Volume XV, No. 6

International LawQuarterly

See “Failte’,” page17

12/98

THE FLORIDA BAR Winter 1999

Failté 1: The Status of Scottish Claims toSecession Under International Lawby Joseph Ross Gibson2

Joseph Gibson was this year’s firstplace winner of the Writing for Real-ity Competition sponsored by the In-ternational Law Section.

They may take our lives, but they willnever take our freedom!

–William Wallace3

Scotland, MY land . . . The troublewith Scotland is that it is full ofScots!

–King Edward I Plantagenetof England4

I. Delimitation of ProblemThe Right of States to Territorial

Integrity holds an honored positionin the realm of international norms.5

Territorial Integrity, like the entireUnited Nations system, was an out-growth of the hell that was the Sec-ond World War.6 The Right of Statesto Territorial Integrity was a re-sponse to the expansionist policies ofNazi Germany and Imperial Japan

which launched the Global Commu-nity into a winner-takes-all contest inwhich freedom and peace were thestakes. To prevent such a war fromoccurring again, the United NationsCharter (Charter) was drafted andTerritorial Integrity, along with thePrinciples of Non-Aggression7 andSelf-Defense,8 was placed upon ahigh pedestal. Status quo became ofoverriding importance becausechange, as the World’s experiencefrom 1914-1945 taught, meant disas-ter.9

However, somewhat ubiquitously,the Charter also declares that one ofits purposes is the promotion of equalrights and the self-determination ofpeoples.10 This Principle of Self-De-termination seems, at first blush, tobe in square conflict with the Rightof States to Territorial Integrity. In-deed, these two principles have col-lided, on occasion, in the Interna-tional Court of Justice.11 However,which of these principles should bethe victor in a given situation has notbeen adequately answered, and theinconclusive debate over a Right toSecession continues.12

This paper will examine the clash-ing of these high principles in theScottish context. Therefore, for ourpurposes, the question shall be:Does Scotland have a Right to Secedefrom the United Kingdom?

II. Conflicting ClaimsScotland claims a right to Self-

Determination based upon Article1(2) of the United Nations Charter.The United Kingdom resists thisclaim on the basis of its right to Ter-ritorial Integrity as enumerated inArticle 2(4) of the Charter.

III. Past Trends andDecisions

A. Self-Determination in the Colo-nial Context

• The Florida Bar Website: www.flabar.org • International Law Section Website: www.dos.state.fl.us/ils •

On the Calendar:January 22, 1999

International Agricultural Law Seminar, 8:00 am - 5:00 pmOmni Colonade, Coral Gables

(See other scheduled events, page 5.)

INSIDE:

Chair’s Message ....................................... 2Seminar: 17th Annual International Tax

Conference ............................................. 4

Meet the International Law StudentAssociation ............................................. 5

Service of Processing in Mexico—What are the Alternatives? .................... 6

EUROpe’s New Currency ......................... 8

Florida’s IOTA Program After Phillips ..... 10

International Tax Briefs ........................... 11

11th Annual Conference on Legal Aspectsof Doing Business in Latin America .... 14

Florida Chamber’s International BusinessForum .................................................... 16

2

The Right of Self-Determinationhad very auspicious beginnings. Self-Determination, as a legal concept,had its genesis in Woodrow Wilson’s“Fourteen Points,” his plan for re-building the scarred Earth after theFirst World War.13 The principle wasenunciated as one of the high pur-poses of the United Nations.14 How-ever, due to the potential for disrup-tion that an unfettered right ofSelf-Determination could cause, itwas carefully circumscribed to pro-tect the status quo.15 Self-Determina-tion was (and still is) perceived byStates to be somewhat of a maverick.To prevent the far-reaching effects ofSelf-Determination, it had to be nar-rowly tailored to exclude a naturaloutgrowth of the concept—seces-sion.16 Secession was perceived as athreat: to the territorial integrity ofStates, as well as peace and secu-rity.17 This perceived threat “meant

that [secession] had to be distin-guished from the more general rightof self-determination.”18

Like Victor Frankenstein, who cre-ated his “monster” with the hope ofbenefiting humanity and then soughtto destroy it before it could destroyhumanity,19 the International com-munity tried to reign in the “monster”of self-determination it had createdbefore it could wreak havoc on theWorld.20 The International Commu-nity, specifically the Western States,initially sought to curb Self-Determi-nation by, essentially, pretending thatit did not exist: “[T]he omission ofself-determination and minorityrights from the 1948 Universal Dec-laration on Human Rights clearlydemonstrated the lack of enthusiasmfor these principles.”21 Furthermore,the United Nations declared its “un-equivocal” view toward Secession:“[T]he United Nations has never ac-cepted and does not accept and I donot believe that it will ever accept theprinciple of secession of a part of itsmember State.”22

However, before Self-Determina-tion could be consigned to the slowdeath of desuetude, it was funneledinto a new direction—decoloniza-tion.23 A mere two years after theUniversal Declaration on HumanRights, the United Nations GeneralAssembly determined that Self-De-termination is a fundamental humanright.24 The resurgence of Self-Deter-mination and its union withdecolonization was the result of theincreased voice of African and AsianStates in the United Nations.25 TheCharter already contemplateddecolonization, but the Charter uti-lized a slow process, which would notnecessarily, end with the indepen-dence of Colonial Territories.26

This resurgence of Self-Determi-nation found its expression in tworesolutions of the General Assembly.The first, the Declaration on theGranting of Independence to Colo-nial Countries27 declared that “[t]hesubjection of peoples to alien subju-gation, domination and exploitationconstitutes a denial of fundamental

Failte’from page 1

Chair’s Message1999 will bring

to power a newgroup of Floridaelected officials.From the Gover-nor and Cabinet tothe Legislature,new people willbring forward newideas, many ofwhich may have a

substantial effect on questions of in-ternational law.

One of the new forces in Floridagovernment is Secretary of State-elect Katherine Harris. Many of usrecognize Ms. Harris as former chairof the Florida Senate committee con-cerned with international commerceand foreign affairs. As chair of thatcommittee, Senator Harris was a con-sistent supporter of Florida interna-tional issues, and sponsored the pas-sage of a number of importantinternational initiatives. She hasalso been a steady friend of the In-ternational Law Section.

It is not generally known thatFlorida law grants broad authority tothe Secretary of State in interna-tional affairs. For example, the Sec-retary of State is responsible for con-sular relations (288.816, F.S.),monitors the proper observation inFlorida of U.S. treaty obligations(288.816, F.S.), is the state’s chief pro-tocol officer (15.19, F.S.), and admin-isters the qualification and appoint-ment of Florida International/Civil-law Notaries (Ch. 118, F.S.).With these and a host of other inter-national duties awaiting her, it is for-tunate that Senator Harris is alreadya devoted student and advocate ofinternational affairs.

I met with Senator Harris lastweek. We agreed that the Interna-tional Law Section represents a valu-able asset in moving forward theagenda of international law and com-merce in our state. She told me thatshe looks forward to the Interna-tional Law Section serving as advi-sor to her department on interna-

tional legal matters, and expects tocall on us often both to review pro-posals and to propose new ideas.

This closer relationship withFlorida state government further in-stitutionalizes our central role in de-veloping international law and busi-ness policy in Florida. It is a role weshould further develop by utilizingour worldwide contacts to help in thedevelopment of our state’s interna-tional business. By doing this, we allprosper.

The opportunity offered to us by aSecretary of State-elect so committedto fulfilling her responsibilities in in-ternational affairs should not bemissed. I invite all of you to partici-pate in this new dialog with our stategovernment, and to communicateyour thoughts and suggestions to meor to our Government Relations Com-mittee as soon as possible. Look forupdates on this initiative in futureissues of the International Law Quar-terly.

— L. Janá Sigars-Malina, Chair

3

human rights, is contrary to theCharter of the United Nations and isan impediment to the promotion ofworld peace and co-operation.”28

Therefore, “[a]ll peoples have theright to self-determination; by virtueof that right they freely determinetheir political status and freely pur-sue their economic, social and cul-tural development.”29 Resolution1514 called for the immediate end ofcolonialism and the transfer of “allpowers” to the peoples of colonial ter-ritories.30 The second resolution,Principles which should Guide Mem-bers in determining whether or Notan Obligation Exists to Transmit In-formation under Article 73(E) of theCharter,31 details the principleswhich should guide Member States toensure that former colonial territo-ries progress toward a “full measureof self-government.”32 “A full measureof self-governance” would be reachedby a former colonial territory becom-ing independent, freely associatedwith an independent State, or by in-tegration with an independentState.33

This general trend of linking Self-Determination to the decolonizationprocess has repeated itself time andtime again. The Declaration on Prin-ciples of International Law Concern-ing Friendly Relations and Coopera-tion Among States in Accordancewith the Charter of the United Na-tions states that the “subjugation ofpeople to alien domination consti-tutes a violation of the principle of[self-determination].”34 The Declara-tion on the Definition of Aggression35

also indicated that a right of Self-Determination attached to “peoplesunder colonial or racist regimes orother forms of alien domination.”36

The International Court of Justice(ICJ) has also observed that “a veri-table law of decolonization is in thecourse of taking shape. It derives es-sentially from the principle of self-determination.”37 Such weighty au-thority has led one commentator toconclude that “there is almost com-plete unanimity that self-determina-tion applies to colonial peoples.”38

Self-Determination may have ap-plied in the colonial context. But,what exactly is the “colonial context”?Who are the “colonial peoples” en-titled to the precious Right of Self-Determination? The answers to thesequestions led to the formulation of

the “Salt Water Doctrine.”39 Simplystated, the “Salt Water Doctrine” pro-vided that only those territories thatwere separated from “metropolitanareas” by the high seas would bedeemed colonial territories and thepeoples thereof are, therefore, en-titled to Self-Determination.40

However, two unfortunate conse-quences arose from this resurgenceof Self-Determination. First, theRight to Self-Determination, in Reso-lution 1514, was subordinated to ter-ritorial integrity.41 Secondly, and per-haps more damaging, Self-Deter-mination was, arguably, inextricablyentwined with the decolonizationprocess.42 This second consequence ismost disturbing because, when astate of complete decolonization isattained, the “fundamental right” ofpeoples to Self-Determination willevaporate. However, there does existevidence that the right to Self-Deter-mination does exist in the extra-Co-lonial context.43

B. Self-Determination in the Ex-tra-Colonial Context: The Case ofScotland

1. Historical BackgroundThe history of Scotland is one of

perseverance, and even triumph, inthe face of adversity. Scottish nation-alism—the spirit of the Scottishpeople to be free—has been alive andwell from the very infancy of theScottish State. In 80 A.D., the RomanGeneral Agricola led an invasionaryforce of 8,000 infantry and 5,000 cav-alry from Roman Britain into Scot-land.44 The Celtic45 warleaderCalgacus46 led several tribes intobattle against the Roman legions atMons Graupius.47 Although Tacitus,Agricola’s son-in-law and sole re-corder of the events at MonsGraupius, described the Battle as a“great Roman victory,” the simple factremains that after the battle,Agricola moved his army south-ward—never to return north againwith such a large force.48 Forty-twoyears later, the Roman EmperorHadrian constructed a wall to sepa-rate Roman Britain from the Celtictribes to the north—this border hasremained, more or less, the boundarybetween England and Scotland tothis day.49

The modern Scottish State wasborn in 843 A.D. when KennethMacAlpin, King of Scottish Dalriada,ascended to the throne of the Pictish

Kingdom.50 The Picts were the de-scendants of the original Celtictribes, which inhabited Scotland andfought off Agricola centuries ago.51

The Dalriadans52 were also Celticpeoples, but they were descendantsof Celtic tribes in Ireland who mi-grated to Scotland in the sixth cen-tury.53

In 945 A.D., English claims onScottish territory found their rootwhen King Malcolm I of Scotlandpledged to be the “fellow worker bothby sea and land” of King Edmund Iof England.54 “The phrase was meant. . . to indicate that Malcolm wouldprovide troops and ships in any warsfor which the English king might de-mand them.”55 In exchange for thispromise, Malcolm was given theKingdom of Cumbria.56 In short,Malcolm swore a form of “fealty” toEdmund—service in war in exchangefor land and title.

These ties were further cementedin 1057 when Malcolm III usurpedthe Scottish throne by defeating KingMacBeth at Lumphanan.57 MacBethhad ruled Scotland for seventeenpeaceful years.58 Malcolm was raised,in exile, in London.59 However,Malcolm won the Battle with Englishhelp “and among his supporters wereScottish lords who had ties to En-gland. Some perhaps had obligations.Thus were sown the seeds of an ‘En-glish party’ in Scotland, and thesewere to flourish, with terrible re-sults.”60 Unlike his predecessorMacBeth, he spoke English notGaelic.61 Therefore, English wouldbecome the court language of Scot-land.62 In order to converse with theking or his officials, Scots had to learnthis new language.63

In addition to the new language, anew form of government began to betransported from England (now un-der Norman suzerainty) to Scot-land—Feudalism. Feudalism firstappeared in Scotland during thereign of King David I (1124-1153).64

Feudalism in Scotland was neverwidespread, it came into usage onlyin the Lowlands; the Highlands wereresistant to this change:65

[Feudalism] was doomed to pro-duce results in Scotland that theking neither bargained for norwanted. First, it widened the gulfbetween the king (and his lowlandassociates) and the Highlanders,

continued, page 17

4

The Florida Bar Continuing Legal Education Committee,the Tax Section and the Florida Institute of

Certified Public Accountants present

The 17 th AnnualInternational Tax Conference

COURSE CLASSIFICATION: ADVANCED LEVEL

One LocationJanuary 14-15, 1999

Wyndham Miami Beach Resort4833 Collings Ave., Miami Beach

Course No. 4595R

Thursday, January 14, 1999

8:30 a.m. – 9:00 a.m. Late Registration

9:00 a.m. – 9:50 a.m.Nonresident Alien Domiciliary Estate & Gift Tax Audit Issues• Robert S. Blumenfeld, Senior Attorney, Internal Revenue

Service Washington, D.C.

9:50 a.m. – 10:40 a.m.Struggling With Certain International Tax ComplianceRequirements• John S. Tenenholtz, Esq., Freeman, Butterman & Haber, LLP,

Miami

10:40 a.m. – 11:00 a.m. Break

11:00 a.m. – 11:50 a.m.International Estate Planning Developments With Emphasison Qualified Domestic Trust Issues, Expatriation Aspects,and Other New Developments• Michael Rosenberg, Esq., Packman, Neuwahl & Rosenberg,

Coral Gables

11:50 a.m. – 1:20 p.m. Lunch (including the presentation)“Major International Tax Issues from the Viewpoint of theOffice of the Assistant Commissioner (International)”• John T. Lyons, Assistant Commissioner (International), Washington,

D.C., Internal Revenue Service

1:20 p.m. – 2:40 p.m.Coordinating the Tax Planning for Foreign PersonsConsidering Immigrating to, Investing in, or Engaging inBusiness in the United States — A Tri-Country Comparison(Canada, Germany, and the United Kingdom)Moderator s:• Andre P. Fogarasi, Esq., Arthur Anderson & Company Washington,

D.C.• Kevyn Nightingale, Chartered Accountant, CPA,

International Tax Services Group, Canada• Dr. Hans Joachim Radau, Esquire, Nörr, Stiefenhofer & Lutz,

Germany• Jo Goldby, Solicitor, Theodore Goddard, United Kingdom

2:40 p.m. – 3:30 p.m.Subchapter K in the International Context• James P. Fuller, Esq., Fenwick & West, Palo Alto, CA

3:30 pm. – 3:50 p.m. Break

3:50 p.m. – 5:30 p.m. An Internal Revenue Service Panel toDiscuss Current International Procedural IssuesPanel Discussion Leader:• Robert E. Panoff, Esq., Robert E. Panoff, P.A., MiamiParticipants:• The Honorable Stephen J. Swift, United States Tax Court• John T. Lyons, Assistant Commissioner (International),

Internal Revenue Service• Harvey Waroff, Appeals Officer, Internal Revenue Service• Karen Warfel, Industry Specialist, Offshore Compliance and

Foreign Trusts, Internal Revenue Service• Hildy Riegelhaupt, International Examiner, Internal Revenue

Service

5:30 p.m. – 6:30 p.m. Cocktail ReceptionSponsored by: Ausbacher (Bahamas) Limited, Part of theHenry Ansbacher Group, a Well Established Merchant andOffshore Banking Organization

CLER PROGRAM(Maximum Credit: 15.0 hours)

General: 15.0 hoursEthics: 0.0 hours

CERTIFICATION PROGRAM(Maximum Credit: 15.0 hours)

Business Litigation ............................................ 1.0 hourInternational ..................................................... 15.0 hoursTax .................................................................... 15.0 hoursWills, Trusts and Estates ................................... 3.0 hours

Credit may be applied to more than one of the programsabove but cannot exceed the maximum for any given pro-gram. Please keep a record of credit hours earned. RE-TURN YOUR COMPLETED CLER AFFIDAVIT PRIOR TOCLER REPORTING DATE (see Bar News label). (RuleRegulating The Florida Bar 6-10.5).

5

Friday, January 15, 19999:00 a.m. – 9:50 a.m.Practical Aspects of Dealing With §§482 and 6662• Robert F. Hudson, Jr., Esq., Baker & McKenzie, Miami

9:50 a.m. – 10:40 a.m.The New Section 367 Stock Transfer Rules• Bernard T. Bress, Esq., PricewaterhouseCoopers LLP,

Washington, D.C.

10:40 a.m. – 11:00 a.m. Break

11:00 a.m. – 11:50 a.m. Legislative Changes, Recent InternationalTax Developments — Cases, Rulings, etc.• H. Michael Hayes, CPA, Deloitte & Touche, Miami

11:50 a.m. – 1:20 p.m. Lunch (including an International TaxWorkshop Luncheon)All participants, speakers and panel members attending lunch

will have an opportunity to ask or respond to any internationaltax questions of interest to the attendees.Moderator s:• Joel J. Karp, Esq., Karp & Genauer, P.A., Coral Gables• Jason Warner, Esq., Baker & McKenzie, Miami

1:20 p.m. – 2:00 p.m. Outbound International Tax Planningand Litigation: A Practical Analysis of Common InternationalBusiness Fact Patterns• William S. Sharp, Esq., Sharp, Smith & Harrison, P.A., Tampa• Glen A. Stankee, Esq., Ruden, McClosky, Smith, Schuster & Russell,

P.A., Ft. Lauderdale• Ozzie A. Schindler, Esq., Baker & McKenzie, Miami

2:00 p.m. – 2:20 p.m. Coffee Break

2:20 p.m. – 4:00 p.m. Continue

4:00 p.m. Adjourn

TO REGISTER FOR THIS COURSE (#4595), watch your mail and your Bar News, or contact CLE Reg-istrations (850/561-5831) at The Florida Bar for a complete brochure.

Section CalendarJanuary 22, 1999

International Agriculture Law—Wyndham Hotel, Miami-Biscayne Bay

February 4 - 5, 199911th Annual Conference on Legal Aspects of

Doing Business in Latin America—Omni Colonnade, Coral Gables

February 5, 1999Executive Council Meeting—

Omni Colonnade, Coral Gables (2:00 - 5:00 pm)

February 8 - 9, 1999International Law Certification Review Course—

Omni Colonnade, Coral Gables

February 18 - 19, 1999Twentieth Annual Immigration Law Update—

Hyatt Regency, Miami

Meet theInternational LawStudent Association

The International Law Students Association (ILSA) isproud to announce its newly founded relationship withthe International Law Section (Section) of The Florida Bar.ILSA Chapters at Nova Southeastern University, theUniversity of Miami, Florida State University, and theUniversity of Florida individually work to promote aware-ness, study, and understanding of international law. More-over, ILSA aims to encourage communication and coop-eration among law students and lawyers in theirrespective legal communities.

In cooperation with the Section, ILSA Chapter Re-search Committee will volunteer time and resources toassist the international law community with legal re-search. In return, Section Members will actively partici-pate in the 1998-99 ILSA Speaker Series that will counttoward Continuing Legal Education (CLE) credit. Speak-ing to law students about the practice of international lawhas proven to be a rewarding experience for both studentsand lawyers.

Through this relationship, the Section and ILSA willprovide an essential educational resource to future gen-erations of lawyers as the field of international law con-tinues to expand. Furthermore, it will enable SectionMembers to gain CLE credits at more convenient timesand venues. For information about how to participate inthe program, please contact Joshua Levy (Southeast Re-gional Director, International Law Students Association)via e-mail at levyj@nsu.law.nova.edu or via fax at 954-262-3830.

Next Section MeetingThe International Law Section Executive Coun-

cil will meet after the “Doing Business in LatinAmerica” Seminar on February 5, 1999 from 2:00p.m. to 5:00 p.m. at the Omni Colonnade, CoralGables. Anyone who would like to attend the execu-tive council meeting, please contact the Section’sProgram Administrator, Angela Froelich, at TheFlorida Bar at (850) 561-5633.

6

Service of Processing in Mexico—What are the Alternatives?by Ricardo J. Cata, Esq., Partner, Wilson Elser, Moskowitz, Edelman & Dicker, LLP., Miami

Because of space limitations, thisarticle will assume the existence ofpersonal jurisdiction in the U.S. courtover the Mexican defendant. We willfurther assume that the Mexican de-fendant, if a corporation, does nothave a registered agent for service inthe U.S. Finally, since this type oftrans-national litigation is likely tobe initiated (or removed) to federalcourt, the article will also assumethat the litigation is venued in fed-eral court. There are three ways thata U.S. plaintiff could employ to effec-tuate service of process upon a Mexi-can entity. Mainly, a) through the useof international registered mail, or b)through the use of local counsel, or c)through the use of the Inter-Ameri-can Convention and Additional Pro-tocol. Each of these will be discussedbelow, together with an analysis ofpros and cons of each.

A. InternationalRegistered Mail

A method that may be employedfor service of process of Mexico in alitigation initiated in the UnitedStates is through international reg-istered mail. While service by thismethod could be accomplished rela-tively fast and inexpensively, itshould be used only if and when thereis absolutely no need to go to Mexicoto enforce a resulting U.S. judgmentagainst the Mexican defendant. It islikely that a Mexican court which isasked to enforce a judgment obtainedin the U.S. against a Mexican entitythrough this method of service willrefuse to enforce said judgment.1

A U.S. plaintiff seeking to enforcea U.S. judgment in Mexico against aMexican national or a Mexican cor-poration, will need to satisfy a multi-step procedure with the Mexicancourts. One of the first challenges toenforcement will be to establish tothe satisfaction of the Mexican courtproper service of process.2 UnderMexican law, service of process can-not be effected through the mail,since such method of service will notsatisfy the due process requirements

of the Mexican Constitution.3 There-fore, a U.S. plaintiff who obtains ajudgment thorough this method ofservice, must do so with the clearunderstanding that the Mexicancourt will likely not recognize or en-force it.4

B. Service of Processthrough the Use of LocalCounsel

Another method that has beenemployed for serving U.S. process inMexico is the retention of Mexicancounsel to effectuate “personal ser-vice” on the Mexican defendant.5

However, there are practical and pro-cedural problems with this secondmethod as well. First, on the practi-cal side, the use of Mexican counselwill significantly increase the cost ofeffecting service. Secondly, on theprocedural side, it is also doubtfulthat a Mexican court will recognizeand enforce a U.S. judgment if thismethod of service of process was em-ployed. In a civil-law jurisdiction,such as Mexico, the service of processis an act of state, controlled by thecourts.6 As such, once again, a U.S.plaintiff who selects to serve processthrough a retained Mexican agentruns the risk of ending up with a U.S.judgment to which the Mexican courtwill not extend recognition. There-fore, unless there is no concern aboutexecution of a resulting judgment(e.g. the Mexican defendant has as-sets or insurance in the U.S.), anymethod of judgment other than thatprovided by the Inter-American Con-vention and Additional Protocol isquite risky.

C. Service of Processthrough the Inter-AmericanConvention and AdditionalProtocol

1. In GeneralWhile some U.S. courts have held

that the Inter-American Conventiondoes not preempt alternative meth-ods of service under the FederalRules,7 the United States Supreme

Court decision in VolswagenwerkAkfiengesellschaft v. Schlunk8

strongly supports the use of the In-ter-American Convention and Addi-tional Protocol for service of process.The Court in Schlunk, interpretingthe Hague Service Convention,9 thecounter-part of the Inter-AmericanConvention, held that, as a treaty,“the Convention preempts inconsis-tent methods of service prescribed bystate law.”10 The Inter-American Con-vention and Additional Protocol setout a system for service of processwhich is acceptable to the judicialsystems of the signatory countriesand also satisfies the respective con-stitutional requirements. The criticaldifference between service throughinternational certified mail orthrough the use of an agent inMexico, is that the Inter-AmericanConvention and Additional Protocolengages directly the Mexican judicialauthorities in the service of process.11

2. Forms USM 272/272AForms USM-272/272A are pub-

lished by the United StatesMarshall’s publishing office, and areavailable through the United StatesDepartment of State, Office of Citi-zens’ Consular Services. These formsset out the steps that U.S. counselmust follow in requesting the assis-tance of the Mexican judiciary in ef-fecting service of process in Mexicoupon a Mexican corporation throughthe Inter-American Convention andAdditional Protocol. These forms arecomposed of three different parts.

Form A, to be completed by theAmerican attorney, is the form letterrogatory. The form must contain in-formation as to: a) the requesting ju-dicial or other adjudicatory author-ity; b) the case name and docketnumber, c) the Central Authority ofboth the state of origin and of thedestination state, d) the name of therequesting party, e) the name andaddress of the attorney for the re-questing party; and f) informationrelative to who will defray the costsassociated with processing the formand effecting service.

7

Form B requires information asto: a) the name and address of theparty being served; b) a statement ofthe case; c) the name of the case; d)the sum of money it seeks to collect;e) what the defendant must do uponbeing served. This Form B also ad-vises the addressee of the conse-quences of failing to timely respond.

Form C is a certificate of servicewhich must be completed by the Cen-tral Authority of the addressee’s stateand returned to the Central Author-ity of the forwarding state upon ser-vice being effected.

3. The Central AuthorityForms USM-272/272A require

counsel to engage the services of theCentral Authority in the U.S., and inMexico. This method, embodied inArticle 4 of the Inter-American Con-vention and in Article 2 of the Addi-tional Protocol, is intended to stream-line and standardize the procedurefor this “form” letter rogatory.12 An-other advantage of the Central Au-thority is that the personnel thereare well-versed with the propercompletion of the Forms and will in-sure they contain all required infor-mation before sending it on.13

4. Supporting DocumentsThe following documents must be

submitted to the U.S. Central Author-ity: a) the original plus two copies ofthe completed Form USM-272; b) theoriginal and two copies of the com-plaint and all attachments; c) theoriginal and two copies of a certifiedSpanish translation of the complaintand attachments; d) the original andtwo copies of the summons, and e) theoriginal and two copies of a certifiedSpanish translation of the summons.It is also a good practice to note onthe body of the summons and thecomplaint that you intend to servethe Mexican party through the pro-visions of the Inter-American Con-vention and Additional Protocol.14

The service request should clearlystate the identity and address of theparty to be served.

5. The Signing and Stamping ofForms USM-272/272A

The completed Forms USM-272/272A should then be signed andstamped by the judge presiding overthe case. If the judge’s signature can-not be obtained, the completed Forms

should be sent to the Central Author-ity in the U.S. for signing and stamp-ing by the Central Authority. TheJustice Department’s seal will, in ef-fect, serve the dual purpose of certi-fying and authenticating the com-pleted Forms and of substituting forthe signature of the presiding judge.15

6. How Long Does It Take?Service of process in Mexico

through the Inter-American Conven-tion and Additional Protocol could bea slow process, taking from sixmonths to two years to complete.16

The Justice Department can usuallyprocess the completed form USM272/272A within 10 days.17

D. ConclusionAs noted above, there are other

methods of serving process in Mexicowhich, if enforcement of a resultingjudgment in Mexico is not an issue,will probably be sufficient for movinga U.S.-based litigation forwardquicker toward a judgment or otherresolution. However, if enforcementof a resulting judgment in Mexico isneeded, then failure to serve throughthe Inter-American Convention andAdditional Protocol will probably re-sult in an unenforceable judgment, asignificant waste of money for yourclient in litigating the suit to judg-ment, and a possible legal malprac-tice suit.

Endnotes:1 Adam J. Levitt, An Illinois Lawyer’s

Guide to Service of Process in Mexico, 82Ill.B.J. 434, Aug. 1994. Neither the Inter-American Convention nor the Additional Pro-tocol provides service of process by mail upona Mexican defendant in Mexico. Levitt, supraat 436. Inter-American Convention on LettersRogatory, Jan. 30, 1975, 14 I.L.M.339 (here-inafter, the Inter-American Convention). Rati-fied by Mexico on May 27, 1978, and by theU.S. on July 28, 1988. Other signatories areArgentina, Chile, Costa Rica, Ecuador, El Sal-vador, Guatemala, Honduras, Panama, Para-guay, Peru, Spain, Uruguay, and Venezuela.The Additional Protocol to the Inter-Ameri-can Convention on Letters Rogatory, May 3,1979, 18 I.L.M. 1238 (hereinafter, the Addi-tional Protocol). Ratified by Mexico on March9, 1983, and by the U.S. on July 28, 1988. TheAdditional Protocol mandates that use of of-ficial letters rogatory forms (Article 3), andcreates a uniform method of transmitting ser-vice requests (Article 4). Other countries thathave ratified the Additional Protocol includeArgentina, Ecuador, Guatemala, Paraguay,Peru and Uruguay.

2 David W. Kash, Enforcement of Judg-ments Across the Border with Mexico, 31JUL.AZATT 10, July 1995.

3 Ernest Cordero, Jr. and Alfonso Rochu-

Albertsen. Procedures for Serving A U.S. Law-suit on Defendants Residing in Mexico,LATIN Am. L. & Buis. Rep., July 31, 1996, at21, 23.

4 Id. Ryan G. Anderson, TransnationalLitigation Involving Mexican Parties, 25 ST.MARY’S L.J. 1059 (1994); moreover, thismethod of service may be viewed as a viola-tion of the sovereignty of the Mexican judi-ciary, and could result in a diplomatic protestand possible criminal sanctions. Id.

5 Levitt, Supra note 1, at 435-36. A listof Mexican attorneys who will be willing toserve as agents for service in Mexico may beobtained through the United States Depart-ment of State, Office of Citizen Consular Ser-vices, 2201 “C” Street, N.W., Suite 4817, Wash-ington, D.C. 20520-4818, telephone: (202)647-3712, Id.

6 Anderson, supra note 4, at 1072.7 See: Kreimerman v. Casa Veerkamp,

S.A. de D.V., 22 F. 3d 634 (5th Cir. 1994);Pizzabioche v. Vinelli, 772 F. Supp. 1245 (M.D.Fla. 1991); Laino v. Cuprum S.A. de C.V., 235A.D. 2d 25; 663 N.Y.S. 2d 275 (N.Y. App. Div.1997).

8 486 U.S. 694 (1988).9 The Convention on the Service Abroad

of Judicial and Extra-Judicial Documents inCivil or Commercial Matters, (hereinafterThe Hague Service Convention), opened forsignature Nov. 15, 1965, 20 U.S.T. 261 (signedby the U.S. in 1969). Mexico is not a signa-tory to the Hague Service Convention.

10 Schlunk, supra note 8, at 699.11 The Mexican Court still has complete

and final discretion as to whether to allow anextension of U.S. jurisdiction over the subjectof the letter rogatory. Levitt, supra note 1, at438; Craig R. Delk and Bruce W. Nelsen, Ser-vice of Process on Foreign Parties by LettersRogatory, 52 INTER-ALIA at F1 (May/June1987). A letter rogatory is a letter request sentby a U.S. Court to a foreign court requestingthe foreign court’s assistance on a civil orcriminal matter. Levitt, supra note 1, at 437.The federal court’s power to issue letters roga-tory derive from 8 USC 1781 and from thecourt’s inherent authority. United States v.Reagan, 453 F. 2d 165, 171-73 (6th Cir. 1971),cert. denied, 406 US 946 1972).

12 The Central Authority may be con-tacted at Office of International Judicial As-sistance, Department of Justice, Todd Build-ing Room 1234, 550 11th Street, N.W.,Washington, D.C. 20530, telephone (202) 514-7455. The address of the Mexican CentralAuthority is Secretaria de RelacionesExteriores, Direccion General de AsuntosJuridicos, Ricardo Flores Magon No. 1, MexicoD.F., telephone (525) 782-3340.

13 Levitt, supra note 1, at 439-40. No feesare charged by the U.S. Central Authority fortransmitting a request to the Mexican Cen-tral Authority.

14 Id. at 440.15 Id.16 Id.; Anderson, supra note 4, at 114

(note 59). To expedite service, the Justice De-partment suggests retaining a Mexican attor-ney in Mexico who could directly approach theMexican court to facilitate effecting the de-sired service. Id.

17 Levitt, supra note 1, at 440.

8

EUROpe’s New CurrencyEurope’s new single currency, the

euro, is set for launching on January1, 1999.1 The European Economicand Monetary Union (EMU) is theentity that stands for the movementtoward economic and monetary inte-gration, symbolized by the introduc-tion of a single currency on January1, 1999.2 It is anticipated that thecompletion of the EMU will help con-solidate European economic integra-tion and help eliminate the ex-change-rate fluctuations between thecurrencies of the participating coun-tries.3 The European countries be-lieve that a stable, single currencyand a large internationally competi-tive financial market, will strengthenEurope and enhance its ability tocompete economically with theUnited States and Japan.4

The cornerstone of the EMU is theTreaty on European Union signed inMaastricht, The Netherlands, in1992, commonly referred to as theMaastricht Treaty.5 The main goals ofthe EMU are the introduction of asingle European currency, the euro,and a common monetary policy com-mitted to maintaining price stability.6

The changeover to the euro will oc-cur in several steps, which includethe irrevocable fixing of the conver-sion rates between the currenciesparticipating in the EMU, the re-placement of these currencies by theeuro at the officially fixed conversionrates, and the issue of new legal ten-der.7

On the basis of the convergencereports for the individual countriessubmitted by the European Mon-etary Institute and the EuropeanCommission, the European heads ofstate and government decided onMay 2, 1998, that Austria, Belgium,Finland, France, Germany, Ireland,Italy, Luxembourg, the Netherlands,Portugal, and Spain will launch theeuro on January 1, 1999.8 In order fora European country to have partici-pated in the EMU by January 1,1999, that country had to meet theconvergence criteria as defined in theMaastricht Treaty. The convergencecriteria consisted of a scaled, low rateof inflation, a budget deficit of notmore than 3% of Gross DomesticProduct (GDP), government debt not

exceeding 60% of GDP, the approxi-mation of interest rate levels in theparticipating EU Member States,and stable exchange rates.9 Once acountry is admitted to the EMU itcannot be excluded if it fails to com-ply with the criteria previouslylisted.10

At the heart of “Euroland” is theEuropean Central Bank (ECB), head-quartered in Frankfurt am Main,Germany, and established under theMaastrict Treaty.11 Euroland is thename commonly used to refer to thecountries participating in the EMU.The purpose of the ECB, as with anycentral bank, is to establish monetarypolicy and a uniform rate of inter-est.12 The ECB, combined with thecentral banks of the 11 nations par-ticipating in the EMU, make up theEuropean System of Central Banks.The ECB will control and oversee acommon monetary policy for theEMU countries. 13 Under theMaastricht Treaty, the ECB will havea governing Council, which sets mon-etary policy, and the head of eachmember country’s central bank willhave a seat on the Council.14

The head of the ECB has the titleof President, and for the first eightyears of the existence of the ECB,Wim Duisenberg of the Netherlands

will hold this position, followed byJean-Claude Trichet of France. Thereis speculation that Mr. Duisenbergwill not carry out the entire eight-year term of office. These men wereelected during a summit in Brussels,Belgium, held 2-3 May 1998. The goalof the ECB is to be completely inde-pendent of political influences frommember countries15, and of course,whether this goal is met or not willbe seen in the future.

The ECB began de facto opera-tions on 9 June of this year, with dejure existence beginning on 1 Janu-ary 1999.16 Until 1 January 1999,each member of the EMU remainsresponsible for its own monetarypolicy. There is some concern thatwith the ECB being headed by cen-tral bank presidents from sovereignstates, independence and “europeani-zation” are impossible.17 The taskfaced by the ECB in the period before1 January 1999 is to bring about aconvergence between interests ratesin Euroland, necessary for thesmooth start of the currency. Statis-tically speaking, the paid-up capitalfor the ECB is to amount to aboutfour billion euro; 10-15% of the ECB’sreserves will be in gold.18

The table below provides impor-tant dates in the development of theeuro:19

1992 Maastricht Treaty signed, paving the way for theEMU and the euro.

2 May 1998 EMU membership is determined.

1 January 1999 Irrevocable fixing of the conversion rates betweenthe participating European currencies in relationto the euro.CB begins operation.Bonds are issued in euro.Outstanding public bonds and large volume pri-vate bonds are re-denominated in euro.

1 January 1999 – The transitional phase of the euro begins.31 December 2001 European National currencies will co-exist with

the euro during this period.

1 January 2002 The euro becomes the sole currency of EMU mem-ber nations. Introduction of euro banknotes andcoins.

1 July 2002 National banknotes and coins lose their status aslegal tender and are withdrawn permanently fromcirculation.

9

One of the most important aspectsof introducing the euro is the main-tenance of continuity in contractsthat provide for payments in existingnational currencies after 1 January1999. In order to effect such continu-ity, some non-European jurisdictionshave passed legislation that will pro-vide for such continuity, and someEuropean jurisdictions are passingtheir own legislation to provide forthe turnover. Many lawyers are in-serting what are called “continuityclauses” into contracts that basicallyrequire that payments made after 1January 1999 may be done in eitherthe existing national currency or theeuro, and after 1 January 2002, suchpayments must be made in the euro.Those involved in such clauses aretrying to avoid a defense of impossi-bility or frustration of contract by aparty asserting that since, for ex-ample, French Francs no longer ex-ist, payment cannot be made undera contract denominated in such cur-rency. A continuity clause avoids sucha defense, where a law has not beenenacted to counter such effect.20

There are several useful internetsites that contain information on theeuro. Some of the internet sites in-clude: http://brain.dresdnerbank.d e / e u r o / e n g l i s h / s t p r a e s /img008.htm; http://www.jpmorgan.com/emu/factsheet.htm; and http://www. mjourney.com/journey/EU.html.

Michael J. Chrusch is in-housecounsel to Dresdner BankLateinamerika AG, in Miami,Florida. His main areas of practiceinclude: international law, bankinglaw, tax law, and commercial trans-actions. Mr. Chrusch is a member ofthe United States Court of Appeals forthe Eleventh Circuit, the United

States District Court for the SouthernDistrict of Florida, the United StatesDistrict Court for the Middle Districtof Florida, and the United States Dis-trict Court for the Northern Districtof Florida. Mr. Chrusch is a memberof the International Law Section andBusiness Law Section of the FloridaBar. Mr. Chrusch is a graduate ofNova Southeastern UniversityShepard Broad Law School, and acum laude graduate of the Universityof Florida with a B.S. degree in Fi-nance and a minor in Economics andCriminal Justice.Theodore R. Walters is Vice Presi-dent and General Counsel toDresdner Bank Lateinamerika AG inMiami, Florida, concentrating in in-ternational law, international bank-ing, and commercial transactions. Mr.Walters is admitted to practice law inall Courts of the State of Florida andthe District of Columbia, the UnitedStates District Court for the SouthernDistrict of Florida and Northern Dis-trict of Florida, the United StatesCourt of Appeals for the Eleventh Cir-cuit, the United States Court of Ap-peals for the Federal Circuit, and theUnited States Court of InternationalTrade. Mr. Walters holds a Juris Doc-tor from the University of MiamiSchool of Law, and his undergradu-ate degree in International Affairs,

Economics, and German/West Euro-pean Studies was conferred by TheAmerican University in Washington,DC.

Endnotes:1 DRESDNER BANK, THE INTRODUCTION OF

THE EURO 1 (1998).2 EMU Factsheet, (August 24, 1998)

< h t t p : / / w w w. j p m o r g a n . c o m / e m u /factsheet.htm>.

3 DRESDNER BANK, supra note 1, at 7.4 Id.5 Id.6 Id.7 Id.8 DRESDNER BANK, supra note 1, at 9.9 Id. at 8.

10 Id. at 9.11 EMU Factsheet, (August 24, 1998)

< h t t p : / / w w w. j p m o r g a n . c o m / e m u /factsheet.htm

12 BOARD OF GOVERNORS OF THE FEDERAL RE-SERVE SYSTEM, SR-98-16 (SUP), BANKING OR-GANIZATIONS’ PREPAREDNESS FOR ECONOMIC AND

MONETARY UNION IN EUROPE (1998).13 DRESDNER BANK, supra note 1, at 7.14 EMU Factsheet, (August 24, 1998)

< h t t p : / / w w w. j p m o r g a n . c o m / e m u /factsheet.htm>.

15 DRESDNER BANK, EURO NEWS, THE EURO-PEAN CENTRAL BANK GOES LIVE 10 (1998).

16 Id.17 DRESDNER BANK, EURO NEWS, THE GOALS

FOR THE EURO IN 1999 10 (1998).18 DRESDNER BANK, EURO-MONITOR, DIVI-

SION OF FUNCTION IN ECB EXECUTIVE BOARD

(1998).19 DRESDNER BANK, supra note 1, at 10.20 DRESDNER BANK, EURO NEWS, CONTRAC-

TUAL CONTINUITY IN SELECTED COUNTRIES 10(1998).

CHRUSCH WALTERS

Major Meetings of The Florida BarJanuary 20-22, 1999

Midyear Meeting of Sections and Committees, Wyndham Hotel,Miami-Biscayne Bay

June 23-26, 1999Annual Meeting, Boca Raton Resort and Club, Boca Raton

The International Law Quarterly is prepared and published by the International LawSection of The Florida Bar.

L. Janá Sigars, Miami ..................................................................................................ChairThomas L. Raleigh, III, Orlando .......................................................................Chair-ElectTodd G. Kocourek, Tallahassee ............................................................................ SecretaryJose A. Santos, Miami .......................................................................................... TreasurerJeremey R. Page, Miami ........................................................................ Newsletter EditorAngela B. Froelich, Tallahassee ..................................................... Section AdministratorLynn M. Brady, Tallahassee ..................................................................................... Layout

Articles between 10 and 20 pages involving the various disciplines affecting interna-tional trade and commerce may be submitted on computer disk with accompanyinghard copy, or on typewritten, double-spaced 8 ½” x 11" paper (with the use of endnotes,rather than footnotes.) Please contact Jeremy Page if you have any questions concern-ing the newsletter.

10

Florida’s IOTA Program After Phillips

The Florida Supreme Court’sIOTA program, administered by TheFlorida Bar Foundation, generatesmore than $12 million dollars annu-ally for charitable purposes set by theFlorida Supreme Court. IOTA grantsin 1997-98, including reserve funds,were awarded as follows: $12,056,324to local legal aid programs in all 67Florida counties; $694,726 forprojects to improvement the admin-istration of justice; and $710,014 forpublic service fellowships and schol-arships to students at accreditedFlorida law schools.

On June 15, 1998, the UnitedStates Supreme Court affirmed thedecision of the Fifth Circuit Court ofAppeals in Phillips v. WashingtonLegal Foundation, 118 S.Ct. 1925(1998), a case challenging the consti-tutionality of the Texas IOLTA(IOTA) program. The following ques-tions and answers address the issuesabout which the Foundation has re-ceived inquiries:

Did the United StatesSupreme Court rule thatthe Texas IOLTA programis unconstitutional?

No. The Court only ruled that, “theinterest income generated by fundsheld in IOLTA accounts is the privateproperty of the owner of the princi-pal.” The Court declined to considerthe two other prongs of the FifthAmendment “takings” analysis andspecifically left those issues for con-sideration on remand.

What is the effect of thePhillips decision onFlorida’s IOTA program?

A legal opinion issued to the Foun-dation on June 17, 1998 concludedthat:

. . . nothing in the Phillips casecompels the Foundation to alter itsusual operations with respect tothe IOTA program. Attorneys mustcontinue to abide by the Rules ofthe Florida Supreme Court. Finan-cial institutions should continue toremit IOTA interest as directed bytheir attorney-depositors. Fundsshould be collected and disbursedin the usual fashion. There is nolegal reason, based upon Phillips tomake any change in the day-to-dayoperations of the Florida SupremeCourt’s IOTA program at this time.

On June 19, 1998, the Founda-tion’s board of directors reviewed thelegal opinion and determined to con-tinue operations as usual.

Would lawyers be liable ifIOTA is heldunconstitutional?

The lawyers working on the casebelieve it unlikely that lawyers wouldbe held liable as they are complyingwith an ethics rule approved eitherby their state supreme court or statelegislature. However, to be very cau-tious, the National Association ofIOLTA Programs (NAIP) has askedthe Washington, D.C. firm ofCovington & Burling to address thatissue. The Florida Bar Foundationhas engaged Holland & Knight forthe same purpose.

Why don’t we just makeIOTA voluntary forclients?

We can’t in order to avoid unin-tended tax consequences for clients.The IRS view is that lawyers wouldbe required to report, for federal in-come tax purposes, interest earnedon the nominal or short-term fundsof clients who consent to IOTA, even

though the interest is paid to theFoundation. So, in order to ensurethat IOTA account interest is taxableto the Foundation and not to the cli-ent, the Florida Supreme Court’sIOTA rule, consistent with IRS Rev-enue Ruling 81-209, requires thatlawyers and law firms deposit thenominal or short-term funds of allclients into the IOTA account. Wash-ington tax counsel has advised thatthe Phillips decision did not invali-date this Revenue Ruling and thatthe current IOTA rule remains appli-cable.

In light of the Phillipsdecision, should lawyersgive clients notice aboutIOTA?

The Florida Supreme Court’sIOTA rule does not require clients tobe notified that their nominal orshort-term funds will be depositedinto an IOTA account. However, anydiscussions with the client would con-tinue to include those matters tradi-tionally raised when a lawyer exer-cises his or her discretion indetermining whether or not a clientdeposit is of sufficient size or dura-tion to justify placement in an inter-est-bearing account, with interestpayable to the client.

However, client notice should behandled with care to avoid the unin-tended tax consequences for clientsdescribed above. Specifically, lan-guage in a client notice cannot implythat clients have any right to control,either through waiver, veto or con-sent, whether their nominal or short-term funds are placed by the lawyerin the IOTA account.

For further information about theIOLTA litigation or Florida’s IOTAprogram, contact:

The Florida Bar Foundation109 East Church StreetSuite 405P.O. Box 1553Orlando, Florida 32802-1553Phone: 407/843-0045 or

800/541-2195Fax: 407/839-0287E-Mail: flabarfndn@worldnet.

att.net

The ILS website can be found at:http://www.dos. state.fl.us/ils: 8

11

International Tax Briefsby Laura A. Quigley

This column covers selected cur-rent international tax issues.

Foreign Trust Reporting:A Continuing Dilemma

In a prior article the enhanced re-porting requirements for foreigntrusts under the Small Business Pro-tection Act of 1996 were discussed.These trust reporting changes andthe subsequent IRS guide could havea dramatic impact on the offshoretrust industry due to the expansive-ness of the reporting and the magni-tude of the penalties for not report-ing or inaccurate reporting.

These reporting changes are in-tended to enforce the substantive lawchanges which the Congress also en-acted. Both of these expansive legis-lative pronouncements are expectedto curb IRS’s perceived abuses in theforeign trust area.

These pieces of legislation affectthe use of foreign trusts by both U.S.and international persons. These newrules are complex and cumbersome.So far, it is far from clear as towhether the offshore trust industryis able or willing to comply1.

Further, it sets the stage for a lossof secrecy, if and when offshore com-panies and banks, in particular, sendoverly broad notices to their foreigntrusts about these new reporting re-quirements. For instance, this noticemay often include beneficiaries whoare unaware of their status.

Thus, receipt of this notice by thebeneficiaries causes the grantor tolose the privacy he expected in nam-ing these beneficiaries. Due to thispossibility, the grantor’s/trust’s taxadvisers should now proactivelymonitor their offshore trust compa-nies to make sure that they complywith the law in the least intrusivemanner to their clients.

There is a clear need for furtherIRS guidance in this area. Now theclock starts ticking on how the IRSwill monitor and enforce these newreporting rules. Conversations withthe National IRS office have pro-duced many statements showing

IRS’s ongoing and top priority out-look to the enforcement of the newlegislation in this foreign trust arena.

Final Regulations OnWithholding: Its Goals AndImpact

In a prior article a summary of thesubstance of these final withholdingregulations was discussed, as well asthe general starting date for compli-ance of January 1, 1999. However,with the imminent deadline forimplementing these final regulationsjust months away, international taxadvisers and their clients need tostart/finish their compliance plansfor this new complex system for with-holding payment to foreign persons.

It is now necessary to obtain moredocumentation for receiving reducedrates of withholding under treaties.It is also necessary to do new certifi-cation requirements with every inter-mediary in the chain.

To alleviate some of this, the quali-fied procedures have been formu-lated. This procedure has primarilyfocused on helping the foreign inter-mediary to become qualified interme-diaries.

However, if this new qualified in-termediary system does not develop,the additional information require-ments, without the streamlining ben-efits, may discourage investment inthe United States. On the other hand,if this system does develop, the glo-bal tax compliance may be affecteddue to the reduced access to informa-tion. Finally, this new system seemsto have skirted the U.S. withholdingagent, who is also a prominent userof these withholding regulations.

The primary goal of internationalwithholding should be to collect thecorrect amount of tax. However, asecondary and important goal is tocollect the correct amount of taxwithout dashing cross border invest-ment, affecting financial markets oroverburdening the withholdingagents.

These regulations retain the basicwithholding at source system, but

significantly revise the withholdingprocess. These revisions affect manygroups all in differing ways.

The first group is U.S. withholdingagents, including banks, other finan-cial institutions and U.S. companieswho make cross border payments sub-ject to withholding. The tax liabilityof this group is not changed, unlessthey fail to comply and thus becomeliable for their failure to withhold.

The next group is the foreign in-termediaries, including both finan-cial and nonfinancial institutionswho do not want to disclose informa-tion about their customer base toother financial intermediaries or tothe IRS or other governments. Manyof these foreign financial institutionintermediaries are not effectivelysubject to the reach of the IRS be-cause they have no contact with theUnited States.

Another group is the foreign ben-eficial owners. This group in generalwants to remain anonymous. Thisgroup also wishes to receive the high-est economic return they can on theirinvestments with a zero or reducedwithholding and without the need toprovide more information or to berequired to perform time consumingand costly applications for refunds.

Foreign governments comprise thefourth group. These governmentsgenerally want to lessen their burdenof certification and to maximize theircollections of tax on U.S. source in-come earned by the residents of theirjurisdiction.

The final group is the U.S. govern-ment. Their most important goal is tonot discourage investment in theUnited States. Since the United Statesis a net borrower in the world market-place, any decreased investment in theUnited States would probably increasethe cost of borrowing.

The next goal for the U.S. govern-ment is to collect the correct amountof tax from both foreign and U.S. per-sons investing in U.S. assets. Toachieve this, there needs to be properwithholding on payments to foreign

continued...

12

persons and proper information re-porting or backup withholding onU.S. persons.

However, the U.S. government alsorecognizes that the withholding pro-cess must be efficient. Thus, it mustlessen the burden on all affected par-ties in order to achieve the ultimategoal of encouraging compliance.

Therefore, the U.S. Governmentcreated this new hybrid system ofwithholding to reconcile the compet-ing interests of these diverse groupsof players. Unfortunately, the clearlosers are the U.S. withholdingagents.

The U.S. withholding agents’ obli-gations have become more complexand their compliance harder. Withthis complexity also comes the in-creased risk that the U.S. withhold-ing agents will be liable for the taxes,interest and penalties.

The foreign intermediaries willhave additional burdens but will alsoachieve certain benefits. They willnow be required to disclose more in-formation on their customer base andthe adoption of the new certificationrequirements for each intermediarybetween the U.S. withholding and thebeneficial owners will add more pa-perwork.

To offset this, the foreign interme-diaries’ reliance on existing know-your-customer rules regarding for-eign status and entitlement to treatybenefits may afford them no extracollection burden. Also, allowing theinformation on foreign beneficialowners to be reported in the aggre-gate to both the intermediaries andthe IRS will foster the foreign inter-mediaries’ goals of protecting theirbusiness interests and customers’privacy issues.

For the next group, the foreignbeneficial owners who hold assetsthrough U.S. withholding agents,may find that more information is re-quired to claim reduced rates of with-holding and that this informationwill be reported to the IRS. However,foreign beneficial owners who holdtheir assets through qualified inter-mediaries may find that less informa-tion may be required and reported tothe IRS due to aggregate reporting,even though the same economic ben-

efits associated with reduced with-holding will continue for both typesof foreign beneficial owners.

Foreign governments, our fourthgroup, will enjoy a reduction in thenumber of taxpayers who will be re-quired to obtain a certificate of resi-dence from the foreign CompetentAuthorities.

However, this will cause a corre-sponding reduction in the informa-tion potentially available from theIRS for the foreign governments’ rou-tine exchange of information withtheir U.S. treaty partners, which inturn may erode their foreign tax com-pliance.

The U.S. government, the finalgroup, may be the hardest hit of all,if the regulations discourage invest-ment in the United States. This couldoccur if the new procedures relatingto withholding, as applied to U.S.withholding agents and nonqualifiedintermediaries, are too onerous andthere are insufficient qualified inter-mediaries to perform these functions.

Also, the sheer complexity of theregulations may reduce overall com-pliance. However, if a strong networkof qualified intermediaries does de-velop, then much of the burden ofcollecting and reporting the addi-tional information caused by thesefinal withholding regulations couldbe eliminated.

With this new network the compli-ance with the U.S. tax law will alsobe moved offshore. This will necessi-tate the IRS’s increased reliance onoffshore entities, whose loyalties areto their customers. This may ulti-mately decrease compliance, as thecompliance portion of the qualifiedintermediary agreement may haveno enforcement bite.

Will the IRS utilize their resourcesto conduct qualified intermediaryaudits? If not, then the reduced ac-cess to information will certainly re-duce U.S. and global tax compliance2.

The Last Decade HasSpawned WorldwideTransfer Pricing ScrutinyFor MultinationalBusinesses

Transfer pricing rules, such as Sec-tion 482 of the Internal RevenueCode, authorizes governments to al-locate income or deductions betweenrelated entities to prevent tax avoid-

ance or to clearly reflect the entities’income attributable to controlledtransactions. The purpose of Section482 and other transfer pricing rulesis to place a controlled taxpayer on atax parity with an uncontrolled tax-payer by determining the true in-come of the controlled taxpayer us-ing an arm’s length standard thatapplies across many countries.

In the last decade, the worldwidetransfer pricing enforcement has in-evitably increased. This is due to therapid multinationalization of busi-ness, the rising needs for governmentrevenues worldwide and most coun-tries’ reliance on corporate taxationfor a substantial portion of their rev-enue base.

In the United States, legislationestablished a special transfer pricingpenalty in 1990 and in 1993, whichtook effect in 1994, the contempora-neous documentation requirementbecame a prerequisite to avoid thepenalty in the event of adjustmentsin the transfer pricing area. In 1995the OECD, under its restatement ofinternational transfer pricing guide-lines, also endorsed the requirementof contemporaneous documentationas a necessary component to theirtransfer pricing system.

Thus, the new OECD Guidelinesshow an international consensus con-cerning the compliance testing of thearm’s length standard, the structureof penalty regimes and the documen-tation being required of taxpayers.While there are still significant dif-ferences among the countries in theirtransfer pricing policies, it is nowimpossible to provide the multina-tional company with meaningful taxassistance without reviewing allcountries involved in the company’scross border transactions.

Since the OECD pronouncement,many other countries have issued fi-nal or proposed documentation rulesor transfer pricing rules of similareffect. Until recently, the U.S. threatof penalties has dominated the trans-fer planning arena and the possibili-ties of other country difficulties hastaken second place.

The best transfer pricing practicetoday focuses on identifying the com-peting interests of the various coun-tries involved in the enterprises’ crossborder transactions and in balancingthe enforcement risks. The key is toestablish documentation with a view

International Tax Briefsfrom page11

13

that many countries may examine itand to realize that one country’s gainis another country’s loss.

The two most prominent aspects ofthis multinational review, that spanmost countries’ practices, are theneed for contemporaneous documen-tation to avoid exposure to substan-tial penalties and the removal ofthese penalties and the uncertaintiesinherent in transfer pricing methodsthrough the use of advance pricingagreements (APAs) or similar ar-rangements.

The documentation aspect hasbeen generally discussed above andshould be done in every instance.However, APAs also play a role inworldwide transfer pricing practices.

APAs essentially result in advancerulings about the businesses’ trans-fer pricing methodologies and sur-prisingly are allowed to address thefactual as well as the legal questions.These APAs govern future years, butcan often be used to resolve contro-versies pending for prior years.

APAs are an expedited procedureto be used in lieu of the multistageapproach of examinations, then ad-ministrative appeals, then litigation,then competent authority proceed-ings. The multistage approach, ifused to its ultimate conclusion, isvery expensive and can span eight toten years or more for the taxpayerand the governments alike.

Thus, consideration of an APA pro-ceeding is best in situations involv-ing large cross border flows betweennon-haven countries and when theoverlapping ranges model will prob-ably not apply. It can also be helpfulwhen a particular need exists for cer-tainty or for the resolution of histori-cally costly disputes.

The decisions that are made todayabout transfer pricing policies mustbe made by reviewing the practicesof many countries and not just theUnited States. In each case, a furtherdecision should be made whether tomove from documentation to an APA

request, based on aspecific cost-benefitanalysis3.

Laura A. Quigleyis Of Counsel to theInternational busi-ness practice lawfirm of Hendry,Stoner, Sawicki,

Bowen & Brown, P.A. She practicestax, corporate and business law. Inthese general legal areas, she has de-veloped niche areas in internationaltax, tax controversy and litigation/settlement tax.

Endnotes:1. Tax Management International Jour-

nal, Vol. 27, No. 3, March 13,1998, ReportingUnder the 1996 Foreign Trust changes, byMichael G. Pfeifer, Esq. and Joseph S.Henderson, Esq.

2. Tax Management International Jour-nal, Vol. 27, No. 2 February 13, 1998, The Fi-nal Withholding Regulations: A Rube GolbergContraption-Will It Work? by Carol DoranKlein, Esq. and Diane L. Renfroe, Esq.

3. Tax Management International Jour-nal, Vol. 27, No. 3, March 13, 1998, TransferPricing Documentation and APAs In the EraOf Worldwide Transfer Pricing Scrutiny-Some Practice Points, by Michael C. Durst,Esq.

Have youforgotten anything?

Ethics/Ethics/Ethics/Ethics/Ethics/ProfProfProfProfProfessionalismessionalismessionalismessionalismessionalismRule Change Notice:

The ethics component of the continuing legal education requirement was re-cently expanded to mandate that all members of The Florida Bar accrue fiveapproved hours in the area of legal ethics, professionalism or substance abuse(RRTFB 6-10.3(b)). As before, these hours are not in addition to, but included in,the 30-hour requirement.

The rule, which went into effect July 1, 1997, does not impact reporting datesthat fall prior to July 30, 1998. Beginning with reporting dates of July 30, 1998and forward, the five hours ethics/professionalism/substance abuse (any combi-nation) are required.

TO ORDER TAPES, MAIL THIS FORM TO : The Florida Bar, CLE Programs,650 Apalachee Parkway, Tallahassee, FL 32399-2300 with a check in the ap-propriate amount payable to The Florida Bar or credit card information filled inbelow. If you have questions, call 850/561-5831. Tapes are approved for 5.0hours of ethics/professionalism.

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14

The Florida Bar Continuing Legal Education Committeeand the International Law Section in cooperation with the Inter-American Law Committee of the

ABA Section of International Law & Practiceand in participation with the Inter-American Bar Association,

the International Bar Association,the Caracas Bar Association and the Ordem dos Advogados do Brasil-Secção de São Paulo

present

The 11th Annual Conference onLegal Aspects of Doing Business in Latin America

Challenges of An Economyin Transition

COURSE CLASSIFICATION: INTERMEDIATE LEVEL

ONE LOCATIONFebruary 4-5, 1999 • Omni Colonnade • 180 Aragon Avenue • Coral Gables, Florida

Course No.4620R

S c h e d u l e � o f � E v e n t s

This Conference has been designed to provide practitioners with an update on recent economic and legal developments in the region and to addressspecific issues linked to the recent developments for the practitioner advising clients and corporations on Latin American matters. Law unificationefforts in the region will also be highlighted. In addition, the Conference will provide a special opportunity to meet with a unique group of experts in aninteractive setting. Opportunities will also be provided for conference participants to meet with each other and with the speakers in settings that willpromote face-to-face exchanges.

THURSDAY, February 4, 1999

8:00 a.m. – 8:30 a.m.Late Registration – Continental Breakfast

8:30 a.m. – 8:45 a.m. WelcomeJohn H. Rooney, Jr., Esq., Program Chair

Rice Fowler, L.C., Coral Gables, FL

8:45 a.m. – 9:00 a.m. Opening AddressL. Janá Sigars, Esq., International Law

Section ChairSandler, Travis & Rosenberg, Miami, FL

9:00 a.m. – 9:50 a.m.Overview of The Latin American EconomyAntonio Villamil, President, Washington

Economic Group, Miami, FL (invited)Mr. Villamil is a respected economist who ad-vises many prestigious clients both in the UnitedStates and Latin America regarding economictrends and conditions. He will speak on recentevents in the region, including the effect of theAsian crisis on Latin America. He will also speakon what he sees as the prospects for the re-gion.

practitioners can expect to face complicatedquestions involving insolvencies that will spaninternational borders. The program will addressissues of substantive bankruptcy law, conflictsof law in the area of bankruptcy and jurisdictionand out-of-court workouts. The possible impactof the UNCITRAL Model Law on Cross-BorderInsolvencies will also be discussed. Participa-tion is encouraged , and a copy of the casestudy is included in the course materials.

Moderator: Jose Santos, Esq., Broad &Cassel, Miami, FL

Panelists:Roy S. Kobert, Esq., Board & Cassel,

Miami, FL

Gayle McGuiganInternational Finance Corporation,Washington, D.C. (invited)

Steve Karotkin, Esq.Weil, Gotshal & Manges, L.L.P.,New York, NY (invited)

12:00 noon – 1:45 p.m.Luncheon (included in registration fee)

9:50 a.m. – 10:40 a.m.Where’s The Money?—Creative FinancingSolutions for A Difficult MarketEsteban Buljevich, Esq., Counsel,

International Finance CorporationAs a part of the World Bank Group, the Interna-tional Finance Corporation is closely involvedwith the financing of a wide range of projects inLatin America. Consequently, Mr. Buljevich hasconsiderable experience advising on a widerange of financing mechanisms. He is also theco-author of a soon-to-be published book onthe subject. Building on the overview providedby Mr. Villamil, Mr. Buljevich will provide uniqueand valuable insight into this important topic.As is the case for all speakers, Mr. Buljevichencourages questions and audience participa-tion.

10:40 a.m. – 10:55 a.m. Coffee Break

10:55 a.m. – 12:00 noonInternational Insolvencies and WorkoutsCase Study: International DistributorInsolvencyIn light of recent turmoil in the region’s economy,

15

“Outlook for the Brazilian Economy”Speaker: Mauro Couto, Director,

Brazilian Trade Bureau, Consulate Generalof Brazil, Miami FL

2:00 p.m. – 3:00 p.m. Panel Discussion:Monetary Policy Issues and Regulation ofFinancial Institutions and CreditA look at regulatory trends in the region andspecific official responses to the changed eco-nomic conditions. Specific attendtion will be paidto market liberalization efforts, Central Bank ef-forts to discourage capital flight, the legal as-pects of multi-lateral bail-out plans, and the roleof the regulation of financial services in the in-tegration of the regions economies (with em-phasis on the FTAA negotiations).

Moderator: John H. Rooney, Jr., Esq.Rice Fowler, L.C., Coral Gables, FL

Panelists:Andre Faoro, Esq., General Counsel

Superintendency of Private Insurance,Secretary of The Treasury, Rio de Janeiro,Brazil

Mario Alonso, J.D., M.B.A., M.S.Washington, D.C.

3:00 p.m. – 3:15 p.m. Coffee Break

3:15 p.m. – 5:15 p.m.Dispute Resolution in the RegionCase Study: Litigation or ADR—What’s the DifferenceTraditional resistance in the region to the useof arbitration as a means of resolving commer-cial disputes has been eroding rapidly. In re-cent years, Mexico, Brazil, Peru, Venezuela,Guatemala, Ecuador, Peru and Costa Rica haveall enacted new, comprehensive arbitration leg-islation, and it can be expected that other coun-tries may follow suit. In addition, either one orboth of the principal international arbitral con-ventions have been ratified by most of the coun-tries in Latin America. During the session, thepanelists will direct discussion on the advan-tages and disadvantages of litigation and alter-native dispute mechanisms, and also cover cur-rent issues involving both topics. A hypotheti-cal international commercial disupte, which willbe distributed to all participants, will form thebasis of the discussion. After each topic istreated separately, the panelists will combine

to compare observations. Participation is en-couraged.

Litigation DevelopmentsModerator: Professor Michael Wallace Gordon,

Chesterfield Smith Professor of Law, Uni-versity of Florida School of Law, Gainesville,FL

Panelists:David Epstein, Chief, International CivilLitigation, U.S. Department of Justice,Washington D.C.

Adolfo Jimenez, Esq., Holland & Knight, LLP,Miami

Recent Trends in ADR in Latin America asWe Approach 2000:Panelists:

Paul Mason, Esq., President, CommercialDispute Resolution Center of TheAmericas, Miami

Horacio Grigera-Naon, Esq., Secretary-Gen-eral, ICC Court of Arbitration, Paris (in-vited)

5:30 p.m. – 7:00 p.m. Cocktail Reception

FRIDAY, February 5, 1999

8:15 a.m. – 8:45 a.m. Continental Breakfast

8:45 a.m. – 9:45 a.m.Cross-Border Trade in Goods and ServicesThe panel will speak to the current issues af-fecting cross-border trade in goods and servicesin the region. Among the issues to be highlightedwill be taxation of foreign service providers, cus-toms issues, attempts to reduce trade barriers,electronic commerce/internet issues, and thespecific sectors of tourism and telecommuni-cations. One focus area will be the UNCITRALModel Law on Electronic Commerce

Moderator: Lawrence Gore, Esq.,Ft. Lauderdale, FL

Panelists:Andrew Markus, Hughes, Hubbard & Reed,

Miami, FL (electronic currency)Judith O’Neil, Thelen, Reid & Priest LLP,

Washington, D.C. (telecommunications)Luis Rengifo-Rohl, Neher von Seigmund &

Diquez, Caracas, Venezuela (goods/taxa-tion)

Rosa Bueno de Lercari, Esq., EstudioRossello, Lima, Peru (FTTA)

9:45 a.m. – 10:00 a.m. Coffee Break

10:00 a.m. – 12:00 noon Country Updates

Moderator: Salvador J. Juncadella, Esq.Morgan, Lewis & Bockius, L.L.P., Miami

(Simultaneous sessions conducted by local at-torneys with approximately 10 attendees visit-ing each table for face-to-face discussions)

Mexico: Eduardo Gallastegui, Esq.Gallastegui y Lozano

Chile: Juan Manuel ErrazurizEstudio Juridico Otero

Brazil: Eduardo Carvalho Tess,filho, Carvalho Tess & Ruviera

Venezuela: Francisco M. Castillo, Esq.Bentata Hoet & Asociados

Argentina: Alfredo L. Rovira, Esq.Brons & Salas

Puerto Rico: A. J. Bennazar Zequeira, Esq.A. J. Bennazar Zequeira

Law Offices

Ecuador: Bruce Horowitz, Esq.Paz, Horowitz & Romoleroux

Costa Rica : Victor Garita, Esq.José Antonio Muñoz, Esq., Facio & Cañas

Panama: Fernando Berguido, Esq.Sucre, Arias, Castro & Reyes

Colombia: Luis Cuervo, Esq.Rice, Fowler, Kingsmill, Flint, Vance &Rodriguez, L.L.P. (Bogota Office)

Uruguay: Juan C. Oreggia Carrou, Esq.Posadas, Posadas y Vecino

Peru: Rosa Bueno de Lercari, Esq.Estudio Rossello

12:00 noon – 2:00 p.m.Luncheon (included in registration fee)“Legal Profession in the GlobalizedEconomy”Salvador J. Juncadella, Esq.

Morgan, Lewis & Bockius, LLP, Miami, FL andimmediate Past President of The Inter-Ameri-can Bar Association

2:00 p.m. – 5:00 p.m.Meeting of The Executive Council of TheInternational Section of The Florida BarCLER PROGRAM

(Maximum Credit: 13.0 hours)General: 13.0 hours

Ethics: 0.0 hours

Credit may be applied to more than one of the programs above but cannot exceed themaximum for any given program. Please keep a record of credit hours earned. RE-TURN YOUR COMPLETED CLER AFFIDAVIT PRIOR TO CLER REPORTING DATE(see Bar News label). (Rule Regulating The Florida Bar 6-10.5).

CERTIFICATION PROGRAM(Maximum Credit: 13.0 hours)

Appellate Practice ..................6.0 hoursBusiness Litigation ................. 3.5 hoursInternational Law ..................13.0 hours

*** HOTEL RESERVATIONS***

A block of rooms has been reserved atthe Omni Colonnade Hotel, at the rateof $195/single or double occupancy. Tomake reservations, call the Omni Col-onnade directly at (305) 441-2600. Res-ervations must be made by January 4,1999 to assure the group rate and avail-ability. After that date, the group rate willbe granted on a “space available” ba-sis.

TO REGISTER FOR THIS COURSE (#4620), watch your mail and your Bar News, or contact CLE Regis-trations (850/561-5831) at The Florida Bar for a complete brochure.

16

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To register for the Florida International Business Forumbeing held at the Hyatt Regency in Coral Gables,

call the Florida Chamber toll free at 1-888-425-1234.

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February 18 & 19.

17

whose chiefs were certainly notgoing to allow the king to take overtheir long established rights overtheir clansmen. Nor were they go-ing to approve the system wherebylords and knights had to give fixedperiods of military service to theking each year.66

In fact, a rebellion broke out in Mo-ray, which is located in the High-lands, when feudalism was intro-duced to the region in 1130.67

English claims to Scottish terri-tory reached their first apex duringthe reign of King Edward I of En-gland. Upon the death of KingAlexander III, who died without anyheir, Edward I agreed to arbitrate theclaims of the two leading candidatesfor succession—Robert the Bruce andJohn Balliol.68 In exchange for hisservices as arbitrator, Edward de-manded that whomever he chose rec-ognize him as overlord of Scotland.69

In the end, Edward chose JohnBalliol and began an oppressive re-gime against the Scots.70 Finally,John had enough of this and refusedto answer Edward’s call for assis-tance in a war against France.71

Edward’s response to this was to in-vade Scotland and engage in a warof attrition that led to the forced ab-dication of John Balliol. Edward thendecided to rule Scotland himself,through a viceroy.72 English nobleswere placed in all governmental po-sitions in Scotland, a heavy tax waslevied, and possession of weapons,along with the playing of bagpipes,was punishable by death.73

“The English were blind as well asarrogant if they imagined that agreat and proud people like the Scotswould tolerate foreign domination sotamely and without resistance.”74

William Wallace, who led the Scots tovictory at the Battle of Stirling in1297, was the first.75 In 1305, Wallacewas betrayed, tried in London oncharges of treason, and was “hanged,drawn and quartered, the Englishpunishment for treason.”76 Wallace’sexecution did not cower the Scots;instead, it inspired Robert the Bruce,grandson of the Robert the Brucewhose claim to the throne was re-jected by Edward I, to rise up againstthe English and finally win victory,

and Scottish independence, at theBattle of Bannock Burn in 1314.77

From 1314-1703, Scottish sover-eignty was, in piecemeal fashion,slowly eroded.78 The period, however,did have some high points. In 1603,James V (of the House of Stuart) ofScotland became James I of Englandwhen he inherited the throne of En-gland upon the death of Queen Eliza-beth I.79 Upon his ascension, James Ileft Scotland only to return once be-fore his death in 1625.80

The late 1600s witnessed the finalstages of Scotland as an independentState. The age of open warfare be-tween Scotland and England hadcome to its conclusion. England hadchanged tactics; no longer would itinvade Scotland, instead it wouldwrestle away the Scot’s freedom byuse of the political arena:

In the last years of the seventeenthcentury the Scots found them-selves drifting towards full politi-cal union with England, but it wasa union that few people in Scotlandwanted. They feared, rightly itturned out, that it would be a ‘take-over,’ to use a twentieth centuryterm. And when it did come, mostof the advantages were stacked onEngland’s side.81

More than eight and one half cen-turies of bloodshed in the name ofprotecting that which the indepen-dent-minded Scots prized most in theworld—freedom—would come to anend in 1707. The end would not comewith the stroke of a sword, but thestroke of a pen. The Act of Union82

“achieved by a mixture of bribes,threats, tricks and hard bargainingwhat [England] had failed to do byforce of arms for centuries.”83

The process began with the brib-ery of the Duke of Argyll, the Dukeof Queensbury, and the Earl ofGlasgow, Scottish nobles who heldgreat sway with the members of theScottish Parliament.84 Next came the“Alien Act.”85 That Act, the enforce-ment mechanism of the Act of Settle-ment, stated that if Scotland did notaccept the Act of Settlement86 by1705, all Scots would be treated asenemy aliens.87 “Scottish-ownedlands in England would be appropri-ated; Scottish exports of cattle, linenand coal (representing the bulk oftheir total exporting to England)would be stopped.”88 Meanwhile, En-glish naval forces routinely seized

Scottish merchant vessels.89 Finally,Scotland acceded to the Alien Act andon January 16, 1707, the ScottishParliament ratified the Act ofUnion.90

There was no referendum regard-ing union with England; the peoplewere not asked.91 Only 2,000 people(of a nation of 1 million) possessedthe “privilege” to vote and these 2,000had voted for the Members of theScottish Parliament who, with En-glish gold in their back-pockets, rati-fied the Act of Union.92 The price ofunion was high. Scots would now en-joy the same trading rights as theEnglish.93 To help stimulate theeconomy, a lump sum of approxi-mately £400,000, called the “Equiva-lent,” would be delivered toEdinburgh.94 The Scottish courts andlegal system “as . . . now conftitutedby the laws of that kingdom, [are tocontinue] with the fame authorityand privileges as before the union.”95

The Scottish churches were to be leftundisturbed.96 However, the Parlia-ment of Scotland was abolished.97

The succession of the new UnitedKingdom of Great Britain upon thedeath of Queen Anne was assured forGeorge of Hanover.98 The Scottishmembership in Parliament was de-termined by the Act of Union to beforty-five seats in the House of Com-mons (to England’s 513) and sixteenpeers in the House of Lords (toEngland’s 190).99 The two countrieswere to be known as Great Britainand to share the same flag.100

Whatever England thought of theAct of Union, it did not take its obli-gations seriously. The “Equivalent”was long-delayed in arriving atEdinburgh.101 English tax collectorsused strong-arm methods to extractmoney from the Scots.102 A convictionof an Episcopalian minister who“flout[ed] the authority of the Scot-tish church” (a conviction upheld bythe Scottish Court of Session) wasoverturned when the minister ap-pealed to the House of Lords in Lon-don.103 This reversal was in direct vio-lation of the Act of Union, whichpreserved (supposedly) the integrityof the judgments of Scottish courts.104

These and other abuses led to a billintroduced into the House of Lords torepeal the Act of Union in 1713.105

The bill was defeated, but two yearslater the Scots revolted under thebanner of Prince James Edward

Failte’from page1

continued, page 18

18

Stewart.106 The revolt was put downand many Jacobites were executed.107

Hundreds were sentenced to forcedtransportation to the West Indies towork on plantations.108 “The govern-ment also tried to clip the powers ofthe clan chiefs by disarming them.Fines were imposed for possessingarms after a certain date fixed forsurrendering them. Many Highland-ers handed in old and useless weap-ons but kept the more effective onesfor another day.”109 In 1725, Scotlandwas placed under the jurisdiction ofGeneral George Wade who, with amandate to “pacify the Highlands,”served as military-governor.110

“Another day” arrived in 1745 inthe person of Prince Charles EdwardStuart, the son of Prince James Ed-ward Stuart.111 “Bonnie PrinceCharlie,” as the Highlanders affec-tionately called him, rallied the High-land Clans by the shores of LochLomond, in Galloway.112 5,000 High-landers flocked to his banner.113 Theforces of Prince Charlie won surpris-ing victories at Perth, Edinburgh,and Aberdeen, thereby forcing Gen-eral Wade to flee Scotland in dis-grace.114 In November 1745, PrinceCharlie crossed the border and ad-vanced as far as Derby, which layabout 130 miles north of London.115

At this point, he had advanced too farwith his small force and withdrewback into the Highlands.116 There hewas met by an English force of 10,000soldiers under the command of Gen-eral Cumberland at Culloden.117 TheBattle of Culloden was PrinceCharlie’s Waterloo. The English vic-tory was devastating. After thebattle, General Cumberland gave the“no quarter” order.118 Prisoners andwounded were summarily executed,villages burned, crops destroyed, live-stock slaughtered, and women andchildren were left to die of starvationand disease.119

But the English did not stop there.The “leaders” of the revolt werebrought to London and summarilyexecuted in defiance of the Act ofUnion.120 Over 1,000 Highlanderswere sold into slavery on plantationsin the American Colonies.121 Evenmore were sentenced to forced trans-portation to the American colonies.122

The few remaining able-bodied menin Scotland were forcibly inductedinto the Army.123 Soldiers and offic-ers of General Cumberland’s army

who committed these heinous atroci-ties were granted complete immunityfrom prosecution—civilly or crimi-nally—”for or by reafon of any mat-ter or thing advifed, commanded,appointed, or done during the rebel-lion.”124 The clan chiefs were strippedof all their powers and the clan sys-tem, which was not only a govern-mental form but also a social andcultural device, was abolished.125 Theplaying of bagpipes, wearing of tar-tan kilts, possession of weapons, andthe speaking of Gaelic were feloniespunishable by death.126 “It was a sys-tematic attempt to ‘obliterate theCeltic mode of life,’ a policy followedby England also in Ireland andWales.”127 Scotland became a waste-land.

When lands were returned to clanchiefs in the 1780s, due to Englishlaw, they no longer possessed thesame rights, as clan chiefs, over theirclan members.128 In efforts to earncash, the chiefs systematicallyevicted tenants because the rentearned from the tenants was far lessthan could be earned raising sheepor crops.129 Many evicted tenantsdrifted to the cities to work in facto-ries, others went farther into thewilder parts of the country to con-tinue their traditional means of sub-sistence—farming and herding.130

Others did not leave quietly and theArmy was called in to forcibly evictthem.131 The war of attrition was socomplete that when England tried torally Scottish volunteers for theCrimean War (1845), only a few wererecruited.132 “Since you preferredsheep to men, let sheep defend you,”was the indignant response of aHighlander to a landowner who wastrying to raise volunteers.133

Scotland’s history, from thosedreary days to the present, is one ofrebirth. Scotland was a leading forcein the industrial revolution.134

Scotland’s educational system is firstrate and has produced some of thegreat intellectuals of the WesternWorld.135 Their agrarian mode of lifedestroyed, Scots turned to trade andcommerce.136 Edinburgh is currentlyone of the most developed financialmarkets in the Western Hemisphere,the crowning achievement of whichis the Edinburgh Securities Ex-change.137 With the discovery of oil inthe North Sea, northwestern Scot-land, especially the city of Aberdeen,

has experienced an economic renais-sance.138

3. Secession as Customary Law?Customary law is a process built

by consensus. In the North Sea Con-tinental Shelf Case,139 the ICJ defini-tively stated the criteria to be metbefore instances of State practicehave acquired binding legal effect. Tobecome customary law, a widespreadmajority of States, including the “spe-cially affected States,” must partakein a consensus (objective element)140

that a particular claim is legally bind-ing (subjective element or opinio ju-ris).141 Because of the Principle ofState Sovereignty and the presump-tion against surrendering that Sov-ereignty,142 a necessary corollary ofthis definition of customary law isthat a State may “opt out” of beingbound by the law by consistently andvigorously objecting to it.143 Sincecustomary law is an evolutionaryprocess rather than a static concept,it now becomes necessary to examinerecent State practice concerningclaims to Secession in the extra-Co-lonial context to determine if a cus-tomary law of Secession has crystal-lized.

a. Modern Claims of Secession andState Practice

(i) Congo and Katanga—AFailed Secession

Immediately following Congo’s in-dependence from Belgium, violenceerupted.144 The leaders of Katanga, aprovince of the newly independentState of Congo, asked Belgium formilitary aid in quelling the vio-lence.145 Shortly thereafter, Katangadeclared its independence fromCongo.146 Katanga sought recognitionby third-party States and member-ship into the United Nations; neitherof these efforts bore fruit.147 However,the United Nations Security Counciltook note of the situation in Katangaand Congo. The Security Council de-manded the immediate withdrawalof Belgian troops and ordered U.N.peacekeeping forces into Congo inorder to bring the situation undercontrol.148 After U.N. peacekeepersbecame involved in heavy fighting inKatanga, the Security Council passeda resolution that declared that therole of the U.N. peacekeepers inCongo was to “maintain the territo-rial integrity of the Republic of theCongo. . . .”149

Among the factors which led tocontinued, page 20

19

ARE YOU AN “EXPERT” IN INTERNATIONAL LAW?ARE YOU AN “EXPERT” IN INTERNATIONAL LAW?ARE YOU AN “EXPERT” IN INTERNATIONAL LAW?ARE YOU AN “EXPERT” IN INTERNATIONAL LAW?ARE YOU AN “EXPERT” IN INTERNATIONAL LAW?Become A Board Certified Attorney!Become A Board Certified Attorney!Become A Board Certified Attorney!Become A Board Certified Attorney!Become A Board Certified Attorney!

You have shown your interest in International Law in Florida by becoming a member of the International LawSection. This membership helps keep you informed of changes and nuances in the law through thispublication and the Section’s phenomenal CLE programs. Isn’t it time that you put your specializedknowledge to work for you by becoming board certified in International Law?

The leaders of international law in Florida all belong to the International Law Section. Members in the Sections exceeds 800attorneys. During the first year of International Law Certification, there were only 15 applicants for the examination. Surely thereare more than this small number of The Florida Bar members who are able to meet the qualifications to hold themselves out asspecialists in International Law.

Any member of The Florida Bar who is interested in becoming certified in International Law may submit an application duringthe next filing period, July 1 through August 31, 1999. Individuals interested in filing for the examination must request anapplication through the Legal Specialization and Education office of The Florida Bar. Applications can be received bycompleting the form below and mailing it to the address indicated. You may also telephone our Staff Liaison, Carol Vaught, at(850)561-5600, extension 6798. Applications will be mailed in the Spring of 1999 for the 2000 examination. Your applicationwill be reviewed by members of The Florida Bar staff and the International Law Certification Committee to ensure that allrequirements to take the certification examination have been met. Those requirements mandate that the applicant:

☞ Have actively practiced law during the five years preceding application and been substantially involved in internationallaw (at least 50% of your practice) in the three years immediately preceding application.

☞ Earned at least 75 hours of international law certification credits in the three years preceding application; the time periodfor the 2000 examination will be July 1, 1996 through August 31, 1999

☞ Submit the names of five lawyers or judges as references to attest to the applicant’s involvement and competencein international law practice.

☞ Pass a written examination prepared by the International Law Certification Committee (after approval of theapplication).

☞ Pay a non-refundable application fee of $200; and additional $150 examination fee will be required of those eligible to takethe exam.

If all of the foregoing requirements are met, the applicant will be notified that he or she is eligible to sit for the examination. Theexamination is administered annually by the International Law Certification Committeeand is usually administered in March. A date and site for the 2000 examination has not been set at this time.

Attorneys wishing to become certified in International Law are recognized at the International Law Section luncheon during TheFlorida Bar’s Annual Meeting. Once an attorney becomes certified, the certification remains in effect for five years, unlessrevoked as a result of disciplinary actions or failure to meet the minimum requirements for recertification are not met. Althoughthere are some threshold requirements for recertification, there are no additional examinations to be taken.

All International Law Section members who meet the qualifications are strongly encouraged to apply for certification. Anyone havingquestions concerning the International Law Certification process is encouraged to contact Carol Vaught at The Florida Bar.

Please Send Me An Initial Application for Certification in International LawPlease Send Me An Initial Application for Certification in International LawPlease Send Me An Initial Application for Certification in International LawPlease Send Me An Initial Application for Certification in International LawPlease Send Me An Initial Application for Certification in International Law

Florida Bar # ________________________ Name: __________________________________________________________

Address: ____________________________________________________________________________________________

City/State/Zip: ________________________________________________________________________________________

Complete and mail this form to: The Florida Bar - Attention: Ms. Carol VaughtLegal Specialization and Education650 Apalachee Parkway, Tallahassee, FL 32399-2300

TA\DEPTMTS\BLSE\MISC\INT-1198.pm6

INTERNATIONALLAW

20

this result was the fact that Congocould not survive without Katanga,which was its most heavily populatedand economically prosperous prov-ince.150 There was also concern thatthe Western States, particularly Bel-gium, supported the secession in or-der to protect economic interests inthe region.151 Moreover, there were nosignificant differences—cultural, eth-nic, social, or linguistic—betweenCongo and Katanga.152 Finally, theUnited Nations may have changed itsinitially impartial stance when theU.N. peacekeepers suffered militarysetbacks at the hands of Katangantroops.153

(ii) Nigeria and Biafra—A Sec-ond Failed Secession

When Nigeria became indepen-dent from Great Britain in 1960, se-cessionist movements among thethree major ethnic groups in the re-gion began to develop.154 After masskillings and failed attempts to recon-cile the parties, the eastern region ofNigeria declared itself to be the Re-public of Biafra and seceded fromNigeria.155 After two and one halfyears of bloodshed, Biafra surren-dered. During these two and one halfyears, the United Nations never ad-dressed the situation.156 The Organi-zation of African Unity characterizedthe situation in Nigeria as an inter-nal matter and condemned secessionof groups within its memberStates.157

Unlike the situation regardingKatanga and Congo, both Biafra andNigeria would have remained eco-nomically viable States if the seces-sion was accomplished.158 Further-more, the existence of human rightsviolations—mass killings and forcedmigrations—gave Biafra a strongmoral claim to secession.159 Moreover,there were significant differencesbetween the populations of Biafraand Nigeria in terms of ethnicity, cul-ture, language, and history.160

(iii) Pakistan and Bangladesh—A Successful Secession

Pakistan, prior to the successfulsecession of Bangladesh, was com-posed of two non-contiguous parts—East Pakistan (present-dayBangladesh) and West Pakistan(present-day Pakistan)—which were

separated from each other by over1,000 miles by India.161 The linguis-tic, ethnic, cultural, and social dis-tinctions between the two regionswere great.162 The call for secessionof Bangladesh came as a result ofpolitical and economic disenfran-chisement and exploitation broughtabout by the dominating West Paki-stan.163 The Pakistani military, underthe control of West Pakistan, began arepressive campaign to end the seces-sionist movement.164 Continuingskirmishes on the Pakistani borderled to India declaring war againstPakistan.165 Only a few days after theoutbreak of war, India formally rec-ognized Bangladesh as an indepen-dent State.166 After two weeks of war-fare, Pakistan surrendered.167

As previously noted, significantdifferences existed between thepopulations of West Pakistan andEast Pakistan. East Pakistan alsohad a moral claim to secession basedupon the “reign of terror” imposed bythe Pakistani Army in order to stampout the secessionist movement. More-over, the two regions were geographi-cally distinct. However, the crucialdifference between Bangladesh andBiafra is the presence of a third-partyState, India, intervening onBangladesh’s behalf. However, in thecase of Katanga, Belgium had inter-vened yet the International Commu-nity refused to legitimize Katanga’sclaim to secession by recognition.

(iv) The Soviet Union andLithuania—A Second Successful Se-cession

The Soviet Union had annexedLithuania, along with Latvia andEstonia, in June 1940 as part of itssecret non-aggression treaty, andsupplementary protocols, with NaziGermany to divide Eastern Europeinto Soviet and German spheres ofinfluence.168 A plebiscite, carefullyorchestrated by the Soviets, resultedin Soviet annexation of Lithuania—along with Estonia and Latvia.169 Al-though Lithuania had been formallyannexed, many States continued torecognize Lithuanian governmentalofficials in exile and challenged thevalidity of the Soviet annexation.170

In 1989, the Supreme Soviet ofLithuania declared that the annex-ation of Lithuania by the SovietUnion was illegal171 and, one yearlater declared its independence fromthe Soviet Union.172 Under threat of

military and economic sanction bythe Soviet Union,173 Lithuania sus-pended its declaration of indepen-dence for one year.174 In 1991, Soviettroops and demonstrators clashed inthe streets of Vilnius, Lithuania’scapital.175 Following the failed coupattempt in Moscow to usurp MikhailGorbachev, President of the USSR,176

Lithuania reaffirmed its 1990 decla-ration of independence.177 RussianPresident Boris Yeltsin extended rec-ognition to an independent Lithua-nia, as did the European Communityand the United States.178 Followingthis, an independent Lithuania wasadmitted into the United Nations.179

In this case, it is interesting to notethat support of Lithuania’s secessiondid not begin until the Russian Fed-eration recognized Lithu-ania, whichwas also in the process of breakingaway from the USSR. Until that act,the World Community had been will-ing to send aid to Lithuania, but the“incident” was still viewed as an in-ternal dispute of the USSR. However,once Russia extended recognition,the major players of the World Com-munity quickly followed suit. One ofthe reasons for this may be the na-ture of Lithuania’s claim to Self-De-termination, it was forcibly annexedby an expansionist power. The annex-ation was not the will of Lithuanians.Arguably, recognition of Lithuaniawas contrary to the political self-in-terest of the Western States.180

Mikhail Gorbachev was viewed as areformer who would steer the USSRonto a new path. As such, his graspon power was tenuous, as evidencedby the failed coup attempt. Therefore,anything that would destabilize hispower could lead to the end of Sovietreform. If hard-line communists thenfilled the power vacuum, the ColdWar would be back with a vengeanceand all of the gains made over thedecades would be for naught.

(v) Yugoslavia and Croatia—AThird Successful Secession

Yugoslavia—a federal union com-posed of Croatia, Slovenia, Bosnia-Herzogovina, Montenegro, Mac-edonia, and Serbia—was a new statethat emerged after World War II.181

The unity of the Yugoslav State wasa by-product of the willpower of itsleader, Marshal Josip Broz Tito. Thefederal union was composed of a di-verse population: Different ethnicgroups (Croat, Slovene, and Serb),

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religions (Roman Catholicism, East-ern Orthodoxy, and Islam), culture,and history.182

Following the death of MarshalTito in 1980, the federal union beganto fray at the edges. In 1991, violenceerupted between Croat police andethnic Serbs in Croatia.183 In re-sponse, the Yugoslav Army wasplaced on combat alert.184 On Sep-tember 25, 1991, Croatia declared itsindependence from Yugoslavia.185

Fighting continued to escalate.186 Af-ter a failed attempt to negotiate acease-fire,187 the Yugoslav Army in-vaded Croatia apparently in supportof Serbian guerrillas.188

On November 8, 1991, the Euro-pean Community instituted eco-nomic sanctions against “Yugosla-via”—Serbia and Montenegro.189 Alittle more than two weeks later, onNovember 27, the United NationsSecurity Council passed a resolutionordering a U.N. peacekeeping Forcesent to the former Yugoslavia.190 Ger-many was the first country to extendrecognition to Croatia,191 followed bythe European Union192 and theUnited States.193 Croatia, along withthe other former Yugoslav republics(Bosnia Herzogovina and Slovenia),was granted membership in theUnited Nations on May 26, 1992.194

However, the “Federal Republic ofYugoslavia,” did not fare as well. Thefederal republic of Yugoslavia wasformed when Serbia and Montenegrodeclared themselves to be the “suc-cessor State” to Yugoslavia on April27, 1992.195 The United States andthe European Union refused to ex-tend recognition to this new entity.196

The United Nations refused to recog-nize Serbia-Montenegro as the suc-cessor state to the former Yugoslaviaand denied its claim to the seat in theGeneral Assembly formerly occupiedby the former Yugoslavia.197 In fact,the Security Council passed Resolu-tion 757, which imposed severe eco-nomic sanctions—including a tradeembargo—against Serbia-Montenegro.198

The Yugoslav incident is a strongindicator of changing State practiceregarding self-determination in theextra-colonial context. When Ger-many and the United States ex-tended recognition to Croatia, theformer Yugoslavia was still in exist-ence. The former Yugoslavia did notlegally cease to exist until Serbia-

Montenegro declared themselves tobe the “Federal Republic of Yugosla-via” on April 27, 1992. These acts,arguably, ran afoul of the so-calledduty to refrain from premature rec-ognition.199

At the time of recognition, fightingwas escalating—no clear victor hadyet emerged. In fact, Serbia-Montenegro seemed to have the up-per hand. Croatia was not in effectivecontrol of its territory; the Yugosla-vian Army had invaded and was inthe process of meticulously demolish-ing its cities. At this point in time, thesituation in Croatia was similar tothat in the cases of Katanga andBiafra; a unilateral declaration of in-dependence had been made andfighting was ongoing. Yet, the resultswere opposite. Katanga’s secessionwas classified as an internal matterand U.N. Peacekeepers were sent tomaintain the territorial integrity ofCongo. With respect to Biafra, theclaim to secession was condemned bythe OAU. However, this did not occurin the Croatian context. Instead ofsending U.N. forces to quell the “revo-lution” and restore regional peaceand security, like what happened inthe Katanga incident, U.N. forceswere used to separate the warringparties and allow Croatia to pursueits secessionist course unmolested bySerbia-Montenegro.

Further evidence that state prac-tice is starting to crystallize into aRight of Self-Determination in theextra-colonial context was providedby the European Union. The Euro-pean Parliament enacted a set ofminimum criteria, which the formerYugoslav republics must meet in or-der to obtain recognition from an EUmember State.200 The EU memberStates relied on these criteria whenextending recognition to the newStates emerging from the Yugoslavdissolution. This is monumental be-cause it represents the first time thatStates placed a limit on their discre-tion regarding recognition. Further-more, the criteria may indicate a for-mation of the requisite opinio juris.The EU member States agreed onthese criteria because they repre-sented the legal norms that the se-cessionist republics of the formerYugoslavia must meet in order toqualify as a State.

(vi) Quebec and Canada—AWork in Progress

In 1763, the colony of New France(Quebec) was formally incorporatedinto the British Empire.201 One hun-dred and four years later, the BritishParliament passed the British NorthAmerica Act, which incorporated thevarious provinces into a single entityknown as Canada.202 Because the Actwas foundational in nature, inCanada it became known as the Con-stitution Act, 1867.203

Quebec, due to its divergent ori-gins from the majority of Canadianprovinces, has become increasinglyresistant to the union. “Proponents ofsecession argue that the future of theFrench-speaking people of Quebec isat risk, if not by design, then by vir-tue of Quebec’s place as an island ina sea of English-speaking NorthAmericans.”204 It is out of a desire toprotect their unique linguistic, his-torical, and cultural heritage thatQuebec must secede from Canada.205

The price of union, Quebecois per-ceive, is assimilation into the domi-nant culture and a loss of theirunique heritage.206

In December 1994, Quebec’s Pre-mier, Jacques Parizeau, “tabled aDraft Bill respecting the sovereigntyof Quebec, which was distributed toevery home in the province.”207 TheDraft Bill provided for a multi-stepprocess that would conclude withQuebec’s secession from Canada.208

On June 12, 1995, the three majorsecessionist parties of Quebecreached an agreement on the form ofthe proposal to be used in the refer-endum.209 On August 28, 1995,210 GuyBertrand, a French-speaking, citizenof Quebec who opposed secession,filed an application in the SuperiorCourt of Quebec seeking a declara-tion that Quebec’s proposed unilat-eral secession from Canada is viola-tive of the Canadian Constitution.211

Mr. Bertrand also sought an injunc-tion preventing the Draft Bill frombeing submitted to the National As-sembly and a referendum from tak-ing place.212 The Draft Bill was sub-mitted to the General Assembly onSeptember 7, 1995, and was notadopted.213

On September 8, 1995, the Supe-rior Court of Quebec granted the ap-plication in part because Quebec’sunilateral secession would “consti-tute a serious threat to the rights andfreedoms guaranteed [Mr. Bertrand]by the Canadian Charter of Rights

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and Freedoms. . . .”214 On October 30,1995, the referendum was held andQuebec’s secession was defeated by anarrow margin.215 Quebec, throughits Premier and Attorney General,filed a motion to dismiss the actionbecause, inter alia, “Quebec’s plan foraccession to sovereignty is consistentwith public international law” and,therefore, the action is non-justi-ciable.216

The court examined the opinionsof several international law scholars,the most damning of which weremade by a group of scholars commis-sioned by the National Assembly ofQuebec to render an opinion onQuebec’s claim to secession.217 Basedupon these findings, the court deter-mined that several issues of greatimport were implicated by this caseand therefore denied the motion fordismissal.218

Following this ruling, the Cana-dian government submitted three is-sues for the Supreme Court ofCanada to determine: Whether Que-bec can secede from Canada unilat-erally; Whether international law al-lows unilateral secession; andWhether domestic or internationallaw prevails in a conflict between thetwo.219 The historic oral arguments,which will determine the future ofCanada, were held in February of1998 and televised by the nationalnews media.220 During oral argu-ment, the Canadian Supreme Courtstrayed from the issues presented toit by the government and relentlesslyquestioned both sides concerning therights and status of aboriginal com-munities in Quebec, particularly theCree.221 Chief Justice Lamer of theCanadian Supreme Court has re-cently stated that a decision by theCourt would not be equivocal: “[thedecision would] more likely be ‘yes,but . . .,’ or ‘no, but. . . . .’ ”222

The case of Quebec could be a ma-jor turning point in the developmentof a Customary Right to Secession.The Supreme Court of Canada willtest this issue utilizing the latest in-stances of State practice regardingsecession—the successful secessionsof Lithuania and Croatia. However,it is interesting to note that inBertrand II, the Superior Court of

Quebec did not mention the Croatianand Lithuanian secessions. Instead,its primary focus was upon the schol-arly debate among commentatorswhether or not a right to secessionexists. This is contrary to the estab-lished order of the sources of Inter-national Law as prescribed by Article38 of the Statute of the InternationalCourt of Justice.223 If the SupremeCourt of Canada were to rely on ex-pert opinion to the exclusion of theother, more important, sources of in-ternational law, its final judgment inthe case of Quebec would be fatallyflawed. As noted earlier, no mentionwas made of the International reac-tion to the secessions of Lithuaniaand Croatia; yet, State practice is thesecond most important source of in-ternational law.224

Although many differences existbetween the dominant culture ofCanada and the minority culture ofQuebec, the secession in Quebeclacks the proper constitutive ele-ment. The referendum pushed by se-cessionist groups in Quebec was de-feated by a narrow margin. In orderfor a claim of self-determination to bejustified, a large majority of the popu-lation must agree to forge for them-selves a common identity and destiny.Fifty-one percent of the populationmaking such an agreement is notenough, the other forty-nine percentprefer the status quo and theirwishes are just as legitimate as thoseof the secessionist group. A bare ma-jority is simply not enough.

Furthermore, this lack of over-whelming popular support also callsinto question the legitimacy of thesecessionist movement itself. In fact,Guy Bertrand, the individual whosought a declaration that Quebec’ssecession was illegal and an injunc-tion to prevent any referendum onsecession, was a French-speaking citi-zen of Quebec. Is the secessionistmovement really the will of thepeople, or is it the will of a few, inter-nal, political elites who are acting incomplete disregard to the will of theirconstituency? If there is no clearlyexpressed dissatisfaction of the popu-lation with the current state ofevents, then secession is not justifi-able. If this were true, a negative rul-ing by the Supreme Court of Canadawould have little impact because theclaim to secession was invalid ab ini-tio. This is diametrically opposed to

the situations in Bangladesh,Lithuania, and Croatia where popu-lar support for secession was over-whelming.

b. Crystallization of a Customaryof Secession

The International Community’spractice regarding Self-Determina-tion in the extra-Colonial context isinconsistent and inconclusive. Theanalysis above indicates that no crys-tallization of a customary Right toSecession has yet developed. Stateaction with regard to the secessionsof Lithuania and Croatia may indi-cate a future trend in State practiceregarding secession. However, thesetwo incidents of State practice do notrise to the level of a “widespreadmajority of States, including the spe-cially affected States” which the ICJfound to be the definition of Custom-ary Law in the North Sea Continen-tal Shelf Case. The situation inCanada is ongoing and its impact onState practice at this point in time iswholly speculative. With regards toSelf-determination and Secession, itis arguable that almost all of theStates in the International Commu-nity are “specially affected.”225 AnyState with a minority group or regionwhich wishes to be independentwould be “specially affected” by aCustomary Law of Secession.

4. Scotland as a Free NationI am a member of the SNP [Scot-tish National Party] because I be-lieve that Scotland must again be-come an independent nation. Notbecause Scotland is different, butbecause Scotland is simply thesame—the same as every otherwealthy small country in Europe.What we seek for Scotland is thestatus of a small ancient nation—one that has over 70% of Europe’scrucial energy reserves, and yethas to stand outside when the im-portant decisions are made.

—Sean Connery226

In his article, Professor Frankelposits that the current internationalnorms regarding secession aregeared toward the promotion of vio-lence.227 The criteria for recognitionof a new State continue to includethat the government exercise effec-tive control over its territory.228 Theonly way to achieve this effective con-trol is to hold the borders of the ter-ritory with military force and excludeall others. 229 As long as recognition

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remains the only way to legitimize asecessionist claim,230 and the pur-ported duty against premature rec-ognition of a State holds true,231 thebloodshed will continue. Further-more, the “parent” State, based uponits Right to Territorial Integrity, 232 iscertainly justified in its use of mili-tary might to quell the “rebellion.”This current situation is in directcontravention of the Principles ofNon-Aggression233 and PeacefulResolution of Disputes234 as enumer-ated in the Charter.

To end this state of events, Profes-sor Frankel proposes a drasticchange to the current “hands off ’ ap-proach of International Law.235 Pro-fessor Frankel advocates for the for-mation of a U.N. Commission, underthe auspices of the General Assem-bly and/or the Security Council, tomake investigations of secessionistclaims, upon petition by a secession-ist group, and evaluate the claim us-ing objective criteria.236 The Commis-sion would be able to make investi-gations and recommend to theSecurity Council the need for peace-keeping forces to stabilize the regionpending the results of the investiga-tion.237 Modern secessionist claims donot fit nicely into the current pigeon-hole the “precious right” of Self-De-termination has been consigned to—de-colonization.238 The case of Scot-land does not fit neatly into thatpigeonhole. It is not de-colonizationbecause Scotland is part of the “met-ropolitan area” of Great Britain,there is no sea separating Scots fromtheir “colonial” overlords.

This section will analyze the Scot-tish case for secession utilizing thecriteria proposed by ProfessorFrankel. Then, upon careful exami-nation of the facts, several conclu-sions regarding the legitimacy of theScottish claim will shine through.

a. The Criteria of Statehood“The first guideline for evaluating

the merits of a secessionist claimshould involve some of the tradi-tional criteria for recognizing a viablestate.”239 The Montevideo Conventionof 1933 declares: “The State as a per-son of international law should pos-sess the following qualifications: (a)a permanent population; (b) a definedterritory; (c) government; and (d) ca-pacity to enter into relations withother States.”240 Because the tradi-tional criterion of “effective control of

territory” tends to engender violence,it should be de-emphasized.241 In itsplace, “territory” should be evaluatedin terms of its definiteness. Primaryconcern should be placed on the ex-istence of a distinct boundary be-tween the “parent” State and the se-cessionist group. Therefore, claimslike those made by the ethnic Serbsin Bosnia-Herzegovina would be fil-tered out, the secessionist group issimply too diffused within the main-stream population to make secessiona viable option.242 However, claimslike those asserted by secessionist en-tities, such as Bangladesh andLithuania, would easily fit withinthis criterion.

Scotland’s border with Englandhas remained, more or less, consis-tent since 122 AD when EmperorHadrian constructed his famousWall.243 This border also represents abreak in the geological formation ofthe southern and northern parts ofthe British Isle.244 The flat lands ofEngland suddenly turn into the roll-ing foothills of the Scottish Lowlands,which then ascend dramatically intothe majesty of the Highlands.245 TheICJ has used principles of geomor-phology when delimiting boundariesin other contexts.246

Although the Act of Union abol-ished the Scottish Parliament247 andPrivy Council,248 the pre-existing sys-tem of local government, theburghesses, has always remained in-tact.249 Furthermore, on January 1,2000, the Scottish Parliament willreconvene after a 293-year ab-sence.250 Scotland’s population hasremained constant over the past 50years, about 5.2 million people,251

with birth rates slightly outpacingdeath rates.

b. The Will of the PeopleThe will of the People, in deciding

whether or not to pursue a secession-ist claim, is a factor of vital impor-tance.252 It is the People, after all,who, through a constitutive process,forge a common identity and des-tiny—thereby creating a new State.“When there has been an overt ex-pression of dissatisfaction with thestatus quo, secessionist claims arejustifiable.”253 This popular will isparticularly strong when minoritygroups within the population partakein this consensus.254

The Voice of Scotland has spoken;continued union with England is nei-

ther desired nor desirable. On Sep-tember 9, 1997, Scottish voters par-ticipated in a landmark referen-dum.255 In response to the question“Should there be a Scottish Parlia-ment,” seventy-five percent of Scot-tish voters said “Yes.”256 In responseto the question “Should the ScottishParliament have tax-varying pow-ers,” sixty-four percent of Scottishvoters said “Yes.”257 The results of thisreferendum are staggering whencompared with the results of a simi-lar referendum held seventeen yearsearlier.258

However, Scotland is for all Scots,both new and old. “Ours is a civicnationalism, based upon historic bor-ders rather than ethnic bloodrights.”259 The SNP, the prime moverbehind Scottish secession, acts in con-junction with two other political as-sociations whose prime goal is inde-pendence—New Scots forIndependence and Scots Asians forIndependence.260 The membership ofthese two groups represents overfifty three percent of the non-ethnicScots in Scotland.261

c. Human Rights and DemocracyNaturally, secessionist leaders and

their constituent populations shouldcomply with international law—par-ticularly human rights law and thehigh principles contained in theCharter.262 Scotland is striving to-ward its independence through legalmeans— there is no equivalent of theIRA or Sinn Fein in Scotland.263 Theprocess toward independence is be-ing advanced through proper politi-cal and legal means. The SNP hasopenly declared its intention to abideby all established precepts of inter-national law when Scottish State-hood is achieved.264

d. Political Autonomy and UnjustIncorporation

A secessionist claim is more justi-fiable the greater the political au-tonomy of the region.265 If the regionwas completely independent at onetime, the claim to secession is evenstronger.266 “Further, if the territorywas “unjustly incorporated” into theparent state to which it now belongs,the claim is strongest.267 Following itsunion with England, Scotland re-tained a significant amount of localautonomy.268 As discussed earlier,Scotland’s union with England wasachieved through a mixture of brib-ery and unconscionable exploitation

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of superior bargaining power.269 Suchactions are clearly contrary to mod-ern notions of fairness and due pro-cess. However, at least in respect tobribery of the members of the Scot-tish Parliament, England violated itsown contemporary standards.270

Bribery had been outlawed in En-gland for 232 years prior to theevents surrounding the passage ofthe Act of Union.271 By bribing theScottish parliamentarians, Englandwrongly achieved dominance overScotland. The Uprisings of 1715272

and 1745 clearly indicate that theUnion was contrary to popular willand sentiment at that time.

e. Discrimination and Oppressionby the “Parent” State

“It is hard to imagine a territorywishing to secede without some rea-son. That reason usually is that theparent state is discriminatingagainst the territory in some way.”273

In the past, English discriminationagainst Scots was blatant, if not geno-cidal. In that regard, the events sur-rounding the 1715 and 1745 Upris-ing are an exemplar.274 England’sobligations under the Act of Unionwere something to be circumvented,even blatantly ignored, whenever itwas expedient to do so.275

Current discrimination is nolonger so egregious or blatant, yetexists nonetheless. English still con-ceive of the Scots as being an inferiorpeople.276 Under-representation inthe London Parliament persists,thereby continuing Scotland’s politi-cal disenfranchisement in Great Brit-ain. However, the most severe formof oppression against Scots today iseconomic. The SNP had claimed foryears that revenues generated byScotland and forwarded to the Trea-sury had been greatly under-reportedto make it appear that England mustannually subsidize Scotland.277 OnJanuary 17, 1997, the SNP learnedthe truth.278 Mr. William Waldgrave,Chief Secretary of the Treasury,openly admitted that the SNP wasright.279 Scottish revenues had beengreatly under-reported.280 The realityis that Scotland had subsidized En-gland in the amount of £27 billionsince 1979.281 That equals out to eachScot paying £5,400 to England.282

Where did this money go? No oneknows. But this fact remains, En-gland has viewed Scotland as a trea-sure trove of raw materials: Men toship off and fight and die in theirwars, natural resources to be ex-ploited, and economic strength to si-phon off if needed—“economic vam-pirism.”

f. Feasibility of IndependenceAccording to Professor Frankel,

secessionist claims must be realis-tic.283 The Secessionist State must bea viable entity.284 The size and eco-nomic strength of the SecessionistState must be evaluated “both in ab-solute terms and relative to the par-ent state as a whole.” The reasons forthis criteria are the promoting of In-ternational stability, maintaining theNation State as the primary playerin the International Arena, promot-ing Global economic growth, and en-suring the successful participation ofthe Secessionist State in the Interna-tional system.286

Scotland, though geographicallysmall, is a very wealthy nation. Sev-enty percent of Europe’s oil reserveslie within what would be the Exclu-sive Economic Zone, ContiguousZone, and Territorial Sea of Scot-land.287 In terms of per capital wealthcreation, Scotland ranks eighth inthe world.288 Scotland is also a majormanufacturer of technological goodsin Europe.289 Scottish industry has a30% greater productivity output thanthat of England.290 In 1995, the grossdomestic product (GDP) of Scotlandwas £47,965,000,000, the equivalentof U.S. $112,717,750,000291 —all thiswealth generated by a country of only5 million people!

From the above analysis,Scotland’s claim to secession meetsthe criteria proposed by ProfessorFrankel. It is readily apparent that,if Scotland were to achieve its inde-pendence, it would become a wealthy,influential, and effective player in theInternational Community. However,because of the fact that at the time ofannexation technology was not welldeveloped and England could not yeteffectively project its might, Scottishsecession is illegitimate under thecurrent regime of de-colonization.Therefore, Professor Frankel’s theoryis particularly instructive on how weare to deal with the claims of a peopleto Self-determination. What is re-quired are new rules for a new age.

Scotland’s claim is legitimate andcompelling, yet it is contrary to theestablished paradigm. When thePeople have determined to severtheir bonds to an oppressive regimeand create their own destiny, theywill take steps necessary to ensurethat liberty—even if it calls for vio-lence. In this age of an inter-depen-dant World Community, disruption inone region will have Global repercus-sions. This result is undesirable.Claims like those of the Scots cannotbe ignored or marginalized becausethey do not fall within the dominantparadigm. Self-Determination ofPeoples cannot be encased into a re-gime of decolonization for long. Itsvital energy is nourished by the col-lective aspirations of all Mankind.This energy must be released andchanneled in such ways to increasethe aggregate good of all.

5. Scots as Indigenous Peoples?A new development in Interna-

tional Law is the protection of per-sons—people are now subjects of in-ternational law rather than objects.This trend is particularly evidentwithin the context of IndigenousPeoples. Indigenous Peoples have,throughout history, been margin-alized, discriminated against, and thevictims of genocide.292

In light of this history of oppres-sion, the International Communityhas taken steps to bring thesemarginalized peoples into the main-stream of the World Community.293

The General Assembly has declared1995-2004 to be the InternationalDecade of the World’s IndigenousPeople.294 The General Assembly hasalso declared that the IndigenousDecade shall conclude with adoptionof a declaration on the rights of In-digenous Peoples.295

The issue of Indigenous rights inthe International arena began in1971 when the Economic and SocialCouncil (ECOSOC) directed its Sub-Commission on the Prevention ofDiscrimination and Protection of Mi-norities to study the plight of Indig-enous people and make recommen-dations to address the concerns ofthose communities.296 Currently, thestatus of Indigenous rights is embod-ied in the United Nations Draft Dec-laration on the Rights of IndigenousPeoples.297

Article 3 of the Draft Declarationunequivocally states: “Indigenous

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peoples have the right of self-deter-mination. By virtue of that right theyfreely determine their political statusand freely pursue their economic, so-cial and cultural development.298

However, we are now confronted witha definitional problem—Who are “In-digenous Peoples?”

In his article, Professor Wiessneraddresses this definitional prob-lem.299 The definition ProfessorWeissner proposes is thus:

Indigenous communities are bestconceived of as peoples tradition-ally regarded, and self-defined, asdescendants of the original inhab-itants of lands with which theyshare a strong, often spiritualbond. These peoples are, and desireto be, culturally, socially and/or eco-nomically distinct from the domi-nant groups in society, at the handsof which they have, in past orpresent, suffered a pervasive pat-tern of subjugation,marginalization, dispossession, ex-clusion and/or discrimination.300

In coming to this definition, Pro-fessor Wiessner’s goal was crafting adefinition that would include all ofthe target communities, and yet ex-clude all other “marginal” groups whoare not “Indigenous.”

However, in this endeavor, Profes-sor Wiessner may have been under-inclusive. Focus upon distinctivenessfrom the “dominant society” may ex-clude such groups as the nativeFijians. Native Fijians represent51.1% of the total population ofFiji.301 They are not a minority group;they are the dominant culture in Fiji.The 1997 revision of the Fijian Con-stitution ensures this pre-eminenceby granting a veto power over all leg-islation to the parliamentarians ap-pointed by the (native Fijian) GrandCouncil of Chiefs.302 Yet, no observerwould doubt the fact that nativeFijians are an Indigenous Peopleswhen confronted with the fact thatthe majority of native Fijians con-tinue to live in a traditional man-ner.303

A second problem with ProfessorWiessner’s definition is the criterionof a “strong, often spiritual bond withthe land.”304 This criterion would callinto question the continued status ofa community as “Indigenous” as thatcommunity becomes more and moremodernized. In this respect, the ex-perience of Fiji is particularly in-

structive. Fiji is a modern nation; yet,it retains its traditional identity andmode of life.305 Furthermore, linking“Indigenousness” to a criterion of aspiritual bond with the land jeopar-dizes the continuation of “Indig-enous” status. If fifty one percent ofan Indigenous community were toconvert to Christianity, for example,would that group lose its “Indig-enous” status? Most assuredly not!This being the case, perhaps this cri-terion should be altered to “a stronghistoric, and oftentimes spiritual,bond with the land.”306

Using this modified definition, letus examine Scotland’s claim to “In-digenous” status. Scotland’s totalpopulation is 5 million people, aboutone quarter the population of presentday London.307 Ethnic Scots, who aredescendants of the Picts andDalraidans, can trace their ancestralpresence in Scotland since 800 BC.308

Ancient Pictish Peoples in Scotlandpracticed the ancient Celtic Druidi-cal religion, which was premisedupon the worship of natural forcesand phenomenon.309 Although Scot-land was converted to Christianity bySt. Columba around 550 AD,310 Scotsstill practiced, and to a certain extentstill practice, a “Christianized” ver-sion of their ancient beliefs.311 Thehistory of Scottish oppression at thehands of the English, a traditionwhich continues to this day, is unde-niable. Significant cultural, social,and linguistic differences that ex-isted between Scots and Englishwere eradicated in an attempt to “An-glicize” Scots and integrate them inthe mainstream culture,312 albeit ina less than equal role.

Using this modified definition of“Indigenous Peoples,” it would ap-pear that Scots fall neatly within.The problem, however, in the contextof Indigenous Rights is not merelydefinitional—it is also a lack of au-thority. The declaration, even if rati-fied by the General Assembly, wouldbe non-binding and merely aspira-tional in nature.313 In order for theprinciples stated in the Draft Decla-ration to become authoritative andcontrolling, they must be enshrinedin a multilateral convention or ac-quire the status of customary law.314

6. The Act of Union and the ViennaConvention on the Law of Treaties

The Act of Union, as it has beeninterpreted in the courts of Scotland

and England, is a Treaty “underwhich both Scotland and Englandceased to be independent states andmerged their identity into an incor-porating union.”315 In fact, 19th cen-tury legal commentator ChancellorKent noted that Scotland and En-gland recognize each other’s judg-ments utilizing principles of interna-tional law and comity amongStates.316 Therefore, the Act of Unionwould be governed by the ViennaConvention on the Law of Treaties.317

Generally speaking, under thedoctrine of pacta sunt servanda, aState is bound to obey its treaty obli-gations.318 Article 60 of the ViennaConvention allows one State-party toterminate its obligations under thetreaty if the other State-party is inmaterial breach. England has been inbreach of its obligations under theAct of Union for 293 years. The “ob-ject and purpose” of the Act of Unionwas to create a union between twodistinct Nations—Scotland and En-gland would cease to exist and GreatBritain would be born. Instead offorging two peoples into a commondestiny, The Act of Union instead cre-ated a powerless underclass.

IV. PredictionNo Customary Law regarding a

Right to Secession has crystallized.The Draft Declaration has yet to beratified by the General Assembly andeven when it is ratified, it is merelyaspirational and not binding onStates. The general practice of Statesremains that recognition of newStates is a discretionary act. If agroup secedes from a “metropolitanarea,” it would be in the discretion ofthe States whether or not to recog-nize that group as a new State.

Current State practice regardingrecognition of secessionist States en-courages violence and bloodshed.One of the traditional criteria forStatehood remains effective control ofterritory, i.e. your military must be incommand of the borders and able toexclude the military might of otherStates. Because recognition remainsa discretionary act, which isoftentimes influenced by consider-ations of political expediency, there islittle stability and consistency in out-comes. Recent events are evidence ofan emerging customary law right ofsecession, but crystallization has yet

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occurred.Based upon this, if Scotland were

to claim a Right to Secession, seces-sion could only be achieved after abloody civil war. To meet the criteriafor Statehood, Scottish troops wouldhave to push English forces beyondHadrian’s Wall. Even if this could beaccomplished, recognition would notnecessarily follow. Many States, in-cluding the United Nations itself,would be distressed to see one of theleaders of the International Commu-nity disintegrate before their veryeyes. Most likely, the Internationalresponse would be to quell this “in-surrection” and protect the “sover-eignty” and “territorial integrity” ofGreat Britain.

V. RecommendationAny decision made in an Interna-

tional context should be made with aview toward achieving a public orderof human dignity,319 does the decisioncontribute to a “net plus” for Human-ity.

Arguably, current State practicedoes not contribute to such a net plus,the dominant paradigm of Secessionencourages the use of force. Suchforce could be disastrous, destabiliz-ing the region and causing ripple-ef-fects felt around the Globe. Such astate of events is a net minus to apublic order of human dignity.

The universal condemnation ofcolonialism was simply a function ofthe evils inherent in it. The WorldCommunity despised colonialism be-cause it was, in and of itself, despi-cable. The last vestiges of colonialism,expansionism, and imperialism mustnow be swept away forever. Today, theScots labor under an “oppressive re-gime,” and an “alien domination” noless than the former colonial peoplesdid.

Therefore, secessionist groups areentitled to, and a public order of hu-man dignity demands, a process inwhich to present their claims, arguetheir case, and have their claim toself-determination legally settled.The Principles of Non-Aggressionand Peaceful Settlement of Disputesdemand no less. A process, like theone outlined by Professor Frankel,

would provide a legal forum at whichto present a secessionist claim. Thisprocess would drastically reduce thepotential for violence inherent in asecessionist claim.

History has taught us one impor-tant lesson: When the Voice of thePeople speaks out, it must be heard.It speaks in the language of Freedom,it speaks in the language of Justice,and it speaks in the language of Tol-erance. Whether the effects of thatVoice are good or ill is an issue forposterity—not us. Our time in historyis a “Moment of Transition.” The OldWorld in which we lived is nolonger—it died in 1991. New waysmust be found for this new age ofMankind. The human desire for Free-dom, Justice, and Tolerance must bedirected in such a way as to increasethe good of all. Otherwise, those de-sires will only lead to violence andsuffering—the Voice of the Peoplemust be heard. Scotland now criesout to secure for itself that basic lib-erty which all hold dear, the Right todetermine one’s own Destiny. Know-ing the mettle of Scots, victory—failté—shall soon be theirs.

Endnotes:1 Failté is a Gaelic word which means

“victory.”2 The Author is a direct descendant of

Clan Buchanan, which is situated in Galloway,in the Highlands of Scotland. The Gibson fam-ily is a “sept,” or branch, of Clan Buchanan de-scended from Gilbert Buchanan, Lord of Gal-loway, who was given permission by the Chiefof Buchanan to build a garrison in 1249. TheClan Buchanan itself is comprised of the de-scendants of Anselan, a son of King MacBeth,and was formed around 1070. The Author’sfamily arrived in America in 1747, when JamesGibson landed in Virginia. James Gibson wasan ardent Jacobite who fought in the 1745Uprising and was sentenced to forced trans-portation to America after the disastrousBattle of Culloden. The Author can also tracehis lineage to Clans Ross and Stewart (orStuart).

3 BRAVEHEART (20th Century Fox, 1995).4 Id.5 See U.N. CHARTER art. 2, ¶4.6 See STANLEY MEISLER, UNITED NATIONS:

THE FIRST FIFTY YEARS 1 (1995).7 See U.N. CHARTER art. 33, ¶1.8 See id. at art. 51.9 See MEISLER, supra note 6, at 9-10.

10 See U.N. CHARTER art. 1, ¶2.11 See, e.g., Case Concerning East Timor

(Portugal v. Australia) 1995 I.C.J. 90 (herein-after East Timor Case); Western Sahara 1975I.C.J. 4 (hereinafter Western Sahara Case).These two cases before the I.C.J. adequatelyillustrate how a claim of Self-Determination ofPeoples can come into square conflict with a

claim of Territorial Integrity.12 Compare W. Michael Reisman, Interna-

tional Law after the Cold War, 84 AM. J. INT’LL. 859, 854 (1990) (“[A]ny system incorporat-ing groups of distinct identity who do not be-lieve that there are real advantages to re-maining within the collective entity will hesubjected to increased pressure for secessionand reorganization.”); and Cass Sunstein,Constitutionalism and Secession, 58 U. CHI.L. REV. 633, 669 (1991) (“In some cases, a rightto secede will be fully justified as a matter ofpolitical morality.”); with Adeno Addis, Indi-vidualism, Communitarian-ism and theRights of Ethnic Minorities, 67 NOTRE DAME

L. REV. 619, 628 (1992) (“[A right to secessionis] unlikely to be philosophically defensibleand institutionally sensible.”).

13 Woodrow Wilson, An Address to a JointSession of Congress (Fourteen Points Address)(1918), in THE PAPERS OF WOODROW WILSON 534,539 (Arthur S. Link, ed. 1984).

14 See U.N. CHARTER art. 1, ¶2.15 See Gerry J. Simpson, The Division of

Sovereignty: Self-Determination in the Post-Colonial Age, 32 STAN. J. INT’L L. 255, 264-65(1996); CHRISTOPHER O. QUAYE, LIBERATION

STRUGGLES IN INTERNATIONAL LAW 220 (1991).16 See id. See generally A. RIGO SUREDA,

THE EVOLUTION OF THE RIGHT TO SELF-DETERMI-NATION: A STUDY OF UNITED NATIONS PRACTICE

(1977).17 See Simpson, supra note 15, at 264-65.18 Simpson, supra note 15, at 264-265.19 See generally MARY SHELLEY, FRANKEN-

STEIN (Penguin Books 1990).20 See QUAYE, supra note 15, at 220.21 Simpson, supra note 15, at 268. See G.A.

Res. 217, U.N. GAOR, 3d Sess., 183d plen. mtg.,at 71, U.N. Doc. A/810 (1948).

22 U. Thant, United Nations Secretary-General, Statement, 7 U.N. MONTHLY

CHRONICLE 36 (Feb. 1970).23 See24 G.A. Res 421, U.N. GAOR, 5th Sess.,

Supp. No. 20, art. 6, U.N. Doc. A/1775/Corr. 1(1950).

25 See26 See U.N. CHARTER art. 73-85.27 G.A Res. 1514 (XV), 15 U.N. GAOR,

Supp. No. 16, at 66, U.N. Doc. A/4684 (1960)(hereinafter Resolution 1514).

28 Id. at ¶1.29 Id. at ¶2. In the preamble to resolution

1514, the General Assembly was “[c]onvincedthat all peoples have an inalienable right tocomplete freedom. . . .” Id. at preamble.

30 Id. at ¶5.31 G.A. Res. 1541 (XV),U.N. GAOR, 15th

Sess., Supp. No. 16, U.N. Doc. A/4684 (1960)(hereinafter Resolution 1541).

32 Id. at principle ii33 See id. at principle vi.34 G.A Res. 2625 (XXV), 25 U.N. GAOR,

Supp. No. 28, at 124, U.N. Doc. A/8028 (1971)(hereinafter Declaration on Friendly Rela-tions).

35 G.A. Res. 2131, U.N. GAOR, 20th Sess.,1408 ple. mtg., Supp. No. 14, U.N. Doc. A/6014(1965).

36 Id. at 4.37 Western Sahara, 1975 I.C.J. 12, at 110.38 UMOZURIKE OJI UMOZURIKE, SELF-DETER-

MINATION IN INTERNATIONAL LAW 190 (1972).39 See, e.g., Resolution 1541, supra note 31,

at principle iv; UMOZURIKE, supra note 38, at29.

Failte’from page 25

27

40 See, e.g., Resolution 1541, supra note 31,at principle iv; UMOZURIKE, supra note 38, at29. Because of this limiting principle, claimsof Self-Determination by peoples within the“metropolitan area” (i.e. not separated fromtheir “colonial overlord” by an ocean) would beinvalid. Therefore, the International Commu-nity would simply not hear claims by NativeAmericans, Kurds, Tibetans, Palestinians,Basques, Ainu, Quebecois, and Scots.

41 See Resolution 1514, supra note 27, atart. 7.

42 See Western Sahara, 1975 I.C.J. 12, at110.

43 In this respect, the two major humanrights covenants, in similar first articles, un-equivocally declare that: All peoples have theright of self-determination. By virtue of thatright they freely determine their political sta-tus and freely pursue their economic, socialand cultural development.” International cov-enant on Civil and Political Rights, Dec. 16,1996, U.N. GAOR 2200A (XXI), at art. I, 999U.N.T.S. 171; International Covenant on Eco-nomic, Social and Cultural Rights, Dec. 16,1966, U.N. GAOR 2200A, at art. I, 993 U.N.T.S.3.

44 See PETER SOMERSET-FRY & FIONA

SOMERSET-FRY, THE HISTORY OF SCOTLAND 22, 24(1982); JOHN BAYNES, SOLDIERS OF SCOTLAND 12(1988).

45 The Romans referred to the variousCeltic tribes in Scotland, collectively, asCaledonians. Later, these peoples would be re-ferred to as Picts.

46 “Calgacus” is a Celtic word that means“swordsman.”

47 See SOMERSET-FRY, supra note 44, at 25.48 See id. at 25-26; BAYNES, supra note 44,

at 12.49 See id.; BAYNES, supra note 44, at 12. The

relevance of this border will be discussed at pp243-246, infra.

50 See id. at 44.51 See id. at 34-39.52 The Dalriadans are referred to by an-

thropologists as “Scots.” I will refer to thesepeoples as “Dalriadans” to avoid confusingthese tribes with the later Scottish peoples whoemerged from the union of Dalriadans andPicts.

53 See SOMERSET-FRY, supra note 44, at 34.54 Id. at 51.55 Id.56 See id. Cumbria is believed to have been

the part of Strathclyde which lay south of theScottish-English border. See id.

57 See id. at 53; BAYNES, supra note 44, at13.

58 See id. King MacBeth is, of course, thereal person behind the literary figure “cre-ated” by William Shakespeare in his playMacbeth. The real MacBeth was nothing likethe sinister and murderous figure portrayedin the play. MacBeth has been described as“[a] strong man who combined firm govern-ment with a sense of justice. . . . MacBeth’srelatively peaceful reign of seventeen years[is] generally praised by historians.” Id. at 52.“If [MacBeth] had won the battle ofLumphanan he would have steered Scotlandin a direction very different from that whichit took under Malcolm III.” Id. at 54.Shakespeare, an Englishman, would natu-rally write his play in a light most sympa-thetic to Malcolm III—an English sympa-thizer.

59 See id. at 54.60 Id. at 55; BAYNES, supra note 44, at 13-

14.61 See SOMERSET-FRY, supra note 44, at 55.62 See id. at 55-56.63 See id. at 56.64 See id. at 59; BAYNES, supra note 44, at

14.65 See SOMERSET-FRY, supra note 44, at 61.66 Id. at 61.67 See id. It is interesting to note that Mo-

ray was the home of King MacBeth.68 See id. at 77; BAYNES, supra note 44, at

14.69 See SOMERSET-FRY, supra note 44, at 77;

BAYNES, supra note 44, at 14.70 See SOMERSET-FRY, supra note 44, at 77;

BAYNES, supra note 44, at 14.71 See SOMERSET-FRY, supra note 44, at 77.

In fact, John Balliol signed a peace and mu-tual assistance treaty with France. See id. Thistreaty was the beginning of what is called the“Auld Alliance” between Scotland and France.See id. It is because of this that France offeredsanctuary to Prince James Edward Stuart andhis son, Prince Charles Edward Stuart, in theEighteenth Century.

72 See id. at 78. During his rape of theHighlands, Edward I stole the Stone of Des-tiny from its resting place at Scone, ancientcapital of the Pictish Kingdom. See id. at 44.According to legend, the Stone is said to be theone used by Jacob as a pillow when he dreamtof a ladder to heaven. See id. On November 15,1996, after a 700 year absence, the Stone wasreturned to Edinburgh Castle by Prime Min-ister John Major. After 700 Years, England re-turns Ancient Stone of Scone to Scots, DALLAS

MORNING NEWS, Nov. 16, 1996 at 9A, availablein 1996 WL 15026951.

73 See SOMERSET-FRY, supra note 44, at 78.74 Id.75 See id. at 79; BAYNES, supra note 44, at

14-15.76 See SOMERSET-FRY, supra note 44, at 79.77 See id. at 79-83; BAYNES, supra note 44,

at 15.78 See generally SOMERSET-FRY, supra note

44, at 89-181.79 See id. at 162; BAYNES, supra note 44, at

17-18.80 See SOMERSET-FRY, supra note 44, at 162.81 Id. at 182.82 An Act for a Union of the two Kingdoms

of England and Scotland, 1705, 5 Anne, ch. 8(hereinafter Act of Union), as amended by AnAct for Rendering the Union of the two King-doms more Intire and Comp1eat, 1707, 6 Anne,ch. 6 (hereinafter Act of Union II).

83 SOMERSET-FRY, supra note 44, at 188.84 See id. at 187.85 Act of Settlement, 1700, 12 & 13 Will. 3,

ch. 2, § 14.86 Act of Settlement, 1700, 12 & 13 Will. 3,

ch. 2. The Act of Settlement was the EnglishParliament’s decision that only a Protestantcould inherit the throne (thereby excludingPrince James Edward Stuart a Scottish Catho-lic, who lived in exile in France); therefore, suc-cession to the English throne was assured tothe heirs of Duchess Sophia of Hanover. SeeSOMERSET-FRY, supra note 44, at 187.

87 See Act of Settlement, 1700, 12 & 13Will. 3, ch.. 2, § 14. See also SOMERSET-FRY, su-pra note 44, at 187.

88 SOMERSET-FRY, supra note 44, at 187.89 See id. at 187-88.

90 See id. at 188.91 See id. at 187-89.92 In fact, the rallying cry of the Jacobites

(a term used to describe all anti-Union ele-ments in Scotland) was: “We are bought andsold for English gold.” Id. at 187.

93 Act of Union, 1705, 5 Anne, ch. 8, art. 4.This particular concession was of extreme im-portance. In 1660, the English Parliamentpassed the Navigation Act that stated that onlyEnglish-flag vessels may enter English-con-trolled ports for purposes of trade. See Navi-gation Act, 1660, 12 Car. 2, ch.. 18, §1. Any vio-lation of the Navigation Act would result in theseizure and forfeiture of the offending vessel.See id. This Act placed a stranglehold on Scot-tish trade because it excluded Scots from ship-ping trade-goods in their own vessels to theAmerican Colonies, Canada, or any other pos-sessions of England.

94 See Act of Union, 1706, 5 Anne, ch.. 8,art. 15.

95 Id. at art. 19.96 See id. at art. 25, §2.97 See id. at art. 3.98 Id. at art. 2; see also Act of Settlement,

1700,12 & 13 Will. 3, ch.. 2.99 See id. at art. 22. See also SOMERSET-FRY,

supra note 44, at 188. With regards to Scot-tish representation in Parliament, the ratioof English members to Scottish members inthe House of Commons was over ten to one.See id. The ratio in the House of Lords wastwelve English lords for every Scottish lord.See id. The ratio of populations between En-gland and Scotland at this time was only fiveto one. See id.

100 Act of Union, 1706, 5 Anne, ch.. 8, art. 1.101 See SOMERSET-FRY, supra note 44, at 189.102 See id. at103 See id. at 189-90.104 See Act of Union, 1706, 5 Anne, ch. 8, art.

19.105 See SOMERSET-FRY, supra note 44, at 190.106 See id. at 190-91; BAYNES, supra note 44,

at 24.107 See SOMERSET-FRY, supra note 44, at 193;

BAYNES, supra note 44, at 25.108 See id.109 Id.110 Id.111 See id. at 194; BAYNES, supra note 44, at

26.112 See SOMERSET-FRY, supra note 44, at 194.113 See id. at 194-95.114 See id.; BAYNES, supra note 44, at 27-28.115 See SOMERSET-FRY, supra note 44, at 195.116 See id.117 See id. at 195-96.118 See id. at 196.119 See id. at 196-97.120 See Act of Union, 1705, 5 Anne, ch. 8, art.

19.121 See SOMERSET-FRY, supra note 44, at 197.122 See id.123 See id.124 An Act for the more Effectual Disarm-

ing of the Highlands, 1746, 19 Geo. 2, ch. 39,§18 (hereinafter Pacification Act).

125 See SOMERSET-FRY, supra note 44, at 197;see also SIR THOMAS INNES OF LEARNEY, THE TAR-TANS OF THE CLANS AND FAMILIES OF SCOTLAND

67 (1964):For forty generations, Scotsmen have beenreared to these principles of clanship, kinship,and pride of ancestry, and our whole legisla-tive and constitutional system was based as

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much unconsciously as consciously on build-ing up a nation in which everyone was imbuedwith a sense of pride and co-operation. Theseinstincts of Tribality and Inheritence, en-shrined in clanship and its theory of aristo-cratic brotherhood, glorying in lineage, ances-try, and love of native clan-countries, representa civilisation of which the glamour has grownwith the ages, and which carries a message ofloyalty and inspiration to Scots throughout theworld.Id. “[O]ur noble clannish traditions are dividedvertically by names, not horizontally betweenclasses. Campbells or Grahams may be dukesor dustmen, but they all share Roots, havetheir own special tartan and historic tradition.”Sir Iain Montcrieffe of That Ilk, Debrett’s U &Non-U Revisited, reprinted in LORD OF THE

DANCE: A MONTCRIEFFE MISCELLANY 37 (HughMontgomery-Massingbird, ed. 1986). “EveryScottishman has a pedigree. It is a nationalprerogative, as inalienable as his pride and hispoverty.” SIR WALTER SCOTT, MEMOIRS, reprintedin DONALD WHYTE, SCOTTISH SURNAMES & FAMI-LIES 300 (1996). “That is the mark of a Scot ofall classes—that he stands in attitude to thepast unthinkable to Englishmen, and remem-bers and cherishes the memory of his fore-bears, good and bad.” ROBERT LOUIS STEVENSON,WEIR OF HERMISTON, reprinted in WHYTE, supra,at 300.

126 See Pacification Act, 1746, 19 Geo. 2, ch.39, §§1, 17, 21.

127 SOMERSET-FRY, supra note 44, at 197-198;BAYNES, supra note 44, at 29 (“the term ‘pacifi-cation’ for what happened in the Highlandsafter the failure of the 1745 rebellion is one ofthe most cynical misnomers in Scottish history.It was brutal subjugation, physical genocideand cultural destruction.”).

128 See SOMERSET-FRY, supra note 44, at 98-99.

129 See id. at 198.130 See id. at 199.131 See id. This period is known as the

Highland Clearances. Id. For example, theCountess of Sutherland ‘cleared’ 15,000 ten-ants off her land to make room for sheep. Id.For a poignant description of these times, seeERIC RICHARDS THE HIGHLAND CLEARANCES,(1982).

132 See SOMERSET-FRY, supra note 44, at 200.133 Id.134 See id. at 210-213.135 Alexander Fleming (penicillin), John

Lodge Baird (television), James Simpson (an-esthetics), Adam Smith (modern economictheory).

136 See SOMERSET-FRY, supra note 44, at 201-208.

137 See id. at138 See id. at139 North Sea Continental Shelf (F.R.G. v.

Den.; F.R.G. v. Neth.), 1969 I.C.J. 3 (Feb. 20).140 See id. at 42-43.141 See id.; at 44.142 See S.S. Lotus (Turk. v. Fr.), 1927 P.C.I.J.

(ser. A) No. 10, at 18 (“Restrictions upon theindependence of States cannot [ ] be pre-sumed.”).

143 See id. at 28; see also Anglo-NorwegianFisheries (U.K. v. Nor.), 1951 I.C.J. 116, 131;

North Sea Continental Shelf Case, 1969 I.C.J.at 26-27.

144 See Thomas M. Franck & John Carey,The Role of the United Nations in the Congo—A Retrospective Perspective, in THE ROLE OF THE

UNITED NATIONS IN THE CONGO 1, 11-12 (LYMAN

M. TONDEL, JR. ED. 1963).145 See CATHERINE HOSKYNS, THE CONGO: A

CHRONOLOGY OF EVENTS, JANUARY 1960-DECEM-BER 1961, 2-3 (1962).

146 See id. at 3.147 See id. at 4.148 See S.C. Res. 143, U.N. SCOR, 15th Sess.

873d mtg., Supp., at 16, U.N. Doc S/4387 (1960).149 S.C. Res. 169, U.N. SCOR, 16th Sess.,

982d mtg., Supp., at 148, U.N. Doc S/5002(1961).

150 See R. LEMARCHAND, POLITICAL AWAKEN-ING IN THE BELGIAN CONGO 235 (1964).

151 See LEE C. BUCHHEIT, SECESSION: THE LE-GITIMACY OF SELF-DETERMINATION 152 (1978).

152 See id. at 173.153 See HOSKYNS, supra note 145, at 428-40.154 See CRAWFORD YOUNG, THE POLITICS OF

CULTURAL PLURALISM, 460-72 (1976).155 See JOHN DE ST. JORRE, THE NIGERIAN

CIVIL WAR 85-86 (1972).156 See BUCHHEIT, supra note 151, at 168-69.157 See O.A.U. Resolution on the Situation

in Nigeria, AHG/Res. 51 (IV) (1967), reprintedin 6 I.L.M. 1243 (1967).

158 See DE ST. JORRE, supra note 155, at 133.159 See BUCHHEIT, supra note 151, at 174-75.160 See id. at 173.161 SECRETARIAT OF THE INTERNATIONAL COM-

MISSION OF JURISTS, THE EVENTS IN EAST PAKI-STAN, 1971, 9 (1972).

162 See id.163 See id. at 9-12.164 See id. at 26-27.165 See id. at 43.166 See id. at 87.167 See id. at 43-44.168 See Treaty of Non-Aggression between

Germany and the Union of Soviet SocialistRepublics, Aug. 23, 1939, Ger.-U.S.S.R, re-printed in BALTIC STATES: A STUDY OF THEIR

ORIGIN AND NATIONAL DEVELOPMENT; THEIR SEI-ZURE AND INCORPORATION INTO THE U.S.S.R., 382(Igor I. Kavass & Adolph Sprudzs eds., 3d ed.1972) (hereinafter BALTIC STUDY); Secret Ad-ditional Protocol to the Non-Aggression Pact,Aug. 23, 1939, Ger.-U.S.S.R, reprinted in BAL-TIC STUDY, supra, at 382-83 (placing Lithuaniawithin the German sphere of influence andEstonia and Latvia within the Soviet sphereof influence); Secret Supplementary Protocolto the Aug. 23, 1939, Protocol to the Non-Ag-gression Pact, Sept. 28, 1939, Ger-U.S.S.R., re-printed in BALTIC Study supra, at 384 (plac-ing Lithuania within the Soviet sphere ofinfluence).

169 JOSEPH I. VIZULIS, THE MOLOTOV-RIBBENTROP PACT OF 1939: THE BALTIC CASE 16(1990).

170 See id. at 135-46.171 Republics Demand Nazi Pact End,

CALGARY HERALD, May 20, 1989, at A8, avail-able in 1989 WL 4684926.

172 See Lithuania Leaders Declare Sover-eignty, DALLAS MORNING NEWS, Mar. 12, 1990,at 1A, available in 1990 WL 7337794;Lithuania Votes to Secede: Elects First Non-Communist President in U.S.S.R. History,L.A. DAILY NEWS, Mar. 12, 1990, at N1, avail-able in 1990 WL, 5583489. It is interesting tonote that under the Constitution of the Union

of Soviet Socialist Republics, “each Union re-public shall retain the right to freely secedefrom the USSR.” See USSR CONST. pt III, ch.8, art. 72. However, this “right” of the constitu-ent republics had no constitutional enforce-ment mechanism

173 See Soviet Troops Take Vilnius Office,ASSOC. PRESS, Apr. 5, 1990, available in 1990WL 5999155; Lithuania Crackdown Intensi-fies, L.A. DAILY NEWS, Apr. 10, 1990, at N1,available in 1990 WL 5566329.

174 Lithuania May Put Secession On Hold,ATLANTA J. & CONST., June 17, 1990, at CO5,available in 1990 WL 6995492.

175 The Bad Old Days Again: Sending HisTroops into Lithuania, Gorbachev Puts UnityAbove Reform and Stirs The Worlds Fears Of ANew Stalinism, TIME, January 28, 1991, at 80,available in 1991 WL 3119129.

161 Gorbachev Removed: Emergency De-clared by Soviet Hardliners: Military TakesCommand, L.A. DAILY NEWS, Aug. 19, 1991, atN1, available in 1991 WL 7255956; Moscow inCrisis: Yeltsin Calls On Troops, Citizens To Op-pose Coup, SAN DIEGO UNION-TRIB., Aug. 19,1991, at A1, available in 1991 WL 8888188;Coup Fails, Gorbachev Heads To Moscow, Take-over Collapses, Hard-Liners Reportedly FleeCapital, L.A. DAILY NEWS, Aug. 21, 1991, at N1,available in 1991 WL, 7256141; GorbachevBack in Power: Nations Leader Thanks Yeltsin,Hails Soviet People, L.A. DAILY NEWS, Aug. 22,1991, at N1, available in 1991 WL, 7256462.

177 “In a referendum on February 9, 1991,seventy six percent of Lithuanians voted insupport of the independence of the republic.”Dr. Sam Blay, Self-Determination: A Reassess-ment in the Post-Communist Era, 22 DENV. J.INT’L L & POL’Y 275, 295 (1994).

178 See id.; see also Baltic Plea: RecognizeUs And Spur Stability, MONTREAL GAZETTE, Aug.24, 1991, at A8, available in 1991, WL 8556899.

179 See Blay, supra note 177, at 295.180 Cf. id. at 294-95 (arguing that the non-

recognition of Lithuania, prior to the RussianFederation’s extending recognition, by theWestern States was “essentially political incharacter”).

181 Id. at 308.182 See id. at 307; see generally FRED SINGLE-

TON, A SHORT HISTORY OF THE YUGOSLAV PEOPLES

(1985).183 See Yugoslav Civil War Still Close De-

spite Deal, DAILY TELE. (London), May 11, 1998,at 8, available in 1991 WL 3128505.

184 See id.185 See Marc Weller, The International Re-

sponse to the Dissolution of the Socialist Fed-eral Republic of Yugoslavia, 86 AM. J. INT’L L.569, 570 (1992).

186 See Yugoslav Civil War Still Close De-spite Deal, DAILY TELE. (London), May 11, 1998,at 8, available in 1991 WL 3128505.

187 See id.188 See Yugoslav Army Attacks Croatians,

FORT WORTH STAR-TELE., Aug. 27, 1991, at 3,available in 1991 WL 3850091; Yugoslav Army,Serbian Rebels Pound Croatian Towns, ST. PE-TERSBURG TIMES, Aug. 27, 1991, at 10A, avail-able in 1991 WL 9165780; Army Offensive inCroatia Draws European Warnings, WASH.POST, Aug. 27, 1991, at AO1, available in 1991WL 2121811.

189 See Alan Ridig European Nations De-clare Sanctions Against Belgrade, N.Y. TIMES,Nov. 9, 1991, at 1, available in 1991 WL2066781.

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29

190 See S.C. Res. 721 U.N. SCOR, 46th Sess.,3018th mtg., at 2, U.N. Doc. S/RES/721 (1991).

191 Germany recognized Croatia on Dec. 23,1991. See Weller, supra note 185 at 588.

192 The European Union recognizedCroatia on Jan. 15, 1992. See id. at 593.

193 The United States recognized Croatiaon April 7, 1992.

194 See Blay, supra note 177, at 311.195 See Weller, supra note 185, at 595.196 See id.197 See S.C. Res. 777 U.N. SCOR, 47th Sess.,

3082d mtg., at 3-5, U.N. Doc. S/RES/777 (1992);G.A. Res. 47/1 U.N. GAOR, 47th Sess., 3082dmtg., at 1, U.N. Doc. A/RES/47/l (1992).

198 See S.C. Res. 757 U.N. SCOR, 47th Sess.,3082d mtg., at 2, ¶6, U.N. doc. S/RES/757(1992).

199 See H. LAUTERPACHT, RECOGNITION IN IN-TERNATIONAL LAW 7-8 (1947). ProfessorLauterpacht describes this purported duty ofStates thusly:It is generally agreed that premature recogni-tion is more than an unfriendly act; it is an actof intervention and international delin-quency. . . . Recognition is unlawful if granteddurante bello, when the outcome of thestruggle is altogether uncertain. . . . [Interna-tional Law] forbids third States to favour in-surrection by recognizing the insurgents as aState before they have succeeded in establish-ing themselves beyond all reasonable doubt.Id.

200 The criteria for recognition were:—[R]espect for the provisions of the charter ofthe United Nations and the commitments sub-scribed to in the Final Act of Helsinki and thecharter of Paris, especially with regard to therule of law, democracy and human rights;—guarantees for the rights of ethnic and na-tional groups and minorities. . .;—respect for the inviolability of all frontierswhich can only be changed by peaceful meansand common agreement;—acceptance of all relevant commitments withregard to disarmament and nuclear non-pro-liferation as well as to security and regionalstability;—commitment to settle by agreement, includ-ing where appropriate by recourse to arbitra-tion, all questions concerning State successionand regional disputes.Weller, supra note 185, at 587-88 (citing EPCPress Release 128/91 (Dec. 16, 1991)).

201 See Gregory Marchildon & EdwardMaxwell, Quebec’s Right of Secession underCanadian and International Law, 32 VA . J.INT’L L. 583, 611(1992).

202 See British North America Act, 1871, 34& 35 Vict., ch. 28.

203 See Marchildon & Maxwell, supra note201, at 592.

204 Id. at 612.205 See id.206 See id.207 Bertrand v. Quebec [1996] 138 D.L.R.

4th 481, available in 1996 DLR LEXIS 298, at*7 (hereinafter Bertrand II).

208 See id. at *7-*8. The steps set forth inthe Draft Bill would include: a participatorystage for improvements to the Draft Bill to beincorporated upon its final submission to theNational Assembly, passage of the Draft Billby the National Assembly, approval of theDraft Bill by a referendum held in Quebec, and,finally, drafting a constitution Id.

209 See id. at *8.

210 See id.211 See Bertrand v. Quebec [1995] 127

D.L.R. 4th 408, available in 1995 DLR LEXIS246, at *l, *4-*5 (hereinafter Bertrand I).

212 See id. at *l, *4-*5.213 See Bertrand II, 1996 DLR LEXIS 298,

at *8.214 Bertrand I, 1995 DLR LEXIS 246, at

*53-*54.215 See Bertrand II, 1996 DLR LEXIS 298,

at *9. The results were: 49.52% in favor, 50.48%opposed. Id.

216 Id. at *11-*12.217 See id. at *40-*42. The legal opinion of

the commission of scholars was:The right of secession does not exist in inter-national law; from a legal standpoint, the cre-ation of a new state is not, in the colonial con-text, a secession in the strict sense of the wordand in no case does the right to self-determi-nation constitute a recognition of the right toindependence of the peoples who possess thatright. . . . Confronted with an attempt at seces-sion, third states generally manifest strongreservations. . . . [However,] there is no legalobstacle to secession. . . . [t]hird states reservea right of control [over new states] through rec-ognition. . . .Id. (quoting THOMAS M. FRANCK, ROSALYN

HIGGINS, ALAIN PELLET, MALCOLM N. SHAW, &CHRISTIAN TOMUSHAT, L’INTEGRITE TERRITORIALE

DU QUEBEC DANS L’HYPOTHESE DE L’ACCESSION A

LA SOUVERAINETE, 428-30).218 See id. at *52, *61-*62. Some of the is-

sues framed by the court were: Whether inter-national law supercedes domestic law;Whether self-determination includes a right tosecession; Whether Quebec may secede underinternational law, and; Whether Quebec’s pro-cess for secession comports with internationallaw. See id.

219 See The Quebec Question: SupremeCourt Holds Historic Hearing On Quebec,TORONTO STAR, Mar. 16, at F4.

220 See id.221 See id. For an explanation of the Cree

position on Quebec’s secession, and a copy ofthe Cree submission to the Supreme Court ofCanada, see Grand Council of Cree Homepage<http://www.gcc.ca/index.html> (visited onApr. 1, 1998).

222 Edison Stuart, Chief Justice PredictsVerdict In Quebec Case To Be Thorny, TORONTO

STAR, Apr. 10, 1998.223 STATUTE OF THE INTERNATIONAL COURT OF

JUSTICE, art. 38(a). The primary source of in-ternational law is treaties. See id. art. 38(a)(1).The second source of international law is cus-tomary law—the general practice of States. Seeid. art. 38(a)(2). The third source of interna-tional law is general legal principles recog-nized by Nations. See id. art. 38(a)(3). The lastsource, and least important, are the teachingsand writings of recognized experts in the fieldof international law. See id. art. 38(a)(4).

224 See id. art. 38(a)(2).225 Some examples of “specially affected

States” would be the United States (NativeAmericans, Aleuts, Samoans, Native Hawai-ians, and Puerto Ricans), Spain (Basques), Is-rael (Palestinians), Japan (Ainus), Turkey(Kurds), Iraq (Kurds), Morocco (BedouinPeoples in the Western Sahara), Great Britain(Northern Irish, Welsh, and Scots), Canada(Quebecois), Brazil (Amazonian Peoples),China (Tibetans), and Finland (Laplanders).

226 SNP, The Scottish National Party

Homepage <http://www.snp.org.uk> (visited onApril 7, 1998).

227 See Lawrence M. Frankel, InternationalLaw of Secession: New Rules for a New Era, 14HOUS. J. INT’L L. 521, 538-40 (1992).

228 See id. at 538.229 See id.230 See id. at 532, 534 (“Those who already

have power and states of their own jealouslyprotect their privileges and often refuse to sup-port others who would challenge the power andprivileges of fellow states.”).

231 See LAUTERPACHT, supra note 199, at 7-8.

232 See U.N. CHARTER art. 2, ¶4.233 See id. art. 33, ¶1.234 See id. at art. 1, ¶1, art. 33, ¶1.235 See Frankel, supra note 227, at 544.236 See id. at 544-548.237 See id.238 See, supra notes 144-153 (Katanga);

154-160 (Biafra); 161-167 (Bangladesh); 168-180 (Lithuania); 181-200 (Croatia); 201-224(Quebec).

239 Frankel, supra note 227, at 550.240 Montevideo Convention on the Rights

and Duties of States, 1933, art. I, 165 l.N.T.S.19. See Myres S. McDougal, International Law,Power and Policy: A Contemporary Perspective,82 ACADÉMIE DE DROIT INTERNATIONAL, RECUEIL

DES COURS 133 (1953); Frankel, supra note 227,at 550; RESTATEMENT (THIRD) OF INTERNATIONAL

FOREIGN RELATIONS LAW §201 (1987).241 See Frankel, supra note 227, at 550.242 See 2 W. MICHAEL REISMAN, MAHNOUSH

ARSANJANI, & SIEGFRIED WIESSNER, INTERNA-TIONAL LAW IN CONTEMPORARY PERSPECTIVE 2, 21-24 (1998) (Draft Casebook).

243 SOMERSET-FRY, supra note 44, at 25-26.244 JOHN BUCHAN, MONTROSE 33 (1947).245 See id.246 Compare Concerning the Gulf of Maine

(U.S. v. Can), 1984 I.C.J. 246 (endorsing prin-ciples of geomorphology when delimiting thecontinental shelf); with Case Concerning theLibya/Malta Continental Shelf (Libya v.Malta), 1985 I.C.J. 13 (rejecting a claim to de-limitation of the continental shelf based uponprinciples of geomorphology) and Case Con-cerning East Timor (Port v. Austl), 1995 I.C.J.90 (rejecting a claim to territorial integritybased upon principles of geomorphology).

247 See Act of Union, 5 Anne, ch. 8, art. 3.248 See Act of Union II, 6 Anne, ch. 6, art 1.249 See Act of Union, 5 Anne, ch. 8, art. 22.

See also SOMERSET-FRY, supra note 44, at 220-24.

250 See Frank Viviano, Scotland’s QuietRevolution: Blair’s Gamble: Home Rule WillQuell Nationalist Sentiment, SAN FRAN.CHRON., Jan. 17, 1998, at Al, available in 1998WL 3905126.

251 See SOMERSET-FRY, supra note 44, at 2(stating the results of a 1978 census).

252 See Frankel, supra note 227, at 552.253 Paraphrased comments of Professor

Siegfried Wiessner, Feb. 23, 1998, in his Inter-national Law in the 21st Century seminar.

254 See id.; Sunstein, supra note 12, at 645.255 See Devolution ’97 Result <http://

www.wp.com/Alba/devovote.html> (visited onJan. 29, 1998).

256 See id.257 See id.258 In 1979, fifty-two percent of Scots voted

for home rule. See Devolution referendum 1979http://www.wp.com/Alba/devo.html> (visited

30

on Jan. 29, 1991).259 Viviano, supra note 250 (quoting Kevin

Pringle, SNP Research Director).260 New Scots for Independence is com-

posed of Scottish citizens who are of non-Scot-tish, primarily European, descent. Scots Asiansfor Independence is composed of Scottish citi-zens and residents of Turkish, Indian, Paki-stani, Chinese, and Malaysian descent. Thisnumber of members in Scots Asians for Inde-pendence is roughly equal to 48% of the totalnumber of Scottish residents of Asiatic descent.See SNP, SNP Organisation and Groups<http://www.snp.org.uk/groups/> (visited onJan. 29, 1998).

261 See id.262 See Frankel, supra note 227, at 551.263 Viviano, supra note 250.264 See SNP, Policy-Constitution 1: State-

ment of Principles <http://www.snp.org.uk/li-brary/p-const1.html> (visited on Jan 29, 1998).“The Scottish National Party commits itself to. . . the purpose of furthering international co-operation, trade and world peace.” Id. “The fun-damental rights and liberties of all persons . . .shall be guaranteed without discrimination onany grounds such as sex, race, colour, religion,personal beliefs, status or sexual orienta-tion. . . .” Id.

265 See Frankel, supra note 227, at 552.266 See id.267 Id. at 552.268 See Act of Union, 5 Anne, ch. 8, art. 9 (in-

tegrity of Scottish courts guaranteed); id. atart. 25, §2 (integrity of the Church of Scotlandguaranteed); id. at art. 21 (integrity ofburghess system guaranteed).

269 See supra notes 81-93 and accompany-ing text.

270 See Extortion of the King’s Officers,1275, 3 Edw. 1, ch. 26 (punishing a public offi-cial in the royal court—including a parliamen-tarian—“at the King’s pleasure” (usuallydeath) for accepting a bribe). It is interestingto note that this Act was passed during thereign of King Edward I, Plantagenet, the re-nowned “Hammer of the Scots.”

271 See id. It is interesting to note that thisAct was passed during the reign of King Ed-ward I, Plantagenet, renowned as the “Ham-mer of the Scots.”

272 See supra notes 106-127 and accompa-nying text.

273 Frankel, supra note 227, at 553.274 See supra notes 106-127 and accompa-

nying text.275 See supra notes 104-104, 120-127 and

accompanying text (detailing many violationsof the Act of Union: the long-delayed arrivalof the “Equivalent,” the House of Lords re-versing judgments of the Court of Session,and the egregious tactics of English tax col-lectors); see also Pacification Act, 19 Geo. 2,ch. 39, §18 (granting immunity from civil andcriminal suits, in violation of the Act of Union,in Scottish and English courts to officers andsoldiers who committed atrocities during thesuppression of the 1745 Uprising).

276 See Viviano, supra note 250 (describingpast Prime Minister Margaret Thatcher’s dis-gust for Scots, to the point that she refusedto attend a ceremonial inspection of the Black

Watch and removed the Royal Scots Guardsfrom their position of honor, the front, of allparades held in London); Richard O’Mara,Serving A Tiny Taste of Power; Parliament:Scotland and Wales Voted This Month To Cre-ate Their Own Legislature, Thus Moving ASmall Bit Closer To Independence From Brit-ain, BALTIMORE SUN, Sept. 28, 1997, at 6E (de-scribing the general contempt of English to-wards Scots).

277 See SNP Scotland’s Budget Surpluswith the U.K. <http://www.snp.org.uk/library/rr961018.html> (visited on January 29, 1998).

278 See Treasury Admits “It is Scots whoPay” £27 Billion Surplus “Game set and matchfor Scotland-Tory Subsidy Myth Dead” <http:// w w w. s n p . o r g / p r e s s / n e w s / a r c h i v e /pr70117a.htm> (visited on Jan. 29, 1998).

279 See id.280 See id.281 See id.282 See id.283 See Frankel, supra note 227, at 554.284 See id.285 Id.286 See id. at 554 n.107, 554-555.287 See Viviano, supra note 250.288 See id.289 See id. Scotland, which boasts only

1.5% of Europe’s population, manufactures13% of Europe’s semiconductors, 30% of itsPC’s (personal computers), 45% of its work-stations, and 50% of its ATM machines. Seeid.

290 See SNP, Towards a Better Scotland< h t t p : / / w w w. s n p . o r g . u k / l i b r a r y /rr95110b.html> (visited on Jan. 29, 1998). Infact, Scotland’s productivity output is greaterthan that of Germany or Japan. See id.

291 See id. The GDP has grown at a rate of11% over the past four years, outpacing mostother European nations. See id.

292 See Siegfried Wiessner, Indigenous Re-nascence, 1-2 (unpublished manuscript).

293 See id. at 45.294 See G.A. Res. 48/163, U.N. GAOR 48th

Sess., Supp. No. 49, at 281, U.N. Doc. A/48/49(1993).

295 See id.296 See E.S.C. Res. 1599(L), U.N. ESCOR,

50th Sess., at 22 (1971).297 U.N. ESCOR, Comm. on Hum. Rts.,

11th Sess., Annex I, U.N. Doc. E/CN.4/Sub.2(1993) (hereinafter Draft Declaration). For ahistory of the long and tumultuous struggleof the Draft Declaration through the channelsof the U.N. system, see Erica-Irene Daes,Equality of Indigenous Peoples under the Aus-pices of the United Nations Draft Declarationon the Rights of Indigenous Peoples, 7 ST. THO-MAS L. REV. 493, 493-94 (1995); Julian Burger,The United Nations Draft Declaration on theRights of Indigenous Peoples, 9 ST. THOMAS L.REV. 209, 209-211 (1996); Nehla Basawaiya,Status of Indigenous Rights in Fiji, 10 ST. THO-MAS L. REV. 197, 206-208 (1997); Wiessner, su-pra note 292, at 45-48.

298 Draft Declaration, supra note 297, atart. 3.

299 See Wiessner, supra note 292, at 54-68.300 Id. at 62.301 See Fijian Bureau of Statistics, Census

1996—Provisional Results, STATISTICAL NEWS

NO. 8, 1997, 1; see also Basawaiya, supra note297, at 197.

302 FIJI CONST. (Amend. Act, 1997) ch. 2,§6(j). See also Basawaiya, supra note 297, at

205.303 See Basawaiya, supra note 297, at 197-

99.304 See Wiessner, supra note 292, 54.305 See Basawaiya, supra note 297, at 197-

99, 208-09.306 Compare STUDY OF THE PROBLEM OF DIS-

CRIMINATION AGAINST INDIGENOUS POPULATIONS,U.N. Doc. E/CN.4/Sub.2/1/1986/7/Add.4. Spe-cial Rapporteur Cobo defined IndigenousPeoples thusly:Indigenous communities, peoples and nationsare those which, having a historical continu-ity with pre-invasion and pre-colonial societ-ies that developed on their territories, con-sider themselves distinct from other societiesnow prevailing in those territories, or partsof them. They form at present non-dominantsectors of society and are determined to pre-serve, develop and transmit to future genera-tions their ancestral territories, and their eth-nic identity, as the basis of their continuedexistence as peoples, in accordance with owncultural patterns, social institutions and le-gal systems.Id. This definition is faulty because “a man-datory link to the phenomena of Europeancolonization and invasion might be estab-lished that would limit the concept of indig-enous communities largely to peoples in theAmericas and Oceania, potentially leavingout indigenous peoples in Africa, Asia, andother places. . . .” Wiessner, supra note 292,at 55. This observation is eminently correct.However, Special Rapporteur Cobo was cor-rect in placing focus on a historical connec-tion. Therefore, for definitional purposes, thebest solution would be to place primary focuson historical connection with the land andsecondary focus on the spiritual connectionwith the land. Furthermore, these two crite-ria should be placed on a balance—a stron-ger spiritual claim would bolster a weak his-torical claim and vice versa. This wouldensure a maximum of inclusiveness in thedefinition. A purely “historical connection”would militate against groups such as theCherokee Indians of Oklahoma who wereforcibly transported out of their original ter-ritory in Georgia. See Siegfried Wiessner,American Indian Treaties and InternationalLaw, 7 ST. THOMAS L. REV. 567, 577-578 (1995).

307 See SOMERSET-FRY, supra note 44, at 2.308 See id. at 12, 227.309 See ANNE ROSS, THE FOLKLORE OF THE

SCOTTISH HIGHLANDS 11, 15 (1976).310 See SOMERSET-FRY, supra note 309, at

40.311 See ROSS, supra note 309, at 14-16.312 See supra notes 125-127 and accompa-

nying text.313 See U.N. CHARTER art. 10.314 See STATUTE OF THE INTERNATIONAL COURT

OF JUSTICE art. 38(a)(1), (a)(2).315 MacCormick v. Lord Advocate, 1953

Sess. Cas. 396; accord Gibson v. Lord Advo-cate, 1975 Sess. Cas. 136.

316 KENT, COMMENTARIES ON AMERICAN LAW

93-99 (O. Halstead ed., 1827).317 Vienna Convention on the Law of Trea-

ties, May 23, 1969, U.N. Doc. A/Conf.39/27, art.2, ¶1(a) (hereinafter Vienna Convention).

318 See Hans Wehberg, Pact suntServanda, 53 AM. J. INT’L L. 775, 775-86 (1959).This norm of Customary Law is embodied inArticle 26 of the Vienna Convention: “Everytreaty in force is binding upon the parties toit and must be performed by them in goodfaith.” Vienna Convention, supra note 318, atart. 26.

319 See MYRES S. MCDOUGAL, ET AL., HUMAN

Failte’from page 29

31

The Florida Bar Continuing Legal Education Committee,

the International Law Section and the

General Practice Section present

International Agriculture LInternational Agriculture LInternational Agriculture LInternational Agriculture LInternational Agriculture LaaaaawwwwwCOURSE CLASSIFICATION: INTERMEDIATE LEVEL

One LocationJanuary 22, 1999

Wyndham HotelMiami-Biscayne Bay1601 Biscayne Blvd.

Miami, FloridaCourse No. 4618R

2:20 p.m. – 2:40 p.m.Customs Legal Requirements for Importing Perishables,Especially Flowers, into the United StatesSharon Shapiro, Supervisory Import Specialist, U.S.Customs Service

2:40 p.m. – 5:00 p.m.Tour of Cargo Facilities of Miami International AirportOperational and Legal Requirements for ImportingAgricultural Commodities, Especially Perishables, intothe United StatesPeter Cajigal, Chief, Cargo Development Division, MiamiInternational Airport, Miami-Dade County AviationDepartmentSylvia Cuesta, Perishables Manager, Challenge Air Cargo

5:00 p.m.Return to U.S. Export Assistance Center to board busback to Wyndham Hotel

8:15 a.m. – 8:30 a.m.Late Registration

8:30 a.m. – 9:30 a.m.Enforcement of Laws on Imported AgriculturalCommodities by FDA, the Department of Agriculture, andU.S. CustomsPeter Quinter, Esq., Becker & Poliakoff, P.A.

9:30 a.m. – 10:30 a.m.Contracts for the Sale of Perishables and OtherAgricultural CommoditiesCarolann Swanson, Esq., Roetzel & Andress

10:30 a.m. – 10:45 a.m.Coffee Break

10:45 a.m. – 11:15 a.m.Legal Requirements for Importing and Exporting ofAgricultural CommoditiesJuan del Cerro, President, Impex International Brokerage

11:15 a.m. – 11:45 a.m.Importing Perishables from the Importer’s PerspectiveJohn Lamb, President, Technology Partners, Miami

11:45 a.m. – 1:30 p.m.Lunch Break (on your own)

1:30 p.m.Meet at Wyndham Hotel for transportation to U.S. ExportAssistance Center at Miami International Airport (Miami)

1:30 p.m. – 2:00 p.m.Travel to U.S. Export Assistance Center at Miami

2:00 p.m. – 2:20 p.m.U.S. Food & Drug Administration Role in ExaminingImported Agricultural CommoditiesBenjamin England, Compliance Officer, U.S. Food & DrugAdministration

CLER PROGRAM(Maximum Credit: 7.0 hours)

General: 7.0 hoursEthics: 0.0 hours

CERTIFICATION PROGRAM(Maximum Credit: 7.0 hours)International Law: 7.0 hours

Credit may be applied to more than one of the programs above butcannot exceed the maximum for any given program. Please keep arecord of credit hours earned. RETURN YOUR COMPLETED CLERAFFIDAVIT PRIOR TO CLER REPORTING DATE (see Bar Newslabel). (Rule Regulating The Florida Bar 6-10.5).

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Register me for “International Agriculture Law” Seminar(019) WYNDHAM HOTEL, MIAMI (1/22/99)

TO REGISTER OR ORDER TAPES/BOOKS, MAIL THIS FORM TO: The Florida Bar, CLE Programs, 650 ApalacheeParkway, Tallahassee, FL 32399-2300 with a check in the appropriate amount payable to The Florida Bar or credit cardinformation filled in below. If you have questions, call 850/561-5831. ON SITE REGISTRATION, ADD $15.00. On-siteregistration is by check only.

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REGISTRATION FEE (check one):qMembers of the International Law or General Practice Sections: $100

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33

The Florida Bar Continuing Legal Education Committee

and the International Law Section present

The 20th AnnualImmigration Law Update

COURSE CLASSIFICATION: INTERMEDIATE LEVEL

ONE LOCATION

February 18-19, 1999 • Hyatt Regency Miami • 400 S.E. Second Avenue • Miami

Course No. 4619R

Perhaps, forgetting the American heritage, Congress passed IIRAIRA in September of 1996. Two years later, weawait the passage of overdue regualtions. The lives of immigrants remain in jeopardy. Practitioners struggle to makesense out of the law from cables and memos. New laws and regular changes in immigration policies have becomedaily occurences. Once more, our Chapter has, at this critical time, accomplished its mission in offering one of themost comprehensive educational packages for immigration lawyers. I join the CLE steering committee in thankingAILA members for their support of our program.

Maya ChatterjeaPresident S. Fla. Chapter AILA

THURSDAY, Februar y 18, 19997:45 a.m. – 8:15 a.m. Registration and Continental Breakfast

8:15 a.m. – 8:30 a.m. Opening RemarksMaya Chatterjea, Esq., President, South Florida Chapter of

American Immigration Lawyer’s Association

8:30 a.m. – 9:30 a.m.General Counsel Update: Resolving the AmbiguitiesJacquelyn Bednarz, Special Assistant to the Executive Associate

Commissioner, INSTammy Fox-Isicoff, Esq., AILA Board of Governors, MiamiRon Klasko, Esq., General Counsel, AILA

9:30 a.m. – 10:15 a.m.EB-5, It It Still Alive?Jacquelyn Bednarz, INS, Washington, D.C.Stephen K. Fischel, Esq., Chief, Office of Legislation, Regulations

and Advisory Assistance, Dept. of State, Washington, D.C.Ron Klasko, Esq., General Counsel, AILA

10:15 a.m. – 10:30 a.m. Coffee Break

10:30 a.m. – 11:30 a.m.H-1B Past, Present and FutureJames Burzynski, Director, INS, Texas Service CenterJacquelyn Bednarz, INS, Washington, D.C.George Newman, Esq., Board of Governors, MissouriJeffrey Bertstein, Esq., Miami

11:30 a.m. – 12:15 p.m.The L and E Visa Categories:Mastering the Hard to Prove CasesJacquelyn Bednarz, Esq., INS, Washington, D.C.

Stephen K. Fischel, DOS, Washington, D.C.Fernando Perez, Esq., TampaEugenio Hernandez, Esq., Miami

12:15 p.m. – 2:15 p.m.President's Luncheon (included in Registration Fee)Ethical Considerations in Immigration Practice: Dealing withthe Irate Client in this Era of Processing DelaysMichael Maggio, Esq., Washington, D.C.George Newman, Esq., Board of Governors, Missouri

2:15 p.m. – 3:00 p.m.Documenting the EB-1/EB-2 Case:Developments in the National Interest WaiverJames Burzynski, INS, Texas Service CenterJacquelyn Bednarz, INS, Washington, D.C.Elaine Weiss, Esq., MiamiOwen Kahn, Esq., MiamiMichael Bander, Esq., Miami

3:00 p.m. – 4:00 p.m.Nuances in the Labor Certification Process, Florida andRegion IVFloyd Goodman, Certifying Officer, Region IV, Dept. of Labor,

Atlanta, GeorgiaHarry Sheinfeld, Esq., Counsel for Litigation, Dept. of Labor,

Washington, D.C.Linda King, Administrator, Dept. of Labor, TallahasseeLisa Enfield, Esq., MiamiTammy Fox-Isicoff, Esq., Miami

4:00 p.m. – 4:15 p.m. Coffee Break

4:15 p.m. – 4:55 p.m.Revamping of the Labor Certification Practice

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Bruce Marmar, INS, MiamiJudge Teofilo Chapa, Immigration Judge, MiamiWilliams Sims, Deputy District Counsel, INS, MiamiMichael Maggio, Esq., Washington, D.C.Adalsinda Lomangino, Esq., MiamiPhil Zyne, Esq., Miami

11:30 a.m. – 12:30 p.m.NACARA Adjustments and SuspensionErich Cauller, Director, Miami Asylum Office, INSWilliam Gossard, Deputy District Counsel, INS, MiamiJudge Teofilo Chapa, Immigration Judge, MiamiMario Lovo, Esq., MiamiMary Kramer, Esq., Miami

12:30 p.m. – 2:00 p.m. Luncheon (Included in Registration Fee)

2:00 p.m. – 2:45 p.m.Developments in Family Based ImmigrationMazen Sukkar, Esq., AILA Board of Governors, HollywoodMichael Shane, Esq., MiamiBruce Marmar, INS, Miami

2:45 p.m. – 3:30 p.m.Federal Court Practice AdvisoryIra Kurzban, Esq., AILA Past President, Miami

3:30 p.m. – 3:45 p.m. Coffee Break

3:45 p.m. – 4:45 p.m.Asylum, Restriction on Removal, and the Torture ConventionErich Cauller, INS, MiamiKeil Hackley, Deputy District Counsel, INS, MiamiJudge Sandy Coleman, Immigration Judge, MiamiMichael Ray, Esq., MiamiCheryl Little, Esq., Miami

4:45 p.m. – 5:15 p.m.Emerging Citizenship IssuesRandall Sidlosca, Esq., MiamiAnis Saleh, Esq., Miami

REGISTRANTS MUST WEAR THE BADGEGIVEN TO THEM AT THE REGISTRATIONTABLE TO BE ADMITTED TO THE SEMINARAND LUNCHEONS.

CLER PROGRAM(Maximum Credit: 17.0 hours)

General: 17.0 hoursEthics: 1.0 hour

Harry Sheinfeld, Esq., Dept. of Labor, Washington, D.C.Joel Stewart, Esq., Ft. LauderdaleMaya Chatterjea, Esq., Miami

4:55 p.m. – 5:30 p.m.Affidavits of Support: Preparation, Use and Completion inFamily and Employment Based ImmigrationBruce Marmar, Senior Immigration Examiner, INS, MiamiJacquelyn Bednarz, INS, Washington, D.C.Stephen K. Fischel, DOS, Washington, D.C.David Berger, Esq., MiamiMichael Shane, Esq., Miami

5:30 p.m. – 7:00 p.m.Cocktail Reception—Talk to the Experts

FRIDAY, Februar y 19, 19998:15 a.m. – 8:45 a.m. Continental Breakfast

8:45 a.m. – 9:30 a.m.Representing the Detained Alien: Bond and Other OptionsRebecca Sanchez-Roig, Deputy District Counsel, INS, MiamiJudge Kevin McHugh, Immigration Judge, MiamiPhil Zyne, Esq., MiamiAdalsinda Lomangino, Esq., Miami

9:30 a.m. – 10:15 a.m.Developments in Removal Grounds and Aggravated FelonyProvisionsJudge Kevin McHugh, Immigration Judge, MiamiDaniel Vara, Jr., District Counsel, INS, MiamiRiah Ramlogan, Deputy District Counsel, INS, MiamiMary Kramer, Esq., MiamiJeffrey Brauwerman, Esq., Miami

10:15 a.m. – 10:30 a.m. Coffee Break

10:30 a.m. – 11:30 a.m.Waivers, Everything You Always Wanted to Know,But Didn’t Know Enough to Ask?

CERTIFICATION PROGRAM(Maximum Credit: 17.0 hours)

Immigration & Nationality: 13.0 hours

HOTEL RESERVATIONS: A block of rooms has been reserved at the HyattRegency Hotel, at the rate of $150 single/double occupancy. To make res-ervations, call the Hyatt Regency Miami direct at (305) 358-1234. Reserva-tions must be made by 1/17/99 to assure the group rate and availability.After that date, the group rate will be granted on a “space available” basis.

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REFUND POLICY: Requests for refund or credit toward the purchase of the course book must be in writing and postmarkedno later than two business days following the course presentation. Registration fees are non-transferrable, unless transferred toa colleague registering at the same price paid. A $15 service fee applies to refund requests. Registrants that do not notify TheFlorida Bar by 5:00 p.m., February 5, 1999, that they will be unable to attend the seminar, will have an additional $75 retained.Persons attending under the policy of fee waivers will be required to pay $75.

Register me for “The 20th Annual Immigration Law Update” Seminar

(024) HYATT REGENCY HOTEL, MIAMI, (2/18–19/99)

TO REGISTER OR ORDER BOOK, MAIL THIS FORM TO: The Florida Bar, CLE Programs, 650 Apalachee Parkway,Tallahassee, FL 32399-2300 with a check in the appropriate amount payable to The Florida Bar or credit card informa-tion filled in below. If you have questions, call 850/561-5831. ON SITE REGISTRATION, ADD $15.00. On-site registra-tion is by check only.

Name________________________________________________ Florida Bar # __________________________

Address _____________________________________________________________________________________

City/State/Zip ________________________________________________________________________________

(AF) Course No.: 4619R

q Please check here if you have a disability that may require special attention or services. To ensure availability ofappropriate accommodations, attach a general description of your needs. We will contact you for further coordina-tion.

REGISTRATION FEE (check one):qMember of the International Law Section: $335

qNon-section member: $350

qFull-time law college faculty or full-time law student: $142.50

qPersons attending under the policy of fee waivers: $75Includes Supreme Court, DCA, Circuit and County Judges, General Masters, Judges of Compensation Claims, Administrative Law Judges,and full-time legal aid attorneys if directly related to their client practice. (We reserve the right to verify employment.)

METHOD OF PAYMENT (check one):qCheck enclosed made payable to The Florida Bar

qCredit Card (Advance registration only!) o MASTERCARD / o VISA

Name on Card: ____________________________ Card No. _______________________________________

Expiration Date: _____/_____ Signature: __________________________________________________________________(MO./YR.)

COURSE BOOKPrivate taping of this program is not permitted.

Delivery time is 4 to 6 weeks after February 19, 1999.

COURSE BOOK ONLY: Cost $25 plus tax TOTAL $_______

Certification/CLER credit is not awarded for the purchase of the course book only.

Please include sales tax unless ordering party is tax-exempt or a nonresident of Florida. If this order is to be purchased bya tax-exempt organization, the course book must be mailed to that organization and not to a person. Include tax-exemptnumber beside organization’s name on the order form.

ta/brochure/3panel/IL4619p8.pm6

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The Florida Bar650 Apalachee ParkwayTallahassee, FL. 32399-2300

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PAIDTALLAHASSEE, FL

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