Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law April 18, 2002
European Court of Human Rights (ECHR):
Milosevic v. The Netherlands, Application no. 77631/01
(March 19, 2002)
The ECHR rejected as inadmissible, for the reason of
non-exhaustion of domestic remedies, the application that
Mr. Slobodan Milosevic, the Former President of the Federal
Republic of Yugoslavia, had filed against the Netherlands.
Mr. Milosevic has been in custody of The Hague-based International
Criminal Tribunal for the Former Yugoslavia (ICTY) since
June 29, 2001, and he brought summary civil proceedings
against the Netherlands before the Regional Court of The
Hague.* The Regional Court rejected Mr. Milosevic's
request for release from the ICTY's custody for the lack
of jurisdiction, and held that all other claims submitted
by Mr. Milosevic fell within the ICTY's exclusive competence
(see ILIB — November 6, 2001). Mr. Milosevic
appealed this ruling at first, but then withdrew the appeal
on January 17, 2002.
The ECHR noted that Mr. Milosevic complained, inter
alia, under Article 5 ("Right to Liberty and
Security") of the European Convention
for the Protection of Human Rights and Fundamental Freedoms
that his detention on Netherlands territory was illegal
under Netherlands domestic law, that the ICTY's establishment
pursuant to a United Nations Security Council Resolution
was unlawful, and that he enjoyed immunity from prosecution
as a former head of state. The ECHR held, however,
that Mr. Milosevic did not "make use of the opportunities
offered by Netherlands law" to challenge the findings
of The Hague Regional Court. The ECHR rejected Mr.
Milosevic's argument that the Regional Court's judgment
demonstrated that he was left without "adequate and
effective" domestic remedies, and reiterated that
the existence of "mere doubts" as to the prospects
of success of a particular remedy, which was not "obviously
futile," was not a valid reason for failing to exhaust
domestic remedies.
* The English translation of The Hague
Regional Court's decision was submitted to ILM Office
by the Netherlands Ministry of Foreign Affairs.
The translation referred to the court as the "Hague
District Court," which was the name used in the subsequent
ILIB summary. The text of the translation is available
in January 2002 ILM issue (41 ILM 86 (2000)).
United States (U.S.) Court of Appeals
for the Ninth Circuit: Glencore Grain Rotterdam B.V.
v. Shivnath Rai Harnarain Co., No. 01-15539 (March
26, 2002)
The U.S. Court of Appeals for the Ninth Circuit ("Ninth
Circuit") affirmed the district court's dismissal
of Glencore Grain's application for the confirmation of
its arbitration award against Shivnath Rai, an Indian
manufacturer and exporter of rice. Glencore Grain,
a Netherlands Corporation, requested the recognition of
the award, which had been obtained in the United Kingdom,
pursuant to the Convention on the Recognition and Enforcement
of Foreign Arbitral Awards ("New York Convention"),
but the district court dismissed this request for the
lack of personal jurisdiction. The Ninth Circuit
reviewed the dismissal de novo.
The Ninth Circuit held that both the New York Convention
and Chapter II of the Federal Arbitration Act ("FAA"),
the New York Convention's implementing legislation for
the U.S., provided for the subject matter jurisdiction
of the district court over the Glenrcore Grain's application.
The Ninth Circuit found, however, that neither the New
York Convention nor the FAA removed the district court's
"obligation" to find the personal jurisdiction
over Shivnath Rai. The Ninth Circuit held that personal
jurisdiction could not be established over Shivnath Rai,
inter alia, because it lacked the requisite minimum
contacts with California, where there was no evidence
that Shivnath Rai owned any property, kept bank accounts,
had employees, solicited business, or had designated an
agent for service of process.
United States (U.S.) Court of Appeals
for the Ninth Circuit: Rio Properties, Inc. v. Rio
International Interlink, No. 01-15466; No. 01-15784
(March 20, 2002)
The U.S. Court of Appeals for the Ninth Circuit ("Ninth
Circuit") upheld the district court's decision that
had, inter alia, allowed for service of process
on Rio International Interlink ("RII"), a Costa
Rican entity participating in an Internet sports gambling
operation, via RII's email address. The case involved
various "statutory and common law" trademark
infringement claims filed by Rio Properties, Inc. ("RIO"),
a U.S. casino owner and the holder of the registered domain
name "www.playrio.com," against the RII for
its use of domain names that were very similar to the
one used by RIO.
The Ninth Circuit recalled that there was no precedent
in the U.S. Courts of Appeals dealing with service of
process by email and "only one case anywhere in the
federal courts." The Ninth Circuit held that
the Federal Rule of Civil Procedure 4(f)(3) permitted
the district court to order a "special method of
service," even if other methods of service remained
incomplete or unattempted. The Ninth Circuit also
held that the Constitution did not require any particular
means of service of process, but only required that the
method selected was "reasonably calculated"
to provide notice and an opportunity to respond.
The Ninth Circuit concluded that this broad constitutional
principle unshackled the federal courts from "anachronistic
methods of service and permits them entry into the technological
renaissance." The Ninth Circuit noted that
email was the method of communication utilized and preferred
by RII, which “had neither an office nor a door,”
but only a computer terminal.
International Court of Justice (ICJ):
Practice Directions (April 4, 2002)
The ICJ promulgated a set of nine Practice Directions
aimed primarily at improving its working methods and accelerating
its procedure, as well as increasing the number of decisions
that it renders each year. Practice Direction I
discourages the practice of simultaneous deposit of pleadings
in cases brought by special agreements, and notes that
the ICJ "would expect" that future special agreements
contain provisions as to the number and order of pleadings.
Practice Direction III notes an "excessive tendency"
towards the "proliferation and protraction"
of annexes to written pleadings, and strongly urges parties
to append to their pleadings only "strictly selected"
documents.
Practice Directions VII and VIII provide that it is not
in the "interest of the sound administration of justice"
that (1) a person who recently acted, or is still acting,
as an agent, counsel or advocate in one case before the
Court, sits as a judge ad hoc in another case;
and (2) a recent Member of the Court, judge ad hoc,
Registrar, Deputy-Registrar or a higher official of the
Court, appears as agent, counsel or advocate in a case
before the Court. The Directions call on parties
to a case to refrain from nominating or designating such
individuals as judges ad hoc, agents, counsels
or advocates until the expiration of the period of three
years after their last appearance before or appointment
with the Court.
Click here
for a copy of the text of practice directions.
League of
Arab States: The Beirut Declaration (March 28, 2002)
The League of Arab States requested
Israel to reconsider its policies and "declare that
a just peace is its strategic option as well."
The League called upon Israel to facilitate: (1) its full
withdrawal from all the territories occupied since 1967;
(2) the achievement of a just solution to the Palestinian
Refugee problem, in accordance with the United
Nations General Assembly Resolution 194; and (3) the
acceptance of the establishment of a "Sovereign Independent
Palestinian State on the Palestinian territories occupied
since the 4th of June 1967 in the West Bank
and Gaza strip, with East Jerusalem as its capital."
According to the Declaration, the Arab Countries would
in return "consider the Arab-Israeli conflict ended,"
and enter into a peace agreement and establish normal
relations with Israel. The Arab States also
declared that they would provide security for all the
states in the region.
United Nations (U.N.) Security Council:
Resolution 1403 (On the Situation in the Middle East,
Including the Palestinian Questions), S/RES/1403 (April
4, 2002)
The U.N. Security Council demanded the implementation
of its Resolution 1402 (see ILIB — April 4, 2002), which has not
yet been implemented, and expressed its concern over the
further deterioration of the situation in the Middle East.
The Security Council welcomed the mission of the United
States Secretary of State to the region, and other efforts
to bring about a "comprehensive, just and lasting
peace to the Middle East." The Security Council
will remain seized of the matter.
The Rome Statute of the
International Criminal Court (ICC) will enter into force
on July 1, 2002, after 10 new states ratified the Statute
on a special ceremony held on April 11, 2002 at the United
Nations’ New York headquarters. Currently,
the total number of States Parties to the ICC Statute
is 66, which is six more that the number required for
its entry into force. It is expected that the ICC
will become fully operational in 2003. For more
information about the ICC, click here
to visit the ICC website. For more details on the
April 11 ratifications, click here to read the latest ASIL Insight.
The United States informed the World Trade
Organization (WTO) that it intends to implement the recommendations
set forth in the WTO Appellate Body Report in United
State — Section 211 Omnibus Appropriation Act of
1998 (AB-2001-7, January 2, 2002) by January 3, 2003.
The Appellate Body report found certain portions of the
1998 Act to be inconsistent with most-favored-nations
principals. For more information on the Report,
click here for an earlier ILIB summary.
NEW! ILM CD-ROM containing all six ILM issues from 2001 is now available.
CD-ROM does not require any pre-installation and includes
a full-search option. Prices as low as $50. For more
information on the CD-ROM and how to order, please click
here.
International Law In Brief (ILIB) - Copyright 2002
- The American Society
of International Law (ASIL) Editors: Branislav A. Maric, Scott Smith
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