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Protection of Embassy Properties as a Discretionary Function

Published online by Cambridge University Press:  27 February 2017

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Contemporary Practice of the United States Relating to International Law
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American Journal of International Law , Volume 95 , Issue 4 , October 2001 , pp. 873
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Copyright © American Society of International Law 2001

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References

* Murphy wishes to acknowledge the superb research assistance provided by Anna Conley, Benjamin Gould, Matthew Haws, and Grant Willis for volume 95.

1 Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 UST 3227, 500 UNTS 95.

2 Vienna Convention on Consular Relations, Apr. 24, 1963, 21 UST 77, 596 UNTS 261.

3 Ignatiev v. United States, 238 F.3d 464, 465–66 (D.C. Cir. 2001).

1 28 U.S.C. §1350 note (1994).

2 See Jillian, Reilly, Let Them Pursue at Least Symbolic Justice, Wash. Post, Feb. 18, 2001, at B5 Google Scholar.

3 [Editor’s Note: Gerritsen v. de la Madrid, No. CV 85–5020–PAR (CD. Cal. Feb. 5, 1986), rev’d as to other defendants on other grounds, 819 F.2d 1119 (9th Cir. 1987).]

4 [Editor’s Note: Estate of Domingo v. Marcos, No. C82–1055V (W.D. Wash. July 14, 1983).]

5 Suggestion of Immunity Submitted by the United States of America at 3–8 (Feb. 23, 2001), Tachiona v. Mugabe, 00 Civ. 6666 (VM) (S.D.N.Y.) (footnotes omitted).

6 28 U.S.C. §§1602–1611 (1994).

7 Government’s Memorandum of Law in Reply to Plaintiffs’ Answering Brief Concerning Defendants’ Immunity at 9, 12–13 (June 1, 2001), Tachiona v. Mugabe, 00 Civ. 6666 (VM) (S.D.N.Y.).

1 U.S. General Accounting Office, United Nations: Targeted Strategies Could Help Boost U.S. Representation, Rep. No. GAO-01-839 (July 2001).

2 Id. at 8.

3 Id. at 8–9.

4 Id. at 9–10.

5 Id. at 10.

6 Id.

1 For background on the selection process for members of the UN Human Rights Commission, see Howard Tolley, The U.N. Commission on Human Rights 10–11 (1987); The Charter of the United Nations: A Commentary 871–75 (Bruno, Simma ed., 1995)Google Scholar (discussing ECOSOC voting procedures); Rules of Procedure of ECOSOC, UN Doc. E/5715/Rev.l (1983).

2 See Barbara, Crossette, U.S. Is Voted Off Rights Panel of the U.N. for the First Time, N.Y. Times, May 4, 2001, at A12 Google Scholar. For the composition of the UN Human Rights Commission after the election, see Office of the High Commissioner for Human Rights, United Nations Commission on Human Rights Membership for the 58th Session (2002), at <http://www.unhchr.ch/html/menu2/2/chr.htm>.

3 See, e.g., Harold, Hongju Koh, A Wake-up Call on Human Rights, Wash. Post, May 8, 2001, at A23 Google Scholar.

4 See U.S. Dep’t of State Daily Press Briefing at 4 (May 4, 2001), at <www.state.gov>; Marc, Lacey, U.S. Attacks Rights Group for Ousting It as a Member, N.Y. Times, May 5, 2001, at A4 Google Scholar (quoting a White House spokesman that a “Commission that purports to speak out on behalf of human rights, that now has Sudan and Libya as members and doesn’t have the United States as a member, I think may not be perceived as the most powerful advocate of human rights in the world”).

1 See Beazley v. Johnson, 242 F.3d 248, 253 (5th Cir. 2001).

2 International Covenant on Civil and Political Rights, opened for signature Dec. 19, 1966, Art. 6(5), S. Exec. Doc. 36 E, 95–2, at 23 (1978), 999 UNTS 171, 175.

3 138 Cong. Rec. 8070–71 (Apr. 2, 1992).

4 See General Comment Adopted by the Human Rights Committee Under Article 40, Paragraph 4, of the International Covenant on Civil and Political Rights, UN Doc. CCPR/C/21/Rev.1/Add.6 (1994).

5 242 F.3d at 266–68 (footnotes omitted). Although the U.S. court of appeals dismissed the petition, the Texas Court of Criminal Appeals on August 15, 2001, stayed Beazley’s execution in order to consider arguments as to whether Beazley’s initial appellate lawyer in the state court proceedings was incompetent and had failed to raise certain important issues, such as Beazley’s age (he was seventeen at the time of the crime) and potential racial bias among the jurors. See Jim, Yardley, Texas Execution Is Halted by State Court of Appeals, NY. Times, Aug. 16, 2001, at A10 Google Scholar.

1 See United States v. Flores, 63 F.3d 1342 (5th Cir. 1995).

2 United States v. Garza, 165 F.3d 312 (5th Cir. 1999).

3 May 2, 1948, OAS Res. XXX, International Conference of American States, 9th Conf., OAS Doc. OEA/Ser. L/V/I.4 Rev. II (1948), reprinted in Burns, H. Weston, 3 International Law and World Order: Basic Documents, at III.B.23 (1994)Google Scholar.

4 Case 12.243, Inter-Am. C.H.R., paras. 92–95 (Apr. 4, 2001), at <http://www.cidh.org/annualrep/2000eng/chapterIII/merits/usal2.243.htm>.

5 Id., para. 92.

6 Id., para. 105

7 Id., paras. 110–11.

8 Id., para. 120.

9 [Editor’s Note: American Convention on Human Rights, opened for signature Nov. 22, 1969, 1144 UNTS 123.]

10 Garza v. Lappin, 253 F.3d 918, 924–25 (7th Cir. 2001).

1 North American Free Trade Agreement, Dec. 17, 1992, Can.-Mex.-U.S., 32 ILM 289 & 605 (1993) (entered into force Jan. 1, 1994) [hereinafter NAFTA]. Many of the pleadings and decisions in NAFTA cases may be found at <http://www.state.gov/s/1/index.cfm?id=3439> and at <http://www.naftaclaims.com>. Canada maintains an Internet site, <http://www.dfait-maeci.gc.ca/tna-nac/NAFTA-e.asp>, on NAFTA Chapter 11 cases to which it is a party. The International Centre for Settlement of Investment Disputes also maintains documentation on the cases arbitrated under its auspices, at <http://www.worldbank.org/icsid/>. All of the parties’ submissions discussed in this section are on file at GWU.

2 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, Mar. 18, 1965, 17 UST 1270, 575 UNTS 159.

3 The rules are available on the Internet at <http://www.worldbank.org/icsid/facility/facility.htm>.

4 15 ILM 701 (1976), available at <http://www.uncitral.org>.

5 NAFTA, supra note 1, Art. 1120.

6 Submissions by the United States are made either as a party in the Chapter 11 proceeding or pursuant to NAFTA Article 1128, which allows NAFTA states parties to make submissions to NAFTA tribunals even without being parties to the disputes.

7 NAFTA, supra note l, Art. 1102(1), (2).

8 Pope & Talbot, Inc. v. Canada, Merits, Phase 2 (NAFTA Ch. 11 Arb. Trib. Apr. 10, 2001) [hereinafter Pope & Talbot arbitration]. Pope & Talbot is an Oregon-based timber company that operates three sawmills in British Columbia, Canada. Pursuant to a May 29, 1996, U.S.-Canada softwood lumber agreement, Canada was required to allocate quotas to Canadian companies for the export from certain Canadian provinces to the United States of lumber. Pope & Talbot was unsatisfied with the quotas allocated to its Canadian sawmills. Although Canada conducted a verification review to determine whether its allocations of quotas were correct, that review took place in Canada and required Pope & Talbot to produce in Canada its sales and production records for review. Pope & Talbot’s quotas were not changed. On March 25, 1999, the company initiated NAFTA arbitration, charging that Canada’s action violated Canada’s obligations under NAFTA relating to national treatment, minimum standard of treatment, performance requirements, and expropriation.

9 Second Submission of the United States of America at 1–2 (May 25, 2000), Pope & Talbot arbitration, supra note 8; see Submission of the United States of America (Apr. 7, 2000), Pope & Talbot arbitration, supra note 8 (setting forth further views on the national treatment standard).

10 NAFTA, supra note 1, Art. 1105(1).

11 S.D. Myers, Inc. v. Canada, Partial Award (NAFTA Ch. 11 Arb. Trib. Nov. 13, 2000). S.D. Meyers (SDMI) was a U.S. corporation that was active during the 1980s and 1990s in polychlorinated biphenyl (PCB) remediation activities. Those activities principally involved the identification and extraction of PCBs from contaminated equipment and oil, followed by destruction of the PCBs and PCB waste material at SDMI’s facility in Ohio. As the U.S. market for this service declined in the early 1990s, SDMI became interested in providing its services to Canadian entities. In 1995, however, Canada banned the export of PCBs from Canada. On October 30, 1998, SDMI filed a notice of arbitration under NAFTA Chapter 11. SDMI claimed that Canada’s action violated its NAFTA obligations with respect to expropriation, national treatment, minimum standard of treatment, and performance requirements. Canada denied the allegations.

12 Id., paras. 264–69.

13 [Editor’s Note: Mann, F. A., British Treaties for the Promotion and Protection of Investments, 52 Brit. Y.B. Int’l L. 241, 243 (1981)Google Scholar.]

14 Fifth Submission of the United States of America at 2–3 (Dec. 1, 2000), Pope & Talbot arbitration, supra note 8 (citations omitted).

15 Pope & Talbot arbitration, supra note 8, paras. 110–13.

16 Id., para. 114 (footnotes omitted).

17 Methanex Corp. v. United States (NAFTA Ch. 11 Arb. Trib.). Methanex is a Canadian producer and marketer of methanol, which is used to create a fuel additive known as methyl tertiary butyl ether (MTBE). Methanex supplies methanol to Californian and other MTBE producers. On March 25, 1999, the governor of California signed an executive order that found, on balance, that there was significant risk to the environment from using MTBE in gasoline in California. Consequently, the executive order required the phasing out of MTBE as a fuel additive. In October 1999, this phaseout was codified in California law. Methanex initiated arbitration under NAFTA Chapter 11, claiming that California’s actions constituted violations by the United States of its NAFTA obligations regarding both minimum standards of treatment and expropriation.

18 For further discussion of this point, see infra pp. 887–89.

19 Reply Memorial of Respondent United States of America on Jurisdiction, Admissibility and the Proposed Amendment at 22–23 (Apr. 12, 2001), Methanex Corp. v. United States.

20 NAFTA, supra note 1, Art. 1110(1).

21 Metalclad Corp. v. Mexico, Award (NAFTA Ch. 11 Arb. Trib. Aug. 30, 2000), 40 ILM 36 (2001); see William, S. Dodge, Case Report: Metalclad Corporation v. Mexico, 95 AJIL 910 (2001)Google Scholar. In this case, the Mexican federal government in 1990 authorized a Mexican company, Confinamiento Tenico de Residuos Industriales, S.A. (COTERIN), to construct and operate a transfer station for hazardous–waste landfill in the Mexican state of San Luis Potosi (SLP). In 1993, COTERIN received a federal permit to construct a hazardous-waste landfill. Shortly thereafter, a U.S. corporation, Metalclad, purchased COTERIN, the landfill site, and associated permits. Although there was some local opposition to construction of the landfill, Metalclad believed that COTERIN had secured all the necessary approvals from federal and SLP authorities, and it therefore began construction of the landfill in May 1994.

In October 1994, the local municipality of Guadalcazar ordered that the construction cease due to the absence of a municipal construction permit. Metalclad applied for the municipal permit but continued with construction of the site, which was completed March 1995. In November 1995, the company concluded an agreement with subagencies of the federal government allowing for operation of the landfill. In December, Metalclad’s application for the municipal permit was denied. In January 1996, the municipality obtained an judicial injunction barring Metalclad from conducting hazardous–waste landfill operations. In September 1997, SLP’s governor issued an “ecological decree” declaring the area with the landfill to be a natural area for the protection of rare cactus. In anticipation of such an outcome, Metalclad had initiated NAFTA arbitration proceedings against the government of Mexico in January 1997.

22 Submission of the Government of the United States at para. 10 (Nov. 9, 1999), Metalclad Corp. v. Mexico.

23 Metalclad Corp. v. Mexico, para. 103.

24 Id., paras. 104–12.

25 Pope & Talbot, Inc. v. Canada, Interim Award, para. 104 (NAFTA Ch. 11 Arb. Trib. June 26, 2000). The tribunal found that no expropriation had occurred.

26 S.D. Myers, Partial Award, paras. 279–88 (NAFTA Ch. 11 Trib. Nov. 13, 2000). The tribunal found that no expropriation had occurred.

1 See Metalclad Corp. v. Mexico, Award, para. 13 (NAFTA Ch. 11 Arb. Trib. Aug. 30, 2000), 40 ILM 36, 39 (2001) (discussing and quoting from the tribunal’s October 1997 order on confidentiality).

2 Loewen Group v. United States, Decision on Hearing of Respondent’s Objection to Competence and Jurisdiction, paras. 25–26, 28 (NAFTA Ch. 11 Arb. Trib. Jan. 9, 2001) (discussing the tribunal’s September 1999 and June 2000 orders on confidentiality).

3 See Methanex Corp. v. United States, Procedural Order Regarding Disclosure and Confidentiality (NAFTA Ch. 11 Arb. Trib. Sept. 7, 2000). The tribunal’s order contains as an appendix a “confidentiality agreement” to be used by parties when disclosing confidential documents to witnesses or to experts or consultants retained to assist in the case.

4 The nongovernmental organizations were International Institute for Sustainable Development (based in Canada) and Earth Island Institute and Communities for a Better Environment (both based in the United States).

5 See Methanex Corp. v. United States, Decision of the Tribunal on Petitions from Third Persons to Intervene as “Amici Curiae, ” para. 53 (NAFTA Ch. 11 Arb. Trib. Jan. 15, 2001).

6 Id., para. 42.

7 [Editor’s Note: NAFTA Article 1120(2) provides: “The applicable arbitration rules shall govern the arbitration except to the extent modified by this Section.”]

8 Free Trade Commission Clarifications Related to NAFTA Chapter 11 (July 31, 2001), at <http://www.ustr.gov/regions/whemisphere/>. NAFTA Article 2102 addresses issues of national security. NAFTA Article 2105 allows for nondisclosure of information that, if disclosed, “would impede law enforcement or would be contrary to the Party’s law protecting personal privacy or the financial affairs and accounts of individual customers of financial institutions.”

1 See supra p. 884 n. 17.

2 See supra p. 882 n.8.

3 North American Free Trade Agreement, Dec. 17, 1992, Can.-Mex.-U.S., 32 ILM 289 & 605 (1993) (entered into force Jan. 1, 1994).

4 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331, reprinted in 8 ILM 679 (1969).

5 [Editor’s Note: Article 31(1) states: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Article 31 (3) (a) provides that when interpreting a treaty, there “shall be taken into account, together with the context . . . any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions . . . . “]

6 [Editor’s Note: Article 32 states: “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.”]

7 [Editor’s Note: Article 28 provides: “Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to the party.”]

8 Response of Respondent United States of America to Methanex’s Post–Hearing Submission at 2–6 (July 27, 2001), Methanex v. United States (NAFTA Ch. 11 Arb. Trib.) (footnotes omitted) (on file at GWU).

9 Free Trade Commission Clarifications Related to NAFTA Chapter 11 (July 31, 2001), at <http://www.ustr.gov/regions/whemisphere/>.

1 James, K. Robinson, U.S. Dep’t of Justice Assistant Attorney General, Internet as the Scene of Crime , International Computer Crime Conference, Oslo, Norway (May 29–31, 2000)Google Scholar, at <http://www.usdoj.gov/criminal/cybercrime/roboslo.htm>

2 COE European Committee on Crime Problems, Final Activity Report, Draft Convention on Cyber-Crime and Explanatory Memorandum Related Thereto, COE Doc. CDPC (2001) 17, Add. 1 (June 29, 2001), available, at <http://conventions.coe.int/treaty/en/projets/FinalCybercrime.htm> [hereinafter Draft Convention on Cyber-Crime]. The Council of Europe comprises 43 European states, including all members of the European Union. The United States is not a member.

3 Id., Arts. 2–8.

4 Id., Art. 9.

5 Id., Art. 9(2) (c). A federal statute banning such “virtual” child pornography was found to violate the First Amendment of the U.S. Constitution in Free Speech Coalition v. Reno, 198F.3d 1083 (9th Cir. 1999), but was upheld in United States v. Acheson, 195 F.3d 645 (11 th Cir. 1999), and United States v. Hilton, 167 F.3d 61 (1st Cir. 1999). As of late 2001, Free Speech Coalition was on the docket of the U.S. Supreme Court for review.

6 Draft Convention on Cyber–Crime, supra note 2, Art. 10.

7 Id., pmbl.

8 Id., Arts. 18(1) (b), 21 (1) (b).

9 See, e.g., Global Internet Liberty Campaign Press Release on Member Letter on Council of Europe Convention on Cyber-Crime (Dec. 12, 2000), at <http://www.gilc.org/privacy/coe–letter–1200.html>.

10 Draft Convention on Cyber-Crime, supra note 2, Art. 23.

11 Id., Art. 24.

12 Id., Arts. 25–34.

13 Id., Art. 35.

1 For a more detailed discussion of the problems associated with persistent organic pollutants (POPs), and of the effort to address those problems through a new treaty, see Peter, D. Lallas, The Stockholm Convention on Persistent Organic Pollutants, 95 AJIL. 692, (2001)Google Scholar.

2 See Agenda 21: Program of Action for Sustainable Development, Rio de Janeiro, para. 19.75, UN Doc. A/CONF.151/26 (3 vols. 1992).

3 UNEP Governing Council Decision 19/13C (Feb. 7, 1997), at <http://irptc.unep.ch/pops/>.

4 Opened for signature May 23, 2001, UN Doc. UNEP/POPS/CONF/4, App. II (2001), reprinted in 40 ILM 532 (2001) [hereinafter Stockholm Convention]. The text of the convention and additional information about POPs is available at the Internet site of the United Nations Environment Programme, <http://irptc.unep.ch/pops/>.

5 Id., Art. 3. POPs to be eliminated are listed in Annex A. POPs to be restricted are listed in Annex B.

6 Id., Art. 5. POPs “formed and released unintentionally from anthropogenic sources, ” along with important source categories, are listed in Annex C.

7 Id., Art. 6.

8 Id., Art. 4(4).

9 Id., Arts. 21–22.

10 Id., Art. 9.

11 Id., Art. 10.

12 Id., Art. 11.

13 Id., Arts. 12–14.

14 Id., Art. 15.

15 Remarks Announcing Support for the Stockholm Convention on Persistent Organic Pollutants, 37 Weekly Comp. Pres. Doc. 630, 630–31 (Apr. 19, 2001).

16 Pesticides are regulated under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§136–136y (1994).

17 See Toxic Substances Control Act, 15 U.S.C. §§2601–2692 (1994) (PCBs are addressed in §2605(e)).

18 See U.S. Dep’t of State Fact Sheet on Overview on Persistent Organic Pollutants (POPS): What the United States Has Done and What the Global Convention Will Do (Nov. 29, 2000), at <http://www.state.gov/www/global/oes/fs-001129_pops_overview.html>.

1 COMSAT was created under the Communications Satellite Act of 1962, 47 U.S.C. §§731–744 (1994). For background on the establishment of COMSAT, see Joseph, N. Pelton, Global Communications Satellite Policy 50–51 (1974)Google Scholar.

2 GA Res. 1721, UN GAOR, 16th Sess., Supp. No. 17, at 6, 7, §D, UN Doc. A/5100 (1962).

3 Agreement Establishing Interim Arrangements for a Global Commercial Communications Satellite System, opened for signature Aug. 20, 1964, 15 UST 1705, 574 UNTS 25 (an international agreement registered with the United Nations); Special Agreement, opened for signature Aug. 20, 1964, 15 UST 1745, 574 UNTS 48 (a contractual arrangement between participating governments and certain public corporations). A successor INTELSAT organization was created by two new agreements in 1973. See Agreement Relating to the International Telecommunications Satellite Organization (INTELSAT), with Annexes, openedfor signature Aug. 20, 1971, 23 UST 3813, 1220 UNTS 21; Operating Agreement Relating to the International Telecommunications Satellite Organization (INTELSAT), with Annex, opened for signature Aug. 20, 1971, 23 UST 4091, 1220 UNTS 149.

4 See Barnaby, J. Feder, Satellite Company Is Trying Life on Its Own, N.Y. Times, July 23, 2001, at C4 Google Scholar. Information on INTELSAT’S current operations may be found at <http://www.intelsat.com>.

5 See Feder, supra note 4.

6 Pub. L. No. 106-180, 114 Stat. 48 (2000) (codified in scattered sections of 47 U.S.C).

7 Intelsat Press Release on Historic Assembly Says “All Systems Go” for 2001: Intelsat Privatization Plan and Schedule Formally Approved by Governments (Nov. 20, 2000), at <http://www.intelsat.com/news/press/2000-26e.asp>.

8 See Intelsat Press Release on Intelsat Launches New Era as Private Company (July 18, 2000), at <http://www.intelsat.com/news/press/2001-15e.asp>.

1 United States v. Iran, Dec. No. 130-A28-FT, para. 95 (Iran.-U.S. CI. Trib. Dec. 19, 2000), at 2000 WL 1901311. For a discussion of the case, see Sean, D. Murphy, Contemporary Practice of the United States, 95 AJIL 414 (2001)Google Scholar.

2 2000 WL at 190319, para. 1.

3 Id., paras. 2, 5.

4 See Sean, D. Murphy, Contemporary Practice of the United States, 94 AJIL 378 (2000)Google Scholar.

5 The Rules of Procedure of the Iran-United States Claims Tribunal provide:

The arbitral tribunal shall deliberate in private. Its deliberations shall be and remain secret. The Secretary-General may be present. No other person may be admitted except by special decision of the arbitral tribunal. Any question which is to be voted upon shall be formulated in precise terms in English and Farsi and the text shall, if a member so requests, be distributed before the vote is taken. The minutes of the private sittings of the arbitral tribunal shall be secret.

Iran-U.S. Claims Tribunal, Rules of Procedure, Art. 31, note 2 (provisionally adopted May 3, 1983, as amended May 27, 1997), reprinted in David, D. Caron & John, R. Crook, The Iran-United States Claims Tribunal and the Process of International Claims Resolution 433, 462 (2000)Google Scholar.

6 Decision of the Appointing Authority to the Iran-U.S. Claims Tribunal at 5–6 (May 7, 2001) (on file at GWU).

7 Mat 8, 10–11.

1 The Hague Convention on the Civil Aspects of International Child Abduction, opened for signature Oct. 25, 1980, TIAS No. 11, 670, 1343 UNTS 89 [hereinafter Child Abduction Convention]. For an analysis of the Convention, see Paul, R. Beaumont & Peter, E. Mceleavy, The Hague Convention on International Child Abduction (1999)Google Scholar.

2 Child Abduction Convention, supra note 1, pmbl.

3 42 U.S.C. §§11601–11610 (Supp. V 1999).

4 Child Abduction Convention, supra note 1, Art. 3 (emphasis added).

5 Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001).

6 Id. at 1069. The oldest of the children decided to return to Israel, and did so by mutual agreement of the parents. Id.

7 Mozes v. Mozes, 19 F.Supp.2d 1108 (CD. Cal. 1998).

8 239 F.3d at 1071 (quoting C v. S, [1990] 2 All E.R. 961, 965 (H.L.)).

9 Id. at 1072.

10 Id. at 1073–74, 1076, 1081. “Habitual residence is intended to be a description of a factual state of affairs, and a child can lose its habitual attachment to a place even without a parent’s consent.” Id. at 1081.

11 Id. at 1084.

12 See 42 U.S.C. §11603(e)(2)(A), (B); see also Child Abduction Convention, supra note 1, Arts. 12, 13(b), 20.

13 Child Abduction Convention, supra note 1, Art. 13(b).

14 Blondin v. Dubois, 19 F.Supp.2d 123 (S.D.N.Y. 1998). The Second Circuit Court of Appeals vacated this initial decision and remanded the case for further proceedings, asking the district court to determine whether any arrangements might be made that would mitigate the risk of harm to the children from repatriation. Blondin v. Dubois, 189 F.3d 240 (2d Cir. 1999). The district court then found that return to France under any circumstances would cause the children psychological harm. Blondin v. Dubois, 78 F.Supp.2d 283, 297 (S.D.N.Y. 2000).

15 Blondin v. Dubois, 238 F.3d 153, 155 (2d Cir. 2001).

16 Id. at 162.

17 Id. (quoting Friedrich v. Friedrich 78 F.3d 1060, 1069 (6th Cir. 1996)).

18 Id. at 160–61.

19 Id. at 166; see Child Abduction Convention, supra note 1, Art. 13.

20 234 F.3d 268, 270 (5th Cir. 2000).

21 Id. at 272. For other recent cases dealing with the exceptions to repatriation, see March v. March, 2001 U.S. App. LEXIS 7110 (6th Cir. Apr. 19, 2001); Bekier v. Bekier, 248 F.3d 1051 (11 th Cir. 2001); Pesin v. Rodriguez, 244 F.3d 1250 (11th Cir. 2001) (precluding consideration of the matter under the fugitive disentitlement doctrine); Miller v. Miller, 240 F.3d 392 (4th Cir. 2001); Dorinou v. Mezitis, 237 F.3d 133 (2d Cir. 2001); Tsarbopoulos v. Tsarbopoulos, 2000 WL 1721800 (9th Cir. Nov. 17, 2000); Kanth v. Kanth, 2000 WL 1644099 (10th Cir. Nov. 2, 2000); Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000); Croll v. Croll, 229 F.3d 133 (2d Cir. 2000); Walsh v. Walsh, 221 F.3d204 (1st Cir. 2000); Toren v. Toren, 191 F.3d 23 (1st Cir. 1999); Shalitv. Coppe, 182F.3dll24 (9th Cir. 1999).

1 Opened for signature Apr. 10, 1972, 26 UST 583, 1015 UNTS 163.

2 See S.C. Res. 687, para. 7 (Apr. 3, 1991) (inviting Iraq to ratify the Convention).

3 See Special Conference of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Final Report, Doc. BWC/SPCCONF/1 (1994). Several of the documents associated with the drafting of the protocol to the Convention are obtainable from <www.brad.ac.uk/acad/sbtwc/btwc/docs.htm>.

4 See Fourth Review Conference of the Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Final Document, Pt. II, Art. XII(2), Doc. BWC/CONF.IV/9 (1996).

5 See Procedural Report of the Ad Hoc Group of States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Docs. BWC/AD HOC GROUP/56-1 & 56-2 (2001). The first of the two documents contains the procedural report, as well as the ad hoc group’s “rolling text” (Annex A). The second document includes the chairman’s composite text as Annex B.

6 Donald, A. Mahley, Special Negotiator for Chemical and Biological Arms Control Issues, Statement to the Ad Hoc Group of Biological Weapons Convention States Parties (July 25, 2001)Google Scholar, at <http://www.state.gov>; see Vernon, Loeb, U.S. Won’t Back Plan to Enforce Germ Pact, Wash. Post, July 21, 2001, at A1 Google Scholar.

7 See U.S. Dep’t of State Daily Press Briefing, Phillip, T. Reeker, Deputy Spokesman (July 25, 2001)Google Scholar, at <http://www.state.gov/r/pa/prs/dpb/2001/>; Glenda, Cooper, U.S. Rejects Biological Arms Ban Protocol, Wash. Post, July 26, 2001, at A1 Google Scholar.

8 See Judith, Miller, U.S. Explores Other Options on Preventing Germ Warfare, N.Y. Times, July 25, 2001, at A4 Google Scholar.

1 GA Res. 54/54 (Dec. 1, 1999); UN Press Release on United Nations Conference on the Illicit Trade in Small Arms 10th Meeting and Round-up (July 21, 2001) [hereinafter Round-up], at <http://www.un.org/News/Press/docs/2001/DC2795.doc.htm>.

2 See Colum, Lynch, U.S. Fights U.N. Accord to Control Small Arms, Wash. Post, July 10, 2001, at A1 Google Scholar; see also Barbara Crossette, Effort by UN. to Cut Traffic in Arms Meets a U.S. Rebuff, N.Y. Times July 10, 2001, at A6. For information generally on U.S. arms sales to developing states, see Congressional Research Service, Conventional Arms Transfer to Developing Nations, 1992–1999, CRS Doc. No. RL30640 (Aug. 18, 2000).

3 [Editor’s Note: 22 U.S.C. §§2750–2799 (1994).]

4 [Editor’s Note: 22 C.F.R. §§120–130 (1999).]

5 John, R. Bolton, Under Secretary of State for Arms Control and International Security, Address to UN Conference on the Illicit Trade in Small Arms and Light Weapons in All Its’ Aspects (July 9, 2001)Google Scholar, at <http://www.state.gov/t/us/rm/2001/>.

6 See Colum, Lynch, Nations Reach Pact on Trade of Small Arms, Wash. Post, July 22, 2001, at A17 Google Scholar.

7 See Draft Program of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, UN Doc. A/Conf.l92/L.5/Rev.1 (July 20, 2001), available at <http://www.un.org/Depts/dda/CAB/smallarms/>; see also Colum, Lynch, Nations Try to Salvage Voluntary Gun Accord, Wash. Post, July 21, 2001, at A19 Google Scholar.