April 19 - 30, 1999 Developments in international law, prepared by the Attorney-Editors of International Legal Materials The American Society of International Law
The Act provides for the establishment of the Scottish
Parliament ("the Parliament"). The members of
the Parliament are to be elected by simple majority
and proportional representation. sect. 1. The
Parliament has the power to pass laws in the form of
Acts of the Scottish Parliament. sect. 28.
The Acts are subject to Royal Assent before they
become legally binding. The Parliament is to enjoy
limited competence including: agriculture, fisheries
and forestry, economic development, education, the environment,
health, and local government. The Parliament of
the United Kingdom retains competence in matters such
as: the constitution, defense and national security,
foreign policy and relations with Europe, and the stability
of the UK's fiscal, economic, and monetary system. schedule
5.
According to the Act, the Scottish administration is
headed by the First Minister, Ministers, the Lord Advocate,
and the Solicitor General for Scotland. sect. 44.
The First Minister has the power to appoint the Scottish
Ministers and junior Ministers. sects. 47, 49.
Certain functions previously exercised by the Ministers
of the Crown are transferred to the Scottish Ministers,
however the Act provides for "shared powers" to be exercised
concurrently. sects. 53, 56. Additionally, "a
member of the Scottish Executive has no power to make
any subordinate legislation, or to do any other act,
so far as the legislation or act is incompatible with
any of the convention rights or with Community law."
sect. 57(2) If such an action is proposed or made,
it will be terminated or revoked by the order of the
Secretary of State (for Scotland), who is not a member
of the Scottish executive. This process also applies
to any subordinate legislation that exceeds the legislative
competence of the Parliament. sect. 58. Finally,
the Act provides for the Parliament to pass tax-varying
resolutions, based on the basic rate determined by the
Parliament of the United Kingdom, beginning with fiscal
year 2000-01. sects. 73-74.
Attached to the Act are additional Schedules which
define: constituencies, regions and regional members
for the purpose of the Act (Schedule 1); general and
specific reservations regarding the legislative competence
of the Parliament (Schedule 5); devolution issues (Schedule
6); and the procedure for subordinate legislation. (Schedule
7). BM
WTO Panel Report: European Communities
- Regime for the Importation, Sale and Distribution
of Bananas - Recourse to Article 21.5 by the European
Communities, WT/DS27/RW/EEC (April 12, 1999)
On September 27, 1997 the Dispute Settlement Body (DSB)
adopted the Appellate Body report on European
Communities - Regime for the Importation, Sale and Distribution
of Bananas (WT/DS27/AB/R) and the Panel's report
recommending that the European Communities (EC) bring
their import regulations on bananas into conformity
with GATT 1994 and GATS. The EC was given until
Jan. 1, 1999 to implement the recommendations and rulings
of the DSB.
Guatemala, Honduras, Mexico, and the United States
criticized the EC's new measures and consultations were
held on September 17, 1998. The EC agreed to such
consultations only in so far as they related to measures
that had already been formally adopted and published,
i.e., Regulation 1637/98. The EC refused to engage
in discussions concerning import licensing rules which
had not yet been adopted at that time and had not even
been submitted to the management committee as a preliminary
step for their definitive approval by the Commission.
On October 28, 1998 the Commission adopted Regulation
2362/98 which contained detailed rules implementing
Council Regulation 404/93 concerning the importation
of bananas. The EC subsequently requested the
establishment of a panel, pursuant to Art. 21.5 of the
DSU to find that the implementing measures must be presumed
to be WTO consistent unless their conformity has been
"challenged under the appropriate DSU procedures." para.
1.4
The Panel held that there is no provision in the DSU
authorizing a panel to compel a Member to join an Article
21.5 proceeding as a party. para. 4.12. The Panel
agreed with the EC that there is no presumption of inconsistency
attached to a Member's measures, but held that the failure
of another Member to challenge such measures or complain
cannot give rise to a presumption that the Member "accepts
the measures of the other Member as consistent with
the WTO Agreement." para. 4.13. Furthermore, the
Panel stated that since the EC's implementing measures
were found to be inconsistent with its WTO obligations
in the proceedings initiated by Ecuador, such measures
cannot be presumed to be consistent for the purposes
of this Panel. para 4.15. Consequently, the Panel
did not have to consider whether an original respondent
in a panel proceeding, such as the EC, is authorized
to initiate an Article 21.5 proceeding, but stated in
dicta that they "would not rule out the possibility
of using Article 21.5 in such a matter, particularly
when the purpose of such initiation was clearly the
examination of the WTO-consistency of implementing measures."
para. 4.18. TT
Download in Adobe pdf format http://www.wto.org/wto/dispute/27rweece.pdf
WTO Panel Report: European
Communities - Regime for the Importation, Sale and Distribution
of Bananas - Recourse to Article 21.5 by Ecuador, WT/DS27/RW/ECU
(April 12, 1999)
Ecuador brought this complaint before the Dispute Settlement
Body (DSB) alleging that the European Communities (EC)
failed to comply with the DSB's recommendations in the
matter European Communities - Regime for the Importation,
Sale and Distribution of Bananas (DS/27/R/ECU &
DS/27/AB/R) concerning the EC's import measures for
bananas. In particular, Ecuador argued that EC
Regulations 1637/98 and 2362/98 are inconsistent with
the EC's obligations under Articles I and XIII of GATT
1994 and Articles II and XVII of GATS. Additionally,
Ecuador requested that the Panel reaffirm its prior
rulings and interpretations, as confirmed and modified
by the Appellate Body as well as provide the EC with
more explicit guidance on compliance. The EC requested
that the Panel reject all of Ecuador's allegations and
find that the EC had complied with the original DSB's
recommendations and rulings.
The Panel rejected the EC's argument that under Article
21.5 of the DSU, the Panel can only verify the consistency
of measures taken to comply with the recommendations
in the matter and not consider other claims raised by
Ecuador. The Panel found that this limitation
is not present in the Panel's terms of reference nor
in the ordinary meaning of the terms of Art. 21.5 of
the DSU. paras. 6.2-6.12.
Ecuador also alleged that the division on the revised
EC import regime for bananas into (i) an MFN tariff
quota of 2,553,000 tonnes, and (ii) an amount of 877,700
tonnes reserved for traditional imports from ACP States
at a zero-duty level, fails to conform with the non-discrimination
requirements of Article XIII. The EC argued that
the amount of 857,700 tonnes constitutes an upper limit
on a tariff preference and is not a tariff quota subject
to Article XIII. The Panel, however, held that
Article XIII applied to the 857,700 tonnes limit because
a tariff quota is a quantitative limit on the availability
of a specific tariff rate. paras. 6.20-6.23. The
Panel found that imports from different non-substantial
supplier countries are not similarly restricted within
the meaning of Article XIII:1. Furthermore, the
Panel found that the allocation of a collective tariff
quota for traditional ACP imports under the revised
regime is inconsistent with Article XIII (1-2) of GATT.
paras. 6.24-6.29.
The Panel held that violation of Article I:1 of GATT
is waived by Article 168 of the Lome Convention, which
provides that the unlimited preferential tariff of zero
for non-traditional ACP banana imports within the "other"
category of the MFN tariff quota is required.
Additionally, the Lome waiver covers the tariff preference
of 200 Euro per tonne for out-of-quota imports of non-traditional
ACP bananas. paras. 6.70-6.80.
Regarding GATS, the Panel held that under the revised
regime, Ecuador's suppliers of wholesale services are
accorded de facto less favorable treatment than
EC/ACP suppliers of those services in violation of Articles
II and XVII of GATS. para. 6.134. The Panel also
found that the criteria for acquiring "newcomer" status
under the revised EC licensing procedures, as applied
to Ecuador's service suppliers, gave them de facto
less favorable conditions of competition than similar
EC service suppliers and is in violation of Article
XVII of GATS. BM
Download in Adobe pdf format http://www.wto.org/wto/dispute/27rwecue.pdf
WTO Decision by the Arbitrators:
European Communities - Regime for the Importation, Sale
and Distribution of Bananas - Recourse to Arbitration
by the European Communities under Article 22.6 of the
DSU, WT/DS27/ARB (April 9, 1999)
The United States, pursuant to Article 22.2 of the
DSU, requested the suspension of tariff concessions
to the European Communities in the amount of US$ 520
million. The EC objected that the proposed level
of suspension is not equivalent to the level of nullification
or impairment of benefits suffered by the US, as well
as the principles and procedures for suspension, set
out in Article 22.3 of the DSU, had not been followed.
In accordance with Article 22.6 of the DSU, the matter
was submitted to the original panel for arbitration.
para. 1.1
The EC argued that the US request was in reality a
cross-sectorial request, and that the request for suspension
of concessions had to be made coextensively with the
amount of nullification or impairment suffered "in each
of those sectors or under each of those agreements taken
separately." para. 3.8 The Arbitrators held, however,
that the ordinary meaning of Article 22.3(a) and its
"same sector(s)" concept included both "all goods" and
"distribution services", and that the findings of violations
under GATT and GATS in the original dispute "were closely
related and all concerned a single import regime in
respect of one product, i.e., bananas." para. 3.10.
Therefore, the US had the right to request suspension
of concessions in either, or both, of the two sectors,
up to the level of nullification or impairment suffered.
id. Furthermore, the Arbitrators held that
it must determine the inconsistency of the revised EC
regime first, in order to establish the equivalence
of the US concession suspensions. para. 4.8
The Arbitrators held that there is a continuation of
nullification or impairment of US benefits under the
revised EC regime (paras. 5.96-5.98), reaffirming the
findings in European Communities - Regime for the
Importation, Sale and Distribution of Bananas - Recourse
to Article 21.5 by Ecuador, supra.
Regarding the level of nullification or impairment
of US trade flows, the Arbitrators held that the benchmark
for calculation should be losses in the US exports of
goods to the EC and losses by US service suppliers in
or to the EC. para. 6.12. The Arbitrators held,
however, that the losses of US exports to third countries
should not be considered for calculation, because "there
is no right and no need under the DSU for one WTO Member
to claim compensation or request authorization to suspend
concessions for the nullification or impairment suffered
by another WTO Member with respect to goods bearing
the latter's origin or service suppliers owned or controlled
by it." para. 6.14 Otherwise, that would constitute
"double counting" of the same nullification and impairment,
which would be incompatible with the standard of "equivalence"
set forth in Article 22, paragraphs 4 and 7. para. 6.16.
Finally, in order to determine the level of nullification
or impairment, the Arbitrators compared the value to
the relevant EC imports from the US under the present
banana import regime with their value under a WTO-consistent
regime. para. 7.1. Consequently, the Arbitrators
determined that the level of nullification or impairment
suffered by the US was US$ 191.4 million per year, and
authorized the suspension accordingly. BM
Download in Adobe pdf format http://www.wto.org/wto/dispute/1735d.pdf
ICJ: Difference Relating to Immunity
from Legal Process of a Special Rapporteur of the Commission
on Human Rights, Advisory Opinion of April 29, 1999
Dato' Param Cumaraswamy, as Special Rapporteur of the
Commission on Human Rights on the Independence of Judges
and Lawyers, was conducting an investigation into allegations
concerning the independence of the judiciary, lawyers,
and court officials in Malaysia. para. 4. Cumaraswamy
commented on certain litigations that had been carried
out in Malaysia during an interview with International
Commercial Litigation magazine in November 1995.
para. 5. As a result, two companies filed suit
against Cumaraswamy for defamation in an amount totaling
US$ 24 million. id. The Secretary-General subsequently
issued a note confirming a note of the UN Legal Counsel,
which stated that Cumaraswamy was immune from legal
process under Article VI, sect. 22 of the Convention
on the Privileges and Immunities of the United Nations
(the Convention) because he was acting in his official
capacity as Special Rapporteur to the United Nations
when he was interviewed. para. 6. In June 1997
the Malaysian High Court for Kuala Lumpur concluded
that Cumaraswamy was not absolutely protected by the
immunity claimed because the Secretary-General's note
was merely "an opinion" with no binding force on the
court. para. 8.
The ICJ held that Special Rapporteurs appointed by
the Human Rights Commission, and its sub-commissions,
have been entrusted with a task by the United Nations
and are consequently "entitled to the privileges and
immunities provided for in Article VI, Section 22, that
safeguard the independence exercise of their functions."
para. 43. Whether particular actions of Special
Rapporteurs are within the scope of their mission is
a fact-specific inquiry, however the ICJ noted that
interviews with the press has become "standard practice"
for Special Rapporteurs of the Commission, and that
the words quoted in International Commercial Litigation
were uttered within the course of performance of Cumaraswamy's
mission. paras. 52-56. The Court further noted
that as the chief administrative officer of the UN,
it is up to the Secretary-General to assess whether
its agents were acting within the scope of their mission,
and that the Secretary-General has a duty to inform
the government of the member State. para. 60.
The member State has a corresponding duty to inform
its courts of the position taken by the Secretary-General.
para. 62.
The Court further noted that the question of immunity
from process is "distinct" from the question of compensation
for damages incurred as a result of actions of the United
Nations or its agents acting in their official capacity.
para. 66. While the UN may be responsible for
payment of compensation, the ICJ emphasized that it
is not to be dealt with in national courts, but rather
settled by the UN pursuant to Article VIII, Section
29 of the Convention.
Vice-President Weeramantry and Judges Oda and Rezek
appended seperate opinions. Judge Koroma appended
a dissenting opinion. Weeramantry stressed that
the UN should protect its officials from being tried
for acts performed in the course of their duties, but
that UN personnel have a corresponding duty to
ensure that whatever actions they take or statements
they make are always within the limits of the performance
of their duties.
Judge Oda stated the view that whether or not Malaysia
informed its courts of the position taken by the Secretary-General
was not a relevant issue in this case. Oda noted
that as a State, Malaysia was responsible for the actions
of its national courts in allowing the proceedings against
Cumaraswamy to be pursued, rather than being dismissed.
Finally, Judge Oda stated that Malaysia is obligated
under Article VIII, Section 30 of the Convention to
accept this Advisory Opinion as decisive, and that it
was not necessary for the Court to make an explicit
statement in paragraph 4. Judge Rezek emphasized
that the Government of Malaysia not only had a duty
to inform its courts of the finding of the Secretary-General,
but had a further obligation "to ensure that the
immunity is respected". (emphasis in original).
In dissent, Judge Koroma noted that the issue of whether
the Convention is applicable to Cumaraswamy is a mixed
question of law and fact which should not have been
submitted to the Court. paras. 14-15. Koroma further
stated the view that once the request was submitted,
the Court should have exercised its discretion and declined
to answer the question put to it. para. 15. http://www.icj-cij.org/icjwww/idocket/inuma/inumaframe.htm
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FR Yugoslavia has instituted
proceedings before the International Court of Justice
against the US, UK, France, Germany, Italy, the Netherlands,
Belgium, Canada, Portugal, and Spain, accusing the States
of bombing Yugoslav territory in violation of their
international legal obligation not to use force against
another State. Yugoslavia has requested the Court
to order the immediate cessation of the use of force
as a provisional measure. The ICJ will hold hearings
on Yugoslavia's request for provisional measures on
Monday, May 10th. http://www.icj-cij.org/icjwww/idocket.htm
NATO 50th Anniversary Summit
documents are available on the NATO Web site, http://www.nato50.gov
The Southwestern
Legal Foundation announces three CLE programs
of interest to international commercial practitioners.
International Commercial Litigation - Strategies
and Solutions will be held on June 14; the annual
Symposium on Private Investments Abroad will
be held on June 15-16; and Transnational Commercial
Arbitration - Litigating the Merits of an International
Arbitration will be held on June 17th.
All sessions will take place in the Westin Galleria
Hotel, Dallas, Texas. For further information,
contact Mark P. Smith at marksmith@swlegal.org
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