Public Prosecutor v. Ashby. Judgment No. 161/98.

Court of Trento, Italy, July 13, 1998.

On February 3, 1998, a U.S. Marine EA-6B aircraft, redeployed at Aviano air base as part of Operation Deliberate Guard in support of the multinational Stabilization Force (SFOR) in Bosnia, was on a low-level training mission over northern Italy when it severed the wires of the cable car at the Cermis ski resort near Cavalese, causing the deaths of twenty people. Because the exercise of criminal action is mandatory under Article 112 of the Italian Constitution, the public prosecutor decided that he had to institute preliminary investigations immediately, with a view to determining whether to prosecute. On July 13, 1998, an Italian judge, in a preliminary hearing, rejected the prosecutor's request that seven U.S. servicemen stand trial for the cable-car accident. The judge found that, under Article VII, paragraph 3(a) (ii) of the NATO Status of Forces Agreement (NATO SOFA), the United States, as the sending state, had the primary right to exercise jurisdiction over the case and that jurisdiction had not been waived. Accordingly, the judge dismissed the case.

Fisheries Jurisdiction (Spain v. Canada), Jurisdiction.

International Court of Justice, December 4, 1998.

On May 10, 1994, Canada filed an amended declaration accepting the jurisdiction of the International Court of Justice (ICJ). New paragraph 2(d) excluded “disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in die NAFO Regulatory Area, as defined in the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, 1978, and the enforcement of such measures.” Two days later, the Canadian Coastal Fisheries Protection Act (CFPA) and implementing regulations were amended to authorize the enforcement under certain circumstances of conservation measures applicable to foreign fishing vessels in the high seas areas to which the reservation adverted.

Public Report of Review of NAO Submission No. 9703.

U.S. National Administrative Office, U.S. Department of Labor, July 31, 1998.

On July 31,1998, the U.S. National Administrative Office (NAO) issued its Public Report of Review (Report) on a petition filed by several U.S. and Canadian labor unions alleging labor law violations in Mexico. The Report found credible allegations that Mexican workers were threatened and attacked as they sought to pursue legitimate union activities at an export-processing plant in Ciudad de los Reyes, Mexico. In addition, the Report determined that Mexican officials had failed to protect the labor interests of Mexican workers seeking to exercise their freedom of association. The Report called for ministerial consultations between the U.S. Secretary of Labor and the Secretary of Labor and Social Welfare of Mexico to address these issues.

United States—Import Prohibition of Certain Shrimp and Shrimp Products.

World Trade Organization, Appellate Body, October 12, 1998.

In May 1996, the United States effectively prohibited imports of shrimp and shrimp products from all countries that do not require commercial shrimp trawlers to use turtle-excluder devices (TEDs) to permit endangered species of sea turtles to escape from trawling nets to avoid drowning. In January 1997, India, Malaysia, Pakistan and Thailand requested that the WTO Dispute Settlement Body establish a panel to determine whether this import ban, among other things, violates the prohibition on quantitative restrictions in Article XI of GATT (1994). The United States maintained that its import ban was permitted under the exceptions set forth in paragraphs (b) and (g) of GATT Article XX. Four turtle species that migrate in and out of waters subject to the complaining parties’ jurisdiction are listed as endangered under the Convention on International Trade in Endangered Species of Wild Fauna and Flora and are covered by the relevant U.S. regulation.

Prosecutor v. Delalic. No. IT-96-21-T.

International Criminal Tribunal for the former Yugoslavia, Nov. 16, 1998.

On November 16,1998, a trial chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) issued its judgment in the Čelebići case against four defendants. The chamber found the de facto commander of the Čelebići prison camp liable under the principle of command responsibility for various acts of torture and illtreatment at the camp. It also found two other accused guilty of grave breaches of the Geneva Conventions and violations of the laws or customs of war for their actions at the camp. A fourth accused, indicted only under the principle of command responsibility, was found not guilty on all counts owing to the lack of a superior-subordinate relationship. Those accused convicted of multiple offenses were ordered to serve their sentences concurrently.

Re Reference by Governor in Council Concerning Certain Questions Relating to Secession of Quebec from Canada.

Supreme Court of Canada, August 20, 1998.

In an attempt to clarify the legal context in which continuing Canadian constitutional conundrums arise, the federal executive referred three questions to the Supreme Court of Canada regarding the legality under both Canadian constitutional law and international law of a potential unilateral declaration of independence by the Province of Quebec. The Court declared that unilateral secession is not permitted under either Canadian constitutional law or international law. The “underlying principles that animate” the Canadian Constitution preclude secession, even though there is no specific text prohibiting the dismantling of the Canadian state. However, if Quebecers were to vote yes to secession by “a clear majority on a clear question,” democratic legitimacy would be conferred on the secessionist project and a constitutional obligation to negotiate would arise binding the other provinces and the federal authority.