At the January meeting of the International and Immigration Law Section Council at the ISBA Chicago Regional Office, the members present had the opportunity to meet and discuss various issues of common interest with the Honorable Zygmunt Matynia, newly arrived Consul General of the Republic of Poland. We discussed with the Consul General the Twinning Project that has been in existence between the Illinois State Bar Association and the National Bar Association of Poland since 1990. Consul Matynia, who has extensive experience in local as well as national government and politics within Poland, described the evolution of the local government structure since the fall of communism.
We also spent some time comparing the relative positions on immigration issues. With the absolute control exerted by the Soviet Union, Poland did not have in place any form of immigration laws prior to 1989. Poland started putting in place its’ own immigration laws, which are now evolving into a different format with Poland’s entry into the European Union. Consul Matynia mentioned especially the number if asylum seekers from the Georgia Republic and the new law allowing immigration by individuals who had been themselves or whose parents or even grandparents had been forcibly removed from Poland. This was especially true from the 1930s on with the Soviets or Russians arresting citizens of Poland and imprisoning them for long periods of time in concentration camps in various parts of the Soviet Union. Now with the fall of the Soviet Union, some of these former citizens or children of citizens are exercising their right to return to Poland.
We also discussed the concern that the Consul General and his staff has concerning the United States, or more accurately the various state and local judicial and police officials within the U.S. not complying with the consular notification requirements upon the arrest of a Polish citizen.
This provided an opportunity for members of the Section Council to inform Consul General Matynia of the Section Council’s and the ISBA’s effort for the adoption of proposed Rule 404 relative to consular notification.
It was agreed with Consul Matynia to continue the prior practice of meeting with the Consul General once or twice a year.
The members of the Section Council were joined by ISBA Officers Jack C. Carey, President-Elect; John G. O’Brien, Second Vice President; and Mark D. Hassakis, Third Vice President, in welcoming the Consul General.
* * *
This issue of The Globe touches on many topics from various authors. Section Council Vice Chair Pradip Sahu and Alpana Sahu provided, “Indian Patent Law Survives Challenge by Swiss Drug Company.”
Section Council member Scott D. Pollock, and a frequent contributor to The Globe, authored, “Diversity Visas for FY ’08 and FY ’09-What are they and how can they be obtained?”
Antonio Guerra-Gomez is the managing partner of Guerra Gomez, Hernandez, Abogados, S.C., a Monterrey, Mexico-based law firm. He is living in Chicago this year where he is both studying and teaching at The John Marshall Law School. His article is, “Invest in Mexico: The Perils of Mexican Labor Unions are a Thing of the Past.”
Christopher R. Minelli is a teaching assistant at the University of Illinois College of Law in Champaign and is a J.D. Candidate from University of Illinois Law School, expecting to obtain his degree in 2008. His article is, “Textualism is a Touchstone for Privately-Focused Treaty Interpretation.”
Your Section Council has also accomplished a lot in the area of assisting you in obtaining the necessary minimum continuing legal education credits. On February 29th, the Section Council will be presenting, “Effective Representation of Immigration Survivors of Domestic Violence.” The presentation will be at the Chicago Regional Office and has been organized primarily by Section Council member David Austin.
Scott Gertz of the Section Council has assisted in organizing a program concerning legal issues relative to the situation in Darfur. The program will be held at The John Marshall Law School on May 1st and will include presentations by Section Council Secretary Cindy Buys on the role of the United Nations and related international legal issues; Professor Sean O’Brien of Notre Dame on the ICC role with respect to Darfur; and comments by Circuit Court Judge Michael Hyman and Professor Samuel Jones of The John Marshall Law School.
Section Council Vice Chair Pradip Sahu has put together a proposal that is currently under review by the ISBA Continuing Education Committee on “Intellectual Property and International Law Issues in Representing a Globally Expanding Company.” Topics will include international technology protection strategies; international brand protection; domain name registration; anti-counterfeiting; alternative dispute resolutions provisions; protecting the attorney-client privilege in international litigation; compliance with the United States export controls; and comparison of the IP laws of the U.S., Germany and Japan.
The Section Council has been working extensively and if any of the readers of The Globe are interested in joining this effort, please let me know as well as complete the questionnaire that appears in the ISBA News.
Lewis F. Matuszewich
Matuszewich, Kelly & McKeever, LLP
Telephone: (312) 726-8787
Facsimile: (773) 279-8872
Email: lfmatuszewich@mkm-law.com
In August 2007, the High Court of Judicature in Madras ruled against the pharmaceutical company Novartis in its challenge of the Patents Act of India. This case is important because it addresses “incremental improvements” related to pharmaceutical inventions in India. In particular, Novartis challenged the following language that was added to the Indian Patents Act by amendment in 2005: “[T]he mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant (emphasis added)” may not be patented in India. The Indian patent office rejected Novartis’s patent application regarding its improved anti-cancer drug Glivec/Gleevec in view of this provision of the Act.
This amendment to the Act allows patenting of drugs that comprise an incremental improvement of drugs that were already on the market before 1995, the year India joined the World Trade Organization, but only if the improved drug shows greater efficacy than the old version. Specifically, the following explanation was provided in the text of the amendment itself: “For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy (emphasis added).” In this case, the Indian patent office was not convinced that the efficacy standard was met.
In response, Novartis challenged the legality of the amendment to the Indian Patent Act. The main thrust of the challenge was that the amendment violated the World Trade Organization’s Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) treaty. The Indian High Court stated that it did not have jurisdiction over whether Indian patent laws complied with TRIPS, thereby dismissing Novartis’ claim with that regard.
Many health activists, politicians, and religious leaders around the world welcomed the court’s ruling. They were concerned that if Novartis were successful in its challenge, generic drug manufacturers in India would have been prevented from producing inexpensive medicines for the world’s poor. They believe that the millions of patients and doctors in developing countries who depend on affordable medicines from India would have been left without any treatments.
Novartis and other innovative non-generic pharmaceutical companies were disappointed with the ruling because they believe it could lead to a stifling of innovation. In the long run, a broad interpretation of the amendment to the Act could result in pharmaceutical companies spending less on research and development for certain drugs because there would be no financial incentive to invest in the research. As a result of the ruling Novartis decided to invest more heavily in China and other countries instead of India, stating that those other countries provide a better culture for investment.
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*Alpana P. Sahu is a clinical trial manager in Chicago and is studying towards a Masters in Health Administration. She can be reached at alpana@sahu.com. Pradip K. Sahu is an intellectual property attorney in Chicago and is the Vice-Chair of the International and Immigration Law Section Council of the ISBA. He can be reached at pradip@sahu.com.
Each year since the 1995,2 up to 55,000 immigrants per year have been admitted to the U.S. as “diversity immigrants” as natives of countries with low rates of immigration. The only requirements for a diversity visa are that the person was born in a qualified country, either completed high school or has two years of work experience in a skilled occupation within the previous five years, and that s/he completes an electronic registration process with the U.S. State Department as described in a Federal Register notice.3 Spouses and unmarried children may also immigrate along with the principal diversity immigrant who has been selected.
The odds of obtaining a permanent visa through this program are not favorable, since millions of persons attempt to register for it and the registration process, while simple, is strict and many registrations are disqualified. Nonetheless, timely registration and follow up if selected should not be overlooked as a component of any U.S. immigration legal strategy.
The registration period for the most recent evocation of the program ended on December 2, 2007, so this article is focused upon the selection criteria, procedures and legal issues that persons selected for the FY 2008 and 2009 programs should consider.
Countries
The State Department divides the visas among six geographic regions: Africa, Asia, Europe, North America, South America and Oceania. In each region, countries are eligible if they have not sent more than 50,000 persons to the U.S. as family-based or employment-based immigrants in the previous five years. For FY 2009, persons born in the following countries are excluded from participation in the diversity visa lottery: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, Russia, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.
Persons born in all other qualifying countries may participate in the program. Also, there are two other ways a person may be able to qualify by being “chargeable” to a qualifying country. First, if one is born in a country whose natives are ineligible but whose spouse was born in a country whose natives are eligible, s/he can claim the spouse’s country of birth provided both spouses are listed on the selected entry, are issued visas and enter the U.S. simultaneously. Second, if one was born in a country whose natives are ineligible, but neither of the applicant’s parents was born there or resided there at the time of the applicant’s birth, s/he may claim nativity in one of the parents’ country of birth if it is a country whose natives qualify for the DV-2009 program.
Registration
No fee is required to register. Applicants access the Electronic Diversity Visa Entry Form (E-DV) at <http://www.dvlottery.state.gov> during the registration period. Paper entries are not accepted. Only one registration per person is allowed. Multiple entries result in disqualification from the program. Failure to complete the form will disqualify the entry. Successful registration is reflected by an onscreen confirmation notice containing the applicant’s name, date of birth, country of registration and a date & time stamp that can be printed out for future reference. Signatures are not required on the electronic forms.
Each registration must be accompanied by a separate digital photograph of the applicant and each of the applicant’s family members: the applicant’s spouse and each child who is not a U.S. citizen or lawful permanent resident of the U.S. Failure to submit appropriate photographs will cause an incomplete registration that will result in either disqualification or subsequent visa refusal. Group family photographs are not acceptable.
Process of Selection
Persons are selected by a computer-generated, random lottery program. The visas are distributed among the six geographic regions, with no country in any region receiving more than seven percent of the available diversity visas in any given year. In order to ensure the maximum number of available visas will be issued, the State Department selects twice the number of available visas. This means that those selected are in a competitive race to the diversity visa finish line.
What to do if you are selected?
Those selected will be notified by mail. Persons selected for the DV 2009 program will be notified between May and July of 2008, with instructions for applying for the visas. The visas, including ones for qualified dependents of the principal selectee, may be applied for and issued between October 1, 2008 and September 30, 2009. Persons not selected do not receive any notification and the State Department, including U.S. consulates, will not provide information about who is selected.
Persons selected for the Diversity Visa lottery must establish their identity, family relationships and educational qualifications. They must also be admissible to the U.S. as immigrants. The principal applicant must show a high school diploma or its equivalent. A GED is not considered to be the equivalent to a high school diploma. Equivalency of a foreign high school education is determined with reference to the most recent edition of the publication entitled “Foreign Credentials Required For Consideration of Admission to Universities and Colleges in the United States.” If a high school diploma or its equivalent is not available, the person must have, in the previous five years, at least two years of work experience in an occupation requiring at least two years training or experience. This requirement is determined with reference to the Department of Labor’s O*Net Online to determine qualifying work experience.
Since diversity visas must be issued before midnight of the end of the fiscal year of the program, and more persons are selected than there are visas available, persons selected must apply for their visas as soon as they can after the October 1st beginning of the pertinent fiscal year. Persons outside the U.S. will apply for the diversity visa at a U.S. consulate and should follow the instructions received from the State Department. Persons in the U.S. legally should determine whether they are eligible to adjust their status under INA Section 245. Persons in the U.S. but who are in violation of their status need to determine if they are eligible to return to the U.S. after a departure, because the Illegal Immigration and Individual Responsibility Act of 1996 made certain persons who are unlawfully present in the U.S. inadmissible for three or ten years. See INA Section 212(a)(9), 8 U.S.C. Section 1182(a)(9).4
The numerical limitations for diversity visas mean persons selected will be subject to visa cut off dates that are reflected in the State Department’s monthly Visa Bulletin, which is available at <www.state.gov>.
Issues and procedures when delays threaten timely visa issuance
Visa applications that are still pending beyond the fiscal year for which the diversity visa had to be granted will be denied. Nor will principal visa holders or their dependants be allowed to enter the United States after the end of the fiscal year. In previous years, the Immigration Service has indicated that accept adjustment applications ninety days in advance of when a visa is actually available. Most local offices of the Citizenship and Immigration Services and U.S. consulates will provide special procedures to expedite the processing of diversity visas, but each year there are disappointed applicants who are unable to complete the processing of their visa or obtain entry into the U.S. prior to the end of the fiscal year. For persons whose cases are delayed, it may be necessary to challenge the delay through litigation.
Courts have refused to intervene where a claim is filed after the end of the fiscal year. Iddir v. INS, 301 F.3d 492 (7th Cir. 1992). But if a court has entered an order that the Immigration Service complete the processing of a diversity visa prior to the end of the fiscal year, it may have jurisdiction to compel action on the order even after the fiscal year has expired. See e.g. Paunescu v. INS, 76 F. Supp. 2d 896 (N.D. IL 1999); Przhebelskaya v. U.S. Bureau of Citizenship and Immigration Services, 338 F.Supp. 2d 399 (E.D.N.Y. 2004). Given this situation, applicants should determine whether their applications are being processed in a timely manner, request expedited treatment, and be prepared to file a lawsuit with a motion for a temporary restraining order or preliminary injunction that should be adjudicated prior to the end of the pertinent fiscal year.
Conclusion
The Diversity Visa Lottery is a viable means to obtain lawful permanent resident status, but its rules must be strictly followed. For the relatively few persons selected to participate in the program, visas must be issued timely or the opportunity to immigrate through this program will be lost.
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1. A member of the ISBA’s Section Council on International and Immigration Law, the founder of Scott D. Pollock & Associates, P.C., a full-service firm that concentrates its practice in U.S. immigration law. Mr. Pollock can be reached at 312-444-1940 or by e-mail at spollock@lawfirm1.com.
2. The Diversity Visa lottery was enacted as part of the Immigration Act of 1990 (“IMMACT 90”). It is now described in 22 CFR 42.33 which implements sections 201(a)(3), 201(e), 203(c) and 204(a)(1)(I) of the Immigration and Nationality Act, as amended, (8 U.S.C. 1151, 1153, and 1154(a)(1)(I)).
3. For the FY ’09 program, see Federal Register: October 5, 2007 (Volume 72, Number 193)] [Notices][Page 57089-57096] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr05oc07-92]
4. Who is eligible for adjustment of status and what constitutes unlawful presence in the United States are complex topics that go beyond the scope of this article.
Mexico abounds in natural resources. Its broad base of assets include human capital as well as oil reserves, to say nothing of the wealth of its tourist beaches and its cultural legacy.
Mexico is renown for its natural beauty. From the world-famous paradise, Alcapulco, to the new tourist developments at Puerto Peñasco and Los Cabos, and on to the stunning beauty of the Caribbean Sea at Cancún and Playa del Carmen, Mexico’s extraordinary coasts and seashores entice people from all over the world. Americans, in particular, enjoy Mexico’s lush and abundant beaches.
Mexican Workers are Mexico’s Primary Asset
Even with all this natural wealth, Mexico’s real assets are still her people. Not only are Mexicans hard working, but they are also adept at developing their skills and talents. Mexicans take great pride and distinct pleasure in putting their talent to good use in order to benefit society. This is a distinguishing characteristic of the Mexican people. These national attributes have caused businesses and companies to choose Mexico as a viable alternative for establishing or growing their businesses. The Mexican workforce, along with Mexico’s strategic location in relationship to the United States, make it an ideal investment spot for businesses that seek to compete at a worldwide level.
Investing is always driven by a quest to improve. We want to improve our current situation, and so we invest. We may want to attain a specific position within our market or we may want to satisfy some personal ambition or dream. No matter why we do it, however, investing goes hand in hand with risk taking. There is the risk of not reaching the general goal or the specific objectives. There is also the question, or the likelihood, of failing—period—when taking on any risk or investment.
While it may sound like a platitude, investors do attempt to predict anything and everything foreseeable in their business plan. They consider and weigh the implicit and explicit factors, most of which can be monitored, measured and controlled. In many cases, the investor knows the circumstances and the environment. What’s more, he usually knows precisely, and in great detail, the likely business outcomes, since he has made his living in the relevant industry or sector.
What happens, however, when the investor does not know the place, the people, or the institutions of the country or locale where he seeks to expand or set up his business? Many times, he simply will not be able to get a full and precise perspective on these issues. In instances like these, he will have to make his investment decisions based on the advice of experts or on the straightforward tips of friends who have gone through a similar experience. Most of the time, the suggestions made will be more akin to warnings, which are inherently skewed or biased, but which influence the investor nonetheless.
Mexican Labor Unions: Facts and Rumors
We have met foreigners, particularly Americans, who would like to invest in Mexico. The reason they decide against doing so, however, is that they “know” that the unions are not only very powerful, but that they also harm and damage foreign investors’ businesses. Based on this “information,” these foreigners seek investment alternatives in more distant places.
Throughout Mexican history, unions have played a major role, not only in the productive processes of industry, but also in the political arena. Labor unions are significant players in Mexican politics. As a result, some union leaders have endeavored to benefit personally from this situation, to the detriment of both management and Mexican workers. Over time, the situation degenerated even further. These so-called leaders began to use the legal mechanisms provided by the Mexican National Labor and Employment Act, such as strikes, to extort employers. Some even threatened to blow up the business or to stop all work.
More than once we have completed viability studies for foreign investors looking to set up businesses in Mexico. After all our work, however, these investors wound up going to China or other parts of the world because they had run ins with labor unions. They found themselves in situations they never anticipated, and could not understand why they were held hostage to economic blackmail. There was a multinational company that had researched investment options, and ultimately decided to set up in Monterrey, an industrial city located in the northeastern part of Mexico, where our firm has its offices. After they had rented a building, and while they were doing a build-out, but before they had gone into production, a union issued a notice of impending strike against them. Keep in mind that the union that threatened to strike had not yet begun to work for this business. Nonetheless, the union demanded that the investors sign a collective bargaining agreement with them, making it clear that if they failed to sign, the union would close the plant. This was enough for this investor. He decided it was better to stop all construction, and to go to another part of the world where “they let him work.”
Cases like this used to be very common. One reason is that our Labor Law (1980) allows unions to organize by means of strike. Many labor union leaders use this method to successfully pressure businesses into delivering “beneficial” results to certain individual leaders.
Mexican Labor Unions: Law and Reality
Today, this type of behavior has almost completely disappeared. A sea change in labor relations has occurred in Mexico even though the Mexican Labor Law itself remains unchanged. Instead, all the players in the Mexican work arena have signed agreements setting forth the terms of the “New Labor Culture.”
For more than 10 years, all the parties involved—employees, employers, and the government—have adhered to and honored the principals of the New Labor Culture. Under these core terms, unions have agreed not to use strikes or any form of extortion to gain unlawful benefits or kickbacks from businesses. More importantly, however, all the relevant parties involved have been re-trained and re-oriented to think of the law as an instrument for growth, and not as a means of legalizing actions that distort the underlying purpose of the law. Much of this work has been accomplished through the efforts of the Mexican Labor Department.
In the past, it was understood that the union’s position was diametrically opposed to management’s. It was further understood that the union would seek to gain everything it could at any cost. By the same token, management thought of nothing but saving money. Management assumed that the way to do so was on the workers’ backs. Thus, employers refused to give employees justified salary increases or decent benefits. Clearly this type of relationship engendered an environment that was not only negative, but one which could not shape a sustainable future.
Today, happily, things are very different. While both sides are per se adversaries, due to their competing interests, they do not see each other as enemies. What’s more, both sides try to seek solutions to the conflicts that arise at the workplace. They have understood that the best way to advance the relationship is to negotiate conflicts into “win-win” outcomes. Each side has come to understand that if the boss wants things to run smoothly, things have to run smoothly for the workers, and vice-versa.
The positive results born of the New Labor Culture are critical because it is the labor unions who negotiate the collective bargaining contracts required under Mexican law. Unions and management now work toward the same goal in Mexico, which is to sustain, maintain and grow businesses. This transformed, pro-active rapport, in which each side looks out for the other, has allowed them to develop long-term relationships that work for the common good.
Conclusion
The Mexican employee is a hard-working individual who looks for practical solutions to problems. Between this hard-nosed workforce and the foundation laid by the “New Labor Culture,” the structure is now in place for foreign investors to direct their projects to Mexico, where they will flourish.
You may confidently advise your clients to invest in Mexico, where union hazards are a thing of the past.
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Antonio Guerra-Gomez is the managing partner of Guerra Gomez, Hernandez, Abogados, S.C., a Monterrey-based law firm. Antonio has specialized in Mexican labor and employment law for over 25 years. He is living in Chicago this year, both teaching and studying at The John Marshall Law School. You can reach Antonio at antonio@guerragomez.com.
Curtis J. Mahoney argues in his student note, Treaties as Contracts: Textualism, Contract Theory, and the Interpretation of Treaties,1 that courts should apply interpretive techniques to treaties similar to relational contracts because of historical and normative reasons.2 This viewpoint is consistent with much of the contemporary scholarship written about this area. I argue that the viewpoint on which he bases his argument is flawed; instead, cannons of treaty interpretation should be founded on the principle that most adjudications involving treaties treat them as another source of federal law instead of contracts between arms-length parties.
Specifically, Mr. Mahoney argues that many of the founders viewed treaties as compacts between nations3 and the Supreme Court has historically applied cannons of contract construction to interpret treaties, as opposed to the well-known cannons of statutory interpretation.4 Moreover, Mr. Mahoney argues that treaties are negotiated on the international level in a process much more reflective of private contract formation as opposed to the checks-and-balances approach of the legislative process.5
Mr. Mahoney has answered the wrong question in regards to developing a consistent treaty-interpretation jurisprudence. The proper question is not how treaties are created, but rather how those treaties are used in adjudications between private persons. The vast majority of treaty litigation seen by American courts involves adjudications of individual rights between private persons or a private person and the United States.6 These adjudications are focused on those rights, using the treaty as a source of law instead of a focus of the dispute.7 This means that the treaty itself, although arguably a “contract” between the United States and foreign powers, is merely another source of federal law and should be interpreted as such.
I. The failure of Relational Contract Theory
Mr. Mahoney assumes the proper benchmark for developing cannons of treaty interpretation arises from the nature of the treaties themselves: reflections of a series of international relations between two or more countries.8 He compares treaties with relational contracts because they consider a number of different transactions within the same agreement.9 Courts have tended to interpret relational contracts differently—the intent of the parties is subordinated to the actions of the parties in previous transactions dictated by the same contract.10
For example, assume the United States is a major producer of widgets. If the United States and Country X have a robust trade in widgets, robust enough to make transaction costs lower by agreeing to a set protocol of how the widget trade should be carried out, then it is rational to negotiate a treaty for an indefinite number of future widget trades between the United States and Country X. The Widget Treaty is thus an example of a relational contract between two arm’s-length parties—the United States and Country X.
However, the goal of these treaty negotiations is to determine private rights among individuals, not among the signatories to the treaty.11 When interpreting the treaty, the courts’ cannons are far more legitimate if the treaty is considered another form of federal law, as opposed to a relational contract. Treaties are mentioned as “law” within the Supremacy Clause of the Constitution.12 Further, the Supreme Court has held treaties to be a source of law that would override conflicting state statutes,13 “supreme law” even without the bicameralism and presentment requirements of congressional statutes,14 and limited only by the Constitution itself.15 To the private individual, treaties are federal law the same as congressional statutes or administrative regulation.
Thus, a legitimate use of treaties in interpretation involves “treaties as law,” as opposed to “treaties as relational contracts.” This restricts possible cannons of interpretation to those of interpreting statutes: intentionalist theories, dynamic interpretation theories, and textualist theories. Part II will argue that the textualist cannons are the most rational.
II. The triumph of textualism in treaty interpretation
Because the treaty is just another source of federal law it should be applied by a court just as a relevant statute would. The textualist philosophy of statutory interpretation wins over other theories because of three unique considerations relevant to international treaties:
(1) The Words of the Document Matter, not the Intent.
Viewing international treaties as a source of federal law, the words of the document form the agreement and not the intent of the parties contrary to Mr. Mahoney’s analysis.16 Contractual intent would be hard to determine within private adjudications because the signatories of the treaty and the surrounding related circumstances would not be the subject of litigation.17 Courts are likely to make bad law from incomplete or distorted pictures of what the intent of the contracting parties is.18 Courts have already established prudential safeguards against these problems such as the principle of ripeness19 and the prohibition against advisory opinions,20 and there is much sense in insuring adjudications use the best possible foundation for coming to a just conclusion of private disputes. Insuring courts use the text of the treaty only, instead of difficult questions of intent, is one step towards better law.
(2) The Legislative History of Treaties is Incredibly Suspect.
The Constitution requires senatorial approval of traditional treaty commitments negotiated by the Chief Executive, but it does not require House approval in the same manner as other congressional law.21 Another form of international treaty, the executive agreement, is formed between the Chief Executive and foreign powers without senatorial approval.22 This method of agreement has been approved by the Supreme Court, provided the President is acting within the realm of her powers that would be appropriate in domestic situations.23
Because of the nature of treaty and executive agreement passage, any legislative history generated is incredibly suspect and unworthy of judicial use.24 A major opportunity exists for minority viewpoints regarding the treaty to self-promote their ideas in the legislative history.25 Further, almost all presidential “legislative history” is suspect because, as the head of her party, the President has an incentive to provide positive talking points for her party’s foreign policy goals regardless of whether the document at issue is a treaty or executive agreement.26 These considerations make legislative history generated over treaties to be inaccurate and misleading.
One justification for intentionalist use of legislative history is that that a statute’s language is the product of compromise, and this renders the text ambiguous.27 A treaty (or executive agreement) does not have this problem because the text is a product of bargained-for exchange. The parties have an incentive to insure the text of the treaty or executive agreement is as complete, specific, and un-ambiguous as possible in order to make the treaty politically efficient.28 Treaties are not the product of legislative compromise, thus their language does not reflect the concerns of intentionalist theory promoters.
(3) The Rule of Law is Served Only if the Treaty’s Text is Employed.
The Rule of Law requires individuals who have a chance of future liability to be put on notice of what the law is so that they can tailor their actions.29 Although federal statutes and administrative regulations are freely available in libraries and on the internet,30 treaties and executive agreements are harder to come by for individuals unaccustomed to international legal research. The legislative history of a treaty’s negotiation, called the travaux preparatoires,31 and its policy considerations are also difficult to locate when compared to their statutory cousins. It would be fundamentally unfair for a court to hold a person accountable for her actions under a treaty when the court’s primary source of interpretation—the intentions of the parties—is so difficult to prescriptively ascertain.32
Many possible litigants, especially those who regularly work with a treaty’s provisions in the general course of business, will be familiar with the treaty’s text. American widget producers will know the provisions of the treaty between the United States and Country X if they regularly market, sell, and ship widgets to buyers in Country X. However, it is highly unlikely that those private distributors will be privy to the closed-door negotiations of the Widget Treaty. Thus, it is more just to require courts to only use the text of a treaty in interpretation because possible litigants who work with the treaty are much more likely to have the express provisions of the treaty available, as opposed to the intent of the parties. This will give them proper notice of what the courts will use in future adjudication.
Although Mr. Mahoney presents a compelling argument for treaties as relational contracts, his reasoning is unfounded. Treaties are commonly used as a source of federal law and should be so construed. This construction finds the most legitimacy within a textualist framework because the intent of the treaty’s parties is rarely a focal point in adjudications regarding the treaty, the legislative history of a treaty or executive agreement is suspect to the point of worthlessness, and the Rule of Law requires parties be given more prescriptive notice of what courts will use in treaty interpretation than what contractual intent can provide.
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© 2008 Christopher R. Minlli, teaching assistant at the University of Illinois College of Law in Champaign, Illinois. J.D. Candidate, University of Illinois College of Law, expected 2008; A.B., Miami University, 2005.
1. Curtis J. Mahoney, Treaties as Contracts: Textualism, Contract Theory, and the Interpretation of Treaties, 116 YALE L.J. 824 (2007).
2. Id. at 827.
3. Id. at 834-36.
4. Id. at 836.
5. See id. at 837; see also U.S. CONST. art. I § 7 cl. 2 (requiring both houses of Congress to pass a bill before it can continue its process of becoming law); U.S. CONST. art. I § 7 cl. 2 (requiring Congress to present legislation to the President for his authorization before becoming law).
6. There is a narrow exception to this involving the Supreme Court’s original jurisdiction to hear disputes between the United States and a foreign power, which arguably could involve the interpretation of a treaty as between arm’s-length signatories. U.S. CONST. art. III § 2 cl. 1. A search of Supreme Court opinions over the past five years has turned up only two cases involving foreign states or officials of foreign states. See Ministry of Def. & Support for the Armed Forces of the Islamic Republic of Iran v. Elahi, 546 U.S. 450 (2006); Republic of Austria v. Altmann, 541 U.S. 677 (2004).
7. See, e.g., Hauenstein v. Lynham, 100 U.S. (10 Otto) 483 (1879) (adjudication between two private parties over intestate succession depending on the proper interpretation of a treaty between the United States and Switzerland).
8. See Mahoney, supra note 2, at 848.
9. See id. For example, an orthodox contract would arise from an agreement from two individuals for the purchase of a single automobile. A relational contract arises from an agreement between an individual and a cellular phone company to provide 24 months of service for 24 monthly payments; even though one contract is signed, it memorializes 24 separate transactions.
10. Mahoney, supra note 2, at 848.
11. See, e.g., Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796) (adjudication between Americans and British subjects regarding a conflict between state law and a treaty regarding debt obligations).
12. U.S. CONST. art. VI (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…”) (emphasis added).
13. Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796).
14. Missouri v. Holland, 252 U.S. 416 (1920).
15. Reid v. Covert, 354 U.S. 1 (1957).
16. Mr. Mahoney, taking a treaty as a relational contract, argues that the words are merely “evidence” of the agreement between the parties, and the intent controls. Mahoney, supra note 2, at 838.
17. But cf. id. at 841 (“The absence of bicameralism and presentment requirements for treaties makes the judicial search for ‘intent’ in treaty interpretation less problematic.”).
18. See JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW § 2.12(b) (7th ed., 2004).
19. E.g., United Public Workers v. Mitchell, 330 U.S. 75 (1947).
20. E.g., Muskrat v. United States, 219 U.S. 346 (1911).
21. See U.S. CONST. art. II § 2 cl. 2.
22. See, e.g., United States v. Pink, 315 U.S. 203 (1942); See generally NOWAK & ROTUNDA, supra note 19, at § 6.9.
23. See United States v. Pink, 315 U.S. 203 (1942). The President’s authority to act independently in foreign affairs has been compared with her authority to act independently in domestic affairs. The proper analysis is Justice Jackson’s so-called “sliding scale” approach, where the legitimacy of the President’s actions is proportionate to Congress’s approval of those actions. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring).
24. Typically, legislative history from committee reports and statements made directly by proponents of the law are the most reliable, and histories from the executive signing the law or subsequent (post-signing) history is the most suspect. Since treaties are negotiated by the executive, any “history” generated from the negotiations is likely to be useless by future judicial officials seeking legitimate legislative history. See WILLIAM N. ESKRIDGE, JR., PHILIP P. FRICKEY, & ELIZABETH GARRETT, LEGISLATION AND STATUTORY INTERPRETATION 317 (2d ed., 2006).
25. Id. at 308.
26. Id. at 315-16.
27. See Mahoney, supra note 2, at 839.
28. Recall the Widget Treaty scenario. The United States and Country X have an incentive to make the treaty as specific and unambiguous as possible because any inefficiency will detrimentally affect their respective economies. For example, if the treaty was ambiguous, some widget producers will not want to sell their widgets in the foreign market for fear of misinterpreting the treaty and being fined or otherwise prosecuted. If the loss in stock value for widget producers resulting from breaking the law is greater than potential profits from widget sales, it is rational for the producers to refuse to sell widgets overseas. The more a treaty is specific, the more likely it is the widget producers will feel confident in selling to Country X.
29. LON L. FULLER, THE MORALITY OF LAW 43 (rev. ed., 1965). See also H.L.A. HART, THE CONCEPT OF LAW 95 (2nd ed., 1994) (stating one legitimizing factor of law is “(the) conclusive identification of the primary rules of obligation.”); JOSEPH RAZ, THE AUTHORITY OF LAW 40 (1983) (“…any complete theory of law includes tests for the identification of the content and determination of the existence of the law.”)
30. See, e.g., GPO Access, United States Code (2007), <http://www.gpoaccess.gov/uscode/index.html>; Cornell Law School, U.S. Code Collection (2007), <http://www.law.cornell.edu/uscode/>.
31. BURNS H. WESTON, ET AL., INTERNATIONAL LAW AND WORLD ORDER 101 (4th ed., 2006).
32. FULLER, supra note 30, at 39.
On February 29th at the Chicago Regional Office, the International and Immigration Law Section Council will conduct a morning CLE. The topics to be covered include:
“Crossing Borders: Family Law and Immigration Practice Basics” – This portion will give an overview of family law issues that arise in the context of immigration practice. This portion of the program will highlight similarities and differences between the practitioner in the family law area compared to the practitioner in the immigration area.
“Working with Immigrant Survivors of Domestic Violence” – Participants will be shown how to identify transnational and cultural barriers facing immigrant survivors of domestic violence and learn strategies for overcoming these barriers. This section will include information on safety planning for immigrants who are being abused.
“The Violence Against Women Act: What It is and How You Can Use It” – This portion of the training will provide participants with an in-depth understanding of the legislative history behind the Act, its objectives and how the Act provided immigrant survivors of domestic violence with an opportunity to adjust their immigration status. The training will examine the procedural steps necessary to obtain relief.
“Ethical Boundaries for Attorneys Working with Immigrant Survivors of Domestic Violence” – The portion will address a variety of ethical issues that may arise during the course of representing immigrant survivors. This will address confidentiality concerns, reporting obligations, retainer issues, conflict of interest and strategy for dealing with clients who are undocumented or engaged in potentially illegal activity.
The program is co-sponsored by the Family Law, Child Law and Human Rights Sections of the ISBA along with the Standing Committee on Women and Law.
Program Coordinator/Moderator:
David W. Austin, Supervising Attorney, National Immigrant Justice Center, Chicago
The Violence Against Women Act (VAWA) is a relatively recent piece of legislation that was amended last year (2006). The Act recognizes that domestic violence poses serious risks to the health, safety and welfare of women and their families (as well as a small number of men who are themselves victims of domestic violence). Immigrants, particularly undocumented immigrants, are especially vulnerable because their abusers often use immigration status as a tool to exert even more power and control over those they abuse. VAWA expressly addresses the specific concerns of immigrants and their dependents by providing special legal protections to immigrant survivors of domestic abuse as well as victims of human trafficking.
This program recognizes that family law practitioners, although well-versed in issues regarding domestic violence, may not be familiar with the intersection of family and immigration law as it relates to VAWA. Similarly, immigration attorneys may not be familiar with the special issues that arise in the course of representing survivors of domestic violence. This program therefore fills a need by providing attorneys practicing in these fields with the complementary skills that they need to effectively represent immigrants seeking relief under VAWA. The program also addresses the specific need for additional pro bono representation of this vulnerable population and provides interested attorneys with an opportunity to gain an in-depth understanding of this substantive area of the law and the skills to effectively pursue relief on behalf of their clients.
9:00 – 9:15 a.m. Welcome and Orientation to the Training
Participants will learn about the ISBA International and Immigration Law Section and the National Immigrant Justice Center (NIJC). They will get a broad overview of the training, its purpose, and desired outcomes.
David W. Austin
Mary Meg McCarthy, Director, National Immigrant Justice Center, Chicago
9:15 – 10:00 a.m. Crossing Borders: Family Law and Immigration Practice Basics
This portion of the training will give an overview of Family Law issues that arise in the context of immigration practice. Participants with a background in Family Law will gain knowledge that will allow them to spot potential issues specific to immigrant clients and the way in which these issues can be resolved. Participants with a background in general Immigration Law will be afforded an opportunity to learn more about the basics of family law as it applies to legal and undocumented immigrants. This portion of the program will also contain an interactive component that will highlight similarities and differences between the two practice groups and creative ways to build bridges so that immigrant clients can be better served.
Mony Ruiz-Velasco, Director of Legal Services, National Immigrant Justice Center, Chicago
10:00 – 10:45 a.m. Working with Immigrant Survivors of Domestic Violence
Participants will learn to identify transnational and cultural barriers facing immigrant survivors of domestic violence and learn strategies for overcoming these barriers. They will also gain the ability to recognize stereotypes and myths regarding immigrants generally and abused immigrants in particular. This section of the program will include information on safety planning for immigrants who are being abused. Participants will also learn techniques recognized as best practice for conducting initial client interviews with this population.
Neha Gill, Legal Advocate with Apna Ghar, Chicago
10:45 – 11:00 a.m. Break
11:00 – 11:45 a.m. The Violence Against Women Act: What It Is and How You Can Use It
Get in-depth understanding of the legislative history behind VAWA, its objectives, and how the Act provides immigrant survivors of domestic violence with an opportunity to adjust their status. The program will examine the procedural steps necessary to obtain relief for a client and impart legal skills necessary to effectively advocate for adjustment. At the end of this program, participants will have learned eligibility requirements for relief under VAWA as well as the mechanics involved in filing a petition for relief.
Mony Ruiz-Velasco
11:45 a.m. – 12:15 p.m. Ethical Boundaries for Attorneys Working with Immigrant Survivors of Domestic Violence
This section will address a variety of ethical issues that may arise during the course of representing immigrant survivors of domestic violence. The speaker will address confidentiality concerns, reporting obligations, retainer issues, conflict of interests, and strategies for dealing with clients who are undocumented or engaged in potentially illegal activity.
Mary T. McDermott, General Counsel, Illinois State Bar Association
12:15 – 12:30 p.m. Questions & Answers
*Please note: Supreme Court Rules on MCLE require lawyers to earn at least 4 hours of Professional Responsibility MCLE every reporting period.
Seminar April 16-17, 2008
The U.S. Department of Commerce’s two-day program will be led by professional counseling staff of the U.S. Department of Commerce Bureau of Industry & Security (BIS) and provides an in-depth examination of the Export Administration Regulations (EAR). The program will cover the information exporters need to know to comply with U.S. export control requirements on commercial goods.
Topics covered will include determining what items and activities are subject to the EAR; steps to take to determine the export licensing requirements for specific items; how to determine export control classification numbers (ECCN); when your client can export or re-export without applying for a license; export clearance procedures and record keeping requirements; Export Management System (EMS) concepts; and real life examples in applying this information.
Presenters will conduct a number of “hands-on” exercises that will prepare you to apply the regulations to specific export activities. This program is well suited for those who need a comprehensive understanding of their obligations under the EAR. Technical, policy, and enforcement professionals from BIS, as well as specialists from other agencies such as the Office of Foreign Assets Control and the Bureau of Census will participate in certain programs.
Registration can be done on line at <http://export.gov/eac/show_detail_trade_events.asp?EventID=27453>, or for questions and additional information, contact Jeff Graber at 312-353-7711 or jeffrey.graber@mail.doc.gov.
The U.S. Department of Commerce, U.S. Commercial Service is located at 200 West Adams, Suite 2450, Chicago, Illinois. The Director is Julie Carducci. You can contact their office at 312-353-8040 and ask to be put on the mailing list for U.S.A. Trade World Illinois produced by the Office and edited by Debra H. Rogers.