International Judicial Observer

NEWS AND COMMENTARY OF INTEREST TO JUDGES AROUND THE WORLD

A joint publication of the Federal Judicial Center and the American Society of International Law • Number 1 • September 1995

mend the agenda of the October conference

and to draft a proposed structure for the

organization of supreme courts.

Following the planning committee meeting, Judge Torruella noted “the underlying

importance that this area of the world [Latin

American and the Caribbean] has to the

judicial systems of the United States, both

federal and state.”

He said that “sound policy” calls for the

improvement of the judicial systems in all

countries of the hemisphere because of

increases in crime, immigration problems,

and “the expansion of economic integration” affecting all of them.

The new organization, he said, “can serve

as a forum for the discussion and promotion

of practical solutions to common judicial

problems.”

Topics to be addressed at the conference

through formal presentations and discussion sessions, as recommended by the planning committee, include the following:

• judicial independence;

• due process;

• organization of justice in the Americas

in the twenty-first century;

• judicial ethics; and

• impact of supra-national law on decisions of national courts.

Associate Justices Anthony M. Kennedy

and Stephen G. Breyer (U.S. Sup. Ct.) will

speak at the conference on judicial ethics

and judicial independence, respectively.

A simulated criminal trial under U.S.

procedural rules will also be conducted.

The planning committee recommended

by James G. Apple

Representatives of supreme courts in

the Western Hemisphere met in June in

Washington, D.C., to plan a second conference of chief justices of the Americas and

to make recommendations for a permanent

organization of supreme courts of the hemisphere.

The first conference of chief justices of

the Americas, attended by representatives

of 17 countries, was held in Santiago, Chile,

last November. The Chief Justice of the

United States was represented at that conference by Chief Judge Juan R. Torruella

(U.S. 1st Cir.). The second conference will

be held October 23–29, 1995, at the U.S.

Supreme Court and the Thurgood Marshall

Federal Judiciary Building in Washington.

The conference planning committee included Judge Torruella, representing the

United States, Canada, and Mexico; Associate Justice Josefina Calcaño de Temeltas

of the Supreme Court of Venezuela, representing the Andean countries; Chief Justice

Arturo Hoyos of the Supreme Court of

Panama, representing Central American and

Caribbean countries; and Chief Justice Raúl

Alonso de Marco of Uruguay, representing

“southern cone” countries.

Also participating in planning committee sessions for the United States was Chief

Judge Michael M. Mihm (U.S. C.D. Ill.),

chair of the U.S. Judicial Conference Committee on International Judicial Relations.

The planning committee met to recom- See CONFERENCE, page 4

Supreme court justices and judges from

seven common law countries met from

May 28–June 2, 1995, in Williamsburg,

Va., and Washington, D.C., for the First

Worldwide Common Law Judiciary Conference.

Delegates included the chief justices of

Australia, New Zealand, Ireland, and India.

Thirty supreme court justices and judges

from those countries and the United States,

Great Britain, and Canada also participated.

The purpose of the conference, according to Judge A. Paul Cotter of the U.S.

Nuclear Regulatory Commission and primary organizer of the conference, was to

bring together judges from the principal

common law countries to discuss issues of

mutual interest, common problems, and

recent developments in common law jurisprudence.

Judge Cotter stated that the idea for the

conference was based on two premises: (1)

the seven countries’ legal systems derive

from the same common law roots; and (2)

despite obvious difference in the evolution

of those systems, the courts of common law

countries are faced with similar procedural

and substantive issues and problems.

He said that “a pragmatic judge-to-judge

exchange of information on, and analyses

of, particular elements of their respective

courts, law, and procedures will enable the

participants to take home immediate, practical benefits both for themselves individually and for their respective courts.”

Throughout the meeting, representatives

of the participating nations presented papers on the “state of the courts” in their

countries so that delegates would have comprehensive information about major developments and issues in the countries represented.

The first two days of the meeting, held in

Williamsburg, focused on court technology and evidentiary issues. The first day’s

session included a visit to “Courtroom 21—

The Courtroom of the Future,” at the

Marshall Wythe School of Law of the College of William and Mary. The futuristic

courtroom is a joint project of the Law

School and the National Center for State

Courts, also located in Williamsburg.

Senior Judge Jack B. Weinstein (U.S.

E.D. N.Y.) and Justice Ellen I. Picard (Ct.

Q.B. Alberta, Canada) discussed issues and

the status of scientific evidence in the courtrooms of the federal courts of the United

States and Canada respectively during the

Williamsburg session.

Issues addressed in the final three days of

the conference, held in the Education Center of the Federal Judicial Center in Washington, included:

• fair trial and free press;

• status of jury trials in court systems;

• managing criminal dockets;

• crime and the family; and

• managing complex litigation.

by Chief Judge Michael M. Mihm

(U.S. C.D. Ill.), Chair, International Judicial

Relations Committee

The Committee on International Judicial Relations was created in late 1993 by

U.S. Chief Justice William H. Rehnquist

and the Judicial Conference of the United

States. Its purpose is to coordinate the federal judiciary’s relationship with foreign

judiciaries and with official and unofficial

agencies and organizations interested in

international judicial relations and the establishment and expansion of the rule of

law and administration of justice, and to

make appropriate recommendations concerning such coordination to the Chief Justice and the Judicial Conference.

The Committee serves as a conduit for

communication among the U.S. and foreign court systems and coordinates and

responds to requests from foreign judges

for information and training. It also cooperates with U.S. executive branch (e.g., the

State Department) and private agencies to

facilitate the development and administration of rule of law programs in the United

States and in other countries for foreign

judicial and legal officers.

Judges from the United States regularly

participate in rule of law programs in other

countries. Such involvement typically involves travel of one to two weeks for a

series of seminars or workshops on specific

topics, such as separation of powers, the

independence of the judiciary, or the relationship between judge and prosecutor. For

example, federal judges have been involved

in recent months in several legal seminars

conducted in the Russian Federation, Poland and other eastern and central European

countries, and the New Independent States

(former states of the Soviet Union).

Organization of Supreme Courts of the Americas Planned

Chief Judge Michael M. Mihm (U.S. C.D. Ill.) (center), chair of the U.S. Judicial Conference

Committee on International Judicial Relations, and Chief Judge Juan R. Torruella (U.S. 1st

Cir.) (second from right) review documents regarding the proposed organization of supreme

courts of the Americas at a planning meeting in Washington in June. Chief Justice Arturo

Hoyos of Panama sits with back to camera (conference interpreters are at left).

Chief Justice Michael E.J. Black (left) of Australia

and Justice M.M. Punchhi of the Supreme Court of

India at the First Worldwide Common Law Judiciary

Conference in May. See COMMON LAW, page 3

Justices, Judges from Common Law Countries

Meet in Williamsburg and Washington International Judicial Relations Committee

Promotes Communication, Coordination

that the permanent organization be named

the “Organization of Supreme Courts of the

Americas.” It also recommended that the

fundamental objectives of the organization

should be to promote judicial independence

and the rule of law in the hemisphere.

Specific objectives mentioned by the planning committee include the following:

• serving as a permanent link between

the judicial systems of the Americas, and

promoting international judicial cooperation in the hemisphere;

• providing leadership for judicial education programs throughout the hemisphere;

• sharing information;

• promoting the development of regional

technical assistance for the administration

of justice;

• studying judicial administration and

developing model procedures and/or administrative structures;

• promoting efficiency in judicial case

management;

Serving Process and Taking Discovery

 Abroad 2

New Publication for Judges 2

Judge’s Travel Experiences 3

Conference on Impact of International

 Tribunals 3

Uruguay Round Trade Agreements 4

India–U.S. Legal Exchange 4

Inside . . .

See COMMITTEE, page 4

The funding for these seminars and conferences is usually provided by a government agency, such as the U.S. Information

Agency (USIA) or the U.S. Agency for

International Development (USAID). Other

programs are funded by private organizations or foundations. The judicial branch

does not provide funds for such activities.

On the domestic front, many judges and

legal officials from other countries travel to

the United States to receive orientation

about the U.S. legal system and exposure to

U.S. judges at their workplaces around the

country. Orientation sessions are often conducted for these visitors at the Federal Judicial Center or the Administrative Office of

the U.S. Courts in Washington, D.C.

The new committee helps coordinate

these activities among the federal judges

and agencies in the judicial branch and

provides advice and assistance for such

programs.

To assist judges traveling abroad to provide technical assistance, the committee

has begun collecting trip reports from judges

and others who have traveled abroad—
2 • International Judicial Observer • a joint publication of the Federal Judicial Center and the American Society of International Law • Number 1 • September 1995

SECUNDUM LEGEM

A note to our readers

The International Judicial Observer welcomes comments on articles appearing in it and ideas

for topics for future issues. The Observer will consider for publication short articles and

manuscripts on subjects of interest to judges from the United States, other countries, or

international tribunals. Letters, comments, and articles should be submitted to Interjudicial

Affairs Office, Federal Judicial Center, Thurgood Marshall Federal Judiciary Building,

One Columbus Circle, N.E., Washington, DC 20002-8003.

by Edith Brown Weiss

President, American Society of

 International Law

The American Society of International

Law and the Federal Judicial Center are

pleased to launch a new publication: the

International Judicial Observer. This will appear twice

a year as an insert to the

State–Federal Judicial Observer.

The American Society of

International Law, founded

in 1906, is committed to informing public decision makers, practitioners, scholars,

and the general public about

the rule of law and, in particular, about international

law. An increasing number

of cases involve international

legal questions or questions

concerning the foreign relations law of the

United States. Judges need to be knowledgeable about international law and should

have a place to which they can turn for some

of the latest developments. The International Judicial Observer is intended to help

fill this role. It will comment on recent

developments in international law and provide a context for understanding them.

Sources of International Law

The American Law Institute’s Restatement of Foreign Relations Law Third, an

authoritative but occasionally controversial statement of law, defines sources of

international law as including international

agreements (treaties and executive agreements), customary international law “that

results from a general and consistent practice of states followed by them from a sense

of legal obligation,” and, as sources of

supplementary rules, general principles

common to the major legal systems of the

world. These sources of international law

have grown rapidly. Since 1945 there have

been more than 33,000 treaties registered

with the United Nations, several thousand

of them multilateral. There are many more

international legal instruments that serve as

evidence of international law. Indeed, it is

challenging to keep abreast of the many

sources of international law today.

International law is binding in the United

States in both state and federal courts as

part of the law of the land. The Constitution

declares that treaties, together with the

Constitution and U.S. laws, are “the supreme Law of the Land” (Article VI). International agreements other than treaties and

customary international law are treated as

federal law, and, like treaties, regarded as

supreme over the laws of the individual

states.

International Law Extended

Today international law extends far beyond questions of diplomatic immunities,

compensation for expropriation, and extradition—subjects that have traditionally

come before the courts. It includes issues of

foreign sovereign immunity, extraterritorial application of national law, liability in

case of accidents, seizures on the high seas,

and violations of the law of nations or

human rights law, to name but a few.

Sometimes judges need to address the

question of whether an agreement is selfexecuting or non-self-executing (i.e.,

whether existing law is sufficient to carry

out the agreement’s obligations or if additional legislation, or modification to existing legislation, is required). In some cases,

certain provisions in an agreement may be

self-executing and others not. If the agreement is non-self-executing, then implementing legislation is needed for it to be given

effect in the United States even though the

Rya W. Zobel, Director, Federal Judicial Center

Russell R. Wheeler, Deputy Director, Federal Judicial Center

Edith Brown Weiss, President, American Society of International Law

EDITORIAL STAFF

James G. Apple, Chief, Interjudicial Affairs Office, Federal Judicial Center

Susan L. Karamanian, Esq., Executive Council, American Society of International Law

EDITORIAL ADVISORY BOARD

Chief Michael M. Mihm, U.S. District Court for the Central District of Illinois; Judge Edith Hollan Jones,

U.S. Court of Appeals for the Fifth Circuit; Judge Jose A. Cabranes, U.S. Court of Appeals for the Second

Circuit; Judge Ricardo H. Hinojosa, U.S. District Court for the Southern District of Texas; Judge D. Brock

Hornby, U.S. District Court for the District of Maine; Judge Rudy Lozano, U.S. District Court for the

Northern District of Indiana; Professor Edith Brown Weiss, Georgetown University Law Center, Washington, D.C.; Judith H. Bello, Esq., Sidley & Austin, Washington, D.C.; Charles Siegal, Esq.,Munger, Tolles

& Olson, Los Angeles, Cal.; Professor Ralph Steinhardt, George Washington University National Law

Center, Washington, D.C.; Bruno Ristau, Esq., Ristau & Abbell, Washington, D.C.; Charlotte Ku,

Executive Director, American Society of International Law, Washington, D.C.

Published in the Interjudicial Affairs Office, Federal Judicial Center, One Columbus Circle,

N.E., Washington, DC 20002-8003; phone: (202) 273-4161, fax: (202) 273-4019

The opinions, conclusions, and points of view expressed in the International Judicial Observer

are those of the authors or of the staffs of the Interjudicial Affairs Office of the Federal Judicial

Center and the American Society of International Law. On matters of policy, the Federal

Judicial Center and the American Society of International Law speak only through their

respective Boards.The ASIL does not take positions on public policy issues.

International Judicial Observer

a joint publication of the

Federal Judicial Center and the American Society of International Law

The International Judicial Observer:

A New Publication for Judges

United States could be in breach of its

international obligations if it were a party in

a case. Technically, it is the implementing

legislation, and not the treaty itself, that is

given effect.

Many agreements are self-executing and

do not need implementing legislation. For

example, the provisions in

treaties of friendship, commerce, and navigation that

accord rights to foreigners

have been treated as selfexecuting.

Sometimes the agreement is one that the President can make on his own

constitutional authority.

These sole executive agreements are also the law of

the land and prevail over

the laws of the states. In

Dames & Moore v. Reagan,

453 U.S. 654 (1981), the

Supreme Court upheld the President’s action agreeing to settle U.S. claims relating

to Iran before an international claims tribunal, even though it suspended claims proceedings underway in U.S. courts.

Treaties Invoked

Treaties of a general nature are also

often invoked in federal and state courts.

The Warsaw Convention (International

Convention for the Unification of Certain

Rules Relating to International Carriage by

Air, 1929) has been central to numerous

claims for compensation for airline accidents. Extradition treaties, anti-hijacking

conventions, treaties protecting diplomats

and others against certain crimes, and agreements controlling movements of hazardous

wastes across U.S. borders, dumping in

marine areas, and trade in endangered species are all part of the law of the land to be

applied when relevant in state and federal

courts.

Courts have often faced issues of sovereign immunity. Since The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch)

116 (1812), and up until 1976, the United

States granted foreign governments immunity from suit in local courts, with few

exceptions. As Chief Justice Marshall made

clear in that case, foreign sovereign immunity was given as a matter of grace and

comity rather than as a constitutionally

required restriction. Countries across the

world have granted sovereign immunity,

even though there has never been a treaty

on the subject. In 1976, the U.S. Congress

passed the Foreign Sovereign Immunities

Act, which codified the law of sovereign

immunity and made countries subject to the

jurisdiction of federal and state courts for

certain kinds of actions. The case law interpreting the statute is vast and sometimes

confusing.

New Dispute Settlement Procedure

The new World Trade Organization has

established a far-reaching, binding dispute

settlement procedure that will have implications for the application of U.S. law. The

new environmental commission established

at the same time as the new NAFTA regime

will consider complaints and resolve disputes about compliance with environmental laws. The several regional human rights

courts and commissions elaborate international human rights law. There will be international criminal tribunals for former Yugoslavia and Rwanda, and international

compensation commissions and soon a new

Law of the Sea Tribunal.

The International Judicial Observer will

help judges to clarify the law in many of the

above areas and will focus on the increasing array of international dispute resolution

tribunals and their important decisions. ❏

A Brief Introduction to Procedures for Serving

Process and Taking Discovery Abroad

by Susan L. Karamanian

Locke Purnell Rain Harrell

Dallas, Texas

More cases involving foreign parties

and witnesses and transnational disputes

are appearing in both state and federal courts.

As a result, issues concerning (1) service of

process abroad and (2) pretrial discovery of

foreign witnesses and documents are becoming more prevalent. This article briefly

discusses certain principles that are relevant to both of these areas.

Federal Rule of Civil Procedure 4(f)

allows service of a summons on an individual not within a judicial district of the

United States by any internationally agreed

means reasonably calculated to give notice,

including the Hague Convention on the

Service Abroad of Judicial and Extrajudicial

Documents in Civil or Commercial Matters. The Hague Service Convention specifies a number of means of service, including service by mail. Many of the signatories

to the Hague Service Convention, however, have reserved their rights to certain of

the service procedures, so the user of the

convention should examine closely the reservations lodged by the country in which

service is to be performed.

Absent service under an international

agreement, Rule 4(f)(2) allows service on

an individual (1) in the manner prescribed

by the foreign country, or (2) as directed by

the foreign authority in response to a letter

rogatory, or (3) if not prohibited by the

foreign country, by personal delivery of the

summons and complaint or any form of

mail requiring a signed receipt. Service on

a foreign corporation is the same as on an

individual except there can be no personal

delivery. See Fed. R. Civ. P. 4(h).

The starting point for analyzing how to

proceed with discovery abroad is Federal

Rule of Civil Procedure 28(b), which specifies that depositions may be taken in a

foreign country (1) pursuant to any applicable treaty or convention, or (2) pursuant

to a letter rogatory, or (3) on notice before

a person authorized to administer oaths in

the place where the examination is held, or

(4) before a person commissioned by the

court. Corresponding rules in certain states

also allow for depositions to be conducted

abroad.

Sections 3 and 4 of Rule 28(b) assume a

cooperative witness and/or that the foreign

country will not object to the deposition.

Many countries, however, preclude foreign

litigants from conducting discovery within

their boundaries because the discovery is

perceived as violating sovereignty. Accordingly, litigants from the United States are

increasingly relying on international conventions and the more burdensome, but

traditional, letters rogatory to obtain discovery.

The United States is a signatory to the

Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. The Evidence Convention provides

the following: under chapter I, a standardized and simpler procedure for issuing letters rogatory (which are defined as “letters

of request”); under chapter II, a formal

procedure for taking of evidence by diplomatic officers, consular agents, and commissioners; and under chapter III, general

clauses. The significant provisions include

chapter II which, if applicable in the foreign

country, prevents the foreign judiciary from

interfering with discovery. Article 9 of chapter I is also significant because it provides

that the executing authority of a letter

rogatory will follow the requesting

authority’s request that a special method or

procedure be followed, unless this request

is inconsistent with the internal law of the

issuing state. This procedure, when applicable, allows the requesting court to use its

own method of discovery in the foreign

forum.

Annotated copies of these two Hague

conventions and other international conventions to which the United States is a

party are conveniently located in the

Martindale-Hubbell International Law

Digest. The Martindale versions identify

all of the signatories and any reservations

of these signatories, and they include helpful forms. Current information about the

conventions can be obtained from the Treaty

Affairs Section of the Legal Adviser, Department of State, Washington, DC 20520.❏

J U D I C I A

F

L

E D E R A L

C E N T E R
International Judicial Observer • a joint publication of the Federal Judicial Center and the American Society of International Law • Number 1 • September 1995 • 3

by Chief Judge Michael M. Mihm

(U.S. C.D. Ill.)

He lived many years ago in another

country, another culture, but I am

convinced that I now know how Marco

Polo felt on his first trip to China—

excited, anxious, curious.

Last December I traveled from my

house in Peoria, Ill., to Bishkek,

Kyrgyzstan, and Almaty, Kazakhstan, for

a series of conferences on free press/free

speech and meetings with judges from

the supreme courts and constitutional

courts of those two countries. The trip

was sponsored by the Conference on Security and Cooperation in Europe/Office

for Democratic Institutions and Human

Rights (CSCE/ODIHR), an organization

based in Warsaw, Poland.

For those of you who don’t know,

Kyrgyzstan and Kazakhstan are located

immediately northwest of China and south

of Siberia.

I flew from Peoria to Chicago by commuter and then overnight from Chicago

to Frankfurt, Germany. Frankfurt is a major exchange point for travelers going

anywhere in Western, Central, and Eastern Europe. In Frankfurt, I met the other

two judges who would be participating

with me in the conferences and meetings.

They were Lech Garlicki, a judge of the

Constitutional Court of Poland, and Judge

Louis Guerra, vice president of the Constitutional Tribunal of Spain. By the time

the trip had ended, we had become friends

for life.

After an overnight flight from Frankfurt to Almaty (we arrived in Almaty at

5:30 a.m.), it took us an hour to secure

visas and go through passport, luggage,

and currency checks. Actually, successfully completing all of those tasks in one

hour would be considered “lightning fast”

and was possible because of assistance of a

man from the staff of the chief judge of

the Constitutional Court of Kazakhstan.

We traveled by car from Almaty to

Bishkek, Kyrgyzstan. This took four hours.

During the journey, we passed through what

has to be some of the most barren country

in the world, a vast, treeless plain next to the

Tien-Shan Mountains, and then up over the

mountains through a narrow pass and down

the other side into Kyrgyzstan. This trip

between cities was a great adventure in its

own right. When we arrived at the Hotel

Dustik in downtown Bishkek, I had been

traveling for the past 30 hours and had

passed through 11 time zones. I was exhausted. Fortunately, we had the remainder

of the day to rest. At the hotel, we met Dr.

Fred Quinn of CSCE/ODIHR. Fred is a

retired U.S. foreign service officer and a

superb person and conference leader.

Bishkek is a city of approximately

675,000. The conference was held at the

Lenin Museum, a beautiful museum with a

great deal of Lenin memorabilia and a huge

Lenin statue in front of the buiding. Some

things don’t change very fast.

The conference in Bishkek focused on

the draft press law being considered by

the Kyrgyzstan Parliament. The minister of

justice presided over the meeting. The draft

law was severely criticized by the four of us

from CSCE and several independent

journalists who showed up at the conference uninvited. Our criticisms were that the

law needlessly regulated the press and interfered with freedom of speech. The disConferences in Kyrgyzstan, Kazakhstan Provide Adventure for Illinois Judge

weight would a U.S. judge give to a decision of the International Court that the state

under whose laws title was purportedly

obtained was illegally in possession of it?

In addition to addressing “faith and

credit” issues posed to national courts by

the decisions of international adjudications

and arbitrations, the conference also addressed the extent to which national judges

defer to the corpus of law made by international tribunals.

Discussions among the conference participants suggested that the practice of applying that body of law to cases before

national courts varies widely, with U.S.

judges being less likely than their counterparts in Germany or France to seek guidance from the jurisprudence of the international tribunals or foreign courts. This situation was attributed to the relative insularity of U.S. courts and also the lack of an

international perspective in the pleadings

of most U.S. attorneys, as well as the U.S.

system of legal education that often trains

judges, attorneys, and law clerks without

reference to foreign, comparative, or international perspectives.

Themes emerging at the conference,

according to Dean John Attanasio of St.

Louis University Law School, rapporteur,

included the following:

• sovereignty as the continuing dominant organizing principle of world public

order, as long as nation–states continue to

control sources of violent force and capital;

• the ascendancy of international institutions and the weakening of sovereignty in

the global community;

• the increasingly important role of judicial institutions and the rule of law around

the world;

• the “overarching trend” and shift in

power in the world order away from sovereignty and toward a greater acceptance of a

variety of supranational decision-making

authorities of limited competencies;

• the threat to national sovereignty posed

by international tribunals if their judgments

are enforced by domestic courts;

• the impediment of such doctrines as

the act of state doctrine, sovereign immunity, and the doctrine of non-executing treaties embraced by national courts to “breaching the wall” of sovereignty;

• the common language spoken by judges

helpful in international understanding;

• the greater acceptance of decisions of

international tribunals by domestic courts

in the area of commercial disputes;

• the major international development of

regionalism, which accounts for the success of such courts as the European Court of

Justice and is an important variable in the

development of international institutions;

• economic globalization, which has

encouraged greater shifts in sovereign power

to international organizations; and

• the influence of the decisions of national courts on international tribunals.

The conference, conducted under the

aegis of the N.Y.U. Center for International

Studies and Institute of Judicial Administration, was made possible by grants from

the Ford, Bankers Trust, and Eugen

Friedlaender Foundations. It is the first of a

regular series of meetings between U.S.

and foreign judiciaries planned by N.Y.U.

as part of the law school’s new “Global Law

School” program.

Additional information about the conference proceedings can be obtained by

writing Professor Thomas M. Franck, director, Center for International Studies, New

York University School of Law, 40 Washington Square South, New York, NY

10012.❏

by Thomas M. Franck

Professor of Law, Center for

International Studies

New York University School of Law

Three justices of the International Court

of Justice, three judges and the chief prosecutor of the International Criminal Tribunal for the Former Yugoslavia, and three

associate justices of the U.S. Supreme Court

were among the participants at a major

international law conference at the New

York University Law School in February.

The conference, convened to address

“The Reception of National Courts of Decisions of International Tribunals,” also

included representatives of the Court of

Justice of the European Community, the

European and Inter-American Courts of

Human Rights, the Iran–United States

Claims Tribunal, the Supreme Court of

Canada, the Law Committee of the House

of Lords of the United Kingdom, the constitutional courts of Germany and France, the

constitutional court of the Russian Federation, and several U.S. courts of appeal and

district courts.

Associate Justice Sandra Day O’Connor

(U.S. Sup. Ct.) co-chaired the conference

with representatives of the NYU Law

School.

Issues raised at the conference that would

affect U.S. courts include the following:

• How will national courts (which have

traditionally been deliberately shielded from

external control) accommodate to the burgeoning jurisprudence of these new

supernational or non-national tribunals?

• What will a U.S. court do with a request

for the “surrender” to the International

Criminal Tribunal’s jurisdiction of a person

charged with war crimes in Bosnia?

• In a dispute over title to property, what

At a luncheon speech at the Canadian

Embassy, Associate Justice Sandra Day

O’Connor (U.S. Sup. Ct.) spoke to the

delegates on reforming jury trials in the

United States.

The conference concluded with a presentation by Chief Judge J. Clifford Wallace

(U.S. 9th Cir.) on the advantages of the

conference and the reasons why it should

be continued.

Judge Wallace observed that there are 43

countries around the world that share a

common law heritage and 25 additional

countries have “substantial common law

aspects.” He suggested suitable discussion

topics for future conferences: commonality

of roots and traditions, the adversarial system, technology, the jury system, court

television, and handling complex cases.

Delegates from Great Britain commented

that the conference was “the only meeting

of judges not replicated in any other forum.” They stated that “the particular issues and problems which arise in the conduct of common law litigation can usefully

be discussed among such a group of judges.

[The conference] brings together the judicial experience from every continent.”

The delegates voted unanimously to hold

future conferences. Their preference was to

hold a conference every three years.

The delegation from Ireland indicated an

interest in hosting the next conference.

The conference was sponsored by the

Judiciary Leadership Development Council (JLDC), a Washington based nonprofit

corporation with a mission of conducting

judicial education conferences and seminars. Judge Cotter is the vice president of

the JLDC.

The president of the JLDC is Senior

Judge John W. Kern III (D.C. Ct. App.). ❏

NYU Conference Discusses Impact of International Tribunals COMMON LAW, from page 1

cussions were emotionally charged because two independent newspapers had

been shut down by the government just

two weeks before our visit.

We were only in Bishkek three days,

and much of our time was taken with the

conference and meetings with the ministry of justice, but we also met for extended

discussions with judges from the Supreme

Court to discuss their court structure.

We left Bishkek and traveled back over

the mountains to Almaty. Almaty is a

city of 1.5 million people. In Almaty we

spent several days meeting with judges

and conducting a conference on free press

and free speech. Since Kazakhstan, like

Kyrgyzstan, is still in the process of deciding on the permanent structure of its

court system, most of our conversations

with members of the Supreme Court and

Constitutional Court dealt with issues of

court structure and separation of powers.

Almaty is a city of contrasts. Because

the city had not paid its natural gas bill

to Tajikistan, there was no natural gas the

first three days we were there; I stood in a

“bread line” for the first time; we attended

the Almaty Symphony, which is world

class and featured five child prodigies (all

under the age of ten), three on piano and

two on violin; I had dinner in the home of

two wonderful American lawyers, Lowry

and Barnabas Wyman, who work for the

American Legal Consortium under very

difficult conditions—on the occasion of

my visit for dinner, they had neither natural gas for heat nor electricity for light.

We had a delightful dinner by candlelight.

I came home from the trip with great

admiration for what the men and women

judges in those two countries are doing in

an effort to establish a rule of law. I didn’t

kiss the ground when I got back to Peoria,

but I did count the blessings that we have

as independent judges in a free society. ❏

Left to right: Dr. Fred Quinn (formerly with Conference on Security and Cooperation in Europe); Hon.

Mukhae Holoponbae, Minister of Justice of Kyrqzystan; Chief Judge Michael M. Mihm (U.S. C.D.

Ill.); Judge Lech Garlicki (Pol. Const. Ct.); Eric Stepinski (CSCE); and Judge Louis Guerra (Span.

Const. Ct.) at a conference on protection of free speech/free press in Kyrgyzstan.
4 • International Judicial Observer • a joint publication of the Federal Judicial Center and the American Society of International Law • Number 1 • September 1995

• promoting modernization of court systems through automation and technology;

• promoting access to justice;

• promoting the adoption of, and compliance with, judicial ethics standards; and

• conducting regional or hemispheric

meetings on specialized legal topics of interest to members.

Some of the major structural and procedural recommendations proposed by the

committee are the following:

• each country that is a member of the

Organization of American States would be

eligible for membership;

• the organization would be a neutral

forum for the exchange of information and

discussion of issues. The organization

would not impose any measures or actions

regarding any of the member countries.

• each country would have one vote—

those countries sharing a common supreme

court would collectively have one vote;

• the chief justice of the national supreme court (or designate) would participate in the organization—the national delegation could be comprised of more than

one delegate, but only one representative

per country would have voice and vote at

one time;

• at plenary meetings, held at least once

every three years, a host for the next meeting (and a planning committee for that

meeting) would be chosen—the planning

committee would include equal representation from each of the four hemispheric

regions (North America and the Caribbean;

Central America; the Andean Pact Countries; and the southern cone/Brazil);

• commencing after the October conference, the chief justice of the country hosting the next conference would be the president pro tempore of the organization for the

purpose of organizing the next meeting;

• official languages would be Spanish

and English;

• cost of each conference would be borne

by the host country—each delegation will

pay its own transportation costs to the conference site, while payment of room/board

and ground transport costs will be determined on a case-by-case basis by the host

country; and

• annual membership dues would be

$2,000 (U.S.) per voting unit, payable not

later than February 1st of each year.

The planning committee recommended

that a secretariat be established in Panama

to serve as repository for organization

records. The secretariat would also disseminate information to members, would

manage the organization’s finances, and

would coordinate the activities of the organization.

 The planning committee’s recommendations will be circulated to participating

countries for comments and suggestions

and then submitted to the plenary session of

the conference in October.

The proposed new organization of supreme courts reflects judicial interest in

reform and rule of law issues throughout

the hemisphere, resulting from the vast

transformation that countries in Central and

South America have undergone in the past

15 years.

Democracies and free elections have

replaced military dictatorships in more than

a dozen countries of the region. New, friendlier commercial climates in many of the

countries have attracted new capital and

foreign investment. The North American

Free Trade Agreement has created the largest free trade area in the world. And the

creation of new democratic regimes has

heightened concerns for the protection of

human rights in those countries.

Such vast changes place new demands

on the legal systems of all countries of

North and South America, and the proposed new organization is one response to

those demands. ❏

CONFERENCE, from page 1 India–U.S. Legal Exchange Includes

Supreme Court Justices, Lawyers

Chief Justice A.M. Ahmadi of the Supreme Court of India led a delegation of

Indian justices, judges, and lawyers to the

United States in May to complete the second part of the India–U.S. Legal Exchange.

A group of U.S. justices, judges, and lawyers visited India in June of 1994.

Included in the Indian delegation were

Justices Kuldip Singh, J.S. Varma, M.M.

Punchhi, and K. Ramaswami of the Supreme Court of India; Chief Judge M.J. Rao

of the Delhi High Court; Dipankar P. Gupta,

Solicitor General of India; Fali S. Nariman,

President of the Bar Association of India;

and four members of the Indian bar.

The exchange opened with the Indian

delegation attending a non-argument session of the U.S. Supreme Court.

 Another session during the Washington, D.C., part of the program was held in

the East Conference Room of the U.S.

Supreme Court Building and presided over

by Chief Justice William H. Rehnquist.

Chief Justice Rehnquist, in opening the

formal session at the Supreme Court, noted

the common heritage of the United States

and India, “one the oldest democracy and

the other the largest democracy.”

Chief Justice A.M. Ahmadi of India addresses members of the Bar Association of the City of New York

during the India–U.S. Legal Exchange in May. Left to right: Fali S. Nariman, President of the Bar

Association of India, Chief Judge Jon O. Newman (U.S. 2d Cir.), Chief Justice Ahmadi, and Mrs.

Ahmadi.

by David W. Leebron

Professor of Law, Columbia University

On January 1, 1995, the Uruguay Round

multilateral trade agreements entered into

force. These agreements, which had been

negotiated over 8 years, span over 400

pages and include 15 separate new agreements and numerous “Understandings,”

“Decisions,” and “Declarations.” These new

trade agreements rank in their importance

with the original General Agreement on

Tariffs and Trade (GATT) and the formation of the European Community.

In broad sweep, the Uruguay Round

agreements achieved four basic reforms.

First, they reformed the institutional structure of the GATT by establishing the World

Trade Organization (WTO) and streamlining dispute settlement procedures. Second,

they strengthened and clarified existing

GATT rules in several areas, most significantly unfair trade remedies (antidumping

and countervailing duties) and safeguards

(actions to temporarily protect domestic

industry when it is injured by fairly traded

imports). Third, they applied GATT rules to

two “renegade” sectors, agriculture and

textile, that although nominally subject to

the GATT, had in fact been outside GATT

discipline. Finally, they brought new areas

into the multilateral trade regime, notably

services and intellectual property.

These agreements were implemented in

the United States by the Uruguay Round

Agreements Act, which was passed by

Congress last fall. This implementing legislation and the agreements are for the most

part only of interest to judges directly involved in international trade cases. Thus

the bulk of the Act implements modifications to antidumping and countervailing

duty proceedings, reforms certain agricultural trade policies, and modifies U.S. copyright, trademark, and patent law to conform

to the Uruguay Round Agreement on Trade

Related Aspects of Intellectual Property.

Still, the agreement and implementing legislation contain a number of provisions of

which all judges should be aware.

First, the Uruguay Round Agreements

Act, and not the agreements themselves,

will be applied in any litigation. Although

Congress specifically approved the Uruguay Round trade agreements, it also declared in the Act that no provision of any of

those agreements inconsistent with U.S.

law shall have any effect, and that no person

may base any cause of action or defense on

the Uruguay Round agreements. Congress

thus followed recent treaty practice by effectively declaring that the provisions of

the agreements are not self-executing for

purposes of U.S. law.

Beyond those specifically concerned

with trade laws, the most important aspects

of the agreements govern product standards. The agreements on Technical Barriers to Trade and on the Application of

Sanitary and Phytosanitary Measures (governing standards for food and agricultural

products) require that the application of

product standards not create any unwarranted barriers to international trade. Congress, however, again explicitly provided

that nothing in the implementing legislation should be construed to modify any law

of the United States, including laws for the

protection of human, animal, or plant health,

the protection of the environment, or worker

safety.

The provisions regarding state law are

more complex, but Congress basically intended to preclude the use of the Uruguay

Round agreements to challenge state regulatory actions in private or public litigation.

Nonetheless, it is a basic canon of statutory

construction that statutes should not be

construed in violation of international law

or treaty obligations. And whereas the GATT

of 1947 had never been specifically approved by Congress, the Uruguay Round

agreements have been. Earlier judicial decisions giving the GATT extremely little

weight may therefore be less applicable to

the Uruguay Round agreements. Although

no statute could be challenged on the basis

that it violates those agreements, the agreements could be taken into account in construing a statute or in reviewing administrative actions. (The Statement of Administrative Action that was submitted by the President to Congress is, under the statute, the

authoritative expression on the interpretation and implementation of both the agreements and the implementing legislation.)

Unless the federal government brings a

proceeding to challenge state action, a trading partner of the United States would have

to initiate dispute settlement proceedings in

the World Trade Organization. That process is open only to the member governments of the WTO; private parties have no

standing to bring an action. If the United

States were determined to be in violation of

its obligations under the WTO agreements,

the federal government could move to reform its administrative practices, but only

after consultation with Congress. Any state

law found to violate the WTO agreements

would have to be changed only if the United

States prevailed in an action brought for

that purpose.

Federal judges should also be aware of a

change in the jurisdiction of federal courts

occasioned by a provision in the implementing legislation intended to bring United

States law into compliance with an earlier

GATT dispute settlement panel report. Defendants in International Trade Commission proceedings under section 337 of the

Tariff Act of 1930 will now be permitted to

assert counterclaims in those proceedings,

but these must be immediately removed to

federal district courts. (28 U.S.C. § 1368

now provides the federal courts with original jurisdiction over such claims.) In addition, federal court proceedings involving

the same issues as a pending section 337

proceeding must be stayed on the request of

a party who is a respondent in a section 337

proceeding. ❏

Uruguay Round Trade Agreements Rank in Importance to GATT, EC;

Dispute Resolution Reforms Included in New Multilateral Trade Regime

judges who have traveled to a certain country can provide valuable background assistance and information to other judges who

may be traveling to that country. The Committee is also developing other pre-trip briefing materials for judges.

Another project of the Committee is

developing a database of speeches on a

variety of commonly addressed topics to

assist judges in preparing presentations for

foreign seminars and conferences.

Federal judges traveling to another country to participate in a technical assistance

program should contact Guy Molok, staff

attorney for the Committee, at the Article

III Judges Division, Administrative Office

of the U.S. Courts, Thurgood Marshall Federal Judiciary Building, One Columbus

Circle, N.E., Washington, DC 20002, phone

(202) 273-1864. ❏

COMMITTEE, from page 1

“In preserving human rights and

strengthening the judiciary we should proceed together,” said the Chief Justice.

Associate Supreme Court Justices

Antonin Scalia, Ruth Bader Ginsburg,

Sandra Day O’Connor, and Stephen G.

Breyer also participated in the first session.

Justices Scalia and Ginsburg led a discussion on the role of dissenting opinions in

appellate practice.

The group also heard presentations on

the court system of the United States and

judicial education at the Federal Judicial

Center.

Following the Washington program, the

Indian delegates traveled to Williamsburg,

Va., for sessions at the National Center for

State Courts, and to New York City.

In New York the delegation visited the

U.S. Court of Appeals for the Second Circuit for discussions with judges and to hear

appellate oral arguments. The Bar Association of the City of New York and New York

University Law School hosted dinners for

the delegation.

Members of the American College of

Trial Lawyers also participated in the exchange. ❏