Sovereign Immunity

• Author: International Law Group

The Humane Society of the United States and two other environmental organizations (jointly The Humane Society) filed suit in the Court of International Trade for a writ of mandamus to direct the U.S. President to impose sanctions on Italy for violating the Driftnet Fishing Act (16 U.S.C. Sections 1826-1826g (Supp. IV 1998)). [N.B. Driftnet fishing is the combination of gillnets for a length of more than one mile that drifts with the current. This kind of fishing indiscriminately catches all aquatic life, including fish, whales, dolphins, sea turtles and sea birds.] The Driftnet Act authorizes the U.S. to impose sanctions on foreign nations that use large-scale driftnet fishing on the high seas.

In this case, the U.S. and Italy held consultations on Italy's driftnet fishing and the U.S. Secretary of Commerce certified in January 1997 that Italy had terminated the illegal practice. The Humane Society disagreed with the certification and contended that Italy was continuing to use driftnet fishing. It provided evidence of dozens of incidents that show Italy's use of this system. The Court of International Trade ordered the Secretary to again identify Italy as a nation for which there is reason to believe that its nationals or vessels are conducting driftnet fishing on the high seas (see Section 1826a(b)(1)(B)). The Humane Society appealed those parts of the decision not in its favor. The U.S. Court of Appeals for the Federal Circuit affirms.

An interesting issue of first impression arose in the course of the litigation. The Government argued that in an action under 28 U.S.C. Section 1581 [Court of International Trade, civil actions against the U.S. and its officers] to enforce the provisions of the Driftnet Fishing Act, the President and...