Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law November 20, 2001
UNESCO: Universal Declaration on
Cultural Diversity (November 2, 2001)
The UNESCO's General Conference adopted the Universal
Declaration on Cultural Diversity, noting that the process
of globalization creates the conditions for renewed dialogue
among cultures and civilizations. The Declaration proclaims
that cultural diversity is necessary for humankind "as
biodiversity is for nature," and that it represents the
"common heritage of humanity" that should be recognized
and affirmed for the benefit of present and future generations.
The Declaration provides that cultural diversity may
not be invoked to infringe upon or limit the scope of
human rights guaranteed by international law, and concludes
that cultural rights are an integral part of human rights.
The Declaration emphasizes that it is necessary to reinforce
international co-operation and solidarity in order to
enable all countries, and "especially developing countries
and countries in transition," to establish cultural industries
that are viable and competitive at national and international
level. The Declaration confirms that each state should
define its cultural policy and implement it through the
means it considers fit, with due regard to its international
obligations.
Permanent Court of Arbitration (PCA):
Larsen v. Hawaiian Kingdom (Arbitration Award)
(February 5, 2001)
An Arbitral Tribunal acting under the auspices of the
Permanent Court of Arbitration ("PCA") ruled that there
was no dispute capable of submission to arbitration between
Mr. Larsen and the Hawaiian Kingdom ("Parties"). The Tribunal
also determined that it was precluded, "in any event,"
from considering issues submitted by the Parties because
the U.S. was not a party to the proceedings, and had not
consented to them.
Mr. Larsen, who considered himself to be a subject of
the Hawaiian Kingdom, alleged that the Government of the
Hawaiian Kingdom was in "continual violation" of the principles
of international comity by allowing the "unlawful imposition"
of the U.S. municipal laws over his person within the
"territorial jurisdiction of the Hawaiian Kingdom." The
Hawaiian Kingdom accepted that Mr. Larsen's rights were
violated, and indicated the U.S. as responsible for the
violation. The Parties submitted the dispute to the PCA
under the UNCITRAL (i.e. U.N. Commission on International
Trade Law) Arbitration Rules.
The Arbitral Tribunal held that although the UNCITRAL
Arbitration Rules were primarily drawn for the purposes
of the arbitration of contractual disputes, there appeared
"no reason" why the Rules could not be adapted to apply
to a non-contractual dispute. The Tribunal accepted as
applicable a principle, established by the jurisprudence
of the International Court of Justice, that precludes
an international tribunal from deciding a dispute between
the parties before it, if the very "subject matter of
the decision would be the rights or obligations" of a
state which is not party to the proceedings. The Tribunal
noted that the "gist" of the current dispute was not a
dispute between the Parties, but a dispute between each
of them and the U.S. The Tribunal thus concluded that,
in the absence of the U.S., it could neither decide that
Hawaii was not part of the U.S., nor proceed on the assumption
that it was not.
U.S. Court of Appeals for the Second
Circuit: Robinson v. Government of Malaysia, No.
00-7730 (October 11, 2001)
The Court of Appeals for the Second Circuit ("Second
Circuit") affirmed the Government of Malaysia's sovereign
immunity from suit in the case that Mr. Robinson, a security
guard at a building owned at the material time by the
Malaysian Government, brought against Malaysia for a personal
injury that he suffered while on duty. Mr. Robinson argued
that Malaysia should be deprived of its sovereign immunity,
inter alia, under the "non-discretionary torts"
exception contained in § 1605(a)(5) of the Foreign
Sovereign Immunities Act ("FSIA").
The Second Circuit noted that district courts, in case
of a challenge to jurisdiction under the FSIA, must look
at the substance of allegations to determine whether one
of the exceptions to the FSIA's general exclusion of jurisdiction
over foreign sovereigns applies. The Second Circuit further
noted that it was unclear whether the district court dismissed
Mr. Robinson's complaint on the basis of the allegations
in the complaint alone, on the basis of undisputed facts,
or the resolution of issues of fact. The Second Circuit
held, nevertheless, that it was not necessary to return
the case to the district court for clarification because
Mr. Robinson's complaint was not "cognizable as a 'tortious
act or omission'." The Second Circuit concluded that to
sustain federal jurisdiction on generic allegations of
"negligence" without an assertion or evidence of a factual
predicate for such jurisdiction would "invite plaintiffs
to circumvent the jurisdictional hurdle of the FSIA,"
and would be at odds with the FSIA's goal to provide a
foreign government with an early dismissal when the substance
of the claim against it does not support jurisdiction.
U.S. Court of Appeal for the Fifth
Circuit: Mazurek v. U.S., No. 00-31430 (November
7, 2001)
The Court of Appeals for the Fifth Circuit ("Fifth Circuit")
affirmed the district court decision denying a motion
to quash the summons of the U.S. Internal Revenue Service
("IRS") issued in response to a request by the French
Tax Authority ("FTA") for Mr. Mazurek's financial records.
The FTA's request was submitted pursuant to the U.S.-France
Tax Treaty (see the decision for the full title
of the Treaty), which provides for the exchange of tax
and financial information between the two states. Mr.
Mazurek had moved to quash the summons, and also initiated
a separate action in France contesting the FTA's determination
that he was a French resident for the period covered by
the FTA's investigation.
Mr. Mazurek, inter alia, argued that the execution
of the summons would expand the FTA's rights, contrary
to the U.S.-France Treaty provisions, by allowing it access
to information - through the IRS compliance - that it
could not obtain under French law. Mr. Mazurek claimed
that the latter required the FTA to suspend its investigation
once the motion to challenge the residency was filed,
and that the investigation could not be reinstituted while
the motion is pending. The Fifth Circuit rejected this
argument as not "wholly convincing," holding that although
the Treaty does not mandate the exchange of information
at variance with French law, neither "does the plain language
of the Treaty forbid compliance with an otherwise
proper treaty request" (emphasis in original). The Fifth
Circuit held that Mr. Mazurek's argument failed also because
the prohibition he argued was "merely temporal" rather
than substantive, noting that French law did not completely
prohibit the FTA from obtaining access to the relevant
financial information.
U.S. Court of Appeals for the Ninth
Circuit: Al-Saher v. INS, No. 99-713-8 (October
23, 2001)
The Court of Appeals for the Ninth Circuit ("Ninth Circuit")
granted the petition for review filed by Mr. Al-Saher,
an Iraqi citizen whose application for asylum in the U.S.,
withholding of removal from the U.S., and protection under
the U.N. Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment ("Torture Convention")
had first been rejected by an immigration judge, and then
by the Board of Immigration Appeals ("BIA"). The Ninth
Circuit remanded the case to the BIA for entry of an order
granting withholding of Mr. Al-Saher's removal.
The Ninth Circuit first held that Mr. Al-Saher failed
to establish that the persecution he had been subjected
to in Iraq was on the account of any of the five protected
categories, i.e. race, religion, nationality, membership
in a particular social group, or political opinion; thus
failing to establish his eligibility for asylum. The latter
finding would have caused Mr. Al-Saher's application against
deportation to fail, if the Ninth Circuit had not found
him eligible for withholding of removal under Article
3 of the Torture Convention. The Ninth Circuit accepted
Mr. Al-Saher's testimony of beatings he had suffered while
being detained by Iraqi authorities, and held that these
were not practices "inherent in or incidental to lawful
sanction." The Ninth Circuit noted also the 1997 Country
Reports on Human Rights and Practices for Iraq, which
confirmed that torture was "routinely administered" to
those detained or imprisoned. The Ninth Circuit held that
it was likely that Mr. Al-Saher would be tortured again,
if forced to return to Iraq.
U.S. Court of Appeals for the D.C.
Circuit: Delta Foods Ltd. v. Republic of Ghana,
00-7081 (September 28, 2001)
The Court of Appeals for the District of Columbia Circuit
("D.C. Circuit") affirmed the district court's order denying
Ghana's motions to reopen a judgment enforcing against
it a "consent decree" entered by the Ghana's High Court
of Justice. The consent decree resulted from a settlement
between Ghana and Delta Foods Ltd. ("Delta"), a Ghanian
corporation, over a contractual dispute involving a purchase
of corn from the U.S. After Ghana had failed to fulfill
its obligations under the decree, Delta sued in the U.S.
to enforce it. Ghana moved to dismiss on the grounds of
forum non conveniens, comity and ripeness, but
did not assert sovereign immunity then, or later on the
appeal against summary judgment that district court had
entered in Delta's favor. The first time Ghana asserted
sovereign immunity was in the motion to vacate the district
court's judgment, after it had already become final.
The D.C. Circuit noted that Ghana's failure to assert
sovereign immunity in the district court was not by itself
fatal because Ghana did not answer the complaint, and
sovereign immunity was not necessarily waived by "the
tactical choice to raise other preliminary objections
first." The D.C. Circuit further noted that Ghana could
have asserted sovereign immunity on appeal against the
district court's judgment because the objection would
have gone to the subject matter jurisdiction of the court.
The D.C. Circuit held that "limit was reached" when the
time to appeal ran out, rendering the district court's
judgment final. In support, the D.C. Circuit noted the
Supreme Court's reasoning that a party may not reopen
the question of subject-matter jurisdiction in a "collateral
attack upon an adverse judgment." The D.C. Circuit concluded
that since it was obvious that Ghana could not assert
sovereign immunity at this stage, it was not necessary
to examine whether Ghana had waived its sovereign immunity.
WTO Appellate Body Report: Mexico
- Anti-Dumping Investigation of High Fructose Corn Syrup
(HFCS) from the U.S. (Recourse to Article 21.5 of
the DSU by the U.S.), WT/DS132/AB/RW (October 22, 2001)
The WTO Appellate Body upheld the second panel report
in the case between Mexico and the U.S., which found Mexico
in violation of its obligation to implement an original
recommendation requesting it to bring its anti-dumping
measures into conformity with its obligations under the
Anti-Dumping Agreement ("AD Agreement"). The recommendation
resulted from the findings set out in the first panel
report, which concluded that Mexico's imposition of definitive
anti-dumping duties on HFCS imports from the U.S. was
in violation of the AD Agreement. Instead of implementing
the recommendation, Mexico determined that it was appropriate
to maintain the anti-dumping duties that were the object
of the original anti-dumping investigation.
The Appellate Body, inter alia, rejected Mexico's
objection that the second panel made a "fatal error" by
not taking into consideration a lack of consultations
between Mexico and the U.S. before the redetermination
was referred to it. The Appellate Body rendered this intervention
untimely, holding that it was incumbent on Mexico to raise
this objection earlier in the proceedings, and noted that
the Dispute Settlement Understanding provides for a panel
to be validly established even when it is not preceded
by consultations. The Appellate Body upheld the second
panel's finding that Mexico erred in concluding that there
had existed a significant likelihood of an increase in
HFCS imports from the U.S. The Appellate Body concluded
that the second panel satisfied its duty to provide a
"basic rationale" for its findings, and did not act inconsistently
with the standard of review set out in the AD Agreement.
Council of Europe (Committee of Ministers):
Recommendation Rec(2001)14 (On the European Charter on
Water Resources) (October 17, 2001)
The Committee of Ministers of the European Council adopted
the new European Charter on Water Resources ("Charter"),
replacing the 1968 European Water Charter. The Charter
is not binding, but the Council recommended to the EU
member states to take note of it, and apply its principles
"as appropriate" in the framework of their national policies.
The Charter provides that fresh water resources, which
constitute only 2.7% of the Earth's overall water mass,
must be used in keeping with the objectives of sustainable
development, and with "due regard for the needs of present
and future generations."
The Charter declares that water policy and law must be
based on the principles of prevention, precaution and
correction at source. The Charter provides for the "polluter-pays"
principle, which mandates that the cost of pollution prevention,
control and reduction measures must be born by the polluter.
The Charter requires that water resources are regularly
monitored, and their general state periodically assessed.
The Charter provides that water concessions must be granted
for a limited duration, and subject to periodic review.
The Charter calls upon states to co-operate in order to
come to an agreement on an equitable and reasonable method
of managing international watercourses, and other shared
water resources, in "conformity with international law
and [the Charter principles]." The Charter mandates for
states sharing catchment basins to conclude bilateral
or multilateral agreements specifying the geographic limits
of their management co-operation over these resources.
U.S.: Presidential Military Order
- Detention, Treatment, and Trial of Certain Non-Citizens
in the War Against Terrorism (November 13, 2001)
The President of the United States issued a Military
Order establishing the competence of U.S. military tribunals
to try certain individuals who are not U.S. citizens for
violations of the laws of war and "other applicable laws."
The President of the U.S. will decide which foreign individuals
will be subject to a trial by U.S. military tribunals,
and in doing so the President will have to be satisfied
that: 1) there is a "reason to believe" that such an individual
is or was, inter alia, a member of the Al-Qaida
organization; and 2) it is "in the interest of the [U.S.]"
that such an individual is subject to this order.
The President decided that, given the danger to the U.S.
safety and the nature of international terrorism, it would
not be practicable to apply in trials conducted pursuant
the current Order the principles of law and the rules
of evidence generally recognized in the trial of criminal
cases in the U.S. district courts. The Order requires
the concurrence of two-thirds of the members of a military
tribunal for both the conviction and sentencing, and allows
for the imposition of sentences such as life imprisonment
or death. Conviction and sentence will be submitted to
the President or the Secretary of Defense for "review
and final decision." The Order prohibits disclosure of
state secrets to "any person not otherwise authorized
to have access to them." Finally, the Order prohibits
an individual tried before a U.S. military tribunal to
seek "any remedy or maintain any proceeding" in a: 1)
Federal or State court in the U.S.; 2) foreign court;
or 3) international tribunal.
On November 16, 2001, the Appeals Chamber
of the International Criminal
Tribunal for Rwanda (ICTR) confirmed the conviction
for genocide and for extermination as a crime against
humanity in the case against Alfred Musema, a former director
of the Gisovu Tea Factory in Kibuye Prefecture during
the 1994 genocide in Rwanda. Please click here
for the related press release.
On November 13, 2001, the International
Tribunal for the Law of the Sea (ITLOS) received an
application for the prescription of provisional measures
submitted by Ireland against the United Kingdom.
The Dispute inter alia concerns a MOX (i.e.
Mixed Oxide) plant located in the North East of England,
on the coast of Irish Sea. The hearing on the request
for provisional measures was scheduled for November 19,
2001. For more information, please click here
to access the ITLOS docket.
The Permanent Court
of Arbitration (PCA) is currently drafting Optional
Rules for Conciliation of Disputes Relating to Natural
Resources and/or the Environment. The Optional Conciliation
Rules will, once they are adopted, complement the already
existing Optional Rules for Arbitration of Disputes Relating
to Natural Resources and/or the Environment (seeOctober
9, 2001 ILIB issue for the summary of these Rules).
For the Draft Optional Conciliation Rules, please click
here.
