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Contemporary Practice of the United States Relating to International Law

Published online by Cambridge University Press:  27 February 2017

Sean D. Murphy
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American Journal of International Law , Volume 94 , Issue 3 , July 2000 , pp. 516 - 545
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Copyright © American Society of International Law 2000

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References

1 There are various sources describing the events of Elián’s arrival in the United States. Readers may wish to consult Gonzalez ex. rel. Gonzalez v. Reno, 86 F.Supp.2d 1167 (S.D. Fla. 2000). Elián, who was born on December 6, 1993, turned six during the course of the events herein described.

2 Temporary parole of an alien, such as a minor, may occur for “urgent humanitarian reasons or significant public benefit” under the Immigration and Nationality Act (INA), Pub. L. No. 82–414, §212(d) (5), 66 Stat. 163, 188(1952) (codified as amended at 8 U.S.C. §1182(d) (5) (Supp. IV1998)); see 8 C.F.R. §235.2 (2000). For a historical overview of the law and policy of INS detention of unaccompanied minors, see Lisa, Rodriguez Navarro, An Analysis of Treatment of Unaccompanied Immigrant and Refugee Children in INS Detention and Other Forms of Institutionalized Custody, 19 Chicano-Latino L. Rev. 589 (1998)Google Scholar. Individuals from Cuba who arrive in the United States are treated differently from other aliens. They may (1) apply for asylum, (2) remain in the United States and, after one year, apply for adjustment of status to that of lawful permanent resident, or (3) return to Cuba. Cuban Refugees: Adjustment of Status, Pub. L. No. 89–732, 80 Stat. 1161 (1966), amended by Pub. L. No. 94–571, 90 Stat. 2706 (1976) & Pub. L. No. 96–212, §203(i), 94 Stat. 108 (1980), reprinted in 8 U.S.C. §1255 note (1994).

3 The United States and Cuba do not have diplomatic relations. U.S. and Cuban representation is undertaken through interests sections organized under the auspices of the Swiss Embassies in Havana and Washington, D.C.

4 See DeYoung, Karen, Cuba Longs for a Little Boy, Wash. Post, Dec. 10, 1999, at A1 Google Scholar.

5 See 8 U.S.C. §§1101 (a)(42)(A) & 1158(b)(1) (Supp. IV 1998).

6 [Editor’s note: The UN Convention on the Rights of the Child, Nov. 20, 1989, 1577 UNTS 3, contains provisions invoked by both sides in the matter of Elian. Article 3(2) calls upon states to ensure the protection and care for a child that is necessary for his well-being, “taking into account” the rights and duties of his parents. Article 5 calls upon states to respect the responsibilities, rights, and duties of parents or, where applicable, extended family to provide appropriate direction and guidance to the child in the exercise of his rights under the Convention. Article 9 calls upon states to ensure that a child not be separated from his parents against his will, except when competent authorities determine that such separation is necessary for the best interests of the child (for example, in cases of abuse or neglect). Articles 10(1) and 22 appear to favor reunification of a child with his parents or other members of his family. Cuba is a party to this Convention, but the United States is not.]

7 [Editor’s note: Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 UST 6223, 606 UNTS 267. The United States is a party to this Protocol, but Cuba is not.]

8 [Editor’s note: Memorandum from Jeff Weiss, Acting Director, INS Office of International Affairs, to INS Asylum Officers, Immigration Officers & Headquarters Coordinators (Asylum and Refugees) (Dec. 10, 1998) (guidelines for children’s asylum claims) (on file at GWU).]

9 [Editor’s note: Office of the United Nations High Commissioner For Refugees, Handbook on Procedures and Criteria For Determining Refugee Status Under The 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (2d ed. 1992).]

10 Memorandum from Bo Cooper, INS General Counsel, to Doris Meissner, INS Commissioner 2–8, 10–11 (Jan. 3, 2000) (footnote omitted) (on file at GWU).

11 Doris Meissner, INS Commissioner, Press Release on INS Decision in the Elian Gonzalez Case (Jan. 5, 2000) <http://www.ins.usdoj.gov/graphics/publicaffairs/statements/Elian.htm; see Lewis, Neil A., U.S. Says It Agrees to Return Boy, 6, to Father in Cuba, N.Y. Times, Jan. 6, 2000, at A1 Google Scholar; DeYoung, Karen & Sue, Anne Pressley, U.S. Orders Return of Cuban Boy, Wash. Post, Jan. 6, 2000, at A1 Google Scholar.

12 Letter from Pearson, Michael A., INS Executive Associate Commissioner for Field Operations, to Lázaro González (Jan. 5, 2000)Google Scholar (on file at GWU).

13 Reno, Janet, U.S. Attorney General, Weekly Media Briefing (Jan. 6, 2000), obtainable from <http://www.usdoj.gov/ag/speeches/ Google Scholar; see Sue, Anne Pressley & DeYoung, Karen, Reno Won’t Reverse INS Decision to Return Boy to Cuba, Wash. Post, Jan. 7, 2000, at A2 Google Scholar.

14 See DeYoung, Karen, INS Rejects Request to Relocate Elian, Wash. Post, Feb. 19, 2000, at A23 Google Scholar.

15 See Bragg, Rick, Stand over Elián Highlights a Virtual Secession of Miami, N.Y. Times, Apr. 1, 2000, at A1 Google Scholar; Alvarez, Lizette, Irate Cuban-Americans Paralyze Miami, N.Y. Times, Jan. 7, 2000, at A13 Google Scholar.

16 H.R. 3531, 106th Cong. (2000); H.R. 3532, 106th Cong. (2000); S. 1999, 106th Cong. (2000); S. 2314, 106th Cong. (2000); see DeYoung, Karen, Rare Act of Congress Is Planned for Elian, Wash. Post, Jan. 16, 2000, at A3 Google Scholar; DeYoung, Karen, Battle over Cuban Boy Moves to Hill, Wash. Post, Jan. 28, 2000, at A3 Google Scholar. Both of the leading candidates for election to the U.S. presidency in November 2000—Vice President Albert Gore Jr. and Texas Governor George W. Bush—endorsed the legislation. See Sue, Anne Pressley & Harris, John F., Gore Backs Bill on Elian Status, Wash. Post, Mar. 31, 2000, at A1 Google Scholar.

17 See Alvarez, Lizette, Republicans Back Away from Their Indignation over Seizure of Cuban Boy, N.Y. Times, May 3, 2000, at A21 Google Scholar.

18 Arguably, granting such citizenship against the express wishes of Elian’s father would be a violation both of the constitutionally protected privacy interests at stake in the parent-child relationship, and of a person’s constitutional right to determine his or her citizenship. On a state’s limits under international law to confer its nationality, see Local Law and International Law Aspects, 8 Whiteman Digest §5.

19 See, e.g., Bragg, Rick, Custody Case like Elián’s Gets a Much Faster Ruling, N.Y. Times, Mar. 6, 2000, at A13 Google Scholar (describing a Feb. 29, 2000, order by a Florida state court sitting in Miami that a two-year-old child be returned to his father in Jordan, even though his mother had fled with him so that he could grow up in the United States, and that any custody issue should be decided in the courts of Jordan, where the boy was born and spent most of his life). For a comparably controversial Cold War case involving a U.S. court ordering that the custody of four children (one of whom was a U.S. national) be restored to their Soviet parents in the Soviet Union, see Repatriation, 8 Whiteman Digest §21, at 640.

20 Most cases concerning the return of children from one country to another involve competing claims by two estranged parents. International obligations regarding abducted children may be found in the Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, TIAS No. 11, 670, for states party to that Convention. The Convention provides that, in most circumstances, children under the age of 16 should be returned to the country where they had “habitually resided” before being abducted, and that any necessary custody hearings take place in that country. See Beaumont, Paul R. & Mceleavy, Peter E., The Hague Convention on International Child Abduction 88–113 (1999)Google Scholar. The United States is a party to the Convention, but Cuba is not. U.S. concern about noncompliance with the Convention recently has focused on Germany. See Letter from Mike DeWine, U.S. Senator, to Clinton, William J., U.S. President (May 17, 2000)Google Scholar (on file at GWU) (noting that “from 1990 to 1998, only 22 percent of American children for whom Hague applications were filed were returned to the United States from Germany—and that percentage includes those who were voluntarily returned by the abducting parent”); Loose, Cindy, Abduction Cases Draw Ire on Hill, Wash. Post, Mar. 24, 2000, at A4 Google Scholar.

21 Gonzalez ex rel Gonzalez v. Gonzalez-Quintana, No. 00–00479-FC-28, 2000 WL 419688 (Fla. Cir. Ct Jan. 10, 2000).

22 Letter from Reno, Janet, U.S. Attorney General, to Linda Oserg-Braun, Roger Bernstein, and Spencer Eig (Jan. 12, 2000)Google Scholar (on file at GWU), reprinted in part in Excerpts from Attorney General’s Letter on Cuban Boy, N.Y. Times, Jan. 13, 2000, at A21 Google Scholar; see Lewis, Neil A., Boy’s Fate Called a Federal Matter, N.Y. Times, Jan. 13, 2000, at A1 Google Scholar.

23 See Sue, Anne Pressley & DeYoung, Karen, Federal Suit Filed over Elian: Action Alleges Reno, INS Chief Violated Cuban Boy’s Rights, Wash. Post, Jan. 20, 2000, at A5 Google Scholar.

24 Gonzalez ex rel Gonzalez v. Reno, 86 F.Supp.2d 1167 (S.D.Fla. 2000).

25 Gonzalez ex rel. Gonzalez v. Reno, No. 00–11424-D, 2000 WL 381901 (11th Cir. Apr. 19, 2000).

26 See “We Are Elian’s True Family,” Wash. Post, Apr. 7, 2000, at A21 Google Scholar (translated excerpts of statement of Juan Miguel González upon arrival at Dulles International Airport).

27 See Dep’t of Justice Press Release on Statement of Attorney General Reno (Apr. 7, 2000), obtainable from <http://www.usdoj.gov/opa/pr/2000/April/.

28 Fla. Stat. ch. 751 (1999).

29 See Glockson v. Manna, 711 So.2d 1332 (Fla. Dist. Ct. App. 1998).

30 Gonzalez exrel Gonzalez v. Gonzalez-Quintana, No. 00–00479-FG-28, 2000 WL 492102 (Fla. Cir. CL Apr. 13, 2000).

31 See Sue, Anne Pressley & DeYoung, Karen, Elian’s Kin Defy Demand, Wash. Post, Mar. 29, 2000, at A3 Google Scholar.

32 See Letter from Pearson, Michael A., INS Executive Associate Commissioner for Field Operations, to Lázaro González (Apr. 12, 2000)Google Scholar (on file at GWU); Letter from Pearson, Michael A., INS Executive Associate Commissioner for Field Operations, to Lázaro González (Apr. 14, 2000)Google Scholar (on file at GWU). The revocation was pursuant to 8 U.S.C. §§1103, 1182(d) (5), 1225 (Supp. TV 1998) and 8 C.F.R. §§103.1, 212.5, 235.2, 236.3 (1999). Section 1182(d)(5) provides that “when the purposes of such parole shall, in the opinion of the Attorney General, have been served, the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.”

33 See DeYoung, Karen, U.S. Lets Elian Deadline Pass, Wash. Post, Apr. 14, 2000, at A1 Google Scholar.

34 See Bragg, Rick, Cuban Boy Seized by U. S. Agents and Reunited with His Father, N.Y. Times, Apr. 23, 2000, at 1 Google Scholar.

35 See DeYoung, Karen, U. S. to Let Friends from Cuba Visit Elian, Wash. Post, Apr. 26, 2000, at A1 Google Scholar.

36 See8 U.S.C. §1185(1994).

37 Brief for Appellant, Gonzalez ex rel. González v. Reno, No. 00–11424-D, 2000 WL 701613 (11th Cir. June 1, 2000) (filed Apr. 10). For Juan Miquel Gonzalez’s brief, see Brief of Intervenor Juan Miquel Gonzalez, Gonzalez ex rel. Gonzalez v. Reno, No. 00–11424-D, 2000 WL 701613 (11th Cir. June 1, 2000) (filed May 1).

38 [Editor’s Note: Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984); INS v. Aguirre-Aguirre, 526 U.S. 415 (1999), reprinted in 38 ILM 786 (1999).]

39 Brief for Appellees at 28–32, Gonzalez ex ret Gonzalez v. Reno, No. 00–11424-D, 2000 WL 701613 (11th Cir. June 1, 2000) (citation omitted) (filed Apr. 24).

40 Gonzalez ex. rel Gonzalez v. Reno, No. 00–11424-D, 2000 WL 502118 (11th Cir. Apr. 27, 2000) (decision on motion to intervene); Gonzalez ex rel. Gonzalez v. Reno, No. 00–11424-D (11th Cir. Apr. 27, 2000) (decision on motion of Miami relatives) (on file at GWU); see DeYoung, Karen, Court Rebuffs Miami Relatives, Lets Elian’s Father Enter Case, Wash. Post, Apr. 28, 2000, at A10 Google Scholar.

41 Gonzalez ex rel Gonzalez v. Reno, 212 F.3d 1338 (11th Cir. 2000).

42 Gonzalez ex rel. Gonzalez v. Reno, No. 00–11424-D, 2000 U.S. App. LEXIS 14481 (11th Cir. June 23, 2000).

43 Gonzalez, Lazaro v. Reno, No. 99–2079, 2000 U.S. LEXIS 4490 (U.S. June 28, 2000).

44 See Gonzalez, David & Alvarez, Lizette, Justices Allow Cuban Boy to Fly Home, N.Y. Times, June 29, 2000, at A1 Google Scholar.

1 The reports are submitted to Congress by the Department of State in compliance with the Foreign Assistance Act of 1961, Pub. L. No. 87–195, §§116(d), 502B, 75 Stat. 424 (current version at 22 U.S.C.S. §2151n. (MB 2000)), and the Trade Act of 1974, Pub. L. No. 93–618, §504, 88 Stat. 1978, 2070–71 (current version at 19 U.S.C. §2464 (Supp. IV 1998)).

2 U.S. Dep’t of State, Country Reports on Human Rights Practices For 1999 (Joint Comm. Print 2000), obtainable from <http://www.state.gov/www/global/human_rights/drl_reports.html.

3 Id.

4 U.S. Government Delegation to 56th Session of the UN Commission on Human Rights Statement on China’s “No Action Motion” (Apr. 18, 2000), obtainable from <http://www.humanrights-usa.net/.

5 U.S. Dep’t of State Press Release on Secretary of State Madeline K. Albright’s Address to the UN Human Rights Commission (Mar. 23, 2000), obtainable from <http://secretary.state.gov/www/statements/.

6 See Perlez, Jane, U.N. Rights Group Foils U.S. Effort to Condemn China, N.Y. Times, Apr. 19, 2000, at A1 Google Scholar.

1 For the U.S. report, see Sean D. Murphy, Contemporary Practice of the United States, 94 AJIL 357 (2000).

2 UN Press Release on Committee Against Torture, 24th Sess. (May 15, 2000), obtainable from <http://www.unhchr.ch/huricane/huricane.nsf/FramePage/PressRoom?OpenDocument (document dated May 16, 2000); see Olson, Elizabeth, U.S. Prisoner Restraints Amount to Torture, Geneva Panel Says, N.Y. Times, May 18, 2000, at A11 Google Scholar.

1 Migration and Refugee Assistance Act of 1962, Pub. L. No. 87–510, 76 Stat. 121 (current version at 22 U.S.C. §§2601–2606 (1994 & Supp. IV 1998)).

2 8 U.S.C. §§1101–1159 (1994 & Supp. IV 1998).

3 Foreign Assistance Act of 1961, Pub. L. No. 87–195, §§491–493, 75 Stat. 424 (codified at 22 U.S.C. §§2292–2292(b) (1994)).

4 Agricultural Trade Development and Assistance Act of 1954, Pub. L. No. 83–480, §§201–305, 68 Stat. 454, 457–459; see also Foreign Assistance Act of 1961, Pub. L. No. 87–195, §506(a) (2), 75 Stat. 424 (codified at 22 U.S.C. §2318(2) (A) (1994 & Supp. IV 1998)) (authorizing the drawdown of articles and services from any U.S. agency, up to a specified aggregate value per year, for purposes of either the refugee- or disaster-assistance program).

5 10 U.S.C. §401 (1994 & Supp. TV 1998).

6 10 U.S.C. §402 (1994).

7 10 U.S.C. §§404, 2551 (1994 & Supp. IV 1998).

8 10 U.S.C. §2547 (1994).

9 Interagency Review of U.S. Government Civilian Humanitarian and Transition Programs (Jan. 2000) <http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB30/index.html [hereinafter Interagency Review]. The report was released pursuant to a Freedom of Information Act (FOIA) request from the National Security Archive, a group that specializes in collecting government documents through FOIA requests and lawsuits. See Perlez, Jane, State Dept. Faults U.S. Aid for War Refugees As Inept, N.Y. Times, May 9, 2000, at A8 Google Scholar.

10 Interagency Review, supra note 9, Annex 1, at 2.

11 Id. at 5.

12 Id. §2, at 15–29.

13 Id. §l,at4.

14 Id.

1 As part of its “America Desk” initiative, begun under Secretary of State Warren Christopher, the Department of State established an Office of the Coordinator for Business Affairs (CBA) to support U.S. firms doing business overseas. Among other things, the CBA coordinates State Department advocacy on behalf of U.S. businesses and provides assistance in resolving trade and investment disputes. For information, see U.S. Dep’t of State Office of the Coordinator for Business Affairs Fact Sheet on What Is the America Desk? (Aug. 18, 1997) <http://www.state.gov/www/about_state/business/america_desk.html.

2 Letter from Wiss, Marcia A., Wilmer, Cutler & Pickering, to Sean D. Murphy, George Washington University Law School (Mar. 14, 2000)Google Scholar (recounting the Charlanka dispute and attaching the text of the diplomatic notes) (on file at GWU).

1 See Burgess, John, U.S. Seeks to Recover from WTO Decision, Wash. Post, Feb. 25, 2000, at E1 Google Scholar.

2 United States—Tax Treatment for “Foreign Sales Corporations,” WTO Doc. WT/DS108/AB/R (Feb. 24, 2000), available in 2000 WTO DS LEXIS 7. Reports issued under the WTO’s dispute settlement procedures are available online at <http://www.wto.org. For a detailed discussion of this case, see Langbein, Stanley I., Case Report: United States—Tax Treatment for Foreign Sales Corporations, 94 AJIL 546 (2000)Google Scholar.

3 See Agreement on Agriculture & Agreement on Subsidies and Countervailing Measures, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, The Results of The Uruguay Round of Multilateral Trade Negotiations: The Legal Texts 6, 39, 264 (1994).

4 United States—Tax Treatment for “Foreign Sales Corporations,” WTO Doc. WT/DS108/R (Oct. 8, 1999), available in 1999 WTO DS LEXIS 9, reprinted in 39 ILM 173 (2000).

5 Submission by the United States of America Before the World Trade Organization Appellate Body, pt. IV, para. 62, United States—Tax Treatment for “Foreign Sales Corporations,” WTO Doc. WT/DS108/AB/R (Feb. 24, 2000) (No. AB-1999–9) (on file at GWU).

6 Id., pt. VI, paras. 65–66 (footnote omitted).

7 Id., pt. VII.

8 Id, pt. X, paras. 313, 315.

9 U.S. Affirms to WTO It Will Comply with FSC Tax Ruling but Does Not Say When, 17 Int’l Trade Rep. (BNA) No. 15, at 595 (Apr. 13, 2000); see also U.S. Trade Representative Press Release on US Disappointed with WTO FSC Ruling, Vows to Work with EU to Reach Solution, No. 00–13 (Feb. 24, 2000), obtainable from <http://www.ustr.gov.

10 U.S. Dep’t of Treasury Press Release on Statement by Treasury Deputy Secretary Stuart E. Eizenstat at the U.S. Mission to the European Union (May 2, 2000), obtainable from <http://www.ustreas.gov/press/releases/; see also U.S. Outlines FSC Fix to Europeans, Offers Elective Regime for Foreign Sales, 17 Int’l Trade Rep. (BNA) No. 18, at 690 (May 4, 2000).

11 U.S. Dep’t of Treasury Press Release on Statement by Treasury Deputy Secretary Stuart E. Eizenstat (May 29, 2000), obtainable from <http://www.ustreas.gov/press/releases/; see also Burgess, John, U.S., EU Cannot Agree on Tax Law, Wash. Post, May 30, 2000, at E1 Google Scholar.

1 David Carpenter, U.S. Assistant Secretary of State for Diplomatic Sec, and Gallagher, Neil J., Assistant Dir. in Charge of the FBI Nat’l Sec. Div., U.S. Dep’t of State Press Briefing on Russian Diplomat Declared Persona Non Grata (Dec. 9, 1999)Google Scholar, obtainable from <http://www.state.gov/www/policy_remarks/1999/1999_index.html; Johnston, David & Risen, James, U.S. Expelling Russian Diplomat in Bugging of State Dept., N.Y. Times, Dec. 10, 1999, at A3 Google Scholar; Shenon, Philip, A Spy’s Bug Set Artfully in Woodwork, U.S. Concedes, N.Y. Times, Dec. 11, 1999, at A8 Google Scholar.

2 See Vienna Convention on Diplomatic Relations, Apr. 18, 1961, Art. 31, 23 UST 3227, 3240, 500 UNTS 95, 112.

3 Foley, James B., U.S. Deputy Spokesman, U.S. Dep’t of State Press Statement on Russian Diplomat Declared Persona Non Grata (Dec. 8, 1999), obtainable from <http://secretary.state.gov/www/briefings/statements/ Google Scholar.

1 On May 30, Faget was convicted of the charges. See Bragg, Rick, I.N.S. Official Is Convicted on Charges of Espionage, N.Y. Times, May 31, 2000, at A16 Google Scholar. Relevant provisions of the Espionage Act may be found at 18 U.S.C. §§793–794 (1994 & Supp. IV 1998).

2 See DeYoung, Karen, Cuba Won’t Withdraw Official, Wash. Post, Feb. 23, 2000, at A9 Google Scholar.

3 Foley, James B., U.S. Deputy Spokesman, U.S. Dep’t of State Press Statement on Cuban Diplomat (Feb. 19, 2000), obtainable from <http://secretary.state.gov/www/briefings/statements/ Google Scholar. The Vienna Convention on Diplomatic Relations, Apr. 18, 1961, Art. 9(2), 23 UST 3227, 3234, 500 UNTS 95, 102, provides that if the sending state “refuses or fails within a reasonable period” to recall or terminate the functions of a diplomatic agent who has been declared persona non grata, the receiving state may refuse to recognize the person as a member of the diplomatic mission.

4 See DeYoung, Karen, Cuban Diplomat Forcibly Expelled, Wash. Post, Feb. 27, 2000, at A1 Google Scholar.

5 Rubin, James P., U.S. Assistant Secretary of State and Spokesman, U.S. Dep’t of State Press Statement on Departed Cuban Diplomat (Feb. 26, 2000), obtainable from <http://secretary.state.gov/www/briefmgs/statements/ Google Scholar.

6 See Rubin, James P., U.S. Assistant Secretary of State and Spokesman, U.S. Dep’t of State Daily Press Briefing (Feb. 28, 2000), obtainable from <http://secretary.state.gov/www/briefings/ Google Scholar; Pearlstein, Steven, Cuban Deported by U. S. Defies Order to Leave Canada, Wash. Post, Mar. 1, 2000, at A11 Google Scholar; Pearlstein, Steven, Expelled Diplomat Returns to Cuba, Wash. Post, Mar. 3, 2000, at A24 Google Scholar.

1 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984 Google Scholar, S. Treaty Doc. No. 100–20 (1988), 1465 UNTS 85.

2 18 U.S.C. §§2340, 2340A & 2340B (1994).

3 Torture Victim Protection Act of 1991, Pub. L. No. 102–256, 106 Stat. 73 (1992) (codified at 28 U.S.C. §1350 note (1994)).

4 U.S. Dep’t of State, Country Reports on Human Rights Practices for 1997, at 625 (Joint Comm. Print 1998).

5 1 U.S. Dep’t of State, Country Reports on Human Rights Practices For 1998, at 738, 742 (Joint Comm. Print 1999).

6 The commission was created in 1960 by the Organization of American States (OAS). Since entry into force in 1978 of the American Convention on Human Rights, Nov. 22, 1969, 1144 UNTS 123, reprinted in 9 ILM 673 (1970), the commission has served as an organ (along with the Inter-American Court of Human Rights, located in San José, Costa Rica) for promoting fulfillment of the commitments of states under that Convention. Although the United States is not a party to the Convention, it serves as the host state for the OAS and the commission. As host state, the United States has agreed that it “shall take appropriate steps to facilitate transit to or from the Headquarters of . . . persons invited to the Headquarters by the Organization on official business,” but has concluded no specific arrangements for witness immunity. Headquarters Agreement, May 14, 1992, U.S.-O.A.S., Art. XV, § 1, S. Treaty Doc. No. 102–40 (1992) (with annexes; amended May 24 & 29, 1996); Agreement Relating to Privileges and Immunities, Mar. 20, 1975, U.S.-O.A.S., 26 UST 1025. By contrast, invitees before the Inter- American Court of Human Rights are expressly provided immunity under the Court’s headquarters agreement with Costa Rica. Convenio entre el Gobierno de la Republica de Costa Rica y la Corte Interamericana de Derechos Humanos [Agreement Between the Government of the Republic of Costa Rica and the Inter-American Court of Human Rights], Sept. 10, 1981, Costa Rica-O.A.S, Art. 26 (on file at GWU) .

7 See DeYoung, Karen & Adams, Lorraine, U.S. Frees Accused Torturer, Wash. Post, Mar. 11, 2000, at A1 Google Scholar; State Dept. Helped Peruvian Accused of Torture Avoid Arrest, N.Y. Times, Mar. 11, 2000, at A6 Google Scholar. By contrast, the State Department indicated that Radovan Karadžić, the president of the self-proclaimed Bosnian-Serb republic of “Srpska,” was not immune from civil suit brought based on his presence in New York at the invitation of the United Nations. Kadić v. Karadžić, 70 F.3d 232, 250 (2d Cir. 1995).

1 Fla. Stat. ch. 910.006(3) (d) (1999).

2 Id., ch. 910.006(5)(a)(1) (1999).

3 U.S. Const. Art. VI, cl. 2.

4 The Restatement (Third) provides that a country has jurisdiction to prescribe law with respect to its nationals wherever located and with respect to conduct outside its territory that has or is intended to have substantial effect within its territory. Restatement (Third) of The Foreign Relations Law of The United States §402 (1987). The reporters’ notes, however, assert that a state of the United States may not apply its laws to persons outside its territory merely on the basis that they are U.S. nationals, but that it may apply at least some of its laws to persons outside the state’s territory on the basis that they are citizens, residents, or domiciliaries of the state. Id., reporters’ note 5.

5 18 U.S.C. §7(8) (1994).

6 Stepansky v. State, 707 So.2d 877 (Fla. Dist. Ct. App. 1998).

7 U.S. Const. Art. I, §8, cl. 10.

8 Id., Art. II, §2, cl. 2. The Constitution specifically precludes states from entering into treaties. Id., Art. I, §10, cl. 1.

9 Id., Art. III, §2, cl. 1.

10 Florida v. Stepansky, 25 Fla. L. Weekly S297 (2000), available in 2000 Fla. LEXIS 769.

11 Id. (citation omitted).

1 The indictment was subsequently amended to drop some charges of inhuman treatment, unlawful confinement, and imprisonment of civilians, and of appropriation and plunder of private property. At the same time, it added eight cases of sexual assault, including rape. As a result, Nikolić is charged with 80 counts, the highest number of counts contained in a public indictment issued by the Tribunal. ICTY indictments may be found at <http://www.un.org/icty/ind-e.htm.

2 See Prosecutor v. Nikolić, Rule 61 Indictment Review, No. IT-94–2-R61 (Oct. 20, 1995), reprinted in 108 ILR 21 (1998).

3 NATO Press Release on Accused War Criminal Detained (Apr. 22, 2000), obtainable from <http://www.nato.int/sfor/advisory/2000/adv-2000.htm; NATO Arrests Bosnian Serb War-Crimes Suspect, N.Y. Times, Apr. 23, 2000, at 10 Google Scholar.

4 ICTY Press Release on Initial Appearance of Dragan Nikolic (Apr. 26, 2000) <http://www.un.org/icty/pressreal/p496-e.htm.

5 [Editor’s note: See Murphy, Sean D., Contemporary Practice of the United States, 93 AJIL 487 (1999)Google Scholar.]

6 Secretary of State Albright, Madeleine K., Remarks at the “Conflicts and War Crimes: Challenges for Coverage” Seminar for Editors (May 5, 2000), obtainable from <http://secretary.state.gov/www/statements/ Google Scholar.

1 Scheffer, David J., U.S. Ambassador at Large for War Crimes Issues, Address to I Corps Soldiers and Commanders, Fort Lewis, Washington (May 4, 2000), obtainable from <http://www.state.gov/www/policy_remarks/ Google Scholar.

2 Id.

3 Id.

4 Id.

1 See SC Res. 661 (Aug. 6, 1990); SC Res. 665 (Aug. 25, 1990).

2 The “oil-for-food” program has consisted of a series of six-month phases during which Iraq is limited to exports of oil up to a certain value. For the initial Security Council resolution authorizing the program, see SC Res. 986 (Apr. 14, 1995). In March 2000, the Security Council increased to $600 million the amount of money that Iraq may use under the program to purchase spare parts and equipment for oil production. See SC Res. 1293 (Mar. 31, 2000). For information on the program, see <http://www.un.org/Depts/oip/.

3 See Suro, Roberto & Lancaster, John, U.S. Navy Detains Russian Oil Tanker, Wash. Post, Feb. 4, 2000, at A25 Google Scholar.

4 See Becker, Elizabeth, U.S. Seizes Russia Tanker Said to Carry Oil from Iraq, N.Y. Times, Feb. 4, 2000, at A4 Google Scholar.

5 See Lynch, Colum, 2nd Russian Oil Tanker Boarded, Wash. Post, Apr. 8, 2000, at A13 Google Scholar; Steven, Lee Myers, Fining Shell, UN. Concludes That Tanker Carried Iraq Oil, N.Y. Times, Apr. 26, 2000, at A10 Google Scholar.

6 Bacon, Kenneth H., U.S. Assistant Secretary of Defense for Public Affairs, U.S. Dep’t of Defense News Briefing (Apr. 25, 2000), obtainable from <http://www.defenselink.mil/news/archive.html Google Scholar.

1 See Marine Pilot in Alps Case Gets 6 Months for Obstruction, Wash. Post, May 11, 1999, at A12 Google Scholar; Vogel, Steve, Marine Pilot Acquitted in Alps Deaths, Wash. Post, Mar. 5, 1999, at A1 Google Scholar. For further discussion of this incident, see Michael Reisman, W. & Sloane, Robert D., The Incident at Cavalese and Strategic Compensation, 94 AJIL 505 (2000)Google Scholar.

2 Department of Defense Appropriations Act, 1999, Pub. L. No. 105–262, §8114, 112 Stat. 2279, 2326 (1998).

3 See Families of Victims of Gondola Crash Settle, Wash. Post, Apr. 26, 2000, at A8 Google Scholar.

4 Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, June 19, 1951, Art. 8(5) (e), 4 UST 1792, 1806, 199 UNTS 67, 86.

1 [Editor’s note: Trade Act of 1974 §§301–310, 19 U.S.C. §§ 2411–2420 (1994 & Supp. IV 1998). As authority for the president’s action, the executive order cites these sections, as well as the Trade Act of 1974 §141, 19 U.S.C. §2171 (1994), the Public Health Service Act §307, 42 U.S.C. §2421 (1994), and the Foreign Assistance Act of 1961 §104, 22 U.S.C. §2151b (1994).]

2 [Editor’s note: TRIPS Agreement Article 27(2) provides that states need not extend protection to a patented invention if preventing commercial exploitation is necessary to protect human health.]

3 Exec. Order No. 13, 155, 65 Fed. Reg. 30, 521 (2000).

4 Lewis, Neil A., Clinton Order to Ease Availability of AIDS Drugs in Africa, N.Y. Times, May 11, 2000, at A7 Google Scholar.

6 UNAIDS Press Release on New Public/Private Sector Effort Initiated to Accelerate Access to HIV/AIDS Care and Treatment in Developing Countries (May 11, 2000) <http://www.unaids.org/whatsnew/press/eng/geneval10500.html.

1 See Miller, Bill, U.S. Court Rejects Guatemala Suit, Wash. Post, Dec. 31, 1999, at A10 Google Scholar.

2 503 U.S. 258(1992).

3 In re Tobacco/Governmental Health Care Costs Litigation, 83 F.Supp.2d 125, 130–33 (D.D.C. 1999)Google Scholar.

4 Id. at 133.

5 Id. at 133–34 (footnotes omitted) (citation omitted).

1 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Nov. 14, 1970, 10 ILM 289, 823 UNTS 231. The Convention was implemented through the Convention on Cultural Property Implementation Act, Pub. L. No. 97–446, §§301–315, 96 Stat. 2329, 2350–63 (1983) (codified as amended at 19 U.S.C. §§2601–2613 (1994 & Supp. IV 1998)).

2 See, e.g., Memorandum of Understanding Concerning the Imposition of Import Restrictions on Certain Categories of Archaeological Material from the Prehispanic Cultures of the Republic of El Salvador, Mar. 8, 1995, U.S.-E1 Sal., TIAS No. 12609 (extended on Feb. 14, 2000).

3 See 19 C.F.R. §§12.104–12.109 (1999).

4 Information from the database may be accessed at <http://www.usdoj.gov/usncb/cultprop/stolen/culturestolen.htm.

5 search (Apr. 14, 2000), obtainable from <www.state.gov/www/policy_remarks/ Google Scholar.