June 14 - 18, 1999 Developments in international law, prepared by the Attorney-Editors of International Legal Materials The American Society of International Law
ILO Convention Concerning the Prohibition
and Immediate Elimination of the Worst Forms of Child
Labour, adopted at Geneva, and Recommendation, June
17, 1999
The General Conference of the International Labor Organization
("ILO") underlined in the Preamble to its Convention
that child labor is to a great extent caused by poverty,
and that the long-term solution "lies in sustained economic
growth leading to social progress, in particular poverty
alleviation and universal education."
According to the Convention, the worst forms of child
labor include: (i) all forms of slavery, such
as the sale and trafficking of children, debt bondage
and serfdom, and forced or compulsory labor, including
forced or compulsory recruitment of children for use
in armed conflict; (ii) child prostitution and pornography;
(iii) the use of a child for illicit activities, in
particular for the production and trafficking of drugs
as defined in the relevant international treaties; and
(iv) work which is likely to harm the health, safety
or morals of children. Article 3.
Harmful types of work will be defined by national laws
or regulations, and periodically revised by the competent
authorities. Article 4. The Convention also
calls upon each Member to establish and designate appropriate
mechanisms and programs to monitor the implementation
of its provisions. Articles 5-6. Finally,
the Convention stressed the importance of education
in eliminating child labor, the need for adequate assistance
for the rehabilitation of children that participated
in the worst forms of child labor, and the special situation
of girls in this respect. Article 7.
In the accompanying Recommendation, the General Conference
stressed that the programs under Article 6 of the Convention
should aim at: (i) identifying and denouncing
the worst forms of child labor; (ii) preventing the
engagement of children in or removing them from the
worst forms of child labor; (iii) giving special attention
to younger children, with special distinction to girls,
the problem of hidden work situations, and other groups
of children with special vulnerabilities or needs; (iv)
working with communities where children are at special
risk; and (v) informing, sensitizing and mobilizing
public opinion and concerned groups, including children
and their families. Article 2
The Recommendation provides guidelines for determining
hazardous types of work. Article 3. The
Recommendation also suggests that, for the purpose of
implementing the Convention, detailed information and
statistical data on the nature and extent of child labor
should be compiled and kept up to date to serve as a
basis for determining priorities for national action
for the abolition of child labor. Article 5.
In addition, Members should cooperate by gathering
and exhanging information concerning criminal offences,
as well as detecting, registering, and prosecuting those
involved and responsible for the worst forms of child
labor. Article 11. Finally, enhanced international
cooperation should include: (i) mobilization of
resources for national or international programs; (ii)
mutual legal and technical assistance; and (iii) support
for social and economic development, poverty eradication
programs, and universal education. Article 16.
BM http://www.ilo.org/public/english/child/conventions/ilo_conv/conv.htm http://www.ilo.org/public/english/child/conventions/ilo_conv/rec.htm
US Ninth Circuit Court of Appeals:
Government of Guam v. USA, No. 97-17140 (June 4, 1999)
The Government of Guam brought an action against the
United States to recover 24,000 acres of land.
Guam had been ceded by Spain in 1898 and, except for
a three year occupation by the Japanese during World
War II, has been administered by the Department of the
Navy. Guam relied on the 1950 Organic Act of Guam,
the Territorial Submerged Lands Act, and the doctrine
of aboriginal title to support its claim that it was
entitled to lands no longer needed for military purposes.
The district court granted summary judgment in favor
of the United States.
Guam first asserted that the language of the Organic
Act indicated a congressional intent that lands not
used for a military purpose were to be returned to Guam,
and that such an interpretation would allow them to
acquire additional lands under the Territorial Submerged
Lands Act. It also asserted that the act should
be construed as a continuing grant, because in general
federal land grants are interpreted in favor of native
inhabitants. The Ninth Circuit, in its de novo
review, responded that reading this intent into the
Act would have rendered subsequent language superfluous,
and that the doctrine of interpreting land grants in
favor of native inhabitants would require an ambiguity
in the text of the statute. The court rejected
Guam's arguments and held that the language of the statute
gave a clear indication of Congress' intent that the
Organic Act was a one-time land grant, and further refused
to read it in a fashion that would render any language
superfluous. The court also stated that since
the Organic Act did not constitute a continuing land
grant, the Territorial Submerged Lands Act would not
apply.
Finally, Guam invoked the doctrine of aboriginal title
in asserting its right to the land in question.
"Aboriginal title refers to the right of original inhabitants
of the United States to use and occupy their aboriginal
territory." Guam argued that it was the trustee
for the aboriginal inhabitants of Guam. The Ninth
Circuit disagreed, holding that the Government of Guam
was neither a tribe nor a member of a tribe, and that
only Congress had the power to delegate trusteeship
of land. Since Congress had not delegated trust
responsibility to the Government of Guam, the Ninth
Circuit ruled that it had no right to occupy the tribal
land of Guam, and affirmed the district court's summary
judgment. AH http://laws.findlaw.com/9th/9717140.html
WTO Panel Report: Turkey - Quantitative
Restrictions on Imports of Textile and Clothing Products,
WT/DS34/R (May 31, 1999)
In this dispute, India alleged that Turkey unilaterally
imposed quantitative restrictions ("QRs") on 19 categories
of Indian exports. Paras. 1.1; 9.32. India claimed
that the QRs violated Turkey's obligations under Articles
XI:1 and XIII of GATT, and Article 2.4 of the Agreement
on Textiles and Clothing ("ATC"). Para. 1.3. Article
XI calls for the elimination of QRs specifically where
Article XIII prohibits discriminatory administration
of QRs to WTO members. Paras. 9.61-9.62. Article
2.4 of the ATC prevents new restrictions on products
unless specific provision is made in GATT 1994.
Turkey defended its measures as lex specialis
under Article XXIV:5-9, which is designed to exempt
customs unions from WTO provisions. Paras. 9.26, 9.88
The Panel, rejecting Turkey's defense, held that the
19 measures were inconsistent with both GATT and ATC
provisions. Para. 10.1. The Panel recommended
that the Dispute Settlement Body ("DSB") request Turkey
to align its policy with its WTO obligations. Para.
10.3.
The Panel first noted its September, 1998 procedural
rulings. Para. 9.1. The Panel rejected Turkey's
claim that India failed to specify the measures at issue
and the products affected by the measures, holding that
under Article 6.2 of the Understanding on the Rules
and Procedures Governing the Settlement of Disputes
("DSU"), India had satisfied the requirement for a request
for WTO dispute settlement, namely the identification
of: 1) the controversial measures by type; 2) the date
of entry into force; and 3) the product coverage. Para.
9.3. Second, the Panel rejected Turkey's objection
that India's claims were only against Turkey, rather
than including the EC, when the measures at issue were
taken pursuant to a regional trade agreement ("RTA")
between Turkey and the EC. Para. 9.4. The Panel
found that it had no authority to make the EC a third
party to the process, and moreover found no general
rule prohibiting a Member from initiating a dispute
settlement proceeding against one party to a bilateral
or multilateral agreement from which the disputed measure
arose. Para. 9.5. Third, the Panel ruled that
since India did not claim a violation of the ATC beyond
the scope of GATT 1994, the DSB was the appropriate
forum for resolving the dispute. Para. 9.15.
The Panel held that India did not breach the GATT Article
XXII consultation requirement. First noting the
decision in EC - Bananas III, which concluded
that panels are not normally in a position to evaluate
the consultation process, the Panel found that its only
function was to ascertain: 1) whether consultations
were properly requested; 2) that the complainant was
ready to consult with the defendant; and 3) that the
60 day period had lapsed before the establishment of
a panel was requested by the complainant. Para. 9.24.
The Panel found Turkey in prima facie violation
of Articles XI:1 and XIII. Paras. 9.32; 9.26.
The Panel disagreed with Turkey's claim that the QRs
at issue were justified under Article XXIV of the GATT
because they were adopted as part of its customs union
with the EC. The Panel found that the measures
were "new" because Turkey did not have restrictions
that it could change on January 1, 1995, and the QRs
went into effect with the Turkey-EC joint communication
of November 7, 1997. Para. 9.76. The measures
were Turkish because they did not impose an obligation
on another national or supranational authority. Para.
9.36. The Panel noted that while Turkey and the
EC maintained similar policies, the Ankara Agreement
establishing their customs union created no legislative
body that could bind both Turkey and the EC. Paras.
9.36-9.40. The Panel also noted that the Turkey-EC
customs union was not a WTO Member and therefore had
no legal standing. Para. 9.41.
The Panel rejected the claim that Article XXIV "shields"
Turkey from "all other WTO obligations" once a customs
union is formed. Para. 9.27. The Panel stated
that the DSB and DSU procedures can be used on "any
matters arising from [Members'] . . . regional trade
arrangements." Paras. 9.48; 9.51. Rejecting Turkey's
claim that Article XXIV creates lex specialis
distinct from the GATT's commercial law, the Panel cited
specific language in Article XXIV:4 limiting the function
of prospective customs unions: "the purpose of a customs
union . . . should be to facilitate trade . . . and
not to raise barriers to the trade of other Members.
. . ." Para. 9.101.
Although Turkey argued that Article XXIV:5(a) should
be read as permitting such barriers so long as the overall
incidence of duties and other commercial regulations
did not increase, the Panel found that it neither authorizes
nor prohibits import restrictions otherwise incompatible
with GATT/WTO. Paras. 9.116 - 9.125. The Panel
agreed with Turkey that Article XXIV:8(a) may include
QRs under its definition of "restrictive regulations
of commerce," but found the article does not establish
whether measures adopted in furtherance of customs unions
are compatible with the GATT/WTO. At the request
of the parties, the Panel specifically refrained from
ruling on whether the Turkey-EC customs union's provisions
are consistent with the WTO. Para. 9.208. Accordingly,
the Panel found no lex specialis and that Turkey's
measures violated GATT Articles XI, XIII, and Article
2.4 of the ATC. MC
Download in Adobe pdf format http://www.wto.org/wto/dispute/1229d.pdf
In the Preamble, the Security Council welcomed the
Secretary-General's report on the Question of East Timor,
dated May 22, 1999 (S/1999/595). The Security
Council decided to establish until August 31, 1999 the
UN Mission in East Timor ("UNAMET") to organize and
conduct a popular consultation, scheduled for August
8, 1999. The consultation is to be based on a
direct, secret, and universal ballot, and it will determine
whether the people of East Timor accept the proposed
constitutional framework for special autonomy within
the Unitary Republic of Indonesia ("Indonesia").
The rejection of special autonomy would lead to East
Timor's separation from Indonesia. Para. 1.
The Security Council authorized the deployment within
UNAMET of up to 280 civilian police officers and 50
military liaison officers, to act as advisers to the
Indonesian Police at the time of consultation, and to
maintain contact with the Indonesian Armed Forces to
allow the Secretary-General to discharge his responsibilities
under the General Agreement and the Security Agreement.
Paras. 2-3. Furthermore, UNAMET will incorporate:
(i) a political component responsible for monitoring
the fairness of the political environment; (ii) an electoral
component responsible for all activities related to
registration and voting; and (iii) an information component
responsible for explaining to the people of East Timor
the terms of the General Agreement and the proposed
autonomy agreement. Para. 4. The Security Council
also noted the intention of the Governments of Indonesia
and Portugal to send an equal number of representatives
to observe all the phases of the consultation process,
both inside and outside of East Timor. Para. 5.
Finally, the Security Council stressed the responsibility
of the Government of Indonesia to maintain peace and
security in East Timor in order to ensure that the popular
consultation is carried out in a fair and peaceful way,
and to ensure the safety and security of UN and other
international staff and observers in East Timor. Para.
9. BM http://www.un.org/Docs/scres/1999/sc99.htm
European Commission: Report on
the Application of EC State Aid by the Member State
Courts
Commission rapporteurs identified cases before national
courts in which Article 92 and/or Article 93 of the
EC Treaty were discussed. The main aim of the
report was to determine which cases were brought by
the competitors of beneficiaries receiving state aid,
and if there should be a general harmonization of national
court procedures to secure the enforcement of EC State
aid rules. The information was compiled into two
tables showing available remedies and an analysis of
decisions.
The report discussed the various types of cases and
remedies occurring among the 116 involving Articles
92 and 93. The first type of case involved recovery
of aid by national authorities after a European Commission
finding that the aid in question was inconsistent with
Articles 92 and 93. Beneficiaries of the aid typically
challenged the recovery actions by invoking national
law principles. Although national authorities
usually prevailed, the report stated that complications
can arise when private intermediaries such as banks
are involved. Para. 4.1.1.
The most frequent type of case involved plaintiffs
who challenged tax or similar legislation financially
burdening them by identifying companies exempted in
alleged violation of Articles 92 and 93. Para.
4.1.2. The report stated that this particular
category does not give rise to concerns or suggestions.
Id.
The remaining types of cases were brought less often,
and involved actions either between different levels
of administrative bodies within a government, or brought
by competitors. Paras. 4.1.3 - 4.2. Among cases
brought by competitors, various types of remedies have
been made available by member states. Most states
have mechanisms for injunctive relief, recovery of the
aid granted, or recovery of damages from the member
state itself. Para. 4.2.1. Most national courts
also have liberal rules for standing, and in some cases
allow actions to be brought by parties that are not
active members of the domestic market in question. Id.
Analysis of these cases led to the report's primary
recommendation that the transparency of substantive
and procedural rules should be improved at the EC level.
Para. 4.2.1. Most national courts are hesitant
to grant injunctive relief because of the difficulties
in adjudicating complex EC law, and often require a
prima facie violation before an adjudication
would be considered. Id. However,
while not all types of actions are available in all
Member States, para. 4.3.4, most rapporteurs believed
that their home country's legal system worked satisfactorily,
and did not see a need to propose a general harmonization
of national court procedures to secure the enforcement
of EC State aid rules. Para. 4.3.7. AH http://www.europa.eu.int/comm/dg04/aid/en/app_by_member_states/index.htm
The States Parties to the UN Convention
on the Law of the Sea on May 24, 1999 elected seven
judges to the Law of the Sea Tribunal.
The judges elected to a second, nine-year term included
Joseph Akl (Lebanon), Paul Bamela Engo
(Cameroon), P. Chandrasekhara Rao (India), Anatoly
Lazarevich Kolodkin (Russian Federation), Vincente
Marotta Rangel (Brazil), and Rudiger Wolfrum
(Germany). The seventh judge, Jose Luis Jesus
of Cape Verde, was newly elected to the Tribunal.
http://www.un.org/Depts/los/Press/ITLOS/ITLOS_22.htm
International Law In Brief - Copyright 2000 - The American
Society of International Law Editors: Elizabeth J. Fabrizio, Esq., Peter
C. Hansen, Esq., David A. Levy, Esq. Interns: Matthew Casebolt, Adam Hill, Branislav
Maric, Adv.
To comment on this publication, send an e.mail message
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