1 42 U.S.C. §§4321-4370f (2000). Under NEPA, an agency must prepare an environmental impact statement for any proposed “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. §4332 (C).

2 No. 01-07781, 2002 WL 32095131 (CD. Cal. Sept. 17, 2002).

3 For further information on the LWAD program, see http://www.onr.navy.mil/sci_tech/ocean/projects/lwad/default.htm.

4 See, e.g., Marc Kaufman, Navy Tests Linked to Beaching of Whales; Ear Bleeding Consistent with Intense Noise, WASH. POST, June 15, 2000, at A3 (reporting on a mass stranding of healthy beaked whales in the Bahamas at a time of Navy testing in the area); see also P. D.Jepson et al., Gas-Bubble Lesions in Stranded Cetaceans, 425 NATURE 575 (2003).

5 986 F.2d 528 (D.C. Cir. 1993).

6 Defendants’ Reply to Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Summaryjudgment&Opposition to Plaintiffs’ Motion for Summaryjudgment at 2, 26-40 (July 8, 2002) [hereinafter Defendants’ Reply], Natural Res. Def. Council v. Dep't of the Navy, 2002 WL 32095131.

7 Exec. Order No. 12,114, 32 C.F.R. pt. 187 (2001).

8 The U.S. exclusive economic zone, which extends two hundred nautical miles from the U.S. coast, was established in 1983. See Proclamation No. 5030, 3 C.F.R. 22 (1984 ).

9 507 U.S. 197 (1993). Smithy/as decided in early March,just over a month after Massey. 1028 U.S.C. §§1346(b), 2401(b), 2671-2680 (2000).

10 This rationale is inconsistent with the line of cases refusing to extend NEPA to effects outside U.S. territory. See Greenpeace USA v. Stone, 748 F.Supp. 749 (D. Haw. 1990); NRDC v. NRC, 647 F.2d 1345 (D.C. Cir. 1981); NEPA Coalition of Japan v. Aspin, 837 F.Supp. 466 (D.D.C. 1993).

11 Defendants’ Reply, supra note 6, at 30, 33-35, 38-39 (footnotes omitted).

12 Natural Res. Def. Council, 2002 WL 32095131, at *12 (footnote omitted).

13 Id. at *10.

14 See Natural Res. Def. Council v. Nuclear Regulatory Comm'n, 647 F.2d 1345 (D.C. Cir. 1981); NEPA Coalition of Japan v. Aspin, 837 F.Supp. 466 (D.D.C. 1993); Greenpeace USA v. Stone, 748 F.Supp. 749 (D. Haw. 1990).

15 Natural Res. Def. Council, 2002 WL 32095131, at *10.

16 Id. at *11. For a parallel case before a different district court concerning U.S. Navy sonar testing in which a NEPA environmental impact statement was issued, but was found to be inadequate, see Natural Res. Def. Council v. Evans, 2002 WL 31445165 (N.D. Cal. Oct. 31, 2002).

17 Ctr. for Biological Diversity v. Nat'l Sci. Found., No. 02-5065, 2002 WL 31548073 (N.D. Cal. Oct. 30, 2002).

18 w Id. at*l.

19 Id. at *3-4 (citation and footnotes omitted).

20 No. 03-1497, 2003 U.S. Dist. LEXIS 13770 (D.D.C. Aug. 8, 2003).

21 Id. at*6,*9, *30-31.

22 Mar. 3, 1973, 27 UST 1087, 993 UNTS 243.

23 16 U.S.C. §§1531-1544 (2000).

24 Born Free USA, U.S. Dist. LEXIS 13770, at *38-39.

page 966 note 1 For a description of the facts of this case as Blaxland presented them to the court, see Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1201-03 (9th Cir. 2003).

page 966 note 2 28 U.S.C. §§1330, 1441(d), 1602-1611 (2000).

page 966 note 3 323 F.3d at 1203.

page 966 note 4 Id.

page 966 note 5 Id. at 1203-06.

page 966 note 6 965 F.2d 699 (9th Cir. 1992).

page 966 note 7 Blaxland, 323 F.3d at 1206.

page 966 note 8 Id. at 1208.

page 966 note 9 SeeSchreiber v. Canada (Attorney General), 2002 S.C.R. 62.

page 966 note 1 28 U.S.C. §§1330, 1602-1611 (2000).

page 966 note 2 The FSIA terrorist-state exception is codified at 28 U.S.C. §1605(a) (7). States are designated as “terrorist” under the Export Administration Act of 1961 §6( J), 50 U.S.C. App. §2405 (J) (2000), or under the Foreign Assistance Act of 1961, §620A, 22 U.S.C. §2371 (2000).

page 966 note 3 See, e.g., Peterson v. Iran, 264 F.Supp.2d 46 (D.D.C. 2003).

page 966 note 4 For a survey of cases involving the terrorist-state exception during 1999-2001, as well as of the legislative changes in 1998 and 2000, see SEAN D. MURPHY, UNITED STATES PRACTICE IN INTERNATIONAL LAW: 1999-2001, 70-86 (2002).

page 967 note 5 Omnibus Consolidated and Emergency Supplemental Appropriations Act for 1999, Pub. L. No. 105-277,112 Stat. 2681 (1998). This statute added 28 U.S.C. §1610(f) (2000) and modified 28 U.S.C. §1606 (2000), thereby allowing plaintiffs to attach and execute judgments against any property of a terrorist state with respect to which financial transactions are prohibited or regulated under U.S. blocking statutes. President Clinton initially sought to waive this abrogation of foreign sovereign immunity in the national interest, but at least one lower court found the waiver to be invalid. See Alejandre v. Cuba, 42 F.Supp.2d 1317 (S.D. Fla. 1999), vacated on other grounds, 183 F.3d 1277 (11th Cir. 1999). Thereafter, as part of the 2000 legislation, infranote 6, the president's ability to waive §1610(f) in the national interest was made clear. See28 U.S.C. §1610(f) (3) (2000). President Clinton subsequently did exercise that waiver. See Presidential Determination 2001-03,3 C.F.R. 405 (2001). As a result, the 2002 legislation, infra note 7, sought to provide plaintiffs a further opportunity to attach and execute against such assets.

page 967 note 6 Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, §2002,114 Stat. 1464,1541-43 (2000) [hereinafter VTVPA]. This statute made available blocked assets of Cuba for the purposes of paying certain outstandingjudgments against Cuba. Further, the statute provided that specific plaintiffs with judgments against Iran could be paid out of funds from the U.S. Treasury supplemented by a small portion of blocked Iranian funds. Plaintiffs with judgments against Iran who were not identified in the legislation, however, could not receive payment under the program, nor could plaintiffs with judgments against other terrorist states.

page 967 note 7 Terrorism Risk Insurance Act of 2002, Pub. L. No. 107-297,116 Stat. 2322 (2002) [hereinafter TRIA]. In addition to making specific blocked assets available for the execution of judgments, this statute also made additional judgment holders eligible for payments from the U.S. Treasury under the system set up by the VTVPA.

page 967 note 8 TRIA§201(a), 116 Stat, at 2337 (emphasis added).

page 967 note 9 50 U.S.C. App. §5(b) (2000).

page 967 note 10 50 U.S.C. §§1701, 1702 (2000).

page 967 note 11 TRIA §201 (d)(2)(B), 116 Stat, at 2339-40.

page 967 note 12 Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13 (D.D.C. 2002).

page 967 note 13 22 U.S.C. §§2751-2796(d) (2000).

page 968 note 14 Weinstein v. Islamic Republic of Iran, 274 F.Supp.2d 53, 58 (D.D.C. Jul. 22, 2003).

page 968 note 15 See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, §2002 (b) (2), 114 Stat. 1464, 1542 (2000).

page 968 note 16 Flatowv. Islamic Republic of Iran, 76F.Supp.2d 16,22-23 (D.D.C. 1999). The funds in this account were held for longer-term property renovation, as opposed to immediate disbursals for maintenance and repairs.

page 968 note 17 Vienna Convention on Diplomatic Relations, Apr. 18, 1961, Art. 45, 23 UST 3227, 3248, 500 UNTS 95, 122. A comparable provision exists for consulates. See Vienna Convention on Consular Relations, Apr. 24, 1963, Art. 27, 21 UST 77, 95, 596 UNTS 261, 284.

page 968 note 18 Weinstein, 274 F.Supp.2d at 60-61. By contrast, a court in the same circuit found that bank accounts held in the name of the former Iraqi embassy in the United States could be attached under the TRIA since the funds “were used primarily (if not exclusively) for commercial, rather than diplomatic purposes.” Hill v. Iraq, No. Civ. 99-3346, 2001 WL 21057173 (D.D.C. Mar. 11, 2003). In that case, the court considered whether the accounts were immune from execution under the Vienna Convention on Diplomatic Relations, but decided that the “notwithstanding any other provision of law” language found in the TRIA “by its plain terms … overrides any immunity from execution that blocked Iraqi property might otherwise enjoy.” Id. at *2.

page 968 note 19 Weinstein, No. Civ. 00-2601, slip op. at 14.

page 969 note 20 Hegna v. Iran, No. Civ. 00-0716, slip. op. (D.D.C.Jan. 22, 2001).

page 969 note 21 Hegna v. Iran, No. Civ. 03-2050, 2003 WL 22050777, at *2 (D. Md. Aug. 25, 2003).

page 969 note 22 Id. (citations and footnote omitted).

page 969 note 23 Exec. Order No. 12,722, 3 C.F.R. 294 (1991).

page 969 note 24 Exec. Order No. 13,290,68 Fed. Reg. 14,307 (Mar. 20,2003). This measure was taken pursuant to the International Emergency Economic Powers Act, 50 U.S.C. §§1701-1707 (2000). The USA Patriot Act had amended that act in order to empower the president to confiscate and vest in the United States the assets of foreign states “when the United States is engaged in armed hostilities or has been attacked by a foreign country or foreign nationals.” See USA Patriot Act §106, Pub. L. No. 107-56,115 Stat. 271,277-78 (2001) (codified at 50 U.S.C. §1702 (a) (1) ( Q ) .

page 969 note 25 Emergency Wartime Supplemental Appropriations Act § 1503, Pub. L. No. 108-11,117 Stat. 559 (Apr. 16,2003).

page 970 note 26 Pres. Determination No. 2003-23, 68 Fed. Reg. 26,459 (May 16, 2003). The president subsequently declared that “such provisions of law… include, but are not limited to, 28 U.S.C. 1605(a) (7), 28 U.S.C. 1610, and section 201 of the Terrorism Risk Insurance Act.” Message to Congress Reporting the Declaration of a National Emergency with Respect to the Development Fund for Iraq, 39 WEEKLY COMP. PRES. Doc. 647, 647-48 (May 22, 2003).

page 970 note 27 Acree v. Iraq, 271 F.Supp.2d 179, 220-24 (D.D.C. 2003).

page 970 note 28 See Some Iraqi Assets Set Aside for Ex-POWs, WASH. POST, July 20, 2003, at Al 0.

page 970 note 29 Acree v. Snow, No. Civ. 03-1549, 2003 WL 21754983, at *1.

page 970 note 30 Id. at *2.

page 970 note 31 United States’ Opposition to Motion for Injunction Pending Appeal at 1 (July 31, 2003), Acree v. Federal Reserve Bank of New York, No. 03-5195 (D.C. Cir. Aug. 4, 2003). The U.S. government attached to its pleading a series of declarations by U.S. officials testifying to the importance of these funds for the reconstruction effort in Iraq. For example, Paul Bremer, presidential envoy to Iraq, declared that “the United States has an urgent and critical national security need to make use of vested Iraqi funds as soon as possible for humanitarian assistance and reconstruction efforts in Iraq.” Declaration of L. Paul Bremer, III, Administrator, Coalition Provisional Authority at para. 18 (July 23, 2003), attached to United States’ Opposition to Appellants’ Motion for an Emergency Stay (Aug. 29, 2003), Acree v. Snow, No. 03-5195 (D.C. Cir.); see also Declaration of the Hon. Dov S. Zakheim, Under Secretary of Defense (Comptroller) and Chief Financial Officer (July 31,2003), id.; Declaration of Mary Tomkey, Assistant Deputy Comptroller (Program/Budget) Office of the Under-Secretary of Defense (Comptroller) (Aug. 20, 2003), id.

page 970 note 32 United States’ Motion to Intervene and Memorandum of Points and Authorities in Support of Motion to Intervene at 3-5 (July 21, 2003), Acree v. Iraq, No. Civ. 02-632, 2003 WL 21872372 (D.D.C. Aug. 6, 2003).

page 970 note 35 Id. at 8-10 (citations omitted).

page 972 note 36 Acree v. Iraq, 2003 WL 21872372, at *2-3.

page 972 note 37 Id. at *3-4.

page 972 note 38 Id. at *4.

page 972 note 39 Id. at *5.

page 972 note 40 Acree v. Snow, 2003 WL 22335011 (D.C. Cir. Oct. 7, 2003).

page 972 note 41 See White House Press Release on Remarks by President After Meeting with Members of the Congressional Conference Committee on Energy Legislation (Sept. 17, 2003), at http://www.whitehouse.gov.

page 972 note 42 Smith ex rel Smith v. Afghanistan, 262 F.Supp.2d 217, 228-32 (S.D.N.Y. 2003).

page 972 note 43 Id. at 240-41.

page 972 note 44 See Defendant Snow's Memorandum of Law in Opposition to Plaintiffs’ Motion for a Preliminary Injunction and Temporary Restraining Order (July 31, 2003), Smith v. Federal Reserve Bank of New York, No. Civ. 03-5658, 2003 WL 22103452 (S.D.N.Y. Sept. 11, 2003).

page 972 note 45 Smith v. Federal Reserve Bank of New York, 2003 WL 22103452, at *7-8.

page 972 note 46 Id. at *4.

page 972 note 47 Smith v. Federal Reserve Bank of New York, No. 03-6195, 2003 WL 22272577 (2d Cir. Oct. 3, 2003).

page 972 note 48 Testimony of U.S. Department of State Legal Adviser William H. Taft IV on S. 1275, Benefits for Victims of International Terrorism Act, Before the Senate Committee on Foreign Relations, at 7-12 (July 17, 2003) (on file atGWU).

page 972 note 49 Benefits for Victims of International Terrorism Act of 2003, S. 1275, 108th Cong., §14 (2003).

page 972 note 50 Id. §§2, 6.

page 972 note 51 Id. §4.

page 972 note 52 Id. §7(a). Public safety officers’ death benefits are paid pursuant to 42 U.S.C. §§3796-3796d-7 (2000).

page 973 note 53 Benefits for Victims of International Terrorism Act §7(b).

page 973 note 54 Id. §§10-11.

page 973 note 1 2 8 U.S.C. §1350 (2000).

page 973 note 2 28 U.S.C. §1350 note (2000).

page 973 note 3 See Complaint, paras. 47-55, Oct. 18,2002, Plaintiffs A, B, C, D, E, F v. Zemin, No. Civ. 02-75030,2003 WL 22118924 (N.D. 111. Sept. 12, 2003). The complaint is available at http://www.flgjustice.org/cases/Jiang/Legal_DocumenLs/ComplaintJZM.htmx

page 973 note 4 See Corrected United States’ Motion to Vacate October 21, 2002 Order and Statement of Interest or, in the Alternative, Suggestion of Immunity at 2-3 (Dec. 12, 2002) [hereinafter Corrected United States’ Motion], Plaintiffs A, B, C, D, E, F v. Zemin.

page 973 note 5 For the rejection of this argument by a different federal court, see Sean D. Murphy, Contemporary Practice of the United States, 97 AJIL 182 (2003) (concerning service of process on former Chinese premier Li Peng).

page 973 note 6 Corrected United States’ Motion, supra note 4, at 15 (footnote omitted).

page 973 note 7 Brief of Amicus Curiae Relating to Issues Raised by the United States in Its Motion to Vacate October 21,2002, Matters and Statement of Interest or, in the Alternative Suggestion of Immunity at 4 (June 9, 2003), Plaintiffs A, B, C, D, E, Fv. Zemin.

page 973 note 8 M. at 5-6, 9-11.

page 973 note 9 United States’ Response to Amended Brief of Amici Curiae at 2 (June 19,2003), Plaintiffs A, B, C, D, E, F v. Zemin.

page 973 note 10 Mat 4.

page 973 note 11 Id. at 5 (footnote omitted).

page 974 note 12 Plaintiffs A, B, C, D, E, F v. Zemin at *8-ll.

page 974 note 13 Id. at *3-4.

page 974 note 14 Id. at *5.

page 982 note 1 See Constitution of the United Nations Educational, Scientific and Cultural Organization, Nov. 16,1945, pmbl., TIAS No. 1580, 4 UNTS 275, 276.

page 982 note 2 See Letter from U.S. Secretary of State George Schultz to UNESCO Director-General Amadou Mahtar M'Bow (Dec. 28,1983), reprintedin 23ILM 220 (1984) (containing also the response by Director-General M'Bow). Article 2(6) of the UNESCO Constitution expressly permits withdrawal by a member.

page 982 note 3 See U.S. Statement on UNESCO, N.Y. TIMES, Dec. 30, 1983, at A4

page 982 note 4 «U.S.DEP'TOFSTATE,U.S./UNESCO POLICY REVIEW REPORT (Feb. 27, 1984);U.S.DEP'TOFSTATE,THEACTIVITIES OF UNESCO SINCE U.S. WITHDRAWAL: A REPORT BY THE SECRETARY OF STATE, Pub. No. 9771 (April 1990) (providing a description of the reasons that the United States gave for its withdrawal); Bernard Gwertzman, U.S. Is Quitting UNESCO, Affirms Backingfor U.N., N.Y. TIMES, Dec. 30,1983, at Al; Michael Dobbs, U.S. Quits UNESCO; Move Seen as Blow to Controversial Agency, WASH. POST, Jan. 1,1985, at Al. For analyses of the withdrawal, see Michael J. Farley, Comment: Conflicts over Government Control of Information…The United States and UNESCO, 59 TUL. L. REV. 1071 (1985); Peri A. Hoffer, Upheaval in the UN System: The United States'Withdrawal from UNESCO, 12 BROOK.J. INT'LL. 161 (1986); Joel H. Rosenthal, The Withdrawal from UNESCO: International Organizations and the U.S. Role, CARNEGIE COUNCIL ON ETHICS AND INT'LAFF., CASE STUDYIN ETHICS AND INTERNATIONAL AFFAIRS NO. 10 (1990), at http://www.cceia.org.

page 982 note 5 SeeU.S. GENERAL ACCOUNTING OFFICE, UNESCO: IMPROVEMENTS IN MANAGEMENT PRACTICES, NO. GAO/NSIAD- 93-159 (1993), at http://www.gao.gov.

page 982 note 6 See, e.g., Jay M. Vogelson, UN Educational, Scientific, and Cultural Organization, 30 INT'LLAW. 676 (1996) (American Bar Association's recommendation).

page 982 note 7 U.S. DEP't OF STATE, U.S. PARTICIPATION IN THE UNITED NATIONS (1995-2001), at http://www.state.gov.

page 982 note 8 See UN Educational, Scientific and Cultural Organization, Records of the General Conference, 28th Sess., 1995, vol. 3, UNESCO Doc. No. 28/C Proceedings (1997), aKhttp://unesdoc.unesco.org/images/0010/001086/ 108623mo.pdf>; see atoU.S.DEP'TOFSTATE, U.S. PARTICIPATION IN THE UNITED NATIONS (1996), «http://www.state.gov. Similarly, the State Department asserted in 1998 that “the United States has concluded that UNESCO has satisfactorily addressed the issues that led to U.S. wididrawal in December 1984,” but that “budgetary constraints continue to impede U.S. reentry.” U.S. DEP't OF STATE, U.S. PARTICIPATION IN THE UNITED NATIONS (1998), at http://www.state.gov

page 982 note 9 Address to the United Nations General Assembly in New York City, 38 WEEKLY COMP. PRES. Doc. 1529 (Sept. 16, 2002).

page 982 note 10 White House Fact Sheet, United States Rejoins UNESCO (Sept. 12, 2002), at www.whitehouse.gov.

page 984 note 11 See Foreign Relations Authorization Act, Fiscal Year 2003, Pub. L. No. 107-228, §407, 116 Stat. 1350, 1391.

page 984 note 12 See Report from the White House to Congress on United States Membership in the United Nations Educational, Scientific, and Cultural Organization (UNESCO) (n.d.) (on file at GWU); see also U.S. Dep't of State Fact Sheet, The United States Rejoins UNESCO (Sept. 22, 2003), at http://www.state.gov (providing a summary of the reasons given in the report).

page 984 note 13 See EXECUTFVE OFFICE OF THE PRESIDENT OF THE U.S., BUDGET OF THE UNITED STATES GOVERNMENT, FlSCAI. YEAR2004,at216 (2003), aKhttp://w3.access.gpo.gov/usbudget/index.html>; seeato U.S.GENERALACCOUNTING OFFICE, STATUS OF REFORMS AND BUDGETS OF THE UNITED NATIONS EDUCATIONAL, SCIENTIFIC, AND CULTURAL ORGANIZATION (UNESCO) 1, No. GAO-03-565R (Mar. 28, 2003), at http://www.gao.gov.

page 984 note 14 See Keith B. Richburg, U.S. Rejoining U.N. Agency After 19 Years, WASH. POST, Sept. 30, 2003, at A10.

page 984 note 15 White House Press Release on Remarks by First Lady Laura Bush to UNESCO Plenary Session (Sept. 29,2003), at http://www.whitehouse.gov; seeU.S. Dep't of State Fact Sheet, The United States Rejoins UNESCO.

page 984 note 1 International Convention for the Prevention of Pollution from Ships, Nov. 2,1973,1340 UNTS 184, reprinted in 12ILM 1319(1973). The Convention was significantly modified by the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, Feb. 17, 1978, 1340 UNTS 61&1341 UNTS 3, reprinted in 17 ILM 546 (1978).

page 984 note 2 All parties must abide by Annex I (regulations for the prevention ofpollution by oil) andAnnexII (regulations for the control of pollution by noxious liquid substances in bulk). Parties may at their discretion join Annex III (prevention ofpollution by harmful substances carried by sea in packaged form), Annex IV (prevention ofpollution by sewage from ships), and Annex V (prevention of pollution by garbage from ships). All of these annexes have entered into force. As of October 2003, the United States is a party to all except Annex IV.

page 984 note 3 See Protocol of 1997 to Amend the International Convention for the Prevention of Pollution From Ships, 1973, as Modified by the Protocol of 1978 Relating Thereto, Sept. 26, 1997 [hereinafter Protocol of 1997], reprinted in Message from the President of the United States Transmitting the Protocol of 1997 Amending the International Convention for the Prevention ofPollution from Ships, S. TREATYDOC.NO. 108-7,atl03,115-122 (2003) [hereinafter Message from the President].

page 984 note 4 Message from the President, supra note 3, at 122-23.

page 984 note 5 See id.; see also Message to the Senate Transmitting the Protocol of 1997 to Amend the International Convention for the Prevention of Pollution from Ships, 1973, as Modified by the Protocol of 1978,39 WEEKI.YCOMP. PRES. DOC. 609 (May 19, 2003).

page 984 note 6 Letter of Submittal from the Secretary of State to the President of the United States, reprinted in Message from the President, supra note 3, at V, VIII.

page 984 note 7 Id. at X.

page 984 note 8 Id. at VIII.

page 984 note 9 Protocol of 1997, supra note 3, Art. 6(1), reprinted in Message from the President, supra note 3, at 105.

page 984 note 10 See International Maritime Organization, Summary of Status of Conventions as at 30 September 2003, at http://www.imo.org.

page 984 note 1 Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15,1994, Art. 27(1), Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, in WORLD TRADE ORGANIZATION, THE LEGAL TEXTS: THE RF.SU LTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS 365 (1999), reprinted in 33ILM 81 (1994).

page 984 note 2 Id., Art. 31(f).

page 984 note 3 See id., An. 68.

page 984 note 4 Declaration on the TRIPS Agreement and Public Health, para. 6, WTO Doc. WT/MIN(01) /DEC/2 (Nov. 20, 2001), reprinted in 41 ILM 755 (2002), at http://www.wto.org.

page 985 note 5 See Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health…Second Communication from the United States, WTO Doc. IP/C/W/358 (July 9,2002), a… http://www.wto.org; see also Elizabeth Becker, Poor Nations Can Purchase Cheap Drugs Under Accord, N.Y. TIMES, Aug. 31, 2003, at6.

page 985 note 6 WTO General Council, Decision of 30 August 2003, WTO Doc. IP/C/W/405 (Aug. 30,2003) (footnotes omitted), at http://www.wto.org.

page 985 note 7 WTO Press Release on the General Council Chairperson's Statement (Aug. 30, 2003), «http://www.wto.org.

page 985 note 8 Office of the U.S. Trade Representative Press Release on Statement of Ambassador Linnet F. Deily, Permanent Representative to the World Trade Organization and Deputy U.S. Trade Representative, Following Agreement in WTO on Access to Medicines (Aug. 30, 2003), at http://www.ustr.org.

page 985 note 9 These states included Australia, Canada, Iceland, Japan, New Zealand, Norway, Switzerland, and the United States, as well as current and soon-to-accede members of the European Union.

page 985 note 10 Among these states were China (including Hong Kong and Macao), Israel, Korea, Kuwait, Mexico, Qatar, Singapore, Turkey, and United Arab Emirates, as well as Chinese Taipei.

page 985 note 1 United States v. Alvarez-Machain, 504 U.S. 655, 669 (1992).

page 985 note 2 See Alvarez-Machain v. United States, 107 F.3d 696, 699 (9th Cir. 1996).

page 985 note 3 For background on some of the initial decisions in the case, see SEAN D. MURPHY, UNITED STATES PRACTICE IN INTERNATIONAL IAW: 1999-2001, at 304-06 (2002).

page 985 note 4 28 USC §1350 (2000). The ATCA provides (in full): “The district courts shall have originaljurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.“

page 985 note 5 See Alvarez-Machain v. United States, No. 93-4072, 1999 U.S. Dist. LEXIS 23304, at *55-65, *70-72 (CD. Cal. Mar. 18,1999). At the same time, the court found that Alvarez's claim against the U.S. government for false arrest, false imprisonment, and the resulting infliction of emotional distress fell within the scope of the Federal Tort Claims Act, 28 USC §§1346(b) (1), 2671-2680 (2000) (FTCA). SeeAlvarez-Machain v. United States, 1999 U.S. Dist. LEXIS 23304, at *21-54. Yet the district court found that, while the United States was not immune from suit, the United States was not liable because Alvarez's abduction could be justified under California law as a “citizen arrest.” Id. at *43-45. On appeal, the Ninth Circuit agreed that the United States could be sued under the FTCA, but disagreed that the law of “citizen arrest” applied, since “the DEA agents here had no authority, statutory or otherwise, to effect an extraterritorial arrest.” Alvarez-Machain, v. United States, 331 F.3d 604, 641 (9th Cir. 2003).

page 985 note 6 331 F.3dat616.

page 985 note 7 M a t 617-20.

page 985 note 8 Id. at 620.

page 985 note 9 GARes. 217 (Dec. 10, 1948).

page 985 note 10 Dec. 16, 1996, 999 UNTS 171. By contrast, the Eleventh Circuit Court of Appeals in 2002 held, in part, that the Covenant is not self-executing and “does not create judicially-enforceable rights.” United States v. Duarte- Acero, 296F.3d 1277 (11th Cir. 2002); see also United Statesv. Matta-Ballesteros, 71 F.3d 754 (9th Cir. 1995). In Duarte-Acero, the Covenant was raised by a criminal defendant who, in an effort to support dismissal of his indictment, argued that he was forcibly abducted abroad and brought to the United States.

page 986 note 11 331 F.3d at 623.

page 986 note 12 Id. at 625.

page 986 note 1 Loi du 16juin 1993 relative a la repression des infractions graves aux Conventions internationales de Geneve du 12 aout 1949 et aux Protocoles I et II du 8 juin 1977, MONITEUR BELGE 17751 (Aug. 5, 1993), reprinted in Eric David, La Loi Beige sur Les Crime de Guerre, 28 REV. BELGE DE DROIT INT'L 668, 680 (1995).

page 986 note 2 Convention for the Amelioration of the Condition of the Wounded and Sick Members of Armed Forces in the Field, Aug. 12,1949,6 UST 3114, 75 UNTS 31; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 UST 3217, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12,1949, 6 UST 3316, 75 UNTS 135; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3526, 75 UNTS 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 UNTS 609; Protocol Additional to the Geneva Conventions of 12 August 1949,and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 UNTS 3.

page 986 note 3 Loi relative a la repression des violations graves de droit international humanitaire, MONITEUR BELGE 9286 (Mar. 23, 1999). The amended law is reproduced in translation at 38 ILM 918 (1999).

page 986 note 4 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9,1948, Art. 2, 78 UNTS 277, 280.

page 986 note 5 See UN Doc. A/CONF.183/9*, Art. 7 (July 17,1998), reprinted in 37 ILM 999,1004 (1998), available at http://www.un.org/icc/ [hereinafter Rome Statute].

page 986 note 6 See\.oi relative a la repression des violations graves de droit international humanitaire, Art. 5(c). Article 27 of the Rome Statute provides that the statute “shall apply equally to all persons without any distinction based on official capacity.” Rome Statute, supra note 5, Art. 27.

page 986 note 7 See, e.g., M. Cherif Bassiouni, Universal Jurisdiction for International Crimes, 42 VA.J. INT'LL. 81,145-47 (2001).

page 986 note 8 See Redress, Universal Jurisdiction in Europe, 18-21 (1999), at http://www.redress.org; Lynda Hurst, Belgium Reins in War-Crime Law, TORONTO STAR, June 29, 2003, at F4.

page 986 note 9 SeeH.SA. v. S.A., Cour de Cassation, No. P. 02.1139.F/1 (Feb. 12, 2003); see also Marlise Simons, SharonFaces Belgian Trial After Term Ends, N.Y. TIMES, Feb. 13,2003, at Al 4. The text of the Sharon decision is available through the case locator at http://www.cass.be/juris/jucf.htm. For an International Court ofjustice ruling that a Congo foreign minister enjoys immunity while in office from a Belgian arrest warrant issued under the Belgian law, see Arrest Warrant of 11 April 2000 (Congo v. Belg.) (Int'l Ct. Justice Feb. 14,2002), at http://www.icj-cij.org.

page 986 note 10 U.S. Dep't of State Press Release on Interview by International Wire Services with Colin Powell, U.S. Secretary of State, Washington, D.C. (Mar. 18, 2003), at http://www.state.gov.

page 986 note 11 See Loi modifiant la loi du 16 juin 1993 relative a la repression des violations graves du droit international humanitaire etl'article 144ter du Code judiciaire, MONITEUR BELGE 24846 (May 7,2003); see also Richard Bernstein, Belgium Rethinks Its Prosecutorial Zea/, N.Y. TIMES, Apr. 1,2003, at A8 (reporting on accelerated parliamentary action on the amendment in the aftermath of the suit against former President Bush).

page 986 note 12 See Loi modifiant la loi du 16 juin 1993 relative a la repression des violations graves du droit international humanitaire et l'article 144ter du Code judiciaire, Art. 5.

page 986 note 13 Id.

page 986 note 14 The text of the criminal complaint is available in French at http://belgium.indymedia.org/uploads/plainte.pdf.

page 986 note 15 Philip T. Reeker, Dep't of State Deputy Spokesman, U.S. Dep't of State Daily Press Briefing at 6 (May 14, 2003), at http://www.state.gov. The chairman of the (U.S.) Joint Chiefs of Staff was quoted as considering the need to relocate NATO headquarters if Belgium failed to prevent such lawsuits in the future. See David Wastell, America Threatens to Move NATO After Franks Is ‘Charged,’ SUNDAY TELEGRAPH, May 18, 2003, at 31.

page 986 note 16 Donald Rumsfeld, Secretary of Defense, U.S. Dep't of Defense News Transcript (June 12, 2003), a(http://www.dod.gov; see Vernon Loeb, Rumsfeld Says Belgian Law Could Imperil Funds for NATO, WASH. POST, June 13, 2003, at A24; see also Richard Boucher, Dep't of State Spokesman, U.S. Dep't of State Daily Press Briefing at 10-11 (June 13,2003), «(http://www.state.gov (noting that the “Secretary of State has raised these concerns in public and in private with the Belgians. The Secretary of Defense has raised diem in public and in private with the Belgians. The goal is to get them to change the law, and none of these other questions will arise.“).

page 986 note 17 See Craig S. Smith, Belgium Resists Pressure from U.S. to Repeal War Crimes Law, N.Y. TIMES, June 14, 2003, at A5 (quoting Belgian Foreign Minister Louis Michel).

page 987 note 18 See New War Crimes Suits Filed Against Bush, Blair in Belgium, DEUTSCHE PRESSE-AGENTUR, June 20, 2003; Philip T. Reeker, Dep't of State Spokesman, U.S. Dep't of State Daily Press Briefing at 3-6 (June 20, 2003), at http://www.state.gov.

page 987 note 19 SeeCraig S. Smith, Belgium Plans to Amend Law on War Crimes, N.Y. TIMES, June 23, 2003, at A8; Belgian Ministry of Foreign Affairs, Press Release on the Law on Universal Jurisdiction Reviewed (June 24, 2003), at http://www.diplomatie.be.

page 987 note 20 seeLoi relative aux violations graves du droit international humanitaire, MONITEUR BELGE 40506 (Aug. 7,2003); see also Belgian Ministry of Foreign Affairs Press Release on Conseil des Ministres: Loi de competence universelle (July 14, 2003), at http://www.diplomatie.be/fr/press/default.asp (“La loide 1993, modifiee en 1999 et 2003, est abrogee. Les dispositions utiles sont integrees en droit commun. L'avant projet de loi est base sur une etude comparative de la legislation en vigueur dans une serie des pays occidentaux. Cette etude a revele que la plupart de ces pays avaient instaure une competence universelle limitee, tout en conservant neanmoins les regies d'immunite du droit international et du droit coutumier ainsi qu'un point de rattachement personnel (auteur et/ou victime) ou territorial clair avec le pays.… On abouut ainsi a une legislation lineaire et transparent qui ne laisse plus de place a une appreciation politique d'opportunite des affaires … .“).

page 987 note 21 Loi relative aux violations graves du droit international humanitaire, Arts. 14…16.

page 987 note 22 Id., Art. 16. If the prosecution refuses prosecution based on considerations unrelated to the merits of the complaint, however, and the facts giving rise to the complaint occurred afterjune 30,2002, the minister ofjustice must notify the International Criminal Court.

page 987 note 23 Id., Art. 13.

page 987 note 24 Id.

page 987 note 25 See Glenn Frankel, Belgian War Crimes Law Undone by Its Global Reach, WASH. POST, Sept. 30, 2003, at Al.

page 987 note 1 See, e.g., Use of U.S.-Origin Parts for Servicing Libyan Aircraft Restricted, 46 Fed. Reg. 47,066 (Sept. 24, 1981) (codified at 15 C.F.R. pts. 373,376,390); Expansion of Foreign Export Controls Affecting Libya, 47 Fed. Reg. 11,247 (Mar. 16, 1982) (codified at 15 C.F.R. pts. 370, 371, 373, 376, 379, 385, 386, 399).

page 987 note 2 Proclamation No. 4,907, 3 C.F.R. 21 (1983).

page 987 note 3 *>Exec. Order No. 12,543,3 C.F.R. 181 (1987), reprinted in 25ILM 173 (1986); Exec. Order No. 12,544,3 C.F.R. 183 (1987); see also Libyan Sanctions Regulations, 31 C.F.R. pt. 550 (2001). For an overview of U.S. sanctions against Libya from 1980 to 1996, see Anne Q. Connaughton, Exporting to Special Destinations: Terrorist-Supporting and Embargoed Countries, 748 PRAC. L. INST. 353 (1996).

page 988 note 4 The United States’ imposition of additional sanctions against Libya in the Iran-Libya Sanctions Act of 1996, 50 U.S.C. § 1701 note (2000), was partly motivated by Libya's refusal to hand over the two suspects. See H.R. REP. No. 104-523 (II), at 9 (1996), reprinted in 1996 U.S.C.C.A.N. 1311, 1312.

page 988 note 5 SeeSC Res. 731 (Jan. 21, 1992); SC Res. 748 (Mar. 31, 1992); SC Res. 883 (Nov. 11, 1993).

page 988 note 6 See Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, 24 UST 564, 974 UNTS 177. The Court declined to issue interim measures of protection in favor of Libya.

page 988 note 7 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. UK), Provisional Measures, 1992ICJ REP. 3 (Apr. 14); Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.S.), Provisional Measures, 1992 ICJ REP. 114 (Apr. 14). The Court found, however, that it had jurisdiction over Libya's claims, notwithstanding the apparent conflict between them and the resolutions of the Security Council. See Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. UK), Preliminary Objections, 1998 ICJ REP. 9 (Feb. 27); Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.S.), Preliminary Objections, 1998 ICJ REP. 115 (Feb. 27), reprinted in 37ILM 587 (1998) (discussed in case report by Peter H. F. Bekker at 92 AJIL503 (1998)). 7 Letter Dated 24 August 1998 from the Acting Permanent Representative of the United Kingdom of Great Britain and Northern Ireland and the United States of America to the United Nations Addressed to the Secretary General, UN Doc. S/1998/795 (1998).

page 988 note 8 SC. Res. 1192 (Aug. 27,1998). For background on the discussions preceding the trial, and a summary of the verdict and the court's reasoning, see SEAN D. MURPHY, UNITED STATES PRACTICE IN INTERNATIONAL LAW: 1999-2001, at 359-66 (2002).

page 988 note 9 seejudith Miller, In Rare Talks with Libyans, U.S. Airs View on Sanctions, N.Y. TIMES, June 12,1999, atA4; see also Colin L. Powell, Secretary of State, U.S. Dep't of State Press Release on Press Remarks with British Foreign Secretary Robin Cook (Revised) (Feb. 6, 2001), at http://www.state.gov/secretary/rm/2001/522.htm.

page 988 note 10 Her Majesty's Advocate v. Megrahi, No. 1475/99, slip. op. (High Ct. Judiciary at Camp ZeistJan. 31, 2001), reprinted in 40 ILM 582 (2001). The conviction (and sentence to life in prison) was affirmed in March 2002 by the Scottish High Court of Justiciary. See Megrahi v. Her Majesty's Advocate, No. CI 04/01, slip. op. (Appeal Court, High Ct. Justiciary, Mar. 14, 2002). Both judgments are available online at http://www.scotscourts.gov.uk.

page 989 note 11 See Peter Slevin and Glenn Kessler, Libya Disavows Offer to Pay Families of Flight 103 Victims, WASH POST, May 30, 2002, at A20; see also Peter Slevin, Pan Am 103 Settlement Is Elusive; Cultural, Legal Issues Stall Lawyers’ Negotiations with Libya, WASH. POST, July 8, 2002, at A13.

page 989 note 12 See, e.g., Steven R. Weisman, U.S. Will Keep Penalties Against Libya, Officials Say, N.Y. TIMES, Aug. 14,2003, at A12 (reporting that Libya initially insisted on the lifting of all UN and U.S. sanctions upon payment, and citing an administration official that in June and July, 2003, “[H]ard-liners in the State and Defense Departments sought to oppose the lifting of United Nations sanctions even if Libya met the conditions set. In the e n d , … the administration decided that it would be ‘changing the goal posts’ to add conditions for the lifting of United Nations sanctions.“)

page 989 note 13 See Alan Sipress and John Mintz, Libya Accepts Responsibility for Bombing over Lockerbie,'ASH. POST, May 1,2003, at Al 2; Matthew L. Wald, Libya Is Offering to Pay $2.7 Billion for Pan Am Blast, N.Y. TIMES, May 29, 2003, at Al.

page 989 note 14 Letter Dated 15 August 2003 from the Charge d'affaires a.i. of the Permanent Mission of the Libyan Arab Jamahiriya to the United Nations Addressed to the President of the Security Council, UN Doc. S/2003/818 (Aug. 15,2003).

page 989 note 15 See SC Res. 1373 (Sept. 28, 2001).

page 989 note 16 See GA Res. 55/158 (Jan. 30, 2001).

page 989 note 17 See GA Res. 49/60, annex (Dec. 9, 1994).

page 989 note 18 See Letter Dated 15 August 2003, supra note 14, at 1-2; see also Letter Dated 28 December 2001 from the Chairman of the Security Council Committee Established Pursuant to Resolution 1373 (2001) Concerning Counter-terrorism Addressed to the President of the Security Council, UN Doc. S/2001/1323, annex (Dec. 31,2001) (containing a letter from Libya to the committee regarding Libya's counterterrorism efforts).

page 990 note 19 See Peter Slevin, Libya Takes Blame for Lockerbie Bombing, WASH. POST, Aug. 16, 2003, at A01.

page 990 note 20 Id.

page 990 note 21 See U.S. Dep't of State Press Release, U.S. Secretary of State Colin L. Powell on Libya…Pan Am 103 (Aug. 15, 2003), at http://www.state.gov.

page 990 note 22 Id.; see also Peter Slevin, U.S. Still Wary of Gaddafi's Intentions; Any Lifting of Sanctions Isn't Near, Experts Say, WASH. POST, Aug. 14, 2003, at A16 (reporting on concerns in the U.S. administration and Congress over Libya's pursuit of weapons of mass destruction).

page 990 note 23 See Philip T. Reeker, Deputy Spokesman, U.S. Dep't of State Daily Press Briefing at 16 (Aug. 25, 2003), at http://www.state.gov.

page 990 note 24 UTA Flight 772 was en route from Brazzaville to Paris when it exploded over Nigeria on September21,1989, killing 170, among them 54 French, 7 U.S., and 4 UK citizens. Following an agreement between French President Chirac and Libyan leader Gaddafi in 1996, and a court trial in France in March 1999, in which six Libyans were sentenced in absentia for the carrying out of the attack, the court ordered Libya to pay U.S.$34 million in compensation, of which less than U.S.$200,000 was paid to each of the families of the victims, with the rest of the funds going to the French airline company and its insurer. Some critics in France accused the French government of agreeing to a small compensation payment to increase the prospects of oil contracts for French companies in Libya. See Fehcity Barringer, U.N. Council Postpones Vote on Libya Penalties,NY. TIMES, Sept. 10, 2003, at A3; Elaine Sciolino, Libya and Families in Accord on Payment in ‘89 Bombing, N.Y. TIMES, Sept. 2, 2003, at \7; Colum Lynch, Lockerbie Families Protest French Resistance, WASH. POST, Aug. 31, 2003, at A18. Separately, in October 2002, relatives of the U.S. victims who were killed aboard UTA Flight 772 filed a lawsuit against Libya in U.S. federal court For a copy of the complaint, see http://news.findlaw.com/hdocs/docs/terrorism/pughlibyal01602cmp.pdf.

page 990 note 25 See Felicity Barringer, U.N. to Weigh Proposal to End 1988 Penalties Against Libya, N.Y. TIMES, Aug. 19, 2003, at Al 1.

page 990 note 26 See, e.g., Colum Lynch, Lockerbie Families Protest French Resistance, VIAm. POST, Aug. 31, 2003, at A18.

page 990 note 27 See Philip T. Reeker, Deputy Spokesman, U.S. Dep't of State Daily Press Briefing at 16 (Aug. 25,2003), aKhttp:// www.state.gov> (stating that the United States has “certainly made clear our deep concern over any possible actions by France or any other country that would impede the settlement,” and stating that the United States “continue [s] to support compensation for all victims of terrorism, of course, but the Council's consideration of lifting the Libya sanctions should be based solely on Libya meeting the requirements of the UN Security Council resolutions“); Philip T. Reeker, Deputy Spokesman, U.S. Dep't of State Daily Press Briefing at 14 (Aug. 27, 2003), at http://www.state.gov (“As we have made quite clear, we would like to see that done as quickly as possible.“); Philip T. Reeker, Deputy Spokesman, U.S. Dep't of State Daily Press Briefing at 13 (Sept. 3,2003),a http://www.state.gov (stating that the lifting of sanctions “has been a matter of high-level discussion among a number of governments“).

page 991 note 28 See Felicity Barringer, U.N. Council Postpones Vote on Libya Penalties, N.Y. TIMES, Sept. 10, 2003, at A3.

page 991 note 29 See Craig S. Smith, Libya and France Reach Agreement on Victim Compensation, N.Y. TIMES, Sept. 12, 2003, at All.

page 991 note 30 SC Res. 1506 (Sept. 12,2003). The vote was thirteen in favor, with two abstentions (France and the United States).

page 991 note 31 See Peter Slevin, U.N. Vote Removes Sanctions on Libya, WASH. POST, Sept. 13, 2003, at A1