November 18 - December
1, 2000 Developments in international law, prepared by the Attorney-Editors ofInternational Legal Materials The American Society of International Law
Multinational High-Level Conference,
convened by the South Pacific Forum Fisheries Agency:
Convention on the Conservation and Management of Highly
Migratory Fish Stocks in the Western and Central Pacific
Ocean, and Final Act (September 4, 2000)
The Multinational High-Level Conference convened by
the South Pacific Forum Fisheries Agency adopted the
Convention on the Conservation and Management of Highly
Migratory Fish Stocks in the Western and Central Pacific
Ocean ("Convention") with the objective of ensuring
such stocks' long-term conservation and sustainable
use. Art. 2. The Contracting Parties were in so doing
"mindful" that effective conservation and management
measures require application of both: 1) the precautionary
approach; and 2) the best scientific information available.
Preamble; Final Act, Para. 4.
The Convention establishes the Commission for the Conservation
and Management of Highly Migratory Fish Stocks in the
Western and Central Pacific Ocean ("Commission") to
inter alia: 1) determine the total allowable
catch or total level of fishing effort within the Western
and Central Pacific Ocean ("Convention Area"); 2) adopt
standards for the collection, verification and timely
exchange and reporting of data on fisheries; 3) adopt
"generally recommended" international minimum standards
for the responsible conduct of fishing operations; and
4) promote the peaceful settlement of disputes. Arts.
9(1); 10(1)(a), (d), (h), (n).
The Convention requires the Commission to cooperate
with other international organizations, including the
U.N. Food and Agriculture Organization, in cases of
inter alia: 1) matters of mutual interest; or
2) related objectives. Art. 22. The Convention also
establishes that the absence of "adequate" scientific
information shall not be used as a reason for postponing
or failing to take conservation and management measures
in applying the precautionary approach. Art. 6(2).
The Convention requires Commission members to inter
alia: 1) adopt measures to minimize fishing vessel
waste and pollution; 2) protect biodiversity in the
marine environment; 3) prevent or eliminate over-fishing
and excess fishing capacity; and 4) take into account
the interests of artisanal and subsistence fishers.
Art. 5(e)-(h). The Convention requires Commission members
to give "due consideration" and "full recognition" respectively
to the capacities and special requirements of developing
coastal States, particularly small island developing
States, in the Convention Area. Art. 7(2), 30(1).
The Convention further requires the Commission to take
into account the need to ensure that measures do not
result in the transfer of a "disproportionate burden"
of conservation action to developing States Parties,
territories or possessions. Art. 30(2)(c). The Convention
also requires the compatibility of high seas and national
jurisdiction conservation and management measures. Art.
8(1).
The Convention requires the Commission to promote transparency
in its decision-making processes and other activities.
Art. 21. The Convention also establishes the right of
a Commission member either voting against a measure
or absent from the vote to seek panel review on the
basis of either: 1) the provisions of certain international
agreements; or 2) unjustifiable discrimination "in form
or in fact" against the member. Art. 20(6). During such
review no Commission member shall be required to give
effect to the contested decision, which the review panel
may uphold, modify, amend or revoke. Art. 20(7)-(9).
Each Commission member shall take measures to ensure
that fishing vessels flying the member's flag comply
with the Convention's provisions and consequently adopted
measures. Art. 24(1)(a). Each Commission member shall
also, at the request of any other member, fully investigate
any alleged violation by fishing vessels flying its
flag. Art. 25(2). The Convention further requires that
all investigations and judicial proceedings be carried
out expeditiously. Art. 25(7). BM
Federal Court of Australia: Wang
v. Minister for Immigration and Multicultural Affairs,
[2000] FCA 1599 (November 10, 2000)
Mr. Wang ("Appellant"), a citizen of the People's Republic
of China, applied for an Australian protection visa
based on a claim of refugee status within the meaning
of Article 1A(2) of the 1951 Convention relating to
the Status of Refugees ("Convention"), as amended by
the 1967 Protocol Relating to the Status of Refugees.
Paras. 29-30. The Appellant claimed a "well founded
fear" by reason of alleged official persecution for
inter alia having attended a Protestant Christian
church unregistered with the Chinese Government. Paras.
30, 34-35.
The Australian Refugee Review Tribunal ("RRT") rejected
the Appellant's request, concluding that any such punishment
or mistreatment would not constitute persecution under
the Convention, since the Appellant could have practiced
at a registered church. Para. 31. An Australian Federal
Court trial judge subsequently dismissed the Appellant's
application for review, and the Appellant thereafter
appealed to a Full Court of the Federal Court ("Court").
Paras. 29, 32.
The Court considered the case to raise the question
whether a claimant's fear of practicing religion in
a manner rendered unlawful by national laws is a "fear
of persecution by reason of the person's religion or
by reason of the person having broken the law." Para.
33 [emphasis in original]. The Court also found
that for the purposes of Convention Article 1A(2) there
were two elements to the concept of religion: 1) manifestation
or practice of personal faith or doctrine; and 2) manifestation
or practice of that faith or doctrine in a "like-minded
community." Para. 81.
The Court held that a law regulating the practice of
religion, and: 1) requiring that it be practiced or
observed in a particular way; or 2) targeting or applying
only to persons practicing religion, was not a law of
"general application." Para. 66. The Court concluded
that a fear of prosecution or official punishment for
the breach of such laws can "of itself" give rise to
a "well-founded fear" under the Convention. Id.
The Court therefore held that the RRT and trial judge
had erred in failing to apply such a standard in assessing
whether the Appellant's fear was well-founded. Paras.
97, 103.
The Court held that the RRT had also erred by disregarding
the community or congregational element of religious
practice as an element of Convention Article 1A(2).
Para. 101. The Court concluded that this had led the
RTT to: 1) regard Chinese laws regulating religious
practice as "analogous to town planning laws"; and 2)
conclude that the enforcement of laws against the Appellant
for practicing at an unregistered church to not be "persecution"
by reason of religious practice. Para. 102.
The Court allowed the appeal, set aside the decisions
of the RTT and trial judge, and remitted the case to
the RRT for redetermination in accordance with law.
Para. 112. BM
ICSID: Compania del Desarrollo
de Santa Elena, S.A. v. Republic of Costa Rica,
Case No. ARB/96/1 (February 17, 2000)
Compania del Desarrollo de Santa Elena, S.A. ("Santa
Elena"), a Costa Rican corporation with majority U.S.
shareholders, in the 1970s acquired a tract of land
in Costa Rica for the purpose of developing it as a
tourist and residential site. Paras. 1, 16. Beginning
in 1978, Costa Rica undertook to expropriate the land
for conservation purposes. Paras. 17-18, 22, 71. While
Santa Elena thereafter retained possession of the property,
the land could not be developed as expected, and was
moreover without significant resale value. Paras. 80-81,
105.
While Santa Elena did not challenge the expropriation,
Santa Elena claimed approximately U.S. $6,400,000 in
compensation. Para. 19. For approximately twenty years,
the amount of compensation was not resolved, (Para.
20), and the dispute was thereafter brought at Santa
Elena's request before an International Centre for Settlement
of Investment Disputes ("ICSID") Tribunal. Paras. 1-5,
26.
The Tribunal held that the appropriate date for assessing
the property's value was the date of expropriation.
Para. 83. The Tribunal further held that a "reasonable
and fair approximation" of the property's value at the
date of expropriation was U.S. $4,150,000. Para. 95.
The Tribunal found in regard to the parties' dispute
over interest that no uniform rule of law had emerged
in international arbitral practice as to the applicability
of simple or compound interest in any given case. Paras.
96, 103. The Tribunal concluded that an interest determination
is produced by an exercise of judgment that takes into
account: 1) all of the case's circumstances at hand;
and "especially" 2) considerations of fairness which
"must form part of the law to be applied" by the Tribunal.Para.
103.
The Tribunal determined that compensation in the event
of a delay between the loss of an asset's value and
the receipt of the monetary equivalent "should reflect,
at least in part" the additional sum that would have
been earned by both its investment and the reinvestment
of returns at "generally prevailing rates of interest."
Para. 104. The Tribunal noted that compound interest's
purpose was not to "attribute blame to, or to punish"
the delay of payment, but to act as a mechanism to ensure
appropriate compensation. Id.
The Tribunal held that simple interest was not justified,
given the nearly twenty-two year delay between Santa
Elena's loss and its compensation. Para. 105. The Tribunal
also held, however, that full compound interest would
not do "full justice," given Santa Elena's: 1) possession
of the property; and 2) limited ability to exploit it.
Para. 105. The Tribunal held that Santa Elena was entitled
to compound interest, adjusted to take account of all
"relevant factors." Para. 106. The Tribunal awarded
Santa Elena a total of U.S. $16,000,000 in principal
and interest. Para. 107. PH
France: Law relating to the Reception
and Habitat of Migrants, Adopted Text No. 548 (June
22, 2000)
The French National Assembly adopted the Law relating
to the Reception and Habitat of Migrants ("Law") in
regard to those: 1) called gens du voyage (i.e.
migrants); and 2) for whom mobile residences constitute
their traditional habitat. Art. 1.I. The Law requires
each Department (i.e. prefecture) to create a
plan for the establishment of permanent areas for the
reception of migrants, given inter alia: 1) the
frequence and duration of migrants' stay; 2) possibilities
for educating their children; and 3) access to care
and the exercise of economic activity. Art. 1.II.
Communities of over 5,000 inhabitants must figure into
the Departmental plan, which must establish inter
alia: 1) the nature of social action on behalf of
migrants frequenting permanent reception areas; 2) places
for temporary occupation for the purpose of traditional
or occasional assemblies; and 3) conditions under which
the State will intervene to assure the proper unrolling
of such assemblies. Id. An annex to the Departmental
plan must also take into account lands that must be
made available to migrants by their employers, notably
within the framework of seasonal employment. Id.
Departmental plans shall be revised every six years
from the date of publication. Art. 1.III. In each Department,
a consultative commission comprised of inter alia:
1) community representatives; 2) migrant representatives;
and 3) associations intervening on migrants' behalf
shall take part in elaborating and implementing the
plan. Art. 1.IV. Departments must implement their plans
within two years of their publication. Art. 2.I.
Once a community implements their obligations under
the Departmental plan, it may forbid the placing of
mobile residences within their territory but outside
of the designated areas. Art. 9.I. The same right applies
to those communities not bound by a community plan but
either endowing or financially contributing to a reception
area. Id. A community's mayor may not, however,
act in regard to land not owned by the community unless
the encampment affects health, security or public tranquillity.
Art. 9.I-II.
When occupation outside of designated areas may hinder
the economic activity to which private land is allocated,
the proprietor or the title-holder of a real usage right
to the land in question may bring an action to force
evacuation of mobile residences. Art. 9.IV. PH
India: Information Technology Act
2000, No. 21 of 2000 (June 9, 2000)
The Indian Information Technology Act 2000 ("Act")
provides legal recognition to electronic commerce in
order to give domestic effect to the 1997 U.N. Model
Law on Electronic Commerce. Preamble. The Act
applies to India, as well as to "any offence or contravention
thereunder committed outside India by any person." Art.
1(2). The Act declares as offenses inter alia:
1) tampering with computer source code documents; 2)
hacking; and 3) electronic publishing of obscene material.
Arts. 65-67.
The Act exempts from liability network service providers
(i.e. intermediaries) and certain officers of
an offending company (e.g. firms and organizations)
if the provider or official proves that: 1) the offence
or contravention in question was committed without the
official or provider's knowledge; or 2) that "all due
diligence" had been exercised to prevent its commission.
Art. 79, 85. A high company official shall, however,
be deemed individually guilty of a contravention attributable
to the official's consent, connivance or neglect. Art.
85(2).
The Act empowers: 1) any police officer not below the
rank of Deputy Superintendent of Police; or 2) any other
Central or State Government officer authorized by the
Central Government to enter any "public place" and there
search and arrest without warrant any person reasonably
suspected of inter alia "being about to commit"
any offence under the Act. Art. 80(1). The Act defines
a "public place" to include any public conveyance, hotel,
shop or any other place "intended for use by, or accessible
to the public." Id.
India's Central Government shall appoint one or more
adjudicating officers with information technology experience
to determine: 1) whether a contravention has occurred;
and 2) the penalty or compensatory award that the officer
"thinks fit" pursuant to the relevant legal provisions.
Art. 46.
The Act also establishes a Cyber Appellate Tribunal
("Tribunal") to review appeals against orders of inter
alia adjudicating officers, except for those rendered
with the parties' consent. Art. 57(1-2). The Tribunal
shall be "guided by the principles of natural justice."
Art. 58(1) .
The Tribunal and adjudicating officers shall have certain
of an Indian civil court's evidentiary and procedural
powers while trying suits. Arts. 46(5), 58(2). Tribunal
and adjudicating officer proceedings shall also be deemed
"judicial proceedings" under the Indian Penal Code.
Arts. 46(5), 58(3).
No court shall have jurisdiction over any matter in
which an adjudicating officer or the Tribunal is empowered
to make a determination. Art. 61. Neither may any court
issue an injunction in respect to any action undertaken
pursuant to any power conferred by or under the Act.
Id. Persons aggrieved by Tribunal decisions or
orders may, however, appeal to the Indian High Court.
Art. 62.
The Act requires the Indian Central Government to constitute
a Cyber Regulations Advisory Committee to advise inter
alia the Central Government regarding any rules
or for any other purpose connected with the Act. Art.
88. PH
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