Amicus Curiae Brief — Crosby v. National Foreign Trade Council

Supreme Coust, US

FILEQD

OCT 20 1599

In THE >

Supreme Court of the United States

ANDREW S. NAaTsios, SECRETARY OF ADMINISTRATION

AND FINANCE OF THE COMMONWEALTH OF MASSa-

CHUSETTS, AND PHILMORE ANDERSON, III, STATE

PURCHASING AGENT,

e Petitioners,

NATIONAL FOREIGN TRADE COUNCIL,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

BRIEF OF NONPROFIT ORGANIZATIONS, AMICI

CURIAE: CENTER FOR CONSTITUTIONAL RIGHTS,

CENTER FOR INT'L ENVIRONMENTAL LAW,

CONSUMERS CHOICE COUNCIL, GLOBAL EXCHANGE,

HUMANE SOCIETY OF THE U.S., LOS ANGELES

BURMA FORUM, NEW ENGLAND BURMA

ROUNDTABLE, SUSTAINABLE AMERICA, UNITARIAN

UNIVERSALIST SERVICE COMM. WOMEN’S

DIV.—GEN. BD. OF GLOBAL MINISTRIES—

UNITED METHODIST CHURCH,

(Listing Continued on Inside Cover)

IN SUPPORT OF THE PETITION

DEBORAH ANKER

Counsel of Record

HARVARD IMMIGRATION &

REFUGEE CLINIC

197 Friend Street - Suite 800

Boston, MA 02114

(617) 371-1234

a a CONE

WILSON-Epes Printing Co., Inc. - (202) 789-0096 - WASHINGTON, D.C. 20001

+) “<

ALLIANCE FOR DEMOCRACY, AMERICAN LANDS

ALLIANCE, ARISE RESOURCE CENTER, ASIA

PACIFIC CENTER FOR PEACE & JUSTICE, AS YOU

SOW FOUNDATION, BOSTON MOBILIZATION FOR

SURVIVAL, CENTER FOR LABOR & COMMUNITY

RESOURCES, DEFENDERS OF WILDLIFE, DELTA

COUNTY ALLIANCE FOR DEMOCRACY, DICTATOR

WATCH, DOMINICAN SISTERS OF HOPE,

EARTHRIGHTS INTL., EAST TIMOR ACTION

NETWORKS/U.S., EDMONDS INST., 8TH DAY CENTER

FOR JUSTICE, FREE BURMA COALITION, FREE

BURMA—NO PETRO DOLLARS, HUMANE SOCIETY

INTL., INST. FOR AGRICULTURE & TRADE POLICY,

INTERNATIONAL COMMITTEE OF LAWYERS FOR

TIBET, INTL. LABOR RIGHTS FUND, INTL. RIVERS

NETWORK, LONG ISLAND PROGRESSIVE COALITION,

JEWISH LABOR COMMITTEE, MERRIMACK VALLEY

PEOPLE FOR PEACE, NATIONAL ASSOCIATION FOR

SOCIALLY RESPONSIBLE ORGANIZATIONS,

PENNSYLVANIA CONSUMER ACTION NETWORK,

PHILADELPHIA BURMA FORUM, PROJECT MAJE,

PROJECT UNDERGROUND, RT. REV. THOMAS SHAW,

EPISCOPAL BISHOP OF MASSACHUSETTS, RUCKUS

SOCIETY, SEATTLE BURMA ROUNDTABLE, UNITED

FOR A FAIR ECONOMY, URSULINE SISTERS OF

TILDONK, WOMEN’S INTERNATIONAL LEAGUE

FOR PEACE & FREEDOM

QUESTIONS PRESENTED

Did the Court of Appeals err in failing to consider the

importance of international human rights law and princi-

ples as authority for the states to adopt a selective pur-

chasing scheme? Did the Court err in overlooking the

broad impact on state laws and long standing practices

dating back to the slave trade?

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED ..............

TABLE OF AUTHORITIES ........................-.-coceceoseceesoeeee

STATEMENT OF AMICI CURIAE AND SUMMARY

GS GES cerncertnsententssiectntinnstininteccbente

REASONS FOR GRANTING THE WRIT ...............

I. THE RIGHT OF STATES TO LEGISLATE IN

ACCORDANCE WITH U.S. OBLIGATIONS

UNDER INTERNATIONAL HUMAN RIGHTS

LAW IS AN IMPORTANT MATTER OF FED-

ERAL LAW WHICH IS UNDERMINED BY

THE DECISION OF THE COURT OF AP-

PEALS

A. International treaties to which the United

States is a party create binding obligations

acknowledged in U.S. law to act affima-

tively to promote respect for human rights....

B. States of the United States have sovereign

authority to condition public spending on in-

ternational human rights principles as an

aspect of their right to legislate for public

TEES One Sak Eee SRE Oe

C. International Human Rights Conventions,

adopted into U.S. law by ratification, reserve

substantial responsibility for enforcement of

human rights norms to the States ................

D. Customary International Law (CIL), as

part of the federal common law, provides

further authority for State legislation in-

tended to promote universal respect for

human rights and suppress its violations......

(iii)

Il.

ITI.

iv

TABLE OF CONTENTS—Continued

E. The First Circuit Court of Appeals was un-

duly influenced by the European Union in

its consideration of international law; a full

consideration of U.S. obligations cannot be

limited to one treaty .....

THE COURT OF APPEALS’ DECISION UN-

DERMINES A TRADITION OF STATES’

INVOLVEMENT IN LEGISLATING TO PRO-

MOTE HUMAN RIGHTS, DATING BACK TO

STATE PROHIBITION OF THE SLAVE

yo ~casenqnastommnesenasnnniommanemmcngaannsnnigtants

THE COURT OF APPEALS DECISION

PLACES THE CONSTITUTIONALITY OF

MANY STATE AND LOCAL LAWS IN

DOUBT, AND MAY LEAD TO A DRAMATIC

INCREASE IN INAPPROPRIATE LEGAL

CHALLENGES .................. .

A. The Court of Appeals decision that selective

purchasing laws are unconstitutional is an

important question of federal law because

of the large number of state and local selec-

tive purchasing laws that could be affected..

B. The Court of Appeals’ reliance on the com-

plaints of foreign countries presents an im-

portant question of federal law because

foreign countries have complained that a

wide variety of state and local laws consti-

I GD I 6 ccccncccrrentrrenmmecnteenngiemens

COROT oncacccnccscsecssnsnseserssessressssessscvescenssenssnsenasnsonesesce

11

12

14

14

19

v .

TABLE OF AUTHORITIES

CASES Page

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.

Ee ee eat SNe A eR 10

Fox Valley and Vicinity Constr. Workers Pension

Fund v. Brown, 897 F.2d 275 (7th Cir.), cert

denied, 498 U.S. 820 (1990) 10

Maro Saldana v. Wyoming, 846 P.2d 604 (Wyo.

1993) 5

NAACP v. Clairbourne Hardware Co., 458 U.S.

EE 12

Nash v. Trustees of Boston University, 946 F.2d

KR ee a ee 10

National Foreign Trade Council v. Andrew S.

Natsios et. al., 181 F.3d 38 (ist Cir., June 22,

eS ee eS 13

Negoski v. Country Life Ins. Co., 843 F.Supp. 372

(N.D. Ill. 1993) 10

Reeves, Inc. v. Stake, 447 U.S. 429 (1980)... 5

Tel-Oren v. Libyan Arab Republic, 726 F.2d 774

7 OS ee ee ae 10

Textile Workers Union v. Lincoln Mills, 353 U.S.

i iintiitititeteeaiinieeceen 11

The Paquete Habana, 175 U.S. 677 (1900) ~........... 9, 10

Trap Rock Industries, Inc. v. Kohl, 284 A.2d 161

(N.J. 1971) 5

Trajano v. Marcos (Marcos Estate I), 978 F.2d

493 (9th Cir.), cert. denied, 508 U.S. 972

IID icistesenemsecsecinanciielbialii is Siiliiiiidinat timate ceammmiaatnas, 10

United States v. Smith, 18 U.S. (5 Wheat.) 153

(1820) ... 10

Xuneaz v. Gramajo, 886 F.Supp. 162 (D. Mass.

1995) = 10

CONSTITUTIONAL PROVISIONS

U.S. Const. art. I, § 9, cl. 1 12

STATUTES

19 U.S.C. § 3512 ........... 20

22 U.S.C. § 2304 5

vi

TABLE OF AUTHORITIES—Continued

Mass. Gen. Laws Ann. Ch. 32, § 23(1) (d) (iii), -

approved April 4, 1983 “

Uruguay Round Agreements Act (URAA) of

1994, P.L. 103-465, § 102, 19 U.S.C. § 3512...

TREATIES AND CONVENTIONS

Constitution of the International Labor Organiza-

tion, 62 Stat. 3485, T.LA.S. No. 1868, 15

U.N.T.S. 35, amended by 7 U.S.T. 245, T.1LA.S.

No. 3500, 191 U.N.T.S. 143 (1953), 14 U.S.T.

1039, T.1.A.S. No. 5041, 466 U.N.T.S. (1962),

U.S.T. 3253, T.1.A.S. No. 7987 (1972) .................

Convention Against Torture and Other Cruel, In-

human or Degrading Treatment or Punishment,

S. Treaty Doc., No. 100-20, 102nd Cong., 2d Sess.

V-vi (1988), G.A. res. 39/46, annex, 39 U.N.

GAOR Supp. (no. 51) at 197, U.N. Doc. 39/51

(1984), entered into force, June 26, 1987 _..........

Convention Concerning the Abolition of Forced

Labor (No. 105), entered into force, Jan. 10,

1957, 320 U.N.T.S. 291, ratified May 14, 1991....

Declaration Concerning the Aims and Purposes of

the International Labor Organization, Annex to

the Instrument for the Amendment of the Con-

stitution of ILO Constitution, entered into force,

Apr. 20, 1948, reentered into force for the

United States, Feb. 18, 1980, 62 Stat. 3485,

T.LA.S. No. 1868, 15 U.N.T.S. 104 ....0000.

Understanding No. 5 of the United States to the

Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punish-

ment, 136 Cong. Rec. $17486 (1992) ...................

United Nations Charter, arts. 55, 56 Stat. 1031,

T.S. 993, entered into force, Oct. 24, 1945 ............

Universal Declaration of Human Rights, G.A. Res.

217A (III), U.N. Doc. A/810 at 71 (1948) .......

MISCELLANEOUS

182 Cong. Rec. $12533, 99th Cong., 2nd Sess.

eS ee a ee

Page,

13

11

vi

TABLE OF AUTHORITIES—Continued

137 Cong. Rec. $5728, 102nd Cong., Ist Sess.

(1991) (STATEMENT OF SEN. HELMS) .................

Amnesty International, “Myanmar: 10th Anni-

versary of Military Repression” (August 7,

1998) po

Appendix to Petition for Writ of Certiorari to the

United States Court of Appeals for the First

TT SE ES ES, Sees eee reer

Charles McLean Andrews, “The Boston Merchants

and the Non-importation Movement” (1968) ....

Hearing of the Ad Hoc Subcommittee on Human

Rights Conventions of the Committee of For-

eign Relations, Feb. 23rd, 1967 —..........000.0000000.....

Hearing, Subcommittee on Labor and Public Wel-

fare on S.J. Res 117, 84th Cong., 2d Sess. (1956)

(statement of Asst. Secretary of Labor Philip

at OAR errr pein nib ll Una eE

Howard N. Fenton, III, “The Fallacy of Federal-

ism in Foreign Affairs: State and Local For-

eign Policy Trade Restrictions, 13 Nw. J. Int'l] L.

& Bus. 563, 568-569 (Spring 1993) ...................

James Gray Pope, “Republican Moments: The

Role of Direct Popular Power in the American

Constitutional Order’, 139 U. Pa. L. Rev. 287....

Kevin P. Lewis, “Dealing with South Africa: The

Constitutionality of State and Local Divestment

Legislation”, 61 Tul. L. Rev. 469, 471-472

a ae eS a

Louis Henkin, The Age of Rights 2 (1996) .............

Matthew Porterfield, “State and Local Foreign

Policy Initiatives and Free Speech: The First

Amendment as an Instrument of Federalism’”’,

§ SS 5° F eee

P statement (Third) of Foreign Relations Law

Eee

f’ »ztatement (Third) of Foreign Relations Law

ER ES SES Ey ree

#HE FEDERALIST No. 43 (James Madison) ..............

Page

_

15, 20

13

12

viii

TABLE OF AUTHORITIES—Continued

Page

U.S. Department of Labor, Report on Labor Prac-

tices in Burma (Sept. 1998) ..............-ccccceeeeeeeee 7

U.S. Embassy, Rangoon, Foreign Economic Trends

Report—Burma (1997) .............cccccececeeeneeeeneeeeeeeeee 7

U.S. State Department Report to Congress (June

RE eS as Da ON 6

STATEMENT OF AMICI CURIAE AND

SUMMARY OF ARGUMENT

Amicus curiae are engaged in aspects of advocacy

for human rights, labor rights, and environmental justice

in Burma and elsewhere, which are threatened by the

decision of the Court of Appeals.* They include religious

and voluntary organizations with over ten million members

active at the local, state, national and international levels.

The parties are concerned with the issues raised by this

case regarding the legal authority of states to use selective

purchasing to fulfill obligations of international law and

to meet the demands of public morality reflected in in-

ternational human rights principles. Specifically, amici

curiae are concerned that the Court of Appeals failed to

properly consider international human rights obligations,

and the effect of the decision on a broad range of state

and local activities in which amici have interests.

Amici curiae have authorized this brief to be filed in

their names by virtue of individual letters on file with

counsel. Counsel to the respondent, National Foreign

Trade Council, has given their consent to the filing of this

amicus brief.

REASONS FOR GRANTING THE WRIT

I. THE RIGHT OF STATES TO LEGISLATE IN

ACCORDANCE WITH U.S. OBLIGATIONS UNDER

INTERNATIONAL HUMAN RIGHTS LAW IS AN

IMPORTANT MATTER OF FEDERAL LAW WHICH

IS UNDERMINED BY THE DECISION OF THE

COURT OF APPEALS

The Supreme Court should grant certiorari because

this case involves significant international human rights

* As required under Supreme Court Rule 37.6, counsel on this

brief disclose that counsel for a party did not author any part of

this brief. Funding for preparation of this brief was provided

through the institutional support of Harvard Law School Human

Rights Program, which is a program for research and clinical legal

education.

2

obligations that were completely discounted by the court

below. The Court of Appeals failed to consider the im-

portance of these obligations, only taking cognizance of

certain disputed obligations under international trade law.

As a result, the ruling of the Court will have a disruptive

effect on a legitimate basis of state legislative authority.

Further, by giving short shrift to the violations of human

rights in Burma, the Court neglected the essential link

between the law and the state’s legislative authority.

International human rights law enables state legislative

authority on three grounds. First, states have sovereign

powers to legislate for the protection of public morality,

of which human rights forms a part (see § B, infra.).

Second, as adopted into U.S. law through Senate ratifica-

tion, states have an explictly recognized role in the im-

plementation of laws (see § C, infra); and third, to the

extent it is customary international law, internationdl hu-

man rights law (IHRL) is incorporated into federal com-

mon law providing separate grounds for state legislative

jurisdiction (see § D, infra.). In its decision, the Court of

Appeals dismissed these considerations, improperly em-

phasizing one component of international obligations and

ignoring the body of IHRL (see § E, infra).

A. International Treaties to Which the United States

Is a Party Create Binding Obligations Acknowl-

edged in U.S. Law to Act Affirmatively to Promote

Respect for Human Rights

The constitutive documents of international human

rights law (IHRL) commit the United States to promote

universal human rights and to take measures to suppress

egregious violations of human rights. Articles 55 and 56

of the U.N. Charter require members of the U.N. to “take

joint and separate action” for the achievement of “uni-

versal respect for and observance of, human rights and

fundamental freedoms for all . . .”. United Nations

3.

Charter, arts. 55, 56 Stat. 1031, T.S. 993, entered into

torce, Oct. 4, 1945. Moreover, the Universal Declaration

of Human Rights (UDHR), the cornerstone of IHRL,

calls on member states to take “progressive measures,

national and international, to secure universal and effec-

tive recognition and observance {of human rights] . . .”.

Universal Declaration of Human Rights, G.A.Res. 217A

(III), U.N. Doc. A/810 at 71 (1948). Finally, the con-

stitutive documents of the International Labor Organiza-

tion (ILO) require member states to implement policies

to bring about universal respect for basic rights, affirming

that “all national and international policies and measures,

in particular those of an economic and financial char-

acter” are acceptable “only in so far as they may be held

to promote and not to hinder” social justice. Declaration

Concerning the Aims and Purposes of the International

Labour Organization, Annex to the Instrument for the

Amendment of the Constitution of ILO Constitution.

entered into force April 20, 1948, re-entered into force

for the United States, Feb. 18, 1980, 62 Stat. 3485,

T.LA.S. No. 1868, 15 U.N.T.S. 104.

International treaties prohibiting slavery and slave-like

conditions, including forced labor and torture, clearly

indicate that enforcement of human rights is the concrete

obligation of every signatory or member, not simply a

diffuse commitment of international organizations. In

ratifying these treaties, the U.S. has committed itself to

the eradication of such violations practiced in Burma.

Thus, for example, ILO Convention (No. 105) Con-

cerning the Abolition of Forced Labor outlaws forced or

compulsory labor in five specific circumstances, which

have been violated by the Burmese military regime. (ILO

105, entered into force, Jan. 10, 1957, 320 U.N.T.S.

291, ratified May 14, 1991.) Among them:

4.

Each Member of the ILO which ratifies this Conven-

tion undertakes to suppress and not to make use of

any form of compulsory labour. . .

(a) as a means of political coercion or education or

as a punishment for holding or expressing politi-

cal views or views ideologically opposed to the

established political, social or economic system;

(b) as a method of mobilising and using labour for

purposes of economic development;

(c) as a means of labour discipline ... .

(Art. 1). Comments made by senators in support of the

ILO Convention indicate an acknowledgment of an im-

plicit extraterritorial purpose. In arguing for passage of

ILO Convention No. 105 in 1967, former Supreme Court

Justice and Ambassador Arthur Goldberg reasoned,

“{[w]hen countries are permitted to use forced labor to

produce goods and services, that, of course, places our

own country at a great competitive disadvantage.” (Hear-

ing of the Ad Hoc Subcommittee on Human Rights Con-

ventions, of the Committee of Foreign Relations, Feb. 23,

1967.) Prior to Senate ratification in 1991, the chair of

the Senate Foreign Relations Committee, Jesse Helms, ex-

plained that the ILO Convention authorizes policy meas-

ures to suppress forced labor outside of the territory of

the United States. (137 Cong. Rec. $5728, 102nd Cong.,

Ist Sess. (1991) (statement of Sen. Helms).

The Convention Against Torture (CAT) also requires

States Parties to take measures to prohibit acts of tor-

ture and cruel, inhuman or degrading treatment or pun-

ishment at home or abroad. It explicitly requires states

to punish torturers (or extradite them to a state that

will do so) no matter what the country of origin. (Art. 4,

CAT, S. Treaty Doc. No. 100-20, 102nd Cong., 2d Sess.

v-vi (1988), G.A. res. 39/46, annex, 39 U.N. GAOR

>

Supp. (no. 51) at 197, U.N. Doc. A/39/51 (1984),

entered into force, June 26, 1987, ratified 1992).

Recognizing these obligations, Congress codified the ob-

servance of human rights as a principal goal of foreign

policy:

The United States shall, in accordance with its inter-

national obligations as set forth in the Charter of the

United Nations . . ., promote and encourage increased

respect for human rights and fundamental freedoms

throughout the world... . Accordingly, a principal

goal of the foreign policy of the United States shall

be to promote the increased observance of interna-

tionally recognized human rights by all countries.

22 U.S.C. § 2304(a)(1).

B. States of the United States Have Sovereign Author-

ity to Condition Public Spending on International

Human Rights Principles as an Aspect of Their

Right to Legislate for Public Morality

In contrast to the enumerated powers of the federal

government, the pewers of states are plenary. See, ¢.g.,

Maro Saldana v. Wyoming, 846 P.2d 604, 646 (Wyo.

1993). States may use their purchasing power to ad-

vance social goals, which include limiting state business

to market actors that comport with standards of integrity

and public morality. Trap Rock Industries, Inc. v. Kohl,

284 A.2d 161, 166 (N.J. 1971). This authority is recog-

nized as an exception to commerce clause limits on state

powers when the state acts as a “guardian and trustee”

of taxpayer resources. Reeves, Inc. v. Stake, 447 US.

429, 438, 441 (1980).

One important measure of public morality is THRL,

defining a body of international standards binding the

United States. It constitutes “those benefits deemed essen-

tial for individual well-being, dignity and fulfillment and

é

. + » @ common sense of justice, fairness, and decency.”

Louis Henkin, The Age of Rights 2 (1996). It is clear

that standards of public morality may be contravened by

international trade that brings products made under

morally abhorrent circumstances into the state of Massa-

chusetts, displacing other products and enabling repressive

governments to continue to violate rights with impunity.

Under the Court of Appeals decision, Massachusetts might

exclude products of local labor or rights abusers from

state purchase, but would be forced to purchase products

created under patently worse conditions abroad. Massa-

chusetts citizens must be allowed to choose whether their

purchasing dollars should support slave labor conditions

in Burma, just as they choose to exclude local producers

who fail to meet local standards of integrity and public

morality.

Such a standard is clearly offended by the human rights

abuses of the current government in Burma. For more

than ten years, the Burmese military regime has consist-

ently committed gross human rights violations. The gov-

ernment “killed thousands of civilians in seizing power,

and has since killed, tortured, raped, imprisoned and

forcibly relocated hundreds of thousands of Burmese peo-

ple.” Amnesty International, “Myanmar: 10th Anniver-

sary of Military Repression,” (August 7, 1998). US.

government, UN and ILO reports document continuing

violations including forced labor, suppression of a dem-

ocratically elected government, and suppression of indi-

vidual political rights. See U.S. State Department Re-

port to Congress (June 13, 1997) 104-106; Appendix,

490-492.

Doing business in Burma inescapably supports the abil-

ity of the Burmese military regime to maintain this abuse

of human rights. Most sectors of the economy depend

upon an infrastructure that has been built with forced

7

labor. See U.S. Department of Labor, Report on Labor

Practices in Burma (Sept. 1998) at 4. International

commeree with companies owned or controlled by the

Burmese military regime, direct business relations with

the regime, and virtually all trade with Burma contribute

to the continuation of human rights violations by provid-

ing support for the government’s balance of payments,

which is directly connected with military expenditures by

the Burmese military regime for purposes of domestic

suppression. See U.S. Embassy, Rangoon, Foreign Eco-

nomic Trends Report—Burma (1997) at 15-16. The

Massachusetts Burma Law is a legitimate response to the

connection between doing business in Burma and the

ability of the Burmese military regime to commit human

rights violations.

C. International Human Rights Conventions, Adopted

Into U.S. Law by Ratification, Reserve Substantial

Responsibility for Enforcement of Human Rights

Norms to the States

The United States has reserved large segments of inter-

national human rights enforcement to the states. Cogni-

zant of the goals of the IHRL conventions and their place

in fulfilling the purpose of the United Nations and the

ILO, Congress has knowingly granted authority to the

states to act with extraterritorial effect.

To this end, Congress has ratified Convention No. 105

on Forced Labor, the CAT, and the International Cove-

nant on Civil and Political Rights (ICCPR). Within each

of these conventions, not only has Congress committed

itself to a long standing obligation to suppress slavery and

forced labor, it has explicitly reserved to the states an

enforcement role.

The Constitution of the ILO (Art. 19.7), overseeing

Convention No. 105 on Forced Labor (instructing mem-

s-

ber States to suppress and not to make any use of forced

or compulsory labor like that currently practiced in

Burma), contains a federalism clause that defers to the

authority of subnational governments, including states.

Constitution of the International Labour Organization, 62

Stat. 3485, T.I.A.S. No. 1868, 15 U.N.T.S. 35, amended

by 7 U.S.T. 245, T.LA.S. No. 3500, 191 U.N.T.S. 143

(1953), 14 U.S.T. 1039, T.I.A.S. No. 5041, 466 U.N.T.S.

(1962), U.S.T. 3253, T.LA.S. No. 7987 (1972). The

role of the states in the application of conventions is also

important.?

. A federalist reservation was included when the U.S.

Senate ratified both the CAT (prohibiting acts of torture

and cruel, inhuman or degrading treatment or punishment

at home or abroad) and the ICCPR (obligating signa-

tories to respect and ensure the enumerated rights to all

individuals without regard to status and to adopt legisla-

tion to put into effect these rights and their remedies).

The ICCPR reservation on federalism (similar to that

adopted for the CAT) states:

That the United States understands that this Con-

vention shall be implemented by the United States

Government to the extent that it exercises legislative

and judicial jurisdiction over the matters covered by

1 U.S. Representative to the ILO, Philip M. Kaiser, explained the

meaning of the ILO Constitution’s federalism clause:

Where, in a country with a federal government like our own,

it is decided that the subject of a convention comes under the

jurisdiction of the constituent states as well as the federal

authority, that particular convention is treated like a recom-

mendation. It is referred to the states for such action as they

care to take... .

Hearing, Subcommittee on Labor and Public Welfare on S.J. Res.

117, 84th Cong., 2d Sess. (1956) (Statement of Asst. Secretary of

Labor Philip M. Kaiser).

the Convention and otherwise by the state and local

governments.

Understanding No. 5, 138 Cong. Rec. $4784 (1992).

Clearly, the obligation to implement these two conven-

tions, one to suppress torture and forced labor, the other

to enforce protection of basic human rights, was explicitly

left in part to the states.

D. Customary International Law (CIL), as Part of

the Federal Common Law, Provides Further Au-

thority for State Legislation Intended to Promote

Universal Respect for Human Rights and Suppress

Its Violations

Since 1900, it has been accepted that CIL forms an

integral part of U.S. law. The Paquete Habana, 175 US.

677 (1900). This Court approved the inclusion of CIL

within the definition of the law of nations, stating that

CIL should be used by courts:

International law is part of our law, and must be

ascertained and administered by the courts of justice

of appropriate jurisdiction as often as questions of

right depending upon it are duly presented for their

determination. /d. at 700.

The American Law Institute’s Third Restatement of

Foreign Relations Law (Restatement), explains that CIL

“results from a general and consistent practice of states

followed by them from a sense of obligation” and is also

created by international agreements “when such agree-

ments are intended for adherence by states generally”.

Restatement (Third) of Foreign Relations Law § 102

(1987).

Violations of CIL as applied in the United States in-

clude “slavery or slave trade,” “torture or other cruel,

inhuman or degrading treatment or punishment,” and “a

consistent pattern of gross violations of internationally

recognized human rights.” Restatement (Third) of For-

eign Relations Law § 102 (1987). All of these violations

have been documented in Burma, and are legitimated and

supported by continued U.S. economic involvement with

the illegitimate ruling regime. Thus, the United States has

a duty to respond to these violations of CIL by appro-

priate means including shaping “its trade, aid or other

national policies so as to dissociate itself from the violat-

ing state or to influence that state to discontinue the

violations”. Restatement (Third) of Foreign Relations

Law § 702, cmt. o (1987).

It is perfectly legitimate for a state to act upon CIL as

translated into U.S. law. As CIL develops, it becomes

part of federal common law. In Xuncax v. Gramajo, 886

F.Supp. 162 (D. Mass. 1995), the court states that “it is

well settled that the body of principles that comprise cus-

tomary international law is subsumed and incorporated

by federal common law.” Xuncax v. Gramajo, 886 F.

Supp. 162, 193 (D. Mass. 1995) (citing The Paquete

Habana, 175 U.S. 677 (1900); United States v. Smith,

18 U.S. (5 Wheat.) 153, 160-61 (1820); Trajano v.

Marcos (Marcos Estate I), 978 F.2d 493, 502 (9th Cir.),

cert. denied, 508 U.S. 972 (1993); Tel-Oren v. Libyan

Arab Republic, 726 F.2d 774, 810 (D.C. Cir. 1984)

(Bork, J., concurring); Filartiga v. Pena-lrala, 630 F.2d

876, 887 (2d Cir. 1980).

Accordingly, states may legislate in a manner consistent

with federal common law. Indeed, in other contexts, in-

cluding ERISA and labor law, courts have relied on state

law to inform and interpret federal common law. Negoski

’ vy. Country Life Ins. Co., 843 F.Supp. 372 (N.D. Il.

1993). See also Fox Valley and Vicinity Constr. Workers

Pension Fund v. Brown, 897 F.2d 275, 281 (7th Cir.),

cert. denied, 498 U.S. 820 (1990); Nash v. Trustees of

Boston University, 946 F.2d 960 (ist Cir. 1991) (citing

il

Textile Workers Union v. Lincoln Mills, 353 U.S. 448,

457 (1957)). The court’s deference to state law is par-

ticularly significant given the federal preemption present

in both ERISA and labor law. Thus, as the Massachu-

setts Burma statute is consistent with CIL and federal

common law, it should be viewed as contributing to, rather

than contradicting, federal law.

E. The First Circuit Court of Appeals Was Unduly

Influenced by the European Union in Its Considera-

tion of International Law; a Full Consideration of

U.S. Obligations Cannot Be Limited to One Treaty

The First Circuit Court of Appeals cited the opinion of

a European Union official that the Massachusetts Burma

Law is “an attack on international law.” However, the

“international law” referred to, the World Trade Organi-

zation (WTO) Government Procurement Agreement, is

but one component of a complex and well-developed body

of law. Further, WTO implementing legislation unam-

biguously prohibits private causes of action such as the

National Foreign Trade Council (NFTC) challenge to

the Massachusetts Burma Law that are related to the

alleged inconsistency of a state law with WTO rules.

Uruguay Round Agreements Act of 1994 (URAA). P.L.

103-465, § 102; 19 U.S.C. § 3512.

As argued in Section A, supra, if considered within the

context of a complete collection of instruments that com-

prise THRL, the Court should find U.S. obligations broad

and inclusive. These instruments require all levels of the

U.S. government to respect and protect the rights enumer-

ated therein.

12

Il. THE COURT OF APPEALS’ DECISION UNDER-

MINES TRADITION OF STATES’ INVOLVEMENT

IN LEGISLATING TO PROMOTE HUMAN RIGHTS,

DATING BACK TO STATE PROHIBITION OF THE

SLAVE TRADE

The Decision of the Court of Appeals undermines a

long tradition of state activism at the juncture of inter-

national trade and human rights. From the abolition of

the slave trade to apartheid in South Africa, a rich tradi-

tion of state activism has helped give voice to citizen

concern and indeed, shaped domestic and foreign policy.

When the drafters of the Constitution agreed to bar fed-

eral legislation to ban the slave trade (until 1808), there

was no implication that states would have to follow suit.

U.S. Const. art. I, § 9, cl.1. In fact, the authors of the

Federalist Papers pleaded with the states to take action

during that period. Despite the absence of federal legis-

lation, the practice of slavery “may be totally abolished,”

wrote James Madison, “by a concurrence of the Few

States which continue the unnatural traffic, in the pro-

hibitory example which has been given so great a majority

of the Union.” THE FEDERALIST 43 (James Madison).

Economic boycotts have been a traditional method

adopted by states and municipalities to convey the senti-

ments of the population since the Boston Tea Party. See

James Gray Pope, Republican Moments: The Role of

Direci Popular Power in the American Constitutional

Order, 139 U. Pa. L. Rev. 287 (citing colonial boycotts

used to oppose British rule); Charles McLean Andrews,

The Boston Merchants and the Non-importation Move-

ment (1968). See further Briefs for Petitioner, NAACP

v. Claibourne Hardware Co., 458 U.S. 886 (1982) (de-

scribing boycotts as historically significant), as cited in

Matthew Porterfield, State and Local Foreign Policy Initi-

atives and Free Speech: The First Amendment as an In-

strument of Federalism, 35 Stan. J. Int'l Law at 41 (1999).

13

This tradition of activism on the local and state level

continues as a hallmark of American political involve-

ment. As the Court of Appeals notes, at least 19 munici-

pal governments have enacted analogous laws restricting

purchases from companies that do business in Burma.

Other jurisdictions have enacted similar laws relating to

China, Cuba, Nigeria, and other nations. National For-

eign Trade Council v. Andrew S. Natsios et al., 181 F.3d

38, 47 (1st Cir., June 22, 1999).

State procurement limits or divestment have been

adopted to influence other foreign issues, including per-

ceived employment discrimination against the Catholic

minority in primarily Protestant Northern Ireland. Four-

teen states, including Connecticut, Massachusetts, New

Jersey, New York, and Rhode Island, and 34 cities have

enacted advisory or mandatory divestment laws directed

towards firms that have business relationships with North-

ern Ireland. Howard N. Fenton, III, The Fallacy of

Federalism in Foreign Affairs: State and Local Foreign

Policy Trade Restrictions, 13 Nw. J. Int'l L. & Bus. 563,

568-569 (Spring 1993).

Indeed, Massachusetts approved a restriction on invest-

ment in firms that sell weapons or munitions that are used

in Northern Ireland. An Act Terminating the Investment

of Public Pension Funds in Firms Contributing to the

Oppression in Northern Ireland, Mass. Gen. Laws, Ann.

Ch. 32, § 23(1)(d) (iii), approved April 4, 1983.

Divestment in South Africa was spearheaded by state

and local jurisdictions for nearly two decades in express

disagreement with the stated federal policy of constructive

engagement. In the end, however, it culminated in the

federal Comprehensive Anti-Apartheid Act of 1986. By

the fall of 1985, divestment bills had been enacted by

19 states and 62 cities and counties. Kevin P. Lewis,

Dealing With South Africa: The Constitutionality of State

14

and Local Divestment Legislation, 61 Tul. L. Rev. 469,

471-472 (February 1987).

Placing these issues within a constitutional framework,

Professor Laurence Tribe of Harvard Law School ad-

dressed the U.S, Senate on this matter, stating that although

U.S. foreign policy is constitutionally reserved to the fed-

eral government, “it is equally fundamental that states and

their public subdivisions are assigned the responsibility,

under our Constitution, of deciding where and how to in-

vest the public resources they collect through taxing and

other sovereign measures.” Absent a Congressional choice

to “displace this historically localized responsibility” of

states, Tribe explains, “{T]Jhere is nothing in federal con-

stitutional law that could conceivably support taking from

state legislatures and municipal authorities this basic con-

trol over their own economic destinies.” 132 Cong. Rec.

$12533, supra.

Ill. THE COURT OF APPEALS DECISION PLACES

THE CONSTITUTIONALITY OF MANY STATE

AND LOCAL LAWS IN DOUBT, AND MAY LEAD

TO A DRAMATIC INCREASE IN INAPPROPRIATE

LEGAL CHALLENGES

A. The Court of Appeals Decision That Selective Pur-

chasing Laws Are Unconstitutional Is an Impor-

tant Question of Federal Law Because of the Large

Number of State and Local Selective Purchasing

Laws That Could Be Affected

The Court of Appeals decision could result in com-

merce clause and foreign affairs challenges to a wide

variety of state and local procurement laws. This is be-

cause the First Circuit rejected the Massachusetts assertion

that the Burma Law involves the state’s power to act as a

market participant, rather than as a market regulator, and

thus is not subject to the limitations of the foreign com-

merce clause or the federal foreign affairs power. See

1S

Appendix to Petition for Writ of Certiorari to the United

States Court of Appeals for the First Circuit (“Pet. App.”)

at 36-38, 48-50.

As the Court of Appeals noted, many jurisdictions have

selective purchasing laws similar to the Massachusetts law

that restrict their procurement of goods and services from

companies that do business in countries that suppress

democracy and violate human rights. See Pet. App. at 10.

In addition to procurement measures intended to express

support for democracy and human rights, numerous mu-

nicipalities and 48 states have adopted at least one envi-

ronmental procurement preference that could be challenged

under the Court of Appeals’ reasoning.2? The 48 state

environmental purchasing preferences include: 34 states

with preferences for recycled materials generally, 20

2 As with the Massachusetts Burma law, foreign governments

have suggested that environmental procurement preferences con-

stitute trade barriers. See European Commission, REPORT ON

UNITED STATES BARRIERS TO TRADE AND INVESTMENT at 2 and 18-19

(Brussels, Oct. 1998); Department of Foreign Affairs and Inter-

national Trade, REGISTER OF UNITED STATES BARRIERS TO TRADE at

14 (Ottawa, Jan. 1999); Ministry of International Trade & Invest-

ment, 1998 REPORT ON THE WTO CONSISTENCY OF TRADE POLICIES

BY MAJOR TRADING PARTNERS (Japan 1998).

3 Alaska Stat. § 86.30.8387 (Michie 1998); Cal. Pub. Cont. Code

§ 12310 (West 1998); Del. Exec. Order 82 (1990); Fla. Stat. Ann.

§ 287.045 (West 1998); Haw. Rev. Stat. § 108D-1005 (1997): 415

fll. Comp. Stat. 20/3 (West 1998); Ind. Code § 5-22-15-16 (Michie

1998); Iowa Code Ann. § 216B.3 (West 1997); Kan. Stat. Ann.

§ 75-3740b (1997); Ky. Rev. Stat. Ann. § 45A.520 (Banks-Baldwin

1998); La. Rev. Stat. Ann. § 30:2415 (West 1998); Me. Rev. Stat.

Ann. tit. 5, § 1812 (West 1997) (recycled materials other than

paper); Md. Code Ann., State Fin. & Proc. § 14-402 (1998); Minn.

Stat. Ann. §16B.121 (West 1998); Miss. Code Ann., § 49-31-7

(1998); Mo. Ann. Stat. § 34.081 (West 1997) (recycled solid waste

materials); Mont. Code Ann. § 75-10-806 (1997); Neb. Rev. St.

§ 81-15,159 (Michie 1998) ; Nev. Rev. Stat. § 386.417 (1997); N.H.

Rev. Stat. Ann. § 21-I:11 (1997); NM. Stat. Ann. § 18-I-135.1

(Michie 1998); N.Y. Pub Auth. Law § 2878-a (McKinney 1998) ;

16

states with separate purchasing preferences for recycled

paper, and several addressing other recycled materials.°

Many local governments have also adopted procurement

policies for products with recycled content, ranging from

paper ® to street signs* to playgrounds to park benches

N.C. Gen. Stat. § 130A-309.14 (1997); Ohio Rev. Code Ann.

§ 125.082 (West 1998) ; Okla. Stat. Ann. tit. 74, § 85.53 (West 1998) ;

Or. Rev. Stat. § 279.570 (1997); R.I. Gen. Laws § 37-2-76 (1997) ;

S.C. Code Ann. § 44-96-140 (1997) (recycled and recyclable mate-

rials) ; S.D. Codified Laws § 5-23-41 (Michie 1998); Tex. Health &

Safety Code § 361.426 (West 1998); Vt. Stat. Ann. tit. 3, App. Ch.

7, Exec. Order 24-86 (recycled materials and nonwasteful packag-

ing) ; Wash. Rev. Code Ann. § 43.19.A.005 (West 1998) W. Va. Code

§ 20-11-7 (1998); Wis. Stat. Ann. § 16.72 (1998).

4 Alaska Stat. § 36.30.3383 (Michie 1998); Ariz. Rev. Stat. Ann.

§ 41-2533 (West 1998) ; Ark. Code Ann. § 19-11-260 (Michie 1998) ;

Cal. Pub. Cont. Code § 12162 (West 1998) ; Cal. Educ. Code § 32373

(West 1999) (educational agencies) ; Colo. Rev. Stat. Ann. § 24-103-

207 (West 1998); Conn. Gen. Stat. Ann. § 4a-67a (West 1998) ;

Ga. Code Ann. § 50-5-60.2 (Michie 1998); Me. Rev. Stat. Ann. tit. 5,

§ 1812-B (West 1997); Mass. Gen. Laws Ann. ch. 7 § 22 (West

1998); Mich. Comp. Laws Ann. § 18.1261b (West 1998); Minn.

Stat. Ann. § 16B.122 (West 1998); N.J. Stat Ann. § 13:1E-99.27

(1998); N.D. Cent. Code § 54-44.4-08 (1997); Or. Rev. Stat.

§ 279.630 (1997) (recycled and recyclable); 53 Pa. Cons. Stat.

§ 4000.1511 (1999); S.D. Codified Laws 5-23-22.4 (Michie 1998);

Tenn. Code Ann. § 68-211-606 (1998); Tex. Gov’t Code Ann.

§ 2155.446 (West 1998); Utah Code Ann. § 63-56-20.7; Va. Code

Ann, § 11-47.2.

5 E.g., Colo. Rev. Stat. Ann. § 8-19.5-101 (West 1998) (plastics) ;

Conn. Gen. Stat. Ann. § 4b-5la (West 1998) (construction mate-

rials); Idaho Code § 40-707 (1998) (highway construction and

maintenance) ; 58 Pa. Cons. Stat. § 479 (1999) (oil products); Tex.

Gov’t Code Ann., § 2155.447 (West 1998) (oil products).

6 F.g., D.C. Code Ann. § 6-3413 (1998); N.Y.C. Admin. Code § 6-

122 (1998) ; City of Richmond Code (Virginia) § 22-4 (1993).

7 Columbus, Ohio has an ordinance requiring street signs to be

made from recycled materials. Eleanor Lewis & Eric Weltman,

Government Buying Can Save Tax Dollars and the Environment,

Int'l City-County Mgmt. Ass’n, Feb. 1993, at 2.

17

and fences,® to ordinances creating a general preference

for recycled materials. Other environmental procurement

measures at the state and local level aim to reduce de-

pendence on petroleum-based products. These include

nine states with price preferences for soybean-based ink,!°

five states with statutes requiring bio-based or clean alter-

native fuel for governmental motorized vehicles," and a

variety of statutes and ordinances requiring energy effi-

ciency to be taken into account in procurement decisions.“

8 Chicago recently adopted an ordinance with a purchasing prefer-

ence for playgrounds, park benches and fences made from recycled

plastic. Alice Horrigan, Choosing to Recycle—B scause it Pays, E,

Mar. 13, 1997.

9F.g., Baltimore County Code § 15-91 (1988); Itasca County,

Minnesota, see Lewis & Weltman, supra, King County, Washington,

see Richard Keller, Buying Recycled: Investing Dollars to Close the

Loop, World Wastes, Jan. 1994; City of Los Angeles Admin. Code,

art. 6, § 10.32 (1998); Newark, New Jersey, see Lewis & Weltman,

supra.

10 Ark. Code Ann. § 19-11-102 (Michie 1998); 30 Ill. Comp. Stat.

500/45-15 (West 1998); 50 Ill. Comp. Stat. 520/10 (West 1998)

(local government purchases and contracts) ; Ind. Code § 5-22-15-18

(1998) ; Iowa Code Ann. § 216B.3 (West 1998); Ky. Rev. Stat. Ann.

§ 57.035 (Banks-Baldwin 1997): Minn. Stat. Ann. § 16B.121 (West

1998); Mo. Ann. Stat. § 34.175 (West 1997); N.D. Cent. Code

§ 54-44.4-07 (1997); S.D. Codified Laws § 5-23-37 (Michie 1998).

Iowa also has a preference for soybean-based hydraulic fluids. Iowa

Code Ann. § 307.21 (West 1998).

11 Cal. Eduuc. Code § 17911.5 (West 1998) (clean fuel school

buses) ; Conn. Gen. Stat. Ann. § 4a-59 (West 1998) (clean alterna-

tive fuel); Ind. Code § 5-22-15-19 (1998) (soy diesel, bio-diesel) ;

Towa Code Ann. § 18.18 (West 1997) (minimum ethanol require-

ments and alternative methods of propulsion); Wash. Rev. Code

Ann. § 43.19.637 (West 1998) (clean fuel motorized vehicles).

12 The statutes include Ariz. Rev. Stat. Ann. § 34-455 (buildings)

(West 1998); Conn. Gen. Stat. Ann. § 16a-38 (West 1998) (life-

cycle cost analyses in major capital projects); Minn. Stat. Ann.

§ 216C.19 (West 1998) (roadway lighting; N.H. Rev. Stat. Ann.

§ 21-I:19-a (1997) (buildings); Or. Rev. Stat. § 276.915 (1997);

Tex. Gov’t Code Ann. § 2166.403 (1999) ; Vt. Stat. Ann. tit. 3 § 2291

18

Another type of state and local environmental procure-

ment policy is a limit on tropical hardwood purchases.

To date, three states and nine cities have passed laws that

limit the purchase of wood from tropical rainforests, only

buying tropical timber that is harvested using ecologically

sound management practices.'*

In addition to environmental objectives, local govern-

ments have also used their purchasing power to promote

fair labor practices. Dozens of cities and counties—in-

cluding Pittsburgh, Cleveland, and San Francisco—have

laws banning the procurement of products made in sweat-

shops.1* Similarly, nearly two dozen cities require com-

(1998) ; Wis. Stat. § 16.847 (1998). New York City requires gov-

ernment purchases of motor vehicles to be low emissions vehicles.

N.Y.C. Admin. Code § 6-121 (1998). Auustin, Texas has a purchas-

ing preference for solar electric systems, see Lewis & Weltman,

supra, while San Jose, CA requires streetlights to be energy effi-

cient, and Phoenix, Arizona requires energy efficiency in all munici-

pal building lighting, see id.

13 Ariz. Rev. Stat. Ann. § 34-201 (West 1998); N.Y. State Fin.

Law § 165 (McKinney 1998); Tenn. Code Ann. § 4-3-1112 (1998) ;

Baltimore, Maryland, Ord. No. 635 (passed 1991), see John Javna,

Now let’s remind your rep: Rally behind recycling bill, Atlanta J.

and Atlanta Const. Mar. 24, 1991, available in 1991 WL 7779914;

Bellingham, Washington, Resolution No. 43-90 (passed Aug. 1990) ;

Berkeley, California (tropical hardwoods, redwoods) (Renee Koury,

Endangered Timber Banned in Berkeley, L.A. Daily News, Oct. 30,

1995, available in 1995 WL 5424835); Los Angeles, California, see

Tracey Kaplan, Children Get City to Bar Hardwoods, L.A. Times,

Oct. 9, 1991 available in 1991 WL 2221464; Long Beach, California,

see “Tropical Timber Trade Restrictions,” Rainforest Relief (Jan.

27, 1999 facsimile); San Francisco, Ordinance No. 391-90; Santa

Clarita, California, see Kaplan, supra; Santa Monica (California)

Mun. Code, ch. 2.28; Ventura, California, see Tina Daunt, Ventura

City Hall Joins Boycott of Hardwoods, L.A. Times, Mar. 17, 1992,

available in 1992 WL 2937933.

14 See U.S. Newswire, Pittsburgh Joins City Fight Against

Sweatshops (Sept. 23, 1998); Linda Himelstein, Going Beyond City

Limits? Municipalities Are Exercising Their Clout on Social Issues

—And Business Is Balking, Bus. Wk. (July 7, 1997).

19

panies receiving municipal contracts to pay their employees

a “living wage.” All of these laws could be subject to

challenge based upon the Court of Appeals’ ruling that

market participation measures are subject to the self-

executing limits of the federal foreign affairs power and

the foreign commerce clause.

B. The Court of Appeals’ Reliance on the Complaints

of Foreign Countries Presents an Important Ques-

tion of Federal Law Because Foreign Countries

Have Complained That a Wide Variety of State

and Local Laws Constitute Trade Barriers

In addition to threatening state procurement laws, the

Court of Appeals’ reliance on complaints by foreign gov-

ernments could provoke challenges to various other types

of state law. The European Union (EU) has argued that

numerous kinds of state law constitute trade barriers, in-

cluding subsidies,7® health and safety standards,” environ-

mental standards * and taxation of multinational corpo-

rate income.” Based on EU trade reports and the World

Trade Organization (WTO) provisions that they cite, a

1994 study identified 90 potential conflicts between WTO

provisions and state law in California alone.” Canada

has similarly complained about various categories of state

law including state-level inspection requirements for goods

15 Yumi Wilson, S.F. Sets Up 15-Member Panel to Study Effect of

Living-Wage Law, S.F. Chron. A283 (Nov. 24, 1998) available at

1998 WL 3928728.

16 See European Commission, REPORT ON UNITED STATES BARRIERS

TO TRADE AND INVESTMENT at 23 (Brussels, Oct. 1998).

17 Jd. at 11.

18 Id.

19 Jd. at 5.

20 See Robert Stumberg, GATT Impact ON STATE Law: CALI-

FORNIA (Center for Policy Alternatives, 1994).

20

and food safety, licensing and taxation of alcoholic

beverages,” and newsprint recycling requirements.”

Congress anticipated that state laws could be challenged

as conflicting with trade agreements, and it specifically

prohibited any party from asserting a private cause of

action based upon such alleged conflicts. See Pet. App.

at 26, citing 19 U.S.C. § 3512. Accordingly, the decision

of the Court of Appeals should be reversed in order to

prevent litigation challenging state laws on the grounds

that they encroach upon federal power to regulate foreign

affairs or foreign commerce because the laws are incon-

sistent with WTO trade agreements.

CONCLUSION

This Court should grant petitioner’s writ of certiorari

in order to affirm the rights of states to legislate in accord-

ance with international human rights law and principles,

and alleviate the uncertainties about existing laws and

regulations created by the Appeals Court’s decision.

Respectfully submitted,

DEBORAH ANKER

Counsel of Record

HARVARD IMMIGRATION &

REFUGEE CLINIC

ta 197 Friend Street - Suite 800

Boston, MA 02114

October 20, 1999 (617) 371-1234

21 See Department of Foreign Affairs and International Trade,

REGISTER OF UNITED STATES BARRIERS TO TRADE at 13 (Ottawa, Jan.

1999).

22 Id. at 15.

23 Id.