FSM SUPREME COURT TRIAL DIVISION
Cite as New Tokyo Med. Coll. v. Roberts, 24 FSM R. 361 (Pon. 2023)
NEW TOKYO MEDICAL COLLEGE,
Petitioner,
vs.
LORIN ROBERTS, in his official capacity as the
Secretary of Foreign Affairs, and FSM GOVERNMENT,
Respondents.
CIVIL ACTION NO. 2023-021
ORDER DENYING WRIT OF MANDAMUS
Beauleen Carl-Worswick
Associate Justice
Hearing: November 22, 2023
Decided: December 13, 2023
APPEARANCES:
For the Petitioner:
Marstella E. Jack, Esq.
P.O. Box 2210
Kolonia, Pohnpei FM 96941
For the Respondent:
Jeffrey S. Tilfas, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
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The Judiciary Act confirms the court's inherent constitutional power to issue all writs necessary for the due administration of justice, and this plainly includes the power to issue writs of mandamus. These common law writs are traditionally included within the arsenal of writs issuable by courts in aid of their jurisdiction. New Tokyo Med. Coll. v. Roberts, 24 FSM R. 361, 363 (Pon. 2023).
For the FSM Supreme Court to exercise its discretion to issue a writ of mandamus or prohibition: 1) the respondent must be a judicial or other public officer; 2) the act to be compelled must be non-discretionary or ministerial; 3) the respondent must have a clear legal duty to perform the act; 4) the respondent must have failed or refused to perform the act; and 5) there must be no other adequate legal remedy available, and each of these five elements must be satisfied. New Tokyo Med. Coll. v. Roberts, 24 FSM R. 361, 363 (Pon. 2023).
A writ of mandamus or prohibition is an extraordinary remedy, the issuance of which is discretionary and must be done with great caution. New Tokyo Med. Coll. v. Roberts, 24 FSM R. 361, 364 (Pon. 2023).
The 1961 Hague Convention on Apostille expressly applies only between two contracting states, and does not apply when only one state is a contracting party and the other is not. The FSM is not a signatory. New Tokyo Med. Coll. v. Roberts, 24 FSM R. 361, 364 (Pon. 2023).
Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. It can be established by showing 1) state practice, and 2) opinio juris, which is considered the best evidence. But customary law can be derived from a variety of sources. New Tokyo Med. Coll. v. Roberts, 24 FSM R. 361, 364 (Pon. 2023).
Opinio juris is the principle that for conduct or a practice to become a rule of customary international law, it must be shown that nations believe that international law (rather than moral obligation) mandates the conduct or practice. New Tokyo Med. Coll. v. Roberts, 24 FSM R. 361, 364 n.3 (Pon. 2023).
The Convention on Apostille's expressly intended purpose was to replace the customary international law practices of legalizing documents through chain legalizations with the issuance of a single certificate made in the place where the document originates. Thus, the customary international law practice is not to issue an Apostille certificate, but to follow a more complicated process of authentication that is not uniformly recognized among nations. The general state practice with regard to document authentication is to allow sovereign states the discretion whether or not to affix their seal. New Tokyo Med. Coll. v. Roberts, 24 FSM R. 361, 365 (Pon. 2023).
The Department of Foreign Affairs, which is responsible for the conduct of relations with foreign governments and for advising officials of policies, has the duty and responsibility to formulate policies for the President's review and approval or disapproval, and thereby set regulations and whether the FSM authenticates educational documents or diplomas is determined by the policy set by that Department. When the Department of Foreign Affairs has made the determination not to authenticate the plaintiff's diplomas, that discretion is theirs. New Tokyo Med. Coll. v. Roberts, 24 FSM R. 361, 365-66 & n.11 (Pon. 2023).
A writ of mandamus will not issue to compel the Department of Foreign Affairs to authenticate diplomas when there is no clear non-discretionary duty for it to authenticate the documents. New Tokyo Med. Coll. v. Roberts, 24 FSM R. 361, 366 (Pon. 2023).
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BEAULEEN CARL-WORSWICK, Associate Justice:
On November 22, 2023, this court held a hearing on Petitioner's Writ of Mandamus, Judge Beauleen Carl-Worswick presiding. Petitioner was represented by Marstella Jack ("Jack") and Respondent was represented by Attorney General Jeffrey Tilfas ("Tilfas"). At this hearing, the court heard from both parties and admitted into evidence an example of a diploma that was authenticated in Belize. On November 27, 2023, both parties submitted supplemental briefs. The court DENIES the petition for the writ of mandamus for the reasons stated below.
Pursuant to 4 F.S.M.C. 117, the Supreme Court
shall have power to issue all writs and other process, make rules and orders, and do all acts, not inconsistent with law or with the rules of procedure and evidence established by the Chief Justice, as may be necessary for the due administration of justice.
(emphasis added). The Judiciary Act confirms "the inherent constitutional power to issue all writs . . . necessary for the due administration of justice." Nix v. Ehmes, 1 FSM R. 114, 118 (Pon. 1982). "This plainly includes the power to issue writs of mandamus, which are common law writs traditionally included within the arsenal of writs issuable by courts in aid of their jurisdiction." Id.
In order for the FSM Supreme Court to exercise its discretion to issue a writ of mandamus or prohibition: 1) the respondent must be a judicial or other public officer; 2) the act to be compelled must be non-discretionary or ministerial; 3) the respondent must have a clear legal duty to perform the act; 4) the respondent must have failed or refused to perform the act; and 5) there must be no other adequate legal remedy available, and each of these five elements must be satisfied. Etscheit v. Amaraich, 14 FSM R. 597, 600 (App. 2007).1 Further, "[a] writ of mandamus or prohibition is an extraordinary remedy . . . The issuance of writs [of mandamus or prohibition] is discretionary and must be done with great caution." Id.(citation omitted).
In this case, the primary question is whether the department of foreign affairs had a clear and nondiscretionary duty to authenticate the documents. Petitioners argue that under international law there is a duty to authenticate the educational diplomas issued by the New Tokyo Medical College ("NTMC").
Pursuant to the 1961 Hague Convention on Apostille ("Convention") Article 1, "The present Convention shall apply to public documents which have been executed in the territory of one Contracting State and which have to be produced in the territory of another Contracting State." (emphasis added). The Convention expressly applies only between two contracting states. The FSM is not a signatory to the Convention. The Convention does not apply when only one state is a contracting party and the other is not. Thus, even if the FSM were to certify it, it would have no legal meaning in the other signatory state. In short, the FSM Department of Foreign Affairs cannot certify the diplomas by apostille.
Alternatively, Petitioner's argue that under international customary law, there is a duty to authenticate the documents.
"Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation." RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(2) (1987).2 Thus customary international law can be established by showing (1) state practice, and (2) opinio juris.3 This is considered the "best evidence," however, "[c]ustomary law can be derived from a variety of sources." FSM v. Ezra, 19 FSM R. 486, 492 (Pon. 2014); See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(1)-(4) (1987) ("Sources of International Law").4
The preamble of the Convention on Apostille states, "[d]esiring to abolish the requirement of diplomatic or consular legalisation for foreign public documents, [the signatory states] have resolved to conclude a convention to this effect." (emphasis added). Thus, the practice of Apostille was expressly intended to replace the customary international law practices of legalizing documents. It abolished the practice of chain legalizations, for signatory states, replacing it with the issuance of a single certificate made in the place where the document originates. Thus, the customary international law practice is not to issue the Apostille certificate, rather it is to follow a more complicated process of authentication that is not uniformly recognized among nations.
One of the most contested documents are educational diplomas, and states vary widely as to whether they are considered public or private documents.5 For example, in Australia the consular offices will only authenticate diplomas from a verified institutions accredited under the Australian Qualifications Framework.6 In contrast, the United States will authenticate any diploma that has been notarized to by a notary public in any state.7 What the United States is authenticating however, is not that the institution is accredited, nor verifying the educational standards of the institution, but rather that a person, a school registrar, or even yourself attested to the fact that it was an authentic diploma. Petitioners urge the Court to adopt a similar practice to that of the U.S. and submitted an example of a diploma from the Central American Health Science University ("CAHSU") that was authenticated in Belize with the express qualification that the authentication was limited to the certification of the Chief Education Officer's signature.8 In their Supplemental brief, Respondents represent that the CAHSU is chartered by the Government of Belize and approved by the Ministry of Education.9 Regardless, the Court finds that different countries have different policies; there is no general and consistent practice of authentication among nations. To the contrary, it could be said that the general state practice with regard to the authentication of documents is to allow sovereign states the discretion whether or not to affix their seal.
Pursuant to 10 F.S.M.C. 503(1)(a) the office of foreign affairs has the duty and responsibility to "formulate policies for review and approval or disapproval of the President," and thereby set regulations.10 Whether or not educational documents or diplomas are authenticated in the FSM is determined by the policy set by the Department of Foreign Affairs. While it is best if those policies are written, in the absence of clearly established regulations, ad hoc decisions must be made. As the FSM is not a signatory of the Apostille Convention, they have been tasked with navigating a complex field of international relations that requires them to consider the interests of other countries as well as those of the FSM.11 The Department of Foreign Affairs made the representation that they have been in contact with the Indian Embassy in Manila, who have expressed a number of concerns regarding the qualifications and standards of the NTMC by formal communication. After researching the issue, the Department of Foreign Affairs made the determination not to authenticate the diplomas from the NTMC. That discretion is theirs.
The court finds that there is no universal, consistent, or accepted practice among states with regard to authentication of documents. To unify these diverse practices was very purpose behind the Apostille Convention. Unfortunately, the FSM is not a signatory to the Convention, and if it were, this decision would likely be unnecessary. Under the current circumstances, however, there is no clear non-discretionary duty on behalf of the Department of Foreign Affairs to authenticate the documents. Alternatively, NTMC can continue to work with the Department of Education to seek accreditation or regulation what would bring the College within the public domain.
Upon CONSIDERATION, of the representations of the parties, and of the file and record, the Court DENIES the writ of mandamus.
_______________________________Footnotes:
1 See Office of the Pub. Defender v. FSM Supreme Court, 4 FSM R. 307, 309 (App. 1990) ("The writ of mandamus is an extraordinary remedy issued to require a public official to carry out a clear non-discretionary duty"); In re Raitoun, 1 FSM R. 561, 562 (App. 1984) ("The writ of mandamus is an extraordinary remedy . . . to require an official to carry out a clear nondiscretionary duty"); Damarlane v. Santos, 6 FSM R. 45, 46 (Pon. 1993) ("a clear non-discretionary duty"); Nix v. Ehmes, 1 FSM R. 114, 118 (Pon.1982) ("the traditional use of writs of mandamus is to compel public officials to perform some clear duty which is ministerial in nature, that is which is not subject to the discretion or judgment of the official").
2 See United States v. Ionia Mgmt. S.A., 498 F. Supp. 2d 477, 482 n.1 (D. Conn. 2007) ("[Customary international law] is comprised of those practices and customs that States view as obligatory and that are engaged in or otherwise acceded to by a preponderance of States in a uniform and consistent fashion").
3 Opinio juris is "The principle that for conduct or a practice to become a rule of customary international law, it must be shown that nations believe that international law (rather than moral obligation) mandates the conduct or practice. BLACK'S LAW DICTIONARY 1125 (8th ed. 2004); See also RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(2), cmt. c (1987) ("For a practice of states to become a rule of customary international law it must appear that the states follow the practice from a sense of legal obligation (opinio juris sive necessitatis); a practice that is generally followed but which states feel legally free to disregard does not contribute to customary law. A practice initially followed by states as a matter of courtesy or habit may become law when states generally come to believe that they are under a legal obligation to comply with it. It is often difficult to determine when that transformation into law has taken place. Explicit evidence of a sense of legal obligation (e.g., by official statements) is not necessary; opinio juris may be inferred from acts or omissions.").
4 See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(1) (1987) ("A rule of international law is one that has been accepted as such by the international community of states: (a) in the form of customary law; (b) by international agreement; or (c) by derivation from general principles common to the major legal systems of the world.").
5 Often, what is determinative for the state is whether the institution is charted by statute. 40 F.S.M.C. 401 establishes the College of Micronesia as "a public corporation" and that it is to be regulated by the Department of Education. In contrast, NTMC is an entirely private institution with no state regulation.
6 Australian Embassy website: https://hongkong.china.embassy.gov.au/hkng/SRVAU_AutEduDoc.html (Dec. 12, 2023, 15:33 UTC+11:00).
7 U.S. Department of State website: https://travel.state.gov/content/travel/en/records-and-authentications/authenticate-your-document/authentication-of-american-academic-credentials.html (Dec. 12, 2023, 15:39 UTC+11:00).
8 The full certification is "I hereby certify that the above named signature of Ms. Javiola Aragon, Officer in Charge, School Resourcing Services, Ministry of Education is the true and correct signature."
9 http://www.cahsu.edu/aboutcahsu.html (Dec. 12, 2023, 15:45 UTC+11:00).
10 Pursuant to 10 F.S.M.C. 506, the President of the FSM is "authorized to promulgate regulations" governing the Office of Foreign Affairs.
11 Pursuant to 10 F.S.M.C. 501, the Department of Foreign Affairs "is responsible for the conduct of relations of the Federated States of Micronesia with foreign governments . . . and for advising officials of the State and National Governments of the Federated States of Micronesia of policies to be observed toward such governments and organizations."
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