January 27 - February
2, 2001 Developments in international law, prepared by the Attorney-Editors ofInternational Legal Materials The American Society of International Law
High Court of Justiciary at Camp
Zeist: Her Majesty's Advocate v. Al-Megrahi,
Case No. 1475/99 (January 31, 2001)
Two Libyan citizens, Mr. Al-Megrahi and Mr. Fhimah,
were accused of the 1998 bombing of Pan Am flight 103
("Pan Am 103") over Lockerbie, Scotland. Their trial
took place before the Scottish High Court of Justiciary
("Court") sitting in Camp Zeist in the Netherlands,
pursuant to the Agreement Between the Government of
the Kingdom of the Netherlands and the Government of
the United Kingdom of Great Britain and Northern Ireland
Concerning a Scottish Trial in the Netherlands. [See
April 5-10, 1999 ILIB
for abstract of Agreement and related documents.]
The Court found that it had been "amply proved" that
the cause of the Pan Am 103 disaster was the explosion
of a device within the aircraft. Para. 2. The Court
concluded that the matter at issue was "whether or not
the Crown have proved beyond reasonable doubt that one
or other or both of the accused was responsible, actor
or art and part, for the deliberate introduction of
the device." Id.
The Court noted that the Crown had at the conclusion
of its submissions: 1) restricted the charges against
both accused to murder; and 2) dropped alternative contentions
of conspiracy to murder and contravention of Section
2(1) and (5) of the 1982 Aviation Security Act. Para.
1.
The Court held that it had been established beyond
doubt that the explosive device was contained within
a radio cassette player located in a suitcase that had
also contained clothing. Para. 11. The Court concluded
that the suitcase had travelled unaccompanied from Malta's
Luqa airport to London via Frankfurt, where it was loaded
onto Pan Am 103. Paras. 31, 35. The Court also relied
on the testimony of a Maltese shop owner who recognized
Mr. Al-Megrahi as a person who had visited his store
to buy some clothing. Paras. 12, 88. The Court held
that it could be inferred that the clothing purchased
at that time was the same as that which surrounded the
explosive device. Para. 88.
The Court held that, despite a "number of uncertainties
and qualifications," the evidence supported Mr. Al-Megrahi's
guilt without "any reasonable doubt," given inter
alia: 1) the purchase of the clothing found in the
suitcase containing the explosive device; and 2) "other
background circumstances," such as Mr. Al-Megrahi's
association with members of the Libyan military who
had purchased timers. Para. 89.
The Court acquitted Mr. Fhimah, holding that the evidence
was insufficient to "support or confirm" the inference
that Mr. Fhimah had been aware that his assistance to
Mr. Al-Megrahi had been in connection with a plan to
destroy an aircraft by the planting of an explosive
device. Para. 85. BM
Editor's Note: The Court's Camp Zeist press office
confirmed that Mr. Al-Megrahi had been orally sentenced
to a mandatory life sentence, and would have to serve
a minimum of twenty years before being considered for
parole. The sentence was rendered separately from the
verdict, and the Court confirmed that no official sentencing
documents had been issued.
WTO Award of the Arbitrator: United
States -- Section 110(5) of the U.S. Copyright Act,
WT/DS160/12 (January 15, 2001)
The United States and the European Communities ("Parties")
could not agree on the duration of a "reasonable period
of time" for the U.S. to implement a WTO Panel Report
recommending that the U.S. bring Section 110(5) of its
1976 Copyright Act into conformity with its obligations
under the TRIPS Agreement (i.e. Agreement on
Trade-Related Aspects of Intellectual Property Rights).
Paras. 1-2, 6, 10-11, 26. [See July
22-August 4, 2000 ILIB for abstract of Panel Report.]
The Parties agreed to resolve the issue through "binding
arbitration" by a single arbitrator pursuant to Article
21.3(c) of the Understanding on Rules and Procedures
Governing the Settlement of Disputes ("DSU"). Para.
3.
The Arbitrator noted that the DSU's guideline for arbitrators
in regard to a "reasonable period of time" for implementation
was fifteen months from the date of adoption of a Panel
or Appellate Body report, "depending upon the particular
circumstances." Paras. 28-29. The Arbitrator concluded
that the time frame proposed by the U.S. (i.e.
at least fifteen months, or until the adjournment of
the 107th U.S. Congress's first session)
did not take "sufficient account" of the U.S. Congress's
flexibility to act under its normal legislative procedures.
Paras. 11, 38.
The Arbitrator noted the U.S. submission that a great
deal of legislation is introduced every year, but held
that this could not affect "in any substantial way"
the U.S. obligation to implement WTO Dispute Settlement
Body ("DSB") recommendations and rulings "in a particular
dispute." Para. 40. The Arbitrator concluded that there
was "no doubt" that the U.S. Congress could act quickly,
(Para. 45), and set the "reasonable period of time"
at twelve months from the date of the Report's adoption
by the DSB. Para. 47. BM
African Trade Ministers: Libreville
2000 Final Communique (November 15, 2000)
African Trade Ministers ("Ministers"), meeting in Libreville
at the invitation of the Gabonese government, adopted
a Final Communique ("Communique") in consideration of
inter alia African countries' difficulties in
implementing WTO agreements and rules. Preamble.
The Ministers reaffirmed Africa's commitment to working
in the multilateral trading system framework for a "significant
and equitable place in international trade." Art. 1.
The Ministers called on the WTO to play a more active
role in this process by: 1) adopting and implementing
a "special capacity-building" program; and 2) encouraging
donor countries and institutions to financially supplement
such efforts. Art. 2.
The Ministers reaffirmed the "African position" that
development issues are the "key challenge to be addressed
by the multilateral trading system." Art. 3. The Ministers
encouraged: 1) a coordinated approach to WTO and ACP-EU
negotiations, (Art. 4); and 2) African countries' efforts
to strengthen and revitalize sub-regional economic organizations.
Art. 5. The Ministers also urged the WTO to cooperate
with other multilateral financial and development institutions
such as the World Bank and IMF. Art. 6.
The Ministers called for duty-free and quota-free access
to all developed-country markets for products of African
origin, (Art. 7), and called for African debt cancellation
in order to "generate surplus resources for technological
investments geared towards international trade." Art.
8. The Ministers emphasized the need to make trade a
priority in their respective countries' national development
policies through better coordination at the national
level. Art. 10. The Ministers also called for the streamlining
and facilitation of non-WTO member African countries'
accession to the WTO "on terms compatible with their
level of development." Art. 12. PH
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