sensitive Sea Areas

On November 13, 2002, the International Maritime Organ-

ization (“IMO”), for the ﬁrst time designated a U.S. location

as a Particularly Sensitive Sea Area (“PSSA”). See IMO docs.

MEPC res.98(47), March 8, 2002 (Florida Keys), MEPC 47/

20 Annex 5. The zone, known as the Florida Keys’ Particularly

Sensitive Sea Area, is more than 3,000 square nautical

miles and is one of only ﬁve such areas in the world. The

Environment and other Transnational Scientiﬁc Issues 789

designation is for the purpose of protecting coral from

anchors, groundings and collisions from large ships.

The IMO has deﬁned a PSSA as “an area that needs

special protection through action by IMO because of its

signiﬁcance for recognized ecological, socio-economic, or

scientiﬁc reasons and because it may be vulnerable to damage

by international shipping activities.” IMO resolution A.22/

Res.927, Annex 2, para.1.2, Nov. 29, 2001. Annex 2 contains

new Guidelines for the Identiﬁcation and Designation of

PSSAs adopted by the IMO. See J. Ashley Roach, Particularly

Sensitive Sea Areas: Current Developments, Conference

on the Stockholm Declaration and the Law of Marine

Environment, May 23, 2002. Excerpts from the announcement

of the Florida Keys designation by the U.S. National Oceanic

and Atmospheric Administration (“NOAA”) are set forth

below.

The full text of the NOAA announcement is available at

www.noaanews.noaa.gov/stories/s1062.htm.

Starting Dec. 1, ships greater than 50 meters (164 feet) in length

transiting the zone will be held to internationally accepted and

enforceable rules. The rules direct ship captains to avoid certain

areas within the zone altogether and abide by three no-anchoring

areas within the zone. All nautical charts produced worldwide

will now show the Florida [Keys] Particularly Sensitive Sea Area

and address these protective measures. More than 40 percent of

the world’s commerce passes through the Florida Straits each year.

Ten large ship groundings have occurred in the zone since 1984

and coral damage by rogue anchoring by large ships or freighters

has occurred 17 times since 1997.

****

The waters around the Florida Keys and the Tortugas are some of

the most heavily trafﬁcked shipping areas in the world. Over the

years, ships have caused damage to the coral reef ecosystem through

anchoring, groundings, collisions and accidental or operational

discharges of harmful substances.

790 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

To gain approval for a protected sea area, a nation must

identify maritime-interest compliance measures with which the

IMO can direct ships to comply. For the Florida Keys’ Particularly

Sensitive Sea Area these measures are four “areas to be avoided”

that prevent large ships from traveling too close to the coral reef.

This amendment to the northernmost area to be avoided was

developed in response to comments by mariners operating in the

area because of the risk of collisions that could result in devastating

pollution to the reefs.

Yet another measure declares three mandatory no-anchoring

areas that protect fragile reefs in the Tortugas. While protecting

the fragile coral against the signiﬁcant destruction that can be

caused by the dragging and swinging of large anchors, this measure

also takes into account the interests of shipping and commerce by

continuing to allow ships to navigate through this area.

While these measures are in place domestically, adoption by

the IMO means these areas will appear on international charts,

thus increasing mariner awareness and compliance. For instance,

although the no-anchoring zones protecting the deep reefs of the

Tortugas have been in place since 1997 and appear on NOAA

nautical charts, many foreign-ﬂagged vessels travel the area and

carry non-NOAA charts that do not identify this zone. Thus, while

anchoring incidents have declined since 1997, NOAA continues

to document violations.

c. South Paciﬁc Regional Environment Programme Agreement

On November 7, 1997, President William J. Clinton trans-

mitted to the Senate for advice and consent to ratiﬁcation

the Agreement Establishing the South Paciﬁc Regional

Environment Programme, done at Apia, June 16, 1993.

S. Treaty Doc. No. 105–32 (1993). Excerpts below from the

President’s transmittal letter explain the importance of the

United States becoming a party to the agreement.

On September 5, 2002, the Senate provided advice and

consent to the agreement. 148 CONG. REC. S8,326.

Environment and other Transnational Scientiﬁc Issues 791

The White House,

November 7, 1997.

To the Senate of the United States:

I transmit herewith, for the advice and consent of the Senate to

ratiﬁcation, the Agreement Establishing the South Paciﬁc Regional

Environment Programme, done at Apia on June 16, 1993 (“the

Agreement”). The report of the Department of State with respect

to the Agreement is attached for the information of the Senate.

The South Paciﬁc Regional Environment Programme (SPREP)

has existed for almost 15 years to promote cooperation in the

South Paciﬁc region, to protect and improve the South Paciﬁc envir-

onment and to ensure sustainable development in that region. Prior

to the Agreement, SPREP had the status of an informal institution

housed within the South Paciﬁc Commission. When this institu-

tional arrangement began to prove inefﬁcient, the United States and

the nations of the region negotiated the Agreement to allow SPREP

to become an intergovernmental organization in its own right and

enhance its ability to promote cooperation among its members.

The Agreement was concluded in June 1993 and entered into

force in August 1995. Nearly every nation—except the United

States—that has participated in SPREP and in the negotiation of

the Agreement is now party to the Agreement. As a result, SPREP

now enjoys a formal institutional status that allows it to deal

more effectively with the pressing environmental concerns of the

region. The United States and its territories can only participate in

its activities as ofﬁcial observers.

The Agreement improves the ability of SPREP to serve the

interests of American Samoa, the Commonwealth of the Northern

Mariana Islands, and Guam. Its ratiﬁcation is supported by our

territories and will demonstrate continued United States com-

mitment to, and concern for, the South Paciﬁc region.

Under its terms, the Agreement entered into force on August

31, 1995. To date, Australia, Cook Islands, Federated States of

Micronesia, Fiji, France, Kiribati, Marshall Islands, Nauru, New

Zealand, Niue, Papua New Guinea, Solomon Islands, Tonga, and

Western Samoa have become parties to the Agreement.

****

792 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

d. Marine wildlife

(1) Protocol to Amend 1949 Convention on Establishment of an

Inter-American Tropical Tuna Commission

On September 5, 2002, the Senate provided advice and

consent to the Protocol to Amend the 1949 Convention

on the Establishment of an Inter-American Tropical Tuna

Commission. 148 CONG. REC. S8,326. The Protocol was

designed to allow regional economic organizations, such as

the European Union, to become parties to the Convention.

See S. Treaty Doc. No. 107–2 (2002); S. Exec. Rep. No. 107–

6 (2002); see also Digest 2000 at 306–308.

(2) 1990 Protocol Concerning Specially Protected Areas and Wildlife

On the same day, the Senate gave its advice and consent to

ratiﬁcation of the 1990 Protocol Concerning Specially Pro-

tected Areas and Wildlife to the Convention for the Protection

and Development of the Marine Environment of the Wider

Caribbean Region. See S. Treaty Doc. No. 103–5 (1990). The

Resolution of Ratiﬁcation for the Protocol contained three

reservations and one understanding, set forth below. 148

CONG. REC. S8,326 (Sept. 5, 2002).

****

Section 2. Reservations.

The advice and consent of the Senate under section 1 is subject

to the following reservations, which shall be included in the

instrument of ratiﬁcation.

(1) The United States of America does not consider itself bound

by Article 11(1) of the Protocol to the extent that United States

law permits the limited taking of ﬂora and fauna listed in

Annexes I and II—

Environment and other Transnational Scientiﬁc Issues 793

(A) which is incidental, or

(B) for the purpose of public display, scientiﬁc research, photo-

graphy for educational or commercial purposes, or rescue

and rehabilitation.

(2) The United States has long supported environmental impact

assessment procedures, and has actively sought to promote

the adoption of such procedures throughout the world. U.S.

law and policy require environmental impact assessments

for major Federal actions signiﬁcantly affecting the quality of

the human environment. Accordingly, although the United

States expects that it will, for the most part, be in compliance

with Article 13, the United States does not accept an obliga-

tion under Article 13 of the Protocol to the extent that the

obligations contained therein differ from the obligations of

Article 12 of the Convention for the Protection and Develop-

ment of the Marine Environment of the Wider Caribbean

Region.

(3) The United States does not consider the Protocol to apply

to six species of fauna and ﬂora that do not require the pro-

tection provided by the Protocol in U.S. territory. These species

are the Alabama, Florida and Georgia populations of least

term (Sterna antillarum), the Audubon’s shearwater (Pufﬁnus

lherminieri), the Mississippi, Louisiana and Texas popula-

tion of the wood stork (Mycteria americana) and the Florida

and Alabama populations of the brown pelican (Pelicanus

occidentalis), which are listed on Annex II, as well as the

fulvous whistling duck (Dendrocygna bicolor), and the popula-

tions of widgeon or ditch grass (Rupia maritima) located in

the continental United States, which are listed on Annex III.

Section 3. Understanding.

The advice and consent of the Senate under section 1 is subject

to the following understanding, which shall be included in the

instrument of ratiﬁcation:

The United States understands that the Protocol does

not apply to non-native species, deﬁned as species found

outside of their natural geographic distribution, as a result

794 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

of deliberate or incidental human intervention. There-

fore, in the United States, certain exotic species, such as

the muscovy duck (Carina moschata) and the common

iguana (Iguana iguana), are not covered by the obligations

of the Protocol.

****

(3) Dolphin-safe tuna

On December 31, 2002, the Secretary of Commerce issued

a determination that the encirclement of dolphins with

purse seine nets is not having a signiﬁcant adverse impact

on depleted dolphin stocks in the eastern Paciﬁc Ocean.

The decision is described below in excerpts from an

announcement by the National Oceanic and Atmospheric

Administration (“NOAA”). On the same day, a suit was ﬁled

against the Secretary of Commerce by Earth Island Institute,

eight other environmental groups, and one individual in an

effort to repeal the decision. That suit was pending at the

end of 2002; an order issued on January 22, 2003, by the

United States District Court for the Northern District of

California stayed the implementation of the ﬁnal ﬁnding by

the Secretary of Commerce.

The full text of the announcement is available at www.

nmfs.noaa.gov/prot_res/PR2/Tuna_Dolphin/ﬁnalﬁnding.html.

The text of the ﬁnal decision by the NOAA assistant

administrator for ﬁsheries, is available at www.nmfs.noaa.gov/

prot_res/PR2/Tuna_Dolphin/tuna_dolphin_decision.doc.

On December 31, 2002, the National Marine Fisheries Service

(NOAA Fisheries), on behalf of the Secretary of Commerce, made

a ﬁnding, based on the results of required research, information

obtained under the International Dolphin Conservation Program

(IDCP), and any other relevant information, that the intentional

deployment on or encirclement of dolphins with purse seine

nets is not having a “signiﬁcant adverse impact” on any depleted

dolphin stock in the eastern tropical Paciﬁc Ocean (ETP). This

Environment and other Transnational Scientiﬁc Issues 795

ﬁnding means that the dolphin-safe labeling standard shall be that

prescribed by section (h)(1) of the Dolphin Protection Consumer

Information Act (DPCIA) (16 U.S.C. 1385). Therefore, dolphins

can be encircled or chased, but no dolphins can be killed or

seriously injured in the set in which the tuna was harvested. The

ﬁnding became effective immediately and applies to tuna harvested

in the ETP by purse seine vessels with carrying capacity equal to

or greater than 400 short tons and sold in the United States.

****

To support NOAA Fisheries’ ﬁnding, the Marine Mammal Protec-

tion Act, as amended by the International Dolphin Conservation

Program Act (IDCPA) (16 U.S.C. 1414) requires NOAA Fisheries,

in consultation with the Marine Mammal Commission (MMC)

and the Inter-American Tropical Tuna Commission (IATTC), to

conduct a study of the effect of intentional encirclement (including

chase) on dolphins and dolphin stocks incidentally taken in the

course of purse seine ﬁshing for yellowﬁn tuna in the ETP.

NOAA Fisheries completed the required research, including:

population abundance surveys, a review of relevant stress-related

research, a necropsy study from dolphins killed in the international

tuna purse seine ﬁshery, a review of historical demographic and

biological data from the affected dolphin stocks, and a chase-

recapture experiment on dolphins in the ETP. Based on the research

results found in NOAA Fisheries’ Final Science Report, the other

best available information, NOAA Fisheries has concluded that

the chase and intentional deployment on or encirclement of

dolphins with purse seine nets is not having a signiﬁcant adverse

impact on depleted dolphin stocks in the ETP. All of NOAA

Fisheries’ research results underwent a rigorous, independent peer

review process, consisting of a year-long series of reviews conducted

by the Center for Independent Experts (CIE) at the University of

Miami to ensure that the information before the Secretary was of

the highest caliber.

In 1999, NOAA Fisheries submitted a Report to Congress

containing the preliminary research ﬁndings to support an initial

ﬁnding on the dolphin-safe label. The 1999 Report described a

decision analysis framework to quantitatively evaluate the various

796 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

types of information gathered in the required studies in order

to make the initial ﬁnding. The ﬁnal research results provide

substantial additional information to support the ﬁnal ﬁnding than

was available for the initial ﬁnding. To accommodate the newly

available scientiﬁc information and other relevant information,

and based on input received on the initial ﬁnding in 1999, NOAA

Fisheries revised its decision-making process for the ﬁnal ﬁnding.

The Organized Decision Process (ODP) differs from the

previous decision framework primarily in that it takes into account

different levels of uncertainty inherent in research of this nature.

The ODP allows the Secretary to consider many different types

of the information, in light of the uncertainty, and appropriately

weigh the information based on the level of conﬁdence that exists

for the information. The ODP is also distinct from NOAA Fisheries’

earlier decision framework in that it includes a mechanism for

weighing information based on high standards for considering

the best information available. To ensure transparency in its

development, NOAA Fisheries published the ODP in the Federal

IATTC, the MMC, environmental organizations, the U.S. and the

foreign tuna industries, members of the public, the U.S. Depart-

ments of State and Justice, two members of the U.S. Congress,

and several foreign nations, among others. NOAA Fisheries made

revisions, as appropriate, based on these comments. On August

23, 2002, NOAA Fisheries published the ﬁnal ODP in the Federal

and environmental effects on dolphins and provides an appropriate

level of guidance in considering different types of highly technical

information to make a ﬁnal ﬁnding that is informed, transparent,

and defensible.

****

(4) Cooperation in ﬁsheries and aquaculture

On July 30, 2002, the American Institute in Taiwan (“AIT”)

and the Taipei Economic and Cultural Representative

Ofﬁce in the United States (“TECRO”) entered into the

Memorandum of Understanding Concerning Cooperation in

Environment and other Transnational Scientiﬁc Issues 797

Fisheries and Aquaculture. The obligations of the MOU are

to be carried out by the “designated representatives” of the

two entities. Article 7 of the MOU provides that for AIT the

designated representatives are “the U.S. Department of Com-

merce, the U.S. Coast Guard and other appropriate agencies”

and for TECRO, “the [Taiwan] Council of Agriculture, the

[Taiwan] Coast Guard Administration and other appropriate

agencies.” The MOU provides for cooperation to implement

the 1995 FAO Code of Conduct for Responsible Fisheries

and the International Plans of Action for the Management

of Fishing Capacity, for the Conservation and Manage-

ment of Sharks, for Reducing Incidental Catch of Seabirds

in Longline Fisheries, and for Preventing, Deterring and

Eliminating Illegal, Unreported and Unregulated Fishing,

as adopted by the FAO. Key provisions of the MOU are

set forth below. For a description of AIT and TECRO, see

chapter 3.A.3.a.(2).

The full text of the MOU is available at www.state.gov/s/

l/c8183.htm.

****

2. TECRO provides assurances that, through its designated

representatives, it shall implement ﬁsheries conservation and

management measures and regulate the activities of ﬁshing vessels

registered in the territory it represents on the basis of the 1995

U.N. Fish Stocks Agreement and, upon its entry into force, the

1993 FAO Compliance Agreement.

3. AIT provides assurances that, through its designated

representatives, it will endeavor to assist the authorities of the

territory represented by TECRO to participate equitably in global,

regional and subregional ﬁsheries organizations.

4. The Parties, through their designated representatives, shall

seek to promote sustainable ﬁsheries through the effective opera-

tion of global, regional and subregional ﬁsheries management

organizations and arrangements in which they both participate.

For the purposes of effective cooperation between the Parties,

bilateral consultations may be held prior to annual meetings

798 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

of such global, regional and subregional ﬁsheries management

organizations and arrangements.

5. The Parties, through their designated representatives, shall

continue to cooperate, consistent with the laws and regulations of

the territories they represent, in the implementation of UNGA

Resolution 46/215, and shall also take action against individuals,

corporations and vessels subject to those laws and regulations

that may engage in large-scale high seas driftnet ﬁshing operations

in the North Paciﬁc Ocean.

****

4. Other Conservation Issues

a. Antarctica: Environmental Protocol Annex V

On May 24, 2002, the Government of India deposited with

the Department of State, as depositary, its ratiﬁcation of

annex V on Area Protection and Management to the Protocol

on Environmental Protection to the Antarctic Treaty. Under

the terms of the Protocol, annex V entered into force as of

that date. The Protocol on Environmental Protection to the

Antarctic Treaty, 30 I.L.M. 1455 (1991), together with annexes

I through IV (on environmental impact assessment, con-

servation of Antarctic fauna and ﬂora, waste disposal and

waste management and prevention of marine pollution)

entered into force on January 14, 1998.

Shortly after the conclusion of negotiation of the Protocol

and annexes I–IV, on October 17, 1991, annex V was adopted

at the Sixteenth Meeting of the Antarctic Treaty Consultative

parties, in Bonn. Annex V was transmitted by the United

States to the Senate for advice and consent to ratiﬁcation

with the Protocol and annexes I through IV on February 18,

1992. The report of the Secretary of State submitting the

instruments to the President for transmittal to the Senate

described annex V as set forth below. S. Treaty Doc.

No. 102–22 (1992).

****

Environment and other Transnational Scientiﬁc Issues 799

ANNEX V

AREA PROTECTION AND MANAGEMENT

Annex V is designed to simplify, improve and extend the system

of protected areas that has evolved within the Antarctic Treaty

consultative mechanism. It provides for the designation of two

categories of protected area: Antarctic Specially Protected Areas

and Antarctic Specially Managed Areas.

Any area, including any marine area, may be designated as

an Antarctic Specially Protected Area to protect outstanding

environmental, scientiﬁc, historic, aesthetic or wilderness values,

any combination of those values, or ongoing or planned scientiﬁc

research. Parties are required to seek to include within the system

of Antarctic Specially Protected Areas:

Areas kept inviolate from human interference so that future

comparisons may be possible with localities that have been

affected by human activities;

Representative examples of major terrestrial, including

glacial and aquatic, ecosystems and marine ecosystems;

Areas with important or unusual assemblages of species,

including colonies of breeding native birds or mammals;

The type locality or only known habitat of any species;

Areas of particular interest to ongoing or planned scientiﬁc

research;

Examples of outstanding geological, glaciological or

geomorphological features;

Areas of outstanding aesthetic and wilderness value;

Sites or monuments of recognized historic value; and

Such other areas as may be appropriate to protect the

values of Antarctica enumerated above.

Detailed management plans are required for each Antarctic

Specially Protected Area and entry into such areas is prohibited

except in accordance with a permit issued by an appropriate

authority. Permits shall specify in detail activities authorized, by

whom, where and when; as well as any other conditions imposed

800 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

by the management plan. Specially Protected Areas and Sites of

Special Scientiﬁc Interest designated by past Antarctic Treaty

Consultative Meetings are to be redesignated as Antarctic Specially

Protected Areas.

Any area, including any marine area, where activities are being

conducted, may be designated as an Antarctic Specially Managed

Area to assist in the planning and coordination of activities,

avoid possible conﬂicts, improve cooperation between Parties or

minimize environmental impacts. Such areas may include areas

where activities pose risks of mutual interference or cumulative

environmental impacts and sites or monuments of recognized

historic value. Management plans are required for each Antarctic

Specially Managed Area, though entry into such areas does not

require a permit.

****

Annex V obligates Parties to keep and exchange detailed

information regarding Antarctic Specially Protected Areas,

Antarctic Specially Managed Areas and historic sites and

monuments, including records of permits and site visits; and calls

for Parties to take steps to ensure that all those intending to visit

Antarctica have clear and accurate information about the system

of protected areas.

****

b. U.S.-Russia Agreement on the Conservation and Management

of the Alaska-Chukotka Polar Bear Population

On July 11, 2002, President George W. Bush transmitted

to the Senate for advice and consent to ratiﬁcation the

Agreement between the Government of the United States

of America and the Government of the Russian Feder-

ation on the Conservation and Management of the Alaska-

Chukotka Polar Bear Population, done at Washington

October 16, 2000 (the “U.S.-Russia Agreement.”). Excerpts

below from the letter submitting the treaty to the Presid-

ent by the Secretary of State and the attached article-

by-article analysis describe the purpose of the treaty and its

Environment and other Transnational Scientiﬁc Issues 801

importance to the United States. S. Treaty Doc. No. 107–10

(2002).

DEPARTMENT OF STATE,

Washington, June 5, 2002.

The PRESIDENT,

The White House.

THE PRESIDENT: I have the honor to submit to you, with a view

to its transmittal to the Senate for advice and consent to ratiﬁcation,

the Agreement between the Government of the United States of

America and the Government of the Russian Federation on the

Conservation and Management of the Alaska-Chukotka Polar

Bear Population done at Washington on October 16, 2000 (the

“U.S.-Russia Agreement”).

The U.S.-Russia Agreement is designed to afford protections

to this polar bear population in addition to those provided by the

multilateral Agreement on the Conservation of Polar Bears

done at Oslo, November 15, 1973, (the “1973 Agreement”),

an agreement to which the United States and Russia are parties.

(The other parties are Norway, Canada and Denmark.) The

U.S.-Russia Agreement will establish a common legal, scientiﬁc and

administrative framework for the conservation and management

of the Alaska-Chukotka polar bear population, which is shared

by the United States and the Russian Federation. Uniﬁed and

binding protection is needed to ensure that the taking of polar

bears by native people in Alaska and the Chukotka region and

other activities do not adversely affect this polar bear population.

The 1973 Agreement allows the taking of polar bears for

subsistence purposes by native people, as does our domestic

legislation—the Marine Mammal Protection Act (MMPA)—in

respect to Alaska natives. The U.S.-Russia Agreement advances

the 1973 Agreement in several ways. For example, it provides a

deﬁnition of “sustainable harvest” that will help the United States

and Russia to implement polar bear conservation measures. In

addition, the U.S.-Russia Agreement establishes the “U.S.-Russia

Polar Bear Commission,” which would function as the bilateral

802 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

managing authority to make scientiﬁc determinations, establish

harvest limits and carry out other responsibilities under the terms

of the bilateral agreement. The Agreement would strengthen the

capability of our countries to implement coordinated conservation

measures for our shared polar bear population.

The United States would implement habitat components of

the proposed U.S.-Russia Agreement through existing provisions

of the Marine Mammal Protection Act and other Federal statutes.

Although the U.S.-Russia Agreement is consistent with current

practice, some legislative amendments and new authorities will be

necessary to ensure its implementation. We are working with other

interested federal agencies to identify appropriate legislation that

will be submitted separately to Congress.

The proposed U.S.-Russia Agreement will enter into force

30 days after the date on which the United States and Russia have

exchanged written notiﬁcation through diplomatic channels that

they have completed their respective domestic legal procedures

necessary to bring the U.S.-Russia Agreement into force. The United

States will present the U.S. instrument of ratiﬁcation, but will do

so only after the necessary legislation is in place. Enclosed for the

information of the Senate is an article-by-article analysis of the

U.S.-Russia Agreement.

The Department of Interior concurs in my recommendation

that the U.S.-Russia Agreement be submitted to the Senate for

advice and consent to its ratiﬁcation.

****

Respectfully submitted,

COLIN L. POWELL.

Article-by-Article Analysis

****

Article 2

This article requires that the Parties cooperate with the goal of

conserving the shared polar bear population and its habitat, and in

the regulation of its use for subsistence purposes by native people.

Environment and other Transnational Scientiﬁc Issues 803

Article 3

This article deﬁnes the geographic boundaries of the Agree-

ment, which correspond to the areas within the jurisdictions of

the United States and Russia, respectively, in which the joint

polar bear population can be found. To take into account the

possibility that polar bear migratory patterns may change, the

Agreement allows for modiﬁcation of these geographic boundaries

by mutual agreement of the Parties. It is expected that such

modiﬁcations would be concluded on behalf of the United States

by the Department of State through an exchange of diplomatic

notes.

Article 4

This article requires, inter alia, that the Parties make all efforts

necessary to conserve polar bear habitats. For the United States,

the commitments in Article 4 are already implemented through

existing provisions of the Marine Mammal Protection Act and

other federal statutes.

Article 5

This Article provides that any taking of polar bears from the

Alaska-Chukotka population inconsistent with the terms of the

Agreement or the 1973 Agreement is prohibited. Thus, the Parties

would continue to apply the 1973 Agreement, and any take of

polar bears from the Alaska-Chukotka population must be con-

sistent with both agreements.

Article 6

Paragraph 1 of this article provides for taking of polar bears by

native persons for subsistence purposes, but lists a number of

conditions (e.g., prohibiting the taking of certain females, cuts

and polar bears in dens; prohibiting the use of poisons, traps, or

snares to take polar bears). Paragraph 2 provides for permissible

takings of polar bears for scientiﬁc research and other purposes

804 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

such as rescue and rehabilitation, and sets forth the conditions

under which polar bears may be placed on public display.

Article 7

Paragraph 1 of this Article provides that nothing in the Agreement

is intended to authorize the taking of polar bears for commercial

purposes. However, the article provides further that nothing in

the Agreement limits the ability of native people, consistent with

domestic law, to create, sell, and use traditional articles associated

with native harvest of polar bears. Paragraph 2 provides that the

Parties must undertake, in accordance with domestic law, measures

necessary for the prevention of illegal trade in polar bears, including

their parts and derivatives.

Article 8

Article 8 establishes the U.S.-Russia Polar Bear Commission (the

“Commission”). The Commission is composed of two national

sections, each consisting of two members appointed by the re-

spective Party in order to provide for inclusion in each section of

a representative of its native people in addition to a representative

of the Party. The Article further describes the duties and procedures

of the Commission. Each section will have one vote in the Com-

mission and all decisions or recommendations are made only with

the approval of both sections.

Among other duties, the Commission will promote cooperation

among the Parties and the native people; facilitate scientiﬁc research

on polar bears; establish a scientiﬁc working group to assist it in

its tasks; collect and distribute data; develop quotas for annual

sustainable harvest levels of polar bears; and participate in the

examination of disagreements between native people of Alaska

and Chukotka regarding subsistence use of polar bears.

Article 9

This Article provides that each Party has the right to harvest one-

half of the annual taking limit of polar bears determined by the

Environment and other Transnational Scientiﬁc Issues 805

Commission. It also allows a Party to transfer part of its share of

the animal limit to the other Party with the agreement of the

Commission.

****

B. MEDICAL AND HEALTH ISSUES

1. HIV/AIDS: Global Fund to Fight AIDS,

Tuberculosis and Malaria

On December 13, 2002, the Department of State issued a

fact sheet describing the newly established Global Fund to

Fight AIDS, Tuberculosis and Malaria. As explained in the

excerpts set forth below, the Global Fund is an independent

legal entity, established to provide resources through a new

public-private partnership to combat HIV/AIDS, tuberculosis

and malaria. Funding provided will be in addition to that

available through existing bilateral and multilateral assistance

programs. The United States is represented on the Board of

Directors of the Fund by Secretary of Health and Human

Services Tommy G. Thompson.

The Principles of the Global Fund and other information

are available at www.globalfundatm.org. The fact sheet is

available at www.state.gov/r/pa/prs/ps/2002/15583pf.htm.

The concept of a new international effort to increase coordination

and mobilize additional resources to ﬁght HIV/AIDS, tuberculosis,

and malaria was ﬁrst proposed at the July 2000 G-8 Summit in

Okinawa. On May 11, 2001, President Bush announced a U.S.

pledge of $200 million to support such a global fund, the ﬁrst

pledge by any government. In June 2001, at the urging of United

Nations Secretary-General Annan, Secretary Powell, and many

other national leaders, the UN General Assembly Special Session

on HIV/AIDS unanimously endorsed the concept of a Global Fund,

and by the time of their meeting in Genoa a month later, G-8

leaders had pledged $1.3 billion in support. Pledges now total

806 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

over $2.2 billion. In January 2002, the Global Fund was formed

as a charitable foundation, based in Geneva. The Board held its

ﬁrst meeting in January 2002, and in April 2002 approved the

ﬁrst round of grants.

Purpose

The Fund is intended “to attract, manage, and disburse additional

resources through a new public-private partnership that will

make a sustainable and signiﬁcant contribution to the reduction

of infections, illness and death, thereby mitigating the impact

caused by HIV/AIDS, tuberculosis, and malaria in countries in

need, and contributing to poverty reduction as part of the develop-

ment goals contained in the Millennium Declarations.” The Fund

is intended to complement bilateral and multilateral assistance

programs already underway, without duplicating or replacing

existing funds.

****

Governance

The Global Fund is an independent legal entity, formed under

Swiss Law as a charitable foundation. The Board of Directors acts

as the ultimate decision making body. The 23-member Board

is composed of both voting and non-voting members. The 18

voting members are composed of two groups: nine donors,

including seven governments, a foundation representative, and

a representative of the for-proﬁt private sector; and nine recipi-

ents, including seven governments and two non-governmental

organizations, one from the developing world and one from the

developed world. The ﬁve non-voting members include repre-

sentatives from the World Health Organization, UNAIDS, the

World Bank, a representative for people living with the diseases,

and a Swiss citizen, as required by Swiss law. Secretary of

Health and Human Services Tommy G. Thompson is the U.S.

representative on the Board. Governance procedures will evolve,

and the goal is to have a ﬂexible and innovative management

Environment and other Transnational Scientiﬁc Issues 807

structure. The Board is planning a “Partnership Forum” every

two years to gather all stakeholders, including those not presently

participating on the Board, and advise the Fund, thus providing

additional input and coordinating actions and efforts in the ﬁght

against the three diseases.

The Secretariat, headed by Executive Director, Dr. Richard

Feachem, manages the Fund on a day-to-day basis. A Technical

Review Panel (TRP) is charged with reviewing all proposals to

ensure that they are scientiﬁcally, technically, and developmentally

sound. The TRP is composed of an independent group of 22 experts

in the three diseases, and in the ﬁelds of prevention, clinical care,

health education, and health economics.

****

2. Cloning

On September 23, 2002, Carolyn Willson, Legal Adviser,

U.S. Mission to the United Nations, presented the views

of the United States to the Sixth Committee, Fifty-seventh

UN General Assembly, on agenda item 162, International

Convention Against the Reproductive Cloning of Human

Beings. The U.S. statement supporting a global and com-

prehensive ban against creation of cloned human embryos

for any purpose is set forth below.

The U.S. statement and the February description of the

U.S. position, The Views of the United States on the Science

and Ethical Implications of Human Cloning, are available at

www.state.gov/s/l/c8183.htm.

Last year, the General Assembly established an Ad Hoc Committee

of the Legal Committee to consider the issue of Human Cloning.

The Committee met in February and, after hearing the views of a

panel of scientists and bioethicists, began discussion of the topic.

A proposal was presented for a Convention which would prohibit

the reproductive cloning of human beings. The United States took

the position that a global and comprehensive ban is needed against

808 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

creation of cloned human embryos for any purpose. President

Bush elaborated on this position in addressing the issue in April

2002. The President said, “I believe all human cloning is wrong,

and both forms of cloning ought to be banned. Anything other

than a total ban on human cloning would be unethical. Research

cloning would contradict the most fundamental principle of medical

ethics, that no human life should be exploited or extinguished for

the beneﬁt of another.”

In view of the preliminary discussions of the Ad Hoc

Committee, which indicated a divergence of views on the proposal,

the proponents of the convention to ban human reproductive

cloning have slightly modiﬁed their proposal. They now suggest

“a step-by-step” approach to these complex bioethical issues. First,

there would be a ban on reproductive cloning of human beings.

This could then lead, at a later stage, to “measures concerning

the regulation of other types of cloning by interested States,

including through the elaboration of a separate international

instrument.” They argue that such an approach would make it

quite clear that a Convention against the reproductive cloning

of human beings should not be seen as implicitly authorizing all

types of cloning.

The United States does not agree. A ban that prohibited

only “reproductive” cloning but did not address “therapeutic”

or “experimental” cloning would implicitly authorize the crea-

tion and destruction of human embryos for experimentation.

Furthermore, a ban on reproductive cloning would be impossible

to enforce in an environment that permitted therapeutic cloning

in laboratories. Once cloned embryos were available, it would

be virtually impossible to control what was done with them,

including the implantation of a cloned human embryo and bring-

ing that embryo to term as a new cloned human. Indeed, even in

the face of a ban on reproductive cloning, the scientist could

export the cloned embryos to a jurisdiction where no such ban

existed.

The proponents of a convention to ban human reproductive

cloning have expressed concern that an attempt to achieve a ban

on all types of cloning would undermine efforts to conclude a

Environment and other Transnational Scientiﬁc Issues 809

convention before a cloned human is produced. This view assumes

that a convention could be negotiated and brought into force in a

very short period. Recent conventions produced by the UN Gen-

eral Assembly have taken several years to enter into force. To

ban “reproductive” cloning effectively, all human cloning must he

banned. Under a partial ban that permitted the creation of cloned

embryos for research, human embryos would be widely cloned

in laboratories and assisted-reproduction facilities. Once cloned

embryos were available, it would be virtually impossible to

control what was done with them. Stockpiles of embryonic

clones could be produced, bought and sold without anyone

knowing it. Implantation of cloned embryos would take place

out of sight, and even elaborate and intrusive regulations and

policing would have great difﬁculty detecting or preventing the

initiation of a clonal pregnancy. Once an illicit clonal pregnancy

is begun, it would be virtually impossible to detect it. A ban

only on “reproductive” cloning would therefore be a false ban,

creating the illusion that such cloning had been prohibited.

Furthermore, a completely effective ban would require universal

acceptance to ensure that there were no safe havens for cloning

activities.

It would be shortsighted to ignore the reality of this situation

in the search for a solution through a step-by-step process, a process

that would attempt to use two instruments, two regimes to deal

with different aspects of a single problem, cloning, and which

would take years to conclude. We must thwart this threat to human

dignity through a total ban.

The United States, therefore, continues to support a ban on all

human cloning and urges immediate action by the UN to put such

a ban in place. We cannot agree to start down the road of a step-

by-step process that would prohibit the production of cloned

human beings but not prohibit the production of cloned human

embryos for immediate destruction, an equal affront to human

life and dignity.

In February the U.S. delegation presented a detailed description

of the U.S. position. We would be pleased to provide copies of

that paper to any delegation requesting it.

810 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

C. OTHER TRANSNATIONAL SCIENTIFIC ISSUES

Plant Genetic Resources

On November 1, 2002, Ambassador Tony Hall, U.S. Perman-

ent Representative to the Food and Agriculture Organization

of the United Nations signed the International Treaty on

Plant Genetic Resources for Food and Agriculture in Rome.

The U.S. statement on signing the treaty is set forth below.

On November 1, 2002, the United States signed the International

Treaty on Plant Genetic Resources for Food and Agriculture (the

Treaty) in Rome. In addition to representing the United States’

interest both in becoming party to this important treaty and in

global food security generally, U.S. signature enables the United

States to best protect and represent the vital interests of U.S.

agriculture and biotechnology sectors in the important matters

affected by the Treaty. Prior to signing, the United States conducted

extensive cross-sectoral consultations with a broad spectrum of

key U.S. stakeholders. By signing, the United States signaled its

strong interest in, and support of, the Treaty’s primary goal:

promoting global food security through the conservation and

sustainable use of plant genetic resources for food and agriculture.

The U.S. Department of Agriculture has a long-standing general

policy of providing permitting open access to its own federal plant

genebanks. The Treaty embodies the concept of facilitated access

to plant genetic resources in national and certain international

genebanks.

As a signatory to the Treaty, the United States will actively

participate in the development of a standard material transfer

agreement under the aegis of the Treaty. The beneﬁt-sharing and

intellectual property rights of this material transfer agreement

will likely create a de facto global standard for agreements on

international exchanges of plant genetic resources. The United

States seeks to ensure that this agreement will be simple to

administer and that it will promote, not impede, international

exchanges of plant genetic resources. The decision to proceed

Environment and other Transnational Scientiﬁc Issues 811

with U.S. ratiﬁcation, however, will depend on the satisfactory

resolution of outstanding issues related to beneﬁt-sharing, intel-

lectual property rights and ﬁnancial responsibilities.

Cross References

International Whaling Commission, Chapter 4.B.7.

Treaty on Fisheries Between the Governments of Certain Paciﬁc

Islands States and the Government of the United States of

America, Chapter 4.B.4.

812 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Educational and Cultural Issues 813

813

CHAPTER 14

Educational and Cultural Issues

INTERNATIONAL CULTURAL PROPERTY PROTECTION

During 2002, the United States entered into a memorandum

of understanding with Cyprus, 67 Fed. Reg. 47, 447 (July 19),

and extended for ﬁve years a memorandum of understand-

ing with Guatemala, 67 Fed. Reg. 61,259 (Sept. 30), and

agreements with Mali and Peru, 67 Fed. Reg. 59, 159 (Sept.

20) and 67 Fed. Reg. 38,877 (June 6), respectively, to protect

cultural property in those countries. The instruments were

entered into at the request of the foreign country, pursuant

to the 1970 UNESCO Convention on the Means of Prohibit-

ing and Preventing the Illicit Import, Export and Transfer

of Ownership of Cultural Property (823 U.N.T.S. 231 (1972),

ratiﬁed by the United States in 1983 (“1970 UNESCO

Convention”), as implemented for the United States by the

Convention on Cultural Property Implementation Act, Pub.

L. No. 97–446, 96 Stat. 2329, 19 U.S.C. §§ 2601–2613). These

authorities enable the United States to impose import

restrictions on certain archaeological or ethnological material

when pillage of these materials places the cultural heritage

of another State Party to the Convention in jeopardy. They

also provide the basis for long-term strategies for protecting

cultural heritage and access to the protected material for

cultural, educational, and scientiﬁc purposes.

Further information, including a complete copy of each

of the instruments and the relevant Federal Register notices,

are available at http://exchanges.state.gov/education/culprop/

list.html.

814 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Cyprus

On July 16, 2002, the United States entered into a

memorandum of understanding with the Government of

the Republic of Cyprus (“MOU”) to protect irreplaceable

archaeological objects and materials representing the

Preclassical and Classical periods of Cypriot history. 67 Fed.

Reg. 47, 447 (July 19, 2002). In the case of Cyprus, emergency

restrictions on certain categories of Byzantine ecclesiastical

and ritual ethnological material had been imposed effective

April 12, 1999. Such emergency restrictions do not require

the negotiation of an agreement. Excerpts from the Federal

****

During the past several years, import restrictions have been

imposed on archaeological and ethnological artifacts of a number

of signatory nations [parties to the 1970 UNESCO Convention].

These restrictions have been imposed as a result of requests

for protection received from those nations as well as pursuant

to bilateral agreements between the United States and other

countries. . . .

Import restrictions are now being imposed on certain

archaeological material of Cyprus representing the pre-Classical

and Classical periods of its cultural heritage as the result of a

bilateral [MOU] entered into between the United States and the

Republic of Cyprus. This [MOU] was entered into on July 16,

2002, pursuant to the provisions of 19 U.S.C. 2602. Accordingly,

Sec. 12.104g(a) of the Customs Regulations is being amended

to indicate that restrictions have been imposed pursuant to the

[MOU] between the United States and Cyprus. This document

amends the regulations by imposing import restrictions on certain

archaeological material from Cyprus as described below.

It is noted that emergency import restrictions on Byzantine

Ecclesiastical and Ritual Ethnological Material from Cyprus were

previously imposed and are still in effect. (See T.D. 99–35, published

in the Federal Register (64 FR 17529) on April 12, 1999.) These

Educational and Cultural Issues 815

emergency import restrictions are separate and independent from

the restrictions published in this document.

Material Encompassed in Import Restrictions

In reaching the decision to recommend protection for

the cultural patrimony of Cyprus, the Associate Director for

Educational and Cultural Affairs of the former United States

Information Agency determined that, pursuant to the requirements

of the Act, the cultural patrimony of Cyprus is in jeopardy from

the pillage of archaeological materials which represent its pre-

Classical and Classical heritage. Dating from approximately

the 8th millennium B.C. to approximately 330 A.D., categories

of restricted artifacts include ceramic vessels, sculpture, and

inscriptions; stone vessels, sculpture, architectural elements, seals,

amulets, inscriptions, stelae, and mosaics; metal vessels, stands

sculpture, and personal objects. These materials are of cultural

signiﬁcance because Cypriot culture is among the oldest in the

Mediterranean. While Cypriot culture derives from interactions

with neighboring societies, it is uniquely Cypriotic in character

and represents the history and development of the island about

which important information continues to be found through in

situ archaeological research.

The restrictions imposed in this document apply to objects

from throughout the island of Cyprus.

****

Cross References

Intangible cultural heritage, Chapter 6.D.4.

816 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Private International Law 817

817

CHAPTER 15

Private International Law

A. COMMERCIAL LAW

1. Overview

On May 11, 2002, Harold S. Burman, of the Ofﬁce of

Private International Law in the Ofﬁce of the Legal Adviser,

U.S. Department of State, addressed the ABA Section of

International Law and Practice (“SILP”) at its 2002 spring

meeting. His remarks, excerpted below, provided an overview

of selected current developments in the area of private inter-

national law.

The full text of the speech is available at www.state.gov/

s/l/c8183.htm.

****

Hague Conference on Private International Law:

Decisions on projects at the Hague were made at a recent April 22

meeting . . . includ[ing] the status of the judgments convention,

securities intermediaries convention, international family law, and

Hague conventions on service of process, taking of evidence, and

legalization of documents. . . .

Final action was deferred on the judgments convention, and

a new text with a more narrow scope will be prepared for

consideration in the ﬁrst half of 2003. The core provisions may

include choice of court agreements, defendants forum, counter

claims, branches, trusts and physical injury torts.

818 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

A diplomatic conference on the draft convention on law

applicable to securities intermediaries was authorized for the fall

of 2002, depending on progress made at regional meetings. Open

issues include criteria to “locate” relevant intermediaries in an age

of increasing use of dematerialized securities and accounts that

can be managed from various countries by remote systems.

Secured ﬁnancing and new treaty developments:

Major developments occurred since the last SILP Spring meeting

in three international bodies. First, UNCITRAL [United Nations

Commission on International Trade Law] completed in July 2001

the convention on accounts receivable ﬁnancing, a signiﬁcant step

forward in upgrading commercial ﬁnance standards for most

countries. The UN General Assembly approved and opened the

convention for signature and ratiﬁcation in December 2001. . . .

UNIDROIT [International Institute for the Uniﬁcation of

Private International Law] and ICAO [International Civil Avia-

tion Organization] completed the “Cape Town” convention on

mobile equipment ﬁnance, and the ﬁrst protocol covering aircraft

equipment in November 2001, the ﬁnal text of which has just

been completed in April 2002 after language adjustments and

technical corrections. Stated to be the historic ﬁrst commercial

law convention negotiated in a major developing country (South

Africa), it follows the same fundamentals as the receivables con-

vention, but goes beyond that and has optional provisions on

expedited remedies and insolvency, as well as requiring a registry

system. A Preparatory Commission is meeting this week at ICAO

in Montreal to initiate the ﬁrst international computerized notice

ﬁling system, which will be accessible in the six ofﬁcial UN

languages. . . .

The OAS at its Sixth Specialized Conference on Private

International Law (CIDIP-VI), concluded its meetings in February

2002 by approving an Inter-American model law on secured

ﬁnancing, a development which can set the stage for important

changes in the Americas. The model law also follows the precepts

of modern commercial ﬁnance, taking into account the substantial

differences that exist between Hispanic civil law traditions and

current capital markets practice. An accompanying set of rules on

Private International Law 819

related electronic commerce provisions, prepared through the

National Law Center for Inter-American Free Trade (NLCIFT) at

Tucson, while not adopted due to time, was widely supported by

participating Latin American states and is expected to be separately

circulated for adoption in the near future.

UNCITRAL, following completion of the receivables con-

vention, was authorized by the Commission to initiate work on a

UN model law on secured ﬁnance, which we anticipate may reﬂect

results comparable to that reached at the OAS this February. Con-

sensus on those results, however, will need to be arrived at with

a wider group of countries and regions at the UN, as compared to

the interests reﬂected at CIDIP-Vl of the 34 OAS member states.

The ﬁrst working group meeting on the UN project. following a

colloqium in Vienna in March 2002, will begin May 20 in New

York. . . .

Transportation law:

The OAS at its February 2002 CIDIP-IV meeting adopted a

uniform Inter-American bill of lading for overland transportation

of commercial goods. This process included a comparison of

practices in the Mercosur states and the Nafta states, the latter

itself reﬂecting a wide divergency on some issues. Agreement was

reached on a number of core provisions, although in some cases

alternative provisions were adopted where consolidating existing

practices would not have been appropriate. Precedents in the 1989

OAS Convention on road transport ware also considered. The

Uniform OAS Bill of Lading reﬂects an upgrade based on current

practices, and may be a basis on which other transportation law

standards are also revised. Consideration may be given in the

future to expanding this project to include inter-coastal shipping

or possibly other multimodal issues for the next OAS Specialized

Conference on PIL (CIDIP-VII).

UNCITRAL initiated in April 2002 its long-awaited project

on a new convention on international carriage of goods. Working

jointly with CMI (Comité Maritime Internationale), the convention

would at a minimum cover carriage of goods by sea port-to-port,

and may also cover inland shipments once issues concerning the

scope are further resolved This project can potentially replace with

820 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

a uniform document the current differing international legal regimes

that now may apply to such shipments, and thus materially enhance

the efﬁciency of transportation in trade matters.

Electronic commerce:

UNCITRAL completed in July 2001 a model UN law on electronic

signatures, after a contentious three year project involving the

U.S. and like-minded countries who sought a minimalist, enabling

set of rules which were technology neutral, and the EU and a

number of other states who favored a more regulatory approach,

which reﬂected a particular technology and related legal concepts.

. . . It is hoped that, with appropriate changes, the UN model law

will be used by those states who have not yet adopted legislation,

and who are not inclined to follow the U.S. enabling law approach,

rather than utilizing EU directives or comparable regulatory laws

in some other countries as a model.

UNCITRAL has now begun work on two new treaty projects

on electronic commerce. The ﬁrst is to review existing multilateral,

and possibly regional treaty systems, and propose amending pro-

visions or interpretations, possibly through an omnibus protocol,

that would, between participating countries inter se, amend the

existing texts in order to make them more functional for an age of

computer-based commerce. The second project, a draft convention

on international rules for formation of E-contracts through

computer based systems, was the subject of a working group in

February 2002. While intended to provide rules limited to con-

tract formation only for participating countries inter se, questions

remain whether this goal can be achieved without necessarily

affecting, or possibly calling for consideration of changes to, the

Vienna Sales Convention (CISG). The recent difﬁcult history of

proposed amendments to UCC Article 2 (sales) and the intersection

of electronic commerce may give pause to the feasibility of this

approach, unless the intersection of traditional sales law and elec-

tronic commerce rules is further worked out.

International Franchising:

UNIDROIT completed in March 2002 its Model provisions for

uniform disclosure rules in international franchise arrangements,

Private International Law 821

building on its earlier Guide to international franchise legal issues.

It was agreed that the ﬁnal text would include the caveat that

completion of these rules was not intended to encourage the

adoption of laws in this ﬁeld, but that if deemed necessary, the care-

fully crafted rules would on a uniform basis promote reasonable

disclosure while at the same time remain supportive of existing

practices and the ﬁnancial cost of undertakings that might be

involved. The text is expected to be approved by the UNIDROIT

Governing Council meeting this coming September.*

International Project Finance:

UNCITRAL completed at its Plenary session July 2001 its multi-

year project on a guide on IPF legal issues, and initiated last Sep-

tember an on-going project to reﬁne the principles into legislative

guidance where feasible, starting with the critical selection pro-

cess. Project ﬁnance has become an alternative means to obtain

infrastructure, especially in many developing countries, drawing

on private sector approaches and capital market funding, instead

of direct governmental budgeting and public sector project man-

agement, and has become an important PIL front vis-a-vis the third

world.

Cross-Border Insolvency reform:

An UNCITRAL Working Group has since December 2001

undertaken the drafting of principles for modern commerce sup-

portive bankruptcy. The Group is expected to move onto legislative

guidance, which may include alternative approaches depending

on the policy choices made by any given country. The IMF, World

Bank, ADB and others have supported this work, which builds

on studies by those bodies as well as the UNCITRAL 1997

Model Law on procedural aspects of cross-border insolvency. A

consolidated approach will need to be worked out between this

* Editors’ Note: The Model Law was adopted by UNIDROIT in

September 2002. The Secretary of State’s Advisory Committee on Private

International Law approved it on November 13, 2002. The text of the Model

Franchise Disclosure law is available at www.unidroit.org/english/franchising/

main.htm.

822 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

project and the parallel UNCITRAL project on secured ﬁnance,

especially at the points of intersection between the effort to expand

options for reorganization and reﬁnance, and yet allow sufﬁcient

protection for secured creditors to attract investment, especially in

developing countries.

Cross-border bar association initiatives:

The recent initiative by ABA leadership to explore the feasibility

of law harmonization efforts between national bar associations

was discussed at the ABA 2001 mid-year meeting at San Diego

and at a more expanded program at Chicago in August 2001.

Ongoing initiatives are being considered; it is assumed that

harmonization work will take place through existing Section act-

ivities, which could include some overview functions for SILP.

As one possible project, we have been requested to provide a short

list of completed international PIL texts which might be proposed

as starting points for work between interested bar associations.

2. Secured Transactions: Harmonization and Modernization

Harold S. Burman, of the Ofﬁce of Private International

Law, U.S. Department of State, addressed the 75

Anniversary

Congress of the International Institute for the Uniﬁcation

of Private Law (“UNIDROIT”) in Rome, held September 27–

28, 2002, “Worldwide Harmonisation of Private Law and

Regional Economic Integration”. His presentation, entitled

“Harmonization and Modernization of the Law Governing

Secured Transactions: One Overview,” is set forth below.

The full text of Mr. Burman’s remarks is available at

www.state.gov/s/l/c8183.htm.

. . . [T]he concepts of harmonization, regionalism and universal-

ity have different meanings for some speakers and different implica-

tions in the various areas of international private law (“PIL”) that

are on the agenda of this Congress. My comments are intended to

give an overview of secured transactions law as it has ﬁgured into

Private International Law 823

harmonization work over the last decade, and what that may

mean for the future.

Secured ﬁnance law in recent years has been a hotbed of PIL

activity. Looking backward, it can be seen as reﬂecting major

trends due in part to globalization and in part to mere work

overall in the UNIDROIT ﬁeld, not only at UNIDROIT but at

other international and regional bodies engaged in this activity.

One needs less than a decade to illustrate this. In the mid-1990’s,

the accepted wisdom in the ﬁeld had placed several areas in

the “impossible” list, consigned to a dust bin because of deep

differences in legal traditions, the uses of commercial law, and

legislative and cultural difﬁculties in changing longstanding law.

Secured ﬁnance was near the top of that list.

In modern vernacular, one can fast-forward less than ten years,

and between 2001 and September 2002, the time of our Congress,

two important multilateral treaties (conventions) on secured ﬁnance

were concluded, a progressive regional instrument concluded, a

third draft convention is due to be ﬁnalized later this year. and at

least two more new secured ﬁnance law projects are under way.

These include the groundbreaking 2001 Cape Town Convention

on mobile equipment ﬁnance, shepherded by UNIDROIT over

the years, and its Protocol on aircraft ﬁnance done jointly with

the International Civil Aviation Organization (ICAO); the closely

related 2001 UNCITRAL Convention on accounts receivable

ﬁnance, and the 2002 Organization of American States (OAS)

sponsored Inter-American Model Law on Secured Finance. Before

the ink was dry, new projects in this area of law were underway at

UNIDROIT and UNCITRAL. In December of this year, the Hague

Conference will meet to ﬁnalize its draft convention on securities

intermediaries (which is driven by the exponential growth in the

use of secured interests in stocks, bonds, etc. to support cross-

border collateral). All this amounts to a major shift in this PIL

ﬁeld in a short period of time.

Certainly this was in part driven by what is often called

“globalization”, a term that variously covers cross-border markets,

distribution, ﬁnancing and corporate activities. The advent of

the computer age made access to markets possible for remote

participants; this also made the status of their laws on secured

824 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

ﬁnance a front-line issue for credit risk analysis. Trade agreements,

liberalization of markets, and open borders have all created the

possibility of enhanced trade. The interaction of regional markets

also has been a factor, and during this period substantial change

has come through the European Union, Nafta, Mercosur and

others. Law harmonization has now taken some root in subsaharan

Africa through Ohada and several other bodies.

The other side of this coin is that a signiﬁcant amount of

cross-border commerce doesn’t materialize because even with liber-

alized trade, disparities in certain areas of private law, such as

secured ﬁnance, effectively block or make transactions inefﬁcient,

or fail to provide equivalent access to commercial ﬁnance. Secured

ﬁnance reform has become one of the most effective tools by which

countries can enhance their credit capacity for transacting parties

in their territories, build their infrastructure, and engage in modern

trade and commerce. That said, the path forward is still uncertain.

Secured ﬁnance is as old as pre-Roman commerce, and a fair

amount of knowledge is available as to how polities in different

ages sought to reduce the risk of distant parties both in transfer of

goods and in the transfer of value. Some, though by no means all,

of early credit enhancement systems were offshoots of ﬁxed prop-

erty law concepts, which worked adequately for many centuries.

More recently, harmonization in the last century (UNIDROIT

dates from 1926; some bodies such as the Pan American Union

and the Hague Conference date from the late years of the 19th

Century) emphasized the balancing of provisions of different

major legal systems. This has worked well in our era for more

settled areas of law like sales of goods, which was the process

used for the elaboration of the UN Convention on Contracts for

the International Sale of Goods (“CISG”), and its predecessor

conventions and projects at UNIDROIT.

By the mid-1990’s, however, the more traditional laws on

secured ﬁnancing no longer were necessarily the most economic-

ally productive, and this factor often increases for less developed

legal systems and economies. This in turn led some to look beyond

the established concepts of “harmonization”, i.e. a type of middle

ground between existing law standards, and to focus instead

on economic results-based tests for appropriate commercial law

Private International Law 825

standards. We can now see that traditional harmonization of

existing secured ﬁnance laws, for example, clearly does not work

effectively if the test is the best credit enhancement.

Cross-border commercial ﬁnance in a more global economy

requires some measure of harmonization, of course, but also a

higher level of ex-ante predictability and at the same time lower

risks, in order to bring more credit into a number of markets and

to lower the costs. Commercial ﬁnance laws, unlike many other

areas of private law, can be tested as to credit effect through

neutral capital markets, which assess risks common to raising

capital across borders. This is less necessary for internal market

transactions of some more developed countries, because credit

law and practice, even if restrictive, can adjust within closed systems

and may not need changes to attract outside capital. The converse

is, however, often true for cross-border ﬁnance, and especially

so for lesser credit economies. International “credit maps” reﬂect

the status of laws in place, and their effect is substantial. Without

signiﬁcant changes in existing secured ﬁnance laws, modern capital

markets for many countries may remain out of reach. (I would

note, in passing, that this raises issues at another level as to the

purpose of commercial law, and how that ﬁts into overall societal

and political objectives, but that’s a topic for another day).

Different secured ﬁnance models have been tested in inter-

national credit markets, and some produce greater credit enhance-

ment. UNIDROIT’s Cape Town Convention, UNCITRAL’s

accounts receivables convention, and the OAS model secured

ﬁnance law have all adopted a common path; secured credit based

on priority rights through publicly accessible and transparent

notice ﬁling systems. These are low cost systems, requiring little

information for ﬁling, but economically effective. While proven to

be best able amongst competing systems to lower risk by resting

on transparency and publicity, as I will note later it is not yet clear

that such systems will become commonly used.

One of the trends one might draw from the examples above, is

that each has moved to some extent away from legal concepts

embedded in traditional property law. The Cape Town Convention

embraces modern “asset-based” ﬁnancing and the UNCITRAL

Receivables Convention embraces modern ﬁnance based on

826 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

intangible rights to payment, both of which are grounded as it

were in highly moveable collateral, which requires a shift in the

concept of secured rights.

The latter, for example, allows present “rights” to vest in future

goods not yet in existence, and future payment obligations as

well. It also allows “bulk” ﬁnancing, that is the bundling of

payment rights which become almost fungible and without

individual identiﬁcation, such as might be required in ordinary

property law. The mobile equipment convention in turn provides

for the creation of treaty-based secured rights, not drawn from

property law, which prevail over otherwise valid national rights

if properly ﬁled in a new international registry. These ﬁlings are

neither examined as to adequacy or validated, and thus the registry

operates not as a property type system, but simply places all

ﬁnancing parties on notice of possible superior priorities.

The Hague Conference may seek to go one step further: in

order to determine the law applicable to intermediaries, which has

become very important both for ﬁnancing and systemic risk

concerns, it is likely that conﬂict of laws rules drawn from property-

based concepts of corporate record owners’ rights cannot be

maintained. If applicable law continues to be tied to property

concepts, as through lex res sitae rules, it will become very

problematic, as the evidence of “rights” increasingly moves through

computer systems across borders rapidly, and transfers of interests

to new holders takes place through tiers of modern intermediaries,

i.e. third parties who “hold” these interests and can effectuate

their movement between countries.

That said, we should now also look at the constraints and

possible limits on this modern trend. First, the “jury is still out” as

we say, as to whether a signiﬁcant number of countries will shift

to the more modern asset-based and receivables ﬁnancing, or the

newer concepts of secured rights in securities, already in place in

some jurisdictions. Economic performance alone may not be

sufﬁcient to support change in civil or commercial law in some

countries. While one could seek this type of economic boost by

modernizing secured ﬁnance laws domestically, without embracing

globalization more widely (though it may be difﬁcult to do one

very deeply without the other), the debates on the values of

Private International Law 827

globalization may nevertheless also affect decisions on adoption

of modem ﬁnance laws.

The Cape Town Convention is likely to be widely successful,

and that may in turn facilitate ratiﬁcations of the Receivables

Convention, as well as adoption of the OAS model law and

comparable laws in other regions. However, a follow-on project

at UNCITRAL, which started this year to formulate general

concepts of secured ﬁnance law, has shown that some basic issues

are back on the table, despite many of the same countries having

agreed to the Receivables Finance Convention only a year ago.

This may have been predictable in that, while adopting a signiﬁcant

body of modern commercial law on assignments in the Convention,

the critical priority provisions were all left optional in an annex.

The optional priority systems mirror the spread in existing

major legal systems today. By the end of next year, the direction

in which UNCITRAL’s work may go should become clear.

Another test will be the new UNIDROIT project on

harmonizing secured interests in stocks, bonds, futures, etc. That

project will need to see how far countries are willing to go to

make secured rights work for highly moveable securities, including

computer transfers of data representing “rights”. A new concept

of rights now exists, for example, in the U.S. through the Uniform

Commercial Code Article 8 (which is uniform state law and not

national law in the U.S.), which intentionally departs from older

property law concepts in order to provide rights which can work

predictably in an atmosphere of rapid transfers and increased

ﬂuidity of a number of markets. While some anticipate that the

computer age will necessarily at some point move many countries

away from older laws that inhibit market ﬂuidity, that has not yet

happened widely and cannot safely be predicted.

Missing perhaps from this litany of constraining factors are

the non-legal impacts. The structure of secured ﬁnance has through

history often had a signiﬁcant effect on the types of parties that

most readily can grant credit, the types of businesses that it favors,

the types of property interests that gain preeminence as collat-

eral, etc. Systems which rely essentially on ﬁxed assets as collateral,

which today is the majority of countries, have different lineups of

interests whom that favors, than say those such as the U.S. which

828 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

heavily rely on moveables, both tangible and intangible. The latter

approach frees up large amounts of value as available prime

collateral, estimated in developing countries to be often at least

40 percent of available total value. Adopting the economically

more productive secured ﬁnance systems, however, such as notice

ﬁling, also signiﬁcantly spreads out the potential recipients, bringing

in many more SME’s (small and medium size enterprises) as

well as different types of lending institutions. This also, however,

may change the lineup of key players, and, possibly in a bit of

understatement, is not welcomed everywhere.

Constraints from other legal disciplines may also be more

evidenced in the future. For example, running side-by-side in some

international bodies with secured ﬁnance law projects, is current

work on business insolvency laws (also, by the way, on the

“impossibility” list in the mid-1990’s). Seen now by the World

Bank, the IMF, the ADB and others as a keystone for enhancing

investment but at the same time lessening systemic risk, new

proposals for insolvency law reform have included optional legal

regimes for reﬁnancing and saving business entities where feas-

ible. That, however, requires constraints on enforcement of

pre-commencement secured rights, through stays of action and

other mechanisms. The vision for many of a new international

superhighway for secured rights ﬁnancing may have new trafﬁc

signals in the middle of the road.

Finally, one of the last frontiers for secured ﬁnance laws may

yet turn out to be the most difﬁcult step to achieve at this point

in our new millennium. The recent extension of modem secured

ﬁnance laws to airspace, compatibly with the Chicago Convention

of 1944 and its progeny which established the framework for

international air transportation, works in the Cape Town Con-

vention. UNIDROIT, however, is now seeking to go a few meters

higher, and extend these concepts to outer space.

Outer space law, largely initiated by the UN’s Outer Space

Treaty system in 1967, effectively precludes application of national

law in space. Time will tell whether the many legal minds

UNIDROIT expects to gather next year, plus participants from

the UN’s Committee on the Peaceful Uses of Outer Space

(UNCOPUOS), as well as the International Telecommunications

Private International Law 829

Union (ITU) and others, can create a new treaty system establish-

ing secured interest rights that can adhere to assets in or services

from space, and which can be enforced down below in national

territories, in a manner which a sufﬁcient number of countries are

willing to accept and ratify. To be economically effective, however,

of equal importance to ratiﬁcations is whether the standards

negotiated are competitive with other risk investments in neutral

capital markets. As noted earlier in these remarks, commercial

ﬁnance law is thus testable.

****

3. UNCITRAL Transport Convention

In a speech at Brooklyn Law School’s Center for the Study of

International Business Law, November 19, 2002, Mary Helen

Carlson, of the Ofﬁce of Private International Law, U.S.

Department of State, commented on U.S. involvement in

private international law negotiations. The excerpts below

set forth views on the role of private and public represent-

atives in this area and speciﬁc remarks on the ongoing

negotiations of the UNCITRAL Transport Convention.

The full text of the speech is available at www.state.gov/s/l.

Current drafts of the Transport Convention are available at

www.uncitral.org/en-index.htm.

****

The main international fora for work on private international law

are the Hague Conference on Private International Law, the United

Nations Commission on International Trade Law (UNCITRAL), the

International Institute for the Uniﬁcation of Private International

Law (UNIDROIT) and the Organization of American States. Work

in this ﬁeld generally avoids projects where there are high-level gov-

ernmental policy concerns, and focuses instead on projects where

development of uniform law will solve real problems that have

made particular international transactions difﬁcult and uncertain.

****

830 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

III. What is the USG Approach to Private International Law

Projects?

It’s a uniquely American approach, perhaps described by two

words: participatory and pragmatic.

First, participatory:

The Secretary of State’s Advisory Committee on Private

International Law is the forum by which the State Department,

which is the action ofﬁce for private international law within the

U.S. Government, obtains the requisite expertise and guidance on

both the general direction the U.S. should take in its efforts, and

speciﬁc positions the U.S. should pursue in speciﬁc pending projects.

The Advisory Committee’s membership includes representatives

from all national legal organizations that have an interest in private

international law, including the ABA’s sections of International

Law, Business Law, and Family Law, the National Conference

of Commissioners on Uniform State Laws, the National Associ-

ation of Attorneys General, the Judicial Conference of the U.S.,

the [Marine Maritime Association (“MLA”)] and many others. . . .

For speciﬁc pending projects, we turn to groups of experts who

make up informal study groups, subgroups of the Advisory

Committee. . . .

****

V. UNCITRAL Transport Convention

As many of you know, the U.S. rules on liability for damage or

loss to goods carried by sea are based on the 1924 so-called Hague

Rules, which were incorporated into the U.S. COGSA (Carriage

of Goods by Sea Act). This is a very long time ago. Most of our

trading partners have adopted the 1968 Hague-Visby Rules, and a

few countries use the 1978 Hamburg Rules. It is widely recognized

that the result is a liability regime that is inconsistent and out-of-

date. The U.S. industry has until recently been unable to reach

agreement on key issues for a new COGSA; the U.S. Congress has

been unwilling to proceed with any legislation without support

from all major segments of the industry. Our trading partners

Private International Law 831

likewise have not wished to enter into the development of a new

multilateral convention without some assurance that the U.S. will

become a party.

Just over a year ago, a major step toward breaking this impasse

was taken when the National Industrial Transportation League

[“NITL”] (which represents U.S. exporters and importers) and

the World Shipping Council [“WSC”] (which represents inter-

national liner shipping companies that serve U.S. foreign trade)

announced a compromise agreement on cargo liability reform. As

part of this agreement, NITL and the WSC made a commitment

to support the international effort underway at the [Comité

Maritime Internationale (“CMI”)] and UNCITRAL. The CMI

prepared for UNCITRAL at its request a draft instrument on

transport law. The U.S. MLA participated actively in the CMI

process and much of the MLA-prepared draft which was presented

to the U.S. Congress several years ago but not enacted was included

in the CMI draft. This instrument has been the subject of three

weeks of discussions at UNCITRAL thus far. Two more weeks

are scheduled for the spring of 2003, and another one or two

weeks for the fall of 2003. While the negotiation will not be

concluded by the end of 2003, we should have a good idea by that

time of how some of the major issues of concern to the U.S. will

be handled in the convention.

My ofﬁce has held several public meetings in preparation for

this negotiation. Our next public meeting is scheduled for Dec. 13.

We have reached out to every sector—the shippers, carriers,

intermediaries, underwriters, terminal operators, stevedores, banks,

trucks and railroads. I head the U.S. delegation, which also

currently includes representatives from the Maritime Administra-

tion, the Bureau of Economic Affairs in the State Department, the

MLA, the WSC and NITL, and our academic advisor, Prof Michael

Sturley who was the common-law drafter of the CMI text. If there

is a need for representatives of other sectors of the industry to be

part of the delegation for particular negotiating sessions, they will

be included.

The ﬁrst thing to understand about the UNCITRAL draft is

that it is not limited to updating the liability rules of Hague, Hague-

Visby and Hamburg. It is a comprehensive, ambitious text that

832 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

also covers electronic communication, obligations of the carrier,

liability of the carrier, obligations of the shipper, transport docu-

ments, freight, liens, delivery, right of control, negotiability, rights

of suit, and last but deﬁnitely not least, multimodal liability.

It can be assumed that the ﬁnal text will eliminate the error-

of-navigation defense, and will increase the per package liability

limitations. Beyond that, there are few safe assumptions.

I will mention just three of the most important unresolved

issues:

Whom can you sue under the instrument? The draft instrument

would allow suits against the “performing party” which is deﬁned

as the contracting carrier and certain intermediate parties who

physically handle the goods. This is narrower than the MLA

proposal, but broader than the NITL/WSC proposal which would

prohibit all claims (either under the instrument or otherwise)

for cargo damage except those against the contractual carrier.

Obviously, the issue of who is liable under the instrument is critical,

and interrelated to numerous other issues.

What is the scope of the instrument? Port-to-port, door-to-

door or some other formulation? Every mode of transportation is

in favor of a single legal convention that would govern all legs of

a multimodal journey—so long as that convention incorporates

its version of the rules. And the rules for each mode are very

different. Given the reality of containerized shipments that go from

factory to ultimate customer without ever being unloaded or

unpacked, some type of a multimodal system is very important.

And yet many European countries are parties to mandatory

international rail and truck liability conventions, which they are

not prepared to abandon; and it’s not clear that the U.S. truck and

rail industry, whose support would be needed in order for this

convention to become law in the U.S., would support a multimodal

convention.

Freedom of contract. The draft text would allow parties to

increase, but not decrease the liability of any party covered by the

instrument. The U.S. position is that the instrument should permit

the parties to a true “negotiated” contract to derogate from the

terms of the instrument by express agreement. There was some

support for our proposal, but the critical issue of how to deﬁne

Private International Law 833

the category of contracts that can derogate from the terms of the

convention remains unresolved. The issue of who can opt out of

the instrument is closely related to the issue of who is covered by

the instrument in the ﬁrst place. The current draft would exempt

charter parties completely. The U.S. freedom of contract proposal,

the exact wording of which is not yet ﬁnal, does not propose to

add an exemption for this category of negotiated contracts, but

rather would apply the instrument unless the parties explicitly

opted out of certain of its provisions.

4. Inter-American Specialized Conference on

Private International Law

The Sixth Inter-American Specialized Conference on

Private International Law (“CIDIP”) met in Washington, D.C.,

February 4–8, 2002, convoked by the General Assembly of

the Organization of American States (“OAS”) at its twenty-

sixth regular session in 1996. AG/RES. 1393 (XXVI-O/96).

Model laws were adopted at the 2002 meeting on secured

transactions and bills of lading. A third agenda item, the

conﬂict of law issues related to transboundary pollution, was

not pursued to completion. As reﬂected in the excerpts below

from the ﬁnal act of the meeting, the Model Law on Secured

Transactions and the Inter-American Transport Bill of Lading,

were the product of working committees chaired or co-chaired

by the United States.

The ﬁnal act of the Sixth Inter-American Specialized

Conference on Private International Law is available at

http://www.oas.org/juridico/english/cidip_vi_intro.html.

****

. . . In its ﬁrst plenary session held on February 4, 2002, the

Conference adopted its agenda, unchanged from that proposed

by the Permanent Council and approved by the General Assembly

[AG/RES. 1613 (XXIX-O/99)]:

834 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

I. Standardized commercial documentation for international

transportation, with special reference to the 1989 Inter-

American Convention on Contracts for the International

Carriage of Goods by Road, with the possible incorporation

of an additional protocol on bills of lading.

II. International loan contracts of a private nature, in particular,

the uniformity and harmonization of secured transactions law.

III. Conﬂict of laws on extracontractual liability, with an

emphasis on competency of jurisdiction and applicable law

with respect to civil international liability for transboundary

pollution.

Work on these topics was begun by three working

groups established at the Meeting of Experts convened at OAS

headquarters in Washington D.C., from February 14–18, 2000,

pursuant to the provisions of AG/RES. 1613 (XXIX-O/99) and

CP/RES. 744 (1185/99). Chairs of each of these working groups

were named at the Meeting of Experts, the report on which was

published as REG/CIDIP-VI/doc.6/00 corr. 2.

The U.S. Chair of the working group for Topic I prepared the

draft Inter-American Uniform Through Bill Of Lading For The

International Carriage Of Goods By Road, CIDIP-VI/doc.5/02.

The co-chairs of the working group for Topic II, the U.S. and

Mexico, prepared the draft Model Inter-American Law on Secured

Transactions, CIDIP-VI/doc.4/02. The Chair of the working group

for Topic III, Uruguay, prepared the draft Inter-American

Convention On Applicable Law and Proper International Jurisdic-

tion In Matters Of Civil Liability For Cross-Border Pollution,

CIDIP-VI/doc.8/02.

5. Electronic Commerce

In March 2002 the United States participated in a working

group on electronic commerce of the United Nations

Commission on International Trade Law (“UNCITRAL”). Set

forth below in full are comments by the United States on

Working Paper 94, which is part of the effort to review existing

Private International Law 835

treaties and propose amending provisions or interpretations

in order to make them more functional in computer-based

commerce.

The United States welcomes the opportunity to comment on

WP.94, and supports the conclusion of the Plenary Session that

the next session of the Working Group concentrate on that paper

and the issues therein.

We believe that a selective examination of existing conven-

tions will provide an understanding of the issues that can be dealt

with successfully today. We agree with those that counsel that

the form of any legal texts emanating from WP.94 does not have

to be resolved at this stage. In order to focus our examination,

our analysis draws on the requisites for some type of “omnibus

protocol”, which can provide either new provisions or agreed

interpretations, applicable possibly to each existing instrument in

a separate chapter, and which can be binding only as between

states party inter se to each chapter selected.

We also concur with the views of others both at the Plenary

and in other fora that, as to the current draft text on formation of

contract, more time is needed to review the intersection between

electronic commerce and sales and contract law generally, as well

as the effect on the Vienna Sales Convention. It has been suggested

that a future treaty on formation might be folded into a protocol

based on WP.94.

As to work based on WP.94, while its list of conventions

would appear daunting, we would suggest that the upcoming

Working Group might focus on the conventions set out in the ﬁrst

section of WP.94, which were formulated by UNCITRAL and

thus clearly within the Commission’s ambit. Those conventions

raise a number of issues that merit careful examination, and if

substantial progress can be made on those during the next two

Working Group sessions, we will have achieved quite a lot. At

that point, the Working Group might then turn to conventions

of other broad membership bodies, who have indicated an interest

in having our Commission undertake such a task. Following

that, regional texts could be selectively taken up,

assuming an

836 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

appropriate balance between the regions as to the origin of the

instruments.

We would thus suggest that the ﬁrst task be to examine the

UNCITRAL Conventions on Limitations, Sales of Goods, Negoti-

able Instruments (“Bills and Notes”), and Guarantees as to the

compatibility of their provisions with emerging practices in elec-

tronic commerce. The Convention on Transport Terminals might

also be examined in some manner as a joint effort with the new

Working Group on carriage of goods. An initial examination of

those conventions could illustrate the upgrades for electronic com-

merce that can be made, as well highlight the differences that may

be necessary between them even as to the same e-com-related terms.

Initially, for example, it was considered that adopting the

UNCITRAL Model law deﬁnitions and treatment of terms such as

“writing” could sufﬁce. Further exploration, however, has made

clear that each convention’s provisions must be seen through the

litmus of the commercial practices for that particular area of

commerce. The term “writing” for example as set out in the Model

law may, upon examination, work appropriately for the Sales

Convention. It is possible, however, that it cannot be so applied to

negotiable instruments as now drafted. The viability of and possible

market for electronic negotiable instruments, including delivery

and presentment, as well as the appropriate level of defenses for

protected holders of e-instruments, is still under consideration

within the banking community.

Another aspect of negotiability under some rules is uniqueness,

a term implicated by the Model Law’s provision on “original”.

While manageable today in different ways through technology, as

yet no well-developed set of commercial deployment has emerged,

let alone accepted standard usages. Other examples would include

the term “delivery”. That term probably can be restated or inter-

preted so as to function well in the Sales Convention. If, however,

it is extended beyond delivery of tangible goods, or documentation

in support thereof, and into the arena of intangible or virtual goods,

it may prove to be difﬁcult at this stage to achieve any consensus

based on practices in different commercial sectors.

These illustrations should not discourage, but encourage us to

go forward, but with a realistic approach.

Private International Law 837

Consideration might also be given to a chapter setting out

provisions of the 1996 UNCITRAL Model Law, and allowing

states to agree to apply those rules inter se. Given that eight or

more years is likely to have elapsed between that Model law and

completion of a new e-com protocol, ﬂexibility might have to be

built in so as to reﬂect developments over that time.

Finally, we comment on the Convention on Transit of Goods

for Trade with Land-locked States, because it is also included in

the ﬁrst group of Conventions in WP.94. The Secretariat has

correctly pointed out that such conventions are essentially public

law in focus, with few commercial or other private law aspects.

That said, the Working Group at a later time may want to consider

whether some of those may beneﬁt from draft provisions which

would support use of electronic data to facilitate their objectives,

and which could be provided as a resource to the originating

international bodies, subject, as above, to an examination of the

practices involved in each area covered by those treaty systems.

6. Enforcement of Foreign Tax Claims in U. S. Courts

On November 4, 2002, the U.S. Supreme Court denied a

petition for a writ of certiorari in Attorney General of Canada

v. R.J. Reynolds Tobacco Holdings, Inc., 123 S.Ct. 513 (Mem.)

(2002). The suit, brought by the Attorney General of

Canada in the Northern District of New York, alleged that

named U.S. and Canadian tobacco companies had violated

the Racketeer Inﬂuenced and Corrupt Organizations Act,

(“RICO”), 18 U.S.C. § 1961–1968, by engaging in a scheme

to smuggle cigarettes across the U.S.-Canada border in order

to avoid the payment of Canadian taxes. The district court

had dismissed the complaint, holding that Canada’s lost

revenue claims were barred by the “revenue rule,” a common-

law doctrine under which a U.S. court will not enforce a

foreign country’s tax claims. The court also found that a

government’s claim for damages based on increased law

enforcement and related costs does not satisfy RICO’s

requirement that the plaintiff suffer an injury to its commercial

838 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

interests and that RICO does not provide for the disgorge-

ment and other equitable relief requested by Canada. Attorney

General of Canada v. RJ Reynolds Tobacco Holdings, Inc., 103

F. Supp. 2d 134 (N.D.N.Y. 2000). The court of appeals

afﬁrmed. 268 F.3d 103 (2d Cir. 2001).

In October the United States had ﬁled a brief as amicus

curiae opposing plaintiffs’ petition to the Supreme Court for

a writ of certiorari. The U.S. brief argued, among other things,

that certiorari was inappropriate because there was no

disagreement among the circuits, since no other U.S. circuit

court had reached the issues. The excerpts below from the

U.S. brief provide a summary of the court of appeals decision,

including the importance of the executive branch decision

to limit cooperation in tax enforcement matters through a

bilateral tax treaty with Canada in the Revised Protocol

Amending the Convention With Respect to Taxes on Income

and on Capital of September 26, 1980, Mar. 17, 1995, U.S.-

Canada, art. 15, S. Treaty Doc. No. 104–4 (entered into force

Nov. 9, 1995) (“1995 Tax Protocol”). Also included are

excerpts from the U.S. government’s discussion of the

balance between civil and criminal remedies in combating

international smuggling. Cross-references to other ﬁlings in

the case have been deleted.

The brief is available at www.usdoj.gov/osg/briefs/2002/

2pet/6invit/2001-1317.pet.ami.inv.html.

****

The court [of appeals] explained that the “revenue rule is a

longstanding common law doctrine providing that courts of one

sovereign will not enforce ﬁnal tax judgments or unadjudicated

tax claims of other sovereigns,” and is justiﬁed by “respect for

sovereignty, concern for judicial role and competence, and

separation of powers.” . . . In particular, “[w]hen a foreign nation

appears as a plaintiff in our courts seeking enforcement of its

revenue laws, the judiciary risks being drawn into issues and

disputes of foreign relations policy that are assigned to-and better

handled by-the political branches of government.”. . .

Private International Law 839

The court of appeals also noted that the United States has

entered into treaties with foreign governments that have carefully

limited the circumstances under which foreign governments may

invoke the assistance of United States courts to enforce foreign

tax liability. Against that background, the court of appeals ex-

plained, “courts must be wary of intruding in a way that under-

mines carefully conceived and negotiated policy choices.”. . . . The

court of appeals found it particularly signiﬁcant that a treaty

between the United States and Canada bars assistance for claims

against citizens of the host country, permits each party to determine

whether a particular tax liability should be enforced, and requires

the party requesting assistance to certify that the revenue claim

has been ﬁnally determined. . . . Because the [1995 Tax Protocol]

“speciﬁcally exclude[s] the type of assistance Canada seeks in this

case,” the court concluded, permitting petitioner’s claim to go

forward would “ignor[e] and undermin[e] the treaty negotiation

process and the clearly expressed views of the political branches

of the United States.”

. . . The court of appeals rejected petitioner’s contention that

the revenue rule is inapplicable because petitioner ﬁled suit under

RICO, and not under Canadian tax law. The court noted that

under established principles of statutory construction, federal

statutes are interpreted to preserve well-established common

law rules except when a statutory purpose to the contrary is

evident. . . . Applying that principle, the court found “no language

in RICO or in its legislative history that demonstrates any intent

by Congress to abrogate the revenue rule.”. . . . The court also

rejected petitioner’s characterization of its claim as one arising

“solely” under United States law, concluding that “[o]n the con-

trary, Canada seeks to use the United States law to enforce, both

directly and indirectly, its tax laws.”. . . . The court reasoned

that because petitioner seeks through its RICO claim to “have a

United States court require [respondents] to reimburse Canada for

its unpaid taxes, plus a signiﬁcant penalty due to RICO’s treble

damages provision, * * * Canada’s object is clearly to recover

allegedly unpaid taxes.”. . . . The court viewed petitioner’s

claim for law enforcement costs as “an indirect attempt to have a

United States court enforce Canadian revenue laws,” ibid., because

840 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

“[t]he primary purpose identiﬁed by Canada for using its police

forces to stop smuggling was to enforce its customs and excise

taxes.”. . . .

The court of appeals distinguished prior circuit precedent

holding that the revenue rule does not apply to criminal pro-

secutions by the United States of schemes to defraud a foreign

nation of taxes. . . . The court explained that because such criminal

prosecutions are brought to serve the interest of the United States,

and are subject to Executive Branch oversight, “the foreign relations

interests of the United States may be accommodated throughout

the litigation.” . . . “In contrast,” the court observed, “a civil RICO

case brought to recover tax revenues by a foreign sovereign to

further its own interests, may be, but is not necessarily, consistent

with the policies and interests of the United States.” . . .

****

Petitioner contends that review is warranted in this case, even

absent [a conﬂict among U.S. circuit courts of appeals], because

the court of appeals’ decision undermines efforts to combat

international smuggling and implicates the rights of a foreign

sovereign. Collaboration between the United States and Canada

to deter and punish such smuggling is unquestionably an important

objective. But the court of appeals expressly reafﬁrmed its holdings

in prior cases that the revenue rule does not bar a criminal

prosecution by the United States of conduct that is designed to

defraud a foreign country of tax revenue. . . . (reafﬁrming United

States v. Trapilo, 130 F.3d 547, 549 (2d Cir. 1997), cert. denied,

525 U.S. 812 (1998); United States v. Pierce, 224 F.3d 158 (2d

Cir. 2000)). Such prosecutions do not implicate the revenue

rule because that rule applies only when the plaintiff is a foreign

government or someone acting on its behalf, and the plaintiff is

seeking to vindicate a foreign government’s interest in collecting

taxes. See Re Reid, [1970] 17 D.L.R. (3d) 199, 205 (B.C. Ct.

App.) (noting that in all the cases where the revenue rule had been

invoked “the foreign State was * * * the plaintiff, the claimant or

the instigator of the proceedings”); Peter Buchanan Ltd., [1955]

A.C. at 527 (critical fact was “that right is being enforced at the

instigation of a foreign authority”).

Private International Law 841

The distinction between a criminal prosecution brought by

the United States and a civil action for the recovery of tax revenue

brought by a foreign sovereign is critical, and it precisely aligns

with the policies underlying the revenue rule. As the court of

appeals explained, criminal prosecutions vindicate the interests of

the United States, and they are subject to Executive Branch control.

In contrast, a foreign sovereign brings a civil RICO action to

further its own interest in collecting taxes, and that interest is not

in all circumstances necessarily consistent with the interests of the

United States.

Because the United States retains authority to prosecute

international smugglers, the court of appeals’ decision leaves intact

a powerful means to deter and punish such conduct. At the same

time, it properly reserves the decision whether to address, in a

judicial forum, schemes involving foreign tax laws in the hands of

the Executive Branch of our own government. Canada, for its

part, has means to vindicate its interest in attacking international

smuggling operations by ﬁling suit to enforce its laws in Canadian

courts and by requesting cooperation from the United States under

mutual assistance treaties. A decision to authorize further judicial

steps, such as treble damages actions against United States citizens,

should await a clearer statement in a treaty or in legislation. The

correct application of the revenue rule in this case does not call

for this Court’s intervention.

B. FAMILY LAW

International Recovery of Child Support and Other Forms of

Family Maintenance

a. Reciprocating countries for enforcement of family

support obligations

During 2002 two countries (the Netherlands and Norway)

and three Canadian provinces (Alberta, Newfoundland/

Labrador, and Ontario) were added to the list of countries

and provinces designated as “foreign reciprocating countries”

for the purpose of the enforcement of family support

842 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

obligations. 67 Fed. Reg. 71,605 (Dec. 2, 2002). Pursuant to

42 U.S.C. § 659A, the Secretary of State, with the concurrence

of the Secretary of Health and Human Services, is authorized

to declare foreign countries or their political subdivisions to

be reciprocating countries for the purpose of the enforcement

of family support obligations if the country has established

or has undertaken to establish procedures for the estab-

lishment and enforcement of duties of support for residents

of the United States. The procedures must be in substantial

conformity with the standards set forth in the statute. See

discussion in Digest 2001 at 49–51.

b. Hague Conference negotiation of new child

support convention

The United States provided written responses to a ques-

tionnaire from the Hague Conference on Private International

Law concerning a new global instrument on the interna-

tional recovery of child support and other forms of family

maintenance. The questionnaire was divided into three parts.

Part I elicited information concerning practice under certain

existing international instruments, including the New York

Convention on the Recovery Abroad of Maintenance, June

20, 1956; the Hague Conventions on the Recognition and

Enforcement of Decisions Relating to Maintenance Obliga-

tions, October 24, 1956 and October 2, 1973; and the Hague

Conventions on the Law Applicable to Maintenance Obliga-

tions, October 24, 1956 and October 2, 1973. The United States

is not a party to any of these conventions. Nevertheless, its

response provided information on U.S. practice in relevant

areas and answered speciﬁc questions on U.S. reluctance

to become a party to the conventions. Part II requested

information concerning national systems of maintenance

obligations in respect of children and other family members.

The U.S. response included extensive information on U.S.

procedures in these areas. The excerpts below set forth the

views of the United States on part III of the questionnaire,

Private International Law 843

concerning the elements to be included in a new instrument

in this area. The negotiation of the new instrument will

begin with the May 5–16, 2003 Hague Conference Special

Commission on the International Recovery of Child Support

and Other Forms of Family Maintenance.

The full text of the U.S. response is available on the Hague

Conference website at www.hcch.net/e/workprog/maint.html.

****

PART III: QUESTIONS CONCERNING THE ELEMENTS

TO BE INCLUDED IN THE NEW INSTRUMENT

31. Please list any shortcomings in the current processes for

the obtaining or recovery abroad of child support or other

forms of family maintenance by persons resident in your

country which might be improved or remedied in the new

instrument

The following are issues (not necessarily in order of importance)

that we hope the new instrument will address:

a. Multiple decisions: Difﬁculties arise when the Requested

State varies a decision of the Requesting State at the request of

the debtor (usually by reducing the payment amount or abolishing

arrears) without requiring the debtor to ﬁrst seek variation in the

Requesting State. In such cases, the Requesting State’s original

decision continues to be the controlling decision in that State,

which results in two conﬂicting decisions. The new instrument

should develop clear rules on variance, for both prospective and

retroactive payments.

b. Assistance for debtors in variance cases: In the United States,

the state child support enforcement agencies provide assistance

to debtors as well as creditors. Some countries do not provide

administrative assistance to debtors who have encountered sub-

stantial changes in their ﬁnancial circumstances and who seek

variation of a child support decision. Therefore, debtors often

seek variation sua sponte, or invest valuable resources to hire

844 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

private counsel to get decisions of the Requesting State varied in

the Requested State. If the Requested State assisted debtors in

gathering information for a variation request and transmitting it

to the Requesting State, this would go a long way toward resolving

the variation problem discussed above.

c. The “black hole” syndrome: Requesting State requests simply

disappear once they have been received by the Requested State,

as if they have been swallowed up by a “black hole.” Nothing

happens, and months or years go by with no payments being

made to the applicant in the Requesting State. There are many

reasons for this: child support workers in the Requested State do

not handle many international cases, and are unsure of what to do

with them; the incoming international request looks different—it

is not in the same form as domestic cases; and needed information

is missing and the process to get it from the Requesting State is

confusing and time-consuming. An important way to address this

problem is for the instrument to provide for a strong Central

Authority, for effective cooperation among Central Authorities,

and for monitoring how the new instrument is being implemented.

Another important part of the solution to this particular problem

is the development of comprehensive, uniform forms to be used in

providing information in international cases. The instrument needs

to recognize the importance of uniform forms, without establishing

rigid requirements that will be difﬁcult to adjust. The problems

with getting necessary case information discussed in this paragraph

exist with incoming cases as well. For further discussion, please

see our responses to question 32.

d. Cost of Services: The U.S. state child support enforcement

agencies provide legal, administrative, technical and other services

(including paternity testing) at no cost to a resident of a foreign

reciprocating country. In some countries, foreign applicants must

pay for some of these services. The greater the cost to the resident

of the Requesting Party of pursuing a child support action in a

foreign country, the less effective the instrument will be.

e. Establishment of Paternity and Maintenance Decisions: The

vast majority of requests from U.S. states to foreign countries

are for the recognition and enforcement of a U.S. decision, i.e.,

paternity has been established and a decision entered in a U.S.

Private International Law 845

tribunal. But occasionally a U.S. state will ask a foreign country to

establish paternity and enter an initial child support decision. Some

states are not able to do either of these things, leaving the U.S.

applicant faced with having to go to the foreign country, hire

private counsel, and initiate litigation there.

f. Limited Service Requests: In some cases, the Requesting State

can exercise jurisdiction over a debtor residing in the Requested

State, and, therefore, may enter its own child support decision. In

those cases, it would be helpful if the Requested State would pro-

vide limited services, such as collection of DNA samples, location

of persons or assets, or assistance with service of process, to the

Requesting State, instead of establishing a foreign decision. The

instrument should provide for such limited service requests.

g. Translation expenses: The Requesting State is usually

required to submit all documentation in the language of the

Requested State. Court or administrative decisions dealing

with maintenance often address many other subjects as well

(e.g., custody, access or divorce). In addition, even the portion of

the decision that deals with maintenance may contain a lengthy

recitation of background facts, income, and expenses. All of this

information results in expensive and often unnecessary translation

costs. The negotiators of the new instrument should consider

how to reduce these unnecessary costs. Perhaps the instrument

could provide that, so long as a certiﬁed copy of the entire original

decision in its original language is provided, only the maintenance

portion of a decision needs to be translated, or that a translated

abstract is sufﬁcient.

32. Please list any shortcomings in the current processes by

which a foreign applicant seeks to obtain or recover child

support or other forms of family maintenance from a person

resident in your jurisdiction which might be improved or

remedied in the new instrument

Many of the following problems affect outgoing as well as

incoming cases.

a. Electronic Communication of Case Information: There

are serious problems with getting and updating all needed case

846 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

information in a low-cost, efﬁcient, and timely manner. Case in-

formation correspondence by surface or air mail is time-consuming,

expensive, and difﬁcult to automate. We need to consider how the

new instrument can take advantage of developments in electronic

communication. Perhaps the instrument could provide that most

information could be transmitted electronically, and only a few

key documents must be transmitted by surface or air mail.

Informal case update information, for example, should certainly

be acceptable when transmitted electronically. The negotiators

should also consider which of the ofﬁcial documentation required

to process a request (completed forms, petitions, testimony, deci-

sions, orders and other ofﬁcial court or administrative documents;

payment records; birth and marriage certiﬁcates; photographs; etc.)

might be transmitted electronically and used in ofﬁcial proceedings

in the Requested State.

b. Electronic funds transfer: The problems related to sending

case correspondence by surface or airmail of course also apply to

collections and disbursements. Currency conversion costs diminish

the collection amount because banks charge signiﬁcant fees and

convert at less-than-favorable exchange rates when dealing with

relatively small, non-commercial amounts of foreign currency. The

negotiators should consider how the instrument can facilitate

the use of technology (electronic funds transfer/electronic data

interchange or direct deposit to banking correspondents) so that

payments can be processed at minimal cost and favorable exchange

rates.

It would be useful for the negotiators or the Permanent Bureau

to study how other instruments/transactions handle electronic

communications and electronic funds transfer.

c. Updated point-of-contact information: Often much time

is wasted simply ﬁnding out who is the person in the foreign

country currently responsible for a particular case. There should

be a provision in the instrument to encourage/require routine,

timely updates of this information for every case.

d. Timely responses to requests for information: There should

be some provision in the instrument to encourage/require responses

to inquiries within a speciﬁed period of time.

Private International Law 847

33. Bearing in mind that the new instrument is to be

“comprehensive in nature, building on the best features

of the existing Conventions”, and that the precise structure

of the new instrument has yet to be determined, please

indicate any preliminary views you have on the key

elements to be addressed in the new instrument. In doing

so, you may ﬁnd it helpful to use the following list and to

indicate what degree of importance, if any, you attach to

each of the items listed

Preliminarily, the United States notes that the above reference

to existing Conventions must be read in conjunction with the

additional recommendation that the new instrument “be structured

to combine the maximum efﬁciency with the ﬂexibility necessary

to achieve widespread ratiﬁcation.” While it may make sense for

the new instrument to incorporate and build on the features of

existing Conventions that have worked well in practice, features

that have proved ineffective, inefﬁcient or that have prevented

widespread ratiﬁcation should be discarded and replaced with new

approaches.

a. provisions concerning administrative co-operation;

This is an essential feature. We have learned from our bilateral

child support efforts and from our experience in other public and

private international law efforts, that the adoption by a large

number of countries of a treaty that sets forth a comprehensive set

of standards and obligations for the establishment and enforcement

of maintenance is only the ﬁrst step. The treaty is only a success if

it works in practice. As stated previously, the Conference should

focus on the goal of getting child support payments to needy

children in international cases.

This instrument must ensure that parties establish strong,

effective Central Authorities and other related authorities at every

step in the process. Parties should provide assistance to each other

(including limited service requests and judicial assistance, where

appropriate) and to debtors and creditors; they should provide

848 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

points of contact in every case who can respond to inquiries in a

timely manner. Negotiators should consider whether the instrument

should provide mechanisms for training to help countries carry

out their obligations, and for monitoring parties’ implementation

efforts.

b. provisions for the recognition and enforcement of

foreign decisions;

This is a key element of the new instrument. The recognition and

enforcement of foreign decisions eliminates the necessity of re-

litigating the same issues between the same parties in a maintenance

case and the creation of conﬂicting, multiple decisions. Therefore,

the United States supports an instrument that will provide for the

recognition and enforcement of decisions from the Requesting State

to the greatest extent possible.

The United States is convinced that a ﬂexible, practical

approach to recognition and enforcement is the only one that will

work in the new instrument. Rather than imposing direct or indirect

jurisdictional rules in the instrument, the instrument should pro-

vide that the Requested State must recognize and enforce the

Requesting Party’s decision if that decision was made under factual

circumstances meeting the jurisdictional/due process standards

of the Requested State. Adoption of this approach in the new

instrument would avoid a prolonged and futile effort to develop

uniform jurisdictional standards. Experience has shown that this

is difﬁcult if not impossible to achieve: a country will not join an

instrument that is incompatible with its jurisdictional standards.

Thankfully, it is not necessary to tackle the issue of jurisdiction in

order to achieve our goal, which is an instrument that will get

child support to needy children in a predictable, consistent, efﬁcient,

low-cost and timely manner.

Most child support decisions from a Requesting Party will

meet the jurisdictional standards of the Requested Party. Even

if the jurisdictional basis cited by the Requesting Party is not

acceptable to the Requested Party, the facts of the case will

probably provide another jurisdictional basis which would be

acceptable to that Party. In the few cases where the Requested

Private International Law 849

Party is unable to recognize the decision of the Requesting Party,

the instrument should provide that the Requested Party will take

steps to obtain a new decision under its own law.

Variation of orders is closely related to the issue of recogni-

tion and enforcement of orders. There are wide differences among

the countries of the world in the determination and calculation

of the level of maintenance payments. The new instrument will

not succeed if it permits the Requested Party routinely to modify

the Requesting Party’s decisions, using the Requested Party’s

guidelines. On the other hand, maintenance decisions need to be

modiﬁed from time to time, and the instrument must provide for

this.

The instrument should do everything possible to facilitate and

encourage variation by the Requesting State (i.e., the variation

should be done by the party that entered the initial decision).

For example, the instrument could require the Requested State to

provide administrative assistance to debtors, so that it would

be easier for the debtor to transmit a variation request to the

Requesting State; it could require Requesting States to have pro-

cedures for the prompt review and adjustment of decisions on the

petition of either resident or non-resident creditors or debtors;

and the instrument should provide that the physical presence

of the creditor or the debtor is not required in maintenance

proceedings, including variation proceedings.

The instrument should limit the circumstances under which

the Requested State is permitted to vary an order (e.g., when no

interested party any longer has a connection to the Requesting

State, or when the creditor has consented to the jurisdiction of the

Requested State).

The instrument should consider the treatment of arrearages in

connection with variation of orders. A Requested State should not

be permitted to reduce or eliminate arrears, even if it agrees to

enforce the Requesting State’s decision with respect to prospective

amounts. Additionally, if the Requested State cannot recognize

and enforce the Requesting State’s order, and must establish a

new order, the new order should include payments not only for

periods after entry of the new order but also for accrued arrearages.

The failure of a foreign state to recognize arrearages accrued in

850 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

the United States creates problems with U.S. decisions because,

under U.S. law, arrears that have accrued under a court order are

considered “ﬁnal judgments” and cannot be retroactively modiﬁed

by a court.

Finally, when a decision is modiﬁed by the Requested State,

as permitted under the instrument, the instrument should clarify

the effect on the initial order. Ideally, there should be only one

controlling order at any one time.

c. applicable law principles;

The law of the forum should apply, including its choice of law

provisions. Any other option would be unworkable, given that

this is intended to be a worldwide, and not just a regional,

instrument. Insisting that lawyers and litigants analyze and argue

foreign law, and that courts make decisions based on foreign law,

would be an enormous burden, could be so costly as to effectively

eliminate a litigant’s rights, and would probably result in decisions

based on incorrect application of the foreign law.

d. uniform direct rules of jurisdiction applying to the

determination and modiﬁcation of decisions in respect

of maintenance;

The United States strongly believes that the new instrument

should avoid addressing direct or indirect rules of jurisdiction for

the reasons explained in our answer in paragraph 33b. It is

not necessary to establish jurisdictional rules in order to achieve

the practical, concrete goals of the convention; discussion of

jurisdiction will use up enormous amounts of scarce time and

will distract the negotiators from the core issues which the

convention must address if it is to be of use, such as administrative

cooperation and enforcement of decisions; and experience has

shown that any attempt to establish direct or indirect rules of

jurisdiction will almost certainly fail and will jeopardize the wide

acceptance of the instrument, which is a key to the success of the

entire project.

Private International Law 851

e. provisions specifying the assistance to be provided to an

applicant from another Contracting Party;

It would be useful to list the types of assistance that are

contemplated by the instrument, so as to avoid the problem

that exists under current instruments where different countries

have different understandings of what sort of assistance is

required. The instrument should explicitly state which types of

assistance must be provided by all parties, and which are per-

missive. Some of the types of assistance that should be addressed

are:

— Recovery of maintenance, either by enforcement of the

Requesting State’s decision or by the establishment of a new

decision

— Collection and distribution of payments

— Assistance to the debtor by the Requested State in gathering

new information and transmitting it to the Requesting State

for review and possible variation of the Requesting State’s

decision

— Timely review by the Requesting State of requests for variation

from the debtor

— Location of persons and assets

— Assistance with service of process

— Help with obtaining DNA samples

— Establishment of parentage

f. provisions concerning legal aid and assistance to be

provided to an applicant from another Contracting Party;

Through its bilateral efforts, the United States has learned that

“legal aid,” “administrative aid,” and “technical assistance” can

all mean different things in different countries. First and foremost,

the new instrument must reﬂect a common and explicit under-

standing of the meaning of these terms. For example, one country

may say that it cannot provide free legal assistance; however, it

may be that petitioners in that country rarely need legal assistance,

852 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

because the administrative assistance freely provided by the relevant

agency is so extensive. Once the terminology is clariﬁed, there will

still be differences in the nature and extent of no-cost assistance

that countries provide, but it may not be as great as one might

suspect.

The United States strongly believes that the provision of

no-cost services not only results in more money reaching more

needy children but also saves the government and the taxpayer

money, as fewer families need to rely on cash assistance from the

government. Thus, the United States has made a policy decision

that state child support enforcement agencies should provide all

services related to the recovery of maintenance free of charge to

foreign reciprocating countries and their residents. Therefore, we

urge that the instrument require a Requested State to provide

no-cost services to residents of a Requesting State.

g. provisions concerning co-operation in the establishment of

paternity where necessary for child support enforcement;

Provisions concerning paternity establishment are deﬁnitely

important. The United States is aware that a number of countries

do not currently provide this service for foreign applicants. The

new instrument should seek to avoid situations where no country

will exercise jurisdiction to establish a child support decision, as

illustrated in the following hypothetical. Suppose that a mother

and child reside in Texas and the father resides in a foreign country.

The father has never been in the United States, and has taken no

action, such as encouraging the mother to go to the United States

or sending support to the mother in the United States, that would

give Texas personal jurisdiction over the father under U.S. law.

(The fact that Texas is the residence of the mother and child is

not, in and of itself, sufﬁcient under U.S. law to confer jurisdiction

over the father in a Texas court). Because Texas cannot establish

paternity or enter a child support decision, the mother petitions

the foreign country where the father resides. In our experience,

the foreign country may refuse the mother’s request because it

considers Texas the appropriate forum. This is because the laws

of many foreign countries accept the residence of the mother and

Private International Law 853

child in a country as a sufﬁcient basis for its tribunals to exercise

jurisdiction over the father. Thus, the mother is left with no remedy.

Further, in its bilateral discussions, the United States has learned

that the methodology and costs of paternity establishment vary

widely from country to country. It would be useful during the

negotiation process to arrange for a workshop on this issue, with

presentations by technical experts, among others.

h. provisions concerning co-operation in the international

transfer of funds at low cost;

The negotiators must address the importance of utilizing the

most expedient, cost-effective technologies available to recover

maintenance and remit collections to the creditor. Currency transfer

and conversion fees combine to constitute the second highest cost

of recovering international maintenance. (Only translation costs

are higher.) It would be useful during the negotiation process to

have a workshop on this issue so that experts can explain the

problems, as well as the solutions offered by technology. Once

there is a greater understanding of the issue, it should be easier to

determine how to treat it in the instrument.

i. provisions enabling Contracting Parties to avoid providing

services to applicants from abroad where they are not

available on a reciprocal basis;

The instrument must contain certain core obligations that every

party must undertake. It would be extremely useful, however, to

expand the scope of the instrument beyond those core obligations

to cover other services that some parties may not be in a position

to provide at the present time. If the instrument does include such

“optional” services, there should, of course, be no obligation for

any Contracting Party to provide such services to a country that

does not reciprocate. On the other hand, the instrument should

permit any country that wishes to provide services on a non-

reciprocal basis to do so. How best to accomplish these objectives

in the instrument needs to be carefully considered. Should each

Contracting Party be required to indicate which services it will

854 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

provide, with all Parties that state that they provide a particular

service being automatically obligated to provide that service to

each other? Or should each Contracting Party decide for itself

(on a country-by-country basis or a case-by-case basis) whether it

wishes to undertake an obligation to provide a particular service

for a particular country?

j. standard forms;

Effective implementation of an international maintenance

arrangement requires standardized forms and procedures. Bilingual

forms save time and money by eliminating many of the translation

requirements that would be needed to send an international request.

Tribunals gain conﬁdence in the reliability of the information

provided on standard forms they have seen before. It is probably

not feasible or desirable to include the precise forms in the binding

international agreement, given that they will need to be in so

many languages and will need to be modiﬁed from time to time.

The instrument should, however, provide for a mechanism for

the development and periodic modiﬁcation of forms. Even before

the instrument is completed and a permanent mechanism for

handling forms is established, the negotiators should consider

establishing a Forms Working Group to decide which forms are

most important and develop drafts of these. The Forms Group

established at the 1999 Special Commission on Maintenance

created a draft Transmittal that could be used as a starting point.

That group also recommended the use of a separate “stand alone”

Location of Persons & Assets Information Form. A Uniform

International Petition or Application for ﬁling in Tribunals may

also be useful for many countries. At the program level, workers

must be provided practical training in the use of these forms and a

clear understanding of the procedures required to send cases to

every member State.

k. provisions aimed at securing compliance with obligations

under the instrument;

As noted elsewhere in the U.S. response, experience has proven

that the adoption of an international instrument establishing

Private International Law 855

standards and procedures that all countries agree are wise is only

the ﬁrst step. The success of the convention depends on its full

implementation by all Parties. Therefore, the instrument and the

Hague Conference must do everything possible to facilitate com-

pliance. The instrument’s obligations should be very clear in order

to avoid inconsistent interpretation.

Other possible ways to facilitate compliance include:

— Each party could be encouraged/required to provide the Hague

Conference/other Parties in writing with the procedures to be

followed in sending requests to the Central Authority;

— There could be a mechanism for coordinating the dissemination

of forms and procedures among Parties;

— The instrument could provide for a mechanism to monitor/

evaluate implementation. This might involve asking/requiring

Parties to periodically provide information, statistics, etc.;

— The Hague Conference, member states and non-governmental

organizations could organize training sessions and workshops,

perhaps on a regional basis, where countries can exchange best

practices.

l. provisions concerning public bodies claiming

reimbursement of beneﬁts paid to a maintenance creditor;

The instrument should clearly provide for public bodies that have

provided beneﬁts to maintenance creditors to petition under the

instrument for the recovery of maintenance, including maintenance

owed for a prior period. Public bodies are only entitled to recover

maintenance owed by the debtor for the prior period. While

the public body may have an assignment of maintenance for

reimbursement purposes, the reimbursement sought should not

exceed the maintenance amount that was owed by the debtor but

not paid.

m. others.

— Relationship with the 1980 Hague Convention on International

Child Abduction: It will be essential to U.S. adherence to the

new instrument that it not be used to facilitate recovery of

856 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

maintenance from a U.S. non-custodial parent in circumstances

where the child has been wrongfully removed or retained. The

instrument should not disturb national law, whatever it may

be, regarding enforcement of maintenance obligations in those

circumstances. Therefore, the instrument should not apply if

the Requested State makes or recognizes a judicial ﬁnding that

the person seeking the recovery of maintenance has wrongfully

removed or retained the child for whom maintenance is sought

in the territory of the Requesting State.

— Use of cooperation and enforcement mechanisms by private

attorneys: While the new instrument will be drafted so as

to establish rights and obligations between governments,

maintenance creditors in the United States sometimes retain

private attorneys to pursue their maintenance claims, rather

than going through the state child support enforcement agency.

The new instrument should provide that its enforcement

and cooperation mechanisms are, to the extent appropriate,

available to private counsel.

34. With regard to the overall structure of the new instrument,

and bearing in mind that the new instrument should

“combine the maximum efﬁciency with the ﬂexibility

necessary to achieve widespread ratiﬁcation”,

a. which of the elements that you have mentioned under 33

should be included as core elements in the sense that all

Contracting Parties should without exception be bound to

comply with them?

The answer to this question involves balancing two competing

considerations. The ﬁrst is how important a particular element is

to the goal of obtaining support for the greatest number of needy

children. There are some elements that are so important that one

would question the utility of an instrument that did not include

them as mandatory for all parties. The second is whether most

countries would be willing to include a particular element as

mandatory. The United States preliminary view is that the following

elements should be included as mandatory obligations.

Private International Law 857

— Recognition and enforcement of foreign decisions for the

recovery of maintenance for minor children, including

procedures for collection and distribution of maintenance

payments;

— Establishment of a maintenance decision (including the

determination of paternity if necessary) by the Requested

State if it is unable to recognize a decision of the Requesting

State;

— Rules regarding variance based on the principle that, as a

general rule, decisions should be varied by the tribunal that

originally made them;

— Administrative cooperation;

— Cost-free administrative services provided to debtors and

creditors without travel requirements;

— Any necessary legal services provided cost-free without travel

requirements;

— Central Authorities;

— Limited services for location of persons/assets and collection

of DNA samples;

— Requirement of timely response to requests/inquiries from other

States;

— Provision that public bodies may recover maintenance;

— Provision for the recovery of maintenance for prior periods,

especially where the arrearages are due pursuant to a support

order enforceable in the Requesting State;

— Provisions to monitor/facilitate compliance with obligations

under the instrument;

— An instrument that includes core elements and optional

elements, and permits parties to agree to the optional elements

only on a reciprocal basis.

b. which of those elements should be optional, in the sense

that Contracting Parties would have the freedom to opt

in or opt out of them?

— Maintenance for spouses and collateral relatives;

— Use of abstracts of tribunal orders or requiring translation of

only the maintenance recital;

858 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

— assistance with service of process;

— standard forms (highly desirable, but implementation of the

convention should not be delayed by difﬁculties in developing

agreed forms);

— transfer-of-funds provisions (highly desirable, but implementa-

tion of the agreement should not be delayed by difﬁculties in

streamlining the transfer of funds).

As noted elsewhere, the United States does not favor the

inclusion of either jurisdiction or applicable law provisions.

c. do you favour a general principle that, where recognition

of an existing decision is not possible in the country where

the debtor resides, the authorities of that country should be

under an obligation to provide assistance to the creditor in

obtaining a new decision?

Yes.

35. In the case of states which have entered into bilateral or

regional arrangements, please indicate which elements within

those arrangements you would wish to see replicated or

reﬂected in the new global instrument

As explained elsewhere in this answer in more detail, the United

States believes that the following elements would make for the

strongest global instrument: Each party should be able to establish/

recognize and enforce child support decisions for residents of other

parties, including the establishment of paternity and the collection

and distribution of payments. If a party is unable to recognize

a decision of another party, then it should take all necessary

steps to establish a new decision. Each party should provide these

services to residents of other parties at no cost. Each party should

designate a Central Authority to facilitate implementation of the

Convention.

Private International Law 859

C. INTERNATIONAL CIVIL LITIGATION IN THE

UNITED STATES

This section addresses cases on selected topics in this area

of practice in private international law.

1. Concurrent Proceedings in Foreign Courts

a. International comity-based abstentions

In 2002 U.S. federal courts were faced with motions to

dismiss or stay proceedings by abstaining from jurisdiction

out of international comity concerns and deference to

concurrent foreign litigation. U.S. courts adopted a variety of

approaches toward determining under what circumstances

a U.S. court should defer to foreign judicial proceedings.

(1) In Szabo v. CGU International Insurance, 199 F. Supp.

2d 715 (S.D. Ohio 2002), the U.S. District Court for the

Southern District of Ohio denied defendant’s motion for an

order of abstention or, in the alternative, an order staying the

proceedings in deference to litigation in British court. Three

members of the Szabo family, Ohio residents, sued CGU

International Insurance, a British global insurance provider,

for insurance coverage of a car accident which left the fourth

member of the family paralyzed. The Szabos brought suit in

Ohio state court, and three days later, CGU ﬁled suit against

the Szabos in the High Court of Justice, Queen’s Bench

Division of the Commercial Court in London. CGU sought a

declaration from the British court that none of the Szabos

was insured under a CGU policy, thereby freeing CGU from

liability. The U.S. suit was removed to federal court, and CGU

ﬁled a motion for order of abstention or, in the alternative, a

stay of proceedings based on the British court’s jurisdiction.

Excerpts below from the district court opinion explain

the two-part analysis applicable to determining whether it

should abstain from hearing the Szabos’ case.

****

860 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The Supreme Court has repeatedly stated that “abstention from

jurisdiction is the exception, not the rule, and that federal courts

have a ‘virtually unﬂagging obligation to exercise the jurisdiction

given them.’” Sun Reﬁning & Marketing Co. v. Brennan, 921

F.2d 635 (6th Cir. 1990) (quoting Colorado River Water Conserv.

Dist. v. United States, 424 U.S. 800, 817, 47 L. Ed. 2d 483, 96

S. Ct. 1236 (1976) ). “Principles of comity and federalism do not

require that a federal court abandon jurisdiction it has properly

acquired simply because a similar suit is later ﬁled in state court.”

. . . Under the abstention doctrine set forth in Colorado River,

“considerations of judicial economy and federal-state comity may

justify abstention in situations involving the contemporaneous

exercise of jurisdiction by state and federal courts.” Romine v.

Compuserve Corp., 160 F.3d 337, 339–40 (6th Cir. 1998). The

principles underlying this doctrine “rest on considerations of

‘wise judicial administration, giving regard to conservation of

judicial resources and comprehensive disposition of litigation.’”

Id. However, “abdication of the obligation to decide cases can be

justiﬁed . . . only in the exceptional circumstances where . . . [it]

would clearly serve an important countervailing [state] interest.”

Colorado River, 424 U.S. at 813. The same principles which govern

parallel state and federal court proceedings apply to parallel

proceedings in a foreign court. AAR Internat’l, Inc. v. Nimelias

Enters. S.A., 250 F.3d 510, 518 (7th Cir. 2001) (“we apply the

same general principles [concerning parallel state proceedings] with

respect to parallel proceedings in a foreign court in the interests of

international comity.”).

In determining whether to abstain from exercising jurisdiction

under Colorado River, in the interest of international comity, the

Court must engage in a two-step analysis. First, the Court must

evaluate whether the two proceedings are, in fact, parallel. If the

actions are not parallel, the doctrine does not apply. Second, if

parallel, the Court must balance the eight factors set forth in

Colorado River and its progeny.

A. Parallel Proceedings

Turning to the ﬁrst step, for two concurrent actions to be parallel,

it is not necessary for them to be identical. Romine, 160 F.3d at

Private International Law 861

340. It is sufﬁcient that the two proceedings are substantially

similar. Id.; AAR Internat’l, 250 F.3d at 518. The presence of

additional parties or additional claims will not necessarily preclude

a ﬁnding that the actions are parallel. Romine, 160 F.3d at 340.

“If the rule were otherwise the Colorado River doctrine could be

entirely avoided by the simple expedient of naming additional

parties.” Lumen Constr., Inc. v. Brant Constr. Co., Inc., 780 F.2d

691, 695 (7th Cir. 1985) (quoted by Romine, 160 F.3d at 340).

“The question is not whether the suits are formally symmetrical,

but whether there is a ‘substantial likelihood’ that the foreign

litigation ‘will dispose of all claims presented in the federal case.’”

AAR Internat’l, 250 F.3d at 518 (citation omitted). As long as the

parties are substantially similar and the claims “are predicated on

the same allegations as to the same material facts,” the actions are

to be considered parallel. Romine, 160 F.3d at 340.

****

The U.S. court held that the U.S. suit and the action in the

Queen’s Bench court were substantially similar as both

lawsuits arose out of the same automobile accident, and

both attempted to determine whether the CGU insurance

policy covered the plaintiffs and were thus parallel pro-

ceedings. The court then analyzed the case under the eight

factors set forth in Colorado River and subsequent U.S.

Supreme Court case law. Applying these factors, the U.S.

court held that the analysis strongly favored the U.S. court

retaining jurisdiction. The lawsuit did not involve any res

over which the U.S. court retained jurisdiction. Further,

litigation in England would be very inconvenient for plaintiffs

as residents of Ohio, and the British defendant would be

better able to conduct international litigation, as it issues

global insurance policies. Looking to avoidance of piece-meal

litigation, the court found that the issues pending before the

British court were only whether British law applied, and if so,

whether the Szabos were entitled to beneﬁts. Therefore,

complete relief would not be granted in the British court if it

found Ohio law to apply. The court stated that the source of

the governing law in this case had not yet been determined,

and held that this supported retaining jurisdiction. The only

862 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

factor that the U.S. court found favored abstention was the

adequacy of the British court in its ability to provide pro-

cedural safeguards, substantive law, and jurisdiction over the

suit. On balance, the court concluded that it must continue

to exercise jurisdiction, and denied the defendant’s motion to

abstain or stay based on the concurrent British proceedings.

(2) Although also basing its analysis on the abstention

analysis developed by the Supreme Court, the U.S. District

Court for the Western District of Virginia took a somewhat

different approach to determining whether a U.S. court should

stay or grant a two-month continuance in deference to foreign

judicial proceedings. Linear Products v. Marotech, 189 F. Supp.

2d 461 (W.D. Va. 2002). Linear, a U.S. company, held

patents in both the United States and Canada. Linear ﬁled a

patent infringement lawsuit ﬁrst in Quebec, Canada against

Marotech, based on its Canadian Letters Patent. While the

Canadian court proceeding was still ongoing, Linear brought

a similar infringement suit and motion for preliminary

injunction against Marotech in the United States based on

its U.S. patents. Marotech asked the U.S. court for a stay of

proceedings under the doctrine of international abstention.

The court followed Turner Entertainment Company v.

Degeto Film, 25 F.3d 1512 (11th Cir. 1994), involving inter-

pretation of a licensing agreement, which looked to a number

of factors, broadly whether the stay would (1) promote

international comity, (2) respect fairness to litigants, and

(3) promote efﬁcient use of judicial resources. The Linear

court held that this case did not warrant abstention because

instead of both cases revolving around a court’s interpretation

of a “single operative document,” separate U.S. and Canadian

patents were at issue. Therefore, “with respect to the

Canadian Letters Patent, it is far from certain that the same

interpretation would be consistent with United States’

statutes and policies if applied to the United States’ Patents.”

The court also found the fact that Canada had not yet reached

a judgment in its proceeding a “telling distinction,” reasoning

that “[t]he principles of comity are much more deeply

Private International Law 863

implicated where the foreign court has resolved the dispute

on the merits.” Although the U.S. court did not grant the stay,

it did reschedule the U.S. trial date to allow the defendant, a

small business, to ﬁnish defending itself in the Canadian

court before defending itself in the United States.

(3) In United Feature Syndicate v. Miller Features, 216 F. Supp.

2d 198 (S.D.N.Y. 2002), ofﬁcers of a Canadian corporation

in Canadian bankruptcy proceedings ﬁled a motion to dismiss

proceedings in the District Court for the Southern District

of New York alleging fraud and related charges. One of

the grounds on which defendant moved to dismiss was

international comity. In assessing the defendants’ motion

to dismiss on this ground, the court noted that “[i]n the

bankruptcy context, abstaining from exercising jurisdiction

on the basis of comity can be particularly appropriate, since

‘the equitable and orderly distribution of a debtor’s property

requires assembling all claims against the limited assets in

a single proceeding.’ ”

Ultimately, the court concluded that “there is no question

that bankruptcy proceedings in Canada—a ‘sister common

law jurisdiction with procedures akin to our own’—are entitled

to comity under appropriate circumstances.” The court

concluded, however, that “‘the principle of comity has never

meant categorical deference to foreign proceedings.’” The

court placed the burden of proof on the moving defendants

to demonstrate that

deference actually would result in the avoidance of

some sort of conﬂict—in other words, that the exercise

of jurisdiction by this Court actually might fail to

“demonstrate a proper level of respect for the acts” of

the Canadian bankruptcy court. . . . If the claims raised in

this action aren’t also within the purview of the Canadian

bankruptcy court, then adjudicating those claims in this

court shows no disrespect to that tribunal. . . .

The court analyzed each of the plaintiff ’s claims to determine

whether or not they were already being adjudicated in the

864 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Canadian proceeding, and ultimately determined that several

of the plaintiff ’s claims were sufﬁciently distinct from the

claims in the Canadian bankruptcy proceeding to warrant

the U.S. court’s jurisdiction. As to those claims the court

denied the motion for comity-based abstention.

(4) The U.S. District Court for the Northern District of Ohio

granted a defendant’s motion to stay U.S. proceedings and

abstained in deference to a Canadian bankruptcy proceeding

in Banyan Licensing v. Orthosupport International, 2002 U.S.

Dist. LEXIS 17341 (N.D. Ohio Aug. 15, 2002). In a previous

lawsuit, a U.S. federal court had found that the Canadian

defendant’s products infringed the U.S. plaintiff ’s patent for

pain-relieving knee-pillows, and issued an injunction against

the sale of the defendant’s products in the United States.

Defendant had violated that injunction, and plaintiff sought

sanctions and other relief in this suit. In the meantime,

Orthosupport ﬁled for bankruptcy in a Canadian court, during

which proceeding the Canadian court issued an order staying

proceedings against the company.

The U.S. court agreed to stay its proceedings in

recognition of the Canadian stay order. In support of its

abstention, the U.S. court noted that “American courts

routinely extended comity to the actions and judgments of

Canadian bankruptcy courts on the basis that creditors,

including American creditors, will be treated fairly and with

due process.”

b. Anti-suit injunctions

In 2002 U.S. federal courts also faced a growing number

of requests by litigants in international disputes to enjoin

opposing parties from pursuing suit in foreign courts

concurrently, which U.S. courts have generally been reluctant

to grant. Two approaches, the liberal and the restrictive

approaches, have been utilized by the seven circuits that

have addressed international anti-suits.

Private International Law 865

(1) Restrictive approach

(i) In Stonington Partners v. Lernout & Hauspie Speech Products,

310 F.3d 118 (3rd Cir. 2002), Lernout & Hauspie Speech

Products (“L&H”), a Belgian company with headquarters in

Belgium and Massachusetts, ﬁled for bankruptcy concurrently

in the U.S. Bankruptcy Court for the District of Delaware and

in Belgian court. Shortly before L&H ﬁled for bankruptcy,

Stonington had ﬁled an action against L&H and others in

Delaware alleging that L&H had fraudulently acquired

Dictaphone Corporation from it in exchange for worthless

shares of L&H stock. L&H ofﬁcers were arrested and jailed

in Belgium on charges of securities fraud, and Stonington’s

action was still pending as an adversary proceeding in the

Delaware bankruptcy case. Due to the difference in the two

countries’ bankruptcy laws, Stonington’s claims based on

L&H’s fraudulent activities would receive equal treatment

with other general secured and unsecured creditors under

Belgian law, but would be subject to subordination in U.S.

courts. In response to a request from L&H, the U.S. bank-

ruptcy court enjoined Stonington from further prosecuting

the “issue of the priority, treatment and classiﬁcation of

the fraud claims in Belgium.” The district court afﬁrmed the

bankruptcy court. Lernout and Hauspie Speech Products v.

Stonington Partners, 2001 U.S. Dist. LEXIS 22353 (D.C. Del.

Sept. 21, 2001).

On appeal, the U.S. Court of Appeals for the Third Circuit

held that this order “amount[ed] to an anti-suit injunction”

and reversed and remanded to the bankruptcy court to “apply

the approach to anti-suit injunctions that has been developed

in our court and to consider comity concerns in deciding

whether this is one of the rare situations in which relief is

appropriate.” The court further recommended that “an actual

dialog occur or be attempted between the courts of the

different jurisdictions in an effort to reach an agreement as

to how to proceed or, at the very least, an understanding as

to the policy considerations underpinning salient aspects

866 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

of the foreign laws.” Excerpts below provide the court’s

explanation of the “liberal” versus “restrictive” approaches

to anti-suit injunctions and its conclusion that, although an

injunction might in some situations be appropriate even

under the restrictive approach on public policy grounds, the

case at hand did not appear to meet that criterion.

****

. . . Based on a “serious concern for comity,” we have adopted a

restrictive approach to granting [anti-suit injunctions.] . . .

. . . [T]he federal courts of appeals have developed two different

standards, one “liberal” and the other “restrictive,” for determining

when to enjoin foreign proceedings, and we concluded that our

jurisprudence endorsed the restrictive approach.

Id. at 160–61;

see also Republic of the Philippines v. Westinghouse Elec. Corp.,

43 F.3d 65, 76 (3d Cir. 1994) (the power to enjoin a foreign

action should “be exercised only in rare cases, and must be pre-

mised on a thorough analysis of the interests at stake”). . . .

Likewise, in Compagnie des Bauxites de Guinea v. Insurance

Co. of North America, 651 F.2d 877 (3d Cir. 1981), the district

court had enjoined a party from maintaining an action ﬁled in

England. We reversed, reasoning that “restraining a party from

pursuing an action in a court of foreign jurisdiction involves delicate

questions of comity and therefore ‘requires that such action be

taken only with care and great restraint’.” Id. at 887 n. 10 ...We

In General Electric [v. Deutz AG, 270 F.3d 144 (3rd Cir. 2001)], we

contrasted the “lax” or “liberal” approach of the courts of appeals for the

Fifth, Seventh, and Ninth Circuits with the “restrictive” approach adopted

by the courts of appeals for the Second, Sixth, and District of Columbia

Circuits. Compare Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 626–28 (5th

Cir. 1996) (“lax” standard); Allendale Mut. Ins. Co. v. Bull Data Sys., Inc.,

10 F.3d 425, 431–32 (7th Cir. 1993) (same); and Seattle Totems Hockey

Club, Inc. v. Nat’l Hockey League, 652 F.2d 852, 855–56 (9th Cir. 1981)

(same); with Gau Shan Co. v. Bankers Trust Co., 956 F.2d 1349, 1354–58

(6th Cir. 1992) (“restrictive” approach); China Trade & Dev. Corp. v. M.V.

Choong Yong, 837 F.2d 33, 36 (2d Cir. 1987) (same); and Laker Airways,

731 F.2d at 937–45 (same).

Private International Law 867

concluded that neither duplication of issues nor delay in ﬁling

justiﬁed such an injunction, and further noted that even the fact

that a foreign action was “harassing and vexatious” would not, by

itself, warrant injunctive relief. (fn.omitted); see also Gau Shan Co.

v. Bankers Trust Co., 956 F.2d 1349, 1357 (6th Cir. 1992) (if

duplication were enough to justify an anti-suit injunction, “parallel

proceedings would never be permitted because by deﬁnition such

proceedings involve the same claim and therefore the same parties

and issues”) (fn. omitted).

Courts that, like us, adopt the restrictive approach to enjoining

foreign proceedings acknowledge that courts may enter an anti-

suit injunction on the rare occasions when needed “to protect

jurisdiction or an important public policy.” General Elec., 270

F.3d at 161; see also Laker Airways, 731 F.2d at 927. They have

interpreted these exceptions narrowly. In Laker Airways, for

instance, the Court of Appeals for the District of Columbia Circuit

approved an anti-suit injunction where the foreign defendants

initiated the foreign proceeding for the “sole purpose of terminating

the United States claim” and where the foreign court had enjoined

parties from pursuing an action in the United States. Id. at 915.

The foreign proceeding threatened United States jurisdiction in

that it “attempted to carve out exclusive jurisdiction over con-

current actions.” Id. at 930.

Few cases have addressed a situation in which an anti-suit

injunction has been appropriately entered to protect important

public policy, but the courts that take a restrictive approach have

referenced this exception as being narrowly drawn. In Gau Shan

Co., the Court of Appeals for the Sixth Circuit noted that “there

is very little case law on the magnitude of the importance of public

policy considerations to the decision whether to permit an antisuit

injunction,” but concluded that “only the evasion of the most

compelling public policies of the forum will support the issuance

of an antisuit injunction” and that the state-law treble damages

remedy at issue there did not rise to that level. 956 F.2d at 1357.

Notably, the policies that the Laker Airways court found to justify

an anti-suit injunction were not those motivating United States

antitrust laws—the substance of the dispute—but instead “that

United States judicial functions have been usurped, destroying the

868 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

autonomy of the courts.” Laker Airways, 731 F.2d at 939. This

is signiﬁcant because, rather than focus on the public policies

furthered by the substantive law, which presumably are always

present, at least to some degree, the court focused on what made

this case unusual—namely, the degree of foreign interference with

properly invoked United States concurrent jurisdiction.

L&H urges us to ﬁnd that the situation before the Bankruptcy

Court ﬁts into either or both of these narrow exceptions. Clearly

jurisdiction is not implicated in the way it was in Laker Airways.

Not only is there no indication that the Belgian proceeding’s sole

purpose was to deprive the United States court of its jurisdiction

(fn. omitted), but also L&H, rather than Stonington, had initiated

the foreign proceeding. . . .

. . . [W]e note that, if indeed Stonington was inducted to take

equity through fraud, this might dilute L&H’s argument that

subordinating Stonington’s claims promotes an important public

policy. . . .

****

(ii) In Dow Jones v. Harrods, 237 F. Supp. 2d 394 (S.D.N.Y.

2002), the U.S. District Court for the Southern District of

New York had before it a request for declaratory judgment

and injunctive relief brought by Dow Jones, a U.S. company

that owns the Wall Street Journal. The litigation arose out of

a Wall Street Journal article that dubbed Harrods “the Enron

of Britain” in response to Harrods’ April fool’s joke of

announcing that its chairman was “going to ‘ﬂoat’” Harrods,

which Dow Jones originally interpreted to mean that Harrods

was going public. Harrods demanded that Dow Jones run

an apology and pay compensation for the damage to Harrods’

reputation from the article. Dow Jones refused, asserting that

the article was intended as “humorous commentary.” On May

24, 2002, believing that Harrods was threatening suit, Dow

Jones sought an injunction in the Southern District of New

York under the Declaratory Judgment Act, 28 U.S.C. § 2201(a)

(“DJA”), to preclude Harrods from pursuing libel claims

in London or “related litigation against Dow Jones in any

other forum in the world.” On May 29, Harrods brought

Private International Law 869

suit in the High Court of Justice in London seeking damages

for libel.

The U.S. court noted that the DJA confers only

discretionary jurisdiction upon federal courts, and that it

“provides that in a case of an ‘actual controversy’ within

its jurisdiction, ‘[a] federal court may declare the rights and

other legal relations of any interested party seeking such

a declaration. . . .’ ” The court denied relief, concluding

that “Dow Jones’ claim of impending harm, and its fears of

enforcement of an adverse judgment, are too abstract, remote

and hypothetical to constitute an actual controversy qualifying

for the declaratory relief it seeks.”

The court rejected Dow Jones’ claims that the First

Amendment right to free speech warranted enjoining any

related litigation against Dow Jones in any other judicial

forum. The court applied the Second Circuit’s restrictive test

to anti-suit injunctions and held that such an injunction was

not warranted here. Internal citations have been omitted from

the excerpts from the opinion set forth below.

****

American law contains among the most extensive mantle of rights

and safeguards to guarantee and protect individual freedoms and

fundamental fairness.

****

. . . Dow Jones urges, [that] United States courts in general, and

this Court in particular, are thus uniquely poised to seize the

opportunity to reinforce and enlarge the First Amendment

protections American publishers enjoy so as to bar preemptively

potential liability for any alleged defamation injury their com-

mercial activities conducted in this country and transmitted through

the worldwide web may cause in foreign jurisdictions. Validating

this proposition would make it appropriate and commonplace for

litigants to resort to federal courts under the DJA to obtain

declarations of non-liability and injunctive relief whenever a party

alleges that it faces even a mere prospect of a lawsuit or contingent

870 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

liability in a foreign jurisdiction whose laws or procedures may

conﬂict in some way with fundamental rights enjoyed under United

States law.

Thus, under Dow Jones’ hypothesis, the DJA would confer

upon an American court a preemptive style of global jurisdiction

branching worldwide and able to strike down offending litigation

anywhere on Earth. Intriguing as such universal power might

appear to any judge, this Court must take a more modest view of

the limits of its jurisdiction, and offers a more humble response to

the invitation and temptation to overreach. The Court ﬁnds nothing

in the United States Constitution, nor in the DJA or in customary

practice of international law, that comports with such a robust,

Olympian perspective of federal judicial power.

****

In fact, Dow Jones’ hypothesis ﬁnds no support in international

law principles or practice. As one leading commentator observed:

“Courts of foreign countries, while likely to use comity language,

will be reluctant to give effect to any injunctions purporting to

restrain their own citizens and transactions (footnote omitted).

Nor is Dow Jones’ proposition likely to gain a sympathetic ear in

the United Kingdom to compel a stay of the London Action in

favor of the instant proceeding in this Court. Under British practice,

where a plaintiff in England is the defendant in a foreign action

involving the same parties and events, the courts are reluctant

to stay the English proceedings. “‘The court ought not to stay a

plaintiff in the courts of this country on the ground that he happens

to be a defendant elsewhere.’” Even were this Court to grant

the relief Dow Jones seeks, its judgment may not be entitled to

recognition or enforcement in the United Kingdom to the extent

the British courts may ﬁnd it contrary to English public policy, or

to constitute an effort to prevent the administration of justice for

an unjust end.

****

To be sure, the Supreme Court has left open the possibility that

a strong demonstration of bad faith or harassment sufﬁciently

unusual or unconscionable could justify federal intervention to

Private International Law 871

protect the exercise of First Amendment rights against a particular

potential infringement in a state proceeding. It made clear, however,

that such interference could be justiﬁed only in very narrow,

“extraordinary circumstances.”

Here, Dow Jones has not made a persuasive case that Harrods’

mere ﬁling of the London Action represents sufﬁcient extraord-

inary circumstances demonstrating unconscionable bad faith or

harassment.

****

(2) Liberal approach

(i) In Macphail v. Oceaneering International, 302 F.3d 274

(5th Cir. 2002), the U.S. Court of Appeals for the Fifth Circuit

reversed a district court decision granting plaintiff ’s motion

to enjoin defendant from pursuing proceedings in the

Supreme Court of Western Australia. MacPhail, an Australian

deep sea diver, had brought suit in the District Court for the

Western District of Australia against Oceaneering, a Texas-

based multi-national corporation, for injuries sustained while

he was employed by the defendant as a saturation diver in

Australia. The Australian court entered a ﬁnal judgment on

the basis of a negotiated settlement between MacPhail and

Oceaneering, providing $280,000 and other compensation

to MacPhail. The Deed of Release and Discharge signed by

MacPhail provided that it would be governed by the laws of

Western Australia and included a forum selection clause, in

which the parties agreed to submit any dispute arising from

it to the exclusive jurisdiction of the Australian courts.

Subsequently, MacPhail traveled to the United States and

received medical treatment revealing that he had more

serious brain and nerve damage than previously thought. As

a result, MacPhail ﬁled suit against Oceaneering in the U.S.

District Court for the Southern District of Texas under U.S.

maritime law and Texas state law. Oceaneering ﬁled a motion

to dismiss based on the release and its forum selection

clause. When the district court denied Oceaneering’s motion,

872 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Oceaneering ﬁled a writ of summons in the Supreme Court

of Western Australia seeking speciﬁc performance of the

release. MacPhail ﬁled a motion to enjoin the Australian

proceeding, which the U.S. district court granted.

The district court applied the “liberal approach” to anti-

suit injunctions, which it characterized as “plac[ing] minimal

importance on international comity and hold[ing] that a court

may enjoin a foreign proceeding if that parallel proceeding is

vexatious and duplicative . . .” 186 F. Supp. 2d 704 (S.D. Tex

2002). In doing so, it cited to applicable Fifth Cicuit precedent

in Kaepa, Inc. v. Achilles Corp., 76 F.3d 624 (5th Cir. 1996). The

Fifth Circuit vacated the district court’s order. It conﬁrmed

that under Kaepa, “[t]wo factors are relevant to our comity

analysis . . . : whether the foreign litigation is duplicitous [sic]

and vexatious litigation; and whether the injunction is neces-

sary to protect the court’s jurisdiction.” On the facts of the

case before it, however, the court found neither basis to apply.

(ii) A variation of the liberal approach was applied by the

U.S. District Court for the Northern District of Illinois in

Varrin v. Queen’s University, 2002 U.S. Dist. LEXIS 16580

(N.D. Il. Sept. 3, 2002). The plaintiff, a Canadian resident,

sought an order in U.S. court declaring himself a joint

inventor of two patents that he helped create while working

for the defendant, Queen’s University. After Varrin’s request

was ﬁled, the university ﬁled suit in Ontario, Canada, seek-

ing a declaration that any rights Varrin had to the patents

belonged to the university as his employer. Varrin sought an

order from the U.S. district court enjoining the defendant

from proceeding in Canada.

The court applied the liberal standard, that “[i]njunctions

against foreign litigation are allowed upon a ﬁnding that

letting the two suits proceed would be gratuitously duplicat-

ive, or as the cases sometimes say, vexatious and oppressive.”

On this basis, the U.S. court enjoined the defendant from

proceeding in Canada. The court also noted that international

comity must be weighed by asking “[w]hen every practical

consideration supports the injunction,” whether “the issuance

Private International Law 873

of an injunction really would throw a monkey wrench, however

small, into the foreign relations of the United States.” The

court’s conclusion follows.

****

The core issue in the present suit is inventorship, and the defense

to that claim is ownership. Queen’s University’s suit in Canada,

claiming ownership of these inventions, constitutes a compulsory

counterclaim because it arises out of the same transaction or

occurrence that is the subject matter of the instant suit—the

invention and ownership of the two United States patents while

Varrin was in Queen’s University’s employ. . . . However, neither

this Court nor a Canadian court need decide the issue of ownership

if Varrin is unable to prove his inventorship claim. Thus, this

present suit may be dispositive of the Canadian suit. Allowing

both suits to proceed would result in a duplication of efforts.

Resolution in both courts could also result in inconsistent results.

Furthermore, Queen’s University has not made any indication that

the issuance of an injunction would “throw a monkey wrench,

however small, into the foreign relations of the United States” and

Canada.

****

2. Recognition and Enforcement of Foreign Arbitral Awards

As a party to the Convention on the Recognition and

Enforcement of Foreign Arbitral Awards, 21 U.S.T. 2517, 330

U.N.T.S. 3 (1958) (“the New York Convention”), the United

States is obligated to recognize and enforce arbitral awards

made in another State’s territory unless (1) the parties were

incapacitated at the time of agreement, (2) the agreement to

arbitrate is not valid under the parties’ choice of law or where

the award was made; (3) the losing party was not given proper

notice of the arbitration proceedings or was otherwise unable

to present his case; (4) the arbitration award deals with sub-

ject matter outside the scope of the parties’ agreement to

874 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

arbitrate; (5) the arbitration board’s composition was contrary

to the parties’ agreement or against the law of the country

where the arbitration took place, or (6) the award is not yet

binding. New York Convention, Art. V(a)–(e).

In Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain

Company, 284 F.3d 1114 (9th Cir. 2002), Glencore Grain, a

Netherlands corporation, entered into a contract to pur-

chase rice from Shivnath Rai, an Indian rice exporter. A

dispute subsequently arose under the contract concern-

ing delivery of rice. Pursuant to the contract’s arbitration

clause, the dispute was arbitrated before the London Rice

Brokers’ Association, which ruled in favor of Glencore Grain

(“Glencore”), awarding it roughly $6.5 million plus interest.

Shivnath Rai did not challenge the decision in England, nor

did he pay the award. Glencore ﬁled suit in the High Court

of Delhi at New Delhi, India, to enforce the award, and while

the suit in India was pending, ﬁled an application in the U.S.

District Court for the Northern District of California, seeking

conﬁrmation of the arbitral award under the New York

Convention. Shivnath ﬁled a motion to dismiss on six different

grounds, including absence of personal jurisdiction. The

district court dismissed the action for lack of personal

jurisdiction over Shivnath Rai, ﬁnding insufﬁcient contacts

to exercise general jurisdiction and no speciﬁc jurisdiction

because the cause of action did not arise out of or relate to

any actions by Shivnath Rai within the state of California.

Glencore appealed the dismissal, arguing that neither

the New York Convention nor the Federal Arbitration Act

(“FAA”), the U.S. implementing legislation for the New York

Convention, 9 U.S.C. § 201–208, expressly requires personal

jurisdiction and that the lack of personal jurisdiction over

the defendant in the state where enforcement is sought is

not among the Convention’s seven defenses to recognition

and enforcement. The court of appeals rejected Glencore’s

argument. While recognizing the “pro-enforcement bias” of

the Convention and the FAA, the court analyzed the issue of

personal jurisdiction in cases brought under the New York

Convention as follows (internal citations omitted):

Private International Law 875

It is a bedrock principle of civil procedure and constitu-

tional law that a “statute cannot grant personal jurisdic-

tion where the Constitution forbids it.”. . . . The personal

jurisdiction requirement . . . “ﬂows . . . from the Due Pro-

cess Clause . . . [and] represents a restriction on judicial

power not as a matter of sovereignty, but as a matter of

individual liberty.” District courts determine the existence

vel non of personal jurisdiction not by reference to statut-

ory imprimatur, but by inquiring whether maintenance

of a suit against the defendant comports with the

constitutional notions of due process . . . Thus, it is not

signiﬁcant in the least that the legislation implementing

the [New York] Convention lacks language requiring

personal jurisdiction over the litigants. We hold that

neither the Convention nor its implementing legis-

lation removed the district courts’ obligation to ﬁnd

jurisdiction over the defendant in suits to conﬁrm

arbitration awards.

The court also noted that to interpret the FAA as “dis-

pensing with the jurisdictional requirements of Due Process

in actions to conﬁrm arbitral awards would raise clear

questions concerning the constitutionality of the statutes.”

The court afﬁrmed the district court’s dismissal of the action

based on its lack of personal jurisdiction over Shivnath Rai.

3. Evidence: Discovery for Use in a Foreign Tribunal

Section 1782 of title 28 of the United States Code provides,

in pertiment part, that a U.S. district court may order a person

“to give his testimony or statement or to produce a document

or other thing for use in a proceeding in a foreign or inter-

national tribunal, including criminal investigations conducted

before formal accusation.”

In Advanced Micro Devices v. Intel Corporation, 292

F.3d 664 (9th Cir. 2002), Advanced Micro Devices

(“AMD”) ﬁled a complaint with the Directorate General-

Competition of the European Commission (“Directorate”)

876 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

alleging violation of the EC treaty by Intel, its worldwide

competitor in the micro-processing industry. In the U.S.

District Court for the Northern District of California, AMD

sought discovery under section 1782 asking that Intel produce

transcripts of testimony from a proceeding in another district

court. Intel objected, claiming that the matter before the

Directorate was not a “proceeding in a foreign or international

tribunal” within the meaning of section 1782. The court agreed

and denied discovery. The Ninth Circuit reversed, noting that

the case presented a question of ﬁrst impression. Excerpts

below provide the court’s analysis of the nature of the EC

proceeding and its rejection of Intel’s further argument that

section 1782 required that AMD show that it could obtain

the discovery in the EC proceedings, an issue on which

U.S. federal circuit courts are split. Internal citations have

been omitted.

****

[T]he EC is an administrative body and . . . the investigation being

conducted by its Directorate is related to a quasi-judicial or judicial

proceeding. AMD has the right to petition the EC to stop what it

believes is conduct that violates the EC Treaty, to present evidence

it believes supports its allegations, to have the EC evaluation what

it presents and to have the resulting action (or inaction) reviewed

by the European courts. Although preliminary, the process qualiﬁes

as a “proceeding before a tribunal” within the meaning of 28

U.S.C. § 1782.

****

We have previously rejected a requirement regarding

admissibility in the foreign tribunal. For good and sound policy

reasons, we now reject such a requirement with respect to

discoverability, be the request from a private party or foreign

tribunal. We ﬁnd nothing in the plain language or legislative his-

tory of Section 1782, including its 1964 and 1996 amendments,

to require a threshold showing on the party seeking discovery that

what is sought be discoverable in the foreign proceeding. Had

Private International Law 877

Congress wished to impose such a requirement on the parties, it

could have easily done so. . . .

Finally, allowance of liberal discovery seems entirely consist-

ent with the twin aims of Section 182 providing efﬁcient assistance

to participants in international litigation and encouraging foreign

countries by example to provide similar assistance to our courts.

****

4. Service of Process Abroad

Cases involving foreign litigants often require service of

process to be delivered abroad. The United States is a party

to the Convention on Service Abroad of Judicial Documents

in Civil and Commercial Matters (the “Hague Service

Convention” or “HSC”), 20 U.S.T. 361, 362 T.I.A.S. No. 6638

(1965). Each state party to the HSC designates a central

authority that handles all service requests from other parties

for the purpose of creating an “appropriate means to ensure

that judicial and extrajudicial documents to be served abroad

shall be brought to the notice of an addressee in sufﬁcient

time.” U.S. Federal Rule of Civil Procedure 4(f )(1) permits

service of process on a foreign corporation “by any inter-

nationally agreed means reasonably calculated to give notice,

such as those means authorized by the Hague [Service]

Convention.”

In Nuovo Pignone, Spa v. Storman Asia, 310 F.3d 374 (5th

Cir. 2002), the plaintiff in a breach of contract and tort action

effected service of process on the defendant, an Italian

company, by sending the complaint and summons via Federal

Express mail to the company’s president in Milan, Italy. The

defendant moved to dismiss on grounds, inter alia, that such

service of process was improper under Article 10(a) of the

HSC and thus violated Federal Rule of Civil Procedure 4(f )(1).

The district court denied the motion to dismiss, concluding

that service by mail of foreign parties was permissible under

Article 10(a). On appeal, the Fifth Circuit overturned the

lower court decision on this issue and remanded for further

878 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

proceedings, with instructions that Nuovo Pignone be per-

mitted a reasonable time to effect proper service. Excerpts

below provide the Fifth Circuit’s analysis of Article 10(a) of

the HSC, a provision that has caused a split among U.S.

circuit courts. Internal citations and footnotes have been

omitted.

****

The parties disagree over the interpretation of article 10(a), which

states in context:

Provided the State of Designation does not object, the

present Convention does not interfere with

(a) the freedom to send judicial documents, by postal

channels, directly to persons abroad,

(b) the freedom of judicial ofﬁcers, ofﬁcials or other compe-

tent persons of the State of origin to effect service of judicial

documents directly through the judicial ofﬁcers, ofﬁcials

or other competent persons of the State of designation,

proceeding to effect service of judicial documents directly

through the judicial ofﬁcers, ofﬁcials or other competent

persons of the State of destination.

Nuovo Pignone contends that article 10(a) permits service of

process by mail. Fagioli argues that the subsection refers only to

the transmission of legal documents following service, pointing

to the fact that nowhere else in the Hague Convention is the word

“send” used to refer to service of process; rather, the drafters use

the words “serve,” “service,” and “to effect service” in other

sections, including subparts (b) and (c) of article 10.

The parties’ differing positions reﬂect a circuit split over an

issue this court has yet to address. Those courts that have concluded

that article 10(a) permits service of foreign parties by mail have

looked to the broad purpose of the Hague Convention—facilitating

service abroad—and concluded that article 10(a) would be

“superﬂuous unless it was related to the sending of such documents

Private International Law 879

for the purpose of service.” These courts have opined that the use

of the term send, rather than service, in article 10(a) should be

attributed to careless drafting.

Other courts have held that the word “send” in article 10(a)

is not the equivalent of service of process. These courts have

interpreted article 10(a) as providing a method for sending sub-

sequent documents after service of process has properly been

obtained. Despite the broad purpose of the Hague Convention,

these courts have noted that the word “service” is used in other

sections of the Hague Convention, including subparts (b) and (c)

of article 10 and articles 9, 15 and 16, which all refer to forwarding

documents for the purpose of service. So, if the drafters had meant

for article 10(a) to provide an additional manner of service of judi-

cial documents, they would have used “service” instead of “send.”

We adopt the reasoning of courts that have decided that the

Hague Convention does not permit service by mail. In doing so,

we rely on the canons of statutory interpretation rather than the

ﬁckle presumption that the drafters’ use of the word “send” was a

mere oversight. “Absent a clearly expressed legislative intention

to the contrary,” a statute’s language “must ordinarily be regarded

as conclusive.” And because the drafters purposely elected to use

forms of the word “service” throughout the Hague Convention,

while conﬁning use of the word “send” to article 10(a), we will

not presume that the drafters intended to give the same meaning

to “send” that they intended to give to “service.”

****

Finally, we note that other provisions of the Hague Convention

describe more reliable methods of effecting service. Service of

process through a central authority under articles 2 through 7 and

service through diplomatic channels under articles 8 and 9 require

that service be effected through ofﬁcial government channels. It is

unlikely that the drafters would have put in place these methods

of service requiring the direct participation of government ofﬁcials,

while simultaneously permitting the uncertainties of service by

mail.

****

880 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Cross References

International child abduction, Chapter 2.B.1.

Forum non conveniens in litigation under the Alien Tort Statute

and Torture Victims Protection Act, Chapter 6.G.5.a.(2) and

(5) and 6.G.5.c.

Sanctions 881

881

CHAPTER 16

Sanctions

MODIFICATION OR LIFTING OF SANCTIONS

1. Terrorism-Related Measures

a. Taliban-controlled territory

As a result of the military action in Afghanistan, the Taliban

were driven from the territory in Afghanistan they had con-

trolled. Designations of the Taliban and Taliban-controlled

assets for purposes of sanctions imposition were accordingly

modiﬁed. In a letter to the president of the Security Council

dated December 14, 2001, the chairman of the UN Security

Council Committee established pursuant to paragraph 6 of

Resolution 1267 (1999) (“1267 Committee”), indicated the

rapidly changing circumstances concerning Taliban control

over territory in Afghanistan. The letter transmitted the fol-

lowing statement:

The Committee established by Security council resolu-

tion 1267 (1999) notes its responsibility under Security

council resolution 1333 (2000) to designate ‘territory

of Afghanistan under Taliban control’ for purposes of

deﬁning the coverage of the embargo. In light of the

rapidly changing situation in Afghanistan, the Committee

notes that maps of Afghanistan territory under Taliban

control are obsolete and rapidly become obsolete. The

Committee reminds member States of their continuing

obligations under all relevant Security Council resolutions

882 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

not to provide assistance to the Taliban, Al-Qaida, and

Usama bin Laden and individuals and entities associated

with them.

S2001/1226, available at www.un.org/Docs/sc/committees/

1267/1226e.pdf.

(1) Modiﬁcation of Executive Order 13129

On January 24, 2002, Richard L. Armitage, Deputy Secretary

of State, issued an order to modify the description of “territory

of Afghanistan controlled by the Taliban” in Executive Order

13129 to reﬂect his determination that the Taliban controls

no territory within Afghanistan. 67 Fed. Reg. 4301 ( Jan. 29,

2002). The notice is set forth below.

Executive Order 13129 of July 4, 1999, blocks property and

prohibits transactions with the Taliban. Under section 4(d) of this

Order, the Secretary of State, in consultation with the Secretary of

the Treasury, is authorized to modify the description of the term

“territory of Afghanistan controlled by the Taliban.” Acting under

the authority delegated to me by the Secretary of State in Delegation

of Authority 235 of October 14, 1999, and in consultation with

the Secretary of the Treasury, I hereby determine as of this date

that the Taliban controls no territory within Afghanistan, and

modify the description of the term “territory of Afghanistan

controlled by the Taliban” to reﬂect that the Taliban controls no

territory within Afghanistan.

(2) Termination of emergency

On July 2, 2002, President George W. Bush issued Executive

Order 13268. The order terminated the national emergency

described and declared in Executive Order 13129 of July 4,

1999, 64 Fed. Reg. 36757 (July 7, 1999), related to the actions

and policies of the Taliban based on the Taliban’s control of

Sanctions 883

territory in Afghanistan. At the same time, the order amended

Executive Order 13224 of September 23, 2001, 66 Fed. Reg.

49,079 (Sept. 25, 2001), to include reference to Mohammed

Omar and the Taliban in the annex to that order, thus

preserving the sanctions imposed against the Taliban.

Excerpts from the executive order are set forth below. For

a discussion of Executive Order 13224, see Digest 2001 at

881–887.

****

By the authority vested in me as President by the Constitution

and the laws of the United States of America, including the Inter-

national Emergency Economic Powers Act (50 U.S.C. 1701 et seq.),

the National Emergencies Act (50 U.S.C. 1601 et seq.) (NEA),

section 5 of the United Nations Participation Act of 1945, as

amended (22 U.S.C. 287c), and section 301 of title 3, United

States Code,

I, GEORGE W. BUSH, President of the United States of

America, ﬁnd that the situation that gave rise to the declaration of

a national emergency in Executive Order 13129 of July 4, 1999,

with respect to the Taliban, in allowing territory under its control

in Afghanistan to be used as a safe haven and base of operations

for Usama bin Ladin and the Al-Qaida organization, has been

signiﬁcantly altered given the success of the military campaign

in Afghanistan, and hereby revoke that order and terminate the

national emergency declared in that order with respect to the

Taliban. At the same time, and in order to take additional steps

with respect to the grave acts of terrorism and threats of terrorism

committed by foreign terrorists, the continuing and immediate

threat of further attacks on United States nationals or the United

States, and the national emergency described and declared in

Executive Order 13224 of September 23, 2001, I hereby order:

Section 1. The Annex to Executive Order 13224 of September

23, 2001, is amended by adding thereto the following persons in

appropriate alphabetical order:

Mohammed Omar (aka, Amir al-Mumineen [Commander of

the Faithful])

884 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The Taliban.

Sec. 2. For the purposes of this order and Executive Order

13224 of September 23, 2001, the term “the Taliban” is also

known as the “Taleban,” “Islamic Movement of Taliban,” “the

Taliban Islamic Movement,” “Talibano Islami Tahrik,” and

“Tahrike Islami’a Taliban”. The Secretary of State, in consultation

with the Secretary of the Treasury, is hereby authorized to modify

the deﬁnition of the term “the Taliban,” as appropriate.

Sec. 3. Nothing contained in this order shall create any right

or beneﬁt, substantive or procedural, enforceable by any party

against the United States, its agencies or instrumentalities, its

ofﬁcers or employees, or any other person.

Sec. 4. Pursuant to section 202 of the NEA (50 U.S.C. 1622),

termination of the national emergency with respect to the Taliban

shall not affect any action taken or proceeding pending not ﬁnally

concluded or determined as of the date of this order, or any action

or proceeding based on any act committed prior to the date of this

order, or any rights or duties that matured or penalties that were

incurred prior to the date of this order.

(3) International Trafﬁc in Arms Regulations

Also effective July 2, 2002, the Department of State removed

Afghanistan from the International Trafﬁc in Arms Regulations

Proscribed List. 67 Fed. Reg. 44,452 (July 2, 2002). A press

statement on that day explained the effect of the action taken.

It is available at www.state.gov/r/pa/prs/ps/2002/11606pf.htm.

The Department of State has ended its policy of denial with respect

to commercial defense trade with the Government of Afghanistan

(the Transitional Administration) by modifying the application

of the International Trafﬁc in Arms Regulations proscribed list

(22 C.F.R. section 126.1(a)) with respect to Afghanistan, effective

July 2, 2002.

The Department of State is amending the International Trafﬁc

in Arms Regulations to modify the policy of denial regarding

Sanctions 885

Afghanistan. It is the policy of the United States to deny licenses,

other approvals, exports and imports of defense articles, and

defense services destined for or originating in Afghanistan except

for the Government of Afghanistan and the International Security

Assistance Force (ISAF). All requests for licenses or other approvals

for these entities in Afghanistan involving items covered by the

U.S. Munitions List will no longer be presumed to be disapproved.

Any application for such a transaction will, of course, be analyzed

carefully on a case-by-case basis by the relevant U.S. Government

agencies to ensure that they conform to U.S. law and policy

objectives.

b. Continued Sanctions: UN Security Council Resolution 1390

On January 16, 2002, the Security Council of the United

Nations, acting under chapter VII of the UN Charter, adopted

Resolution 1390. U.N. Doc. No. S/RES/1390 (2002). In

Resolution 1390, the Security Council decided to continue

the measures imposed by paragraph 8(c) of Resolution 1333

(2000) and took note of the continued application of the

measures imposed by paragraph 4(b) of Resolution 1267

(1999). Together these two provisions froze funds and other

ﬁnancial resources owned or controlled directly or indirectly

by Usama bin Laden, members of the Taliban and the

al-Qaida organization, and their associates. The 1267 Com-

mittee, noted supra in B.1.a., is responsible, among other

things, for maintaining a list of individuals and entities

associated with al-Qaida, Usama bin Laden, and the Taliban

in order to implement the sanctions.

Paragraph 2 of Resolution 1390 required all states to

take the following measures with respect to those appearing

on the consolidated list maintained by the 1267 Committee:

(a) freeze without delay any funds and other ﬁnancial assets

or economic resources; (b) prevent the entry into or the

transit through their territories, and (c) prevent the direct

or indirect supply, sale and transfer of all arms and related

materiel, spare parts and technical advice, assistance, or

training related to military activities.

886 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

c. Guidelines for the 1267 Committee

On August 15, 2002, the Chairman of the 1267 Committee

issued a statement on de-listing procedures that provided a

non-exclusive mechanism for individuals and entities included

on the Committee’s consolidated list to petition for the

removal of their names from that list. On November 7, 2002,

the 1267 Committee adopted new guidelines for the conduct

of its work. The new guidelines included, among other things,

these non-exclusive procedures for “de-listing.” The relevant

section of the guidelines is set forth below. See discussion

of U.S. de-listing of certain entities in Chapter 3.1.c.

The statement of the chairman of the 1267 Committee

regarding the de-listing procedures is available at www.un.org/

News/Press/docs/2002/sc7487.doc.htm. The full text of the

guidelines is available at www.un.org/Docs/sc/committees/

1267/Template.htm.

****

6. De-listing

(a) Without prejudice to available procedures, a petitioner

(individual(s), groups, undertakings, and/or entities on the 1267

Committee’s consolidated list) may petition the government

of residence and/or citizenship to request review of the case.

In this regard, the petitioner should provide justiﬁcation for

the de-listing request, offer relevant information and request

support for de-listing;

(b) The government to which a petition is submitted (the petitioned

government) should review all relevant information and then

approach bilaterally the government(s) originally proposing

designation (the designating government(s) ) to seek addi-

tional information and to hold consultations on the de-listing

request;

tional information from the petitioner’s country of citizenship

or residency. The petitioned and the designating government(s)

Sanctions 887

may, as appropriate, consult with the Chairman of the Com-

mittee during the course of any such bilateral consultations;

(d) If, after reviewing any additional information, the petitioned

government wishes to pursue a de-listing request, it should

seek to persuade the designating government(s) to submit

jointly or separately a request for de-listing to the Committee.

The petitioned government may, without an accompanying

request from the original designating government(s), submit

a request for de-listing to the Committee, pursuant to the

no-objection procedure;

(e) The Committee will reach decisions by consensus of its

members. If consensus cannot be reached on a particular issue,

the Chairman will undertake such further consultations as may

facilitate agreement. If, after these consultations, consensus

still cannot be reached, the matter may be submitted to the

Security Council. Given the speciﬁc nature of the information,

the Chairman may encourage bilateral exchanges between

interested Member States in order to clarify the issue prior to

a decision.

d. Exceptions for basic expenses and other extraordinary expenses:

UN Security Council Resolution 1452

A number of countries, including the United States, had

concerns about the absence of express authorization in the

relevant UN resolutions to allow Member States to make

available to individuals funds and other ﬁnancial assets

or economic resources necessary to meet their basic living

needs and reasonable professional fees associated with the

provision of legal services, among other things. On December

20, 2002, the UN Security Council issued Resolution 1452,

U.N. Doc. No. S/RES/1452(2002), making technical correc-

tions to Resolutions 1267 and 1390. The amendments allow

for certain limited exceptions to existing ﬁnancial sanctions

against Usama bin Laden, members of the Taliban and the

al-Qaida organization, and their associates. Paragraph 1 of

Resolution 1452 provides that the Security Council, acting

under Chapter VII of the UN Charter:

888 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Decides that the provisions of paragraph 4 (b) of resolu-

tion 1267 (1999), and paragraphs 1 and 2 (a) of resolution

1390 (2002), do not apply to funds and other ﬁnancial

assets or economic resources that have been determined

by the relevant State(s) to be:

(a) necessary for basic expenses, including payments for

foodstuffs, rent or mortgage, medicines and medical

treatment, taxes, insurance premiums, and public

utility charges, or exclusively for payment of reason-

able professional fees and reimbursement of incurred

expenses associated with the provision of legal ser-

vices, or fees or service charges for routine holding or

maintenance of frozen funds or other ﬁnancial assets

or economic resources, after notiﬁcation by the rele-

vant State(s) to the Committee established pursuant

to resolution 1267 (1999) (hereinafter referred to as

“the Committee”) of the intention to authorize, where

appropriate, access to such funds, assets or resources

and in the absence of a negative decision by the

Committee within 48 hours of such notiﬁcation;

(b) necessary for extraordinary expenses, provided that

such determination has been notiﬁed by the relevant

State(s) to the Committee and has been approved

by the Committee. . . .

e. International cooperation in disruption of terrorist ﬁnancing

On November 20, 2002, Jimmy Gurulé, Under Secretary

for Enforcement, U.S. Department of the Treasury, testiﬁed

before the U.S. Senate Judiciary Committee on efforts taken

to disrupt terrorist ﬁnancing since September 11, 2001.

Excerpts below from the testimony focus on international

cooperative efforts, including the work of the 1267 Committee.

The full text of Under Secretary Gurulé’s testimony is

available at www.treasury.gov/press/releases/po3635.htm.

****

Sanctions 889

United Nations

Because of its global nature and its ability to require states to take

action under Chapter VII of the UN Charter, the UN offered the

quickest route for globalizing the war against terrorism in general

and terrorist ﬁnancing in particular. The United States has worked

diligently with the UN Security Council to adopt international

resolutions, which reﬂect the goals of our domestic executive orders

by requiring UN member states to freeze terrorist-related assets.

These UN Security Council resolutions form the legal basis for

freezing terrorist assets on a global basis.

The UN 1267 Committee is responsible for UN designations

of individuals and entities associated with al-Qaida, Usama bin

Laden, and the Taliban. States wishing to propose a name for

UN designation typically include a statement of the basis for

designation, along with identifying information for the use of

ﬁnancial institutions, customs and immigration ofﬁcials, and others

who must implement sanctions. If no state objects to the proposed

designation within 48 hours after a name is circulated by the

Committee Chairman, the designation becomes effective. The 1267

Committee then puts out an announcement on its web site and all

UN member states are required to freeze any assets held by the

designated party(ies), without delay.

We have worked with our allies in the UN to pursue bilateral

and multilateral designations of terrorist-related parties where

possible and appropriate. We have achieved some notable successes

in this area to date:

U.S.-Saudi Joint Designations—On March 11, 2002, the United

States participated in its ﬁrst joint designation of a terrorist

supporter. The United States and Saudi Arabia jointly designated

the Somalia and Bosnia-Herzegovina ofﬁces of Al Haramain, a

Saudi-based NGO. These two organizations are linked to al-Qaida

and their names were forwarded to the Sanctions Committee for

inclusion under the UNSCR 1333/1390 list. On September 9, 2002,

the United States and Saudi Arabia jointly referred to the Sanctions

Committee Wa’el Hamza Julaidan, an associate of Usama bin

Laden and a supporter of al-Qaida terror.

G7 [Group of Seven industrialized countries] Joint Designation

—On April 19, 2002, the United States, along with the other G7

890 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

members, jointly designated nine individuals and one organization.

Most of these groups were European-based al-Qaida organizers

and ﬁnanciers of terrorism.

Because of their al-Qaida links, all ten of these names were

forwarded to the UN Sanctions Committee for inclusion under

the UNSCR 1333/1390 list.

U.S.-Italy Joint Designation—On August 29, 2002, the

United States and Italy jointly designated 11 individuals and 14

entities. All of the individuals were linked to the Salaﬁst Group

for Call and Combat designated in the original U.S. Annex to

E.O. 13224. The 14 entities are part of the Nada/Nasreddin

ﬁnancial network, two terrorist ﬁnanciers designated on earlier

E.O. 13224 lists.

U.S.-Central Asia Joint Designation—On September 6, 2002,

the United States, Afghanistan, Kyrgyzstan, and China jointly

referred to the Sanctions Committee the Eastern Turkistan Islamic

Movement, an al-Qaida-linked organization which operates in

these and other countries in Central Asia.

Designation of Jemaa Islamiyya—On October 23, 2002, the

United States designated the Southeast Asian terrorist group, Jemaa

Islamiyya, suspected by many in the media of perpetrating the

deadly attacks on a nightclub in Bali on October 12th. In the

subsequent request of the United Nations to also designate this

group for its ties to the al-Qaida organization, the U.S. joined

Australia, Indonesia, Singapore, and 46 other countries, including

all the members of ASEAN and the EU, in requesting Jemaa

Islamiyya’s designation. This represents the most widespread show

of support of any terrorist designation to date.

Beyond designating terrorist-related parties for blocking

action on a global basis, the UN has also asked for countries to

identify needs for technical assistance in order to comply with UN

resolutions and conventions against terrorist ﬁnancing. The UN

has required all member states to submit reports on the steps they

have taken to implement the various actions against terrorist

ﬁnancing called for in UNSCR 1373. To date, 187 members have

completed their reports. The UN is reviewing those reports with

the intent of identifying gaps that member nations need to ﬁll in

order to comply with UNSCR 1373.

Sanctions 891

Financial Action Task Force (FATF)

Since 1989, the 31-member FATF has served as the preeminent

anti-money laundering multilateral organization in the world.

The United States has played a leading role in the development of

this organization. Capitalizing on this ﬁnancial crime expertise, on

October 31, 2001, at the United States’ initiative, the FATF issued

Eight Special Recommendations on terrorist ﬁnancing, requiring

all member nations to:

(1) Ratify the UN International Convention for the Suppression

of the Financing of Terrorism and implement relevant UN

Resolutions against terrorist ﬁnancing;

(2) Criminalize the ﬁnancing of terrorism, terrorist acts and

terrorist organizations;

(3) Freeze and conﬁscate terrorist assets;

(4) Require ﬁnancial institutions to report suspicious trans-

actions linked to terrorism;

(5) Provide the widest possible assistance to other countries’

laws enforcement and regulatory authorities for terrorist

ﬁnancing investigations;

(6) Impose anti-money laundering requirements on alternative

remittance systems;

(7) Require ﬁnancial institutions to include accurate and

meaningful originator information in money transfers;

and

(8) Ensure that non-proﬁt organizations cannot be misused to

ﬁnance terrorism.

Many non-FATF counties have committed to complying with

the Eight Recommendations and over 90 non-FATF members

have already submitted self-assessment questionnaires to FATF

describing their compliance with these recommendations. Together

with the Departments of State and Justice, Treasury will con-

tinue to work with the FATF to build on its successful record in

persuading jurisdictions to adopt anti-money laundering and anti-

terrorist ﬁnancing regimes to strengthen global protection against

terrorist ﬁnance.

892 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

As part of this effort, FATF has established a Working Group

on Terrorist Financing (Working Group), which the United States

is co-chairing with Spain, devoted speciﬁcally to developing and

strengthening FATF’s efforts in this ﬁeld. At the most recent FATF

Plenary in October 2002, the Working Group, in collabora-

tion with the World Bank, the IMF, and the UN CTC, identiﬁed

a number of countries to receive priority technical assistance in

order for them to come into compliance with the Eight Special

Recommendations on Terrorist Financing.

Egmont Group

Through the Department of the Treasury Financial Crimes Enforce-

ment Network (“FinCEN”), we have directed the attention of the

Egmont Group towards terrorist ﬁnancing. The Egmont Group

represents 69 Financial Intelligence Units (FIUs) from various

countries around the world. FinCEN is the FIU for the United

States. The FIU in each nation receives ﬁnancial information (such

as SARs) from ﬁnancial institutions pursuant to each government’s

particular anti-money laundering laws, analyzes and processes

these disclosures, and disseminates the information domestically

to appropriate government authorities and internationally to other

FIUs in support of national and international law enforcement

operations.

Since September 11th, the Egmont Group has taken steps to

leverage its information collection and sharing capabilities to

support the United States in its global war on terrorism. On

October 31, 2001, FinCEN hosted a special Egmont Group meeting

that focused on the FIUs’ role in the ﬁght against terrorism. The

FIUs agreed to: (i) work to eliminate impediments to information

exchange; (ii) make terrorist ﬁnancing a form of suspicious activity

to be reported by all ﬁnancial sectors to their respective FIUs;

(iii) undertake joint studies of particular money laundering

vulnerabilities, especially when they may have some bearing on

counterterrorism, such as hawala; and create sanitized cases for

training purposes.

Approximately ten additional candidate FIUs currently are

being considered for admission to the Egmont Group. Egmont has

Sanctions 893

conducted and will continue to host training sessions to improve

the analytical capabilities of FIU staff around the world. FinCEN

is heavily engaged in these efforts and recently participated in the

international training session held Oaxaca, Mexico, co-hosted with

the UN.

Bilateral/Multilateral Law Enforcement Cooperation

An unintended consequence for al-Qaida of its heinous actions

on September 11th has been unprecedented international law

enforcement cooperation and information sharing on a scale

inconceivable prior to the 9/11 attack. As these efforts continue

to improve, terrorist cells and networks become more vulnerable.

Let me brieﬂy recount some of our successes with respect to

international law enforcement cooperation:

U.S.-Swiss Operative Working Arrangement: On September

4, 2002, a working arrangement signed by the Attorney Generals

of Switzerland and the United States and the Deputy Secretary of

the Treasury was agreed to in Washington. Under this arrangement,

Swiss and U.S. federal agents have been assigned to each country’s

terrorism and terrorist ﬁnancing task forces in order to accelerate

and amplify work together on cases of common concern. Bilateral

cooperation and assistance is occurring on a more informal basis

in many other countries.

Successful Results: International law enforcement coopera-

tion has resulted in approximately 2290 arrests of suspected

terrorists and their ﬁnanciers in 99 countries from September 12,

2001 through October 28, 2002. Some of these arrests have led

to the prevention of terrorist attacks in Singapore, Morocco and

Germany, and have uncovered al Qaida cells and support net-

works in Italy, Germany, Spain, the Philippines and Malaysia,

among other places. In addition, soon after September 11th, a

Caribbean ally provided critical ﬁnancial information through

its FIU to FinCEN that allowed the revelation of a ﬁnancial

network that supported terrorist groups and stretched around the

world.

****

894 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

2. Iraq Oil-for-Food Program

a. UN Security Council Resolution 1409

In May 2002 the United States led an initiative to streamline

UN procedures for the export of goods into Iraq under the

Oil-for-Food Program, established under UN Security Council

Resolution 986, April 14, 1995. U.N. Doc. No. S/RES/1409

(2002). Resolution 1409 authorized the export of all goods,

except those prohibited under the arms embargo or contained

on a list of “dual-use” items that could have military or

weapons of mass destruction applications. Items on this

“Goods Review List” are subject to special review procedures.

The full text of remarks by Secretary of State Colin L. Powell,

May 14, 2002, in Reykjavik, Iceland, welcoming the adoption

of Resolution 1409 is provided below.

Secretary Powell’s remarks are available at www.state.gov/

secretary/rm/2002/10130pf.htm.

I applaud the action by the UN Security Council to adopt resolution

1409. This vote puts in place a new export control system for

exports to Iraq—a major achievement that has been under

negotiation since the beginning of last year. This unanimous

decision reafﬁrms the broad consensus on Iraq within the Security

Council that re-emerged last November when the Council passed

resolution 1382. With resolution 1409, the Council has agreed

that ﬁrm, focused controls must stay in place to prevent Iraq from

re-establishing its conventional, ballistic missile, nuclear, chemical,

and biological weapons programs. The need for such controls will

remain until Iraq complies fully with all of its UN obligations.

Today’s resolution demonstrates the Council’s continued

determination to meet the needs of the Iraqi people. The Council’s

new system, based on a “Goods Review List,” effectively lifts UN

controls on Iraq’s ability to purchase and import civilian goods.

This signiﬁcant step will improve the Iraqi regime’s ability to meet

the needs of its people, unless Baghdad continues to subvert the

Oil-for-Food program as it does today, to the detriment of the

Iraqi people.

Sanctions 895

Finally, the Council’s vote today reafﬁrms the responsibility of

all states to fully enforce UN Security Council resolutions. The

Iraqi regime represents a threat to its own people, its region and

the international community. The U.S. intends to continue working

with the UN and with our friends and coalition partners to enforce

UN resolutions on Iraq vigorously. We expect every other nation

to do the same. Under this new export control system, with its

simple, expedited process for exporting civilian goods to Iraq,

there can be no excuse for any country to evade the focused

controls aimed at preventing the Iraqi regime’s re-armament.

b. Revisions in UN Security Council Resolution 1454

On December 30, 2002, the UN Security Council adopted

Resolution 1454, endorsing revisions to the Goods Review

List. The items added to the revised list included chemicals

and equipment useful in the production of chemical and

biological weapons, medical autoinjectors that could be

used in the event of a chemical weapons attack, guidance

equipment and jammers with military applications, and

speciﬁed medicines with particular value for chemical and

biological warfare applications. Excerpts below from a fact

sheet released by the Department of State on January 14,

2003, describe the effect of Resolution 1454.

The full text of the fact sheet is available at http://

usinfo.state.gov/regional/nea/iraq/text2003/0114list.htm.

****

When Resolution 1409 passed in May 2002, the Security Council

envisioned that “regular, thorough reviews” of the List and the

procedures for its implementation would occur, and that any

necessary adjustments would be made. The Security Council has

now carried out one such review and as a result has agreed to

revisions to both the List and procedures. These changes, adopted

in Security Council Resolution 1454 on December 30, 2002, reﬂect

the will of the UN Security Council on how best to ensure the

steady ﬂow of purely civilian goods to the Iraqi people, while

896 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

maintaining critical controls on items that could be exploited for

military uses by Saddam Hussein.

Resolution 1454 heightens the scrutiny over exports of a

discrete set of goods that could support the Iraqi military and

facilitate the development and use of weapons of mass destruction.

Among the goods added to the revised GRL: speciﬁed chemicals

and equipment useful in the production of chemical and biological

weapons and their precursors; medical autoinjectors useful in the

event of battleﬁeld or terrorist chemical weapons use; guidance

equipment and jammers with military applications; and other

vehicles and related technology of value in particular military

applications. Under certain conditions, speciﬁed medicines with

particular value in chemical and biological warfare applications

will also be reviewed.

Frequently Asked Questions

Q: Will the changes deny needed medicines to the Iraqi people?

A: No. The UN Sanctions Committee on Iraq will review requests

for speciﬁed medications that have military use, when the requests

are for quantities grossly in excess of any humanitarian civilian

requirement. The United States opposes allowing the Iraqi military

to stockpile quantities of certain medicines that could be used to

protect its troops in the event Iraq used chemical or biological

weapons.

Q: What other goods will be denied to the Iraqi population by the

changes to the List?

A: The adopted changes do not automatically deny any item to

the Iraqi people. The Goods Review List is not a denial list.

Resolution 1454 simply calls for the UN Monitoring, Veriﬁcation

and Inspection Commission (UNMOVIC) and the International

Atomic Energy Agency (IAEA) to refer items that have military

applications to the Security Council for review.

Q: Will the changes to the List otherwise affect the import of

civilian goods into Iraq?

A: The changes do not alter the objective of UNSC Resolution

1409, which created the present Goods Review List. The objective

Sanctions 897

was to streamline UN oversight of the export to Iraq of purely

civilian goods, while maintaining critical controls on militarily

useful items. By enhancing international conﬁdence in the accuracy

and effectiveness of controls on dual-use items, some known to

have been misused by Iraq, the adopted revisions facilitate both

the implementation of the Oil-for-Food Program and the import

of civilian goods not subject to the Program.

Q: Will the changes in procedures delay the approval of

contracts?

A: No. In fact, resolution 1454 underscored the Council’s intention

to ensure that needed humanitarian supplies reach the Iraqi

population as rapidly as possible. This new resolution does not

change the requirement for the evaluation of contracts for exports

to Iraq. Under Resolution 1409, the UN Monitoring, Veriﬁcation

and Inspection Commission (UNMOVIC) and the International

Atomic Energy Agency (IAEA) conduct an initial evaluation of all

export contracts submitted to the UN’s Ofﬁce of Iraq Programs.

The procedural changes adopted under Resolution 1454 do,

however, clarify the responsibilities of UNMOVIC and IAEA in

making their evaluations, and minimize ambiguities in those

deliberations.

3. Unblocking of Assets of the Federal Republic of Yugoslavia

(Serbia & Montenegro)

On December 27, 2002, the Foreign Assets Control Ofﬁce,

Department of the Treasury, issued a ﬁnal rule providing

for general licenses, effective February 25, 2003, unblocking

certain property and property interests currently blocked

pursuant to two sets of regulations: the Federal Republic

of Yugoslavia (Serbia & Montenegro) and Bosnian Serb-

controlled areas of the Republic of Bosnia and Herzegovina

Sanctions Regulations, 31 C.F.R. § 585 (2002), and the Fed-

eral Republic of Yugoslavia (Serbia & Montenegro) Kosovo

Sanctions Regulations, 31 C.F.R. § 586 (2002). 67 Fed. Reg.

78,973 (Dec. 27, 2002). A statement from the Department of

State explained the action as follows:

898 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The United States today has moved signiﬁcantly closer

to normalizing economic relations with all of the suc-

cessor states of the former Yugoslavia by taking steps

toward unblocking a substantial portion of the blocked

assets of the former Yugoslavia (Socialist Federal Republic

of Yugoslavia.) . . . These assets were blocked during the

1990s under a series of economic sanctions imposed by

the United States in response to the Milosevic-era wars

in the former Yugoslavia.

The United States ﬁrmly believes that economic

growth and foreign investment are critical to the eco-

nomic recovery and political stability of each state in

Southeastern Europe and the region as a whole. By

unblocking these assets, the United States hopes to aid

in improving the regional economic environment and

fostering increased trade and investment in Southeastern

Europe.

Press Statement, December 27, 2002, available at

www.state.gov/r/pa/prs/ps/2002/16238pf.htm.

Excerpts below from the Federal Register notice explain

the background and effect of the current action. See also

Digest 2001 at 803–808.

****

Pursuant to Presidential Determination No. 96–7 of December

27, 1995 (61 FR 2887, January 29, 1996), and Executive Order

13192 of January 17, 2001 (66 FR 7379, Jan. 23, 2001), most

Treasury-administered sanctions imposed upon the Federal

Republic of Yugoslavia (Serbia & Montenegro) (the “FRY(S&M)”)

in response to the actions of the FRY(S&M) in Bosnia and

Herzegovina from 1992 through 1995 and with respect to Kosovo

from 1998 through 2000 have been suspended or lifted. Never-

theless, most property and interests in property blocked under

either the Bosnia-related sanctions regulations (31 CFR part 585)

or the Kosovo-related sanctions regulations (31 CFR part 586)

have remained blocked, primarily to provide for the address of

Sanctions 899

claims and encumbrances that may be associated with such

property or interests in property, including potential claims of

the successor states of the former Socialist Federal Republic of

Yugoslavia.

As part of the U.S. Government’s efforts to assist the

FRY(S&M) in recovering from the effects of the Milosevic regime,

certain steps are being taken to unblock much of the remaining

property and interests in property blocked under either 31 CFR

part 585 or 31 CFR part 586. On October 3, 2001 (66 FR 50506),

OFAC issued an interim ﬁnal rule amending 31 CFR part 586,

which included authorization for the unblocking of certain

Yugoslav debt and authorization for the release of certain blocked

ﬁnancial transfers. At present, OFAC is issuing general licenses,

effective February 25, 2003, authorizing the unblocking of all

remaining blocked property and interests in property, except

(i) property or interests in property of diplomatic and/or consular

missions of the former Socialist Federal Republic of Yugoslavia,

(ii) property or interests in property of those persons who are

presently subject to sanctions under either the Federal Republic

of Yugoslavia (Serbia & Montenegro) Milosevic Regulations set

forth at 31 CFR part 587 or the Western Balkans Transactions

Regulations set forth at 31 CFR part 588, or who are otherwise

subject to sanctions under other parts of 31 CFR chapter V, and

(iii) the property or interests in property of the central bank of the

former Socialist Federal Republic of Yugoslavia, i.e., the National

Bank of Yugoslavia, that have been blocked pursuant to 31

CFR part 585. (Property and interests in property of the National

Bank of Yugoslavia blocked pursuant to 31 CFR part 586 will

be unblocked pursuant to the general license being issued at

§ 586.520.)

In order to allow for claims and encumbrances associated

with the property and interests in property being unblocked to be

addressed in a manner consistent with Presidential Determination

No. 96–7 and Executive Order 13192, OFAC is also issuing general

licenses, effective December 27, 2002, authorizing any person or

government to seek judicial or other legal process with respect to

property or interests in property being unblocked. These general

licenses are intended to help persons and governments, including

900 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

the successor states to the former Socialist Federal Republic of

Yugoslavia, to protect any rights they may have with respect to

such property or interests in property. These general licenses do

not constitute a determination that any particular property or

interest in property subject to the unblocking authorization would

not be subject to defenses against any judicial or legal process,

including claims of immunity.

Cross References

Terrorism-related sanctions, Chapter 3.B.1.a.-d.

Legislation concerning use of blocked assets for terrorism claims,

Chapter 8.B.1.b.

Non-proliferation sanctions, Chapter 18.C.6.

International Conﬂict Resolution and Avoidance 901

901

CHAPTER 17

International Conﬂict

Resolution and Avoidance

A. GENERAL

Role of International Law in Resolving Conﬂict and

Controlling Violence

On October 26, 2002, William H. Taft, IV, Legal Adviser of

the Department of State, addressed the annual luncheon

of the American Branch of the International Law Association

in New York City during its 2002 annual international law

weekend entitled “The Challenge of September 11: Inter-

national Law and the Control of Violence.” Mr. Taft’s views,

set forth below, addressed the evolving role of international

law in controlling violence in the international arena as the

international community responds to new challenges,

particularly global terrorism.

Recently, a sniper, who appears to have selected his victims at

random, has plagued the Washington area. The unpredictability

of his attacks presented a unique challenge to law enforcement

and reminds us of an unwelcome truth: when criminals act outside

established norms, the effectiveness of traditional approaches to

preventing crime is diminished, as law enforcement has to react to

the last bad act, rather than be in a position to prevent the next

incident.

Some of the traditional assumptions of basic police work—for

example, that murder victims are killed because of who they are,

902 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

even if only that they ﬁt a set of characteristics, or incidental to

some other relatively well understood activity like robbing a bank—

were inapplicable in this situation. New methods and ways of

thinking have to be developed in these new circumstances.

International law and institutions have been similarly chal-

lenged in recent years. Most recently, international terrorists

engaged in a random attack killing almost 200 people in the

peaceful vacation destination of Bali, Indonesia. This attack was

carried out by individuals, perhaps part of an organized criminal

network operating on an international scale, but not likely con-

nected to an organized state. Like other terrorist attacks—

September 11, the embassy bombings in East Africa—this one

stresses the international legal system.

What can international law do in this situation?

As a legal system, international law is traditionally turned to

as a way to control violence among and between states. National

law has been relied upon for prosecution of individuals, with the

exception of the most heinous conduct—war crimes, genocide and

crimes against humanity—that has been made the business of ad

hoc international tribunals from time to time.

However, the events of 9/11 and the efforts of the world

community to combat global terrorism since have blurred the lines

between individual actor and organized network, organized net-

work and recognized state. In the process, the distinction between

national law enforcement and the use of force internationally—

and the different laws regulating the conduct of these activities—

has also been tested.

A review of the traditional institutions used to control violence

in the international arena suggests four principal elements. . . .

First, there are the different fora available for peaceful

resolution of international disputes. These can be either permanent

courts, ad hoc tribunals or arbitration panels. The states of the

European Union have a multi-lateral agreement to submit certain

disputes among the member states to the E.U. Court of Justice

and abide by its decisions. Similarly, the ICJ resolves disputes

among member states to the United Nations where they have agreed

to its jurisdiction. The U.S. is party also to several treaties calling

for arbitration in the event of a disagreement between states. The

International Conﬂict Resolution and Avoidance 903

peaceful resolution of contentious disputes in these and similar

fora is designed to prevent and has prevented many international

conﬂicts from becoming violent. Even where conﬂict has begun,

arbitration has sometimes brought it to an end.

Second, the United Nations and the United Nations Security

Council speciﬁcally have responsibility for maintaining or restoring

international peace and security. The Council encourages peaceful

resolution of internal and external conﬂicts, engages in investigation

and mediation between parties, and, when necessary, employs

multi-national blue-helmeted troops to reduce tensions and keep

opposing forces apart to create a calm from which peace may

emerge.

East Timor and Kosovo provide recent examples of the

Council’s ability to control violence. Currently, the Council

is providing interim law enforcement, critical administrative

services, as well as internal and external security to assist the new

democratically elected government in East Timor maintain stab-

ility and peace. In Kosovo, the UN is responsible for civilian

administration.

Third, we should recall that international law recognizes the

right of nation states to use force in self defense or threaten the

use of force to deter aggression against them. These internationally

approved rights discourage international conﬂict. States hesitate

to initiate conﬂict knowing that opposing forces may legally resist

them.

Nor, in the classical model, does international law abdicate its

responsibility for controlling violence even when states resort to

armed conﬂict. The laws of war and armed conﬂict comprise a

fourth element of international law that regulates the use of force.

Through the rules of necessity and proportionality, by providing

for the protection of civilians and by providing members of

opposing forces with certain protections and assurances, inter-

national law seeks to limit the effects of war and its most violent

features.

In these four respects, as well as others that operate less directly,

international law seeks to regulate the international conduct of

states. With respect to individuals, international law has addressed

only the most serious conduct, such as war crimes, genocides and

904 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

crimes against humanity. In extraordinary cases, individuals

have previously been prosecuted through ad hoc tribunals like

those established for the former Yugoslavia, Rwanda or Sierra

Leone. Generally, however, individual cases have been seen as the

responsibility of national courts, where the actor is prosecuted

for a violation of a domestically deﬁned crime. This has been the

traditional division of labor.

The last year has exposed a tension in this classic model in

several different ways, as we have sought to respond to the terrorist

attacks of al Qaeda on September 11. Those attacks are clearly

violations of domestic criminal laws and thus a proper subject of

traditional law enforcement.

At the same time, however, al Qaeda operates on an

international scale and it requires the use of military force to defend

against it. In this situation, we have had to determine where law

enforcement operations end and military operations, with their

different rules of conduct, begin. We have had to make choices

regarding which rules to apply and to whom. Deﬁnitions cus-

tomarily used to guide such decisions have proved difﬁcult to

apply to a stateless entity such as al Qaeda as well as its individual

members, who are nationals of states that are allied with us in the

war against terrorism.

National law provides us with tools to seek out and prosecute

particular actors for certain statutorily deﬁned crimes. It also

affords those suspected of crimes with certain rights—for example,

not to be arrested and detained without charge—but 9/11 has

shown us that we are not dealing simply with individual actors.

Al Qaeda is a global organization with military capacity, an entity

without an organized state, but one that exercised signiﬁcant

control over the Taliban regime in Afghanistan.

National law enforcement mechanisms are insufﬁcient to

deal with a multi-national militarized opponent. Military force is

required, which moves us toward the application of the laws of

armed conﬂict. These laws clearly authorize the detention of enemy

combatants while hostilities continue—regardless of whether they

are charged with criminal offenses. At the same time, they also

permit lawful combatants to engage members of an opposing unit

without incurring individual criminal liability.

International Conﬂict Resolution and Avoidance 905

But the question emerged, are members of al Qaeda lawful

combatants? For a number of reasons, we have determined that

they are not. The attacks on the World Trade Center and the

Pentagon demonstrate al Qaeda’s lack of regard for internationally

agreed upon rules of combat.

Further, al Qaeda members lack a clearly distinctive identiﬁer

such as a uniform or insignia. They operate under a diffuse

command structure with independent cells, who may or may not

be aware of each other’s existence. The command structure is not,

in any case, intended to assure compliance with the laws of armed

conﬂict, quite the opposite. These characteristics have led us to

designate al Qaeda members as “unlawful combatants,” in an

international armed conﬂict. They may be criminals as well, but as

“unlawful combatants” they do not enjoy the same rights as accused

criminals until they are actually charged, and then they enjoy them

only in connection with the operation of the criminal process.

Because of the different rules that apply in armed conﬂict,

identifying the beginning or end of a conﬂict has become more

important in the post 9/11 world at the same time it has become

more challenging. While one might point to the tragedy of last fall

as a starting point, the attack on the USS Cole off Yemen in 1998

or the coordinated bombings of our embassies in Dar es Salaam

and Nairobi in 1997 may also be seen as part of the al Qaeda

campaign. Indeed, the conﬂict may have begun with the ﬁrst

attempt on the World Trade Center in 1992.

At this point, however, it seems less important to know when

the conﬂict with al Qaeda began than to determine when it will

end. Historically, the cessation of hostilities has been marked by

the signing of a peace treaty or, minimally, agreement to the terms

of a cease-ﬁre. However, neither event seems likely in the war on

terrorism.

Perhaps the conclusion of the U.S. bombing campaign in

Afghanistan and the subsequent regime change marked the end of

a phase of the war, but when one considers the non-state nature

of the opposition and the related terrorist activity that continues

elsewhere, it becomes less clear. The recent attacks on U.S. marines

in Kuwait and the bombing in Bali are evidence of the continuing

nature of the conﬂict.

906 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

In general, the absence of a formal command system that would

itself sanction continuation of hostilities by individual units makes

the end of the conﬂict hard to establish. The issue is important, of

course, because enemy combatants are not entitled to release under

the laws of armed conﬂict until hostilities end. At that point, those

not subject to criminal charges should be repatriated.

The difﬁculty of determining when a conﬂict ends helps to

demonstrate the tension between law enforcement mechanisms

and the laws of armed conﬂict. The two have very different

objectives. The purpose of a law enforcement operation is to bring

individuals to justice for a particular crime committed. An armed

conﬂict arises out of an unsettled dispute, traditionally between

two states, where one side seeks to stop the other from achieving

a—usually political—objective. Because the interest in bringing

individuals to justice is secondary under the laws of armed conﬂict,

special protections for individual soldiers are generally adhered to

by both sides. As you can see, then, we have had to address the

tensions between rules governing law enforcement activity and

those regulating armed conﬂict in the past year. We are still

wrestling with some of them.

The last year has likewise presented difﬁcult challenges to the

U.N. Security Council in its role of maintaining international peace

and security.

The Security Council responded swiftly and strongly to the

events of 9/11. Resolution 1368, passed September 12, 2001, called

on states to “redouble their efforts to prevent and suppress terrorist

acts including by increased cooperation and full implementa-

tion of relevant international anti-terrorism conventions.” The

resolution also reafﬁrmed, in clear terms, the “inherent right of

individual or collective self-defense.” These actions signaled that

the Council viewed a defensive use of force as a justiﬁed response

to the tragedy. Responding to the Council’s call, a coalition of

nations moved forward to control the threat to peace and security

posed by terrorist groups and the nations that host them.

However, the chapter remains to be written on how the Security

Council addresses the situation in Iraq, and how that turns out

will say a good deal about our ability to control violence through

international law using that institution in the future.

International Conﬂict Resolution and Avoidance 907

For more than a decade, the U.N. has given the Iraqi regime

opportunities to carry out its obligations under a series of

resolutions. In addition to at least 30 U.N. Presidential statements

deploring the unacceptable conduct of the Iraqi regime, the Security

Council has passed 16 binding resolutions designed to stop Iraq

from posing a threat to international peace and security. Iraq has

violated each of them. The U.N. has also imposed strict economic

sanctions upon Iraq. Iraq has circumvented each of them. The

ability of the Council to control violence is diminished, perhaps

beyond repair, if its resolutions are violated repeatedly without

consequence.

The United States is continuing to work with the U.N. to

approach this problem collectively even now, in the same way the

global community came together after 9/11 to address a global

threat to security. We hope that the next resolution by the Secur-

ity Council addressing Iraq includes a clear delineation of the

consequences of continued and future violations. How effectively

the Council deals with Iraq will largely determine its effectiveness

as an institution controlling violence for years to come.

Recently, international law has seen several creative attempts

to control violence, and I would like to comment brieﬂy on some

of them. The consideration of new institutions and approaches is

not in itself unwelcome. In some instances, however, it has the

potential to undermine the abilities of the existing bodies. Perhaps

the most widely publicized recent development is the establishment

of the International Criminal Court by some seventy state parties

to the Rome Statute. Whatever its virtues, this institution will

regrettably complicate the work of the Security Council and indi-

vidual states to control violence and diminish their effectiveness.

The I.C.C. was created to stand as a permanent international

tribunal, charged with the prosecution of individuals for certain

identiﬁed international crimes. In contrast, the Security Council is

charged with maintaining peace and stability among states. Both

institutions aim to control violence through the application of

law. However, it is likely that their efforts in this regard may be

inconsistent with each other. This is because the court acts

independently of the Security Council—and indeed of any other

political authority.

908 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The unchecked authority given to the I.C.C. by the Rome

Statute may undermine the role of the Security Council in main-

taining international peace and security in several ways.

The court could interfere, for example, with the ability of a

nation to address past wrongs in a domestic institution, such as

the truth and reconciliation commissions in South Africa. It could

interfere with the ability of the Council to intercede and establish

tribunals that address the speciﬁc needs of a party or conﬂict in

specially tailored ways, as has been done in Rwanda, Yugoslavia

and Sierra Leone. Finally, the court could interfere with the ability

of the Council to broker peace and maintain stability among states

through mediation and compromise. An independent prosecutor

may upset the delicate negotiating process without any supervision

by the U.N.

The Rome Statute also purports to extend the court’s

jurisdiction beyond party states. Such an extension may inhibit

the use of force in self-defense by non-party states. As previously

discussed, the inherent right of self defense and even the threat of

conﬂict are important elements in international law for the control

of violence.

If the I.C.C. prosecutor and judges undertake to review the

security decisions of non-party states, however, the court could

have a chilling effect on the willingness of states to take steps to

defend their security interests for fear of later prosecution. This

could in turn encourage aggression.

Those establishing the court evidently think that the court’s

insulation from political control is a beneﬁt in this regard. But if

the prosecutor and judges themselves have political views and act

on them, the insulation will prove a serious defect. The story of

the sorcerer’s apprentice is instructive.

Finally, the purported extension of jurisdiction to non-party

states complicates traditional U.N. Security Council peacekeeping

missions that include personnel from those states. The United States

believes that by putting U.S. ofﬁcials, and our uniformed women

and men, at risk of politicized prosecutions, the I.C.C. will inhibit

U.S. military cooperation with friends and allies who may, in

certain circumstances and in the absence of special agreements we

are in the process of negotiating, now have a treaty obligation to

International Conﬂict Resolution and Avoidance 909

hand over U.S. nationals to the I.C.C. when requested, even over

U.S. objection. The United States is a large and often critically

important contributor of troops in support of peacekeeping

missions worldwide. While the U.N. has requested a one-year

waiver from I.C.C. jurisdiction for persons participating in

peacekeeping missions authorized by the Security Council, the

extension of jurisdiction to non-party states still raises signiﬁcant

concerns for such missions in the future.

Another recent development in international law somewhat

related to the Rome Statute has been the proliferation of national

criminal and civil statutes of universal application. Many see this

as a way to enforce international humanitarian law through

national courts; however, such statutes can act to undermine the

efforts of other institutions and laws designed to maintain peace

and stability.

In 1999, Belgium extended previous universal competence laws,

with the intention of granting its courts jurisdiction over additional

crimes, regardless of the location of the crime or the alleged criminal

actor. The Belgians used this law to secure convictions of four

Rwandans, resident in Belgium, for crimes connected to the 1994

Rwandan genocide. In 2002, the International Court of Justice

narrowed the reach of Belgian law, ruling that sitting ministers

of foreign nations were immune from prosecution in Belgian

courts. . . .

Today, the Belgian parliament again has under consideration

a bill that would extend its criminal laws to any actor, regardless

of where the alleged criminal incident occurred. Other states are

considering similar laws. However well meaning these statutes

may be, they suffer from many of the same faults discussed earlier

in the context of the I.C.C. without a deﬁned system of checks

and balances, prosecutions under these and similar laws would be

subject to politicization. Like the I.C.C., without supervision, pro-

secutions in this court can undermine sensitive political agreements,

designed to bring about or maintain a fragile peace, as well as

make it more difﬁcult to reach such agreements in the ﬁrst place.

In the civil area, the Alien Tort Statute has been used

increasingly to provide a U.S. forum in which international victims

of human rights abuses can seek redress from the abusers. While

910 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

many lawsuits brought under their statute have served to call

attention to situations in which persons or groups have been

dreadfully treated—and this, indeed, may have been the principal

objective of several plaintiffs—the effectiveness of these lawsuits

in controlling violence is questionable.

Nor do they tend to produce much compensation for the

victims of abuse, although some lawyers have prospered from

settlements. There are quite a few of these suits pending, and it

remains to be seen how they will work out. Speaking for myself,

however, I would say, from what I have seen of them, that whatever

the merits of the suits as a matter of tort law, the likelihood that

civil litigation in U.S. courts will contribute signiﬁcantly to the

solution of human rights abuses in foreign lands seems small.

****

These are just a few of the issues that have arisen over the past

year in the ﬁeld of international law as we seek to resolve conﬂict

and control violence. As you can see, the traditional model has

been stressed as it has been applied to new situations. Some new

ideas are being tried out. As new ideas and approaches are tried

out, traditional institutions will continue to redeﬁne and reassert

their roles. With the number of issues facing the global community

today, there will certainly be more to talk of next year.

B. SPECIFIC COUNTRIES AND REGIONS

1. Middle East

a. Statement by President Bush

In a speech delivered at the White House on June 24, 2002,

President George W. Bush announced a plan for a path to

peace in the Middle East. Excerpts of the speech provided

below set forth his vision of Israelis and Palestinians in “two

states, living side by side in peace and security.”

The full text is available at www.whitehouse.gov/news/

releases/2002/06/20020624-3.html.

International Conﬂict Resolution and Avoidance 911

For too long, the citizens of the Middle East have lived in the

midst of death and fear. The hatred of a few holds the hopes of

many hostage. The forces of extremism and terror are attempting

to kill progress and peace by killing the innocent. And this casts a

dark shadow over an entire region. For the sake of all humanity,

things must change in the Middle East.

It is untenable for Israeli citizens to live in terror. It is untenable

for Palestinians to live in squalor and occupation. And the current

situation offers no prospect that life will improve. Israeli citizens

will continue to be victimized by terrorists, and so Israel will

continue to defend herself.

In the situation the Palestinian people will grow more and

more miserable. My vision is two states, living side by side in

peace and security. There is simply no way to achieve that peace

until all parties ﬁght terror. Yet, at this critical moment, if all

parties will break with the past and set out on a new path, we can

overcome the darkness with the light of hope. Peace requires a

new and different Palestinian leadership, so that a Palestinian state

can be born.

I call on the Palestinian people to elect new leaders, leaders

not compromised by terror. I call upon them to build a practicing

democracy, based on tolerance and liberty. If the Palestinian people

actively pursue these goals, America and the world will actively

support their efforts. If the Palestinian people meet these goals,

they will be able to reach agreement with Israel and Egypt and

Jordan on security and other arrangements for independence.

And when the Palestinian people have new leaders, new

institutions and new security arrangements with their neighbors,

the United States of America will support the creation of a

Palestinian state whose borders and certain aspects of its

sovereignty will be provisional until resolved as part of a ﬁnal

settlement in the Middle East.

In the work ahead, we all have responsibilities. The Palestinian

people are gifted and capable, and I am conﬁdent they can achieve

a new birth for their nation. A Palestinian state will never be

created by terror—it will be built through reform. And reform

must be more than cosmetic change, or veiled attempt to preserve

the status quo. True reform will require entirely new political and

912 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

economic institutions, based on democracy, market economics and

action against terrorism.

Today, the elected Palestinian legislature has no authority, and

power is concentrated in the hands of an unaccountable few. A

Palestinian state can only serve its citizens with a new constitu-

tion which separates the powers of government. The Palestinian

parliament should have the full authority of a legislative body.

Local ofﬁcials and government ministers need authority of their

own and the independence to govern effectively.

The United States, along with the European Union and Arab

states, will work with Palestinian leaders to create a new consti-

tutional framework, and a working democracy for the Palestinian

people. And the United States, along with others in the international

community will help the Palestinians organize and monitor fair,

multi-party local elections by the end of the year, with national

elections to follow.

Today, the Palestinian people live in economic stagnation, made

worse by ofﬁcial corruption. A Palestinian state will require a

vibrant economy, where honest enterprise is encouraged by honest

government. The United States, the international donor community

and the World Bank stand ready to work with Palestinians on a

major project of economic reform and development. The United

States, the EU, the World Bank, the International Monetary Fund

are willing to oversee reforms in Palestinian ﬁnances, encouraging

transparency and independent auditing.

And the United States, along with our partners in the developed

world, will increase our humanitarian assistance to relieve

Palestinian suffering. Today, the Palestinian people lack effective

courts of law and have no means to defend and vindicate their

rights. A Palestinian state will require a system of reliable justice

to punish those who prey on the innocent. The United States and

members of the international community stand ready to work

with Palestinian leaders to . . . establish, ﬁnance and monitor a

truly independent judiciary.

Today, Palestinian authorities are encouraging, not opposing,

terrorism. This is unacceptable. And the United States will not

support the establishment of a Palestinian state until its leaders

engage in a sustained ﬁght against the terrorists and dismantle

International Conﬂict Resolution and Avoidance 913

their infrastructure. This will require an externally supervised effort

to rebuild and reform the Palestinian security services. The security

system must have clear lines of authority and accountability and a

uniﬁed chain of command.

America is pursuing this reform along with key regional states.

The world is prepared to help, yet ultimately these steps toward

statehood depend on the Palestinian people and their leaders. If

they energetically take the path of reform, the rewards can come

quickly. If Palestinians embrace democracy, confront corruption

and ﬁrmly reject terror, they can count on American support for

the creation of a provisional state of Palestine.

****

Israel also has a large stake in the success of a democratic

Palestine. Permanent occupation threatens Israel’s identity and

democracy. A stable, peaceful Palestinian state is necessary to

achieve the security that Israel longs for. So I challenge Israel to

take concrete steps to support the emergence of a viable, credible

Palestinian state.

As we make progress towards security, Israel forces need to

withdraw fully to positions they held prior to September 28, 2000.

And consistent with the recommendations of the Mitchell Com-

mittee, Israeli settlement activity in the occupied territories must

stop.

The Palestinian economy must be allowed to develop. As

violence subsides, freedom of movement should be restored, per-

mitting innocent Palestinians to resume work and normal life.

Palestinian legislators and ofﬁcials, humanitarian and international

workers, must be allowed to go about the business of building a

better future. And Israel should release frozen Palestinian revenues

into honest, accountable hands.

I’ve asked Secretary Powell to work intensively with

Middle Eastern and international leaders to realize the vision of a

Palestinian state, focusing them on a comprehensive plan to support

Palestinian reform and institution-building.

Ultimately, Israelis and Palestinians must address the core issues

that divide them if there is to be a real peace, resolving all claims

and ending the conﬂict between them. This means that the Israeli

914 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

occupation that began in 1967 will be ended through a settlement

negotiated between the parties, based on U.N. Resolutions 242

and 338, with Israeli withdrawal to secure and recognized borders.

We must also resolve questions concerning Jerusalem, the plight

and future of Palestinian refugees, and a ﬁnal peace between Israel

and Lebanon, and Israel and a Syria that supports peace and ﬁghts

terror.

All who are familiar with the history of the Middle East realize

that there may be setbacks in this process. Trained and determined

killers, as we have seen, want to stop it. Yet the Egyptian and

Jordanian peace treaties with Israel remind us that with determined

and responsible leadership progress can come quickly.

As new Palestinian institutions and new leaders emerge,

demonstrating real performance on security and reform, I expect

Israel to respond and work toward a ﬁnal status agreement. With

intensive effort by all, this agreement could be reached within

three years from now. And I and my country will actively lead

toward that goal.

****

b. General Assembly resolutions on Israeli-Palestinian conﬂict

On December 3, 2002, the United States voted against

UN General Assembly resolutions addressing the Israeli-

Palestinian conﬂict. In explaining the U.S. vote in both cases,

U.S. spokesmen stressed that the United States remained

engaged in the effort to resolve the conﬂict. As to Jerusalem,

Richard Erdman, U.S. Senior Adviser, explained that “[t]he

resolution on Jerusalem this year seeks to impose speciﬁc

terms on the issue of Jerusalem which Israelis and

Palestinians have agreed will be addressed in their ﬁnal status

negotiations. The United States objects to this intrusion by

the General Assembly into the negotiations.”

Excerpts below from remarks by Ambassador John

Negroponte to the General Assembly explain the U.S. objec-

tions to resolutions that the United States views as attempting

to prejudge issues that are the subject of negotiations

between the parties.

International Conﬂict Resolution and Avoidance 915

Ambassador Negroponte’s remarks are available at

www.un.int/usa/02print_207.htm.

****

The United States remains ﬁrmly committed to achieving a just

and lasting peace in the Middle East. The recent upsurge in viol-

ence in the region is deeply troubling to us. We have repeatedly

urged both sides to take immediate steps to ease the situation and

refrain from words and actions that inﬂame tensions and com-

plicate efforts to ﬁnd peaceful solutions that allow the peoples of

the region to live in peace, security and dignity.

The goal of the United States is to end all violence and terror

in the region and to lay out a path to end the occupation that

began in 1967. In working toward this goal, the United States is

closely engaged with the Israelis and Palestinians, regional leaders,

our Quartet partners, and the International Task Force on Reform.

We believe a negotiated ﬁnal settlement can be accomplished in

three years.

The centerpiece of our current efforts is a roadmap designed

to help promote practical efforts to achieve four objectives: 1) to

implement the strategy of promoting Palestinian institutional

and security reform; 2) to ease the humanitarian situation inside

Palestinian areas; 3) to end violence and terror and restore security

cooperation; and 4) to restore a political dialogue that would

realize President Bush’s vision of a ﬁnal settlement based on two

states living side-by-side in peace and security. The roadmap we

are discussing will clearly lay out obligations and responsibilities

on all sides. Progress from one phase to another would be

performance-based.

This strategy and the roadmap are based on relevant U.N.

Security Council Resolutions, President Bush’s speech of June 24,

and the Arab League Beirut Summit Initiative. They also seek

to incorporate the Madrid “terms of reference” and previous

agreements between the parties. The approach is aimed at a

comprehensive peace with “security for all states of the region,”

as called for in the Beirut Summit Declaration.

916 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

We would welcome a resolution under this agenda item that

reﬂected a balanced and pragmatic approach consistent with that

of the Quartet. Unfortunately, it appears that we will be considering

texts that put this body in the position of attempting to prejudge

the settlement of the question of Jerusalem and other ﬁnal status

issues. To achieve a lasting peace, these issues must be decided

through negotiations between the parties, consistent with their

past agreements and consistent with relevant Security Council

resolutions.

c. Joint Statement by the Quartet

On December 20, 2002, high-level representatives of the

United States, the United Nations, the European Union and

Russia issued a joint statement, following meetings in New

York, on their efforts to address the conﬂict in the Middle

East. The group, known as the Quartet, had been meeting

for several years in an effort to revitalize the peace process

in the Israeli-Palestinian conﬂict. The joint statement, pro-

viding their perspective on the path for resolution of the

conﬂict, is set forth below.

The text is available at www.state.gov/r/pa/prs/ps/2002/

16168pf.htm.

United Nations Secretary-General Koﬁ Annan, Russian Foreign

Minister Igor Ivanov, U.S. Secretary of State Colin L. Powell,

Danish Foreign Minister Per Stig Moeller, High Representative

for European Common Foreign and Security Policy Javier Solana

and European Commissioner for External Affairs Chris Patten met

in New York today. The Quartet members reviewed the situation

in the Middle East and agreed to continue close consultations, as

expressed in the Madrid Declaration, to which the Quartet remains

fully committed, to promote a just, comprehensive, and lasting

settlement of the Middle East conﬂict. The Quartet expresses its

support for the convening of a further international Ministerial

meeting at an appropriate time.

International Conﬂict Resolution and Avoidance 917

The Quartet deeply deplores today’s tragic killing of Israeli

civilians and reiterates its strong and unequivocal condemna-

tion of terrorism, including suicide bombing, which is morally

repugnant and has caused great harm to the legitimate aspirations

of the Palestinian people for a better future. Terrorists must not

be allowed to kill the hope of an entire region, and a united

international community, for genuine peace and security for both

Palestinians and Israelis. The Quartet expresses once again its

profound regret at the loss of innocent Israeli and Palestinian

lives, and extends its sympathy to all those who have suffered

loss. The Quartet members expressed their increasing concern

about the mounting humanitarian crisis in Palestinian areas and

their determination to address urgent Palestinian needs.

Consistent with President Bush’s June 24 statement, the UN,

EU and Russia express their strong support for the goal of achieving

a ﬁnal Israeli-Palestinian settlement which, with intensive effort

on security and reform by all, could be reached within three

years from now. The UN, EU and Russia welcome President Bush’s

commitment to active U.S. leadership toward that goal. The

Quartet remains committed to implementing the vision of two

states, Israel and an independent, viable and democratic Palestine,

living side by side in peace and security, as afﬁrmed by UN Security

Council Resolution 1397. The Quartet members, in their individual

capacity and jointly, pledge all possible efforts to realize the goals

of reform, security and peace and reafﬁrm that progress in the

political, security, economic, humanitarian, and institution-building

ﬁelds must proceed together, hand-in-hand. The Quartet reiterates

its welcome of the initiative of Saudi Arabia, endorsed by the

Arab League Beirut Summit, as a signiﬁcant contribution towards

a comprehensive peace.

To assist progress toward these shared goals, the Quartet agreed

on the importance of a coordinated international campaign to

support Palestinian efforts at political and economic reform. The

Quartet welcomes and encourages the strong Palestinian interest

in fundamental reform, including the Palestinian 100-Day Reform

Program. It also welcomes the willingness of regional states and

the international community to assist the Palestinians to build

institutions of good government, and to create a new governing

918 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

framework of working democracy, in preparation for statehood.

For these objectives to be realized, it is essential that well-prepared,

free, open and democratic elections take place. The new interna-

tional Task Force on Reform, which is comprised of representatives

of the U.S., EU, UN Secretary General, Russia, Japan, Norway,

the World Bank and the International Monetary Fund, and which

works under the auspices of the Quartet, will strive to develop

and implement a comprehensive action plan for reform. The

inaugural meeting of this Task Force in London July 10 dis-

cussed a detailed plan including speciﬁc Palestinian commit-

ments. It will meet again in August to review actions in areas

including civil society, ﬁnancial accountability, local government,

the market economy, elections, and judicial and administrative

reform.

Implementation of an action plan, with appropriate bench-

marks for progress on reform measures, should lead to the estab-

lishment of a democratic Palestinian state characterized by the

rule of law, separation of powers, and a vibrant free market

economy that can best serve the interests of its people. The Quartet

also commits itself to continuing to assist the parties in efforts to

renew dialogue, and welcomes in this regard the recent high-level

ministerial meetings between Israelis and Palestinians on the issues

of security, economics and reform.

The Quartet agreed on the critical need to build new and

efﬁcient Palestinian security capabilities on sound bases of uniﬁed

command, and transparency and accountability with regard to

resources and conduct. Restructuring security institutions to serve

these goals should lead to improvement in Palestinian security

performance, which is essential to progress on other aspects of

institutional transformation and realization of a Palestinian state

committed to combating terror.

In this context, the Quartet notes Israel’s vital stake in the

success of Palestinian reform. The Quartet calls upon Israel to

take concrete steps to support the emergence of a viable Palestinian

state. Recognizing Israel’s legitimate security concerns, these

steps include immediate measures to ease the internal closures in

certain areas and, as security improves through reciprocal steps,

withdrawal of Israeli forces to their pre-September 28, 2000

International Conﬂict Resolution and Avoidance 919

positions. Moreover, frozen tax revenues should be released. In

this connection, a more transparent and accountable mechanism

is being put into place. In addition, consistent with the Mitchell

Committee’s recommendations, Israel should stop all new settle-

ment activity. Israel must also ensure full, safe and unfettered

access for international and humanitarian personnel.

The Quartet reafﬁrms that there must be a negotiated

permanent settlement based on UN Security Council resolutions

242 and 338. There can be no military solution to the conﬂict;

Israelis and Palestinians must address the core issues that divide

them, through sustained negotiations, if there is to be real and

lasting peace and security. The Israeli occupation that began in

1967 must end, and Israel must have secure and recognized borders.

The Quartet further reafﬁrms its commitment to the goal of a

comprehensive regional peace between Israel and Lebanon, and

Israel and Syria, based upon Resolutions 242 and 338, the Madrid

terms of reference, and the principle of land for peace.

The Quartet looks forward to upcoming consultations with

the Foreign Ministers of Jordan, Egypt, Saudi Arabia, and other

regional partners, and determines to continue regular consultation

on the situation in the Middle East at the principals’ level. The

Quartet envoys will continue their work on the ground to support

the work of the principals, to assist the Task Force on Reform,

and to aid the parties in resuming a political dialogue in order to

reach a solution to the core political questions.

2. Sudan

a. Proposals by Special Envoy

On September 6, 2001, President Bush appointed former

Senator John Danforth as Special Envoy for Peace in the

Sudan. Senator Danforth described his mission as follows:

The civil war in Sudan has lasted at least 18 years, and it

has caused immense human misery—the death of two

million people, bombing and displacement of civilians,

trading in human beings as slaves. In appointing me

920 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

special envoy, President Bush has asked me to determine

if there is anything useful the U.S. can do to help end

the misery in Sudan, in addition to what we are already

doing on the humanitarian side. . . . [T]he possibility of

peace depends on the will of combatants, not on the

actions of even the best-intentioned outsiders, including

the United States. Perhaps America can encourage peace;

we cannot cause it.

Available at www.whitehouse.gov/news/releases/2001/09/

20010906-3.html.

In a press brieﬁng of November 27, 2001, Special Envoy

Danforth outlined four proposals he had presented in his

then recent trip to Sudan.

The four proposals—the ﬁrst is, and really the one we

always list ﬁrst is, is Nuba Mountains. . . . [T]he object of

our proposal is to make . . . the Nuba Mountains available

for humanitarian relief, without military action interfering

with that relief.

The second proposal is to create zones and times of

tranquility, so that for speciﬁc dates at speciﬁc places,

those places could be available for humanitarian efforts,

particularly immunizations.

The third is a cessation of bombing or shelling of

civilian populations.

And the fourth is the cessation of the taking of

abductees, the slave trade.

Available at www.state.gov/p/af/rls/spbr/2001/6399.htm.

On January 19, 2002, the Government of the Republic of

Sudan and the Sudan Peoples’ Liberation Movemement/

Nuba signed the Nuba Mountains Cease-Fire Agreement. See

www.defenselink.mil/policy/isa/africa/commission/deftext.doc.

The United States and the Swiss Confederation signed

the agreement as witnesses. Article 1 of the agreement

provided:

The Parties agree to an internationally monitored cease-

ﬁre among all their forces in the Nuba Mountains for a

renewable period of six(6) months with the broader

International Conﬂict Resolution and Avoidance 921

objectives of promoting a just, peaceful and comprehens-

ive settlement of the conﬂict.

Article VII provided for the establishment of a Joint Milit-

ary Commission (“JMC”) “to assist in the disengagement

and redeployment of the combatants and maintaining the

cease-ﬁre in accordance with the terms of this Agreement.”

The JMC would be composed of three representatives from

each party and a neutral chairman with two vice-chairmen.

Article VIII provided for the establishment of an International

Monitoring Unit (“IMU”) “to assist the Parties in imple-

menting this Agreement and maintaining the cease-ﬁre,”

working in collaboration with the JMC. International mon-

itoring commenced in the spring of 2002 and continued

throughout the year with funding, personnel and other

support from several countries. The agreement was renewed

by the Parties in July, 2002 for another six months.

In the spring of 2002, the Government of the Republic

of Sudan and the Sudan People’s Liberation Movement also

signed an Agreement to protect noncombatant civilians and

civilian facilities from military attack. In article 1, paragraph 1

of this agreement, these Parties reconﬁrmed “their obligations

under international law, including common article 3 of the

1949 Geneva Conventions, to take constant care to protect

the civilian population, civilians and civilian objects against

the dangers arising from military operations.” In this con-

text, the Parties speciﬁcally committed themselves, inter

alia, “to refrain from targeting or intentionally attacking

non-combatant civilians.” Article 1, paragraph 2 provided for

“the establishment of a Veriﬁcation Mission to investigate,

evaluate and report on alleged incidents involving serious

violations of their obligations or commitments described in

paragraph 1.” Other provisions of the agreement set forth

details concerning the mandate, organization and other

aspects of the Veriﬁcation Mission. The Veriﬁcation Mission,

referred to as the Civilian Protection Monitoring Team, began

operations in the Fall of 2002.

For additional information concerning the Danforth

proposals and their implementation, see the Report to the

922 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

President of the United States on the Outlook for Peace in

Sudan from John C. Danforth, Special Envoy for Peace, April

26, 2002, at www.state.gov/documents/organization/10258.pdf.

See also Report of the International Eminent Persons Group

on Slavery, Abduction and Forced Servitude in Sudan, May

22, 2002, at www.state.gov/p/af/rls/rpt/10445.htm.

b. Sudan Peace Act

On October 21, 2002, President George W. Bush signed into

law the Sudan Peace Act, Pub. L. No. 107–245, 116 Stat.1504,

50 U.S.C. § 1701 note, “to facilitate famine relief efforts and a

comprehensive solution to the war in Sudan.” See 38 WEEKLY

COMP. PRES. DOC. 1819 (Oct. 28, 2002). A fact sheet re-

leased by the Department of State on October 15, 2002,

excerpted below, described the provisions of the Act.

The fact sheet is available at http://usinfo.state.gov/

regional/af/a2102101.htm.

The Sudan Peace Act passed the U.S. House of Representatives on

October 7, 2002 by a vote of 359–8. The Senate passed the same

language by unanimous consent on October 9, 2002. The Act:

—Seeks to facilitate a comprehensive solution to the war in

Sudan based on the Declaration of Principles of July 20, 1994 and

the Machakos Protocol of July 2002.—Commends the efforts of

the President’s Special Envoy for Peace in Sudan, Senator Danforth,

and his team.—Calls for: multilateralization of economic and

diplomatic tools to compel Sudan to enter into a good faith peace

process; support for democratic development in areas of Sudan

outside government control; continued support for people-

to-people reconciliation in non-government-controlled areas;

strengthening of humanitarian relief mechanisms; and multi-

lateral cooperation toward these ends.—Condemns violations

of human rights on all sides of the conﬂict; the government’s

human rights record; the slave trade; government use of militia

and other forces to support slave raiding; and aerial bombardment

of civilian targets.

International Conﬂict Resolution and Avoidance 923

Funding Authorized for Use in Areas Outside Sudan

Government Control

The Act authorizes to be appropriated $100 million for each

of the ﬁscal years 03,04, and 05 for assistance to areas outside

government control to prepare the population for peace and

democratic governance, including support for civil admin-

istration, communications infrastructure, education, health, and

agriculture.

Certiﬁcations and Actions

The U.S. President must certify within 6 months of enactment, and

each 6 months thereafter, that the Sudan Government and the Sudan

People’s Liberation Movement are negotiating in good faith and

that negotiations should continue. If, under this provision, the

President certiﬁes that the government has not engaged in good

faith negotiations or has unreasonably interfered with humanitarian

efforts, the Act states that the President, after consultation with

the Congress, shall implement the following measures:

—Seek a UN Security Council resolution for an arms embargo

on the Sudanese government—Instruct U.S. executive directors

to vote against and actively oppose loans, credits, and guarantees

by international ﬁnancial institutions—Take all necessary and

appropriate steps to deny government access to oil revenues in

order to ensure that the funds are not used for military purposes—

Consider downgrading or suspending diplomatic relations.

If the Sudan People’s Liberation Movement is found not to be

negotiating in good faith, none of the above provisions shall apply

to the Sudanese Government.

The Act also states that, if the President certiﬁes that Sudan is

not in compliance with the terms of a permanent peace agreement

between the government and the Sudan People’s Liberation Move-

ment, then the President, after consultation with the Congress,

shall implement the measures described above.

As with other similar provisions, these provisions will be

construed in a manner consistent with the President’s constitutional

responsibility for the conduct of foreign relations.

924 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Reporting Requirements

—Within six months of enactment and annually thereafter, a report

by the Secretary of State on the Sudan conﬂict, to include: the

status of Sudan’s development and use of oil resources; description

of the extent to which ﬁnancing was secured in the U.S. or with

involvement of U.S. citizens; estimates of the extent of government

aerial bombardment; description of extent to which government

or other forces have obstructed or manipulated humanitarian

relief.—Quarterly report by the President on the status of the peace

process if, at any time after the President makes a certiﬁcation

as speciﬁed, Sudan discontinues negotiations for 14 days.—

Semiannual report by the Secretary of the Treasury describing

U.S. steps to oppose loans, credits, or guarantees, if ﬁnancing

is given despite U.S. opposition.—Report by the President, within

45 days of taking action to deny the Sudan government access to

oil revenues, providing a comprehensive plan for implementation.

Humanitarian Relief

—The President should seek to end Sudan veto power over and

manipulation of United Nations humanitarian relief efforts carried

out through Operation Lifeline Sudan.—The President should

increase the use of agencies other than Operation Lifeline Sudan

for humanitarian relief efforts in southern Sudan. Requires sub-

mission within ninety days of enactment of a report describing

progress made to achieve this.—Requires development of a con-

tingency plan to provide the greatest possible amount of U.S. and

privately-donated relief to all affected areas of Sudan in the event

that Sudan imposes a total, partial or incremental ban on Operation

Lifeline Sudan air transport relief ﬂights.

War Crimes

—Requires the Secretary of State to collect information about

incidents which may constitute crimes against humanity, genocide,

war crimes, and other violations of international humanitarian

International Conﬂict Resolution and Avoidance 925

law by all parties to the conﬂict.—Requires submission of a report

from the Secretary of State within six months after enactment,

and annually thereafter, on the information collected and any

ﬁndings or determinations made, subject to protection of sensitive

sources or other national security interests.

3. Eritrea/Ethiopia Boundary Commission

On April 15, 2002, the United States welcomed the delimita-

tion of the border between Ethiopia and Eritrea through the

Eritrea/Ethiopia Boundary Commission in The Hague. The

United States also reiterated its commitment to facilitate

the peace process between the two countries.

The press statement from the Department of State is set

forth below in full, available at www.state.gov/r/pa/prs/ps/

2002/9390.htm.

The announcement April 13 by the Ethiopia-Eritrea Boundary

Commission in The Hague of the delimitation of the border

between the two countries is a major achievement for the peace

process. By accepting the decision, Eritrean President Isaias and

Ethiopian Prime Minister Meles have taken another courageous

step to forge a comprehensive and lasting peace between the two

countries.

The United States remains committed to facilitate the peace

process to its conclusion. To this end, we have donated funds to

a United Nations Trust Fund established to help defray the cost

of the delimitation and demarcation of the border, and we intend

to make an additional contribution shortly. We encourage other

countries to donate to this Fund and to take other steps to facilit-

ate the peace process, so that the border can be demarcated

rapidly.

The United States reiterates its strong support for the work of

the United Nations Mission in Ethiopia and Eritrea (UNMEE),

and for the efforts of Special Representative of the Secretary

General Ambassador Legwaila Joseph Legwaila, who has worked

926 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

tirelessly to resolve problems between the former antagonists and

to move the peace process forward.

4. Haiti

a. Adoption of OAS Resolutions 806 and 822

In 2002 the Organization of American States addressed what

it characterized as “the continuing political crisis in Haiti.”

On January 16, 2002, the OAS adopted Resolution 806,

responding to violent events in Haiti of July 28 and December

17, 2001. As explained in an address of October 30, 2002 by

Ambassador Roger F. Noriega, U.S. Permanent Representat-

ive to the OAS:

On July 28, simultaneous attacks on the National Police

Academy and police stations in different parts of the

country resulted in several deaths, including a number

of police ofﬁcers. On December 17, the national Palace

was attacked and part of it brieﬂy occupied by the

attackers. Also that day, in a series of coordinated

incidents in Port-au-Prince and other cities, attackers

ransacked and burned the ofﬁces of opposition political

parties, and damaged or destroyed the residences of

some members of the opposition.

Excerpts below from Ambassador Noriega’s address

describe the provisions of Resolution 806, available at

www.oas.org/consejo/resolutions/res806.htm, and of Resolu-

tion 822, available at www.oas.org/OASpage/Haiti_situation/

cpres822_02eng.htm, adopted on September 4, 2002, as well

as U.S. concerns with progress in implementation of those

resolutions by Haiti.

The full text of Ambassador Noriega’s address is available at

www.oas.org/library/mant_speech/speech.asp?sCodigo=02-0460.

****

International Conﬂict Resolution and Avoidance 927

. . . [D]espite all the resources the international community, includ-

ing the United States, has devoted to assist the Haitian people—

extraordinary problems persist.

This has not deterred our government from continuing to help

the Haitian people, nor should it deter the international community

from doing so. However, it does mean that we must speak openly

about what these problems are and state frankly our views about

how Haiti can best solve them.

And a candid, open discussion requires me to say that we have

very serious concerns about the leadership of Jean Bertrand Aristide.

Let us start by looking at Haitian government efforts to comply

with OAS Resolutions 806 and 822.

The record of Haitian government compliance with these

resolutions thus far is frankly discouraging.

Resolution 806 was adopted January 16, 2002 by the OAS in

direct response to the violent events of July 28 and December 17,

2001.

****

These violent incidents last July and December substantially

impeded efforts, led by the OAS, to broker an accord between

Fanmi Lavalas and the opposition settling the dispute that followed

the elections in May 2000. Resolution 806 called on the Haitian

government to diligently pursue all efforts to restore a climate of

security. In particular, Resolution 806 among other things required:

— completion of a thorough, independent inquiry into the

events related to Dec. 17;

— prosecution of any person and dismissal, where appro-

priate, of any government ofﬁcial found to be complicit in

the Dec. 17 violence;

— completion of a thorough inquiry into all politically-

motivated crimes; and

— reparations for organizations and individuals who suffered

damages as a direct result of the violence of Dec. 17.

The OAS subsequently adopted Resolution 822 on September

4, 2002. In doing so, it incorporated by reference the provisions

928 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

of Res. 806 and speciﬁcally reiterated the requirements of that

resolution, as I have just described them. In addition, it incor-

porated new commitments made by the Haitian government,

including:

— publishing a report on actions taken with respect to persons

found to be implicated in the events of December 17;

— strengthening disarmament policies and programs; and

— implementing to the fullest extent possible recommenda-

tions on improving human rights and protecting the press,

as made by the OAS Commission of Inquiry Report into

the events of December 17.

Resolution 822 also called on the Haitian Government to ensure

a climate of security and conﬁdence with a view to establishing

the conditions necessary for free and fair elections in 2003. It

established November 4 as the date by which autonomous, credible,

and neutral Provisional Electoral Council [“CEP”] should be

formed.

The United States gave its full support to OAS Resolution

822. Indeed, along with Canada, CARICOM, and others, we were

instrumental in facilitating negotiations that produced unanimous

adoption of 822 at the OAS.

Full Haitian government compliance with Resolutions 806 and

822 is essential. November 4 is coming up fast. That is the date

projected under Resolution 822 for formation of the Provisional

Electoral Council. All concerned parties—the opposition, the

international community, NGOs, and most importantly the Haitian

people—are looking to the Haitian government for concrete

progress as that date approaches.

Unfortunately, the Haitian government has not met its

commitments.

The OAS did conduct an independent inquiry into the events

of Dec. 17, and—yes—the Haitian government did cooperate in

that effort. However, the government has yet to produce its own

ﬁnal report on Dec. 17 as required by Resolution 822 and has yet

to initiate any prosecutions. Moreover, inquiries into politically

motivated crimes are far from complete.

International Conﬂict Resolution and Avoidance 929

Finally, despite some ﬁts and starts, reparations are yet to be

paid in full to all parties.

The government’s efforts to end impunity, a crucial part of

822, are a key barometer of its commitment to the rule of law.

Unfortunately, in some important respects, the government seems

to be losing ground in the ﬁght against impunity.

****

In another important area, the United States is deeply dis-

satisﬁed with counter-narcotics cooperation in Haiti, and very

concerned about police involvement in trafﬁcking.

****

The current crop of some 870 cadets now training at the Police

Academy offers the prospect of additional manpower for election

security. The United States and the international community are

willing to provide technical assistance to the police so it can play

a proper role, under the supervision of a credible and neutral

CEP, in providing security for elections in 2003.

Broader assistance for the HNP [Haitian National Police],

aimed at creating a more professional and independent force,

will depend on the Aristide government’s political will in root-

ing out corruption and preventing politicization by respecting

internal rules of the HNP regarding recruitment, promotions, and

assignments.

Another crucial element for security—perhaps the most difﬁcult

of all—is disarmament. Progress on an effective plan is essential.

The OAS Special Mission is prepared to work with the government

on a priority basis to create and implement a plan, but no plan

will work without ﬁrm Haitian government commitment.

****

The primary responsibility for addressing Haiti’s political and

economic problems rests with the government of Haiti.

Now is the time for that government to live up to its com-

mitments to fulﬁll the great promise of this creative and vibrant

people, who have as much to claim to democracy and economic

opportunity as any of us.

930 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

b. Status of implementation

On November 6, 2002, Ambassador Noriega noted the fail-

ure to establish the Provisional Electoral Council (“CEP”)

by the November 4 date projected under Resolution 822.

Ambassador Noriega voiced the U.S. disappointment and

stated that “we are also concerned that the formation of an

independent, neutral and credible CEP be done properly

and with participation by a diverse section of the Haitian

people, as set forth in the OAS draft Initial Accord of June

12.” Ambassador Noriega’s comments are available at www.

oas.org/library/mant_speech/speech.asp?sCodigo=02-0462.

In an address commenting on the First Report of the

Secretary General to the Permanent Council on Implementa-

tion of Resolution 822, December 9, 2002, Ambassador

Noriega reconﬁrmed U.S. commitment to democracy in Haiti

and the process set forth in Resolution 822. Excerpts from

his comments set forth below also reﬂect U.S. concerns about

the continuing failure of the Government of Haiti to reach

closure on the formation of the Provisional Electoral Council

and about recent political violence.

The full text of Ambassador Noriega’s comments can

be found at. www.oas.org/library/mant_speech/speech.asp?s

Codigo=02-0486.

****

The United States is committed to democracy in Haiti and remains

convinced that the path to this goal is clearly set forth in the

commitments made in OAS Resolution 822, approved unanimously

95 days ago. Resolution 822 laid out a clear process for the Govern-

ment of Haiti, with support from the OAS Special Mission, to

promote a climate of security, strengthen the rule of law, and

prepare for free and fair legislative and local elections in 2003.

The political violence of recent weeks, some of it committed

with the direct support of the Government and its adherents, which

has produced the failure to reach closure on formation of the

Provisional Electoral Council (CEP), shows that the Government

International Conﬂict Resolution and Avoidance 931

has yet to fulﬁll its commitments. This is despite the unstinting

efforts of the OAS Special Mission and other parties to provide

guidance and mediation to facilitate any Government efforts.

We call on the Government of Haiti to act immediately to

cease gang violence, to pay in full the reparations due for damages

from the violence of December 17, 2001, and to dramatically

improve the security climate, particularly for those Haitians trying

to exercise their fundamental civil rights.

****

Cross References

Rule of law, Chapter 6.J.

Development issues, Chapter 6.D.

Rewards for justice, Chapter 3.C.1.a.

Peacekeeping missions, Chapter 3.C.2.b.

932 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Use of Force and Arms Control 933

933

CHAPTER 18

Use of Force and Arms Control

A. USE OF FORCE

1. Iraq

a. Congressional authorization of use of force against Iraq

On October 3, 2002, the U.S. Congress enacted, and Pre-

sident George W. Bush signed into law, the Joint Resolution

to Authorize the Use of United States Armed Forces against

Iraq. H.J.Res.114, 107

Cong. (2002), Pub. L. No. 107–243,

116 Stat. 1498. The joint resolution speciﬁcally authorized

use of force to defend the national security of the United

States against the continuing threat posed by Iraq and to

enforce relevant UN Security Council resolutions regarding

Iraq. Key sections of the joint resolution are provided below.

The enactment of the War Powers Resolution, 50 U.S.C.

§§ 1541–1548, referred to in § 3(c) of the joint resolution,

is discussed in Digest 1973 at 560–563.

****

Whereas Iraq’s demonstrated capability and willingness to use

weapons of mass destruction, the risk that the current Iraqi

regime will either employ those weapons to launch a surprise

attack against the United States or its Armed Forces or provide

them to international terrorists who would do so, and the extreme

magnitude of harm that would result to the United States and its

934 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

citizens from such an attack, combine to justify action by the

United States to defend itself;

Whereas United Nations Security Council Resolution 678

(1990) authorizes the use of all necessary means to enforce

United Nations Security Council Resolution 660 (1990) and sub-

sequent relevant resolutions and to compel Iraq to cease certain

activities that threaten international peace and security, including

the development of weapons of mass destruction and refusal or

obstruction of United Nations weapons inspections in violation of

United Nations Security Council Resolution 687 (1991), repression

of its civilian population in violation of United Nations Security

Council Resolution 688 (1991), and threatening its neighbors or

United Nations operations in Iraq in violation of United Nations

Security Council Resolution 949 (1994);

Whereas in the Authorization for Use of Military Force

Against Iraq Resolution (Public Law 102–1 [1991]), Congress

has authorized the President “to use United States Armed Forces

pursuant to United Nations Security Council Resolution 678 (1990)

in order to achieve implementation of Security Council Resolution

660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 677”;

Whereas in December 1991, Congress expressed its sense

that it “supports the use of all necessary means to achieve the

goals of United Nations Security Council Resolution 687 as being

consistent with the Authorization of Use of Military Force Against

Iraq Resolution (Public Law 102–1),” that Iraq’s repression of

its civilian population violates United Nations Security Council

Resolution 688 and “constitutes a continuing threat to the peace,

security, and stability of the Persian Gulf region,” and that Con-

gress, “supports the use of all necessary means to achieve the

goals of United Nations Security Council Resolution 688”;

Whereas the Iraq Liberation Act of 1998 (Public Law 105–

338) expressed the sense of Congress that it should be the policy

of the United States to support efforts to remove from power the

current Iraqi regime and promote the emergence of a democratic

government to replace that regime;

Whereas on September 12, 2002, President Bush committed

the United States to “work with the United Nations Security

Council to meet our common challenge” posed by Iraq and to

Use of Force and Arms Control 935

“work for the necessary resolutions,” while also making clear that

“the Security Council resolutions will be enforced, and the just

demands of peace and security will be met, or action will be

unavoidable”;

Whereas the United States is determined to prosecute the

war on terrorism and Iraq’s ongoing support for international

terrorist groups combined with its development of weapons of

mass destruction in direct violation of its obligations under the

1991 cease-ﬁre and other United Nations Security Council resolu-

tions make clear that it is in the national security interests of the

United States and in furtherance of the war on terrorism that all

relevant United Nations Security Council resolutions be enforced,

including through the use of force if necessary;

Whereas Congress has taken steps to pursue vigorously the

war on terrorism through the provision of authorities and funding

requested by the President to take the necessary actions against

international terrorists and terrorist organizations, including those

nations, organizations, or persons who planned, authorized, com-

mitted, or aided the terrorist attacks that occurred on September

11, 2001, or harbored such persons or organizations;

Whereas the President and Congress are determined to continue

to take all appropriate actions against international terrorists and

terrorist organizations, including those nations, organizations, or

persons who planned, authorized, committed, or aided the terrorist

attacks that occurred on September 11, 2001, or harbored such

persons or organizations;

Whereas the President has authority under the Constitution

to take action in order to deter and prevent acts of international

terrorism against the United States, as Congress recognized in the

joint resolution on Authorization for Use of Military Force (Public

Law 107–40); and

Whereas it is in the national security interests of the United

States to restore international peace and security to the Persian

Gulf region: Now, therefore, be it

Resolved by the Senate and House of Representatives of the

United States of America in Congress assembled,

****

936 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

SEC. 2. SUPPORT FOR UNITED STATES

DIPLOMATIC EFFORTS

The Congress of the United States supports the efforts by the

President to—

(1) strictly enforce through the United Nations Security Council

all relevant Security Council resolutions regarding Iraq and

encourages him in those efforts; and

(2) obtain prompt and decisive action by the Security Council to

ensure that Iraq abandons its strategy of delay, evasion and

noncompliance and promptly and strictly complies with all

relevant Security Council resolutions regarding Iraq.

SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES

ARMED FORCES

(a) Authorization.—The President is authorized to use the Armed

Forces of the United States as he determines to be necessary

and appropriate in order to—

(1) defend the national security of the United States against

the continuing threat posed by Iraq; and

(2) enforce all relevant United Nations Security Council

resolutions regarding Iraq.

(b) Presidential Determination.—In connection with the exercise

of the authority granted in subsection (a) to use force the

President shall, prior to such exercise or as soon thereafter as

may be feasible, but no later than 48 hours after exercising

such authority, make available to the Speaker of the House of

Representatives and the President pro tempore of the Senate

his determination that—

(1) reliance by the United States on further diplomatic or other

peaceful means alone either (A) will not adequately protect

the national security of the United States against the con-

tinuing threat posed by Iraq or (B) is not likely to lead to

enforcement of all relevant United Nations Security Council

resolutions regarding Iraq; and

Use of Force and Arms Control 937

(2) acting pursuant to this joint resolution is consistent with

the United States and other countries continuing to take

the necessary actions against international terrorist and

terrorist organizations, including those nations, organiza-

tions, or persons who planned, authorized, committed or

aided the terrorist attacks that occurred on September 11,

2001.

(1) Speciﬁc statutory authorization.—Consistent with section

8(a)(1) of the War Powers Resolution, the Congress declares

that this section is intended to constitute speciﬁc statutory

authorization within the meaning of section 5(b) of the

War Powers Resolution.

(2) Applicability of other requirements.—Nothing in this joint

resolution supersedes any requirement of the War Powers

Resolution.

****

b. UN Security Council resolution on Iraq

(1) Adoption of Security Council Resolution 1441

On November 8, 2002, the UN Security Council unanimously

adopted Resolution 1441, proposed by the United Kingdom

and the United States on the issue of Iraq. U.N. Doc. S/RES/

1441(2002). The resolution recognized “the threat Iraq’s

non-compliance with council resolutions and proliferation of

weapons of mass destruction and long-range missiles poses

to international peace and security,” and recalled the auth-

orization in resolution 678 (U.N. Doc. S/RES/678 (1990)) to

use “all necessary means” to uphold resolution 660 (U.N.

Doc. S/RES/660(1990) ) and all subsequent relevant resolu-

tions. It decided that Iraq remained “in material breach of

obligations under relevant UN resolutions,” provided Iraq

with “a ﬁnal opportunity to comply with its disarmament

obligations,” and recalled its repeated warnings to Iraq that

it would “face serious consequences” for continued violations.

938 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Key provisions of Resolution 1441, adopted under chap-

ter VII of the UN Charter, are set forth below.

****

Acting under Chapter VII of the Charter of the United Nations,

1. Decides that Iraq has been and remains in material breach

of its obligations under relevant resolutions, including resolu-

tion 687 (1991), in particular through Iraq’s failure to cooperate

with United Nations inspectors and the IAEA, and to complete

the actions required under paragraphs 8 to 13 of resolution 687

(1991);

2. Decides, while acknowledging paragraph 1 above, to afford

Iraq, by this resolution, a ﬁnal opportunity to comply with its

disarmament obligations under relevant resolutions of the Council;

and accordingly decides to set up an enhanced inspection regime

with the aim of bringing to full and veriﬁed completion the

disarmament process established by resolution 687 (1991) and

subsequent resolutions of the Council;

3. Decides that, in order to begin to comply with its dis-

armament obligations, in addition to submitting the required

biannual declarations, the Government of Iraq shall provide to

UNMOVIC, the IAEA, and the Council, not later than 30 days

from the date of this resolution, a currently accurate, full, and

complete declaration of all aspects of its programmes to develop

chemical, biological, and nuclear weapons, ballistic missiles,

and other delivery systems such as unmanned aerial vehicles and

dispersal systems designed for use on aircraft, including any

holdings and precise locations of such weapons, components, sub-

components, stocks of agents, and related material and equipment,

the locations and work of its research, development and produc-

tion facilities, as well as all other chemical, biological, and nuclear

programmes, including any which it claims are for purposes not

related to weapon production or material;

4. Decides that false statements or omissions in the declara-

tions submitted by Iraq pursuant to this resolution and failure

by Iraq at any time to comply with, and cooperate fully in the

implementation of, this resolution shall constitute a further material

Use of Force and Arms Control 939

breach of Iraq’s obligations and will be reported to the Council

for assessment in accordance with paragraphs 11 and 12 below;

5. Decides that Iraq shall provide UNMOVIC and the IAEA

immediate, unimpeded, unconditional, and unrestricted access to

any and all, including underground, areas, facilities, buildings,

equipment, records, and means of transport which they wish to

inspect, as well as immediate, unimpeded, unrestricted, and private

access to all ofﬁcials and other persons whom UNMOVIC or the

IAEA wish to interview in the mode or location of UNMOVIC’s

or the IAEA’s choice pursuant to any aspect of their mandates;

further decides that UNMOVIC and the IAEA may at their dis-

cretion conduct interviews inside or outside of Iraq, may facilitate

the travel of those interviewed and family members outside of Iraq,

and that, at the sole discretion of UNMOVIC and the IAEA, such

interviews may occur without the presence of observers from the

Iraqi Government; and instructs UNMOVIC and requests the IAEA

to resume inspections no later than 45 days following adoption of

this resolution and to update the Council 60 days thereafter;

****

8. Decides further that Iraq shall not take or threaten hostile

acts directed against any representative or personnel of the United

Nations or the IAEA or of any Member State taking action to

uphold any Council resolution;

9. Requests the Secretary-General immediately to notify

Iraq of this resolution, which is binding on Iraq; demands that

Iraq conﬁrm within seven days of that notiﬁcation its intention

to comply fully with this resolution; and demands further that

Iraq cooperate immediately, unconditionally, and actively with

UNMOVIC and the IAEA;

10. Requests all Member States to give full support to

UNMOVIC and the IAEA in the discharge of their mandates,

including by providing any information related to prohibited

programmes or other aspects of their mandates, including on Iraqi

attempts since 1998 to acquire prohibited items, and by recom-

mending sites to be inspected, persons to be interviewed, conditions

of such interviews, and data to be collected, the results of which

shall be reported to the Council by UNMOVIC and the IAEA;

940 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

11. Directs the Executive Chairman of UNMOVIC and the

Director-General of the IAEA to report immediately to the Council

any interference by Iraq with inspection activities, as well as

any failure by Iraq to comply with its disarmament obligations,

including its obligations regarding inspections under this resolution;

12. Decides to convene immediately upon receipt of a report

in accordance with paragraphs 4 or 11 above, in order to con-

sider the situation and the need for full compliance with all of the

relevant Council resolutions in order to secure international peace

and security;

13. Recalls, in that context, that the Council has repeatedly

warned Iraq that it will face serious consequences as a result of its

continued violations of its obligations;

14. Decides to remain seized of the matter.

****

(2) Explanation of U.S. vote

In response to the Security Council action, Ambassador John

D. Negroponte, United States Permanent Representative to

the United Nations, provided an explanation of the U.S. vote

in favor of Resolution 1441, set forth below.

The text is available at www.un.int/usa/02_187.htm.

This Resolution (1441) constitutes the world community’s demand

that Iraq disclose and destroy its weapons of mass destruction.

On September 12, President Bush came to the General

Assembly seeking to build an international consensus to counter

Iraq’s persistent deﬁance of the United Nations. Over a decade ago,

after evicting Iraq from Kuwait, the Security Council determined

that peace and security in the Persian Gulf region required that

Iraq, veriﬁably, give up its weapons of mass destruction. The

Council reached that decision because of Iraq’s record of aggression

against its neighbors and use of chemical and biological weapons.

For eleven years, without success, we have tried a variety of ways,

including diplomacy, inspections, and economic sanctions to obtain

Iraqi compliance. By this Resolution, we are now united in trying

Use of Force and Arms Control 941

a different course. That course is to send a clear message to

Iraq insisting on its disarmament in the area of weapons of mass

destruction and delivery systems, or face the consequences.

The Resolution we have just adopted puts the conﬂict between

Iraq and the United Nations in context and recalls the obligations

on Iraq and the authorities of member states to enforce them.

It begins by reference to Iraq’s invasion of Kuwait in August of

1990 and the international community’s response. It recalls that

the cease-ﬁre ending the 1991 Gulf War was conditioned on Iraq’s

disarmament with respect to nuclear, chemical, and biological

weapons, together with their support infrastructures, ending its

involvement in, and support for, terrorism, and its accounting

for, and restoration of, foreign nationals and foreign property

wrongfully seized. In addition, the Council demanded that the

Iraqi Government stop oppressing the Iraqi people. Iraq has ignored

those obligations essential to peace and security.

The Resolution conﬁrms what has been clear for years: that Iraq

has been and remains in violation of disarmament obligations—

“material breach” in lawyers’ language. The Council then decides

to afford Iraq a ﬁnal opportunity to comply. As a means to that

end, the Resolution then establishes an enhanced, strengthened

inspection regime. The Resolution gives UNMOVIC and the IAEA

a new, powerful mandate. Its core is immediate and unimpeded

access to every site, including Presidential and other Sensitive Sites,

structure, or vehicle they choose to inspect and equally immediate

and unimpeded access to people they wish to interview. In other

words: “anyone, anywhere, any time.” And, the Resolution gives

UNMOVIC and the IAEA the power to do their work properly

and to ensure the veriﬁable destruction of Iraq’s weapons of mass

destruction and associated infrastructure and support programs.

Let us be clear: the inspections will not work unless the Iraqi

regime cooperates fully with UNMOVIC and the IAEA. We

hope all member states now will press Iraq to undertake that

cooperation. This resolution is designed to test Iraq’s intentions:

will it abandon its weapons of mass destruction and its illicit

missile programs or continue its delays and deﬁance of the entire

world? Every act of Iraqi non-compliance will be a serious matter,

because it would tell us that Iraq has no intention of disarming.

942 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

As we have said on numerous occasions to Council mem-

bers, this Resolution contains no “hidden triggers” and no

“automaticity” with respect to the use of force. If there is a further

Iraqi breach, reported to the Council by UNMOVIC, the IAEA,

or a member state, the matter will return to the Council for

discussions as required in paragraph 12. The Resolution makes

clear that any Iraqi failure to comply is unacceptable and that Iraq

must be disarmed. And one way or another, Mr. President, Iraq

will be disarmed. If the Security Council fails to act decisively

in the event of a further Iraqi violation, this resolution does not

constrain any member state from acting to defend itself against

the threat posed by Iraq, or to enforce relevant UN resolutions

and protect world peace and security.

To the Government of Iraq, our message is simple: non-

compliance no longer is an option. To our colleagues on the Secur-

ity Council, our message is one of partnership: over seven weeks,

we have built international consensus on how to proceed towards

Iraq, and we have come together, recognizing that our collective

security is at stake and that we must meet this challenge, as

proposed by President Bush on September 12.

To the Secretary-General, Dr. Blix, and Dr. El-Baradei: We

urge you to make full use of the tools given to you in this resolution,

and we pledge our full support. And we urge every member of the

United Nations to offer you all assistance possible.

To the governments and peoples of the Arab world, including

the people of Iraq: the purpose of this Resolution is to open the

way to a peaceful solution of this issue. That is the intention and

wish of my government. When the Baghdad regime claims that

the United States is seeking to wage war on the Arab world, noth-

ing could be further from the truth. What we seek, and what

the Council seeks by this Resolution, is the disarmament of

Iraq’s weapons of mass destruction. We urge you to join us in our

common effort to secure that goal and assure peace and security

in the region.

President Bush asked the Security Council to take on the

challenge posed by Iraq. He asked that it ﬁnd Iraq in material

breach of its ongoing obligations, that it establish an enhanced

inspection regime as a means for obtaining the disarmament

Use of Force and Arms Control 943

of Iraq in the area of weapons of mass destruction, and that it

make clear that the most serious consequences for Iraq would

follow continued deﬁance. This Resolution accomplishes each of

these purposes. Moreover, it does so as a result of intense and

open discussions with our Security Council partners. In this process,

different views about the shape and language of a resolution were

fused into the common approach our British partners and we

wanted to create.

This Resolution affords Iraq a ﬁnal opportunity. The Secretary-

General said on September 12, “If Iraq’s deﬁance continues, the

Security Council must face its responsibilities.” We concur with

the wisdom of his remarks. Members can rely on the United States

to live up to its responsibilities if the Iraq regime persists with its

refusal to disarm.

(3) Iraqi violations of relevant resolutions

A fact sheet, issued on November 8, 2002, and excerpted

below, summarized Iraqi violations of sixteen UN Security

Council resolutions and enumerated relevant UN Security

Council presidential statements.

The full text of the fact sheet is available at www.state.gov/

p/nea/rls/01fs/14906pf.htm. The White House background

paper from which it is excerpted, “A Decade of Deception and

Deﬁance,” is available at www.state.gov/p/nea/rls/13456.htm.

****

Saddam Hussein’s Deﬁance of United Nations Resolutions

Saddam Hussein has repeatedly violated sixteen United Nations

Security Council Resolutions (UNSCRs) designed to ensure that

Iraq does not pose a threat to international peace and security.

In addition to these repeated violations, he has tried, over the

past decade, to circumvent UN economic sanctions against Iraq,

which are reﬂected in a number of other resolutions. As noted

in the resolutions, Saddam Hussein was required to fulﬁll many

obligations beyond the withdrawal of Iraqi forces from Kuwait.

Speciﬁcally, Saddam Hussein was required to, among other things:

944 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

allow international weapons inspectors to oversee the destruction

of his weapons of mass destruction; not develop new weapons of

mass destruction; destroy all of his ballistic missiles with a range

greater than 150 kilometers; stop support for terrorism and prevent

terrorist organizations from operating within Iraq; help account

for missing Kuwaitis and other individuals; return stolen Kuwaiti

property and bear ﬁnancial liability for damage from the Gulf

War; and he was required to end his repression of the Iraqi people.

Saddam Hussein has repeatedly violated each of the following

resolutions:

UNSCR 678—November 29, 1990

Iraq must comply fully with UNSCR 660 (regarding Iraq’s illegal

invasion of Kuwait) “and all subsequent relevant resolutions.”

Authorizes UN Member States “to use all necessary means

to uphold and implement resolution 660 and all subsequent

relevant resolutions and to restore international peace and security

in the area.”

UNSCR 686—March 2, 1991

Iraq must release prisoners detained during the Gulf War.

Iraq must return Kuwaiti property seized during the Gulf War.

Iraq must accept liability under international law for damages

from its illegal invasion of Kuwait.

UNSCR 687—April 3, 1991

Iraq must “unconditionally accept” the destruction, removal

or rendering harmless “under international supervision” of all

“chemical and biological weapons and all stocks of agents and all

related subsystems and components and all research, development,

support and manufacturing facilities.”

Iraq must “unconditionally agree not to acquire or develop

nuclear weapons or nuclear-weapons-usable material” or any

research, development or manufacturing facilities.

Iraq must “unconditionally accept” the destruction, removal

or rendering harmless “under international supervision” of all

“ballistic missiles with a range greater than 150 KM and related

major parts and repair and production facilities.”

Use of Force and Arms Control 945

Iraq must not “use, develop, construct or acquire” any weapons

of mass destruction.

Iraq must reafﬁrm its obligations under the Nuclear Non-

Proliferation Treaty.

Creates the United Nations Special Commission (UNSCOM)

to verify the elimination of Iraq’s chemical and biological weapons

programs and mandated that the International Atomic Energy Ag-

ency (IAEA) verify elimination of Iraq’s nuclear weapons program.

Iraq must declare fully its weapons of mass destruction

programs.

Iraq must not commit or support terrorism, or allow terrorist

organizations to operate in Iraq.

Iraq must cooperate in accounting for the missing and dead

Kuwaitis and others.

Iraq must return Kuwaiti property seized during the Gulf War.

UNSCR 688—April 5, 1991

“Condemns” repression of Iraqi civilian population, “the con-

sequences of which threaten international peace and security.”

Iraq must immediately end repression of its civilian population.

Iraq must allow immediate access to international humanitarian

organizations to those in need of assistance.

****

(4) Declaration by Iraq

Among other things, Resolution 1441 required Iraq to submit

a “currently accurate, full and complete” declaration on all

aspects of its weapons programs. On December 7, 2002,

Iraq submitted a 12,200-page document in response to that

requirement. On December 19, 2002, after reviewing the

declaration, Secretary of State Colin L. Powell held a press

conference on Iraq’s declaration, excerpted below.

The full text of the press conference is available at

www.state.gov/secretary/rm/2002/16123pf.htm.

****

946 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The inspectors told the Security Council this morning that the

declaration fails to answer many open questions. They said that in

some cases they even have information that directly contradicts

Iraq’s account.

****

Most brazenly of all, the Iraqi declaration denies the existence of

any prohibited weapons programs at all. The United States, the

United Nations and the world waited for this declaration from Iraq.

But Iraq’s response is a catalogue of recycled information and ﬂagr-

ant omissions. It should be obvious that the pattern of systematic

holes and gaps in Iraq’s declaration is not the result of accidents

or editing oversights or technical mistakes. These are material

omissions that, in our view, constitute another material breach.

We are disappointed, but we are not deceived. This declaration

is consistent with the Iraqi regime’s past practices. We have seen

this game again and again—an attempt to sow confusion and buy

time, hoping the world will lose interest. This time, the game is

not working. This time, the international community is concentrat-

ing its attention and increasing its resolve as the true nature of the

Iraqi regime is revealed again.

On the basis of this declaration, on the basis of the evidence

before us, our path for the coming weeks is clear.

First, we must continue to audit and examine the Iraqi declara-

tion to understand the full extent of Iraq’s failure to meet its

disclosure obligations.

Second, the inspections should give high priority to conducting

interviews with scientists and other witnesses outside of Iraq, where

they can speak freely. Under the terms of Resolution 1441, Iraq is

obligated—it is their obligation—to make such witnesses available

to the inspectors.

Third, the inspectors should intensify their efforts inside Iraq.

The United States, and I hope other Council members, will provide

the inspectors with every possible assistance, all the support they

need to succeed in their crucial mission. Given the gravity of the

situation, we look forward to frequent reports from Dr. Blix and

Dr. El Baradei.

Finally, we will continue to consult with our friends, with

our allies, and with all members of the Security Council on how

Use of Force and Arms Control 947

to compel compliance by Iraq with the will of the international

community.

But let there be no misunderstanding. As Ambassador John

Negroponte said earlier today, Saddam Hussein has so far

responded to this ﬁnal opportunity with a new lie. The burden

remains on Iraq. Not on the United Nations. Not on the United

States. The burden remains on Iraq to cooperate fully and for Iraq

to prove to the international community whether it does or does

not have weapons of mass destruction. We are convinced they

do until they prove to us otherwise.

Resolution 1441 calls for serious consequences for Iraq if it

does not comply with the terms of the resolution. Iraq’s noncompli-

ance and deﬁance of the international community has brought

it closer to the day when it will have to face these consequences.

The world is still waiting for Iraq to comply with its obligations.

The world will not wait forever. Security Council Resolution 1441

will be carried out in full. Iraq can no longer be allowed to threaten

its people and its region with weapons of mass destruction. It is

still up to Iraq to determine how its disarmament will happen.

Unfortunately, this declaration fails totally to move us in the

direction of a peaceful solution.

****

A fact sheet released by the Department of State provides

“illustrative examples of omissions” from the declaration.

The U.S. concluded that “[n]one of these holes and gaps

in Iraq’s declaration are mere accidents, editing oversights

or technical mistakes; they are material omissions.” For the

full text of the fact sheet see www.state.gov/r/pa/prs/ps/2002/

16118pf.htm.

2. Preemptive Action in Self-Defense

a. National Security Strategy

In September 2002, President George W. Bush released the

National Security Strategy of the United States of America.

948 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Chapter V, excerpted below, concerns the threat of weapons

of mass destruction (“WMD”). In addition to addressing the

need for non-proliferation and arms control, chapter V dis-

cussed the preemptive use of force in response to threats

from rogue states and terrorists.

The full text of the National Security Strategy is available

at www.whitehouse.gov/nsc/nss.html.

****

V. Prevent Our Enemies from Threatening Us, Our Allies, and

Our Friends with Weapons of Mass Destruction

****

The nature of the Cold War threat required the United States—

with our allies and friends—to emphasize deterrence of the enemy’s

use of force, producing a grim strategy of mutual assured destruc-

tion. With the collapse of the Soviet Union and the end of the

Cold War, our security environment has undergone profound

transformation.

Having moved from confrontation to cooperation as the

hallmark of our relationship with Russia, the dividends are evident:

an end to the balance of terror that divided us; an historic reduction

in the nuclear arsenals on both sides; and cooperation in areas

such as counterterrorism and missile defense that until recently

were inconceivable.

But new deadly challenges have emerged from rogue states

and terrorists. None of these contemporary threats rival the sheer

destructive power that was arrayed against us by the Soviet Union.

However, the nature and motivations of these new adversaries,

their determination to obtain destructive powers hitherto available

only to the world’s strongest states, and the greater likelihood

that they will use weapons of mass destruction against us, make

today’s security environment more complex and dangerous.

In the 1990s we witnessed the emergence of a small number of

rogue states that, while different in important ways, share a number

of attributes. These states:

Use of Force and Arms Control 949

• brutalize their own people and squander their national

resources for the personal gain of the rulers;

• display no regard for international law, threaten their

neighbors, and callously violate international treaties to

which they are party;

• are determined to acquire weapons of mass destruction,

along with other advanced military technology, to be used

as threats or offensively to achieve the aggressive designs

of these regimes;

• sponsor terrorism around the globe; and

• reject basic human values and hate the United States and

everything for which it stands.

At the time of the Gulf War, we acquired irrefutable proof

that Iraq’s designs were not limited to the chemical weapons it

had used against Iran and its own people, but also extended to the

acquisition of nuclear weapons and biological agents. In the past

decade North Korea has become the world’s principal purveyor

of ballistic missiles, and has tested increasingly capable missiles

while developing its own WMD arsenal. Other rogue regimes seek

nuclear, biological, and chemical weapons as well. These states’

pursuit of, and global trade in, such weapons has become a looming

threat to all nations.

We must be prepared to stop rogue states and their terrorist

clients before they are able to threaten or use weapons of mass

destruction against the United States and our allies and friends.

Our response must take full advantage of strengthened alliances,

the establishment of new partnerships with former adversaries,

innovation in the use of military forces, modern technologies, in-

cluding the development of an effective missile defense system,

and increased emphasis on intelligence collection and analysis.

Our comprehensive strategy to combat WMD includes:

• Proactive counterproliferation efforts. We must deter and

defend against the threat before it is unleashed. We must

ensure that key capabilities—detection, active and passive

defenses, and counterforce capabilities—are integrated into

our defense transformation and our homeland security

systems. Counterproliferation must also be integrated into

the doctrine, training, and equipping of our forces and

950 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

those of our allies to ensure that we can prevail in any

conﬂict with WMD-armed adversaries.

• Strengthened nonproliferation efforts to prevent rogue

states and terrorists from acquiring the materials, techno-

logies, and expertise necessary for weapons of mass destruc-

tion. We will enhance diplomacy, arms control, multilateral

export controls, and threat reduction assistance that impede

states and terrorists seeking WMD, and when necessary,

interdict enabling technologies and materials. We will

continue to build coalitions to support these efforts,

encouraging their increased political and ﬁnancial support

for nonproliferation and threat reduction programs. The

recent G-8 agreement to commit up to $20 billion to a

global partnership against proliferation marks a major step

forward.

• Effective consequence management to respond to the effects

of WMD use, whether by terrorists or hostile states.

Minimizing the effects of WMD use against our people

will help deter those who possess such weapons and

dissuade those who seek to acquire them by persuading

enemies that they cannot attain their desired ends. The

United States must also be prepared to respond to the

effects of WMD use against our forces abroad, and to help

friends and allies if they are attacked.

It has taken almost a decade for us to comprehend the true

nature of this new threat. Given the goals of rogue states and

terrorists, the United States can no longer solely rely on a reactive

posture as we have in the past. The inability to deter a potential

attacker, the immediacy of today’s threats, and the magnitude of

potential harm that could be caused by our adversaries’ choice of

weapons, do not permit that option. We cannot let our enemies

strike ﬁrst.

In the Cold War, especially following the Cuban missile crisis,

we faced a generally status quo, risk-averse adversary. Deterrence

was an effective defense. But deterrence based only upon the threat

of retaliation is less likely to work against leaders of rogue states

more willing to take risks, gambling with the lives of their people,

and the wealth of their nations.

Use of Force and Arms Control 951

• In the Cold War, weapons of mass destruction were con-

sidered weapons of last resort whose use risked the destruc-

tion of those who used them. Today, our enemies see

weapons of mass destruction as weapons of choice. For

rogue states these weapons are tools of intimidation and

military aggression against their neighbors. These weapons

may also allow these states to attempt to blackmail the

United States and our allies to prevent us from deterring

or repelling the aggressive behavior of rogue states. Such

states also see these weapons as their best means of over-

coming the conventional superiority of the United States.

• Traditional concepts of deterrence will not work against

a terrorist enemy whose avowed tactics are wanton

destruction and the targeting of innocents; whose so-called

soldiers seek martyrdom in death and whose most potent

protection is statelessness. The overlap between states that

sponsor terror and those that pursue WMD compels us to

action.

For centuries, international law recognized that nations need

not suffer an attack before they can lawfully take action to defend

themselves against forces that present an imminent danger of

attack. Legal scholars and international jurists often conditioned

the legitimacy of preemption on the existence of an imminent

threat—most often a visible mobilization of armies, navies, and

air forces preparing to attack.

We must adapt the concept of imminent threat to the

capabilities and objectives of today’s adversaries. Rogue states

and terrorists do not seek to attack us using conventional means.

They know such attacks would fail. Instead, they rely on acts of

terror and, potentially, the use of weapons of mass destruction—

weapons that can be easily concealed, delivered covertly, and used

without warning.

The targets of these attacks are our military forces and our

civilian population, in direct violation of one of the principal norms

of the law of warfare. As was demonstrated by the losses on

September 11, 2001, mass civilian casualties is the speciﬁc objective

of terrorists and these losses would be exponentially more severe

if terrorists acquired and used weapons of mass destruction.

952 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The United States has long maintained the option of preemptive

actions to counter a sufﬁcient threat to our national security. The

greater the threat, the greater is the risk of inaction—and the

more compelling the case for taking anticipatory action to defend

ourselves, even if uncertainty remains as to the time and place

of the enemy’s attack. To forestall or prevent such hostile acts

by our adversaries, the United States will, if necessary, act

preemptively.

The United States will not use force in all cases to preempt

emerging threats, nor should nations use preemption as a pretext

for aggression. Yet in an age where the enemies of civilization

openly and actively seek the world’s most destructive technologies,

the United States cannot remain idle while dangers gather. We

will always proceed deliberately, weighing the consequences of

our actions. To support preemptive options, we will:

• build better, more integrated intelligence capabilities to

provide timely, accurate information on threats, wherever

they may emerge;

• coordinate closely with allies to form a common assessment

of the most dangerous threats; and

• continue to transform our military forces to ensure our

ability to conduct rapid and precise operations to achieve

decisive results.

The purpose of our actions will always be to eliminate a speciﬁc

threat to the United States or our allies and friends. The reasons for

our actions will be clear, the force measured, and the cause just.

b. Military intervention

William H. Taft, IV, Legal Adviser of the Department of State,

set forth an analysis of the legal bases for military interven-

tion, including preemptive action in self-defense, in remarks

to a meeting of the American Society of International Law

and the Bar of the City of New York on January 13, 2003. The

prepared speaking points for Mr. Taft’s remarks are provided

below in full.

Use of Force and Arms Control 953

• Preemptive action in self-defense is not a novel concept.

• As far back as 1837, the British destroyed the Caroline, a U.S.

steamer, not in response to a prior attack, but because they

anticipated its use to support Canadian forces in their rebellion

against the crown. Neither Secretary of State Daniel Webster

nor British Foreign Minister Lord Ashburton disagreed about

the existence of an inherent right to use force in self-defense,

but rather on its application to the set of facts before them.

Secretary Webster pointed out, “the extent of this right is a

question to be judged by the circumstances of each particular

case.” The difﬁculty lies in determining, as Lord Ashburton

asked, “when begins your right to self-defend.”

• We have faced the issue more recently in the context of the

Cuban Missile Crisis. President Kennedy spoke these words in

1962: “We no longer live in a world where only the actual

ﬁring of weapons represents a sufﬁcient challenge to a nation’s

security to constitute maximum peril.”

• And as recently as our actions following the attacks of 9/11,

United States action, with the cooperation of its allies, against

Al Qaeda and the Taliban in the wake of the terrible attacks

of 9/11 could be considered preemptive; the United States was

not acting in retaliation, but actually, to prevent and deter im-

minent attack. Under this theory, the United States action was

justiﬁed so long as the enemy maintained his capacity to attack.

U.N. CHARTER

• Article 51 of the United Nations Charter makes clear that

“Nothing in the present charter shall impair the inherent right

of individual or collective self defence if an armed attack occurs

against a member of the United Nations.”

• The United States has long held that, consistent with Article

51 and customary international law, a state may use force in

self-defense: 1. if it has been attacked, or 2. if an armed attack

is legitimately deemed to be imminent.

This interpretation is also consistent with our domestic

notion of self-defense as applied in the criminal and

tort law contexts.

954 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

• The case is, without question, easier where there has been

a clear attack or where there has been a direct authorization

from the United Nations Security Council.

• Iraq is a case involving UN Security Council authorization,

which I will discuss shortly.

WMD CONTEXT

• But short of an actual armed attack or a direct authorization

from the Security Council, how long does a State have to wait

before preemptive measures can be taken to prevent serious

harm?

• In the era of weapons of mass destruction, deﬁnitions within

the traditional framework of the use of force in self-defense

and the concept of preemption must adapt to the nature and

capabilities of today’s threats.

Necessity

• Within the traditional framework of self-defense, a preemptive

use of proportional force is justiﬁed only out of necessity.

• The concept of necessity includes: a credible, imminent threat

and the exhaustion of peaceful remedies.

Imminence

• How far from an advancing army or ships on the horizon can

one be removed and still view the situation as one where the

enemy’s preparation makes it necessary to view an attack as

imminent?

• The purpose of the UN Charter’s language preserving the

inherent right of self-defense is to help dissuade states from

taking aggressive action, but this purpose was based on the

assumption that when a nation was attacked, it would be able

to respond.

• The concept of armed attack and imminent threat must

now take into account the capacity of today’s weapons. The

deterrent effect is diminished when the magnitude of the

Use of Force and Arms Control 955

ﬁrst aggressive strike could destroy completely one’s ability to

respond.

• We cannot wait for a ﬁrst strike under such circumstances.

• The inherent right of self-defense embodied in the UN Charter

must include the right to take preemptive action; otherwise

the original purpose is frustrated.

• While the deﬁnition of imminent must recognize the threat

posed by weapons of mass destruction and the intentions of

those who possess them, the decision to undertake any action

must meet the test of necessity.

Israel Example as an Application of this Concept

• A more recent examination of a claim of the preemptive use of

force in self-defense is Israel’s destruction in June, 1981, of an

Iraqi nuclear reactor near Baghdad.

• Israel asserted the attack was undertaken in self-defense,

claiming that Iraq planned to use the reactor to build nuclear

weapons for use against Israel.

• The United Nations Security Council unanimously condemned

the act as an act of aggression in violation of the UN Charter.

• The majority of the debate centered on whether Israel’s actions

were a legitimate exercise of the right to self-defense—the

“necessity” of Israel’s actions.

• The Member Nations agreed that Israel had failed to exhaust

all peaceful means for resolution of the conﬂict. (This was the

sole reason given by the United States as an explanation for its

conclusion that Israel had violated the Charter.)

• Nearly every member pointed to factual evidence that the Iraqi

reactor was in full compliance, at the time, with its obligations

under the Non-Proliferation Treaty.

• Many believed the threat was too tenuous, as the Iraqi facility

would have required radical alteration to produce weapon

components.

• Many viewed the rationale as an unlimited concept of self-

defense against all possible future dangers, subjectively assessed.

This would certainly have been a dangerous precedent to set,

if permitted without “clear and absolute necessity.” However,

956 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

the members had imposed limits by evaluating the individual

circumstances of the situation against the tests of necessity

and proportionality.

NATIONAL SECURITY STRATEGY

• In light of the incredible destructive capacity of weapons of

mass destruction, the President’s National Security Strategy

clariﬁes that the United States reserves the right to use force

preemptively in self-defense when faced with an imminent

threat.

• The United States will always proceed deliberately, weighing

the consequences of its actions.

• Of course, the simple fact that a state possesses signiﬁcant

military power or seeks to enhance it would not, in the absence

of any evidence that it intends to use its power against others

aggressively, justify a preemptive strike against it. The United

States or any other nation should not use force to preempt

every emerging threat or as a pretext for aggression.

• After the exhaustion of peaceful remedies and a careful, deliber-

ate consideration of the consequences, in the face of overwhelming

evidence of an imminent threat, a nation may take preemptive

action to defend its nationals from unimaginable harm.

IRAQ

• The confrontation with Iraq is taking place in the context of

United Nations Security Council Resolutions and Security

Council authorizations and as such, use of force against Iraq

would not constitute a preemptive use of force.

• For more than a decade, the U.N. has given the Iraqi regime

opportunities to carry out its obligations under a series of

resolutions.

• Following Iraq’s invasion of Kuwait in 1990, U.N. Security

Council Resolution 660 condemned the invasion and demanded

that Iraq withdraw.

• In 1991, Resolution 678 authorized the use of “all necess-

ary means to uphold and implement resolution 660 and all

Use of Force and Arms Control 957

subsequent relevant resolutions and to restore international

peace and security in the area.”

• In addition to the resolutions I have mentioned, there have

been at least 30 U.N. Presidential statements deploring the

unacceptable conduct of the Iraqi regime, and the Security

Council has passed 14 other binding resolutions designed to

stop Iraq from posing a threat to international peace and

security, including Resolution 687 of 1991, which set the

conditions for the cease-ﬁre. Iraq has violated each of them.

• The U.N. has also imposed strict economic sanctions upon

Iraq. Iraq has circumvented each of them.

• In 2002, the Security Council unanimously passed Resolution

1441—giving Iraq a last chance to fulﬁll promises made and

obligations incurred over the last decade.

• Pursuant to this latest resolution, UNMOVIC [United Nations

Monitoring, Veriﬁcation and Inspection Commission] and the

IAEA [International Atomic Energy Agency] will make a report

to the Security Council later this month.

• It will be seen that all of this has very little to do with self-

defense or pre-emptive self-defense.

3. Military Commissions

a. Promulgation of procedures

On March 21, 2002, the Department of Defense issued

Military Commission Order No. 1, providing procedures for

trials by military commissions established pursuant to the

military order issued by President Bush on November 13,

2001, 66 Fed. Reg. 57,833 (Nov. 16, 2001). The November

order provided for the potential use of military commissions

for trial of a non-U.S. citizen whom the President (1) deter-

mined there is reason to believe is or was a member of al

Qaeda, or has participated in terrorist acts against the United

States, or has harbored such individuals and (2) found that

it is in the interest of the United States that such individual

be subject to the order. See Digest 2001 at 872–880. Military

Order No. 1 is excerpted below.

958 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

A fact sheet describing the tribunals is available at

www.dtic.mil/whs/directives/corres/mco/mco1fact.pdf. The full

text of Military Commission Order No. 1 is available at

www.dtic.mil/whs/directives/corres/mco/mco1.pdf.

Department of Defense

Military Commission Order No. 1

SUBJECT: Procedures for Trials by Military Commissions of

Certain Non-United States Citizens in the War Against Terrorism

References:

(a) United States Constitution, Article II, section 2

(b) Military Order of November 13, 2001, “Detention, Treatment,

and Trial of Certain Non-Citizens in the War Against Terror-

ism,” 66 F. R. 57833 (Nov. 16, 2001) (“ President’s Military

Order”)

(d) Executive Order 12958, “Classiﬁed National Security Informa-

tion” (April 17, 1995, as amended, or any successor Executive

Order)

(e) Section 603 of title 10, United States Code

(f) DoD Directive 5025.1, “DoD Directives System,” current

edition March 21, 2002

1. PURPOSE

This Order implements policy, assigns responsibilities, and pre-

scribes procedures under references (a) and (b) for trials before

military commissions of individuals subject to the President’s

Military Order. These procedures shall be implemented and

construed so as to ensure that any such individual receives a

full and fair trial before a military commission, as required by

the President’s Military Order. Unless otherwise directed by the

Use of Force and Arms Control 959

Secretary of Defense, and except for supplemental procedures

established pursuant to the President’s Military Order or this Order,

the procedures prescribed herein and no others shall govern such

trials.

2. ESTABLISHMENT OF MILITARY COMMISSIONS

In accordance with the President’s Military Order, the Secretary

of Defense or a designee (“Appointing Authority”) may issue

orders from time to time appointing one or more military com-

missions to try individuals subject to the President’s Military Order

and appointing any other personnel necessary to facilitate such

trials.

3. JURISDICTION

A. Over Persons

A military commission appointed under this Order (“Commis-

sion”) shall have jurisdiction over only an individual or individ-

uals (“the Accused”) (1) subject to the President’s Military

Order and (2) alleged to have committed an offense in a charge

that has been referred to the Commission by the Appointing

Authority.

B. Over Offenses

Commissions established hereunder shall have jurisdiction over

violations of the laws of war and all other offenses triable by

military commission.

C. Maintaining Integrity of Commission Proceedings

The Commission may exercise jurisdiction over participants in its

proceedings as necessary to preserve the integrity and order of the

proceedings.

960 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

4. COMMISSION PERSONNEL

A. Members

****

(2) Number of Members

Each Commission shall consist of at least three but no more than

seven members, the number being determined by the Appointing

Authority. For each such Commission, there shall also be one or

two alternate members, the number being determined by the

Appointing Authority.

(3) Qualiﬁcations

Each member and alternate member shall be a commissioned ofﬁcer

of the United States armed forces (“Military Ofﬁcer”), including

without limitation reserve personnel on active duty, National

Guard personnel on active duty in Federal service, and retired

personnel recalled to active duty. The Appointing Authority shall

appoint members and alternate members determined to be com-

petent to perform the duties involved. The Appointing Authority

may remove members and alternate members for good cause.

(4) Presiding Ofﬁcer

From among the members of each Commission, the Appointing

Authority shall designate a Presiding Ofﬁcer to preside over the

proceedings of that Commission. The Presiding Ofﬁcer shall be a

Military Ofﬁcer who is a judge advocate of any United States

armed force.

****

B. Prosecution

(1) Ofﬁce of the Chief Prosecutor

(2) Prosecutors and Assistant Prosecutors

The Chief Prosecutor shall be a judge advocate of any United

States armed force, shall supervise the overall prosecution efforts

Use of Force and Arms Control 961

under the President’s Military Order, and shall ensure proper

management of personnel and resources.

Consistent with any supplementary regulations or instruc-

tions issued under Section 7(A), the Chief Prosecutor shall detail

a Prosecutor and, as appropriate, one or more Assistant Pro-

secutors to prepare charges and conduct the prosecution for

each case before a Commission (“Prosecution”). Prosecutors

and Assistant Prosecutors shall be (a) Military Ofﬁcers who are

judge advocates of any United States armed force, or (b) special

trial counsel of the Department of Justice who may be made

available by the Attorney General of the United States. The duties

of the Prosecution are:

(a) To prepare charges for approval and referral by the Appointing

Authority;

(b) To conduct the prosecution before the Commission of all cases

referred for trial; and

process.

C. Defense

(1) Ofﬁce of the Chief Defense Counsel

The Chief Defense Counsel shall be a judge advocate of any United

States armed force, shall supervise the overall defense efforts under

the President’s Military Order, shall ensure proper management

of personnel and resources, shall preclude conﬂicts of interest, and

shall facilitate proper representation of all Accused.

(2) Detailed Defense Counsel

Consistent with any supplementary regulations or instructions

issued under Section 7(A), the Chief Defense Counsel shall detail

one or more Military Ofﬁcers who are judge advocates of any

United States armed force to conduct the defense for each case

before a Commission (“Detailed Defense Counsel”). The duties of

the Detailed Defense Counsel are:

962 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

(a) To defend the Accused zealously within the bounds of the

law without regard to personal opinion as to the guilt of the

Accused; and

(b) To represent the interests of the Accused in any review process

as provided by this Order.

(3) Choice of Counsel

(a) The Accused may select a Military Ofﬁcer who is a judge

advocate of any United States armed force to replace the Accused’s

Detailed Defense Counsel, provided that Military Ofﬁcer has been

determined to be available in accordance with any applicable

supplementary regulations or instructions issued under Section

7(A). After such selection of a new Detailed Defense Counsel,

the original Detailed Defense Counsel will be relieved of all duties

with respect to that case. If requested by the Accused, however,

the Appointing Authority may allow the original Detailed Defense

Counsel to continue to assist in representation of the Accused as

another Detailed Defense Counsel.

(b) The Accused may also retain the services of a civilian

attorney of the Accused’s own choosing and at no expense to the

United States Government (“Civilian Defense Counsel”), pro-

vided that attorney: (i) is a United States citizen; (ii) is admitted to

the practice of law in a State, district, territory, or possession of

the United States, or before a Federal court; (iii) has not been the

subject of any sanction or disciplinary action by any court, bar, or

other competent governmental authority for relevant misconduct;

(iv) has been determined to be eligible for access to information

classiﬁed at the level SECRET or higher under the authority of

and in accordance with the procedures prescribed in reference (c);

and (v) has signed a written agreement to comply with all applicable

regulations or instructions for counsel, including any rules of court

for conduct during the course of proceedings. Civilian attorneys

may be pre-qualiﬁed as members of the pool of available attorneys

if, at the time of application, they meet the relevant criteria, or

they may be qualiﬁed on an ad hoc basis after being requested

by an Accused. Representation by Civilian Defense Counsel will

Use of Force and Arms Control 963

not relieve Detailed Defense Counsel of the duties speciﬁed in

Section 4(C)(2). The qualiﬁcation of a Civilian Defense Counsel

does not guarantee that person’s presence at closed Commission

proceedings or that person’s access to any information protected

under Section 6(D)(5).

****

5. PROCEDURES ACCORDED THE ACCUSED

The following procedures shall apply with respect to the Accused:

A. The Prosecution shall furnish to the Accused, sufﬁciently

in advance of trial to prepare a defense, a copy of the charges

in English and, if appropriate, in another language that the

Accused understands.

B. The Accused shall be presumed innocent until proven guilty.

C. A Commission member shall vote for a ﬁnding of Guilty as to

an offense if and only if that member is convinced beyond a

reasonable doubt, based on the evidence admitted at trial, that

the Accused is guilty of the offense.

D. At least one Detailed Defense Counsel shall be made available

to the Accused sufﬁciently in advance of trial to prepare a

defense and until any ﬁndings and sentence become ﬁnal in

accordance with Section 6(H)(2).

E. The Prosecution shall provide the Defense with access to

evidence the Prosecution intends to introduce at trial and with

access to evidence known to the Prosecution that tends to

exculpate the Accused. Such access shall be consistent with

Section 6(D)(5) and subject to Section 9.

F. The Accused shall not be required to testify during trial. A

Commission shall draw no adverse inference from an Accused’s

decision not to testify. This subsection shall not preclude

admission of evidence of prior statements or conduct of the

Accused.

G. If the Accused so elects, the Accused may testify at trial

on the Accused’s own behalf and shall then be subject to

cross-examination.

964 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

H. The Accused may obtain witnesses and documents for the

Accused’s defense, to the extent necessary and reasonably

available as determined by the Presiding Ofﬁcer. Such access

shall be consistent with the requirements of Section 6(D)(5)

and subject to Section 9. The Appointing Authority shall order

that such investigative or other resources be made available to

the Defense as the Appointing Authority deems necessary for

a full and fair trial.

I. The Accused may have Defense Counsel present evidence at

trial in the Accused’s defense and cross-examine each wit-

ness presented by the Prosecution who appears before the

Commission.

J. The Prosecution shall ensure that the substance of the charges,

the proceedings, and any documentary evidence are provided

in English and, if appropriate, in another language that the

Accused understands. The Appointing Authority may appoint

one or more interpreters to assist the Defense, as necessary.

K. The Accused may be present at every stage of the trial be-

fore the Commission, consistent with Section 6(B)(3), unless

the Accused engages in disruptive conduct that justiﬁes

exclusion by the Presiding Ofﬁcer. Detailed Defense Counsel

may not be excluded from any trial proceeding or portion

thereof.

L. Except by order of the Commission for good cause shown,

the Prosecution shall provide the Defense with access before

sentencing proceedings to evidence the Prosecution intends to

present in such proceedings. Such access shall be consistent

with Section 6(D)(5) and subject to Section 9.

M. The Accused may make a statement during sentencing

proceedings.

N. The Accused may have Defense Counsel submit evidence to

the Commission during sentencing proceedings.

O. The Accused shall be afforded a trial open to the public (except

proceedings closed by the Presiding Ofﬁcer), consistent with

Section 6(B).

P. The Accused shall not again be tried by any Commission for a

charge once a Commission’s ﬁnding on that charge becomes

ﬁnal in accordance with Section 6(H)(2).

Use of Force and Arms Control 965

6. CONDUCT OF THE TRIAL

A. Pretrial Procedures

(1) Preparation of the Charges

The Prosecution shall prepare charges for approval by the

Appointing Authority, as provided in Section 4(B)(2)(a).

(2) Referral to the Commission

The Appointing Authority may approve and refer for trial any

charge against an individual or individuals within the jurisdiction

of a Commission in accordance with Section 3(A) and alleging

an offense within the jurisdiction of a Commission in accordance

with Section 3(B).

(3) Notiﬁcation of the Accused

The Prosecution shall provide copies of the charges approved

by the Appointing Authority to the Accused and Defense Counsel.

The Prosecution also shall submit the charges approved by the

Appointing Authority to the Presiding Ofﬁcer of the Commission

to which they were referred.

(4) Plea Agreements

The Accused, through Defense Counsel, and the Prosecution may

submit for approval to the Appointing Authority a plea agreement

mandating a sentence limitation or any other provision in exchange

for an agreement to plead guilty, or any other consideration. Any

agreement to plead guilty must include a written stipulation of

fact, signed by the Accused, that conﬁrms the guilt of the Accused

and the voluntary and informed nature of the plea of guilty. If the

Appointing Authority approves the plea agreement, the Com-

mission will, after determining the voluntary and informed nature

of the plea agreement, admit the plea agreement and stipulation

into evidence and be bound to adjudge ﬁndings and a sentence

pursuant to that plea agreement.

966 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

(5) Issuance and Service of Process; Obtaining Evidence

The Commission shall have power to:

(a) Summon witnesses to attend trial and testify;

(b) Administer oaths or afﬁrmations to witnesses and other persons

and to question witnesses;

material; and

(d) Designate special commissioners to take evidence.

The Presiding Ofﬁcer shall exercise these powers on behalf of

the Commission at the Presiding Ofﬁcer’s own initiative, or at the

request of the Prosecution or the Defense, as necessary to ensure

a full and fair trial in accordance with the President’s Military

Order and this Order. The Commission shall issue its process in

the name of the Department of Defense over the signature of the

Presiding Ofﬁcer. Such process shall be served as directed by the

Presiding Ofﬁcer in a manner calculated to give reasonable notice

to persons required to take action in accordance with that process.

B. Duties of the Commission During Trial

The Commission shall:

(1) Provide a full and fair trial.

(2) Proceed impartially and expeditiously, strictly conﬁning the

proceedings to a full and fair trial of the charges, excluding

irrelevant evidence, and preventing any unnecessary interference

or delay.

(3) Hold open proceedings except where otherwise decided by the

Appointing Authority or the Presiding Ofﬁcer in accordance

with the President’s Military Order and this Order. Grounds

for closure include the protection of information classiﬁed or

classiﬁable under reference (d); information protected by law

or rule from unauthorized disclosure; the physical safety of

participants in Commission proceedings, including prospective

witnesses; intelligence and law enforcement sources, methods,

or activities; and other national security interests. The Presiding

Use of Force and Arms Control 967

Ofﬁcer may decide to close all or part of a proceeding on the

Presiding Ofﬁcer’s own initiative or based upon a presentation,

including an ex parte, in camera presentation by either the

Prosecution or the Defense. A decision to close a proceeding

or portion thereof may include a decision to exclude the

Accused, Civilian Defense Counsel, or any other person, but

Detailed Defense Counsel may not be excluded from any

trial proceeding or portion thereof. Except with the prior

authorization of the Presiding Ofﬁcer and subject to Section 9,

Defense Counsel may not disclose any information presented

during a closed session to individuals excluded from such

proceeding or part thereof. Open proceedings may include, at

the discretion of the Appointing Authority, attendance by the

public and accredited press, and public release of transcripts

at the appropriate time. Proceedings should be open to the

maximum extent practicable. Photography, video, or audio

broadcasting, or recording of or at Commission proceedings

shall be prohibited, except photography, video, and audio

recording by the Commission pursuant to the direction of the

Presiding Ofﬁcer as necessary for preservation of the record

of trial.

(4) Hold each session at such time and place as may be directed

by the Appointing Authority. Members of the Commission

may meet in closed conference at any time.

(5) As soon as practicable at the conclusion of a trial, transmit an

authenticated copy of the record of trial to the Appointing

Authority.

****

D. Evidence

(1) Admissibility

Evidence shall be admitted if, in the opinion of the Presiding Ofﬁcer

(or instead, if any other member of the Commission so requests

at the time the Presiding Ofﬁcer renders that opinion, the opinion

of the Commission rendered at that time by a majority of the

Commission), the evidence would have probative value to a

reasonable person.

968 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

(2) Witnesses

(a) Production of Witnesses

The Prosecution or the Defense may request that the Commission

hear the testimony of any person, and such testimony shall be

received if found to be admissible and not cumulative. The Com-

mission may also summon and hear witnesses on its own initiative.

The Commission may permit the testimony of witnesses by tele-

phone, audiovisual means, or other means; however, the Commis-

sion shall consider the ability to test the veracity of that testimony

in evaluating the weight to be given to the testimony of the witness.

(b) Testimony

Testimony of witnesses shall be given under oath or afﬁrmation.

The Commission may still hear a witness who refuses to swear an

oath or make a solemn undertaking; however, the Commission

shall consider the refusal to swear an oath or give an afﬁrmation

in evaluating the weight to be given to the testimony of the witness.

A witness who testiﬁes before the Commission is subject to both

direct examination and cross-examination. The Presiding Ofﬁcer

shall maintain order in the proceedings and shall not permit

badgering of witnesses or questions that are not material to the

issues before the Commission. Members of the Commission may

question witnesses at any time.

(d) Protection of Witnesses

The Presiding Ofﬁcer shall consider the safety of witnesses and

others, as well as the safeguarding of Protected Information as

deﬁned in Section 6(D)(5)(a), in determining the appropriate

methods of receiving testimony and evidence. The Presiding Ofﬁcer

may hear any presentation by the Prosecution or the Defense, in-

cluding an ex parte, in camera presentation, regarding the safety of

potential witnesses before determining the ways in which witnesses

Use of Force and Arms Control 969

and evidence will be protected. The Presiding Ofﬁcer may authorize

any methods appropriate for the protection of witnesses and evid-

ence. Such methods may include, but are not limited to: testimony

by telephone, audiovisual means, or other electronic means; closure

of the proceedings; introduction of prepared declassiﬁed summaries

of evidence; and the use of pseudonyms.

****

F. Voting

Members of the Commission shall deliberate and vote in closed

conference. A Commission member shall vote for a ﬁnding of

Guilty as to an offense if and only if that member is convinced

beyond a reasonable doubt, based on the evidence admitted at

trial, that the Accused is guilty of the offense. An afﬁrmative

vote of two-thirds of the members is required for a ﬁnding of

Guilty. When appropriate, the Commission may adjust a charged

offense by exceptions and substitutions of language that do not

substantially change the nature of the offense or increase its

seriousness, or it may vote to convict of a lesser-included offense.

An afﬁrmative vote of two-thirds of the members is required to

determine a sentence, except that a sentence of death requires

a unanimous, afﬁrmative vote of all of the members. Votes on

ﬁndings and sentences shall be taken by secret, written ballot.

G. Sentence

Upon conviction of an Accused, the Commission shall impose a

sentence that is appropriate to the offense or offenses for which

there was a ﬁnding of Guilty, which sentence may include death,

imprisonment for life or for any lesser term, payment of a ﬁne

or restitution, or such other lawful punishment or condition of

punishment as the Commission shall determine to be proper. Only

a Commission of seven members may sentence an Accused to

death. A Commission may (subject to rights of third parties) order

conﬁscation of any property of a convicted Accused, deprive that

Accused of any stolen property, or order the delivery of such

property to the United States for disposition.

970 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

H. Post-Trial Procedures

(1) Record of Trial

Each Commission shall make a verbatim transcript of its pro-

ceedings, apart from all Commission deliberations, and preserve

all evidence admitted in the trial (including any sentencing pro-

ceedings) of each case brought before it, which shall constitute the

record of trial. The court reporter shall prepare the ofﬁcial record

of trial and submit it to the Presiding Ofﬁcer for authentica-

tion upon completion. The Presiding Ofﬁcer shall transmit the

authenticated record of trial to the Appointing Authority. If the

Secretary of Defense is serving as the Appointing Authority,

the record shall be transmitted to the Review Panel constituted

under Section 6(H)(4).

(2) Finality of Findings and Sentence

A Commission ﬁnding as to a charge and any sentence of a

Commission becomes ﬁnal when the President or, if designated

by the President, the Secretary of Defense makes a ﬁnal decision

thereon pursuant to Section 4(c)(8) of the President’s Military

Order and in accordance with Section 6(H)(6) of this Order. An

authenticated ﬁnding of Not Guilty as to a charge shall not be

changed to a ﬁnding of Guilty. Any sentence made ﬁnal by action

of the President or the Secretary of Defense shall be carried out

promptly. Adjudged conﬁnement shall begin immediately following

the trial.

(3) Review by the Appointing Authority

If the Secretary of Defense is not the Appointing Authority, the

Appointing Authority shall promptly perform an administrative

review of the record of trial. If satisﬁed that the proceedings of

the Commission were administratively complete, the Appointing

Authority shall transmit the record of trial to the Review Panel

constituted under Section 6(H)(4). If not so satisﬁed, the Appointing

Authority shall return the case for any necessary supplementary

proceedings.

Use of Force and Arms Control 971

(4) Review Panel

The Secretary of Defense shall designate a Review Panel consist-

ing of three Military Ofﬁcers, which may include civilians

commissioned pursuant to reference (e). At least one member of

each Review Panel shall have experience as a judge. The Review

Panel shall review the record of trial and, in its discretion, any

written submissions from the Prosecution and the Defense and

shall deliberate in closed conference. The Review Panel shall

disregard any variance from procedures speciﬁed in this Order or

elsewhere that would not materially have affected the outcome of

the trial before the Commission. Within thirty days after receipt

of the record of trial, the Review Panel shall either (a) forward the

case to the Secretary of Defense with a recommendation as to

disposition, or (b) return the case to the Appointing Authority for

further proceedings, provided that a majority of the Review Panel

has formed a deﬁnite and ﬁrm conviction that a material error of

law occurred.

(5) Review by the Secretary of Defense

The Secretary of Defense shall review the record of trial and the

recommendation of the Review Panel and either return the case

for further proceedings or, unless making the ﬁnal decision

pursuant to a Presidential designation under Section 4(c)(8) of the

President’s Military Order, forward it to the President with a

recommendation as to disposition.

(6) Final Decision

After review by the Secretary of Defense, the record of trial and

all recommendations will be forwarded to the President for review

and ﬁnal decision (unless the President has designated the Secret-

ary of Defense to perform this function). If the President has so

designated the Secretary of Defense, the Secretary may approve or

disapprove ﬁndings or change a ﬁnding of Guilty to a ﬁnding of

Guilty to a lesser-included offense, or mitigate, commute, defer,

or suspend the sentence imposed or any portion thereof. If the

972 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Secretary of Defense is authorized to render the ﬁnal decision, the

review of the Secretary of Defense under Section 6(H)(5) shall

constitute the ﬁnal decision.

****

9. PROTECTION OF STATE SECRETS

Nothing in this Order shall be construed to authorize disclosure

of state secrets to any person not authorized to receive them.

10. OTHER

This Order is not intended to and does not create any right, beneﬁt,

or privilege, substantive or procedural, enforceable by any party,

against the United States, its departments, agencies, or other entities,

its ofﬁcers or employees, or any other person. No provision in this

Order shall be construed to be a requirement of the United States

Constitution. Section and subsection captions in this document

are for convenience only and shall not be used in construing the

requirements of this Order. Failure to meet a time period speciﬁed

in this Order, or supplementary regulations or instructions issued

under Section 7(A), shall not create a right to relief for the Accused

or any other person. Reference (f) shall not apply to this Order

or any supplementary regulations or instructions issued under

Section 7(A).

****

b. Commentary on military commissions: fair trials and justice

In commentary on the military commissions as envisioned

under the procedures in Military Commission Order No. 1,

Legal Adviser of the U.S. State Department William H. Taft,

IV, set forth the historical context of such commissions

and concluded that the new procedures provided pro-

tections consistent with those set out in the 1949 Geneva

Conventions, the customary principles found in article 75

Use of Force and Arms Control 973

(Fundamental Guarantees) of Additional Protocol I to the

Geneva Conventions, and the International Covenant on Civil

and Political Rights.

Mr. Taft’s commentary, dated March 26, 2002, is set

forth below in full and is available at http://usinfo.state.gov/

topical/pol/terror/02032603.htm.

Since September 11, the world community has committed itself

to bringing those responsible for the attacks on the World Trade

Center and the Pentagon to justice. The United Nations Security

Council has called upon all States to hold accountable those persons

who aided, supported or harbored the perpetrators, organizers or

sponsors of those terrible crimes. This is a multilateral battle for

accountability and justice as well as a ﬁght for the security of our

people and our fundamental values. Like other nations, the United

States has been taking steps to bring the 9/11 terrorists and their

supporters to justice. Just last week, the Department of Defense

issued rules and regulations that will govern the conduct of the

military commissions that may be established to try persons accused

of violations of the laws of war. Last November, President Bush

set out the framework for such judicial bodies based upon their

long history and basis under U.S. law. He noted that such com-

missions would provide the U.S. Government a potentially useful

option to bring suspected terrorists to justice. The international

community now knows how such tribunals would operate.

In preparing the procedures for the military commissions, the

U.S. government has been well aware of various concerns that

have been expressed regarding the treatment of persons who may

be referred for trial as well as the need to assure that determinations

of guilt or innocence are made promptly, after consideration of

relevant evidence, and without jeopardizing the personal safety of

witnesses, jurors, and others involved in the process.

Over the last ﬁfty years, the U.S. military and Congress have

worked strenuously to fashion through the Uniform Code of

Military Justice a model judicial system designed to try American

military personnel for their alleged crimes. The military justice

system today produces just outcomes and provides defendants with

974 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

all the basic due process protections found in civilian criminal

proceedings. It has earned a reputation among observers and

practitioners as one of the fairest systems in the world. The Uniform

Code itself expressly recognizes that military commissions have

jurisdiction over violations of the laws and customs of war, and

the United States has consistently used such commissions to try

enemy combatants for such violations. As with the evolution of

courts-martial procedures, the Pentagon’s recently released Military

Commission Order represents a signiﬁcant advance in military

commission procedures.

Military commissions have a well-established place in

international law and practice. The Third Geneva Convention on

the Protection of Prisoners of War, for example, presumes that

POWs “shall be tried only by a military court,” which has often

been a military commission, and authorizes trials in civilian courts

in certain instances. Nations as diverse as the Philippines, Australia,

China, The Netherlands, France, Poland, Canada, Norway, and

the United Kingdom have prosecuted war criminals in military

commissions, to name just a few. The United States used military

commissions as far back as 1780, during the American Revolution-

ary War, and again during and after the Mexican-American War,

the American Civil War, and World War II. European States made

similar use of military commissions in 19th-century conﬂicts and

even more extensively in the 20th century. In fact, the Allies relied

heavily upon military commissions to prosecute war criminals

following World War II for the reason that their procedures are

easily adapted to the special needs of such cases.

The military commission regulations just issued are consistent

with this tradition and ensure that the conduct of U.S. military

commissions will provide the fundamental protections found in

international law. Indeed, in a number of respects the procedures

represent improvements on past practice. In preparing the pro-

cedures, the Pentagon not only listened carefully but also took

into account the constructive advice and concerns raised by other

governments and the non-governmental community.

The procedures offer essential guarantees of independence

and impartiality and afford the accused the protections and means

of defense recognized by international law. They provide, in

Use of Force and Arms Control 975

particular, protections consistent with those set out in the 1949

Geneva Conventions, the customary principles found in Article 75

(Fundamental Guarantees) of Additional Protocol I to the Geneva

Conventions, and the International Covenant on Civil and Political

Rights. Even though many of these speciﬁc provisions may not be

legally required under international law, the military commission

procedures nevertheless comport with all of them.

For example, the Pentagon’s procedures provide: a fair and

public hearing, the presumption of innocence, the highest standard

of proof beyond a reasonable doubt, the choice of both military

and civilian counsel, adequate time and facilities to prepare for

trial, the ability to be present at one’s own trial (subject only to

exceptional national security concerns, although defense counsel

could be present), the ability to present a defense (including the

right to examine and call witnesses), protection against self-

incrimination, a requirement that guilty verdicts be unanimous in

capital cases, and automatic review by a higher tribunal to which

civilians may be appointed.

As noted, the procedures call for public hearings. By providing

for closed proceedings when necessary, the regulations also assure

that the accused may be brought to justice without risking the

safety or security of victims and witnesses. In this respect, as in

others, the regulations are similar to the rules of the International

Criminal Tribunals for the Former Yugoslavia and Rwanda, both

of which provide that proceedings may be closed to the public

on the basis of “public order or morality,” the “safety, security

or non-disclosure of the identity of a victim or witness,” and “the

protection of the interests of justice.” In addition—and also

consistent with the practice of other international criminal tribunals

trying persons charged with war crimes—the regulations allow

for the presentation of evidence in camera where its publication

would endanger national security (e.g., classiﬁed information and

intelligence sources). In all cases, however, such information will

be made known to the accused’s qualiﬁed defense counsel, who

will have an opportunity to examine and challenge witnesses and

the evidence.

Taken together, the recently published regulations will result

in efﬁcient and fair trials. Individual rights of those charged with

976 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

crimes will be respected, while assuring that those responsible for

killing civilians and other acts of terrorism will be convicted.

4. Enemy Combatants Held by the United States

a. Status of enemy combatant detainees

(1) Determination by President Bush

On February 7, 2002, White House Press Secretary Ari

Fleischer announced that President Bush had determined

the legal status of the Taliban and al Qaeda detainees being

held at Guantanamo Naval Base, Cuba. The United States

would treat all Taliban and al Qaeda detainees in Guant-

anamo Bay humanely, consistent with applicable international

principles. Although Afghanistan is a party to the 1949 Geneva

Conventions, the President determined that the members

of the Taliban who were detained did not meet the criteria

set forth in article 4 of the Geneva Convention on Prisoners

of War, 6 U.S.T. 3316, 75 U.N.T.S. 135 (1949), to qualify as

prisoners of war. The President also concluded that al Qaeda

is an international terrorist group and cannot be considered

a state party to the Geneva Conventions. The press secretary’s

statement is set forth below.

The full text of the statement and responses to questions

from the press is available at www.state.gov/s/l/c8183.htm.

****

. . . Today President Bush afﬁrms our enduring commitment to

the important principles of the Geneva Convention. Consistent

with American values and the principles of the Geneva Convention,

the United States has treated and will continue to treat all Taliban

and al Qaeda detainees in Guantanamo Bay humanely and con-

sistent with the principles of the Geneva Convention.

They will continue to receive three appropriate meals a day,

excellent medical care, clothing, shelter, showers, and the oppor-

Use of Force and Arms Control 977

tunity to worship. The International Community of the Red Cross

can visit each detainee privately.

In addition, President Bush today has decided that the Geneva

Convention will apply to the Taliban detainees, but not to the al

Qaeda international terrorists.

Afghanistan is a party to the Geneva Convention. Although

the United States does not recognize the Taliban as a legitimate

Afghani government, the President determined that the Taliban

members are covered under the treaty because Afghanistan is a

party to the Convention.

Under Article 4 of the Geneva Convention, however, Taliban

detainees are not entitled to POW status. To qualify as POWs

under Article 4, al Qaeda and Taliban detainees would have to

have satisﬁed four conditions: They would have to be part of a

military hierarchy; they would have to have worn uniforms or

other distinctive signs visible at a distance; they would have to

have carried arms openly; and they would have to have conducted

their military operations in accordance with the laws and customs

of war.

The Taliban have not effectively distinguished themselves from

the civilian population of Afghanistan. Moreover, they have not

conducted their operations in accordance with the laws and customs

of war. Instead, they have knowingly adopted and provided support

to the unlawful terrorist objectives of the al Qaeda.

Al Qaeda is an international terrorist group and cannot be

considered a state party to the Geneva Convention. Its members,

therefore, are not covered by the Geneva Convention, and are not

entitled to POW status under the treaty.

The war on terrorism is a war not envisaged when the

Geneva Convention was signed in 1949. In this war, global ter-

rorists transcend national boundaries and internationally target

the innocent. The President has maintained the United States’

commitment to the principles of the Geneva Convention, while

recognizing that the Convention simply does not cover every

situation in which people may be captured or detained by military

forces, as we see in Afghanistan today.

****

978 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

(2) Fact sheet on detainees

Also on February 7, the White House issued a fact sheet

explaining further the policy of the United States toward the

detainees and the speciﬁcs of its application.

The fact sheet is set forth below in full and is available at

www.whitehouse.gov/news/releases/2002/02/20020207-13.html.

Status of Detainees at Guantanamo

United States Policy.

• The United States is treating and will continue to treat all of

the individuals detained at Guantanamo humanely and, to the

extent appropriate and consistent with military necessity, in

a manner consistent with the principles of the Third Geneva

Convention of 1949.

• The President has determined that the Geneva Convention

applies to the Taliban detainees, but not to the al-Qaida

detainees.

• Al-Qaida is not a state party to the Geneva Convention; it is a

foreign terrorist group. As such, its members are not entitled

to POW status.

• Although we never recognized the Taliban as the legitimate

Afghan government, Afghanistan is a party to the Convention,

and the President has determined that the Taliban are covered

by the Convention. Under the terms of the Geneva Convention,

however, the Taliban detainees do not qualify as POWs.

• Therefore, neither the Taliban nor al-Qaida detainees are

entitled to POW status.

• Even though the detainees are not entitled to POW privileges,

they will be provided many POW privileges as a matter of

policy.

All detainees at Guantanamo are being provided:

• three meals a day that meet Muslim dietary laws

• water

Use of Force and Arms Control 979

• medical care

• clothing and shoes

• shelter

• showers

• soap and toilet articles

• foam sleeping pads and blankets

• towels and washcloths

• the opportunity to worship

• correspondence materials, and the means to send mail

• the ability to receive packages of food and clothing, subject to

security screening

The detainees will not be subjected to physical or mental abuse

or cruel treatment. The International Committee of the Red

Cross has visited and will continue to be able to visit the detainees

privately. The detainees will be permitted to raise concerns about

their conditions and we will attempt to address those concerns

consistent with security.

Housing. We are building facilities in Guantanamo more

appropriate for housing the detainees on a long-term basis. The

detainees now at Guantanamo are being housed in temporary open-

air shelters until these more long-term facilities can be arranged.

Their current shelters are reasonable in light of the serious security

risk posed by these detainees and the mild climate of Cuba.

POW Privileges the Detainees will not receive. The detainees

will receive much of the treatment normally afforded to POWs

by the Third Geneva Convention. However, the detainees will

not receive some of the speciﬁc privileges afforded to POWs,

including:

• access to a canteen to purchase food, soap, and tobacco

• a monthly advance of pay

• the ability to have and consult personal ﬁnancial accounts

• the ability to receive scientiﬁc equipment, musical instruments,

or sports outﬁts

Many detainees at Guantanamo pose a severe security risk to

those responsible for guarding them and to each other. Some of

980 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

these individuals demonstrated how dangerous they are in uprisings

at Mazar-e-Sharif and in Pakistan. The United States must take

into account the need for security in establishing the conditions

for detention at Guantanamo.

Background on Geneva Conventions. The Third Geneva

Convention of 1949 is an international treaty designed to protect

prisoners of war from inhumane treatment at the hands of their

captors in conﬂicts covered by the Convention. It is among four

treaties concluded in the wake of WWII to reduce the human

suffering caused by war. These four treaties provide protections

for four different classes of people: the military wounded and sick

in land conﬂicts; the military wounded, sick and shipwrecked in

conﬂicts at sea; military persons and civilians accompanying the

armed forces in the ﬁeld who are captured and qualify as prisoners

of war; and civilian non-combatants who are interned or otherwise

found in the hands of a party (e.g. in a military occupation) during

an armed conﬂict.

b. Habeas corpus litigation in the United States concerning

enemy combatant detainees

During 2002 several suits were ﬁled in the United States

challenging various aspects of the detention of enemy

combatants by the United States in the ongoing military

hostilities following the terrorist attacks against the United

States on September 11, 2001. The individuals included aliens

captured in Afghanistan or elsewhere and detained at the

U.S. military facility at Guantanamo Bay, Cuba, and U.S.

citizens held as enemy combatants at U.S. military facilities

in the United States.

At the end of 2002, litigation was still pending in these

cases.

(1) Access to U.S. courts in habeas proceedings by detainees

at Guantanamo

All efforts to ﬁle petitions of habeas corpus with U.S. courts

by “next friends” on behalf of detainees in Guantanamo were

Use of Force and Arms Control 981

dismissed at the district court level, the courts ﬁnding, inter

alia, no jurisdiction where detainees were held outside the

sovereign territory of the United States. Coalition of Clergy. v.

Bush, 189 F. Supp. 2d 1036 (C.D.Cal. 2002), Rasul v. Bush,

215 F. Supp. 2d 55 (D.D.C. 2002). In Coalition of Clergy, the

dismissal was afﬁrmed by the U.S. Court of Appeals for the

Ninth Circuit on grounds that plaintiffs lacked standing;

the analysis of the district court on jurisdiction over the

habeas petition was vacated as not necessary to the decision.

310 F.3d 1153 (9

Cir. 2002).

The Rasul decision combined two cases: Rasul v. Bush

concerned a petition for writ of habeas corpus and for

additional relief ﬁled by parents of three detainees at

Guantanamo, British nationals Shaﬁq Rasul and Asif Iqbal,

and Australian David Hicks. Al Odah v. U.S. was a suit

brought by family members on behalf of twelve Kuwaiti

detainees indirectly challenging detention by seeking access

to counsel and families, the ﬁling of charges, access to the

courts or other tribunal and other relief. The district court

concluded that in both cases a petition for habeas corpus

was the exclusive avenue for relief and considered them as

such. A third next-friend action was ﬁled in the same district

court, Habib v. Bush, 02-CV-1130 (D.D.C. 2002), seeking

through writ of habeas corpus the release of another alien

held at Guantanamo. Following its ruling in Rasul v Bush,

the court issued an order on August 8, 2002, dismissing the

Habib petition with prejudice for lack of jurisdiction.

Excerpts below from the decision in Rasul dismissing

the petitions for habeas corpus provide the court’s analysis

of the lack of jurisdiction, consistent with positions taken by

the U.S. briefs in the cases consolidated there. An appeal

to the U.S. Court of Appeals for the D.C. Circuit was pending

at the end of 2002.

****

[V.]B. The Ability of Courts to Entertain Petitions for Writs of

Habeas Corpus Made By Aliens Held Outside the Sovereign

Territory of the United States

982 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The Court . . . considers both cases as petitions for writs of habeas

corpus on behalf of aliens detained by the United States at the

military base at Guantanamo Bay, Cuba. In viewing both cases

from this perspective, the Court concludes that the Supreme Court’s

ruling in Johnson v. Eisentrager, 339 U.S. 763, 94 L. Ed. 1255, 70

S. Ct. 936 (1950), and its progeny, are controlling and bars the

Court’s consideration of the merits of these two cases. . . .

1. Johnson v. Eisentrager

The Eisentrager case involved a petition for writs of habeas corpus

ﬁled by twenty-one German nationals in the United States District

Court for the District of Columbia. The prisoners in Eisentrager

had been captured in China for engaging in espionage against the

United States following the surrender of Germany, but before the

surrender of Japan, at the end of World War II. Id. at 766. Since

the United States was at peace with Germany, the actions of the

Eisentrager petitioners violated the laws of war. Id. Following a

trial and conviction by a United States military commission sitting

in China, with the express permission of the Chinese government,

the prisoners were repatriated to Germany to serve their sentences

at Landsberg Prison. Id. Their immediate custodian at Landsberg

Prison was a United States Army ofﬁcer under the Commanding

General, Third United States Army, and the Commanding General,

European Command. Id.

The district court dismissed the petition for want of jurisdic-

tion. Id. at 767. An appellate panel reversed the decision of the

district court and remanded the case for further proceedings.

See Eisentrager v. Forrestal, 84 U.S. App. D.C. 396, 174 F.2d

961 (D.C. Cir. 1949). In an opinion by Judge E. Barrett Prettyman,

the Court of Appeals for the District of Columbia Circuit held

that “any person who is deprived of his liberty by ofﬁcials of

the United States, acting under purported authority of that

Government, and who can show that his conﬁnement is in violation

of a prohibition of the Constitution, has a right to the writ.” 174

F.2d at 963.

A divided panel of the Supreme Court reversed the decision

of the District of Columbia Circuit and afﬁrmed the judgment of

Use of Force and Arms Control 983

the district court. Eisentrager, 339 U.S. at 791. In ﬁnding that no

court had jurisdiction to entertain the claims of the German

nationals, the Supreme Court, in an opinion by Justice Robert

Jackson, found that a court was unable to extend the writ of

habeas corpus to aliens held outside the sovereign territory of the

United States. Id. at 778.

****

Accordingly, the Court ﬁnds that Eisentrager is applicable to the

aliens in these cases, who are held at Guantanamo Bay, even in

the absence of a determination by a military commission that they

are “enemies.”

While it is true that the petitioners in Eisentrager

had already been convicted by a military commission, id. at 766,

the Eisentrager Court did not base its decision on that distinction.

Rather, Eisentrager broadly applies to prevent aliens detained

outside the sovereign territory of the United States from invoking

a petition for a writ of habeas corpus.

. . . Given that Eisentrager applies to the aliens presently

detained at the military base at Guantanamo Bay, the only question

remaining for the Court’s resolution is whether Guantanamo Bay,

Cuba is part of the sovereign territory of the United States.

4. Is Guantanamo Bay Part of the Sovereign Territory of the

United States?

The Court in Eisentrager discusses the territory of the United

States in terms of sovereignty. Id. at 778 (“for these prisoners

at no relevant time were within any territory over which the

United States is sovereign”). It is undisputed, even by the parties,

that Guantanamo Bay is not part of the sovereign territory of the

The United States confronts an untraditional war that presents unique

challenges in identifying a nebulous enemy. In earlier times when the United

States was at war, discerning “the enemy” was far easier than today. “In

war ‘every individual of the one nation must acknowledge every individual

of the other nation as his own enemy.’” Eisentrager 339 U.S. at 772 (quoting

The Rapid, 8 Cranch 155, 161 (1814)). The two cases at bar contain nationals

from three friendly countries at peace with the United States, demonstrating

the difﬁculty in determining who is the “enemy.”

984 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

United States.

Thus, the only question remaining for resolution

is whether this fact alone is an absolute bar to these suits, or

whether aliens on a United States military base situated in a foreign

country are considered to be within the territorial jurisdiction of

the United States, under a de facto theory of sovereignty.

Petitioners and Plaintiffs assert that the United States has

de facto sovereignty over the military base at Guantanamo Bay,

and that this provides the Court with the basis needed to assert

jurisdiction. In other words, Petitioners and Plaintiffs argue that

even if the United States does not have de jure sovereignty over

the military facility at Guantanamo Bay, it maintains de facto

sovereignty due to the unique nature of the control and jurisdiction

the United States exercises over this military base. According

to Petitioners and Plaintiffs, if the United States has de facto

sovereignty over the military facility at Guantanamo Bay, then

Eisentrager is inapplicable to their cases and the Court is able to

assume jurisdiction over their claims. However, the cases relied

on by Petitioners and Plaintiffs to support their thesis are belied

not only by Eisentrager, which never qualiﬁed its deﬁnition of

sovereignty in such a manner, but also by the very case law relied

on by Petitioners and Plaintiffs.

At oral argument, when asked for a case that supported the

view that de facto sovereignty would sufﬁce to provide the Court

The United States occupies Guantanamo Bay under a lease entered

into with the Cuban government in 1903. Agreement Between the United

States and Cuba for the Lease of Lands for Coaling and Naval Stations, Feb.

16–23, 1903, U.S.-Cuba, art. III, T.S. 418. The lease provides:

While on the one hand the United States recognizes the continuance of

the ultimate sovereignty of the Republic of Cuba over [the military base

at Guantanamo Bay], on the other hand the Republic of Cuba consents

that during the period of occupation by the United States of said areas

under the terms of this agreement the United States shall exercise complete

jurisdiction and control over and within said areas with the right to

acquire . . . for the public purposes of the United States any land or

other property therein by purchase or by exercise of eminent domain

with full compensation to the owners thereof.

Id. As is clear from this agreement, the United States does not have sovereignty

over the military base at Guantanamo Bay.

Use of Force and Arms Control 985

with jurisdiction, both Petitioners and Plaintiffs directed the Court

to Ralpho v. Bell, 186 U.S. App. D.C. 368, 569 F.2d 607 (D.C.

Cir. 1977). Tr. at 33, 62–63. The Ralpho case involves a claim

brought under the Micronesian Claims Act of 1971, which was

enacted by the United States Congress to establish a fund to

compensate Micronesians for losses incurred during the hostilities

of World War II. Ralpho, 569 F.2d at 611. . . .

....Ralpho does not stand for the proposition that a court

can grant constitutional rights over a geographical area where de

facto sovereignty is present. Rather, Ralpho stands for a limited

extension of the uncontested proposition that aliens residing in

the sovereign territories of the United States are entitled to certain

basic constitutional rights.

****

. . . [T]he Court in Ralpho analogized the situation before it to

those cases granting constitutional rights to the peoples of United

States territories, even though the trust agreement with the United

Nations did not provide for sovereignty over Micronesia. Ralpho,

569 F.2d at 619 n. 71. The cases involving the territories of the

United States, relied on by the Ralpho Court, are fundament-

ally different from the two cases presently before the Court. The

military base at Guantanamo Bay, Cuba, is nothing remotely

akin to a territory of the United States, where the United States

provides certain rights to the inhabitants. Rather, the United

States merely leases an area of land for use as a naval base.

Accordingly, the Court is hard-pressed to adopt Petitioners’

and Plaintiffs’ view that the holding in Ralpho favors their

claims. In fact, another district court considering whether a de

facto sovereignty test should be used to analyze claims occur-

ring at the military base at Guantanamo Bay ﬂatly rejected

the idea. Bird v. United States, 923 F. Supp. 338 (D. Conn.

1996). . . .

The Bird case is not the only court to reject a de facto

sovereignty test for claims involving aliens located at the military

base at Guantanamo Bay. Cuban American Bar Ass’n, Inc. v.

Christopher, 443 F.3d 1412 (11th Cir. 1995), cert. denied, 515

U.S. 1142 (1995). . . .

986 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

VI. CONCLUSION

The Court concludes that the military base at Guantanamo Bay,

Cuba is outside the sovereign territory of the United States. Given

that under Eisentrager, writs of habeas corpus are not available to

aliens held outside the sovereign territory of the United States, this

Court does not have jurisdiction to entertain the claims made by

Petitioners in Rasul or Plaintiffs in Odah. Of course, just as the

Eisentrager Court did not hold “that these prisoners have no right

which the military authorities are bound to respect,” Eisentrager,

339 U.S. at 789 n.14, this opinion, too, should not be read as

stating that these aliens do not have some form of rights under

international law. Rather, the Court’s decision solely involves

whether it has jurisdiction to consider the constitutional claims

that are presented to the Court for resolution.

(2) Constitutional rights of U.S. citizens being detained in the

United States

In two separate cases, habeas actions were ﬁled on behalf

of U.S. citizens being detained as enemy combatants in the

United States. Hamdi v. Rumsfeld, 294 F.3d 598 (4

Cir. 2002),

296 F.3d 278 (4

Cir. 2002), 243 F. Supp. 2d 527 (E.D. Va.

2002) and Padilla v. Bush, 233 F. Supp 2d. 564 (S.D.N.Y.

2002). Both cases were still pending at the end of 2002.

(i) Hamdi v. Rumsfeld

Yaser Esam Hamdi was captured by allied forces in

Afghanistan after he surrendered with a Taliban unit while

armed with an AK-47 assault riﬂe and was held in Norfolk,

Virginia. Hamdi is apparently a Saudi national, born in

Louisiana. Hamdi’s father, Esam Fouad Hamdi, ﬁled the

habeas action at issue in the case on behalf of his son in

June 2002. It alleged that Hamdi, as an American citizen,

“enjoys the full protections of the Constitution,” and that

Hamdi’s detention without charges or counsel violated the

Fifth and Fourteenth Amendments to the U.S. Constitution.

Use of Force and Arms Control 987

On June 11, 2002, the U.S. District Court for the Eastern

District of Virginia appointed a federal public defender in

the case with an order that the public defender be allowed

to meet with Hamdi in private. The U.S. Court of Appeals

for the Fourth Circuit stayed the district court proceedings

and, on July 12, reversed the June 11 order, remanding for

further proceedings. 296 F.3d 278 (4

Cir. 2002). On July 25,

2002, the United States ﬁled a combined return and motion

to dismiss. That submission included a sworn declaration of

the Special Advisor to the Under Secretary of Defense for

Policy, Michael Mobbs. The Mobbs Declaration explained

the circumstances surrounding Hamdi’s capture and the

military’s determination to detain him as an enemy combat-

ant. On August 16, 2002, the court found the government’s

responses insufﬁcient to justify Hamdi’s detention and

ordered production of additional materials.

The United States appealed the August 16 order. In a

decision of January 8, 2003, the Fourth Circuit reversed the

district court and remanded with directions to dismiss the

habeas corpus petition. Hamdi v. Rumsfeld, 316 F.3d 450 (4

Cir. 2003). Excerpts from the court of appeals decision are

set forth below.

****

II. Yaser Esam Hamdi is apparently an American citizen. He

was also captured by allied forces in Afghanistan, a zone of active

military operations. This dual status—that of American citizen

and that of alleged enemy combatant—raises important questions

about the role of the courts in times of war.

A. The importance of limitations on judicial activities during

wartime may be inferred from the allocation of powers under our

constitutional scheme “Congress and the President, like the courts,

possess no power not derived from the Constitution.” Ex parte

Quirin, 317 U.S. 1, 25, 87 L. Ed. 3, 63 S. Ct. 2 (1942). Article I,

section 8 grants Congress the power to “provide for the common

Defence and general Welfare of the United States . . . To declare

988 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

War, grant Letters of Marque and Reprisal, and make Rules con-

cerning Captures on Land and Water; To raise and support armies

. . . [and] To provide and maintain a navy.” Article II, section 2

declares that “the President shall be Commander in Chief of the

Army and Navy of the United States, and of the Militia of the several

States, when called into the actual Service of the United States.”

The war powers thus invest “the President, as Commander in

Chief, with the power to wage war which Congress has declared,

and to carry into effect all laws passed by Congress for the conduct

of war and for the government and regulation of the Armed Forces,

and all laws deﬁning and punishing offences against the law of

nations, including those which pertain to the conduct of war.”

Quirin, 317 U.S. at 26. These powers include the authority to

detain those captured in armed struggle. Hamdi II, 296 F.3d at

281–82.

These powers likewise extend to the executive’s decision

to deport or detain alien enemies during the duration of hostilities,

see Ludecke v. Watkins, 335 U.S. 160, 173, 92 L. Ed. 1881, 68

S. Ct. 1429 (1948), and to conﬁscate or destroy enemy property,

see Juragua Iron Co. v. United States, 212 U.S. 297, 306, 53 L. Ed.

520, 29 S. Ct. 385, 44 Ct. Cl. 595 (1909).

Article III contains nothing analogous to the speciﬁc powers

of war so carefully enumerated in Articles I and II. “In accordance

with this constitutional text, the Supreme Court has shown great

deference to the political branches when called upon to decide

cases implicating sensitive matters of foreign policy, national

security, or military affairs.” Hamdi II, 296 F.3d at 281.

The reasons for this deference are not difﬁcult to discern.

Through their departments and committees, the executive and

legislative branches are organized to supervise the conduct of

overseas conﬂict in a way that the judiciary simply is not. The

Constitution’s allocation of the warmaking powers reﬂects not

only the expertise and experience lodged within the executive,

Persons captured during wartime are often referred to as “enemy

combatants.” While the designation of Hamdi as an “enemy combatant”

has aroused controversy, the term is one that has been used by the Supreme

Court many times. See, e.g., Madsen v. Kinsella, 343 U.S. 341, 355, 96 L.

Ed. 988, 72 S. Ct. 699 (1952); In re Yamashita, 327 U.S. 1, 7, 90 L. Ed. 499,

66 S. Ct. 340 (1946); Quirin, 317 U.S. at 31.

Use of Force and Arms Control 989

but also the more fundamental truth that those branches most

accountable to the people should be the ones to undertake the

ultimate protection and to ask the ultimate sacriﬁce from them.

Thus the Supreme Court has lauded “the operation of a healthy

deference to legislative and executive judgments in the area of

military affairs.” Rostker v. Goldberg, 453 U.S. 57, 66, 69 L. Ed.

2d 478, 101 S. Ct. 2646 (1981).

The deference that ﬂows from the explicit enumeration of

powers protects liberty as much as the explicit enumeration of

rights. The Supreme Court has underscored this founding principle:

“The ultimate purpose of this separation of powers is to protect

the liberty and security of the governed.” Metro. Wash. Airports

Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501

U.S. 252, 272, 115 L. Ed. 2d 236, 111 S. Ct. 2298 (1991). Thus,

the textual allocation of responsibilities and the textual enumer-

ation of rights are not dichotomous, because the textual separation

of powers promotes a more profound understanding of our rights.

For the judicial branch to trespass upon the exercise of the war-

making powers would be an infringement of the right to self-

determination and self-governance at a time when the care of the

common defense is most critical. This right of the people is no less

a right because it is possessed collectively.

These interests do not carry less weight because the conﬂict in

which Hamdi was captured is waged less against nation-states

than against scattered and unpatriated forces. We have emphasized

that the “unconventional aspects of the present struggle do not

make its stakes any less grave.” Hamdi II, 296 F.3d at 283. Nor

does the nature of the present conﬂict render respect for the

judgments of the political branches [**18] any less appropriate.

We have noted that the “political branches are best positioned to

comprehend this global war in its full context,” id., and neither

the absence of set-piece battles nor the intervals of calm between

terrorist assaults sufﬁce to nullify the warmaking authority

entrusted to the executive and legislative branches.

B. Despite the clear allocation of war powers to the political

branches, judicial deference to executive decisions made in the

name of war is not unlimited. . . .

990 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Drawing on the Bill of Rights’ historic guarantees, the judiciary

plays its distinctive role in our constitutional structure when it

reviews the detention of American citizens by their own government.

Indeed, if due process means anything, it means that the courts

must defend the “fundamental principles of liberty and justice

which lie at the base of all our civil and political institutions.” The

Constitution is suffused with concern about how the state will

wield its awesome power of forcible restraint. . . .

. . . The detention of United States citizens must be subject to

judicial review.

****

The safeguards that all Americans have to expect in criminal

prosecutions do not translate neatly to the arena of armed conﬂict.

In fact, if deference to the executive is not exercised with respect

to military judgments in the ﬁeld, it is difﬁcult to see where

deference would ever obtain. For there is a “well-established power

of the military to exercise jurisdiction over members of the armed

forces, those directly connected with such forces, [and] enemy

belligerents, prisoners of war, [and] others charged with violating

the laws of war.” Duncan v. Kahanamoku, 327 U.S. 304, 313–

314 (1946). As we emphasized in our prior decision, any judicial

inquiry into Hamdi’s status as an alleged enemy combatant in

Afghanistan must reﬂect this deference as well as “a recognition

that government has no more profound responsibility” than the

protection of American citizens from further terrorist attacks.

Hamdi II, 296 F.3d at 283.

In this regard, it is relevant that the detention of enemy com-

batants serves at least two vital purposes. First, detention prevents

enemy combatants from rejoining the enemy and continuing to

ﬁght against America and its allies. . . .

Second, detention in lieu of prosecution may relieve the burden

on military commanders of litigating the circumstances of a capture

halfway around the globe. This burden would not be inconsiderable

and would run the risk of “saddling military decision-making with

the panoply of encumbrances associated with civil litigation”

during a period of armed conﬂict. As the Supreme Court has

recognized, “it would be difﬁcult to devise more effective fettering

Use of Force and Arms Control 991

of a ﬁeld commander than to allow the very enemies he is ordered

to reduce to submission to call him to account in his own civil

courts and divert his efforts and attention from the military

offensive abroad to the legal defensive at home.” [citing Johnson

v. Eisentrager, 339 U.S. 763 (1950).] (fn. omitted).

****

The designation of Hamdi as an enemy combatant thus bears the

closest imaginable connection to the President’s constitutional

responsibilities during the actual conduct of hostilities. We there-

fore approach this case with sensitivity to both the fundamental

liberty interest asserted by Hamdi and the extraordinary breadth

of warmaking authority conferred by the Constitution and invoked

by Congres and the executive branch.

****

Hamdi and amici have in fact pressed two purely legal grounds

for relief: 18 U.S.C. § 4001(a) and Article 5 of the Geneva Con-

vention. We now address them both. (fn. omitted)

A. 18 U.S.C. § 4001 regulates the detentions of United States

citizens. . . . It states . . . :

(a) No citizen shall be imprisoned or otherwise detained by

the United States except pursuant to an Act of Congress. . . .

Hamdi argues that there is no congressional sanction for his

incarceration and that § 4001(a) therefore prohibits his continued

detention. We ﬁnd this contention unpersuasive.

Even if Hamdi were right that § 4001(a) requires Con-

gressional authorization of his detention, Congress has, in the

wake of the September 11 terrorist attacks, authorized the President

to “use all necessary and appropriate force against those nations,

organizations, or persons he determines planned, authorized, com-

mitted, or aided the terrorist attacks” or “harbored such organ-

izations or persons.” Authorization for Use of Military Force,

Pub. L. No. 107–40, 115 Stat. 224 (Sept. 18, 2001) (emphasis

added). As noted above, capturing and detaining enemy combatants

992 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

is an inherent part of warfare; the “necessary and appropriate

force” referenced in the congressional resolution necessarily

includes the capture and detention of any and all hostile forces

arrayed against our troops. Furthermore, Congress has speciﬁcally

authorized the expenditure of funds for “the maintenance, pay,

and allowances of prisoners of war [and] other persons in the

custody of the [military] whose status is determined . . . to be similar

to prisoners of war.” 10 U.S.C. § 956 (5) (2002). It is difﬁcult if

not impossible to understand how Congress could make appropria-

tions for the detention of persons “similar to prisoners of war”

without also authorizing their detention in the ﬁrst instance.

Any alternative construction of these enactments would be

fraught with difﬁculty. As noted above, the detention of enemy

combatants serves critical functions. Moreover, it has been clear

since at least 1942 that “citizenship in the United States of an

enemy belligerent does not relieve him from the consequences of

[his] belligerency.” Quirin, 317 U.S. at 37. If Congress had intended

to override this well-established precedent and provide American

belligerents some immunity from capture and detention, it surely

would have made its intentions explicit.

****

Hamdi and amici also contend that Article 5 of the Geneva

Convention applies to Hamdi’s case and requires an initial formal

determination of his status as an enemy belligerent “by a com-

petent tribunal.” Geneva Convention Relative to the Treatment of

Prisoners of War, Aug. 12, 1949, art. 5, 6 U.S.T. 3316, 75 U.N.T.S.

135.

This argument falters also because the Geneva Convention

is not self-executing. “Courts will only ﬁnd a treaty to be self-

executing if the document, as a whole, evidences an intent to

provide a private right of action.” Goldstar (Panama) v. United

States, 967 F.2d 965, 968 (4th Cir. 1992). The Geneva Convention

evinces no such intent. Certainly there is no explicit provision for

enforcement by any form of private petition. And what discus-

sion there is of enforcement focuses entirely on the vindication

by diplomatic means of treaty rights inhering in sovereign nations.

If two warring parties disagree about what the Convention requires

Use of Force and Arms Control 993

of them, Article 11 instructs them to arrange a “meeting of their

representatives” with the aid of diplomats from other countries,

“with a view to settling the disagreement.” Geneva Convention,

at art. 11. Similarly, Article 132 states that “any alleged violation

of the Convention” is to be resolved by a joint transnational

effort “in a manner to be decided between the interested Parties.”

Id. at art. 132; cf. id. at arts. 129–30 (instructing signatories

to enact legislation providing for criminal sanction of “persons

committing . . . grave breaches of the present Convention”). We

therefore agree with other courts of appeals that the language in

the Geneva Convention is not “self-executing” and does not “create

private rights of action in the domestic courts of the signatory

countries.”

****

Even if Article 5 were somehow self-executing, there are

questions about how it would apply to Hamdi’s case. In particular,

it is anything but clear that the “competent tribunal” which would

determine Hamdi’s status would be an Article III court. Every

country has different tribunals, and there is no indication that the

Geneva Convention was intended to impose a single adjudicatory

paradigm upon its signatories. Moreover, Hamdi’s argument begs

the question of what kind of status determination is necessary

under Article 5 and how extensive it should be. Hamdi and the

amici make much of the distinction between lawful and unlawful

combatants, noting correctly that lawful combatants are not subject

to punishment for their participation in a conﬂict. But for the

purposes of this case, it is a distinction without a difference, since

the option to detain until the cessation of hostilities belongs to the

executive in either case. It is true that unlawful combatants are

entitled to a proceeding before a military tribunal before they may

be punished for the acts which render their belligerency unlawful.

But they are also subject to mere detention in precisely the same

way that lawful prisoners of war are. The fact that Hamdi might

be an unlawful combatant in no way means that the executive is

required to inﬂict every consequence of that status on him.

The Geneva Convention certainly does not require such

treatment.

994 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

For all these reasons, we hold that there is no purely legal barrier

to Hamdi’s detention. We now turn our attention to the question

of whether the August 16 order was proper on its own terms.

****

A review of the court’s August 16 order reveals the risk of

“standing the warmaking powers of Articles I and II on their

heads.” The district court, for example, ordered the government

to produce all Hamdi’s statements and notes from interviews. Yet

it is precisely such statements, relating to a detainee’s activities in

Afghanistan, that may contain the most sensitive and the most

valuable information for our forces in the ﬁeld. The risk created

by this order is that judicial involvement would proceed, increment

by increment, into an area where the political branches have been

assigned by law a preeminent role.

****

Viewed in their totality, the implications of the district court’s

August 16 production order could not be more serious. The factual

inquiry upon which Hamdi would lead us, if it did not entail

disclosure of sensitive intelligence, might require an excavation of

facts buried under the rubble of war. The cost of such an inquiry

in terms of the efﬁciency and morale of American forces cannot be

disregarded. Some of those with knowledge of Hamdi’s detention

may have been slain or injured in battle. Others might have to be

diverted from active and ongoing military duties of their own.

The logistical effort to acquire evidence from far away battle zones

might be substantial. And these efforts would profoundly unsettle

the constitutional balance.

For the foregoing reasons, the court’s August 16 production

request cannot stand.

V. The question remains, however, whether Hamdi’s petition

must be remanded for further proceedings or dismissed

****

Use of Force and Arms Control 995

The Mobbs afﬁdavit consists of two pages and nine paragraphs

in which Mobbs states that he was “substantially involved with

matters related to the detention of enemy combatants in the current

war against the al Qaeda terrorists and those who support and

harbor them.” In the afﬁdavit, Mobbs avers that Hamdi entered

Afghanistan in July or August of 2001 and afﬁliated with a Taliban

military unit. Hamdi received weapons training from the Taliban

and remained with his military unit until his surrender to Northern

Alliance forces in late 2001. At the time of his capture, Hamdi

was in possession of an AK-47 riﬂe. After his capture, Hamdi

was transferred ﬁrst from Konduz, Afghanistan to the prison in

Mazar-e-Sharif, and then to a prison in Sheberghan, Afghanistan

where he was questioned by a United States interrogation team.

This interrogation team determined that Hamdi met “the criteria

for enemy combatants over whom the United States was taking

control.” Hamdi was then transported to the U.S. short term

detention facility in Kandahar, and then transferred again to

Guantanamo Bay and eventually to the Norfolk Naval Brig.

According to Mobbs, a subsequent interview with Hamdi

conﬁrmed the details of his capture and his status as an enemy

combatant.

The district court approached the Mobbs declaration by

examining it line by line, faulting it for not providing information

about whether Hamdi had ever ﬁred a weapon, the formal title of

the Taliban military unit Hamdi was with when he surrendered,

the exact composition of the U.S. interrogation team that inter-

viewed Hamdi in Sheberghan, and even the distinguishing

characteristics between a Northern Alliance miliary unit and a

Taliban military unit. Concluding that the factual allegations were

insufﬁcient to support the government’s assertion of the power

to detain Hamdi under the war power, the court then ordered the

production of the numerous additional materials outlined pre-

viously. We think this inquiry went far beyond the acceptable

scope of review.

. . . The court’s approach . . . had a signal ﬂaw. We are not

here dealing with a defendant who has been indicted on criminal

charges in the exercise of the executive’s law enforcement powers.

996 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

We are dealing with the executive’s assertion of its powers to

detain under the war powers of Article II. . . .

. . . [W]e will not require the government to ﬁll what the dis-

trict court regarded as gaps in the Mobbs afﬁdavit. The factual

averments in the afﬁdavit, if accurate, are sufﬁcient to conﬁrm

that Hamdi’s detention conforms with a legitimate exercise of the

war powers given the executive by Article II, Section 2 of the

Constitution and, as discussed elsewhere, that it is consistent with

the Constitution and laws of Congress. . . .

****

Hamdi contends that, although international law and the laws

of this country might generally allow for the detention of an

individual captured on the battleﬁeld, these laws must vary in his

case because he is an American citizen now detained on American

soil. As an American citizen, Hamdi would be entitled to the due

process protections normally found in the criminal justice system,

including the right to meet with counsel, if he had been charged

with a crime. But as we have previously pointed out, Hamdi

has not been charged with any crime. He is being held as an

enemy combatant pursuant to the well-established laws and

customs of war. Hamdi’s citizenship rightfully entitles him to ﬁle

this petition to challenge his detention, but the fact that he is a

citizen does not affect the legality of his detention as an enemy

combatant.

Indeed, this same issue arose in Quirin . . . The Court . . . did

not need to determine [the] citizenship [of one petitioner claiming

U.S. citizenship] because it held that the due process guarantees of

the Fifth and Sixth Amendments were inapplicable in any event. It

noted that “citizenship in the United States of an enemy belligerent

does not relieve him from the consequences of a belligerency which

is unlawful.” The petitioner who alleged American citizenship was

treated identically to the other German saboteurs.

The Quirin principle applies here. One who takes up arms

against the United States in a foreign theater of war, regardless of

his citizenship, may properly be designated an enemy combatant

and treated as such. The privilege of citizenship entitles Hamdi to

a limited judicial inquiry into his detention, but only to determine

Use of Force and Arms Control 997

its legality under the war powers of the political branches. At least

where it is undisputed that he was present in a zone of active

combat operations, we are satisﬁed that the Constitution does not

entitle him to a searching review of the factual determinations

underlying his seizure there.

****

To conclude, we hold that, despite his status as an American

citizen currently detained on American soil, Hamdi is not entitled

to challenge the facts presented in the Mobbs declaration. Where,

as here, a habeas petitioner has been designated an enemy

combatant and it is undisputed that he was captured in an zone

of active combat operations abroad, further judicial inquiry is

unwarranted when the government has responded to the petition

by setting forth factual assertions which would establish a legally

valid basis for the petitioner’s detention. Because these circum-

stances are present here, Hamdi is not entitled to habeas relief on

this basis.

Finally, we address Hamdi’s contention that even if his

detention was at one time lawful, it is no longer so because the

relevant hostilities have reached an end. In his brief, Hamdi alleges

that the government “confuses the international armed conﬂict

that allegedly authorized Hamdi’s detention in the ﬁrst place with

an on-going ﬁght against individuals whom Respondents refuse to

recognize as ‘belligerents’ under international law.” Whether the

timing of a cessation of hostilities is justiciable is far from clear.

The executive branch is also in the best position to appraise the

status of a conﬂict, and the cessation of hostilities would seem no

less a matter of political competence than the initiation of them.

In any case, we need not reach this issue here. The government

notes that American troops are still on the ground in Afghanistan,

dismantling the terrorist infrastructure in the very country where

Hamdi was captured and engaging in reconstruction efforts which

may prove dangerous in their own right. Because under the most

circumscribed deﬁnition of conﬂict hostilities have not yet reached

their end, this argument is without merit.

****

998 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

(ii) Padilla v. Bush

The other habeas case concerning an unlawful enemy com-

batant with U.S. citizenship involved Jose Padilla. Padilla was

originally arrested on May 8, 2002, in Chicago, Illinois, on a

material witness warrant, pursuant to 18 U.S.C. § 3144. On

June 9, 2002, President Bush determined that Padilla was

an enemy combatant, as set forth below in full. President

Bush’s determination was attached to the U.S. Response to,

and Motion to Dismiss, the Amended Petition for a Writ of

Habeas Corpus, submitted to the U.S. District Court for the

Southern District of New York on August 27, 2002.

****

Based on the information available to me from all sources,

[REDACTED]

In accordance with the Constitution and consistent with the

laws of the United States, including the Authorization for Use of

Military Force Joint Resolution (Public Law 107–40);

I, GEORGE W BUSH, as President of the United States

and Commander in Chief of the U.S. armed forces, hereby

DETERMINE for the United States of America that:

(1) Jose Padilla, who is under the control of the Department

of Justice and who is a U.S. citizen, is, and at the time

he entered the United States in May 2002 was, an enemy

combatant;

(2) Mr. Padilla is closely associated with al Qaeda, an interna-

tional terrorist organization with which the United States is at

war;

(3) Mr. Padilla engaged in conduct that constituted hostile and

war-like acts, including conduct in preparation for acts of

international terrorism that had the aim to cause injury to or

adverse effects on the United States;

(4) Mr. Padilla possesses intelligence, including intelligence about

personnel and activities of al Qaeda. that, if communicated to

the U.S., would aid U.S. efforts to prevent attacks by al Qaeda

Use of Force and Arms Control 999

on the United States or its armed forces, other governmental

personnel, or citizens;

(5) Mr. Padilla represents a continuing, present and grave danger

to the national security of the United States, and detention of

Mr. Padilla is necessary to prevent him from aiding al Qaeda

in its efforts to attack the United States or its armed forces,

other governmental personnel, or citizens;

(6) It is in the interest of the United States that the Secretary of

Defense detain Mr. Padilla as an enemy combatant; and

(7) it is [REDACTED] consistent with U.S. law and the laws of

war for the Secretary of Defense to detain Mr. Padilla as an

enemy combatant.

Accordingly, you are directed to receive Mr. Padilla from the

Department of Justice and to detain him as an enemy combatant.

Padilla was transferred to the custody of the U.S. Department

of Defense at the Consolidated Naval Brig in Charleston, South

Carolina. In seeking habeas corpus relief, Padilla’s representat-

ive argued that the fact that he was arrested in the United

States rather than on the battleﬁeld in Afghanistan disting-

uished his case. His representative also objected to the court

giving consideration to a classiﬁed version of a declaration

by Department of Defense ofﬁcial Michael H. Mobbs, which

had been ﬁled ex parte under seal to provide additional

factual detail concerning the President’s determination. The

declaration in the public record submitted by Mr. Mobbs to

support the U.S. motion to dismiss stated that Padilla came

to the United States to advance plans to detonate explosive

devices, including a “radiological dispersal device (or ‘dirty

bomb’).”

On December 4, 2002, the district court denied the

U.S. motion to dismiss the case for lack of standing and

jurisdiction. Padilla v. Bush, 233 F. Supp. 2d 564 (S.D.N.Y.

2002). The court decided that Padilla’s counsel had stand-

ing to proceed with the habeas proceeding and that the

court had jurisdiction over Secretary of Defense Donald

Rumsfeld, whom it found to be the appropriate defendant in

1000 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

the case. It also concluded that Padilla could “consult with

counsel in aid of pursuing this petition, under conditions

that will minimize the likelihood that he can use his lawyers

as unwilling intermediaries for the transmission of informa-

tion to others and may, if he chooses, submit facts and

argument to the court in aid of his petition.” The court did

not rely on the classiﬁed version of the Mobbs declaration

ﬁled under seal, concluding:

to resolve the issue of whether Padilla was lawfully

detained on the facts present here, the court will examine

only whether the President had some evidence to support

his ﬁnding that Padilla was an enemy combatant, and

whether that evidence has been mooted by events

subsequent to his detention; the court will not at this

time use the document submitted in camera to determine

whether the government has met that standard.

As to what it characterized as “the central issue presented

in this case,” however, the court concluded that “the President

is authorized under the Constitution and by law to direct the

military to detain enemy combatants in the circumstances

present here, such that Padilla’s detention is not per se

unlawful.” The court made clear that this central issue was

“whether the President has the authority to designate as

an unlawful combatant an American citizen, captured on

American soil, and to detain him without trial.” Based on

its analysis of Ex parte Quirin, 317 U.S. 1 (1942), the court

concluded:

Here, the basis for the President’s authority to order the

detention of an unlawful combatant arises both from the

terms of the Joint Resolution, and from his constitutional

authority as commander in chief as set forth in The Prize

Cases and other authority discussed above. Also . . . no

principle in the Third Geneva Convention impedes the

exercise of that authority. . . .

The district court also dismissed Padilla’s claims that 18

U.S.C. § 4001(a) barred his conﬁnement.

Use of Force and Arms Control 1001

c. Other litigation involving enemy combatant status

In the context of criminal prosecution under various anti-

terrorism laws before the U.S. District Court for the Eastern

District of Virginia, John Walker Lindh sought dismissal of

one count of the indictment against him on the ground that

he was a Taliban soldier and, as a lawful combatant, was

entitled to immunity from prosecution under the customary

international law of war and the Geneva Convention Relative

to the Treatment of Prisoners of War, Aug. 12, 1949, 75

U.N.T.S. 135 (“GPW”). The U.S. Government countered that

the claim was foreclosed as a matter of law because the

President had already conclusively determined that the

Taliban were unlawful combatants, and combatant immunity

was only available to lawful combatants. The district court

did not accept the U.S. argument that the President’s

determination on the matter was a nonjusticiable political

question. The court held, however, that it had jurisdiction to

interpret the treaty at issue, which insofar as it was pertinent

to the case was self-executing, and that executive branch

interpretations are entitled “to some degree of deference.”

The appropriate deference, according to the court, was “to

accord substantial or great weight to the President’s decision

regarding the interpretation and application of the GPW to

Lindh, provided the interpretation and application of the treaty

to Lindh may be said to be reasonable and not contradicted

by the terms of the treaty or the facts. It is this proviso that

is the focus of the judicial review here of the President’s

determination that Lindh is an unlawful combatant under

the GPW.” U.S. v. Lindh, 212 F. Supp. 2d 541 (E.D. Va. 2002)

Excerpts from the decision of July 11, 2002, on lawful-

combatant immunity and the non-applicability of the GPW

in this case are set forth below.

John Walker Lindh entered into a plea agreement with the

United States and was sentenced to 20 years imprisonment.

****

1002 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Lindh claims that Count One of the Indictment should be dismissed

because, as a Taliban soldier, he was a lawful combatant entitled

to the afﬁrmative defense of lawful combatant immunity.

Lawful combatant immunity, a doctrine rooted in the cus-

tomary international law of war, forbids prosecution of soldiers

for their lawful belligerent acts committed during the course of

armed conﬂicts against legitimate military targets.

Belligerent acts

committed in armed conﬂict by enemy members of the armed

forces may be punished as crimes under a belligerent’s municipal

law only to the extent that they violate international humanitarian

law or are unrelated to the armed conﬂict.

This doctrine has a

long history, which is reﬂected in part in various early international

conventions, statutes and documents.

But more pertinent, indeed

Lindh makes no claim of lawful combatant immunity with respect

to the Indictment’s allegations that he was a member or soldier of al Qaeda.

Instead, Lindh focuses his lawful combatant immunity argument solely on

the Indictment’s allegations that he was a Taliban member. This focus is

understandable as there is no plausible claim of lawful combatant immunity

in connection with al Qaeda membership. Thus, it appears that Lindh’s goal

is to win lawful combatant immunity with respect to the Taliban allegations

and then to dispute factually the Indictment’s allegations that he was a

member of al Qaeda.

Also worth noting is that the government has not argued here that the

Taliban’s role in providing a home, a headquarters, and support to al Qaeda

and its international terrorist activities serve to transform the Taliban from a

legitimate state government into a terrorist institution whose soldiers are not

entitled to lawful combatant immunity status. Put another way, the govern-

ment has not argued that al Qaeda controlled the Taliban for its own purposes

and that so-called Taliban soldiers were accordingly merely agents of al

Qaeda, not lawful combatants.

See, e.g., Waldemar A. Solf & Edward R. Cummings, A Survey of

Penal Sanctions Under Protocol I to the Geneva Conventions of August 12,

1949, 9 Case W. Res. J. Int’l L. 205, 212 (1977).

See James W. Garner, Punishment of Offenders Against the Laws

and Customs of War, 14 Am. J. Int’l L. 70, 73 (1920); Myres S. McDougal

& Florentino P. Feliciano, Law and Minimum World Public Order: The

Legal Regulation of International Coercion 712 (1961).

For example, Article 57 of the Lieber Code of 1863, which governed

the conduct of war for the Union Army during the American Civil War and

which served as the basis for the modern law of war treaties, provided that

“so soon as a man is armed by a sovereign government and takes the soldier’s

oath of ﬁdelity, he is a belligerent; his killing, wounding, or other warlike

Use of Force and Arms Control 1003

controlling, here is that the doctrine also ﬁnds expression in the

Geneva Convention Relative to the Treatment of Prisoners of War,

Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (“GPW”), to

which the United States is a signatory. Signiﬁcantly, Article 87 of

the GPW admonishes that combatants “may not be sentenced ...to

any penalties except those provided for in respect of members of

the armed forces of the said Power who have committed the same

acts.” GPW, art. 87. Similarly, Article 99 provides that “no prisoner

of war may be tried or sentenced for an act which is not forbidden

by the law of the Detaining Power or by international law, in

force at the time the said act was committed.” GPW, art. 99.

These Articles, when read together, make clear that a belligerent

in a war cannot prosecute the soldiers of its foes for the soldiers’

lawful acts of war.

The inclusion of the lawful combatant immunity doctrine as a

part of the GPW is particularly important here given that the

GPW, insofar as it is pertinent here, is a self-executing treaty

which the United States is a signatory. It follows from this that the

GPW provisions in issue here are a part of American law and thus

binding in federal courts under the Supremacy Clause.

This point,

acts are not individual crimes or offenses.” Instructions for the Government

of the Armies of the United States in the Field, Headquarters, United States

Army, Gen. Order No. 100 (Apr. 24, 1863), reprinted in The Laws of Armed

Conﬂicts 3 (3d ed. 1988). See also Hague Convention Respecting the Laws

and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539;

Brussels Declaration of 1874, Article IX, July 27, 1874, reprinted in The

Laws of Armed Conﬂicts 25 (3d ed. 1988); Manual of Military Law 240

(British War Ofﬁce 1914).

Treaties are typically classiﬁed as self-executing or executory.

Executory treaties are addressed to the Congress and require congressional

action before becoming effective in domestic courts, whereas a self-executing

treaty “is one that operates of itself without the aid of legislation.” 74 Am.

Jur. 2d Treaties § 3. The portions of the GPW relevant here neither invite

nor require congressional action and hence fall properly into the self-executing

category. See C. Vasquez, The Four Doctrines of Self-Executing Treaties,

89 Am. J. Int’l L. 695 (1995).

See U.S. Const. art. VI, § 2 (“This Constitution, and the laws of the

United States which shall be made in pursuance thereof, and all treaties

made, or which shall be made, under the authority of the United States, shall

be the supreme law of the land. . . .”).

1004 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

which ﬁnds support in the cases,

is essentially conceded by the

government.

Moreover, the government does not dispute that

this immunity may, under appropriate circumstances, serve as a

defense to criminal prosecution of a lawful combatant.

Importantly, this lawful combatant immunity is not auto-

matically available to anyone who takes up arms in a conﬂict.

Rather, it is generally accepted that this immunity can be invoked

only by members of regular or irregular armed forces who ﬁght

on behalf of a state and comply with the requirements for lawful

combatants.

Thus, it is well-established that

the law of war draws a distinction between the armed

forces and the peaceful populations of belligerent nations

and also between those who are lawful and unlawful

combatants. Lawful combatants are subject to capture and

detention as prisoners of war by opposing military forces.

See United States v. Noriega, 808 F. Supp. 791, 799 (S.D. Fla. 1990)

(“It is inconsistent with both the language and spirit of the [GPW] and with

our professed support of its purpose to ﬁnd that the rights established therein

cannot be enforced by individual POWs in a court of law.”).

Also worth noting is that even prior to the ratiﬁcation of the GPW,

some American courts recognized the lawful combatant immunity doctrine.

See Ex Parte Quirin, 317 U.S. 1, 30–31, 87 L. Ed. 3, 63 S. Ct. 2 (1942); see

also Johnson v. Eisentrager, 339 U.S. 763, 793, 94 L. Ed. 1255, 70 S. Ct.

936 (1950) (Black, J., dissenting) (“Legitimate ‘acts of warfare,’ however

murderous, do not justify criminal conviction. . . . It is no ‘crime’ to be a

soldier. . . .”) (citing Ex Parte Quirin, 317 U.S. at 30–31); United States v.

Valentine, 288 F. Supp. 957, 987 (D.P.R. 1968) (“Mere membership in the

armed forces could not under any circumstances create criminal liability. . . .

Our domestic law on conspiracy does not extend that far.”) (citing Ford v.

Surget, 97 U.S. 594, 605–06, 24 L. Ed. 1018 (1878)).

See, e.g., Howard S. Levie, Prisoners of War in International Armed

Conﬂict, 59 Naval War College Int’l L. Stud. 53 n.192 (1977). Neither

presented nor decided here is the question whether lawful combatant

immunity is available to one who takes up arms in combat against his

own country, as the Indictment alleges Lindh did in this case. At least one

commentator suggests that principles of international law permit a nation

to prosecute any of its citizens who take up arms against it for treason, even

if the citizen does so as part of a lawful armed force. See Allan Rosas, The

Legal Status of Prisoners of War 383 (1976).

Use of Force and Arms Control 1005

Unlawful combatants are likewise subject to capture and

detention, but in addition they are subject to trial and

punishment by military tribunals for acts which render

their belligerency unlawful.

Ex Parte Quirin, 317 U.S. 1, 30–31, 87 L. Ed. 3, 63 S. Ct. 2

(1942) (footnote omitted). The GPW also reﬂects this distinction

between lawful and unlawful combatants, with only the former

eligible for immunity from prosecution. See GPW, art. 87, 99.

Thus, the question presented here is whether Lindh is a lawful

combatant entitled to immunity under the GPW.

****

The GPW sets forth four criteria an organization must meet for its

members to qualify for lawful combatant status:

i. the organization must be commanded by a person

responsible for his subordinates;

ii. the organization’s members must have a ﬁxed distinctive

emblem or uniform recognizable at a distance;

iii. the organization’s members must carry arms openly; and

iv. the organization’s members must conduct their operations

in accordance with the laws and customs of war.

See GPW, art. 4(A)(2). Nor are these four criteria unique to the

GPW; they are also established under customary international

lawn

and were also included in the Hague Regulations of 1907.

See Hague Convention Respecting the Laws and Customs of War

These criteria were ﬁrst codiﬁed in large part in the Brussels

Declaration of 1874, Article IX, July 27, 1874, reprinted in The Laws of

Armed Conﬂicts 25 (3d ed. 1988). These standards have long been applied

by liberal democracies. As explained in the British Manual of Military Law

contemporaneous with the Hague Regulations, “it is taken for granted that

all members of the army as a matter of course will comply with the four

conditions [required for lawful combatant status]; should they, however, fail

in this respect . . . they are liable to lose their special privileges of armed

forces.” Manual of Military Law 240 (British War Ofﬁce 1914).

1006 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

on Land, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539 (Hague

Regulations).

In the application of these criteria to the case at bar, it is

Lindh who bears the burden of establishing the afﬁrmative defense

that he is entitled to lawful combatant immunity,

i.e., that the

Taliban satisﬁes the four criteria required for lawful combatant

status outlined by the GPW. On this point, Lindh has not carried

his burden; indeed, he has made no persuasive showing at all on

this point. For this reason alone, it follows that the President’s

decision denying Lindh lawful combatant immunity is correct. In

any event, a review of the available record information leads to

the same conclusion. Thus, it appears that the Taliban lacked the

command structure necessary to fulﬁll the ﬁrst criterion, as it is

manifest that the Taliban had no internal system of military

command or discipline. As one observer noted, “there is no clear

military structure with a hierarchy of ofﬁcers and commanders

while unit commanders are constantly being shifted around,” and

Lindh asserts that the Taliban is a “regular armed force,” under

the GPW, and because he is a member, he need not meet the four conditions

of the Hague Regulations because only Article 4(A)(2), which addresses

irregular armed forces, explicitly mentions the four criteria. This argument

is unpersuasive; it ignores long-established practice under the GPW and,

if accepted, leads to an absurd result. First, the four criteria have long

been understood under customary international law to be the deﬁning

characteristics of any lawful armed force. See supra n.33. Thus, all armed

forces or militias, regular and irregular, must meet the four criteria if their

members are to receive combatant immunity. Were this not so, the anomalous

result that would follow is that members of an armed force that met none of

the criteria could still claim lawful combatant immunity merely on the basis

that the organization calls itself a “regular armed force.” It would indeed be

absurd for members of a so-called “regular armed force” to enjoy lawful

combatant immunity even though the force had no established command

structure and its members wore no recognizable symbol or insignia, concealed

their weapons, and did not abide by the customary laws of war. Simply put,

the label “regular armed force” cannot be used to mask unlawful combatant

status.

Defendants bear the burden with respect to afﬁrmative defenses,

i.e., defenses that do not merely negate one of the elements of a crime. See

Mullaney v. Wilbur, 421 U.S. 684, 697–99, 44 L. Ed. 2d 508, 95 S. Ct. 1881

(1975); Smart v. Leeke, 873 F.2d 1558, 1565 (4th Cir. 1989).

Use of Force and Arms Control 1007

the Taliban’s “haphazard style of enlistment . . . does not allow

for a regular or disciplined army.” Kamal Matinuddin, The Taliban

Phenomenon: Afghanistan 1994–97 59 (1999). Thus, Lindh has

not carried his burden to show that the Taliban had the requisite

hierarchical military structure.

****

Similarly, it appears the Taliban typically wore no distinctive

sign that could be recognized by opposing combatants; they wore

no uniforms or insignia and were effectively indistinguishable from

the rest of the population.

The requirement of such a sign is

critical to ensure that combatants may be distinguished from the

non-combatant, civilian population. Accordingly, Lindh cannot

establish the second criterion.

Next, although it appears that Lindh and his cohorts carried

arms openly in satisfaction of the third criterion for lawful

combatant status, it is equally apparent that members of the

Taliban failed to observe the laws and customs of war. See GPW,

art. 4(A)(2). Thus, because record evidence supports the conclusion

that the Taliban regularly targeted civilian populations in clear

contravention of the laws and customs of war,

Lindh cannot

meet his burden concerning the fourth criterion.

In sum, the President’s determination that Lindh is an unlawful

combatant and thus ineligible for immunity is controlling here (i)

See Greg Jaffe & Neil King, Jr., U.S. Says War is Working, but

Taliban Remains, Wall St. J., Oct. 26, 2001, at A3.

See Michael Grifﬁn, Reaping the Whirlwind: The Taliban Movement

in Afghanistan 177–78 (2001) (“On 9 and 10 September [1997], Taliban

troops lined up and shot 100 Shia civilians in the villages of Qazelbad and

Qul Mohammad. . . .”); Neamatollah Nojumi, The Rise of the Taliban in

Afghanistan: Mass Mobilization, Civil War, and the Future of the Region

229 (2002) (“Witnesses and international aid workers . . . have provided

detailed accounts of the mass killings, in which Taliban troops were repeatedly

described as rounding up unarmed men and boys from their homes and

work sites and shooting them in the head.”).

What matters for determination of lawful combatant status is not

whether Lindh personally violated the laws and customs of war, but whether

the Taliban did so. See GPW, art. 4

1008 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

because that determination is entitled to deference as a reasonable

interpretation and application of the GPW to Lindh as a Taliban;

(ii) because Lindh has failed to carry his burden of demonstrating

the contrary; and (iii) because even absent deference, the Taliban

falls far short when measured against the four GPW criteria for

determining entitlement to lawful combatant immunity.

d. Consideration by Inter-American Commission on Human Rights

On March 12, 2002, the Inter-American Commission on

Human Rights adopted precautionary measures requesting

the United States “to take the urgent measures necessary to

have the legal status of the detainees at Guantanamo Bay

determined by a competent tribunal . . . in order to ensure

that the legal status of each of the detainees is clariﬁed and

that they are afforded the legal protections commensurate

with the status that they are found to possess, which may in

no case fall below the minimum standards of non-derogable

rights.” Letter from Juan Mendez, President of the Inter-

American Commission on Human Rights Rights, to Colin

Powell, U.S. Secretary of State (March 12, 2002). The IACHR

decision is reprinted at 41 I.L.M. 532 (May 2002). The action

was in response to a February 25, 2002, request seeking “the

urgent intervention of the Inter-American Commission on

Human Rights (“Commission”) in order to prevent continued

unlawful acts that threaten the rights of [individuals captured

in Afghanistan who now are being] detained by the United

States government at its military base at [Guantanamo].”

The United States ﬁled its response to the request

for precautionary measures on April 4, and an additional

response on July 15, 2002. In its responses, the United States

argued that the detention of enemy combatants by states

in time of armed conﬂict is not subject to review by the

Commission and that the Commission lacked jurisdiction

to issue precautionary measures in the case. Excerpts from

the July 15 response set forth below include the U.S.

arguments that the laws of armed conﬂict and human rights

are distinct bodies of law, that the facts underlying the

Use of Force and Arms Control 1009

detention of the enemy combatants at Guantanamo are

central to understanding the limited jurisdiction of the

Commission in this case; and that the Commission does

not have the requisite jurisdictional competence to apply

international humanitarian law. U.S. arguments concerning

the Commission’s lack of a mandate to request the United

States to implement precautionary measures and that, even

if the Commission had such authority, such measures would

not be binding, are provided in Chapter 6.A.2. The U.S.

response did not address the merits of the petition and

reserved its right to do so at a later date.

The full texts of the U.S. responses are available at

www.state.gov/s/l/c8183.htm.

****

I. THE UNCHALLENGED STATE PRACTICE OF

DETAINING ENEMY COMBATANTS IN TIME OF

ARMED CONFLICT IS NOT SUBJECT TO REVIEW

BY THE COMMISSION

A. The Laws of Armed Conﬂict and Human Rights are Distinct

Bodies of Law

The detention of enemy combatants in Guantanamo arises out

of the war against terrorism. Yet in presenting their case, the

Petitioners ignore this crucial context, suggesting that the detainees

are akin to common criminals whose cases are entitled to “judicial

review,” Petitioners’ Observations, at 21, or who enjoy the right

“to resort to the courts to ensure respect for their legal rights,”

Petitioners Observations, at 15. Petitioners present no legal support

for the position that detained enemy combatants have any right

under the law of armed conﬂict to have their detention reviewed

by the Commission or to enjoy access to the courts of the Detaining

Power to challenge their detention.

Put simply, the Commission’s jurisdiction does not include the

application of the law of armed conﬂict, the lex specialis governing

the status and treatment of persons detained during armed conﬂict.

1010 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

To be sure, many of the principles of humane treatment found in

the law of armed conﬂict ﬁnd similar expression in human rights

law. And some of the principles of the law of armed conﬂict may

be explicated by analogy or by reference to human rights principles.

Yet the Petitioners confuse an overlap of principles with an overlap

of jurisdiction. To say that both human rights law and law of

armed conﬂict draw on similar principles of treatment is not to

say that bodies with jurisdiction over the one law have jurisdiction

over the other.

The Petitioners’ confusion on this score is most evident

when arguing that “[t]he United States improperly segregates the

doctrinal bodies of international human rights law and inter-

national humanitarian law.” Petitioners’ Observations, at 13.

Petitioners argue that these bodies of law are “complimentary

[sic] and overlapping,” id., and they assert boldly that the U.S.

position is “uniformly rejected by human rights experts.” Id.,

at 14 (emphasis added). Yet even the leading expert cited by

Petitioners, in the very article cited in the Petitioners’ Observations,

presents a starkly different picture of the relationship between

the two areas of law than the one suggested by Petitioners. In

that article, Professor Theodor Meron, one of the world’s lead-

ing scholars of the laws of armed conﬂict and human rights and

currently a judge on the International Criminal Tribunal for the

Former Yugoslavia in The Hague, writes:

Not surprisingly, it has become common in some quarters

to conﬂate human rights and the law of war/international

humanitarian law. Nevertheless, despite the growing con-

vergence of various protective trends, signiﬁcant differences

remain. Unlike human rights law, the law of war allows,

or at least tolerates, the killing and wounding of innocent

human beings not directly participating in an armed

conﬂict, such as civilian victims of lawful collateral damage.

It also permits certain deprivations of personal freedom

without convictions in a court of law.

Theodor Meron, The Humanization of Humanitarian Law, 94 A.J.I.L.

239, 240 (2000) (emphasis added).

Use of Force and Arms Control 1011

The consequences of conﬂating the two bodies of law would

be startling. For instance, application of human rights norms

as suggested by Petitioners would allow all enemy combatants

detained in armed conﬂict to have access to courts to challenge

their detention, a result directly at odds with well settled law of

war that would throw the centuries-old, unchallenged practice of

detaining enemy combatants into complete disarray. As Professor

Meron concludes his introduction to the trends at the heart of

international humanitarian law, “[t]he two systems, human rights

and humanitarian norms, are thus distinct. . . .”

B. The Facts Underlying the Detention of the Enemy

Combatants at Guantanamo are Central to Understanding

the Limited Jurisdiction of the Commission in this Case

A summary of the facts that have necessitated the detention of

the enemy combatants at Guantanamo illustrates the gap between

the Petitioners’ view of the authority of the Commission and the

reality of the Commission’s human rights law jurisdiction.

On September 11, 2001, the terrorist forces with which the

enemy combatants at Guantanamo associate themselves committed

an unprecedented and horriﬁc armed attack upon the United States.

This coordinated attack left thousands dead in New York City,

Pennsylvania and the Pentagon near Washington, D.C. The attacks,

organized and calculated to cause massive numbers of deaths and

serious injuries to civilians and destruction to civilian property,

were of such scale and effects that numerous States, international

and regional organizations, including the United Nations, NATO

and the OAS, immediately condemned them in the strongest

possible terms. See U.S. Response, at 8–9.

The terrorist attacks of September 11 were not ordinary criminal

acts. They were carefully coordinated and of unprecedented scale.

They were carried out by shadowy forces in several countries and

continents that exploited the culture of freedom to carry out their

attacks. They were conceived, directed and protected in the safe

harbor of Taliban-run areas of Afghanistan.

Id.

1012 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The international community has clearly recognized the right

of the United States and allied forces to resort to armed force in

self-defense in response to these attacks. For instance, the United

Nations explicitly recognized the “inherent right of individual and

collective self-defence” immediately following September 11.

It is

in this context that NATO and others recognized that the Septem-

ber 11 attacks constituted an “armed attack,”

a conclusion inherent

in the UN Security Council’s recognition of the right of self-defense.

It is in this context that President Bush, on October 7, 2001,

ordered U.S. armed forces to initiate military action in self-defense

against the terrorists and their supporters in Afghanistan. The

actions, which continue to this day, are “designed to prevent and

deter further attacks on the United States.”

During the course of

hostilities, the U.S. military and allied military forces have captured

or secured the surrender of thousands of individuals ﬁghting as

part of the al Qaida terrorist network or in support of it. The U.S.

military has taken control of many such persons and transferred

some of them to Guantanamo.

The U.S. Response described the legal status of the detainees

at Guantanamo. See Response, at 10–14. In short, “neither the

Taliban nor al-Qaida detainees are entitled to POW status.”

The

detainees are not POWs because they do not meet the criteria

UNSC Res. 1368, UN Doc. No. S/RES/1368 (Sept. 12, 2001). See

also the statement of Foreign Ministers of the States Parties to the 1947

Inter-American Treaty of Reciprocal Assistance (“the Rio Treaty”), declaring

that “the measures being applied by the United States of America and other

states in the exercise of their inherent right of individual and collective self-

defense have the full support of the [S]tates [P]arties to the Rio Treaty.”

Meeting of Consultation of Ministers of Foreign Affairs, Committee for

Follow-Up to the Twenty-fourth Meeting of Consultation of Ministers of

Foreign Affairs (Rio Treaty), OEA/Ser.F/II.24, CS/TIAR/RES. 1/01, Oct. 16,

2001, at http://www.oas.org/ (visited July 11, 2002).

Statement on October 2, 2001, by NATO Secretary General Lord

Robertson, at http://www.nato-otan.org/terrorism/index.htm (visited April

5, 2001).

9 [sic]

“Article 51” Letter from John Negroponte, U.S. Permanent

Representative to the U.N., to Richard Ryan, President of the Security

Council, U.N. Doc. No. S/2001/946 (Oct. 7, 2001).

See White House Fact Sheet, Feb. 7, 2002, at 1.

Use of Force and Arms Control 1013

applicable to lawful combatants.

The Petitioners claim that “inter-

national humanitarian law currently does not recognize the status

of ‘unlawful combatant.’ ” Petitioners’ Observations, at 16. Yet

the United States has demonstrated that the status of unlawful

combatant not only has a ﬁrm basis in international law, but is the

appropriate characterization of the detainees at Guantanamo.

The Petitioners’ chosen paradigm of human rights law is inapplic-

able to the circumstances of armed conﬂict in which the detentions

at Guantanamo arise.

C. The Commission Does Not Have the Requisite Jurisdictional

Competence to Apply International Humanitarian Law

As described in detail in the U.S. Response and in the sections

above, the United States believes that the Commission lacks the

jurisdictional competence to apply the law of armed conﬂict.

Although the Petitioners phrase their argument in multiple ways,

the essence of Petitioners’ argument is that the jurisprudence

of the Inter-American system allows for humanitarian law prin-

ciples and treaties to be taken into account as elements for the

interpretation of the American Convention by the Commission

and the Court. Petitioners’ Observations, at 6–9. In making this

argument, however, Petitioners ignore (1) the difference between

the scope of authority of the Court and the Commission and (2)

the difference between States Parties to the American Convention

and non-States Parties to the Convention.

The American Convention speciﬁcally authorizes the Court

to examine other human rights treaties, but nothing in the Amer-

ican Declaration or the OAS Charter provides the Commission

with similar authority vis-à-vis non-States Parties to the Con-

vention. Article 64(1) of the Convention provides in relevant part

that:

See U.S. Response, at 10–11.

See U.S. Response, at 11, note 4 and accompanying text. See also

Ruth Wedgwood, Al Qaeda, Terrorism, and Military Commissions, 96

A.J.I.L. 328, 335 (2002).

1014 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The Member States of the Organization may consult the

court regarding the interpretation of this Convention or of

other treaties concerning the protection of human rights in

the American states. [Emphasis Added].

The Court construed that provision as permitting it to render

advisory opinions interpreting other human rights treaties

re-gardless of their extra-hemispheric origin and the fact that

non-American States may become parties to them.

But in the

Las Palmeras Case, the Court refused to uphold the application

of humanitarian law by the Commission in ﬁnding a violation by

Colombia of the Geneva Conventions.

Although the Court later

reafﬁrmed that proposition in the Bamaca Valasquez Case, it

decided that it would have the ability to “observe”:

that certain acts or omissions that violate human rights,

pursuant to the treaties that they do have competence

to apply, also violate other international instruments

for the protection of the individual, such as the Geneva

Conventions and, in particular, common Article 3.

But in stating this, the Court speciﬁcally grounded its ability

to do so on “treaties that they do have competence to apply.”

Petitioners are in error in interpreting these cases as supportive

of the proposition that the Court has recognized a power in the

Commission to interpret and apply a humanitarian law treaty if

it deems it pertinent to its human rights responsibilities. First, it

Other Treaties Subject to the Advisory Jurisdiction of the Court

(Art. 64, American Convention on Human Rights), Advisory Opinion of

Sept. 24, 1982, OC-1/82.

Las Palmeras Case, Judgment of Feb. 4, 2000, Preliminary

Objections, No. 67.

Bamaca Velasquez Case, Judgment of Nov. 25, 2000, Ser. C no. 70,

para 208.

The Court also stated: “as already indicated in the Las Palmeras

Case (2000), the relevant provisions of the Geneva Conventions may be

taken into consideration as elements for the interpretation of the American

Convention.” Id., at para 209.

Use of Force and Arms Control 1015

is essential to bear in mind that the Court was construing a pro-

vision in the American Convention on Human Rights in all the

cases—not the American Declaration. Second, there is no analog

to Article 64 in the American Declaration; nor is there any other

textual reference in the Declaration to “other treaties.” It therefore

follows that, at best, whatever the import of the Court’s opinions,

they only apply to parties to the American Convention. Third,

Article 64 provides authority for the Court—not the Commission

—to be consulted regarding interpretation of “other treaties”

concerning the protection of human rights. The Court’s decisions

did not expand the powers of the Commission, under the American

Declaration, to interpret and apply law of war instruments in

individual cases.

European bodies for the protection of human rights have also

been restrained in looking at questions of detention during armed

conﬂict. For example, the European Commission of Human Rights

considered the detention of POWs by the Turkish army in the

Cyprus case. It took “account of the fact that both Cyprus and

Turkey are Parties to the [Third] Geneva Convention of 12 August

1949, relative to the treatment of prisoners of war, and that,

in connection with the events in the summer of 1974, Turkey

in particular assured the International Committee of the Red

Cross (ICRC) of its intention to apply the Geneva Convention

and its willingness to grant all necessary facilities for humanitarian

action. . . .”

The Commission therefore did not ﬁnd it necessary

to “examine the question of a breach of Article 5 of the Euro-

pean Convention with regard to persons accorded the status of

prisoners of war.”

A more recent European human rights

treaty has been more explicit in their rejection of a mandate in

situations covered by the laws of war. Article 17(3) of the Euro-

pean Convention for the Prevention of Torture and Inhuman or

Degrading Treatment or Punishment

provides that the Committee

[sic]

Cyprus v. Turkey, Report of the Commission, 4 E.H.R.R. 482,

para 313 (July 10, 1976).

Id.

Done at Strasbourg, Nov. 26, 1987, entered into force, Feb. 1, 1989,

E.T.S. No. 126, reprinted in 27 I.L.M. 1157 (1986).

1016 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

“shall not visit places which representatives of delegates of Pro-

tecting Powers of the International Committee of the Red Cross

effectively visit on a regular basis by virtue of the Geneva Conven-

tions of 12 August 1949 and the Additional Protocols of 8 June

1977 thereto.”

While it may be true that the UN bodies, the European Com-

mission, the European Torture Committee, and this Commission

do not have identical mandates, it is telling that their mandates

were obviously framed to limit those human rights bodies from

issuing authoritative decisions in the area of law of war, which

have been traditionally governed by instruments such as the Geneva

Conventions. This comparative international practice provides

further grounds for concluding that the authority to address issues

regarding the interpretation of the law of war cannot be regarded

as incidental or appropriate to a human rights body’s consideration

of a complaint.

The Petitioners’ reliance on the Commission’s earlier jurisprud-

ence is also misplaced, in particular its contention that the “most

relevant” precedent “both factually and legally” of the Commission

is Coard. Petitioners’ Observations, at 9, citing Coard et al. v.

United States, Case 10.951, Inter-Am. C.H.R. Report No. 109/99

(1999). That decision demonstrates all too clearly the fundamental

limitations and contradictions inherent in the Commission’s

statutory competence when it seeks to apply strictly the human

rights norms of the American Declaration to situations, such as

Grenada, in which the Commission is asked to review the actions

taken by the military forces of a State in a situation involving

international armed conﬂict. The practical results of the Coard

decision turn logic on its head.

The Coard decision, in effect,

found that the U.S. violated the American Declaration because it

failed to take the Petitioners before Grenadian courts to determine

the validity of their detention, even when the courts were not

functioning. The decision also faulted the United States for failing

The United States already explained in detail why the Commission

Coard’s decision is incorrect. See U.S. Response, at 21–23. Coard rests on

the incorrect assumptions that human rights law is equally applicable during

armed conﬂict and takes precedence over international humanitarian law.

Use of Force and Arms Control 1017

to release Petitioners back into Grenadian society, although they

clearly posed a danger (subsequently convicted of murder). Even

if the Commission were tempted to rely upon the Coard reason-

ing, however, it is readily distinguishable because the Commis-

sion found that “the [P]etitioners in Coard were held by U.S.

forces both during and after the cessation of hostilities.” Petitioners’

Observations, at 11–12, citing Coard, para 57. In the present

case, the detainees are being held in an armed conﬂict that is

ongoing.

B. ARMS CONTROL

1. Agreements with Russia

a. Moscow Treaty

On May 24, 2002, in Moscow, President George W. Bush

and Russian President Vladimir Putin signed the Treaty

Between the United States of America and the Russian

Federation on Strategic Offensive Reductions (“Moscow

Treaty”). The treaty committed the two nations to reduce

and limit strategic nuclear warheads, “so that by December

31, 2012 the aggregate number of such warheads does

not exceed 1700–2200 for each.” It also provided that the

Strategic Arms Reduction Treaty (“START”) continue in force

unchanged, and established a bilateral implementation

commission to implement the treaty.

On June 20, 2002, the President transmitted the Moscow

Treaty to the Senate for advice and consent to ratiﬁcation. S.

Treaty Doc. No. 107–8 (2002). Excerpts below from the letter

of transmittal from the President to the Senate and from the

report of the Secretary of State submitting the treaty to the

President explain the signiﬁcance of the Moscow Treaty.

See U.S. Response, at 22–23; see also Petitioners’ Observations, at 12.

1018 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

LETTER OF TRANSMITTAL

The White House, June 20, 2002

To the Senate of the United States:

****

The Moscow Treaty represents an important element of the

new strategic relationship between the United States and Russia.

It will take our two nations along a stable, predictable path to

substantial reductions in our deployed strategic nuclear warhead

arsenals by December 31, 2012. When these reductions are

completed, each country will be at the lowest level of deployed

strategic nuclear warheads in decades. This will beneﬁt the peoples

of both the United States and Russia and contribute to a more

secure world.

The Moscow Treaty codiﬁes my determination to break

through the long impasse in further nuclear weapons reductions

caused by the inability to ﬁnalize agreements through traditional

arms control efforts. In the decade following the collapse of the

Soviet Union, both countries’ strategic nuclear arsenals remained

far larger than needed, even as the United States and Russia moved

toward a more cooperative relationship. On May 1, 2001, I called

for a new framework for our strategic relationship with Russia,

including further cuts in nuclear weapons to reﬂect the reality

that the Cold War is over. On November 13, 2001, I announced

the United States plan for such cuts—to reduce our operationally

deployed strategic nuclear warheads to a level of between 1700

and 2200 over the next decade. I announced these planned

reductions following a careful study within the Department of

Defense. That study, the Nuclear Posture Review, concluded that

these force levels were sufﬁcient to maintain the security of the

United States. In reaching this decision, I recognized that it would

be preferable for the United States to make such reductions on a

reciprocal basis with Russia, but that the United States would be

prepared to proceed unilaterally.

My Russian counterpart, President Putin, responded immedi-

ately and made clear that he shared these goals. President Putin

and I agreed that our nations’ respective reductions should be

Use of Force and Arms Control 1019

recorded in a legally binding document that would outlast both

of our presidencies and provide predictability over the longer

term. The result is a Treaty that was agreed without protracted

negotiations. This Treaty fully meets the goals I set out for these

reductions.

It is important for there to be sufﬁcient openness so that the

United States and Russia can each be conﬁdent that the other is

fulﬁlling its reductions commitment. The Parties will use the

comprehensive veriﬁcation regime of the Treaty on the Reduction

and Limitation of Strategic Offensive Arms (the “START Treaty”)

to provide the foundation for conﬁdence, transparency, and

predictability in further strategic offensive reductions. In our Joint

Declaration on the New Strategic Relationship between the United

States and Russia, President Putin and I also decided to establish a

Consultative Group for Strategic Security to be chaired by Foreign

and Defense Ministers. This body will be the principal mechanism

through which the United States and Russia strengthen mutual

conﬁdence, expand transparency, share information and plans,

and discuss strategic issues of mutual interest.

The Moscow Treaty is emblematic of our new, cooperative

relationship with Russia, but it is neither the primary basis for this

relationship nor its main component. The United States and Russia

are partners in dealing with the threat of terrorism and resolving

regional conﬂicts. There is growing economic interaction between

the business communities of our two countries and ever-increasing

people-to-people and cultural contacts and exchanges. The U.S.

military has put Cold War practices behind it, and now plans,

sizes, and sustains its forces in recognition that Russia is not an

enemy, Russia is a friend. Military-to-military and intelligence

exchanges are well established and growing.

The Moscow Treaty reﬂects this new relationship with Russia.

Under it, each Party retains the ﬂexibility to determine for itself

the composition and structure of its strategic offensive arms, and

how reductions are made. This ﬂexibility allows each Party to

determine how best to respond to future security challenges.

There is no longer the need to narrowly regulate every step we

each take, as did Cold War treaties founded on mutual suspicion

and an adversarial relationship.

1020 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

In sum, the Moscow Treaty is clearly in the best interests of

the United States and represents an important contribution to U.S.

national security and strategic stability. I therefore urge the Senate

to give prompt and favorable consideration to the Treaty, and to

advise and consent to its ratiﬁcation.

George W. Bush.

LETTER OF SUBMITTAL

The Secretary of State,

Washington

The President,

The White House.

The President:

****

REDUCTION REQUIREMENTS

The United States and Russia both intend to carry out strategic

offensive reductions to the lowest possible levels consistent with

their national security requirements and alliance obligations, and

reﬂecting the new nature of their strategic relations. The Treaty

requires the United States and Russia to reduce and limit their

strategic nuclear warheads to 1700–2200 each by December 31,

2012, a reduction of nearly two-thirds below current levels. The

United States intends to implement the Treaty by reducing its

operationally deployed strategic nuclear warheads to 1700–2200

through removal of warheads from missiles in their launchers

and from heavy bomber bases, and by removing some missiles,

launchers, and bombers from operational service.

For purposes of this Treaty, the United States considers opera-

tionally deployed strategic nuclear warheads to be reentry vehicles

on intercontinental ballistic missiles (ICBMs) in their launchers,

reentry vehicles on submarine-launched ballistic missiles (SLBMs) in

their launchers onboard submarines, and nuclear armaments loaded

Use of Force and Arms Control 1021

on heavy bombers or stored in weapons storage areas of heavy

bomber bases. In addition, a small number of spare strategic nuclear

warheads (including spare ICBM warheads) are located at heavy

bomber bases. The United States does not consider these spares to

be operationally deployed strategic nuclear warheads. In the context

of this Treaty, it is clear that only “nuclear” reentry vehicles, as

well as nuclear armaments, are subject to the 1700–2200 limit.

RELATIONSHIP TO START

The Strategic Arms Reduction Treaty (START) continues

in force unchanged by this Treaty. In accordance with its own

terms, START will remain in force until December 5, 2009, unless

it is superseded by a subsequent agreement or extended.

START’s comprehensive veriﬁcation regime will provide the

foundation for conﬁdence, transparency and predictability in

further strategic offensive reductions. As noted in the May 24

Joint Declaration on the New Strategic Relationship, other

supplementary measures, including transparency measures, may

be agreed in the future.

BILATERAL IMPLEMENTATION COMMISSION

The Treaty establishes a Bilateral Implementation Commission

(BIC), a diplomatic consultative forum that will meet at least twice

a year to discuss issues related to implementation of the Treaty.

The BIC will be separate and distinct from the Consultative Group

for Strategic Security, established by the Joint Declaration of May

24, which will be chaired by Foreign and Defense Ministers with

the participation of other senior ofﬁcials.

****

STATUS OF START II TREATY

The START II Treaty, which was signed in 1993, and to which

the Senate gave its advice and consent in 1996, never entered into

1022 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

force because Russia placed unacceptable conditions on its own

ratiﬁcation of START II. Russia’s explicit linkage of START II

to preservation of the ABM Treaty and entry into force of

several agreements, signed in 1997, which related to ABM Treaty

succession and ABM/TMD demarcation, made it impossible for

START II to enter into force. With signature of the Moscow Treaty,

the United States and Russia have now taken a decisive step beyond

START II.

****

b. Congressional testimony on Moscow Treaty

On July 9, 2002, Secretary of State Colin L. Powell testiﬁed

in support of the Moscow Treaty before the Senate Foreign

Relations Committee. In addition to areas covered in the

transmittal documents, Secretary Powell addressed concerns

that the Moscow Treaty did not require destruction of nuclear

warheads, as set forth in excerpts below.

The full text of Secretary Powell’s testimony is available

at www.state.gov/secretary/rm/2002/11735.htm.

Mr. Chairman, the Treaty you have before you is different from

Cold War arms control agreements because:

• It does not call for exact equality in numbers of strategic

nuclear warheads. It is no longer appropriate to size our

military capabilities against any single country or threat,

and the end of superpower competition and adversarial

style arms control negotiations has removed any political

requirement for strict parity.

• It does not contain any sublimits or bans on categories of

strategic forces. The need for a highly regimented strategic

forces structure was the product of now outdated concepts

of strategic stability that were necessary when we needed to

regulate the interaction of the strategic forces of two hostile

nations to reduce the structural incentives for beginning a

nuclear war. Now we have nothing to go to war about.

Use of Force and Arms Control 1023

• The Treaty does not contain its own veriﬁcation provisions.

United States security and the new strategic relationship

with Russia do not require such provisions.

****

Some have expressed concern that the Moscow Treaty does not

require the destruction of warheads. No previous arms control

treaty—SALT, START or INF—has required warhead elimina-

tion. Contrary to what was frequently reported in the press,

the Russians did not propose a regime for veriﬁable warhead

elimination during the negotiations. Given the uncertainties

we face, and the fact that we, unlike Russia, do not manufac-

ture new warheads, the United States needs the ﬂexibility to

retain warheads removed from operational deployment to meet

unforeseen future contingencies and possible technical problems

with the stockpile. That said, the Moscow Treaty does not pre-

vent the United States and Russia from eliminating warheads

and we anticipate that both Parties will continue to do so. For

our part, some of these warheads will be used as spares,

some will be stored, and some will be destroyed. Economics,

our new strategic relationship with Russia, obsolescence, and

the overall two-thirds cut in U.S. and Russian inventories mandated

by the Treaty will undoubtedly result in continued warhead

elimination.

****

c. Joint Declaration on the New Strategic Relationship

As noted in President Bush’s letter transmitting the Moscow

Treaty to the Senate, supra, Presidents Bush and Putin also

issued the Joint Declaration on the New Strategic Relationship

between their two countries on May 24, 2002. The two

countries declared their cooperation in political, economic,

and social matters, and committed themselves to joint efforts

in arms control and non-proliferation. Excerpts below provide

the foundation for cooperation and commitments on non-

proliferation and arms control.

1024 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The full texts of the joint declaration, the Moscow Treaty,

and related documents are available at www.state.gov/t/ac/

trt/18016.htm.

Joint Declaration on the New Strategic Relationship

The United States of America and the Russian Federation,

****

Declare as follows:

A Foundation for Cooperation

We are achieving a new strategic relationship. The era in which

the United States and Russia saw each other as an enemy or

strategic threat has ended. We are partners and we will cooperate

to advance stability, security, and economic integration, and to

jointly counter global challenges and to help resolve regional

conﬂicts.

To advance these objectives the United States and Russia will

continue an intensive dialogue on pressing international and

regional problems, both on a bilateral basis and in international

fora, including in the UN Security Council, the G-8, and the OSCE.

Where we have differences, we will work to resolve them in a

spirit of mutual respect.

We will respect the essential values of democracy, human rights,

free speech and free media, tolerance, the rule of law, and economic

opportunity.

We recognize that the security, prosperity, and future

hopes of our peoples rest on a benign security environment, the

advancement of political and economic freedoms, and international

cooperation.

The further development of U.S.-Russian relations and the

strengthening of mutual understanding and trust will also rest on

a growing network of ties between our societies and peoples. We

will support growing economic interaction between the business

communities of our two countries and people-to-people and

cultural contacts and exchanges.

****

Use of Force and Arms Control 1025

Preventing the Spread of Weapons of Mass Destruction:

Non-Proliferation and International Terrorism

The United States and Russia will intensify joint efforts to confront

the new global challenges of the twenty-ﬁrst century, including

combating the closely linked threats of international terrorism and

the proliferation of weapons of mass destruction and their means

of delivery. We believe that international terrorism represents a

particular danger to international stability as shown once more by

the tragic events of September 11, 2001. It is imperative that all

nations of the world cooperate to combat this threat decisively.

Toward this end, the United States and Russia reafﬁrm our com-

mitment to work together bilaterally and multilaterally.

The United States and Russia recognize the profound import-

ance of preventing the spread of weapons of mass destruction and

missiles. The specter that such weapons could fall into the hands

of terrorists and those who support them illustrates the priority

all nations must give to combating proliferation.

To that end, we will work closely together, including through

cooperative programs, to ensure the security of weapons of mass

destruction and missile technologies, information, expertise, and

material. We will also continue cooperative threat reduction

programs and expand efforts to reduce weapons-usable ﬁssile

material. In that regard, we will establish joint experts groups

to investigate means of increasing the amount of weapons-usable

ﬁssile material to be eliminated, and to recommend collaborative

research and development efforts on advanced, proliferation-

resistant nuclear reactor and fuel cycle technologies. We also intend

to intensify our cooperation concerning destruction of chemical

weapons.

The United States and Russia will also seek broad international

support for a strategy of proactive non-proliferation, including by

implementing and bolstering the Treaty on the Non-Proliferation

of Nuclear Weapons and the conventions on the prohibition of

chemical and biological weapons. The United States and Russia

call on all countries to strengthen and strictly enforce export

controls, interdict illegal transfers, prosecute violators, and tighten

border controls to prevent and protect against proliferation of

weapons of mass destruction.

1026 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Missile Defense, Further Strategic Offensive Reductions,

New Consultative Mechanism on Strategic Security

The United States and Russia proceed from the Joint Statements

by the President of the United States of America and the President

of the Russian Federation on Strategic Issues of July 22, 2001 in

Genoa and on a New Relationship Between the United States and

Russia of November 13, 2001 in Washington.

The United States and Russia are taking steps to reﬂect, in the

military ﬁeld, the changed nature of the strategic relationship

between them.

The United States and Russia acknowledge that today’s security

environment is fundamentally different than during the Cold War.

In this connection, the United States and Russia have agreed

to implement a number of steps aimed at strengthening conﬁdence

and increasing transparency in the area of missile defense, includ-

ing the exchange of information on missile defense programs and

tests in this area, reciprocal visits to observe missile defense tests,

and observation aimed at familiarization with missile defense

systems. They also intend to take the steps necessary to bring a

joint center for the exchange of data from early warning systems

into operation.

The United States and Russia have also agreed to study possible

areas for missile defense cooperation, including the expansion

of joint exercises related to missile defense, and the exploration

of potential programs for the joint research and development of

missile defense technologies, bearing in mind the importance

of the mutual protection of classiﬁed information and the safe-

guarding of intellectual property rights.

The United States and Russia will, within the framework of

the NATO-Russia Council, explore opportunities for intensiﬁed

practical cooperation on missile defense for Europe.

The United States and Russia declare their intention to carry

out strategic offensive reductions to the lowest possible levels

consistent with their national security requirements and alliance

obligations, and reﬂecting the new nature of their strategic relations.

A major step in this direction is the conclusion of the Treaty

Between the United States of America and the Russian Federation

on Strategic Offensive Reductions.

Use of Force and Arms Control 1027

In this connection, both sides proceed on the basis that the

Treaty Between the United States of America and the Union of

Soviet Socialist Republics on the Reduction and Limitation of

Strategic Offensive Arms of July 31, 1991, remains in force

in accordance with its terms and that its provisions will provide

the foundation for providing conﬁdence, transparency, and pre-

dictability in further strategic offensive reductions, along with

other supplementary measures, including transparency measures,

to be agreed.

The United States and Russia agree that a new strategic relation-

ship between the two countries, based on the principles of mutual

security, trust, openness, cooperation, and predictability requires

substantive consultation across a broad range of international

security issues. To that end we have decided to:

• establish a Consultative Group for Strategic Security to

be chaired by Foreign Ministers and Defense Ministers

with the participation of other senior ofﬁcials. This group

will be the principal mechanism through which the sides

strengthen mutual conﬁdence, expand transparency, share

information and plans, and discuss strategic issues of

mutual interest; and

• seek ways to expand and regularize contacts between our

two countries’ Defense Ministries and Foreign Ministries,

and our intelligence agencies.

d. Anti-Ballistic Missile Treaty and START II

The U.S. withdrawal from the Anti-Ballistic Missile Treaty, 23

U.S.T. 3435 (1972), became effective on June 14, 2002, in accord-

ance with the terms of article XV of that treaty. See 38 WEEKLY

COMP. PRES. DOC. 1011 ( June 13, 2002); see also Digest 2001

at 829–833. In December 2002, President Bush announced

that the United States would begin deploying a limited system

to defend the United States against ballistic missiles by 2004.

38 WEEKLY COMP. PRES. DOC. 2172 (Dec. 17, 2002).

On June 15, 2002, the Russian Ministry of Foreign Affairs

released a statement announcing that Russia “no longer

1028 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

considers itself bound by the obligation, provided for under

international law, to refrain from actions that could deprive

[the START II Treaty] of its object and purpose.” The Russian

statement explained that it had ratiﬁed the START II Treaty

and agreements relating to the ABM Treaty in May 2000, on

the “mutual understanding . . . that the U.S. would act in a

similar fashion.” The full text of the Russian statement is

available at www.state.gov/t/ac/trt/18016.htm.

The United States has not ratiﬁed the START II Treaty.

As Secretary of State Colin Powell explained in his testimony

before the Senate Foreign Relations Committee on the new

Moscow Treaty, July 9, 2002, see supra, B.1.b, although the

Senate gave advice and consent to the START II Treaty in

1996, it never entered into force because “Russia’s explicit

linkage of START II to preservation of the ABM Treaty and

entry into force of several agreements, signed in 1997, which

related to ABM Treaty succession and ABM/TMD [theater

missile defense] demarcation, made it impossible for START

II to enter into force. With signature of the Moscow Treaty,

however, the United States and Russia have now taken a

decisive step beyond START II that reﬂects the new era in

United States-Russia relations.”

2. Open Skies Treaty

On January 1, 2002, the Treaty on Open Skies, signed

March 24, 1992, S. Treaty Doc. No. 102–37 (1992), entered

into force. The Treaty established a regime of unarmed

aerial observation ﬂights over the entire territory of its 26

participants, providing for mutual and cooperative aerial

observation. The United States signed the treaty, negoti-

ated by the then-members of NATO and the Warsaw Pact,

on March 24, 1992, and ratiﬁed it in 1993. Article XVII.2.

provides that the treaty would enter into force 60 days after

the deposit of 20 instruments of ratiﬁcation, including those

of the depositaries (Canada and Hungary) and of certain

State Parties that had agreed to receive an annual quota of

Use of Force and Arms Control 1029

eight or more observation ﬂights over their territory as set

forth in annex A to the treaty. With the ratiﬁcation by Belarus

and Russia in 2001, these requirements for entry into force

were met. On August 14, 2002, the Department of State

issued a fact sheet describing the purpose and function of

the treaty.

The fact sheet is set forth below in full and is available at

www.state.gov/t/ac/rls/fs/12691.htm.

Origin and Purpose

The Treaty on Open Skies establishes a regime of unarmed aerial

observation ﬂights over the entire territory of its participants.

The Treaty is designed to enhance mutual understanding and con-

ﬁdence by giving all participants, regardless of size, a direct role

in gathering information about military forces and activities of

concern to them. Open Skies is the most wide-ranging international

effort to date to promote openness and transparency of military

forces and activities. The original concept of mutual aerial

observation was proposed by President Eisenhower in 1955; the

Treaty itself was an initiative of President George H.W. Bush in

1989. The Treaty was negotiated by the then-members of NATO

and the Warsaw Pact, and was signed in Helsinki, Finland, on

March 24, 1992. The United States ratiﬁed it in 1993. The Treaty

entered into force on January 1, 2002.

Membership and Area of Application

The 26 States Parties to the Open Skies Treaty are: Belarus,

Belgium, Bulgaria, Canada, Czech Republic, Denmark, France,

Georgia, Germany, Greece, Hungary, Iceland, Italy, Luxem-

bourg, Netherlands, Norway, Poland, Portugal, Romania, Russian

Federation, Slovak Republic, Spain, Turkey, United Kingdom,

Ukraine, and United States. Kyrgyzstan has signed but not yet

ratiﬁed. The Treaty depositaries are Canada and Hungary.

The Open Skies regime covers the national territories—land,

islands, and internal and territorial waters—of all the States Parties,

1030 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

and thus includes the territory of most member states of the

Organization for Security and Cooperation in Europe (OSCE).

The Treaty is of unlimited duration and open to accession by

other states as follows: (1) states of the former Soviet Union that

have not already become States Parties to the Treaty may accede

to it at any time; (2) other members of the OSCE may apply for

accession to the Treaty at any time; (3) any other interested state

may apply for accession to the Treaty six months after it enters

into force (i.e., from July 1, 2002 onward). All applications for

accession (i.e., categories 2 and 3 above) are subject to a consensus

decision by the Open Skies Consultative Commission (OSCC), the

Vienna-based organization charged with facilitating implementa-

tion of the Treaty, to which all States Parties belong. So far, the

OSCC has approved applications for accession by Finland, Sweden,

Lithuania, Latvia, Croatia, and Bosnia-Herzegovina— all of which

are members of the OSCE.

Basic Elements of the Treaty

Territory. The Treaty speciﬁes that all territory of the States Parties

is open to observation on a reciprocal basis. Observed States Parties

may restrict observation ﬂights only for reasons of ﬂight safety

and not for reasons of national security.

Aircraft. Observation aircraft may be provided by either the

observing state party or (the “taxi option”) by the observed state

party, at the latter’s choice. All Open Skies aircraft and sensors

must pass speciﬁc certiﬁcation and pre-ﬂight inspection procedures

to ensure that they meet Treaty standards and that only Treaty-

permitted sensors are installed. The ofﬁcial U.S. Open Skies aircraft

is the OC-135B (a military version of the Boeing 707).

Sensors. Open Skies aircraft may have video, optical panoramic

and framing cameras for daylight photography, infra-red line

scanners for a day/night capability, and synthetic aperture radar

for a day/night all weather capability. Photographic image quality

will permit recognition of major military equipment (e.g., permit

a State Party to distinguish between a tank and a truck), thus

allowing signiﬁcant transparency of military forces and activities.

Sensor categories may be added and capabilities improved by

Use of Force and Arms Control 1031

agreement among States Parties. All equipment used in Open Skies

must be commercially available to all participants in the regime.

Quotas. Each State Party has agreed to an annual quota

of observation ﬂights it is willing to receive—its passive quota

of observation ﬂights. Each State Party may conduct as many

observation ﬂights—its active quota—as its passive quota. During

the ﬁrst three years after EIF, each State will be obliged to accept

no more than seventy-ﬁve percent of its passive quota. Since the

overall annual passive quota for the United States is 42, this means

that it will be obligated to accept no more than 31 observation

ﬂights a year during this three-year period. Only 4 of the 31

potential ﬂights over the United States were requested during

the ﬁrst year of Treaty operation, all by Russia/Belarus (which

functions as a single country for quota allocation purposes). During

this period (2002/03), the United States is entitled to 8 of the 31

annual ﬂights available over Russia/Belarus. Additionally, the

United States is entitled to one ﬂight over Ukraine, to be shared

with Canada.

Data Sharing/Availability. Collected imagery from Open Skies

missions will be available to any State Party willing to pay the

costs of reproduction. The Treaty provides that at the request of

any State Party, the observing state will provide it a copy of the

data collected during a mission over the observed state. As a result,

the data available to each State Party is much greater than that

which it can collect itself under the Treaty quota system.

Implementation of the Treaty

Provisional application of portions of the Treaty took place from

signature in 1992 until entry into force in 2002. During that period,

participants conducted joint trial ﬂights for the purpose of training

ﬂight crews and testing equipment and sensors. Now that the

Treaty has entered into force, formal observation ﬂights have begun

in August 2002—in accordance with the agreed distribution of

active and passive quotas—starting with a Russian mission over

the United Kingdom (August 6–9). During the fourth quarter of

2002, France, the UK, and Italy are also planning to conduct

missions over Russia/Belarus.

1032 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Since the signature of the Open Skies Treaty in 1992, the

security environment in Europe has changed signiﬁcantly. Never-

theless, the Open Skies Treaty remains an important element

of the European security structure, along with the Treaty on

Conventional Armed Forces in Europe (CFE), and the Vienna

Document 1999 Agreement on Conﬁdence-and Security-Building

Measures (CSBMS) under the auspices of the OSCE.

3. Compliance with Arms Limitation and Disarmament and

Non-proliferation Agreements

On October 18, 2002, Joseph S. McGinnis, Acting Head of

the U.S. Delegation to the First Committee of the 57

Session

of the UN General Assembly, introduced resolution L.54,

“Compliance with arms limitation and disarmament and non-

proliferation agreements.” His remarks are excerpted below.

The UN General Assembly adopted the resolution by con-

sensus on November 22, 2002. A/RES/57/86.

The full text of Mr. McGinnis’ remarks is available at

www.state.gov/p/io/rls/rm/2002/14548pf.htm.

****

This Committee and the UN General Assembly last addressed

compliance issues when the U.S. offered a resolution on this subject

in 1997. Since then, much has happened to emphasize even more

urgently the need for compliance with arms limitation and

disarmament and non-proliferation agreements. My remarks

will focus on this heightened need to insure compliance with such

agreements as an important way to insure international security

and stability.

As Assistant Secretary Rademaker said in his address to this

body on October 3rd, this is a time of great danger. The pro-

liferation of weapons of mass destruction is an increasing reality

along with the realization of the threats we will all face if terrorists

gain access to such weapons. In this regard, the U.S. believes that

every country in the world should be a party to the Nuclear Non-

proliferation Treaty, the Biological Weapons Convention, and the

Use of Force and Arms Control 1033

Chemical Weapons Convention. We also believe that every country

that has signed and ratiﬁed these agreements should comply

fully with their provisions, and that States Parties must hold each

other accountable and take appropriate steps to deter violations.

The international community must use all means at its disposal

to ensure not just that key multilateral arms limitation and

disarmament treaties are complied with, but also that we keep

weapons of mass destruction and their means of delivery out of

the hands of terrorists and states which may support terrorists.

The key means by which this is accomplished within the

framework of such treaties and other agreements is by ensuring

full compliance with their terms. The resolution I am introducing

on behalf of my government seeks to reinforce that crucial fact.

While the language in the resolution is based on previous versions

of the resolution, it has been updated to reﬂect the new inter-

national security imperatives that we face today. In this regard,

while compliance with all agreements is to be reinforced, special

emphasis must be placed on compliance with non-proliferation

agreements as a way to keep weapons of mass destruction from

becoming a part of the arsenal of terrorism. We all would suffer

grievously were this to happen.

I wish to emphasize that the sole purpose of the United States

in presenting this resolution is to focus the attention of member

states of the UN on the continuing need—now more urgent than

ever—to comply with arms limitation and disarmament and non-

proliferation agreements. As in previous years when this resolution

was offered, and in the future when it is offered again, our objective

is and will be to address compliance, pure and simple. No other

resolution does this, and it is vital to consider this resolution in

that light.

****

In his address to the First Committee referred to in

Mr. McGinnis’ remarks, Assistant Secretary of State for

Arms Control Stephen G. Rademaker made several additional

points concerning the U.S. approach to treaty implementation

in this area, noting in particular recent actions concerning

1034 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

the leadership of the Organization for the Prohibition of

Chemical Weapons.

The full text of Assistant Secretary Rademaker’s remarks

is available at www.state.gov/t/ac/rls/rm/14161.htm.

****

We believe every country in the world should belong to the Nuclear

Non-Proliferation Treaty, the Biological Weapons Convention, and

the Chemical Weapons Convention [“CWC”]; that every country

belonging to them should fully comply with their provisions; and

that Parties must hold each other accountable and take appropriate

steps to deter violations.

The universal adoption of the IAEA Additional Protocol would

give us greater assurance of compliance with the [Non-Proliferation

Treaty (“NPT”)]. In this regard, I am pleased to report that earlier

this year the President submitted to the United States Senate the U.S.

Additional Protocol. Through IAEA safeguards and other means,

the international community must sustain efforts to reduce the

threat of diversion of nuclear materials, equipment, and technology.

The strong U.S. commitment to effective multilateral arms

control is demonstrated by our actions over the past year with

respect to the OPCW. When the United States and other parties to

the CWC recognized that the [Organization for the Prohibition

of Chemical Weapons (“OPCW”)] was not being effectively

administered, the politically expedient course would have been

to remain silent while the CWC slowly atrophied. Indeed, many

countries strongly counseled us to follow precisely such a course.

We chose instead, however, to initiate efforts to revitalize the

Organization. Now that the OPCW is under new leadership, we

are conﬁdent that it can effectively enforce international norms

with respect to chemical weapons, provided it receives sufﬁcient

support from the international community. Accordingly, the United

States is making a voluntary contribution to the organization

of some $2 million. In addition, we have decided to upgrade our

diplomatic representation at the OPCW in The Hague. We urge

other members to join us in making such voluntary contributions

to the OPCW, and in taking other steps to underscore international

Use of Force and Arms Control 1035

support for Director General Pﬁrter as he begins to revitalize this

important institution of multilateral arms control.

Treaty Compliance Measures to assist in veriﬁcation of com-

pliance are key features of most traditional arms control regimes,

which often include provisions for declarations, inspections,

and even the establishment of implementation bodies. There are

instances, such as biological weapons, where other approaches

are more appropriate, but in general it is the policy of the United

States to support fully the efforts of such organizations as the

IAEA and the OPCW. The international community must use all

means at its disposal to ensure not just that key multilateral arms

control treaties are complied with, but also that we keep weapons

of mass destruction and their means of delivery out of the hands

of terrorists and state sponsors of terrorists.

****

4. Biological Weapons Convention

a. Fifth Review Conference of States Parties

The Fifth Review Conference of the States Parties to the Con-

vention on the Prohibition of the Development, Production

and Stockpiling of Bacteriological (Biological) and Toxin Wea-

pons and on their Destruction, signed April 10, 1972, 26 U.S.T.

583, 1015 U.N.T.S.163 (1972) (“Biological Weapons Conven-

tion”), originally convened on November 19, 2001. As decided

by consensus at the adjournment of that session on Decem-

ber 7, 2001, the conference reconvened on November 11,

2002, in Geneva. At the conclusion of the resumed session,

the conference decided by consensus to hold three annual

meetings of the States Parties starting in 2003. As set forth

in the decision of the Fifth Review Conference, November

14, 2002, the issues to be considered include:

i. the adoption of necessary national measures to im-

plement the prohibitions set forth in the Convention,

including the enactment of penal legislation;

1036 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

ii. national mechanisms to establish and maintain the

security and oversight of pathogenic microorganisms

and toxins;

iii. enhancing international capabilities for responding

to, investigating and mitigating the effects of cases of

alleged use of biological or toxin weapons or suspici-

ous outbreaks of disease;

iv. strengthening and broadening national and inter-

national institutional efforts and existing mechan-

isms for the surveillance, detection, diagnosis and

combating of infectious diseases affecting humans,

animals, and plants;

v. the content, promulgation, and adoption of codes of

conduct for scientists.

BWC/CONF.V/L.1 at 3–4, available at www.brad.ac.uk/acad/

sbtwc/btwc/rev_cons/5rc/5rc_conf.htm.

Assistant Secretary of State for Arms Control Stephen G.

Rademaker welcomed the outcome of the conference,

stressing that “the problem of biological weapons is suf-

ﬁciently grave that we cannot restrict our activities to this

single forum. . . . There are many other efforts that we believe

can be pursued with greater success in other venues and it

is the policy of the United States to pursue the problem of

biological weapons in all appropriate venues to the maximum

degree practicable.”

The U.S. delegation provided a fact sheet detailing

U.S. efforts to combat the biological weapons threat,

including relevant new U.S. legislation and other domestic

measures, as well as efforts undertaken as part of NATO’s

Defense Group on Proliferation, the Australia Group, the

G-8 Global partnership Against the Spread of Weapons

and Materials of Mass Destruction, the Ottawa Group, the

World Health Organization, the International Maritime

Organization, and Organization for Security and Cooperation

in Europe. The fact sheet is available at www.state.gov/t/ac/

rls/fs/15150.htm.

Use of Force and Arms Control 1037

b. U.S. position on Protocol to the Biological Weapons

Convention

On August 26, 2002, Under Secretary of State for Arms

Control and International Security John H. Bolton, speaking

at the Tokyo America Center, explained the reasons for

U.S. rejection of a draft Protocol to the Biological Weapons

Convention.

The full text of Under Secretary Bolton’s remarks is

available at www.state.gov/t/us/rm/13090.htm.

****

Some have questioned the U.S. commitment to combat the

biological weapons threat due to our rejection of the draft BWC

Protocol. Put simply, the draft Protocol would have been singularly

ineffective. The United States rejected the draft protocol for three

reasons: ﬁrst, it was based on a traditional arms control approach

that will not work on biological weapons; second, it would

have compromised national security and conﬁdential business

information; and third, it would have been used by proliferators

to undermine other effective international export control regimes.

Traditional arms control measures that have worked so well

for many other types of weapons, including nuclear weapons, are

not workable for biological weapons. Unlike chemical or nuclear

weapons, the components of biological warfare are found in nature,

in the soil, in the air and even inside human beings. The presence

of these organisms does not necessarily connote a sinister motive.

They are used for many peaceful purposes such as routine

studies against disease, the creation of vaccines, and the study

of defensive measures against a biological attack. Components

of biological weapons are, by nature, dual use. Operators of

clandestine offensive BW programs can claim any materials are

for peaceful purposes or easily clean up the evidence by using no

more sophisticated means than household bleach. Detecting

violations is nearly impossible; proving a violation is impossible.

Traditional arms control measures are based on detecting violations

1038 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

and then taking action—military or diplomatic—to restore com-

pliance. Traditional arms control measures are not effective against

biology. Using them, we could prove neither non-compliance nor

compliance.

Traditional arms control measures, in fact, applied to biological

activities yield no beneﬁt and actually do great harm. Declarations

and investigations called for under the draft Protocol at industrial

plants, scientiﬁc labs, universities, and defense facilities would have

revealed trade secrets and sensitive bio-defense information. The

United States invests over a billion dollars annually on bio-defense.

The U.S. pharmaceutical and biotech industry leads the world;

each year, U.S. industry produces more than 50 percent of the

new medicines created. It costs an average of $802 million to

bring a new product to market and takes between 12–15 years to

do so. Such disclosures, intentionally or inadvertently, also could

result in putting the men and women in uniform at increased risk

to biological weapons attacks. Protective devices and treatments

could be compromised.

The draft Protocol would also have put in jeopardy effective

export control regimes. Countries such as Iran, Iraq, and Cuba

have fought the hardest for free access to the technology,

knowledge, and equipment necessary to pursue biological weapons.

Their argument was simple: as States Parties to the BWC they

should be allowed free trade in all biological materials. These

countries sought to dismantle effective export control regimes such

as the Australia Group. They argued that export controls should

not be applied to BWC States Parties. The problem is that some

BWC States Parties are pursuing biological warfare programs and

it is no coincidence that these countries are also the ones pressing

for access to sensitive technology. This “Trojan Horse” approach

was not combated effectively by the draft Protocol. The result was

a so-called “Cooperation Committee” whose job would have been

to promote scientiﬁc and technological exchanges. The Coopera-

tion Committee was touted as a way to appease Iran and Cuba.

We viewed it as dangerous, harmful, and unnecessary. Protecting

existing export control regimes is another important reason for

the United States to reject the draft Protocol.

Use of Force and Arms Control 1039

C. NON-PROLIFERATION

1. U.S. National Strategy to Combat Weapons of

Mass Destruction

On December 10, 2002, President George W. Bush re-

leased the National Strategy to Combat Weapons of Mass

Destruction. As explained in the introduction to the report,

“[w]eapons of mass destruction (WMD)—nuclear, biological,

and chemical—in the possession of hostile states and

terrorists represent one of the greatest security challenges

facing the United States. We must pursue a comprehensive

strategy to counter this threat in all of its dimensions.” As to

nonproliferation sanctions, the report concluded:

Sanctions can be a valuable component of our overall

strategy against WMD proliferation. At times, however,

sanctions have proven inﬂexible and ineffective. We

will develop a comprehensive sanctions policy to better

integrate sanctions into our overall strategy and work with

Congress to consolidate and modify existing sanctions

legislation.

The unclassiﬁed version of the report is available at

www.whitehouse.gov/news/releases/2002/12/WMDStrategy.pdf.

See also discussion of national security strategy, A.4.a, supra.

2. Initiatives Aimed at Preventing the Proliferation of Weapons

of Mass Destruction

a. U.S.-Russia: strengthening nuclear material protection

On June 18, 2002, President George W. Bush informed Con-

gress that the emergency declared under § 202(d) of the

National Emergencies Act, 50 U.S.C. 1622(d), with respect

to the accumulation of weapons-usable ﬁssile material in

the territory of the Russian Federation would continue beyond

June 21, 2002. 67 Fed. Reg. 42,181 ( June 20, 2002).

1040 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The notice issued by the President explained the role

of this action in ensuring that ﬁssile material removed

from Russian nuclear weapons is dedicated to peaceful uses.

The emergency provides the basis for the United States

to continue to block and protect from attachment Russian

property in the United States or under the control of U.S.

persons that is directly related to the implementation of the

agreements between the United States and Russia providing

for the downblending of highly enriched uranium derived

from nuclear weapons to low enriched uranium for peaceful

commercial purposes. This action would protect such pro-

perty from attachment or other judicial process. See Digest

2001 at 847–848.

****

On June 21, 2000, the President issued Executive Order 13159

(the “Order”) blocking property and interests in property of the

Government of the Russian Federation that are in the United

States, that hereafter come within the United States, or that are

or hereinafter come within the possession or control of United

States persons that are directly related to the implementation

of the Agreement Between the Government of the United States

of America and the Government of the Russian Federation

Concerning the Disposition of Highly Enriched Uranium Extracted

from Nuclear Weapons, dated February 18, 1993, and related

contracts and agreements (collectively, the “HEU Agreements”).

The HEU Agreements allow for the downblending of highly

enriched uranium derived from nuclear weapons to low enriched

uranium for peaceful commercial purposes. The Order invoked

the authority, inter alia, of the International Emergency Eco-

nomic Powers Act, 50 U.S.C. 1701 et seq., and declared a national

emergency to deal with the unusual and extraordinary threat to

the national security and foreign policy of the United States posed

by the risk of nuclear proliferation created by the accumulation of

a large volume of weapons-usable ﬁssile material in the territory

of the Russian Federation.

Use of Force and Arms Control 1041

A major national security goal of the United States is to ensure

that ﬁssile material removed from Russian nuclear weapons

pursuant to various arms control and disarmament agreements is

dedicated to peaceful uses (such as downblended to low enriched

uranium for peaceful commercial uses), subject to transparency

measures, and protected from diversion to activities of proliferation

concern. Pursuant to the HEU Agreements, weapons-grade uranium

extracted from Russian nuclear weapons is converted to low

enriched uranium for use as fuel in commercial nuclear reactors.

The Order blocks and protects from attachment, judgment, decree,

lien, execution, garnishment, or other judicial process the prop-

erty and interests in property of the Government of the Russian

Federation that are directly related to the implementation of the

HEU Agreements and that are in the United States, that hereafter

come within the United States, or that are or hereafter come within

the possession or control of United States persons.

****

b. U.S.-Serbia

On August 23, 2002, the U.S. Department of State announced

the successful transfer of highly-enriched weapons-quality

uranium from the Vinca nuclear reactor near Belgrade to a

facility in the Russian Federation to be down-blended for use

as conventional nuclear fuel. Excerpts from a fact sheet

describing “Project Vinca,” released on the same day, are

provided below.

The full text of the fact sheet is available at www.state.gov/

r/pa/prs/ps/2002/12962pf.htm.

• To remove a potential target for theft or terrorist attack,

the governments of the United States and Russia reached an

agreement with the government of Serbia, endorsed by the

Yugoslav government, to work with the International Atomic

Energy Agency (IAEA) and the Nuclear Threat Initiative (NTI)

1042 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

and the Russian Federation to remove a quantity of highly

enriched uranium, sufﬁcient to produce 2-1/2 nuclear weapons

from a research reactor near downtown Belgrade.

• The 48 kilograms (over 100 pounds) of unirradiated fuel was

ﬂown out of Belgrade on August 22 and has been safely secured

in Dmitrovgrad, Russia, where it will be “blended down” into

low enriched uranium for use as commercial reactor fuel.

• The U.S. Department of State and the U.S. Department of

Energy cooperated in the conduct of this project. The cost

to the U.S. Government will be between $2–3 million—the

State Department’s Nonproliferation and Disarmament

Fund contributed about $2 million and the Department of

Energy provided technical expertise and costs associated with

“blending down” the materials. Nuclear Threat Initiative is a

private charitable foundation that helped catalyze the deal by

providing $5 million in funding to address radioactive hazards

at the Vinca Nuclear Institute. The U.S. Government lacks the

authority to fund this critical element of the project.

****

c. Russian Federation Debt for Nonproliferation Act of 2002

On September 30, 2002, authority to reduce Russian

Soviet-era debt in exchange for Russian spending on non-

proliferation was enacted as the Russian Federation Debt

for Nonproliferation Act of 2002, Subtitle B, §§ 1311–1321 , of

the Foreign Relations Authorization Act, Pub. L. No. 107–228,

116 Stat. 1350, 22 U.S.C. § 5952 note.

Section 1315 authorized the President “to enter into an

agreement with the Russian Federation under which an

amount equal to the value of the debt reduced pursuant

to section 1314 will be used to promote the nonprolifera-

tion of weapons of mass destruction and the means of

delivering such weapons. An agreement entered into under

this section may be referred to as a “Russian Federation

Nonproliferation Investment Agreement”. Section 1314(a)(1)

provided as follows:

Use of Force and Arms Control 1043

(1) In general.—Upon the entry into force of a Russian

Federation Nonproliferation Investment Agreement, the

President may reduce amounts of Soviet-era debt owed

by the Russian Federation to the United States (or any

agency or instrumentality of the United States) that are

outstanding as of the last day of the ﬁscal year preceding

the ﬁscal year for which appropriations are available for

the reduction of debt, in accordance with this subtitle.

On July 25, 2002, Under Secretary of State for Economic,

Business and Agricultural Affairs Alan P. Larson had testiﬁed

before the House International Relations Committee con-

cerning the possibility of using such debt exchange, as

excerpted below.

Under Secretary Larson’s testimony is available at

www.state.gov/e/rls/rm/2002/12190.htm.

****

The initiative allows each partner the ﬂexibility to ﬁnance and

carry out projects in a manner consistent with its program prior-

ities, national laws and budgetary procedures. Bilateral debt for

program exchange is an option for ﬁnancing projects under the

[G-8 Global] Partnership. We do not know at this point whether

others will use debt exchange or more conventional assistance or

a mix of both. We do know that debt exchange will be difﬁcult

for some of our partners. The Administration will consult closely

with Congress on the formulation of non-proliferation and threat

reduction programs and projects and on the choice between debt

or more traditional assistance as a funding vehicle.

The Administration’s concept for how a debt option might

work is straightforward. The United States would agree in advance

to waive collection of a given amount of debt payments owed

by the Russian government to the United States government on

Russia’s Soviet-era debt. As a consequence, Russia would be

able to make expanded budgetary expenditures for agreed non-

proliferation activities. The ﬁnancial and budget mechanics

would be worked out in negotiations with Russia, subject to the

1044 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

requirements of U.S. law. We know the Russian authorities are

interested in applying such an approach to part or all of their

Soviet-era debt to the United States. Beyond that, there are still

many details that would need to be worked out. We need to

determine under what conditions we could offer such an option

to Russia. The Russians will need to decide whether such a deal

would be advantageous for them, relative to other options.

I would like to highlight one point, that the Administration

does not consider this kind of a ﬁnancing vehicle as debt relief,

per se. Financially, Russia does not require further debt relief.

Since its ﬁnancial crisis in 1998, Russia has adopted improved

economic policies and has beneﬁted from relatively high world oil

prices. Although it remains a country with serious poverty and

pressing needs, it can and is paying its bills.

At the same time, Russia cannot afford to do everything

we would like it to do. In the wake of the breakup of the former

Soviet Union, Russia chose to take over the assets and liabilities of

the Soviet Union. This decision saddled Russia with a number of

burdens, among them a vast and decaying collection of Soviet-era

weapons and production facilities. In addition, Russia assumed

the entire Soviet debt in exchange for title to all Soviet assets

abroad. A decade later, these decisions and a changing global

environment have left Russia with many responsibilities: to destroy

chemical weapons in compliance with international obligations;

to close down plutonium production facilities and dispose of excess

ﬁssile material; to dismantle old ballistic missile submarines and

other strategic launch systems. It must secure remaining WMD or

materials. These tasks remain despite U.S. assistance of $7 billion

to Russia and other former Soviet states for these purposes.

****

3. North Korean Nuclear Program

a. Violation of Agreed Framework

On October 16, 2002, Richard Boucher, spokesman for

the Department of State, announced that North Korea had

Use of Force and Arms Control 1045

acknowledged that it was conducting a clandestine uranium

enrichment program to develop nuclear weapons in violation

of the Agreed Framework, 34 I.L.M. 603 (1995), which it had

signed with the United States in 1994, and other instruments.

Under the Agreed Framework, North Korea was to halt

all nuclear weapons development, and the United States

undertook to organize an international consortium to ﬁnance

and construct two nuclear power plants in North Korea and

to supply 500,000 metric tons of heavy fuel oil per year

while they were being built.

As recently as August 2002 the United States rep-

resentative to the Korean Peninsula Energy Development

Organization (“KEDO”), Ambassador Charles Pritchard,

had reiterated the position of the United States in meet-

ing its commitments under the Agreed Framework. At a

ceremony marking the pouring of concrete for a light water

reactor in Kumho, North Korea, Ambassador Pritchard

stated:

The Agreed Framework has been a key component of

US-North Korea policy. When we agreed to the terms

of the Agreed Framework, we did so with the full

expectation that all aspects of our concerns over North

Korea’s nuclear program would be resolved ﬁnally and

completely.

As Administration ofﬁcials have stated many times,

the United States will continue to abide by the terms of

this accord so long as North Korea does the same; we

expect the DPRK to abide by the fact and the spirit of the

agreement.

****

It is time for us to see the same kind of tangible progress

by the DPRK in meeting its commitments under the

Agreed Framework. Those commitments are to cooperate

with the IAEA (International Atomic Energy Agency) and

to come into compliance with the NPT (Nonproliferation

Treaty). The path is clear, and the schedule is demanding.

1046 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Under the schedule recently provided to the DPRK, KEDO

is on course to complete a signiﬁcant portion of the

project and deliver key nuclear components in mid-2005,

before which the DPRK is obligated to come into full

compliance with its IAEA safeguards agreement, including

taking all steps that may be deemed necessary by the

IAEA. The IAEA believes that with full cooperation from

the DPRK it will take at least 3–4 years to verify the com-

pleteness and correctness of North Korea’s initial safe-

guards declaration. That means the DPRK must start

meaningful cooperation now with the IAEA and to comply

with its other obligations under the Agreed Framework.

The full text of Ambassador Pritchard’s remarks is available

at http://usinfo.state.gov/regional/ea/easec/pritchard806.htm.

North Korea’s acknowledgment of the violation in

October 2002 came in response to information provided by

Assistant Secretary of State for East Asian and Paciﬁc Affairs

James Kelly during meetings October 3–5 in North Korea. At

that time, Secretary Kelly informed North Korean ofﬁcials

that the United States had information indicating that North

Korea had a program to enrich uranium for nuclear weaons

in violation of the Agreed Framework.

The statement released by Mr. Boucher and excerpted

below, called on North Korea to comply with its commitments

under the Nonproliferation Treaty and to eliminate its nuclear

weapons program in a veriﬁable manner.

The full text of Mr. Boucher’s statement is available at

http://usinfo.state.gov/regional/ea/easec/af9.htm.

****

Earlier this month, senior U.S. ofﬁcials traveled to North Korea to

begin talks on a wide range of issues. During those talks, Assistant

Secretary James A. Kelly and his delegation advised the North

Koreans that we had recently acquired information that indicates

that North Korea has a program to enrich uranium for nuclear

weapons in violation of the Agreed Framework and other agree-

Use of Force and Arms Control 1047

ments. North Korean ofﬁcials acknowledged that they have such

a program. The North Koreans attempted to blame the United

States and said that they considered the Agreed Framework

nulliﬁed. Assistant Secretary Kelly pointed out that North Korea

had been embarked on this program for several years.

Over the summer, President Bush—in consultation with our

allies and friends—had developed a bold approach to improve

relations with North Korea. The United States was prepared to

offer economic and political steps to improve the lives of the North

Korean people, provided the North were dramatically to alter its

behavior across a range of issues, including its weapons of mass

destruction programs, development and export of ballistic missiles,

threats to its neighbors, support for terrorism, and the deplorable

treatment of the North Korean people. In light of our concerns

about the North’s nuclear weapons program, however, we are

unable to pursue this approach.

North Korea’s secret nuclear weapons program is a serious

violation of North Korea’s commitments under the Agreed

Framework as well as under the Nonproliferation Treaty (NPT),

its International Atomic Energy Agency safeguards agreement, and

the Joint North-South Declaration on the Denuclearization of the

Korean Peninsula.

****

The United States and our allies call on North Korea to comply

with its commitments under the Nonproliferation Treaty, and to

eliminate its nuclear weapons program in a veriﬁable manner.

We seek a peaceful resolution of this situation. Everyone in

the region has a stake in this issue and no peaceful nation wants

to see a nuclear-armed North Korea. This is an opportunity for

peace loving nations in the region to deal, effectively, with this

challenge.

b. U.S. support for KEDO reaction

On November 14, 2002, KEDO announced that it had decided

to suspend further shipment of fuel oil to North Korea

1048 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

beginning in December. President George W. Bush welcomed

the decision while reiterating his hope that the impasse with

North Korea could be resolved peacefully.

The full text of President Bush’s statement is available at

http://usinfo.state.gov/regional/ea/easec/bushkedo.htm.

I welcome yesterday’s strong statement by the Korean Peninsula

Energy Development Organization (KEDO) on the need for North

Korea to eliminate its nuclear weapons program and its decision

to suspend further shipment of fuel oil to North Korea beginn-

ing in December. We are working closely with our partners in

KEDO and our friends around the world to address this shared

challenge.

****

The United States hopes for a different future with North Korea.

As I made clear during my visit to South Korea in February, the

United States has no intention of invading North Korea. This

remains the case today. The United States seeks friendship with

the people of North Korea.

. . . We are united in our desire for a peaceful resolution of

this situation. We are also united in our resolve that the only option

for addressing this situation is for North Korea to completely and

visibly eliminate its nuclear weapons program.

c. U.S. views on status of KEDO agreement and relations

with North Korea

At a press brieﬁng in Washington, D.C., on November 19,

2002, Assistant Secretary of State for East Asian and Paciﬁc

Affairs, James A. Kelly indicated that the United States

had made no ﬁnal decision on the status of the Agreed

Framework. He also reiterated that there was no basis for

North Korea’s continued concern about challenges to its

sovereignty by the United States.

Use of Force and Arms Control 1049

The full text of the press brieﬁng is available at http://

usinfo.state.gov/regional/ea/easec/kelly1120.htm.

****

QUESTION: . . . The US State Department has not ofﬁcially

announced that the [Agreed Framework] has been scrapped, but

the United States recently suspended the fuel shipment to North

Korea, which amounts to practical scrapping. . . . What is the

ofﬁcial position of the State Department about the agreements?

ASSISTANT SECRETARY KELLY: First of all, the US did not

announce the ending of the fuel shipments. That was announced by

the Korean Peninsula Energy Development Organization board of

directors, which includes the Republic of Korea, Japan, U.S. and

the European Union, in New York, I believe, last Thursday.

The US view on the Agreed Framework is that the North

Koreans said it was nulliﬁed and we guess it’s been nulliﬁed. But

we are not in any rush to make decisions on all aspects of it. This

is an agreement that has acted for some eight years and there are

a number of different elements to it.

Among other things, of course, its very ﬁrst paragraph . . .

asserts that it’s aimed at preventing nuclear weapons on the Korean

Peninsula, and that’s, of course, exactly the uranium enrichment

program that would constitute a violation of that. So no ﬁnal

decisions have been made and no ﬁnal statements have been made

by the US Government on that.

We did say that the current shipment that, I guess, is being

delivered now in North Korea is the last one for which there are

funds, and I think that statement speaks for itself.

****

QUESTION: . . . Secretary Colin Powell yesterday said that United

States recognized the sovereignty of North Korea. Is it your ofﬁcial

position to recognize the North Korean Government or regime?

ASSISTANT SECRETARY KELLY: Yes. I don’t want to get

tangled in language about diplomatic recognition, but yes, we

recognize they’re a member-state of the United Nations. I don’t

1050 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

think that there’s something else. We have a lot of serious problems

with the government, but I think the context of what Secretary

Powell said was really referring to all of the statements that have

been coming from North Korea that keep talking about threats,

and there really haven’t been any threats.

When the President was in South Korea last February, and in

some remarks since, he made clear that we had no intention or

plans to attack or invade North Korea. They keep emphasizing a

threat posture which simply does not exist, and their sovereignty

has not been challenged. Their behavior has been what has been

challenged and this violation of written treaties in pursuing the

development of nuclear weapons.

d. Trilateral statement: United States, Republic of

Korea and Japan

On October 26, 2002, President Bush, Republic of Korea Pre-

sident Kim Dae-Jung, and Japanese Prime Minister Junichiro

Koizumi considered the North Korea situation in meetings

held on the margins of the Asia-Paciﬁc Economic Cooperation

(“APEC”) meetings in Los Cabos, Mexico. A joint statement

issued by the three leaders stressed their commitment to

resolving the matter peacefully and reafﬁrmed that continued

close consultations and trilateral coordination remained vital

to the success of their efforts towards North Korea. The

statement also reﬂected President Bush’s assertions that the

United States had no intention of invading North Korea.

At the conclusion of the Los Cabos meeting, APEC issued

a statement calling upon the DPRK “to visibly honor its

commitment to give up nuclear weapons programs and

reafﬁrm our commitment to ensure a peaceful resolution

of this issue.” See http://usinfo.state.gov/regional/ea/easec/

nkleaders26.htm.

The full text of the trilateral statement is available at http://

usinfo.state.gov/regional/ea/apec/mexico/trilateral1026.html

****

Use of Force and Arms Control 1051

The three leaders agreed that North Korea’s program to

enrich uranium for nuclear weapons is a violation of the Agreed

Framework, the Non-Proliferation Treaty, North Korea’s IAEA

safeguards agreement, and the South-North Joint Declaration

on Denuclearization of the Korean peninsula. The three leaders

called upon North Korea to dismantle this program in a prompt

and veriﬁable manner and to come into full compliance with all

its international commitments in conformity with North Korea’s

recent commitment in the Japan-North Korea Pyongyang Declara-

tion. In this context, the three leaders agreed to continue close

coordination.

The three leaders stressed their commitment to resolve this

matter peacefully in close consultation trilaterally and with other

concerned nations around the globe.

The three leaders agreed that South-North dialogue and

the opening of Japan-DPRK normalization talks can serve as

important channels to call upon the North to respond quickly

and convincingly to the international communities’ demands

for a denuclearized Korean peninsula. President Kim briefed

that during the recent South-North Ministerial Meeting held

in Pyongyang, the South strongly urged North Korea to take

immediate action for a prompt and peaceful resolution of the

nuclear issue. Prime Minister Koizumi reiterated that Japan-

DPRK normalization should promote not only bilateral rela-

tions with North Korea, but also contribute to peace and

stability of the region. In this regard, Prime Minister Koizumi

stressed that Japan-North Korea normalization talks would not

be concluded without full compliance with the Pyongyang

Declaration between Japan and North Korea, in particular

with regard to the security issues, including the nuclear issue,

and abduction issues. President Bush reiterated his February

statement in South Korea that the United States has no intention

of invading North Korea as well as the fact that he had been

prepared to pursue a bold approach to transforming U.S.-DPRK

relations.

****

1052 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

e. IAEA Resolution

On November 29, 2002, the board of governors of the Inter-

national Atomic Energy Agency (“IAEA”) adopted a resolution

deploring North Korea’s position that it is entitled to possess

nuclear weapons, available at www.iaea.org/worldatom/Press/

P_releasse/2002/med-advise_033.shtml. The Department of

State expressed its support for the IAEA action in a statement

by Philip T. Reeker, deputy spokesman, set forth in full below.

****

We welcome the strong resolution that the International Atomic

Energy Agency (IAEA) Board of Governors adopted by consensus

today regarding North Korea’s nuclear program. The resolution

deplores North Korea’s repeated public statements that it is entitled

to possess nuclear weapons, which is contrary to its obligations

under the Nuclear Non-Proliferation Treaty. The Board insisted

that North Korea urgently and constructively cooperate with the

IAEA in opening immediately all relevant facilities to IAEA

inspections and safeguards and urged North Korea to give up any

nuclear weapons program, expeditiously and in a veriﬁable manner.

This resolution sends a clear, strong and unmistakable signal

that the international community will not tolerate a North Korean

nuclear weapons program. North Korea must come into com-

pliance with its obligations under the Nuclear Non-Proliferation

Treaty, including its safeguards agreement with the IAEA. Adoption

of this resolution by the 35-member Board makes clear that North

Korea’s nuclear weapons ambitions and program are an issue

between North Korea and the international community, not a

bilateral issue with the United States, as the North Koreans

have tried to portray it. (The text of the resolution is available at

www.iaea.org.)

f. Shipment of Scud missiles to Yemen

On December 9, 2002, the Spanish navy boarded a merchant

ship carrying the name So San in the Indian Ocean and dis-

Use of Force and Arms Control 1053

covered ﬁfteen Scud missiles hidden on board. The Spanish

navy was participating in Operation Enduring Freedom,

seeking to prevent the escape by sea of al Qaeda and Taliban

forces. On December 11, the vessel was released and it pro-

ceeded to Yemen.

At the time of the boarding, the So San was ﬂying no ﬂag.

The North Korean ﬂag was painted out on the ship’s funnel,

as were the Korean characters for So San. The master indic-

ated that the vessel was registered in Cambodia, carrying a

cargo of cement for Socotra Island, Yemen. The Cambodian

Government could only conﬁrm that the ship met the descrip-

tion of a vessel registered in Cambodia under a different

name. Under these circumstances, the Spanish navy had

suspected that the vessel was without nationality.

In a press conference on December 11, 2002, White

House Spokesman Ari Fleischer stated that the ship was

boarded because it “was a non-ﬂagged vessel” but had been

permitted to proceed to Yemen because “[t]here is no pro-

vision under international law prohibiting Yemen from accep-

ting delivery of missiles from North Korea.” Further, “[w]hile

there is authority to stop and search, in this instance there is

no clear authority to seize the shipment of Scud missiles

from North Korea to Yemen and therefore the merchant

vessel is being released.” Mr. Fleischer indicated that the

administration would be reviewing the possible need for

strengthening non-proliferation controls to apply in such

situations. Additional excerpts from the press conference

are set forth below.

The full text of the press conference is available at

www.whitehouse.gov/news/releases/2002/12/20021211-5.html#2.

****

Q Can you tell us what the status is of the ship carrying the 15

Scud missiles that were headed for Yemen? And can you kind of

walk us through this whole incident?

MR. FLEISCHER: Let me start on the walk-through, and then

I’ll give you the status. There are some developments. This has

1054 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

been a very successful coalition interdiction effort that took place

in the Arabian Sea. We became aware of the departure of a ship

from North Korea that was carrying what we believed to be

weapons of concern. This was a non-ﬂagged vessel, which gave us

further concern. And the vessel was destined for Yemen. We had a

concern about what was on it. We had a concern before ascertain-

ing, indeed, that it was going to Yemen that it may have been head-

ing for a nation that was a terrorist—a potential terrorist nation.

As a result, the actions that were taken were the ship was

stopped and boarded. And I can report to you now that the matter

has been discussed with Yemeni ofﬁcials. Secretary Powell has

spoken with Yemeni authorities; the Vice President has done so,

as well, and we have looked at this matter thoroughly. There is no

provision under international law prohibiting Yemen from

accepting delivery of missiles from North Korea. While there is

authority to stop and search, in this instance there is no clear

authority to seize the shipment of Scud missiles from North Korea

to Yemen. And therefore, the merchant vessel is being released.

****

Q Didn’t the United States have an agreement with Yemen that

Yemen not purchase this type of equipment from North Korea?

MR. FLEISCHER: We have, as you know, efforts around the

world on the proliferation front to discourage missile technologies,

import, or export in most cases. And that is part of our ongoing

dialogue with Yemen. It involves some issues that immediately

enter the category of legality in terms of various agreements,

international treaties and agreements and understandings between

the United States and Yemen and around the world vis-a-vis the

Missile Technology Control Regime. And so the conversations

have been taking place with Yemen about it, but it’s not possible

to reach such a clear conclusion.

****

Q But [has Yemen] given us assurances, verbal or written, that

they would not buy any more missile technology from North Korea

after the August embargo was slapped on the North Korean

companies?

Use of Force and Arms Control 1055

MR. FLEISCHER: Well, let me say this about the future, as well.

Yemen is a partner of the United States in the war on terrorism.

There are many agreements around the world in international

treaty law which have been agreed to, focused on nuclear pro-

liferation, on biological proliferation, on chemical weapon pro-

liferation. One thing that does come out of this that the United

States thinks needs to be looked at by the world is that there are

less stringent agreements on the international treaty level dealing

with proliferation of missiles.

The nuclear proliferation agreements are well-known. Bio-

logical and chemical are well-known. One thing that this does

underscore is the need to take a look—and we will do so, with

friends and others around the world—in a diplomatic sense about

whether or not the international regimes that deal with missile

proliferation need a second look.

****

Q Are you contemplating more sanctions against North Korea for

this?

MR. FLEISCHER: Again, under the Missile Technology Control

Regime, there is no provision of international law that prohibited

this.

****

. . . [T]he large majority of the international community has long

opposed proliferation of these type of missiles. The United States

has identiﬁed North Korea as one of the prime exporters of such

missiles, and North Korea actions, in the case of this interception,

demonstrate clearly the concerns we have as a country. Having

said that, international law still is international law, and you have

to be careful to separate an agreement North Korea made with

the United States and Japan and South Korea, vis-a-vis the agreed

framework, and their cooperation with the agreed framework on

the issue of oil, which you did raise, separate and apart from

whether or not in this instance the export of the Scud missiles was

not controlled by international law.

Q During the Cuban missile crisis there was not international

law that guided missile exports between the Soviet Union, at

1056 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

the time, and Cuba, and yet the United States turned the ships

around.

MR. FLEISCHER: Well, this is why I suggest to you that—I said

earlier that Yemen is a partner of the United States and that we

had concerns about whether or not these missiles were going to

head to any rogue regimes. And that would have been a different

matter. But the fact of the matter is the import or export of this

which is legal must be observed under international law. If

international law would have given the United States the right to

do other things vis-a-vis other nations, you can rest assured we

would have exercised those rights.

The issue is whether the national security of the United States

or our interests or friends in the region would have been affected

had these missiles been intended for another nation.

****

. . . [W]e have to be guided by the law in these matters. This is

about our national security, and the law is a reﬂection of the

protections that have been placed to defend our national security.

And given the fact that it was—we had concerns about whether or

not this would have raised national security issues; those concerns

were explored, evaluated as a result of the international action.

We had the actual information about what was on the ship and

where it was going. It did not rise to that level and so, therefore,

as the law would require, since there was no provision that

prohibited them from accepting these missiles, the determination

was made that the ship would proceed.

****

Q . . . [Y]ou said that there was a basis, legal basis under

international law to interdict the ship.

MR. FLEISCHER: Correct.

Q Can you just clarify what that was? Is that part of the missile—

MR. FLEISCHER: No, because the ship was an unﬂagged vessel,

there was a right to stop and search the ship. . . . It’s under maritime

law.

****

Use of Force and Arms Control 1057

The issue again . . . , is we as the United States—as much as we do

not like what North Korea does around the world, the United

States still has an obligation to follow international law, and not

let the fact that we believe that North Korea is a proliferator and

presents dangerous problems to the United States in other regards

from telling us that we have a right to violate international law.

We do not. And we still have to obey international law so that we

are in a stronger position to enforce international law on nations

like North Korea.

****

Q [T]o what extent does this go against everything that this admin-

istration has been preaching about weapons spread to anywhere?

MR. FLEISCHER: You know, one of the ways that the world ﬁghts

proliferation is through international treaties. And in order to

adhere to treaties, all nations must adhere to the law. And we have

an obligation to adhere to the international law in this case. I think

the United States would be on thin ground if we, out of convenience

or out of any other reason said, we will violate international law

because we have other concerns. We cannot do that. The fact that

we will adhere to international law, in the end, helps strengthen

international agreements that ﬁght proliferation efforts like this.

And as we freely admit, this incident exposes ﬂaws in international

regimes and international laws that are worthy of having a renewed

look by the world about these efforts.

****

MR. FLEISCHER: Again, we have no choice but to obey

international law. And what Yemen has done in this case, because

Yemen is an ally of the United States, in that sense it does not

provide a threat to the United States. In terms of North Korea, we

do have ongoing concerns about North Korea’s efforts to be—to

sell arms around the world, and those concerns are well known.

4. U.S.-IAEA Additional Protocol

In recent years, efforts have been made to strengthen

the IAEA’s safeguards system. These efforts include a

1058 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

reafﬁrmation of the IAEA’s right to conduct special inspec-

tions and the use of new tools for the detection of clandestine

nuclear facilities. In 1997, the IAEA adopted a “model proto-

col” for existing safeguards agreements under the NPT that

is designed to give the IAEA a stronger role and more effective

tools for conducting worldwide inspections. It provides for

additional declarations about states’ nuclear-related activities

and expands IAEA access rights. On May 9, 2002, President

George W. Bush transmitted the U.S.-IAEA Additional Pro-

tocol to the U.S.-IAEA Safeguards Agreement, S. Treaty Doc.

No. 107–7 (2002) to the Senate for advice and consent to

ratiﬁcation. Excerpts from the President’s transmittal letter

and from the Secretary of State’s letter submitting the treaty

to the President are provided below.

LETTER OF TRANSMITTAL

The White House, May 9, 2002.

To the Senate of the United States:

I submit herewith, for Senate advice and consent to ratiﬁcation,

the Protocol Additional to the Agreement Between the United States

of America and the International Atomic Energy Agency for the

Application of Safeguards in the United States of America, with

annexes, signed at Vienna June 12, 1998 (the “Additional Pro-

tocol”). Adhering to the Additional Protocol will bolster U.S. efforts

to strengthen nuclear safeguards and promote the nonproliferation

of nuclear weapons, which is a cornerstone of U.S. foreign and

national security policy.

At the end of the Persian Gulf War, the world learned the extent

of Iraq’s clandestine pursuit of an advanced program to develop

nuclear weapons. In order to increase the capability of the Inter-

national Atomic Energy Agency (the “Agency”) to detect such pro-

grams, the international community negotiated a Model Additional

Protocol (the “Model Protocol”) to strengthen the Agency’s nuclear

safeguards system. The Model Protocol is to be used to amend the

existing bilateral safeguards agreements of states with the Agency.

The Model Protocol is a milestone in U.S. efforts to strengthen

the safeguards system of the Agency and thereby to reduce the

Use of Force and Arms Control 1059

threat posed by clandestine efforts to develop a nuclear weapon

capability. By accepting the Model Protocol, states assume new

obligations that will provide far greater transparency for their

nuclear activities. Speciﬁcally, the Model Protocol strengthens

safeguards by requiring states to provide broader declarations to

the Agency about their nuclear programs and nuclear-related act-

ivities and by expanding the access rights of the Agency.

The United States signed the Additional Protocol at Vienna on

June 12, 1998. The Additional Protocol is a bilateral treaty that

would supplement and amend the Agency veriﬁcation arrangements

under the existing Agreement Between the United States of America

and the International Atomic Energy Agency for the Application

of Safeguards in the United States of America of November 18,

1977 (the “Voluntary Offer”), which entered into force on Decem-

ber 9, 1980. The Additional Protocol will enter into force when

the United States notiﬁes the Agency that the U.S. statutory and

constitutional requirements for entry into force have been met.

The Treaty on the Non-Proliferation of Nuclear Weapons (the

“NPT”) requires non-nuclear-weapon states parties to accept

Agency safeguards on their nuclear activities. The United States,

as a nuclear-weapon state party to the NPT, is not obligated to

accept Agency safeguards on its nuclear activities. Nonetheless, it

has been the announced policy of the United States since 1967 to

permit the application of Agency safeguards to its nuclear facilities

—excluding only those of direct national security signiﬁcance. The

Additional Protocol similarly allows the United States to exclude

its application in instances where the United States decides that its

application would result in access by the Agency to activities with

direct national security signiﬁcance to the United States or access

to locations or information associated with such activities. I am,

therefore, conﬁdent that the Additional Protocol, given our right

to invoke the national security exclusion and to manage access in

accordance with established principles for implementing these

provisions, can be implemented in a fashion that is fully consistent

with U.S. national security.

By submitting itself to the same safeguards on all of its civil

nuclear activities that non-nuclear-weapon states parties to the

NPT are subject to, the United States intends to demonstrate that

1060 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

adherence to the Model Protocol does not place other countries at

a commercial disadvantage. The U.S. signature of the Additional

Protocol was an important factor in the decisions of many non-

nuclear-weapon states to accept the Model Protocol and provided

signiﬁcant impetus toward their early acceptance. I am satisﬁed

that the provisions of the Additional Protocol, given our right

to manage access in accordance with Article 7 and established

implementation principles, will allow the United States to prevent

the dissemination of proliferation-sensitive information and protect

proprietary or commercially sensitive information.

I also transmit, for the information of the Senate, the report of

the Department of State concerning the Additional Protocol,

including an article-by-article analysis, a subsidiary arrangement,

and a letter the United States has sent to the Agency concerning

the Additional Protocol. Additionally, the recommended legislation

necessary to implement the Additional Protocol will be submitted

separately to the Congress.

I believe that the Additional Protocol is in the best interests of

the United States. Our acceptance of this agreement will sustain our

longstanding record of voluntary acceptance of nuclear safeguards

and greatly strengthen our ability to promote universal adoption of

the Model Protocol, a central goal of my nuclear non-proliferation

policy. Widespread acceptance of the Protocol will contribute sign-

iﬁcantly to our nonproliferation objectives as well as strengthen

U.S., allied, and international security. I, therefore, urge the Senate

to give early and favorable consideration to the Additional Pro-

tocol, and to give advice and consent to its ratiﬁcation.

George W. Bush.

LETTER OF SUBMITTAL

The Secretary of State,

Washington, April 30, 2002.

The President:

****

The Model Protocol requires states to report a range of

information to the Agency about their nuclear and nuclear-related

Use of Force and Arms Control 1061

activities and about the planned developments in their nuclear fuel

cycles. This includes expanded information about their holdings

of uranium and thorium ores and ore concentrates and of other

plutonium and uranium materials not currently subject to Agency

safeguards, general information about their manufacturing of

equipment for enriching uranium or producing plutonium, general

information about their nuclear fuel cycle-related research and

development activities not involving nuclear material, and their

import and export of nuclear material and equipment.

Such broad-based information makes it substantially more dif-

ﬁcult for a state planning a nuclear-weapon program to conceal the

early stages of that program and provides the Agency with a critical

reference base for comparison with information otherwise available

to it, including information from other states. The Model Protocol

also provides the Agency with certain rights of access to declared

locations as well as to other locations to investigate the possibility

of undeclared activities. This increased risk of early detection is

intended to deter non-nuclear-weapon states that might, in the future,

be tempted to undertake a clandestine nuclear weapon program.

With increased transparency of non-nuclear-weapon states’

nuclear programs, the Agency should be able to provide greater

assurance of both the absence of diversion of declared nuclear

material and the absence of undeclared nuclear material and

activities in non-nuclear-weapon states.

Minimizing the burden of safeguards on inspected locations is

a long-standing concern of the Agency and its member states and

is reﬂected in a number of provisions of existing safeguards agree-

ments, including the Voluntary Offer, and in the Model Protocol.

Existing Agency safeguards agreements specify that safeguards shall

be implemented in a manner designed to avoid hampering economic

and technological development and to avoid undue interference in

peaceful nuclear activities, that the Agency shall take every pre-

caution to protect commercial and industrial secrets and other

conﬁdential information coming to its knowledge, and that the

Agency shall require only the minimum amount of information

and data consistent with carrying out its responsibilities. These

provisions of existing safeguards agreements remain in force and

are expanded by the Model Protocol.

1062 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The overall design of the Model Protocol was shaped by the

interest of states in establishing an appropriate balance between

improving the effectiveness of the safeguards system and the need

to avoid undue interference with legitimate nuclear or nuclear-

related activities. The declaration requirements of the Model

Protocol are of a general character.

The Agency is precluded from mechanistically or systematically

verifying the declarations. The Model Protocol deﬁnes the activities

the Agency may carry out at locations of different types; provides

for managed access to protect various classes of sensitive informa-

tion; and provides for the negotiation of subsidiary arrangements

as needed to further deﬁne how Protocol measures shall be applied,

including at particular locations. The Model Protocol requires the

Agency to maintain a stringent regime to ensure effective protection

against disclosure of conﬁdential information.

****

Respectfully submitted,

Colin L. Powell.

5. International Code of Conduct against Ballistic Missile

Proliferation (“ICOC”)

On November 25, 2002, the United States became an initial

Subscribing State to the International Code of Conduct

against Ballistic Missile Proliferation (“ICOC”) in The Hague,

The Netherlands. Remarks by Under Secretary of State

for Arms Control and International Security John R. Bolton

provide the views of the United States on the ICOC itself

and its role in conjunction with other non-proliferation

instruments. The text of the ICOC is available at www.defense-

aerospace.com/data/verbatim/data/ve308/.

Under Secretary Bolton’s remarks are available at

www.state.gov/t/us/rm/15488pf.htm.

I am honored to represent the United States of America as an

initial Subscribing State to the International Code of Conduct

Use of Force and Arms Control 1063

against Ballistic Missile Proliferation (ICOC). The entry into effect

today of the ICOC marks an important contribution to the inter-

national effort against the proliferation of ballistic missiles capable

of delivering weapons of mass destruction (WMD)—an effort that

the United States has always strongly supported.

The large number of countries that have subscribed to the

ICOC and are represented here is a concrete demonstration that

the international community has recognized and is looking for

additional ways to address the proliferation of the most threatening

means of delivery for weapons of mass destruction. It is no accident

that the dangerous proliferation of ballistic missiles occurs pre-

dominantly in parallel with programs for nuclear, chemical, and

biological weapons. International concern about such ballistic

missile programs is heightened by the fact that weapons of mass

destruction programs also often exist in parallel with support

for terrorist groups. Viewed in this context, it is clear why the

proliferation of ballistic missiles threatens international peace and

security on a worldwide basis.

The United States regards the proliferation of ballistic missiles

capable of delivering WMD as a direct threat to the U.S., our

deployed forces, our friends and allies, and our interests in key

regions of the world.

The United States sees the International Code of Conduct

against Ballistic Missile Proliferation as an important addition

to the wide range of tools available to countries to impede and

roll back this proliferation threat. One element of our strategy is

multilateral efforts against missile proliferation, such as the ICOC

and the Missile Technology Control Regime (MTCR). Another

important element is missile defense. We view our missile defense

efforts as complementary to, and consistent with the objectives

of, the ICOC and the MTCR. Each seeks in different ways to

protect us from the dangers posed by WMD and ballistic missile

proliferation. We are now in the process of discussing with allies

and friends, including the Russian Federation, cooperation on

missile defense programs because our nation is hardly alone in

needing the additional protection that such programs can provide.

Missile defenses, the MTCR, and the ICOC play important roles

in deterring and reducing missile proliferation, and the United

1064 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

States will be ready to work with members of the ICOC, and of

the MTCR, to ensure that these complementary efforts are mutually

reinforcing.

While an important new addition to the broad arsenal of

nonproliferation measures, it is no secret that the ICOC has its

limitations. For example, in taking on the political commitment

pursuant to the ICOC to “exercise maximum possible restraint in

the development, testing and deployment of Ballistic Missiles

capable of delivering weapon of mass destruction,” the United

States—like other countries—understands this commitment as not

limiting our right to take steps in these areas necessary to meet

our national security requirements consistent with U.S. national

security strategy. This includes our ability to maintain our deterrent

umbrella for our friends and allies, and the capabilities necessary

to defeat aggression involving WMD attacks. But all Subscribing

States will have the opportunity to discuss these issues in detail,

and to participate in consensus decisions to evolve the text.

Most of this implementation work will concern the ICOC’s

requirements for pre-launch notiﬁcation of Subscribing States’

ballistic missile and space-launch vehicle launches and test ﬂights.

The United States intends to make pre-launch notiﬁcations and

annual declarations pursuant to the ICOC based upon current

U.S. proposals in its negotiations with the Russian Federation on

a Pre-Launch Notiﬁcation System, including on the question of

which launches are to be notiﬁed. For example, the United States

reserves the right in circumstances of war to launch ballistic missiles

and space-launch vehicles without prior notiﬁcation.

Once implementation is completed, the notiﬁcations and annual

declarations that the United States provides pursuant to the ICOC

will be based upon the U.S.-Russian Pre-Launch Notiﬁcation

System, to be established in connection with the U.S.-Russian Joint

Data Exchange Center. Over the longer term, we agree with the

Russian Federation that the bilateral U.S.-Russian system should

be multilateralized. We hope, in turn, that such a multilateralized

system might provide the mechanism by which all ICOC Sub-

scribing States exchange pre-launch notiﬁcations. We plan to keep

all Subscribing States informed on the progress of the implementa-

tion of the U.S.-Russia agreement on launch notiﬁcation, and on

Use of Force and Arms Control 1065

the implications and opportunities that a multilateralized U.S.-

Russia Pre-Launch Notiﬁcation System can present for the ICOC.

Some have been concerned that the ICOC is simply a political

declaration and not “legally binding.” But surely the real issue is

not the nature of the commitment, but the extent of the political

will to comply with the Code that signatories demonstrate. Too

often in the arms control and nonproliferation ﬁelds, countries make

a great public ﬂourish about adhering to codes and conventions, and

then, quietly and deceptively, do precisely the opposite in private.

In the context of the Biological Weapons Convention (BWC),

for example, we know that several member states are violating

their commitments to the treaty. To expose some of these violators

to the international community, we have named publicly states

the U.S. Government knows to be pursuing the production of

biological warfare agents in violation of the BWC—including Iraq,

North Korea, Iran and Libya, as well as Cuba, which we believe

has at least a limited, developmental offensive biological warfare

R&D effort, and which has provided dual-use biotechnology to

other rogue states.

Even as we speak, we face a grave threat to the integrity of the

Non-Proliferation Treaty. North Korea brazenly admitted last

month to having a program to enrich uranium for nuclear weapons.

This egregious violation of its treaty commitments threatens the

security of all nations, as well as the continued credibility of the

Non-Proliferation Treaty.

Surely, none of us wants this disdain and disregard to happen

to the new ICOC. That is why we are not concerned about the

states that have chosen not to subscribe to the Code. Far better to

know who is actually prepared to live under its terms, and who is

not. Far better to know who is truly serious about stopping the

proliferation of ballistic missile technology and the risk that such

technology could be used to carry weapons of mass destruction

against innocent civilian populations.

In conclusion, Mr. Chairman, the United States places great

value on the International Code of Conduct against Ballistic Missile

Proliferation and has high conﬁdence in its future potential. We

pledge our full support to you and our fellow Subscribing States

in the demanding tasks ahead. Thank you.

1066 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

6. Nonproliferation Sanctions Imposed by the United States

a. Missile proliferation

On August 16, 2002, the United States imposed missile

proliferation sanctions against a North Korean manu-

facturer, Changgwang Sinyong Corp. and its sub-units and

succcessors, for engaging in missile technology proliferation

activities. 67 Fed. Reg. 54,693 (Aug. 23, 2002).

****

. . . Pursuant to section 73(a)(1) of the Arms Export Control

Act (22 U.S.C. 2797b(a)(1)); section 11B(b)(1) of the Export

Administration Act of 1979 (50 U.S.C. app. 2401b(b)(1)), as

carried out under Executive Order 13222 of August 17, 2001

(hereinafter cited as the “Export Administration Act of 1979”);

and Executive Order 12851 of June 11, 1993; the U.S. Govern-

ment determined on August 16, 2002 that the following foreign

person has engaged in missile technology proliferation activ-

ities that require the imposition of the sanctions described in

section 73(a)(2)(A) of the Arms Export Control Act (22 U.S.C.

2797b(a)(2)(A) and section 11B(b)(1)(B)(i) of the Export Adm-

inistration Act of 1979 (50 U.S.C. app. 2410b(b)(1)(B)(i) on this

person: Changgwang Sinyong Corporation (North Korea) and its

sub-units and successors.

Accordingly, the following sanctions are being imposed on

this person:

(A) New individual licenses for exports to the person described

above of MTCR Annex-controlled equipment or technology

controlled pursuant to the Export Administration Act of 1979

will be denied for two years;

(B) New licenses for export to the person described above of

MTCR Annex-controlled equipment or technology controlled

pursuant to the Arms Export Control Act will be denied for

two years; and

Use of Force and Arms Control 1067

MTCR Annex-controlled equipment or technology involving

the person described above will be entered into for two years.

With respect to items controlled pursuant to the Export

Administration Act of 1979, the export sanctions only apply to

exports made pursuant to individual export licenses.

Additionally, because North Korea is a country with a non-

market economy that is not a former member of the Warsaw pact

(as referenced in the deﬁnition of “person” in section 74(8)(B) of

the Arms Export Control Act), the following sanctions shall

be applied to all activities of the North Korean government relat-

ing to the development or production of missile equipment or

technology and all activities of the North Korean government

affecting the development or production of electronics, space

systems or equipment, and military aircraft:

(A) New individual licenses for export to the government activities

described above of MTCR Annex-controlled equipment or

technology controlled pursuant to the Arms Export Control

Act will be denied for two years; and

(B) No new U.S. Government contracts relating to MTCR Annex-

controlled equipment or technology involving the government

activities described above will be entered into for two years.

These measures shall be implemented by the responsible

departments and agencies of the United States Government as

provided in Executive Order 12851 of June 11, 1993.

b. Iran Nonproliferation Act of 2000

(1) Chinese entities

On January 16, 2002, the United States imposed penalties

on two Chinese companies and one Chinese national

pursuant to the Iran Nonproliferation Act of 2000, Pub. L.

No. 106–178, 114 Stat. 38. 67 Fed. Reg. 3528 (Jan. 24, 2002).

1068 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

The sanctions were imposed against Liyang Chemical

Equipment, China Machinery and Electric Import and Export

Company, and Q.C. Chen. A statement from the ofﬁce of the

Department of State press spokesman on January 24, 2002,

explained that the sanctions were imposed for the transfer

to Iran since January 1, 1999, of sensitive equipment and

technology controlled by the Australia Group (“AG”), a

33-nation nonproliferation regime that seeks to prevent

the proliferation of chemical and biological weapons. The

spokesman also commented:

Q.C. Chen is already subject to U.S. sanctions. In May

1997, he was among seven Chinese entities sanctioned,

pursuant to the Chemical and Biological Weapons Control

and Warfare Elimination Act of 1991, for knowingly and

materially assisting Iran’s chemical weapons program

through the transfer of chemical weapons precursor

chemicals and/or chemical weapons-related production

equipment and technology. These sanctions currently

remain in place.

For many years we have made known to the Chinese

Government our concerns about speciﬁc Chinese

entities providing assistance to Iran’s chemical weapons

program. Q.C. Chen has been among the entities we

have raised on multiple occasions. China was informed

in advance through diplomatic channels of our recent

sanctions decision; we are not in a position to discuss

the details of our contacts on this issue.

Excerpts below from the Federal Register notice

enumerate the sanctions imposed against the entities and

any successor, sub-unit, or subsidiary thereof. Comments by

the Department of State press spokesman are available at

www.state.gov/r/pa/prs/ps/2002/7485.htm.

****

. . . . [P]ursuant to the provisions of the Act, the following measures

are imposed on these entities:

Use of Force and Arms Control 1069

1. No department or agency of the United States Government

may procure, or enter into any contract for the procurement

of, any goods, technology, or services from these foreign

persons.

2. No department or agency of the United States Government

may provide any assistance to the foreign persons, and these

persons shall not be eligible to participate in any assistance

program of the United States Government;

3. No United States Government sales to the foreign persons of any

item on the United States Munitions List (as in effect on August

8, 1995) are permitted, and all sales to these persons of any

defense articles, defense services, or design and construction

services under the Arms Export Control Act are terminated;

and,

4. No new individual licenses shall be granted for the transfer to

these foreign persons of items, the export of which is controlled

under the Export Administration Act of 1979 or the Export

Administration Regulations, and any existing such licenses are

suspended.

These measures shall be implemented by the responsible

departments and agencies of the United States Government and

will remain in place for two years, except to the extent that the

Secretary of State or Deputy Secretary of State may subsequently

determine otherwise. A new determination will be made in the

event that circumstances change in such a manner as to warrant a

change in the duration of sanctions.

(2) Armenian, Chinese, and Moldovan entities

On May 16, 2002, the United States imposed the same

nonproliferation measures against two Armenian, eight

Chinese, and two Moldovan entities, and any successor, sub-

unit or subsidiary thereof, including a ban on U.S. government

procurement, pursuant to sections 2 and 3 of the Iran

Nonprolieration Act of 2000, Pub. L. No. 106–178. 67 Fed.

Reg. 34,983 (May 16, 2002).

1070 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

c. Iran-Iraq Arms Non-Proliferation Act of 1992 and

chemical/biological nonproliferation provisions

of the Arms Export Control Act and the Export

Administration Act of 1979

On July 9, 2002, John Bolton, Under Secretary of State for

Arms Control and International Security Affairs, by delegation

of authority, determined that ten entities in the People’s

Republic of China and in India were engaged in proliferation

activities that required the imposition of measures pursuant

to the provisions of the Iran-Iraq Arms Non-Proliferation Act

of 1992, Pub. L. No. 102–484. 67 Fed Reg. 48,696 ( July 25,

2002). The sanctions imposed against these entities and

any successor entities, parents, or subsidiaries “to remain

in place for two years, except to the extent subsequently

determined otherwise” were set forth in the Federal Register

notice, as follows:

1. For a period of two years, the United States Govern-

ment shall not procure, or enter into any contract for

the procurement of any goods, or services from the

sanctioned person;

2. For a period of two years, the United States Govern-

ment shall not issue any license for any export by or to

the sanctioned person.

The Under Secretary also determined that eight of the

Chinese entities against which sanctions had been imposed

under the Iran-Iraq Nonproliferation Act, had engaged in

chemical weapons proliferation activities that required the

imposition of measures pursuant to the provisions of section

81(a) of the Arms Export Control Act (22 U.S.C. § 2798) and

section 11C(a) of the Export Administration Act of 1979

(50 U.S.C. app § 2410c (as continued by E.O. 13222 of

August 17, 2001). 67 Fed. Reg. 48,696 ( July 25, 2002). The

following measures were imposed against these entities and

their successors, to “remain in place for at least one year

until further notice:”

Use of Force and Arms Control 1071

1. The United States Government shall not procure, or

enter into any contract for the procurement of, any goods

or services from the sanctioned persons;

2. The importation into the United States of products

produced by the sanctioned persons shall be prohibited.

7. 2005 Non-Proliferation Treaty Review Conference

Ambassador Norman A. Wulf, representative of the United

States to the ﬁrst meeting of the preparatory committee for

the 2005 NPT Review Conference, addressed the committee

on April 8 and 17, 2002. Excerpts below from his intervention

of April 17 address the particular challenge of promoting the

safety and security of peaceful nuclear programs.

The full text of Ambassador Wulf ’s remarks is available

at www.state.gov/t/np/rls/rm/9926pf.htm. His preliminary

remarks to the ﬁrst meeting, April 8, 2002, are available at

www.state.gov/t/np/rls/rm/9919pf.htm.

****

It is widely recognized that the NPT rests on three pillars: nuclear

nonproliferation, the pursuit of disarmament, and the right of all

responsible Parties to the Treaty to beneﬁt from the peaceful uses

of nuclear energy. This third pillar promises that the populations

of states parties can share in nuclear energy’s many beneﬁts, ranging

from medical, agricultural and environmental to energy-production.

This right comes with an obligation to abide by and support the

nonproliferation articles of the Treaty. In order to sustain peaceful

nuclear cooperation, each state party must ensure the safety and

security of the nuclear facilities and materials it uses for peaceful

purposes.

****

First and foremost, there must be full compliance with the

letter and spirit of Articles I and II of the NPT. Ineffective controls

1072 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

over nuclear-related exports might help terrorist groups acquire

the components of a nuclear explosive or dispersal device.

Irresponsible governments have found loopholes in these controls;

there is no reason to believe terrorists could not do the same.

Second, the IAEA safeguards required under Article III of the

NPT must provide strong veriﬁcation of non-nuclear weapon states’

nonproliferation undertakings. Because they help protect against

the diversion of nuclear materials, safeguards remain the critical

ﬁrst line of defense against nuclear terrorism. A strong safeguards

system and an IAEA with sufﬁcient resources to implement it are

the ﬁrst barrier to terrorist exploitation of these materials. Fun-

damental to safeguards and their ability to protect against both

proliferation and nuclear terrorism are the accuracy and integrity

of state systems of accounting and control.

Third, all states must ensure effective physical protection

for their nuclear facilities and materials. All states must address

potential threats to these facilities and materials, particularly the

threats of seizure of nuclear material and sabotage. They must be

attentive to physical protection in all its aspects ranging from the

legal and regulatory to the facility level. One fundamental step we

can all take now to strengthen physical protection is to support

the revision of the Convention on the Physical Protection of

Nuclear Materials on the basis of the May 2001 Expert Meeting

recommendation.

Finally, we need to secure our borders against illicit trafﬁck-

ing in both nuclear materials and radiological sources. Within

our borders, we must focus on the safety and security of radio-

logical sources, particularly high-activity and highly dispersible

sources. These sources must be kept under control, and in cases

where control has been lost we must seek to recover and secure

them.

Each of us bears primary responsibility for the safety and

security of our peaceful nuclear programs. But this is not a

responsibility we need to bear alone. The NPT urges states to

cooperate in peaceful nuclear endeavors, whether bilaterally,

in conjunction with groups of states, or through international

organizations. In the face of the enhanced threat of nuclear

terrorism, existing cooperation should be further expanded. We

Use of Force and Arms Control 1073

should take advantage of the beneﬁts—developmental, economic,

educational—that cooperation in safety and security offers.

****

Cross References

International Criminal Court, Chapter 3.C.2.

Litigation concerning termination of ABM treaty, Chapter 4.B.6.a.

Claims by American prisoners of war under California law, Chap-

ter 8.B.4.a.(1)

Role of international law in resolving conﬂict and controlling

violence, Chapter 17.A.

Optional Protocol on Involvement of Children in Armed Conﬂict,

Chapter 6.C.2.a.

1074 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Table of Cases 1075

1075

Table of Cases

* An asterisk denotes cases in courts and fora, including the International

Court of Justice, other than U.S. federal and state courts.

AAR Internat’l, Inc. v. Nimelias Enters. S.A. (2001), 860, 861

Aaran Money Wire Service, Inc. v. United States (2002), 101

Abdulaziz v. Metropolitan Dade County (1984), 553, 561

Abdullahi v. Pﬁzer, Inc. (2002), 345–346

*ADF Group Inc. v. United States, 641–661

Adams v. Vance (1978), 590

Advanced Micro Devices v. Intel Corporation (2002), 875–876

Aguinda v. Texaco, Inc. (2002), 355–357

*Ahani v. Canada (2002), 267n

Ahmed v. Hoque (2002), 552–567

Aidi v. Yaron (1987), 551n, 563

*Al-Adsani v. The United Kingdom (2001), 474

Alaska v. United States of America, 738–756

Al Odah v. United States (2002), 980–986

Aldrich v. Mitsui & Co. (1988), 437n

Alexander v. Sandoval (2001), 223

Alfred Dunhill of London, Inc. v. Cuba (1976), 466, 504–505, 509,

510

Allen-Bradley Local No. 1111 v. Wisconsin Employment Relations Bd.

(1942), 443

Allendale Mut. Ins. Co. v. Bull Data Sys., Inc. (1993), 866n

Alliance of Descendants of Texas Land Grants v. United States (1994),

511

Allstate Ins. Co. v. Hague (1981), 454, 456

Altmann v. Republic of Austria (2002), 507, 508, 509

Altmann v. Republic of Austria (2001), 514

Alvarez-Machain v. United States (1992), 77–78

Alvarez-Machain v. United States (1996), 335

Alvarez-Machain v. United States (2002), 346

Alvarez-Machain v. United States of America (2001), 346

1076 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

American Inst. in Taiwan v. United States ex rel. Wood (2002),

245–246, 538

American Insurance Association v. Low (2002), 415–429

Amlon Metals, Inc. v. FMC Corp. (1991), 335, 336

Anderson v. Watt (1891), 489

Aptheker v. Sec’y of State (1964), 14

Arbelo, United States v. (2002), 8

Arcaya v. Paez (1956), 553, 560

Arce Gonzalez v. Gutierrez (2002), 54–56

Argentine Republic v. Amerada Hess Shipping Corp. (1989), 218, 222,

465, 467, 469, 473, 578

*Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo

v. Belgium) (2002), 474

Asakura v. Seattle (1924), 223

Attorney General of Canada v. R.J. Reynolds Tobacco Holdings, Inc.

(2002), 837–841

Attorney General of Canada v. RJ Reynolds Tobacco Holdings, Inc.

(2000), 838

Bailey v. United States (1995), 484

Baiz, In re (1890), 553

Baker v. Carr (1962), 200–201, 340, 341, 342, 343, 475

*Bamaca Valasquez Case (2000), 1014

Banco Nacional de Cuba v. Sabbatino (1964), 342, 442, 475, 493,

574

Banyan Licensing v. Orthosupport International (2002), 864

Barclays Bank PLC v. Franchise Tax Board (1994), 453

Beacon Products Corp. v. Reagan (1986), 202

Beanal v. Freeport-McMoran, Inc. (1999), 335, 336

Belmont, United States v. (1937), 442

Berdakin v. Consulado de la Republica de El Sal. (1995), 540

Berman v. Schweiker (1983), 588

Bernstein v. N.V. Nederlandsche-Amerikaansche (1954), 508

Bestfoods, United States v. (1998), 483

Bigio v. Coca-Cola Co. (2000), 334

Birch Shipping Corp. v. Embassy of the United Republic of Tanz.

(1980), 541

Bird v. United States (1996), 985

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics

(1971), 233–234

Block v. North Dakota (1983), 588

BMW of N. America, Inc. v. Gore (1996), 421, 424, 453

Boimah v. United Nations Gen. Assembly (1987), 571

Table of Cases 1077

Boos v. Barry (1988), 561, 566

Boshnjaku v. Federal Republic of Yugoslavia (2002), 466–467,

491–492

Boyle v. United Technologies Corp. (1988), 443

BP Chems. Ltd. v. Jiangsu Sopo Corp. (2002), 517–518

Braunfeld v. Brown (1961), 15

Breard v. Greene (1998), 47

*Briggs v. Baptiste (1999), 267n

Brown v. Gardner (1994), 484

Bryks v. Canadian Broad. Corp. (1995), 477

Buong Van Ho v. United States (2002), 413

Burnet v. Clark (1932), 483

Byrd v. Corporacion Forestal y Industrial de Olancho S.A. (1999), 472

*Caballero Delgado and Santana Case (1995), 268n

Cabello Barrueto v. Fernández Larios (2002), 351, 474

California, United States v. (1947), 248, 255

Campbell v. Clinton (2000), 199

Canadian Transport Co. v. United States (1980), 218

Carl Marks & Co., Inc. v. Union of Soviet Socialist Republics (1988),

498, 504, 505, 506–507, 509, 513, 514

Carrera v. Carrera (1959), 553

Carter v. United States (2000), 526–527

Casanova v. Fitzpatrick, United States ex rel (1963), 554

Cedric Kushner Promotions, Ltd. v. King (2001), 482

Chan v. Korean Air Lines, Inc. (1989), 436, 440

Chase Manhattan Bank v. Trafﬁc Stream (BVI) Infrastructure Ltd.

(2000), 228

Chenoweth v. Clinton (1999), 199

Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp. (1948),

200, 589

China Oil and Gas Pipeline Bureau, In re (2002), 516–517

China Trade & Dev. Corp. v. M.V. Choong Yong (1987), 866n

Christopher v. Harbury (2002), 231–236

Chuidian v. Philippine National Bank (1990), 467, 472, 473, 477

Chy Lung v. Freeman (1875), 427, 428, 447

Cicippio v. Islamic Republic of Iran (1994), 503

Cicippio v. Islamic Republic of Iran (1998), 534

City of Englewood v. Socialist People’s Libyan Arab Jamahiriya

(1985), 542, 579

Coalition of Clergy v. Bush (2002), 981

*Coard et al. v. United States (1999), 1016–1017

Coleman v. Miller, 201

1078 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Colorado River Water Conserv. Dist. v. United States (1976), 860, 861

Comm. of U.S. Citizens Living in Nicaragua v. Reagan (1988), 216

Commonwealth of the Northern Mariana Islands v. United States

(2002), 246–259

Compagnie des Bauxites de Guinea v. Insurance Co. of North America

(1981), 866

Conolly v. Taylor (1829), 489

Container Corp. v. Franchise Tax Board (1983), 454

Coplon, United States v. (1949), 553

Correctional Servs. Corp. v. Malesko (2001), 223, 234

County of Arlington, United States of America v. (1983), 580

County Sovereignty Comm. v. Dep’t of State (2002), 91

Credit Suisse v. United States District Court for the Central District of

California, 342

Creppel v. United States (1994), 511

Croesus EMTR Master Fund L.P. v. The Federative Republic of Brazil

(2002), 519

Croll v. Croll (2000), 56

Cronin v. Islamic Republic of Iran (2002), 529–534

Crosby v. Nat’l Foreign Trade Council (2000), 200, 428, 444, 446,

447, 449, 451

Cruz v. United States (2002), 212–218, 498, 500, 511–513

*Cruz Varas and Others, In the Case of (1991), 267n

Cuban American Bar Ass’n, Inc. v. Christopher (1995), 985

Cummings, United States v. (2002), 57–58

Curtiss-Wright Export Corp., United States v. (1936), 442

Custer County Action Association v. Garvey (2001), 340

*Cyprus v. Turkey (1976), 1015

Daliberti v. Republic of Iran (2001), 534

Dames & Moore v. Regan (1981), 214n, 414, 426, 545

De La Pava, United States v. (2001), 215

De Luca v. United Nations Organization (1994), 571, 572

Demjanjuk, United States v. (2002), 5–8

Department of Air Force v. Rose (1976), 234

Department of the Navy v. Egan (1988), 589

Dexter & Carpenter, Inc. v. Kunglig Jarnvagsstyrelsen (1930), 561

Diggs v. Richardson (1976), 215

Dillman v. Mitsubishi Material Corp., 438

Doe I v. Unocal Corp. (2000), 338, 343–344

Doe I v. Unocal Corp. 2002 (2002), 344

Doe I v. Unocal Corp. 2003 (2003), 344

Doe v. Exxon Mobil, 357–363, 575

Table of Cases 1079

Doe v. Liu Qi (2002), 469–476, 575

Dole Food Company v. Patrickson (2003), 480–491

Dole v. United Steelworkers of Am. (1990), 424

Dorothy McCarthy, In the Matter of the Claim of (1971), 241n

Dow Jones v. Harrods (2002), 868–871

Duncan v. Kahanamoku (1946), 990

Dupont Circle Citizens Ass’n v. District of Columbia Bd. of Zoning

Adjustment (1987), 538

EAL Corp. v. European Organization for the Safety of Air Navigation

(1994), 469

Edgar v. MITE Corp. (1982), 453

EEOC v. Arabian Am. Oil Co. (1991), 422

Eisentrager v. Forrestal (1949), 982

El Fadl v. Central Bank of Jordan (1996), 472

Enger, United States v. (1978), 553

Estate of Marcos v. Hilao (1995), 324, 336

Eunique v. Powell (2002), 13–15

Fallini v. United States (1995), 511

FDIC v. Mallen (1988), 98

Federal Deposit Insurance Corp. v. Meyer (1994), 564

Feng Suo Zhou v. Li Peng (2000), 581–585

Ferreiro v. United States (2002), 236–242

Filartiga v. Pena-Irala (1980), 323, 328–329, 334, 336, 340, 474,

563

Filtech S.A. v. France Telecom S.A. (2002), 517

Filus v. LOT Polish Airlines (1993), 516

Fireman’s Ins. Co. v. Onwualia (1994), 560

First Am. Corp. v. Sheikh Zayed Bin Sultan Al-Nahyan (1996), 548,

549n

First English Evangelical Lutheran Church v. Los Angeles County

(1987), 224n

First Nat’l City Bank v. Banco Para El Comercio Exterior De Cuba

(1983), 483, 512, 546

*Fisheries Case (United Kingdom v. Norway, 1951), 751–752

Flatow v. Islamic Republic of Iran (1998) (2002), 545–547

Flatow v. Islamic Republic of Iran (1999), 542

Flores v. Southern Peru Copper Corp. (2002), 344–345

Flynn v. Shultz (1984), 589

Ford v. Garcia (2002), 348–351

Foster v. Neilson (1829), 221

1080 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Freeport-McMoRan Inc. v. K N Energy, Inc. (1991), 489

Fujitsu Ltd. v. Federal Express Corp. (2001), 437n

Garb v. Republic of Poland (2002), 492–494, 497, 509, 513–516

Garcia, United States ex rel. Saroop v. (1997), 215–216

Gardiner Stone Hunter International v. Iberia Lineas Aereas de Espana

(1995), 469

Gau Shan Co. v. Bankers Trust Co. (1992), 866n, 867

General Electric v. Deutz AG (2001), 866n, 867

*Genie Lacayo Case (1997), 268n

Gerling Global Reinsurance Corp. of America v. Gallagher (2001),

417, 421, 425, 451–452n, 454, 456n

Gerling Global Reinsurance Corp. of America v. Low (2002), 416

Gerritsen v. Escobar & Cordova (1988), 562

Gerritsen v. Hurtado (1987), 540

Gilbert v. Homar (1997), 98

Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Company

(2002), 874

Global Relief Foundation, Inc. v. O’Neill (2002), 94–98

Global Services International, Inc. v. United States (2002), 101

Goldstar (Panama) S.A. v. United States (1992), 215, 216, 992

Goldwater v. Carter, 199, 201–202

Gorshkow, United States v. (2002), 5–6

Gray v. Permanent Mission of People’s Republic of Congo to the U.N.

(1978), 540

Greenspan v. Crosbie (1976), 552n

Guaranty Trust Co. of New York v. United States (1938), 497, 507

Guinto v. Marcos (1986), 336

Habib v. Bush (2002), 981

Haig v. Agee (1981), 14, 100, 200, 589

Hair v. United States (2002), 460–461

Hallowell v. Commons (1916), 514

Hallstrom v. Tillamook County (1989), 482

Hamdi v. Rumsfeld (2002), 986–997

Harisiades v. Shaughnessy (1952), 200, 590, 595

Harlow v. Fitzgerald (1982), 234

Head Money Cases (1884), 215

Healy v. Beer Inst. (1989), 421, 422, 423, 453, 455

Hellenic Lines, Ltd. v. Moore (1965), 551

Herbage v. Meese (1990), 469

Higgins v. Islamic Republic of Iran (2000), 534

Table of Cases 1081

Hilao v. Estate of Marcos (1996), 474

Hillsborough County v. Automated Medical Laboratories, Inc. (1985),

443

Hines v. Davidowitz (1941), 426, 442–443, 444, 446, 447

Holmes v. Laird (1972), 201

Holy Land Foundation for Relief and Development v. Ashcroft (2002),

98–101

Home Ins. Co. v. Dick (1930), 422, 423, 454, 455

Hopland Band of Pomo Indians v. United States (1988), 510–511

Hue Thi Nguyen v. United States (2002), 413–415

Hughes Aircraft v. United States (1997), 496, 497, 499, 501, 506, 507

Hughes v. Ashcroft (2001), 8

Humanitarian Law Project v. Reno (2000), 93–94

Hwang Gum Joo v. Japan (2001), 494–503

Imbler v. Pachtman (1976), 564

Immigration and Naturalization Service v. St. Cyr (2001), 496, 497,

499, 500, 501, 506

In re ________________. See name of party

INS v. Chadha (1983), 590

*Ireland v. United Kingdom (1978), 370n

Irwin v. Department of Veterans Affairs (1990), 588

Isbrandtsen Tankers, Inc. v. President of India (1971), 510

Islamic Republic of Iran v. Boeing (1985), 216n

Islamic Republic of Iran v. McKesson HBOC, Inc. (2001) (2002),

219–226, 502–503, 519–522

Iwanowa v. Ford Motor Co. (1999), 337

Jackson v. People’s Republic of China (1986), 498, 500, 506

Jaeger v. Mitsubishi Materials Corp., 438n

Jane Doe I v. Islamic Salvation Front (1998), 337

Japan Line, Ltd. v. County of Los Angeles (1979), 422n, 426, 427, 453

Jenco v. Islamic Republic of Iran (2001), 528

Jennie Fuller, In the Matter of the Claim of (1971), 241n

Jin, et al. v. Ministry of State Security, 475

John Hancock Mutual Life Ins. Co. v. Yates (1936), 456

Johnson v. Eisentrager (1950), 982–984, 991, 1004n

JPMorgan Chase Bank v. Trafﬁc Stream (BVI) Infrastructure Ltd.

(2002), 227–231

*Juan Raul Garza v. United States (2001), 265n

Jung Tang v. Chinese Cultural Center (2002), 535–545

Juragua Iron Co. v. United States (1909), 988

1082 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Kadic v. Karadzic (1996), 324, 334–335, 337, 340–341, 343, 353,

563–564, 583

Kaepa, Inc. v. Achilles Corp. (1996), 866n, 872

2120 Kalorama Rd, Inc. v. District of Columbia Foreign Missions

Act-Board of Zoning Adjustment (2001), 576

Kamya v. United Nations, 570–572

Kao Hwa Shipping Co. v. China Steel Corp. (1993), 515–516

Kasi v. Angelone (2000), 77

Kasi v. Angelone (2002), 77–78

Kasi v. Commonwealth (1998), 77

Kasi v. Virginia (1999), 77

Kato v. Ishihara (2002), 477–478

Kent v. Dulles (1958), 14, 15

Kinsey v. United States (1988), 511

Kirkpatrick & Co. v. Environmental Tectonics Corp. (1990), 573

Klinghoffer v. S.N.C. Achille Lauro (1991), 341

Kolovrat v. Oregon (1961), 440

Komet v. Republic of Finland (2001), 534–535

Kucinich v. Bush (2002), 198–202

Lafontant v. Aristide (1994), 474, 548, 551n, 563

*LaGrand (Germany v. United States) (1999), 40, 42, 46, 47

Laker Airways v. Sabena, Belgian World Airlines, 866n, 867–868

Landgraf v. USI Film Products (1994), 496, 499, 514–515

Lane v. Pena (1996), 588

*Las Palmeras Case (2000), 1014

Lauritzen v. Larson (1953), 328

Lee, United States v. (1882), 549

Lernout and Hauspie Speech Products v. Stonington Partners (2001),

865–868

Letelier v. Republic of Chile (1984), 503

Leutwyler v. Queen Rania al Abdullah (2001), 548, 549n

Li, United States v. (2000), 215, 216

Liberian E. Timber Corp. v. Government of the Republic of Liber.

(1987), 541

Lindh, United States v. (2002), 94, 1001–1008

Linear Products v. Marotech (2002), 862–863

*Loayza Tamayo Case (1997), 268n

*Loewen Group Inc. and Raymond L. Loewen v. United States of

America, 623–641

Lopez, United States v. (1995), 57–58

Louisiana, United States v. (1950), 249n, 253

Table of Cases 1083

Ludecke v. Watkins (1948), 988

Lumen Constr., Inc. v. Brant Constr. Co., Inc. (1985), 861

Maalouf v. the Swiss Confederation (2002), 522

MacArthur Area Citizens Ass’n. v. Republic of Peru (1987), 542

Macharia v. United States (2002), 461–462

Macphail v. Oceaneering International (2002), 871–872

Made in the USA Foundation v. United States, 199, 201

Madsen v. Kinsella (1952), 988n

Magness v. Russian Fed’n (2001), 515

Maine, United States v. (1975), 249n

Mann, United States v. (1987), 215

Marbury v. Madison (1803), 340

Marcos, Human Rights Litigation, In re estate of (1994), 324

Maritime Ins. Co. Ltd. v. Emery Air Freight Corp. (1993), 436

Matimak Trading Co. v. Khalily (1997), 228

Matta-Ballesteros v. Henman (1990), 215, 216

*Megrahi v. Her Majesty’s Advocate (2002), 111–112

Mehinovic v. Vuckovic (2002), 347–348

Mendaro v. World Bank (1983), 571

*Methanex Corporation v. United States, 626–623

Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft

Noise, Inc. (1991), 989

Miami Light Project v. Miami-Dade County (2000), 450, 451

Michelin Tire Corp. v. Wages (1976), 453

Milena Ship Mgmt. Co. Ltd. v. Newcomb (1992), 99

Millen Indus., Inc. v. Coordination Council for N. Am. Affairs (1988),

540

Mitchell, United States v. (1980), 588, 589

Mitsubishi Materials Corp. v. Superior Court (2000), 435–440

Mollan v. Torrance (1824), 489

*Mondev International Ltd. v. United States, 607–616

Mukaddam v. Permanent Mission of Saudi Arabia to the United

Nations (2000), 477

Mullaney v. Wilbur (1975), 1006n

National Coalition Gov’t of the Union of Burma v. Unocal, Inc.

(1997), 335

National Foreign Trade Council v. Natsios (1999), 447, 450, 451

Native Village of Evak v. Trawler Diane Marie, Inc. (1998), 251, 255

Nat’l City Bank of New York v. Republic of China (1955), 493

Nat’l Council of Resistance of Iran v. Dep’t of State (2001), 91

1084 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Navarro Savings Association v. Lee (1980), 96

Nazi Era Cases Against German Defendants Litigation, In re (2001),

342–343

Nehme v. INS (2001), 8

Neil, United States v. (2002), 131–133

New York Times Co. v. City of New York Comm’n on Human Rights

(1977), 450

Nixon, United States v. (1974), 590

Nordic Village, Inc., United States v. (1992), 588

Noriega, United States v. (1990), 1004n

Nuovo Pignone, Spa v. Storman Asia (2002), 877–879

O’Connell Mach. Co. v. M.V. «Americana» (1984), 515

Oetjen v. Central Leather Co. (1918), 340, 589

Padilla v. Bush (2002), 986, 998–1000

Palestine Liberation Organization, United States v. (1988), 554

Park v. Shin (2002), 478

Patricia Carrato v. United States (1983), 498

Patrickson v. Dole Food Company (2001), 480–481

People of Saipan v. Dep’t of Interior (1974), 216n

People’s Mojahedin Org. of Iran v. Dep’t of State (1999), 91–92

Percheman, United States v. (1833), 222n, 225–226

Petit, et al. v. Ding, 475

*Petition of Mary and Carrie Dann, 367–382

Phillips Petroleum Co. v. Shutts (1985), 422, 423, 454

*Phosphates in Morocco (1938), 378

Pierce, United States v. (2000), 840

Pierson v. Ray (1967), 564

Pink, United States v. (1942), 426, 442, 448, 589

Plaintiff A v. Xia Deren (2002), 469–476, 575

*Pope and Talbot v. Canada, 642, 651–660, 662

Posadas v. National City Bank of N.Y. (1936), 545

Premier Steamship Corp. v. Embassy of Algeria (1971), 554

Price v. Socialist People’s Libyan Arab Jamahiriya (2002), 530, 534

Princz v. Federal Republic of Germany (1994), 494, 496, 499–500,

501, 514

*Prosecutor v. Akayesu (1998), 350

*Prosecutor v. Aleksovski (2000), 350

*Prosecutor v. Blaskic (2000), 350

*Prosecutor v. Delalic (2001), 350, 351

*Prosecutor v. Kayishema (1999), 350

Table of Cases 1085

Quill Corp. v. North Dakota (1992), 454

Quirin, Ex parte (1942), 987, 988n, 992, 996–997, 1000, 1004n,

1005

Radzanower v. Touche Ross (1976), 572

Rahmani, United States v. (2002), 93

Raines v. Byrd (1997), 199

Ralpho v. Bell (1977), 985

Rasul v. Bush (2002), 980–986

Reed, United States v. (1981), 216

Republic of Argentina v. Weltover (1992), 466, 487–488, 502,

521–522

Republic of Austria, Dorotheum GMBH & CO KG, and

Osterreischische Industrieholding, AG, In re (2002), 503–511

Republic of Mexico v. Hoffman (1945), 548, 549

Republic of Peru, Ex Parte (1943), 497, 507, 548–549

Republic of Phillipines v. Marcos (1987), 561

Republic of Phillipines v. Westinghouse Elec. Corp. (1994), 866

*Request For Precautionary Measures (Detainees At Guantanamo Bay,

Cuba), 1008–1017

Rhanime v. Solomon (2002), 552

Rice v. Santa Fe Elevator Corp. (1947), 443

Ring v. Arizona, 317

Rodriguez v. Cook (1999), 15

Rodriguez v. United States (1987), 543

Roeder v. Islamic Republic of Iran (2002), 523–527, 534

Romine v. Compuserve Corp. (1998), 860, 861

Rostker v. Goldberg (1981), 989

Ruggiero v. Compania Peruana de Vapores “Inca Capac Yupanqui”

(1981), 563

Russian Volunteer Fleet v. United States (1931), 224n

S & Davis Int’l, Inc. v. Republic of Yemen (2000), 515

Sales v. Republic of Uganda (1993), 541

Saltany v. Reagan (1988), 474, 549n

Sampson v. Federal Republic of Germany (2001), 492, 494, 501, 589

*Santiago Marzioni (Argentina) (1996), 370

Sarei v. Rio Tinto PLC (2002), 333–343, 357, 574–575

Saroop v. Garcia, United States ex rel. (1997), 215–216

Saudi Arabia v. Nelson (1993), 465, 473, 502, 505, 520

Schooner Exchange v. M’Faddon (1812), 504, 561

1086 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Schooner Peggy, The United States v. (1801), 448

Seattle Totems Hockey Club, Inc. v. Nat’l Hockey League (1981), 866n

Segni v. Commercial Ofﬁce of Spain (1986), 540

Seguros Commercial America v. Hall (2000), 216n

767 Third Avenue Associates v. Permanent Mission of the Republic of

Zaire to the United Nations, 560, 565, 566, 567

Shanghai Power Co. v. United States (1983), 414

Siderman de Blake v. Republic of Argentina (1992), 335, 473

Ski Train Fire in Kaprun, Austria, In re (2002), 479–480

Smart v. Leeke (1989), 1006n

Smith v. Socialist People’s Libyan Arab Jamahiriya (1996), 493, 494,

501

Smith v. Sperling (1957), 489

S.N.T. Fratelli Gondrand v. United States (1964), 414–415

*South West Africa Cases (1966), 379

Southern Paciﬁc Co. v. Arizona (1945), 453

Spacil v. Crowe (1974), 548, 549

Springer v. Philippine Islands (1928), 525

Springﬁeld Rare Coin Galleries, Inc. v. Johnson (1986), 450

S&S Mach. Co. v. Masinexportimport (1992), 542

Stafford Ordnance Corp. v. United States (1952), 511

Stanford v. Kentucky (1989), 291

Stanley, United States v. (1987), 235

Steel Improvement & Forge Co. v. United States (1966), 511

Stethem v. Islamic Republic of Iran (2002), 528

Stonington Partners v. Lernout & Hauspie Speech Products (2002),

865–868

Strickland v. Washington, 48

Subpoena Issued to Mary Erato, In re (1993), 84n

Suerte, United States v. (2002), 134–137

Sullivan v. State of San Paulo (1941), 553

Sumitomo Shoji Am., Inc. v. Avagliano (1982), 440

Sun Reﬁning and Marketing Co. v. Brennan (1990), 860

Sun v. Taiwan (2000), 538

Surette v. Islamic Republic of Iran (2002), 533

Szabo v. CGU International Insurance (2002), 859–862

Tachiona v. Mugabe (I–IV) (2001–2002), 324–333, 474, 552n, 563

Taiheiyo Cement Corporation v. Superior Court, 440–456

Taiwan v. United States Dist. Ct. for the N. Dist. of Cal. (1997), 538

Tayyari v. New Mexico State University (1980), 450

Tel-Oren v. Libyan Arab Republic (1984), 215, 222n, 323–324, 326,

328–329, 340, 342

Table of Cases 1087

Temengil v. Trust Territory of the Paciﬁc Islands (1989), 216

Terrence K., In the Matter of (1987), 553–554, 560

Texas, United States v. (1950), 249, 253

The Rapid (1814), 983n

Thompson v. Oklahoma (1988), 318n

Townsend v. Little (1883), 544

Trajano v. Marcos (1989), 342

Trans Commodities, Inc. v. Kazakhstan Trading House, S.A. (1997),

541

Trans World Airlines v. Franklin Mint (1984), 215

Transamerica Mortgage Advisors, Inc. v. Lewis (1979), 223

Traore v. State (1981), 554

Trapilo, United States v. (1997), 840

Trojan Technologies, Inc. v. Pennsylvania (1990), 450

Tuck v. Pan American Health Org. (1981), 563

Tudor City Place Assocs. v. Libyan Arab Republic Misson to the U.N.

(1983), 540

Turkmani v. Republic of Bolivia (2002), 516

Turner Entertainment Company v. Degeto Film (1994), 862

Underhill v. Hernandez (1897), 475

Underwood v. United Republic of Tanz., (1995), 540

Ungar v. Islamic Republic of Iran (2002), 529

United Feature Syndicate v. Miller Features (2002), 863–864

*United Parcel Service of America, Inc. v. Canada, 661–665

United States ex rel. Saroop v. Garcia (1997), 215–216

United States of America v. County of Arlington (1983), 580

United States of America v. The American Institute in Taiwan, Wood

ex rel. (2002), 245–246

United States v. Amer (1997), 59

United States v. Arbelo (2002), 8

United States v. Belmont (1937), 442

United States v. Bestfoods (1998), 483

United States v. California (1947), 248, 255

United States v. City of Glen Cove (1971), 581

United States v. Coplon (1949), 553

United States v. Cummings (2002), 57–58

United States v. Curtiss-Wright Export Corp. (1936), 442

United States v. De La Pava (2001), 215

United States v. Demanjuk (2002), 5–8

United States v. Enger (1978), 553

United States v. Gorshkow (2002), 5–6

United States v. Lee (1882), 549

1088 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

United States v. Li (2000), 215, 216

United States v. Lindh (2002), 94, 1001–1008

United States v. Lopez (1995), 57–58

United States v. Louisiana (1950), 249n, 253

United States v. Maine (1975), 249n

United States v. Mann (1987), 215

United States v. Mitchell (1980), 588, 589

United States v. Neil (2002), 131–133

United States v. Nixon (1974), 590

United States v. Nordic Village, Inc. (1992), 588

United States v. Noriega (1990), 1004n

United States v. Palestine Liberation Organization (1988), 554

United States v. Percheman (1833), 222n, 225–226

United States v. Pierce (2000), 840

United States v. Pink (1942), 426, 442, 448, 589

United States v. Rahmani (2002), 93

United States v. Reed (1981), 216

United States v. Shewmaker (1991), 544

United States v. Stanley (1987), 235

United States v. Suerte (2002), 134–137

United States v. Texas (1950), 249, 253

United States v. The Schooner Peggy (1801), 448

United States v. Trapilo (1997), 840

United States v. Valentine (1968), 1004n

United States v. Vasquez-Velasco (1994), 133, 543

United States v. Verdugo-Urquidez (1990), 235

United States v. Walczak (1986), 214n

United States v. Will (1980), 526

United States v. Williams (1980), 135–136

United States v. Wong Kim Ark (1898), 230

United States v. Yan Long Xiong (2002), 133–134

United States v. Zabaneh (1998), 215

*United States – Countervailing Duties on Certain Corrosion-Resistant

Carbon Steel Flat Products from Germany – AB–2002–4 – Report

of the Appellate Body, 670–672

*United States – Section 211 Omnibus Appropriations Act of 1998 –

AB–2001–7 – Report of the Appellate Body, 672–676

Valdez v. Oklahoma (2001), 45–48

Valentine, United States v. (1968), 1004n

Varrin v. Queen’s University (2002), 872–873

Vasquez-Velasco, United States v. (1994), 133, 543

Verdugo-Urquidez, United States v. (1990), 235

Table of Cases 1089

Verlinden B.V. v. Central Bank of Nigeria (1983), 465, 488, 497,

505

Victory Transport Inc. v. Comisaria General de Abastecimientos y

Transportes (1964), 510

Village of Gambell v. Hodel (1989), 250–251

*Villagran Morales Case (1997), 370

Virtual Countries, Inc, v. Republic of South Africa and South African

Tourism Board (2001) (2002), 518–519

Vulcan Iron Works v. Polish Am. Mach. Corp. (1979), 551n

Wagner v. Islamic Republic of Iran (2001), 528

Walczak, United States v. (1986), 214n

Ware v. Hylton (1796), 448

Watson v. Employers Liability Assurance Corp. (1954), 454

Wei Ye v. Jiang Zemin (2002), 547–552, 585–595

Weinberger v. Rossi (1982), 214n

Weinstein v. Islamic Republic of Iran (2002), 527, 528

Whitney v. Robertson (1888), 221

Williams, United States v. (1980), 135–136

Wiwa v. Anderson (2002), 357

Wiwa v. Royal Dutch Petroleum Company and Shell Transport and

Trading Company (2002), 352–355

Wong Kim Ark, United States v. (1898), 230

World War II era Japanese Forced Labor Litigation, In re (2000),

434–435, 437

World Wide Minerals v. Republic of Kazakhstan (2002), 574

W.S. Kirkpatrick & Co. v. Environmental Tectonics Corporation,

Int’l (1990), 475, 490

Wulfsohn v. Russian Socialist Federated Soviet Republic (1923), 508

Xuncax v. Gramajo (1995), 336, 474

Yamashita, In re (1946), 349–350, 988n

Yamashita v. Styer (1946), 438n, 439

Yan Long Xiong, United States v. (2002), 133–134

York River House v. Pakistan Mission to the United Nations (1991),

560

Zabaneh, United States v. (1998), 215

Zemel v. Rusk (1965), 14

1090 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Zschernig v. Miller (1968), 426–427, 428–429, 443, 444, 447, 450,

451, 452

Zveiter v. Brazilian Nat’l Superintendency of Merchant Marine (1993),

477

Index 1091

1091

Index

Abortion, 278, 301, 308–309, 770

Act of State Doctrine

Alien Tort Claims Act jurisdiction and, 334, 339, 342, 358

Bernstein letter, 508

expropriation of corporate property, 573–574

immunity and, 471, 474–475, 573–575

U.S. foreign policy and, 474–475

Administrative Procedure Act, 99

Adoption

acquisition of citizenship in, 9

Hague Convention on Inter-Country Adoption, 286

Afghanistan, 463

arms trade restrictions, 884–885

cooperation in anti-terrorism actions, 890

illicit drug production or transit, 123

sanctions against Taliban, 881–884

status of enemy combatant detainees captured in, 261–270,

976–986, 995–996

Lindh case, 1001–1008

women’s rights in, 277, 279–280

Aggression, crime of, International Criminal Court jurisdiction, 152

Agreements

Alaska-Chukotka Polar Bear Population, Agreement between the

Government of the United States of America and the

Government of the Russian Federation on the Conservation

and Management of the, 800–805

Disposition of Highly Enriched Uranium Extracted from Nuclear

Weapons, Agreement Between the Government of the United

States of America and the Government of the Russian

Federation Concerning the (1993), 1040–1041

Holocaust Era Insurance Claims, Agreement Concerning (2002),

430–434

1092 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Agreements (continued)

Privileges, Exemptions, and Immunities Between the American

Institute in Taiwan and the Coordination Council for North

American Affairs, Agreement on, 535–539, 543, 544–545

Refugee Status Claims from Nationals of Third Countries,

Agreement for Cooperation in the Examination of, 31–35

Settlement of Certain Property Claims, Agreement Between the

United States of America and the Government of the Socialist

Republic of Vietnam Concerning the, 413–415

South Paciﬁc Regional Environment Programme, Agreement

Establishing the (1993), 790–791

Surrender of Persons to the International Criminal Court, Agreement

between the Government of the United States of America and

the Government of the Republic of Uzbekistan Regarding the

(2002), 166–168

Trade-Related Intellectual Property Rights, Agreement on, 673

Agricultural trade reform proposal, 701–707

AIDS/HIV, 715–718, 805–807

Air transport

Aircraft

bilateral Open Skies agreements, 597–600

competency of European Union member states to conclude air

services agreements, 598–600

Protocol to Amend the Convention for the Uniﬁcation of Certain

Rules Relating to International Carriage by Air, 600–607

return of stolen, 61, 62, 64–65

Treaty on Open Skies (aerial observation), 1028–1032

warning regarding military aircraft wreckage in international waters,

737–738

Albania, 757

naturalization treaty, 202

Algeria, 278

Algiers Accords, 219, 523–524, 526–527, 632

Alien Tort Claims Act (Alien Tort Statute) (1789), 323–324, 909–910

accomplice liability under, 347–348, 351

act of state issues, 334, 342, 358

exhaustion of remedies requirements, 336–337

extraterritorial arrest as violation of, 346

forum non conveniens doctrine and, 339, 355–357

human rights claims, 323–324, 355–357

command responsibility and, 348–351

Indonesian citizens’ claim against U.S. corporation, 357–363

liability for indirect participation, 351–355

Myanmar citizens’ claim against U.S. corporation under, 343–344

Index 1093

Nigeria citizens’ claim against European corporations under,

352–355

Nigeria citizens’ claim against U.S. corporation under, 345–346

Papua New Guinea residents’ claim against international

corporation under, 333–343

Peruvian citizens’ claim against U.S. corporation under, 344–345

by refugees from Bosnia-Herzegovina against Bosnian soldiers,

346–348

Zimbabwean citizens claim against Zimbabwean political party,

324–333

immunity of government ofﬁcial, 470–472, 475, 563–564

jurisdiction, 325–326, 328–329, 344, 346–348, 352–355

liability and damages determinations under, 325

state action requirement, 339–340, 346, 352–355

Alienage diversity statute, 227–231

Aliens

access to U.S. courts in habeas proceedings by aliens held outside the

U.S., 980–986

“admitted” to the United States, 19–20

crewmen of foreign-ﬂagged vessels performing longshore work,

756–757

procedures of military commissions for trial of non-U.S. citizens

suspected of terrorism, 957–976

recognition of foreign driver’s license of, 18–20

American Convention on Human Rights, 73, 263, 1013–1015

American Declaration on the Rights and Duties of Man, 49, 1015, 1016

claim against U.S. by American indigenous people, 367–382

American Institute in Taiwan, 79, 245–246, 796–798

American Servicemembers’ Protection Act (2002), 168–175

Americans with Disabilities Act (1990), 283–285

Anti-Ballistic Missile Treaty (1972), 1027–1028

termination, 198–202

Antigua, 757

Anti-suit injunctions, 864–873

Antiterrorism Act (1996), 523–525, 532

Arbitration

Convention on the Recognition and Enforcement of Foreign Arbitral

Awards, 197, 873–875

agreement as implied waiver of diplomatic immunity, 571–572

discovery for use in foreign tribunal, 875–877

New York Arbitration Convention, 618–619, 620–621

UNCITRAL arbitration rules, 618–619, 620–621

See also Dispute resolution, North American Free Trade Agreement

Argentina, human rights abuses in, 270–271

1094 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW

Armenia, sanctions against companies trading with Iran, 1069

Armed conﬂict

child protection in, 287–288, 293, 294–297

vs. law enforcement, in anti-terrorism effort, 904, 906

women and, 275–276