Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law February 11, 2002
Canada-U.S.: The Smart Border Declaration
— Building a Smart Border for the 21st
Century on the Foundation of a North American Zone of
Confidence; and Action Plan for Creating a Secure and
Smart Border (December 12, 2001)
The Declaration notes that September 11 terrorist actions
highlighted a threat to the public and economic security
of Canada and the U.S., requiring both countries to develop
new approaches to meet these challenges. The Action Plan
rests on four "pillars": (1) the secure flow
of people; (2) the secure flow of goods; (3) the secure
infrastructure; and (4) the coordination and information
sharing in the enforcement of these objectives.
In order to enhance the security measures related to
the flow of people and identify security threats before
they arrive in the North America, the Action Plan provides
for "collaborative approaches" to reviewing
crew and passenger manifests, managing refugees, and visa
policy coordination. The Action Plan provides for development
of common standards for cargo screening at the first port
of entry, as one of the measures aimed at securing the
flow of goods. According to the Action Plan, both countries
will identify and minimize threats to their critical infrastructure,
invest reciprocally in border infrastructure in order
to relieve congestions, and identify technological solutions
that would expedite the cross-border movement. As a segment
of coordination and information sharing activities, the
Action Plan calls for coordination between Canadian and
the U.S. enforcement agencies in addressing common threats.
Council of Europe (COE): Convention
on Cybercrime (November 23, 2001)
The Convention on Cybercrime ("Convention")
recognizes the need for co-operation between states and
private industry in combating cybercrime, and the need
to protect legitimate interests in the use and development
of information technologies. The Convention incriminates
the four groups of cybercrimes: (1) offences against the
confidentiality, integrity and availability of computer
data and systems (i.e. illegal access; illegal
interception; data interference; system interference;
and misuse of devices); (2) computer-related offences
(i.e. computer-related forgery and fraud); (3)
content-related offences (i.e. child pornography);
and (4) offences related to infringements of copyrights
and related rights.
The Convention defines child pornography to include,
inter alia, pornographic material that visually
depicts "realistic images representing a minor engaged
in sexually explicit conduct." The Convention requires
the States Parties to criminalize aiding and abetting
of the commission of any of the covered offences. The
Convention also establishes the basis for the corporate
liability of legal persons in case any of the covered
offences is committed for its benefit by any natural person
"who has a leading position within the legal person."
The Convention introduces a "24/7 Network,"
requiring each State Party to designate a "point
of contact" available on a twenty-four hours a day/seven
days per week basis to ensure the provision of immediate
assistance for the purpose of "investigations or
proceedings concerning criminal offences related to computer
systems and data."
International Tribunal for the Law
of the Sea (ITLOS): MOX Plant Case (Ireland v. United
Kingdom) — Order Related to Request for Provisional
Measures, No. 10 (December 3, 2001)
The ITLOS rejected imposition of provisional measures
requested by Ireland in its dispute with the United Kingdom
("U.K.") over the U.K.'s authorization for opening
of a nuclear fuel reprocessing plant at the coast of Irish
Sea in Cumbria, in the North East of England. Ireland
requested the ITLOS to order the U.K. to suspend the authorization
of the plant, or take other measures that might be necessary
to prevent its operation. Ireland argued, inter alia,
that the operation of the plant would contribute to the
pollution of the Irish Sea, and also stressed the potential
risks involved in the transportation of radioactive material
to and from the plant.
The ITLOS noted that since Ireland and the U.K. have
not accepted the same procedure for the settlement of
disputes under the U.N. Convention on the Law of the Sea
("UNCLOS"), both states were deemed to have
accepted arbitration in accordance with UNCLOS Annex VII.
Furthermore, the ITLOS held that the provisions of the
UNCLOS invoked by Ireland "appear[ed] to afford"
a basis on which the jurisdiction of the Annex VII arbitral
tribunal might be founded. The ITLOS, therefore, held
that under UNCLOS Article 290(1) it had the power to prescribe
provisional measures in order to "preserve the respective
rights of the parties to the dispute or to prevent serious
harm to the marine environment." The ITLOS also
stressed that under Article 89(5) of its Rules it might
prescribe measures different "in whole or in part
from those requested."
The ITLOS held that the "urgency of situation"
did not require the prescription of the provisional measures
requested by Ireland, in the light of "the short
period" before the constitution of the Annex VII
arbitral tribunal. The ITLOS, however, underlined that
the duty to cooperate is a fundamental principle in the
prevention of pollution of the marine environment under
UNCLOS Part XII and general international law. The ITLOS
ordered, as provisional measures, that Ireland and the
U.K. should cooperate and enter into consultation in order
to: (1) exchange further information with regard to possible
consequences for Irish Sea arising out of the commissioning
of the plant; (2) monitor risks or effects of the operation
of the plant for the Irish Sea; and (3) devise, as appropriate,
measures to prevent pollution of the marine environment
which might result from the operation of the plant.
U.S. Court of Appeals for the Second
Circuit: Bank of Credit, Ltd. v. State Bank of Pakistan,
No. 99-7568 (November 29, 2001)
The Court of Appeals for the Second Circuit ("Second
Circuit") vacated the district court's decision to
dismiss the action filed by the court-appointed fiduciaries
of the Bank of Credit ("Plaintiff"). Acting
under the forum non conveniens doctrine, the district
court held that Pakistan would be a more appropriate forum
for adjudication. The district court, however, subjected
its decision to several conditions, including the one
requiring the Pakistani courts not to refuse to hear the
case on statute of limitations grounds. The Plaintiff
appealed, arguing that recent changes in the Pakistani
law, including the new provisions relating to statute
of limitations, made it necessary for the district court
to evaluate their impact on the forum non conveniens
issue.
The Second Circuit held that, in the light of the changes
in the Pakistani law, it was "prudent" to vacate
the district court's dismissal order and remand the case
so that the district court could "consider the implications
of [these changes] to its forum non convenies analysis."
Furthermore, the Second Circuit noted that, if the case
is dismissed on remand, the district court should permit
the Plaintiff to "restore [the] case to the district
court's docket in the event that [a competent Pakistani
court] determines that it lacks jurisdiction." Finally,
the Second Circuit observed that while conditional dismissals
could help to protect the non-moving party in circumstances
where there is a concern about a foreign forum's adequacy,
they could not transform an "inadequate forum into
an adequate one."
WTO Appellate Body Report: U.S.
— Tax Treatment for "Foreign Sales Corporations"
(Recourse to Article 21.5 of the DSU by the European Communities),
WT/DS108/AB/RW (January 14, 2002)
The WTO Appellate Body upheld an earlier panel report
that found the U.S. Foreign Sales Corporations Replacement
and Extraterritorial Income Exclusion Act ("ETI Act")
to be inconsistent with the U.S. obligations under the
Agreement on Subsidies and Countervailing Measures ("SCM
Agreement"), the Agreement on Agriculture, and the
General Agreement on Tariffs and Trade 1994 ("GATT
1994"). The U.S. promulgated the ETI Act with a
view to complying with the recommendations and rulings
of the Appellate Body report from February 2000 (seeILIB, February 19 - March 3, 2000),
which also held that the U.S. was in violation of the
SCM Agreement, the Agreement on Agriculture, and the GATT
1994.
In the current case, the Appellate Body held that the
ETI Act granted a tax exemption in favour of income that
is not demonstrated to be "foreign-source income"
within the meaning of footnote 59 to the SCM Agreement.
The Appellate Body noted that the flexibility under footnote
59 to the SCM Agreement could not be extended to allow
Members to "adopt allocation rules that systematically
result in a tax exemption for income that has no link
with a 'foreign' state . . .." The Appellate Body
upheld the panel's finding that the ETI Act provided subsidies
"contingent upon export performance" that were
inconsistent with the U.S. obligations under the Agreement
on Agriculture. The Appellate Body also agreed with the
panel's finding that the ETI Act was inconsistent with
Article III:4 of the GATT 1994 insofar as it accorded
less favourable treatment to imported products than to
like products of the U.S. origin.
International Civil Aviation Organization
(ICAO): Declaration on Misuse of Civil Aircraft as Weapons
of Destruction and Other Terrorist Acts Involving Civil
Aviation, A33-1 (October 5, 2001)
The ICAO Assembly Declaration strongly condemned the
September 11 terrorist attacks against the United States
as contrary to elementary considerations of humanity,
norms of conduct of society, and international law. The
ICAO Assembly declared that the acts of using civil aircraft
as weapons of destruction are contrary to the letter and
spirit of the Convention on International Civil Aviation
("Convention"). The ICAO Assembly urged all
Contracting States to ensure that civil aviation is not
used for any purpose inconsistent with the aims of the
Convention, as well as to hold accountable and punish
severely those who misuse civil aircraft as weapons of
destruction, "including those responsible for planning
and organizing such acts or for aiding, supporting or
harbouring the perpetrators."
The Declaration urged all Contracting States to intensify
their efforts in order to achieve the full implementation
and enforcement of the multilateral conventions on aviation
security, as well as of the ICAO Standards and Recommended
Practices and Procedures relating to aviation security.
The Declaration also urged all Contracting States to make
contributions in the form of financial or human resources
to ICAO's aviation security ("AVSEC") mechanism
to support and strengthen the combat against terrorism
and unlawful interference in aviation. The Declaration
directed the ICAO Council and Secretary General to address
urgently the new and emerging threats to civil aviation,
and to review, inter alia, the adequacy of the
existing aviation security conventions.
U.N. Security Council: Resolution 1379
(On Children and Armed Conflict) (November 20, 2001)
The U.N. Security Council underlined the importance of
the "full, safe and unhindered" access of humanitarian
assistance to all children affected by armed conflict.
The Security Council called upon all parties to respect
fully the relevant provisions of applicable international
law relating to the rights and protection of children
in armed conflict, as well as to provide for the protection
of children in peace agreements by the means of including
provisions on disarmament, demobilization, reintegration
and rehabilitation of child soldiers and the reunification
of families.
The Security Council urged Member States to consider
"measures that may be taken to discourage corporate
actors," within their jurisdictions, from maintaining
commercial relations with parties to armed conflicts that
are on the Security Council's agenda, when those parties
are violating applicable international law on the protection
of children in armed conflict. Furthermore, the Security
Council urged Member States to consider measures against
corporate actors, individuals and entities under their
jurisdiction that engage in illicit trade in natural resources
and small arms, in violation of relevant Security Council
resolutions and the U.N. Charter. Finally, the Security
Council requested the U.N. Secretary-General to take the
protection of children into account in peacekeeping plans
submitted to the Security Council by the way of including
"child protection staff in peacekeeping and, . .
. peace-building operations."
U.N. Security Council: Resolution 1390
(On the Situation in Afghanistan) (January 16, 2002)
Acting under Chapter VII of the U.N. Charter, the U.N.
Security Council decided that certain measures should
be taken by all states with respect to Usama bin Laden,
Al-Qaida members, and the Taliban and other individuals,
groups, undertakings and entities associated with them
("individuals and entities"). According to
the Resolution, the states should inter alia: (1)
freeze, without delay, the funds and other financial assets
or economic resources owned or controlled by these individuals
and entities or by persons acting on their behalf or at
their direction; and (2) prevent the entry into or the
transit through their territories of these individuals
and entities. The Security Council decided that these
measures would be reviewed in twelve months, at which
point they will either be continued or improved. In the
meantime, the Security Council requested all the states
to report within 90 days, and thereafter periodically,
on the steps they have taken to implement the measures
prescribed in the Resolution.
"Do the Laws of War Apply
to the War on Terrorism? Guantánamo, Battlefield Detainees,
and Military Tribunals" is a public meeting co-sponsored
by The American Society of International Law and the Johns
Hopkins University School of Advanced International Studies
(SAIS) International Law and Organization Program, scheduled
for Wednesday, February 13, at 6 p.m. (Rome Auditorium,
at SAIS). The meeting will be moderated by Roy Gutman
of Newsweek magazine, and will address the international
law issues surrounding recent events in the U.S.-led "war
on terrorism." For more information about the meeting,
please visit http://www.asil.org/asilsais.pdf.
International Law In Brief (ILIB)
- Copyright 2002 - The
American Society of International Law (ASIL) Editors: Branislav A. Maric, Scott Smith
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