March 1 - 5, 1999 Developments in international law, prepared by the Attorney-Editors of International Legal Materials The American Society of International Law
ICJ: Case Concerning the Vienna
Convention on Consular Relations (Germany v. United
States of America) Request for the Indication of Provisional
Measures (Mar. 3, 1999)
Germany brought an application against the United States
before the International Court of Justice (ICJ) in a
dispute concerning an alleged violation of the Vienna
Convention on Consular Relations regarding the case
of Karl and Walter LaGrand, two brothers of German nationality
convicted of murder in Arizona. Karl LaGrand was
executed in February 1999 while Walter LaGrand's execution
was scheduled for March 3d. para. 12. Germany
maintains that both brothers were tried and sentenced
to death without being informed of their right to consular
assistance, pursuant to Art. 36(1)(b) of the Vienna
Convention. para. 2. Germany further contends
that until recently it was unaware that the LaGrands
were German nationals, and that when the LaGrands attempted
to raise the violation of the Vienna Convention before
the federal district court, the court held that
failure to previously raise the issue in state court
barred its admissibility under the municipal law doctrine
of "procedural default". paras. 3-4.
Germany asked the ICJ to declare that the US violated
its obligations under the Vienna Convention and that
consequently the criminal convictions were void, and
to require the US to provide reparation for the execution
of Karl LaGrand and restore Walter LaGrand to status
quo ante prior to the violation of the Convention.
para. 5. Because of the "grave and exceptional
circumstances" of Walter LaGrand's imminent execution,
Germany also filed an urgent request for provisional
measures prior to a determination on the merits by the
ICJ. paras. 9-10.
The ICJ ordered the US to "take all measures at its
disposal to ensure that Walter LaGrand is not executed
pending the final decision in these proceedings...[and]
transmit the present Order to...the Governor of Arizona
[who] is under the obligation to act in conformity with
the international obligations of the United States...."
para. 28. The Order marked the first time the
ICJ has granted a provisional measure proprio motu
(on its own initiative) and without any other proceedings
pursuant to Art. 75(1) of the Rules of the Court, because
the execution "would cause irreparable harm to the rights
claimed by Germany...." paras. 21, 24.
Judge Oda appended a declaration noting, inter alia,
that direct ICJ intervention in the fate of an individual
would be a departure from the function of the principle
UN judicial body, which is essentially for the purpose
of resolving inter-State disputes concerning the rights
and duties of States. Although Ota voted in favor
of provisional measures "on humanitarian grounds", he
stated that "if Mr. Walter LaGrand's rights as they
relate to humanitarian issues are to be respected then,
in parallel, the matter of the rights of victims of
violent crime (a point which has often been overlooked)
should be taken into consideration."
In a separate opinion, President Schwebel stated that
while he was not opposed to the substance of the Order,
he felt the Court misinterpreted its authority proprio
motu to order provisional measures pursuant to Art.
75(1) of the Rules of Court, and that Germany could
have brought its Application at an earlier date so as
to permit a timely hearing on the request for provisional
measures. AE http://www.icj-cij.org/icjwww/idocket/igus/igusorder/igus_iorder_19990303.htm
Editor's note: Walter LaGrand was executed by the state
of Arizona in its gas chamber on March 3, 1999.
Hong Kong Court of Final Appeal:
Hebei Import and Export Corp. v. Polytek Engineering
Co. Ltd., FACV No. 10/1998 (Feb. 9, 1999)
This case arose over the enforcement of an arbitral
award made by an Arbitration Tribunal within the China
International Economic and Trade Commission (CIETAC)
arising out of defective equipment supplied by Polytek
to Hebei. Hebei sought enforcement before the Hong Kong
Court of Final Appeal pursuant to the New York Convention
Earlier, Polytek had petitioned the Beijing No. 2 Intermediate
Court which refused to set aside the Award. Before
the Hong Kong Court, Polytek asserted that enforcement
of the award should be refused on grounds of public
policy arising out of apparent bias and due process
flaws. Polytek argued that it had no notice of the inspection
of the machinery when the Chief Arbitrator communicated
directly with technical experts and that after delivery
of the expert's report it was denied the opportunity
of a hearing to contest the findings of the experts.
The Hong Kong Court noted the "principle that a party
to an arbitration who wishes to rely on a non-compliance
with the rules governing an arbitration shall do so
promptly and shall not proceed with the arbitration
as if there had been no compliance, keeping the point
up his sleeve for later use", and held that the failure
to raise objections to the arbitral tribunal justified
enforcement of the award. In dicta, the Court
noted that the failure to raise the point before the
Beijing Court would probably be an additional ground
to enforce the award.
The Court further stated that in international arbitration,
the "public policy" exception to enforcement under the
New York Convention has been construed narrowly to refer
to the "fundamental conceptions of morality and justice"
of the forum. While the right of a party to present
its case before an impartial and independent tribunal
is "basic to the notions of justice and morality in
Hong Kong", on the facts the Court held that Polytek's
actions, taken as a whole, prevented it from asserting
that it was unable to present its case. FM http://www.info.gov.hk/jud/guide2cs/html/cfa/judmt/facv_10_98.htm
U.S. District Court, S.D. New York:
Bridgeman Art Library Ltd. v. Corel Corp., 97 Civ. 6232
(LAK) (S.D.N.Y. Feb. 18, 1999)
Bridgeman Art Library produced exacting color transparencies
of public domain paintings and held a certificate of
registration from the Register of Copyright for one
of its transparencies. Bridgeman sued Corel alleging
copyright infringement, asserting that the transparencies
were protected by UK copyright law and that the US had
agreed to give effect to the UK's laws through accession
to the Convention for the Protection of Literary and
Artistic Works (Berne Convention) and the Universal
Copyright Convention. Applying UK law, the court
granted summary judgment for Corel on the grounds that
the transparencies were not original and therefore not
valid subjects for copyright. On Bridgeman's motion,
the court reconsidered the issue of the scope of copyright
for exact photos of public domain works and held as
a matter of law that the works lacked sufficient originality
to be copyrightable under either US or UK law.
The court considered whether through the exercise of
the treaty power the US could constitutionally obligate
itself to enforce a foreign copyright where the copyright
law of that signatory State "does not limit copyright
protection to works that are original" as required by
the Copyright Clause of the US Constitution. The
court concluded that there was no real conflict of law
issue because the Berne and Universal Copyright Conventions
are not self-executing and both adopt national treatment
regarding the determination of copyright infringement
and remedies. Adherence to Berne therefore was
found to have no effect on the requirement of originality
within the Copyright Clause, and that under US copyright
law, while "probably the overwhelming majority of photographs"
have the "modest amount of originality" required for
copyright protection, "'slavish copying' although doubtless
requiring technical skill and effort, does not qualify".
TT
Download in Adobe pdf format http://www.nysd.uscourts.gov/courtweb/pdf/99-01031.PDF
U.S. First Circuit Court of Appeals:
United States v. Julio-Cardales, No. 97-2383 (Feb. 26,
1999)
Julio-Cardles, Hernandez, and Peterspn appealed their
conviction for aiding and abetting in the possession
with intent to distribute marijuana on board a vessel
subject to the jurisdiction of the United States in
violation of the Maritime Drug Law Enforcement Act (MDLEA).
The MDLEA defines a vessel subject to the juridiction
of the United States as "a vessel registered in a foreign
nation where the flag nation has consented or waived
objection to the enforcement of United States law by
the United States", inter alia. 46 USC
app. sect. 1903(c)(1)(C).
The First Circuit noted that the United States had
jurisdiction under the territorial principle of international
law in that the flag nation, Venezuela, consented to
the application of US law to the persons aboard the
ship, as well as under the "protective principle" of
international law on that grounds that Congress determined
that drug trafficking aboard vessels threatens the security
of the United States. The court further rejected
claims of due process violations, holding that "when
individuals engage in drug trafficking aboard a vessel,
due process is satisfied when the foreign nation in
which the vessel is registered authorizes the application
of United States law to the persons on board the vessel.
When the foreign flag nation consents to the application
of United States law, jurisdiction attaches under the
statutory requirements of the MDLEA without violation
of due process or the principles of international law
because the flag nation's consent eliminates any concern
that the application of United States law may be arbitrary
or fundamentally unfair." FM http://laws.findlaw.com/1st/972383.html
WTO: European Communities - Regime
for the Sale and Distribution of Bananas, Arbitration
under Article 22.6 of the DSU, Communication from the
Arbitrators, WTO Doc. WT/DS27/48 (Mar. 2, 1999)
In a communication from the Chairman of the Arbitrators
to the Chairman of the Dispute Settlement Body, the
Arbitrators stated that they issued an initial decision
regarding the scope of their work and requested additional
information in order to "take a final view" regarding
the WTO inconsistency, vel non, of the revised EC banana
regime, and the level of suspension of concessions equivalent
to any found nullification and impairment. The
Arbitrators stated that once they receive and analyze
the requested information, they will be in a position
to issue a final decision "soon thereafter". DL http://www.wto.org/wto/dispute/ds27-48.htm
Arbitral Tribunal for Dispute Over
Inter-Entity Boundary in Brcko Area: Final Award (Mar.
5, 1999)
At the 1995 Dayton Conference, Bosnia and Herzegovina
(BIH) and the Republika Srpska (RS) were unable to reach
an agreement as to which entity should control the Brcko
area. All parties then agreed that the final decision
would be left to the International Arbitral Tribunal.
para. 1. The Tribunal warned the RS in an earlier
ruling that "the RS would have to carry 'the burden
of demonstrating very clearly that it has truly reversed
course and committed itself to an apparently full program
of full Dayton compliance.'" para. 4. Instead,
the evidence during the 1999 Vienna hearings showed
obstructions against the attainment of Dayton's and
the Tribunal's objectives taking place. para. 6.
The Tribunal made clear that "if pro-Dayton elements
had been able to implement their programs in the Brcko
area during the last year, the Tribunal's present decision
... might not have been necessary, but the SDR/SRS intransigence
has left the Tribunal with no choice." para. 7.
The Tribunal criticized in particular the lack of refugees
and displaced persons returning to their homes of origin.
para. 16. Because Serb displaced persons are now
living in homes that lawfully belong to Bosniacs and
Croats that were driven out in the ethnic cleansing
process, it would be necessary for a substantial number
of Serb displaced persons to move away in order to make
housing available to returning Bosniacs and Croats in
today's essentially 100% Serbian Brcko Grad. para. 18.
The Tribunal stated that these two-way returns have
been impeded by the Serbian Democratic Party (SDS),
whose primary goal is the maintenance of Serbian
"ethnic purity" in the Brcko region in clear defiance
of Dayton's principle objectives. para. 19. Dayton's
multi-ethnic objective could not be achieved because
during 1998 hard-line SDS officials in Brcko encouraged
Brcko's Serbian displaced persons to stay where they
were even if recovery of their own homes elsewhere was
a real possibility. paras. 22-23. Although there
was little hard evidence of official encouragement of
intimidation of Bosniacs and Croats trying to return
to Brcko, the Tribunal noted a serious lack of political
will to prevent such intimidation from occurring. para.
28. The Tribunal further criticized the failure
of the Serbs to facilitate a local multi-ethnic government.
paras. 32-33.
The Tribunal decided that each entity shall be deemed
to have delegated all of its power of governance within
the pre-war Brcko Opstina to a new multi-ethnic democratic
government to be known as "The Brcko District of Bosnia
and Herzegovina" under the exclusive sovereignty of
Bosnia and Herzegovina. paras. 9 and 34.
The new District government will be subject to the powers
of the common institutions of BIH in those areas which
are the responsibility of the BIH common institutions.
In other respects the District government will operate
on a self-governing basis. paras. 10, 34. Moreover,
the entire territory on the new District will be held
in condominium by both entities simultaneously. para.
11. The intent is to create a single, unitary
multi-ethnic government instead of the previously existing
two entities exercising governmental powers and three
municipal governments. para. 36. No entity police
force will be allowed to enter the District in any official
capacity. para. 40. Neither entity will be allowed
to base any of its military or other armed forces in
the District. para. 41.
The Tribunal also made recommendations to the High
Representative and to the international community to
encourage Serb displaced persons presently residing
in Brcko to return to the Federation and to revitalize
the District's economy respectively. AE http://www.state.gov/www/regions/eur/bosnia/990305_arbiter_brcko.html
The International Law Students
Association (ILSA) is seeking interns for
immediate work on its projects, including the 40th Anniversary
Phillip C. Jessup International Law Moot Court Competition.
For further information, contact Laura Title, ILSA Executive
Assistant, by e.mail at ilsa@access.digex.net
International Law In Brief - Copyright 2000 - The American
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