Survey of 2004-2005 Developments in International Law in Connecticut
| Publication year | 2021 |
| Pages | 131 |
79 CBJ 131. SURVEY OF 2004-2005 DEVELOPMENTS IN INTERNATIONAL LAW IN CONNECTICUT
Volume 79, No. 3
This is the thirteenth article in our series, again covering two years. This survey reports and comments on developments in international alternative dispute resolution (and a new treaty that may make some international litigation more attractive); under several well known treaties, such as the Hague Conventions on Child Abduction and Service of Process; in proposed new treaties on several topics, including choice-of-court agreements, electronic commerce, corrupt practices and aircraft sales; in United States immigration law; and in several other areas.
We found, in the Connecticut cases of 2004 and 2005, an encouraging example of a German court(fn1) respecting an international treaty where several earlier German decisions had not, and a discouraging example of a Connecticut court(fn2) wholly ignoring the line of decisions we have featured under the heading "Basic Respect for International Law."(fn3) Each of these cases involves an individual or a family, but the law of such subjects as global warming and war and the activities of the International Criminal Court(fn4) and related special courts
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* Of the Meriden Bar; Chair of the Connecticut Bar Association's Section of International Law.
** Professor, Lally School of Management and Technology, Rensselaer Polytechnic Institute at Hartford; Vice-Chair and former Chair of the Connecticut Bar Association's Section of International Law.
1 See infra notes 170-172 and accompanying text.
2 See infra notes 44-50 and accompanying text.
3 See Houston Putnam Lowry & Peter W. Schroth, Survey of 2002-2003 Developments in International Law in Connecticut, 77 CONN. B. J. 171, 171-177 (2003) (hereinafter "2002-2003 Survey"); Houston Putnam Lowry & Peter W. Schroth, Survey of 2000-2001 Developments in International Law in Connecticut, 76 CONN. B. J. 217, 227-237 (2002) (hereinafter "2000-2001 Survey"); Houston Putnam Lowry & Peter W. Schroth, Survey of 1999 Developments in International Law in Connecticut, 74 CONN. B. J. 406, 425-429 (2000) (hereinafter "1999 Survey").
4 In July 2005, the International Criminal Court ("ICC") began issuing arrest warrants, of which the first five were directed against leaders of the Lord's Resistance Army, accused of war crimes and crimes against humanity in Sudan and Uganda. Payam Akhavan, The Lord's Resistance Army: Uganda's Submission of the First State Referral to the International Criminal Court, 99 AM. J. INT'L L. 403 (2005), is
affects the lives of much larger numbers of peoples, perhaps all of humanity. We begin, therefore, by mentioning one of those latter issues.
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quite helpful on the details of this case, but shows disturbing bias in minimizing the actions of the Ugandan government and its troops. Some balance is provided by Olara A. Otunnu, The Secret Genocide, FOREIGN AFF., July-Aug. 2006, at 45:
The truth is that reports of indisputable atrocities of the LRA are being employed to mask more serious crimes by the government itself. . . .
[U]nder the cover of the war against these outlaws, an entire society, the Acholi people, has been moved to concentration camps and is being systematically destroyed - physically, culturally, and economically. . . .
Ninety-five percent of the Acholi population now resides in these camps.
The Rome Statute of the International Criminal Court, 17 July 1998, U.N. Doc. A/CONF. 183/9 (1998), available at http://www.icc-cpi.int/library/about/ officialjournal/Rome_Statute_120704-EN.pdf, entered into force 1 July 2002. The states already parties to the Rome Statute include most of the world, with the notable exceptions of China, Iraq, Iran, Israel, Libya, Japan, Russia, Saudi Arabia and the United States, although only Libya and the United States appear to be active opponents of the ICC. The parties at this writing are Afghanistan, Albania, Andorra, Antigua and Barbuda, Argentina, Australia, Austria, Barbados, Belgium, Belize, Benin, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Bulgaria, Burkina Faso, Burundi, Cambodia, Canada, Central African Republic, Colombia, Congo, Democratic Republic of the Congo, Costa Rica, Croatia, Cyprus, Denmark, Djibouti, Dominica, Dominican Republic, Ecuador, Estonia, Fiji, Finland, France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Guinea, Guyana, Honduras, Hungary, Iceland, Ireland, Italy, Jordan, Kenya, Republic of Korea, Latvia, Lesotho, Liberia, Liechtenstein, Lithuania, Luxembourg, The Former Yugoslav Republic of Macedonia, Malawi, Mali, Malta, Marshall Islands, Mauritius, Mexico, Mongolia, Namibia, Nauru, Netherlands, New Zealand, Niger, Nigeria, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Vincent and the Grenadines, Samoa, San Marino, Senegal, Serbia and Montenegro, Sierra Leone, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Tajikistan, United Republic of Tanzania, Timor-Leste, Trinidad and Tobago, Uganda, United Kingdom, Uruguay, Venezuela, Zambia.
President Clinton signed the Rome Statute for the United States on 31 December 2000. In what appears to be an unprecedented action, on 6 May 2002 the Bush Administration announced that the United States was "unsigning" the Rome Statute, i.e., would no longer consider itself bound even by the limited obligations of a state that has signed but not (yet) ratified a treaty. The announced rationale was a fear of frivolous or politically motivated cases against American soldiers or officials. It seems relevant that, when a Belgian court purported to remove the immunity of the Congolese Foreign Minister in order to prosecute him for violations of the Geneva Conventions, the International Court of Justice held that an incumbent minister's immunity from prosecution in another state's courts prohibits even preliminary investigation of possible core international crimes by another state's courts while the minister remains in office. Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.) (Congo v. Belgium), 2002 I.C.J. 3 (Feb. 14), available at http://www.icj-cij.org/icjwww/idocket/iCOBE/icobejudgment/icobe_ijudgment_20020214.PDF. After leaving office, however, President Bush or Secretary Rumsfeld might not be considered immune, even if the United States does not "ununsign" and ratify the Rome Statute.
I. GLOBAL WARMING
In Connecticut v. American Electric Power,(fn5) eight states,(fn6) the city of New York and three private land trusts(fn7) sued six utility companies(fn8) for the public nuisance of air pollution. Although the effect on New York was emphasized to establish venue in the Southern District of New York, the gravamen of the complaints was that
Defendants "are the five largest emitters of carbon dioxide in the United States" and their emissions "constitute approximately one quarter of the U.S. electric power sector's carbon dioxide emissions." . . . According to the complaints, U.S. electric power plants are responsible for "ten percent of worldwide carbon dioxide emissions from human activities." . . .
State Plaintiffs assert that global warming has already occurred in the form of a documented increase in average temperatures in the United States of between .74 and 5 degrees Fahrenheit since 1900, . . , and a decline in snowfall and the duration of snow cover in recent decades, . . . In addition to what State Plaintiffs say are these already-documented climate changes, the United States Environmental Protection Agency (the "EPA") projects an increase in temperature of approximately 4 to 5 degrees by the year 2100. . . Private Plaintiffs assert that the Intergovernmental Panel on Climate Change projects that the global average surface air temperature will increase approximately 2.5 to 10.4 degrees Fahrenheit from the year 1990 to 2100. . . .
Plaintiffs say the natural processes that remove carbon dioxide from the atmosphere now are unable to keep pace with the level of carbon dioxide emissions. . . As a result, Plaintiffs allege, carbon dioxide levels have increased approximately 34% since the industrial revolution began, causing increased temperatures. . . Plaintiffs further allege that because the planet's natural systems take hundreds of years to absorb carbon dioxide, Defendants' past, present, and future emissions will remain in the atmosphere and contribute to global warming for many decades and, possibly,
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5 Connecticut v. Amer. Elec. Power Co., Inc., 406 F.Supp.2d 265 (S.D.N.Y. 2005).
6 California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin.
7 Open Space Institute, Inc., Open Space Conservancy, Inc., and Audubon Society of New Hampshire.
8 American Electric Power Company, Inc., American Electric Power Service Corporation, Southern Company, Tennessee Valley Authority, Xcel Energy Inc. and Cinergy Corporation.
centuries. . . Although Plaintiffs acknowledge that there is some dispute about the rate and intensity of the process of global climate change, Plaintiffs say official reports from American and international scientific bodies demonstrate the clear scientific consensus that global warming has begun, is altering the natural world, and will accelerate over the coming decades unless action is taken to reduce emissions of carbon dioxide.(fn9)
To no one's surprise, the matter was dismissed as presenting nonjusticiable political questions, with emphasis on the third of the six Baker v. Carr standards, "the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion."(fn10) Among several reasons for this conclusion, according to Judge Preska, was that the...
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