July 22 - August 4, 2000 Developments in international law, prepared by the Attorney-Editors ofInternational Legal Materials The American Society of International Law
U.S.-Germany: Agreement concerning
the Foundation "Remembrance, Responsibility and the
Future" (July 17, 2000)
The Agreement between the U.S. and Germany ("Parties")
is intended to: 1) complement the creation of the Foundation
"Remembrance, Responsibility and the Future"; and 2)
foster an "all-embracing and enduring legal peace" for
German companies with respect to the Nazi era and World
War II. Art. 3(1). The Parties stated that it would
be in their interests to have the Foundation serve as
the "exclusive remedy and forum" for all existing or
potential Nazi-era and World War II claims against German
companies. Arts. 1(1), 2(1).
The permanent task of the Foundation's "Remembrance
and Future Fund" is to: 1) promote understanding between
nations; 2) serve social justice and international cooperation
in the humanitarian sector; 3) support youth exchange
programs; 4) keep alive the memory of the Holocaust,
as well as the threat posed by tyranny and totalitarian,
unlawful regimes; and 5) benefit the heirs of those
who have not survived. Annex A(1).
The Foundation shall provide former slave laborers
(i.e. persons confined and subject to forced
labor) with up to DM15,000 each. Annex A(4). Former
forced laborers (i.e. persons deported to the
German Reich or to German-occupied territory and held
in prison-like or extremely harsh conditions not covered
by the slave laborer definition), shall be eligible
for up to DM5,000 each. Id. Eligibility for all
laborers is limited to survivors and the listed heirs
of those who died after February 15, 1999. Id.
Victims of "other non-labor personal injury wrongs,"
including medical experimentation, shall also be eligible
to certain limited payments. Id. The Foundation
shall also provide a DM50 million remedy for all "non-racially
motivated" wrongs by German companies directly resulting
in property loss or damage during the Nazi era. Annex
A(7). All eligibility decisions shall be based on "relaxed
standards of proof," (Annex A(9)), and the structure
and operation of Foundation shall assure swift, impartial,
dignified and enforceable payments. Annex B(9).
The Parties agreed that the Agreement shall affect
neither unilateral decisions nor bilateral or multilateral
agreements that dealt with the consequences of the Nazi
era and World War II. Art. 3(2). The U.S. shall not
raise any reparations claims against Germany, and shall
oppose any challenge to German foreign sovereign immunity
in regard to claims concerning the consequences of the
Nazi era and World War II. Arts. 2, 3(3)-(4). MS
ECHR: A.D.T. v. United Kingdom,
No. 35765/97 (July 31, 2000)
The Applicant, a British citizen, was convicted of
gross indecency under the British Sexual Offences Act
1956 ("Act"), on the basis of seized video tapes which
showed the Applicant and four other adult men engaging
in homosexual acts. Paras. 8-10. The Applicant subsequently
appealed to the European Court of Human Rights ("Court"),
claiming a violation of the right to private life under
Article 8 of the European Convention on Human Rights
("Convention"). Para. 20.
The Court noted that the Sexual Offences Act 1967 modified
the Act by providing that a male homosexual act is not
to be treated as private and legal when inter alia
more than two persons take part or are present. Paras.
16-17. The Court further noted that British law does
not contain like provisions applicable to similar heterosexual
behavior, or to any private homosexual acts between
consenting adult women. Paras. 18-19.
The Court rejected the U.K. argument that the sexual
activities in the present case fell outside the scope
of Convention Article 8 due to: 1) the number of individuals
present; and 2) the fact that the acts were recorded
on tape. Para. 21, 25-26. The Court recalled that the
"mere existence" of legislation prohibiting private
male homosexual conduct may "continuously and directly
affect a person's private life." Para. 23. The Court
found no evidence that the Applicant intended to distribute
the tape, and on this basis concluded that the prosecution
was based solely on the homosexual conduct. Paras. 25,
37.
The Court found an interference with the Applicant's
right to private life that was unjustified in light
of: 1) the absence of any public health considerations;
and 2) the purely private nature of the behavior. Paras.
26, 37-38. The Court held that there had been a Convention
Article 8 violation, and awarded the Applicant 20,929.05
pounds sterling in damages and 12,391.83 pounds sterling
for costs and expenses. Paras. 39, 42-46. MS
U.S. District Court for the Eastern
District of New York: In re Holocaust Victim Assets
Litigation, 96 Civ. 4849 (ERK) (MDG) (Consolidated
with 99 Civ. 5161 and 97 Civ. 461) (July 26, 2000)
The United States Court for the Eastern District of
New York ("Court") approved a class-action Settlement
Agreement ("Agreement") between Holocaust victims ("Plaintiffs")
and Swiss banks ("Defendants"), finding it fair, reasonable
and adequate.
The Agreement sets up a US$1.25 billion fund to be
created in four annual installments over three years.
The Agreement does not contain a plan for distribution
of the fund, but establishes a "fair and open mechanism"
for the development of criteria for distribution and
allocation determinations. In exchange, and with certain
limited exceptions, the settling plaintiffs have agreed
to discharge irrevocably and unconditionally all Holocaust
and World War II claims against the settling defendants
and certain non-defendants.
The fund shall compensate five certified classes: 1)
a Deposited Assets Class consisting of people with claims
relating to deposited assets; 2) a Looted Assets Class
consisting of people with claims relating to looted
or cloaked assets; 3) a Slave Labor Class I consisting
of people who actually or allegedly performed slave
labor for companies or entities that subsequently deposited
the revenues or proceeds of that labor; 4) a Slave Labor
Class II consisting of former slave laborers for a corporation
or business concern organized or based in Switzerland;
and 5) a Refugee Class consisting of victims or targets
of Nazi persecution who sought entry into Switzerland
to avoid Nazi persecution, and who were subsequently
either denied entry or deported, detained, abused or
otherwise mistreated.
The Court noted in its review of objections and comments
that while the Agreement precluded recovery of looted
art from Swiss business and governmental agencies, Swiss
law already imposed "substantial, if not insurmountable"
obstacles to such recovery. The Court for this reason
held that it would "simply be irresponsible" to reject
the Agreement on the ground of the preclusion. MS
Editor's Note: The order is subject to a final judgment
that shall be rendered after the defendant banks have
responded to the amendments of the Settlement Agreement.
WTO Panel Report: United States
-- Section 110(5) of the U.S. Copyright Act, WT/DS160/R
(June 15, 2000)
The European Communities ("EC") initiated WTO panel
proceedings against the U.S. for alleged incompatibility
between Section 110(5) of the U.S. Copyright Act of
1976 ("Act") and the 1971 Berne Convention ("Convention")
as incorporated into the TRIPS Agreement ("TRIPS").
Paras. 1.2, 1.7, 3.1. The EC alleged that the disputed
provisions of the Act caused prejudice to the legitimate
rights of copyright owners and the EC under the Convention,
which awards to authors of dramatic, dramatico-musical
and musical works the exclusive right to authorize any
public communication of their work's performance. Paras.
3.1, 6.23.
Exemptions under the Act include: 1) transmissions
publicly received on a single-receiving homestyle apparatus
("Subparagraph A Exemption"); and 2) non-dramatic musical
works originating from a radio, television, cable or
satellite broadcast for public reception ("Subparagraph
B Exemption"). Para. 2.2. The latter exemption imposes
eligibility requirements on the establishment's business
nature and size, as well as on the type of broadcast
equipment used. Id.
The Panel in its compatibility analysis applied inter
alia the TRIPS Article 13 requirement that all exclusive
rights exceptions: 1) be confined to certain special
cases; 2) do not conflict with a normal exploitation
of the work; and 3) do not unreasonably prejudice the
legitimate interests of the right holder. Para. 6.74.
The Panel found the Subparagraph A Exemption to accord
with TRIPS Article 13 because it: 1) was limited in
its scope and reach: 2) could not acquire economic or
practical importance for the right holders of musical
works; and 3) did not cause significant losses or unreasonable
prejudice to the right holders. Paras. 6.159, 6.218-19,
6.271-72, 7.1.
The Panel held, however, that the Subparagraph B Exemption
did not accord with TRIPS Article 13 because: 1) the
exemption covered a "substantial majority" of eating
and drinking establishments; 2) its scope conflicted
with the right holder's "normal exploitation" rights
under the Convention; and 3) there was no showing that
the exemption did not unreasonably prejudice right holders.
Paras. 6.133, 6.210-11, 6.265-66, 7.1.
The Panel recommended to the Dispute Settlement Body
to request the U.S. to bring Subparagraph (B) of Act
Section 110(5) into conformity with its TRIPS obligations.
Para. 7.2. MF
OAS: Final Report of the Third
Meeting of Ministers of Justice or of Ministers or Attorneys
General of the Americas (March 3, 2000)
The General Assembly of the Organization of American
States ("OAS") convened Ministers of Justice, Ministers
and Attorneys General of the Americas (Participants)
in Costa Rica for their Third Meeting. Convocation.
The Participants urged Member States to: 1) identify
national agencies to investigate and prosecute cyber-crime;
2) enact and harmonize national cyber-crime legislation;
and 3) cooperate and exchange information on cyber-crime,
including through the OAS website. Conclusions and
Recommendations, Sect. 1.
The Participants welcomed the progress achieved in
the area of extradition and mutual legal assistance.
Conclusions and Recommendations, Sect. 2. The
Participants resolved to strengthen cooperation and
mutual confidence in this field by establishing an information
network that "should rely as far as possible" on electronic
media, especially the Internet. Id. The Participants
additionally exhorted those Member States which have
not already ratified or acceded to inter-American conventions
on juridical and judicial cooperation to do so. Id.
The Participants bore in mind the importance of health
in prisons, and invited Member States to seek ways to
reduce overcrowding in prisons using, inter alia,
alternatives to imprisonment. Conclusions and Recommendations,
Sect. 3. The Participants urged Member States to share
their experiences regarding: 1) the spread of, inter
alia, HIV/AIDS and addictions in prisons; and 2)
private enterprise participation in the construction
and/or management of penitentiaries. Id.
The Participants reiterated their commitment to improve
access to justice through alternative methods of conflict
resolution, as well as other "flexible and expeditious
judicial and extrajudicial means" that would contribute
to democratic development. Conclusions and Recommendations,
Sect. 4. The Participants also urged Member States to
educate their citizens in the use of dialogue, negotiation,
mediation and other forms of dispute resolution. Id.
The Participants welcomed the establishment of the
Justice Studies Center of the Americas ("Center") in
Santiago, Chile. Conclusions and Recommendations,
Sect. 5. The Participants urged Member States and OAS
Permanent Observers, as well as the Center's Board of
Directors, to promote the activities of the Center.
MF
Editor's Note: The Meeting's Conclusions and Recommendations
were: 1) approved by the OAS Permanent Council at its
session held on April 5, 2000; and 2) adopted by the
OAS General Assembly at its session in Canada on June
5, 2000.
International Law In Brief - Copyright 2000 - The
American Society of International Law Editors: Peter C. Hansen, Esq., Branislav
A. Maric Interns: Amit Chugh, Marina Fedorova, Marianne
Schulze
To comment on this publication, send an e.mail message
to Peter C. Hansen, Editor at phansen@asil.org
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