April 15-28, 2000 Developments in international law, prepared by the Attorney-Editors ofInternational Legal Materials The American Society of International Law
IDA - UNTAET: Trust Fund for East
Timor Grant Agreement (February 21, 2000)
Under a Grant Agreement ("Agreement"), the World Bank's
International Development Association ("IDA") shall
serve as Trustee for monies granted under the Trust
Fund for East Timor ("TFET") to the U.N. Transitional
Administration of East Timor ("UNTAET") for the purposes
("Project") of: 1) strengthening the capacity of East
Timor sub-districts and villages to plan and implement
development decisions; 2) building and reconstructing
economic infrastructure; 3) supporting productive economic
activities; and 4) supporting cultural heritage and
social reconciliation. Preamble; Schedule 2.
The IDA shall make available to UNTAET the TFET Grant
in the amount of $7 million, but is not obligated to
make any payment except insofar as funds are received
for the purposes of U.N. Security Council Resolution
1272. Sect. 2.01. UNTAET may open a U.S. dollar-denominated
special deposit account for the purposes of the Project.
Id. UNTAET agrees to carry out the Project with
due diligence and efficiency through the UNTAET Office
of Governance and Public Administration. Sect. 3.01.
UNTAET will conform with appropriate administrative,
agricultural, engineering, environmental, financial
and social practices, (Id.), and will promptly
provide as needed the funds, facilities, services and
other resources required for the Project. Id.
Funds for sub-district projects may not: 1) go towards
military or paramilitary purposes; 2) be related to
the manufacture or use of environmentally hazardous
goods (including asbestos and pesticides), arms or drugs;
or 3) include financing of government salaries. Schedule
4, Sect. 3(e). Prior to the issuance of proposal requests
to consultants, the proposed plan for the selection
of Project consultants is to be furnished to the IDA
for review and approval. Schedule 3, Sect. II, Part
D.1. UNTAET will also each fiscal year furnish the IDA
with an independent audit of its operations, resources
and expenditures. Sect. 4.01. The IDA may suspend UNTAET's
right to withdraw funds under certain circumstances.
Art. V; Schedule 6, Sect. 6.02. Disputes between the
IDA and UNTAET under the Agreement shall be submitted
to an Arbitral Tribunal if not resolved by the parties.
Schedule 6, Sect. 9.03.
An UNTAET regulation establishing development councils
at the village and sub-district levels is specified
as a condition to the Agreement's effectiveness. Article
6.01(c); Schedule 4. (See also abstract
of UNTAET Regulation 13.) UNTAET must also take
measures to avoid or minimize the acquisition of land
or assets of villagers, to avoid their displacement,
and if necessary arrange for compensation and resettlement.
Schedule 4, Sect. 8. The Project is scheduled to be
completed by June 30, 2001. Schedule 2. JJ
U.K. High Court of Justice, Queen's
Bench Division: Irving v. Penguin Books Ltd.,
1996-I-1113 (April 11, 2000)
David Irving, a World War II and Nazi Germany historian,
brought a libel action against Penguin Books Ltd. and
U.S. author Deborah Lipstadt ("Defendants") for allegedly
disparaging remarks made in Lipstadt's book "Denying
the Holocaust -- The Growing Assault on Truth and Memory."
Irving claimed that the book accused him of being a
Nazi apologist and admirer of Hitler, and was part of
a "concerted attempt" and a "sinister international
campaign" to ruin his reputation as a historian. Paras.
1.2, 3.8.
The Defendants did not accept Irving's interpretation
of the contested passages, and in a justification defense
asserted that Irving was discredited as a historian
for denying the Holocaust and persistently distorting
the historical record to depict Hitler in a favorable
light. Paras. 1.2, 4.2. After concluding that the contested
passages referred to Irving, Justice Gray concluded
that the passages did in fact bear meanings defamatory
to Irving, including that: 1) Irving is an apologist
for and partisan of Hitler; 2) Irving is one of the
most dangerous spokespersons for Holocaust denial; and
3) Irving is discredited as a historian. Para. 2.15.
Justice Gray further concluded that the book represented
a "deliberate attack" on Irving to discredit him and
undermine credence that might otherwise be given to
his Holocaust denial claims. Para. 3.9. Justice Gray
did not find, however, that Irving was the victim of
a conspiracy in which the Defendants were implicated.
Id.
Justice Gray noted that the Defendants under a justification
defense must prove, under a higher standard of proof
than normally applied in civil cases, the substantial
truth of the defamatory imputations. Paras. 4.7, 4.10.
After conducting an exhaustive factual review of events
involving Hitler, the Third Reich, the Holocaust, and
Irving himself, and after finding much to commend Irving's
role as a military historian, (Para. 13.7), Justice
Gray found that the Defendants' criticisms were "almost
invariably well-founded," and that Irving had "significantly
misrepresented" what the evidence revealed. Para. 13.9.
Justice Gray also noted that the evidence of "historians
of the greatest distinction" supported the Defendants'
criticisms. Para. 13.10.
After making a number of specific factual conclusions
concerning the review, Justice Gray concluded that Irving
was a Holocaust denier, an anti-Semite, a racist, and
an associate of several extreme right-wing individuals
and U.S. organizations. Paras. 13.95, 13.101, 13.106,
13.114-15. Justice Gray also noted that "anti-semitism
is a form of racism," (Para. 13.106), and found that
Irving's "errors" converged to exonerate Hitler and
"reflect Irving's partisanship for the Nazi leader."
Para. 13.142.
Justice Gray concluded that the Defendants had proved
the substantial truth of most of the imputations, (Paras.
13.165-66), and that these were of "sufficient gravity"
to render the remainder of no "material effect on Irving's
reputation." Para. 13.167. Justice Gray deemed the justification
defense successful, and ruled for the Defendants. Paras.
13.168, 14.1. PH
U.S. Second Circuit Court of Appeals:
In Re: Air Crash Off Long Island, New York, on July
17, 1996, No. 98-9622 (March 29, 2000)
Trans World Airlines, Inc., The Boeing Company and
Hydro-Aire, Inc. ("Appellants") appealed a decision
by the U.S. District Court for the Southern District
of New York ("District Court") denying the Appellants'
motion to dismiss claims for non-pecuniary damages brought
by the relatives and estate representatives of 213 victims
("Appellees") killed in the July 17, 1996 TWA Flight
800 airplane crash eight nautical miles off Long Island,
New York.
The District Court had denied the Appellants' argument
that Section 2 of the Death on the High Seas Act ("DOHSA")
limited the Appellees' recovery to "a fair and just
compensation for the pecuniary loss sustained by the
persons for whose benefit the suit is brought." The
District Court concluded that DOHSA applies only where
death occurred both on the "high seas" (i.e.
beyond U.S. territorial waters) and more than a marine
league from the shore. The District Court further concluded
that U.S. territorial waters had been extended by Presidential
Proclamation to twelve nautical miles, and so ruled
that: 1) the crash did not occur on the high seas; and
2) DOHSA did not limit recovery.
The U.S. Second Circuit Court of Appeals ("Court")
noted that the case was one of first impression for
the Second Circuit, and affirmed. The Court acknowledged
that the term "high seas" is ambiguous both in DOHSA's
legislative history and in a number of U.S. Supreme
Court and lower court decisions. The Court accepted,
however, the Appellees' argument that "high seas" equates
to "international waters" (i.e. those beyond
U.S. territorial waters). The Court noted that Congress
had enacted DOHSA to provide a uniform cause of action
where none had previously existed, and which arose beyond
U.S. federal and state territorial limits, within which
common-law remedies were available.
The Court noted that while the U.S. territorial sea
had been one marine league (i.e. three nautical
miles) for nearly two centuries, Presidential Proclamation
No. 5928 ("Proclamation") extended the U.S. territorial
sea in 1988 from three to "[twelve] nautical miles from
the baselines of the U.S. determined in accordance with
international law." The Court determined that "[t]he
background and legislative history of DOHSA demonstrate
Congress's intent to exclude all state and federal territorial
waters from its scope," and consequently held the twelve
nautical mile mark as the starting point of DOHSA's
application.
The Court also concluded that Congress gave priority
to preserving pre-existing remedies over security uniformity
in admiralty law. The Court noted that it would be "particularly
inappropriate" to displace pre-existing state or federal
remedies under which remedies could be more generous
than those under DOHSA.
Judge Sotomayor noted in dissent that when DOHSA was
enacted, the start of the "high seas" and the end of
U.S. territorial waters coincided at the one marine
league limit of the states' territorial seas. Judge
Sotomayor asserted that Presidential Proclamation No.
5928 merely changed the meaning of U.S. territorial
seas for international rather than domestic purposes,
and that Congress had not intended DOHSA, as domestic
law intended to preserve state remedies, to be affected
by a change in the meaning of the U.S. territorial sea
under international law. MB
UNTAET: Regulation On the Establishment
of Village and Sub-District Development Councils for
the Disbursement of Funds for Development Activities,
No. 2000/13 (March 10, 2000)
Pursuant to U.N. Security Council Resolution 1272,
previous UNTAET regulations, and the IDA-UNTAET Trust
Fund for East Timor Grant Agreement (see abstract
of TFET Grant Agreement), UNTAET established
a system of village and sub-district councils for the
allocation of development funds. Preamble; Sect. 1.2.
These bodies do not, however: 1) exercise the legislative,
executive or judicial power of government; 2) prejudice
any constitutional or institutional development provided
by UNTAET in East Timor; or 3) duplicate or replace
the role of traditional and local leaders of villages
and sub-districts. Sects. 1.3-1.4.
Village councils shall consist of at least two democratically
selected representatives from each village hamlet, with
a total of between ten and sixty. Sect. 2.1. In principle,
a village council shall consist of an equal number of
women and men. Id. The selection of hamlet representatives
is organized by a selection committee consisting of
the hamlet chief and two trusted members of the hamlet
community, one male and one female. Sect. 4.1.
The regulation establishes a selection procedure for
nomination for candidates, who must: 1) be over 18 years
old; 2) be usually resident in the hamlet; 3) not be
traditional or local leaders; and 4) have sufficient
time for village council work. Sects. 4.2-4.3. The first
selection process shall involve a term of one year,
while later processes will involve three-year terms.
Sect. 5.1. Representatives shall not serve more than
three terms. Id. Voting procedures are established,
and the franchise is given to all residents either over
17 or married. Sects. 5.2-5.4.
The village council selects a Chairperson and Deputy
Chairperson from among themselves. Sect. 6.1. The Chairperson
serves as an ex officio village representative
to the sub-district council. Id. Before each
sub-district council meeting the village council shall
choose from among themselves other sub-district council
representatives, at least one of whom is a woman. Sects.
7.3(d), 10.3. Sub-district councils consist of between
ten and forty representatives from village councils.
Sect. 10.1.
Village councils are responsible for: 1) identifying,
planning and carrying out development activities, programs
and contracts using allocated funds received from any
source; 2) drawing up an annual village development
work plan; 3) submitting twice per year written and
oral progress reports to traditional and local leaders,
as well as the village community; and 4) convening public
hamlet and village meetings to discuss development plans
and activities. Sect. 7. Voting procedures are established,
as well as a village monitoring team system for correcting
and reporting to UNTAET any poor workmanship or bad
practice. Sects. 8-9, 11.3.
Sub-district councils shall: 1) allocate development
funds provided at their level from any source; 2) carry
out development projects and contracts; 3) monitor construction
and development in villages, and report poor workmanship
to UNTAET; 4) assist and stimulate development activities
within the sub-district and between villages; and 5)
resolve development disputes between villages. Sects.
11; 14(g). Each sub-district council also selects two
representatives, at least one of whom shall be a woman,
to assist the UNTAET District Administrator and national
agencies in development planning, implementation and
monitoring. Sect. 14. Voting and consensus procedures,
open meetings, written decision requirements, and the
selection and work of financial supervisors are established.
Sects. 12-13. PH
The ASIL has issued two new Insights.
The first, by Judson Berkey and entitled "Implications
of the WTO Protections for Food Geographic Indications",
is located at http://www.asil.org/insigh43.htm.
The second, by Michael Scharf and entitled "A Preview
of the Lockerbie Case," is located at http://www.asil.org/insigh44.htm.
International Law In Brief - Copyright 2000 - The American
Society of International Law Editor: Peter C. Hansen, Esq. Interns: Matthew Brinton, Jae Jo, Branislav
A. Maric, Adv., Sam Zengotitabengoa
To comment on this publication, send an e.mail message
to Peter C. Hansen, Editor at phansen@asil.org
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