Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law September 27, 2002
The United State of America-The Principality
of Liechtenstein: Treaty on Mutual Legal Assistance in
Criminal Matters (July 8, 2002)
The United States of America and the Principality of
Liechtenstein (“States Parties”) concluded
the Treaty on Mutual Legal Assistance (“Treaty”)
with the view of providing mutual assistance in connection
with the investigation and prosecution of offenses and
in related forfeiture proceedings. The Treaty aims
at improving the effectiveness of the law enforcement
authorities of both countries in the “investigation
and prosecution of crime ….”
The Treaty provides that Each Party
shall designate a Central Authority through which it will
seek and obtain assistance in matters covered under the
Treaty. The Treaty covers various forms of assistance,
such as service of documents, search and seizure, transfer
and transit of persons in custody, testimonies before
the authorities of one of the Parties, location or identification
of persons or items, return of items, and assistance in
forfeiture proceedings. All the requests for
assistance should be in writing, except in urgent matters
when the request may be accepted in another form.
Under the Treaty, the Central Authority of the Requested
State shall either promptly execute the request or, if
necessary, transmit it to the authority having jurisdiction
to act upon it.
Document obtained in print format
from the U.S. Department of State.
International Centre for Settlement
of Investment Disputes (ICSID) (Additional Facility):
Waste Management, Inc. v. United Mexican States (ICSID
Case No. ARB(AF)/00/3) (Mexico's Preliminary Objection
Concerning the Previous Proceedings — Decision of
the Tribunal), (June 26, 2002)
An ICSID Arbitral Tribunal ruled that the dismissal of
an earlier complaint for lack of a proper waiver did not
preclude the Claimant from resubmitting the same case,
provided that the proper waiver has been filed.
In the Award of June 2, 2000 (see 40 ILM 56 (2001)),
an ICSID tribunal dismissed the claim submitted under
the North American Free Trade Agreement (NAFTA) by Waste
Management, Inc. against Mexico for lack of proper waiver
of the right to initiate or continue before any tribunal
or court a dispute settlement proceeding related to the
same subject matter. The waiver is required under
the NAFTA Article 1121(2)(b), and must be included in
the submission of the claim to arbitration. Subsequently,
the Claimant registered the new notice for the initiation
of arbitration proceedings, effectively resubmitting the
same case, but this time the submission was accompanied
by an unequivocal waiver in accordance with Article 1121.
Mexico objected for lack of jurisdiction, arguing that
the first tribunal decided the claim, "whether or
not it considered [its] merits," and that the issue
should be considered as res judicata.
The current Tribunal noted that, in dismissing the claim,
the first tribunal did not decide what effect its decision
had for the future. Furthermore, the Tribunal noted
that Article 1121 reflected the intention of the NAFTA
Parties to "achieve finality of decision and to avoid
multiplicity of proceedings," and held that there
is nothing in the NAFTA Chapter 11 that "expressly
or impliedly" prohibits a second proceeding to be
brought after the jurisdiction barrier has been removed.
The Tribunal also held that there was nothing under general
international law that would preclude a claimant from
recommencing its action, because the dismissal for lack
of jurisdiction does not constitute a decision on the
merits and "does not preclude a later claim before
a tribunal which has jurisdiction." The Tribunal
opined that there was no indication that the first tribunal
considered or decided any issue pertaining to the merits,
and thus concluded that the first decision did not constitute
a res judicata as to the merits of the current
claim. The Tribunal reserved the questions relating
to the costs and expenses of the current phase for the
later stage of the proceedings.
United States (U.S.) Court of Appeals
for the Fourth Circuit: Hamdi v. Rumsfeld, et al.,
No. 02-6895 (July 12, 2002)
The U.S. Court of Appeals for the Fourth Circuit ("Fourth
Circuit") reversed the district court's order mandating
access to counsel for Mr. Yaser Esam Hamdi, a detainee
at the Norfolk Station Brig who was captured as an alleged
enemy combatant during ongoing military operations in
Afghanistan.
The district court appointed the Public Defender as counsel
to Mr. Hamdi pursuant to a petition for a writ of habeas
corpus that Mr. Hamdi's father had filed under 28 U.S.C.
§§ 2241 and 2242. The district court also ordered
that Mr. Hamdi should have a private meeting with his
council that would not be monitored or recorded by the
Government.
The Fourth Circuit noted that the Supreme Court has accorded
great deference to the political branches in the matters
of foreign policy, national security, or military affairs,
stressing that this deference "extends to military
designations of individuals as enemy combatants in times
of active hostilities, as well as to their detention after
capture on the field of battle."
The Fourth Circuit held that the district court's order
failed to address the "many serious questions"
raised by the Hamdi's case, such as (1) what effect Mr.
Hamdi's unmonitored accesses to counsel might have for
the Government's ongoing gathering of intelligence, and
(2) to what extent federal courts are permitted to review
military judgments of combatant status. The Fourth
Circuit held that the order instead assumed that Mr. Hamdi
is not an enemy combatant, or even if he was one, that
he is nonetheless entitled to immediate and unmonitored
access to a counsel. The Fourth Circuit opined that
this ruling had "sweeping implications for the posture
of the judicial branch during a time of international
conflict."
The Fourth Circuit, however, rejected the Government's
request for dismissal of the petition, which argued that
courts cannot second-guess the military's determination
of the military combatant status and the subsequent detention.
The Fourth Circuit held that this would exclude any meaningful
judicial review, and would be same as to accept that "any
American citizen alleged to be an enemy combatant could
be detained indefinitely without charges or counsel on
the government's say-so."
The Fourth Circuit instructed the district court that,
upon remand, it "must consider the most cautious
procedures first, conscious of the prospect that the least
drastic procedures may promptly resolve Hamdi's case and
make more intrusive measures unnecessary," as well
as to respect the constitutional delegation of the conduct
of war to the political branches.
World Trade Organization (WTO) Decision
of the Arbitrator: United States — Tax Treatment
for "Foreign Sales Corporations" (Recourse to
Arbitration by the United States under Article 22.6 of
the DSU and Article 4.11 of the SCM Agreement), WT/DS108/ARB
(August 30, 2002)
A WTO Arbitrator ruled that the European Communities
("EC") is entitled to impose tariff countermeasures
on imports of certain goods from the United States to
a maximum of US$4.043 billion per year.
The decision represents the culmination of proceedings
that the EC initiated in 1997 against the United States
alleging that the U.S. practice, provided for under the
U.S. Internal Revenue Code Foreign Sales Corporation ("FSC")
Rules, to exempt the so called "foreign trade income"
from taxation in the United States represented a subsidy
contrary to the United States' WTO obligations.
The dispute was adjudicated by a WTO panel and appealed
before the WTO Appellate Body, resulting in the WTO Dispute
Settlement Body ("DSB") recommendation to the
United States to, inter alia, withdraw the FSC
measure because it represented an illegal subsidy.
The United States subsequently passed the FSC Repeal and
Extraterritorial Income Exclusion Act of 2000 ("ETI
Act"), deeming that the ETI Act implemented the DSB
recommendation and brought the U.S. tax measures in compliance
with its WTO obligations. The EC disagreed and Article
21.5 proceedings ensued, resulting in new panel and Appellate
Body proceedings and decisions that upheld the EC position.
In November 2000 and after the DSB issued its first recommendations
in the dispute, the EC requested an authorization to take
appropriate countermeasures. The United States objected
requesting that the matter be referred to arbitration.
The arbitral proceedings were suspended, however, until
the exhaustion of procedures under Article 21.5.
The Arbitrator resumed its work after the DSB adopted
Article 21.5 panel and Appellate Body reports on January
29, 2002. The United States contested the EC's US$4.043
billion estimate of appropriate countermeasures, arguing
that this was "disproportionate to the trade impact
of the inconsistent measure on the European Communities."
The United States argued that the appropriate amount for
countermeasures was in the maximum amount of US$1.110
billion.
The Arbitrator noted that it was undisputed between the
parties that the United States, as the applicant in this
arbitral proceeding, bears the burden of proving its assertions
that the requested level of suspension of concessions
is not an appropriate countermeasure, and is not equivalent
to the level of nullification and impairment that the
EC suffered. The parties also agreed that the ETI
Act was the relevant measure that should be considered
in the course of the current proceedings, since it was
the implementing measure found to be inconsistent with
the U.S. obligations under the WTO. The Arbitrator
held that the proposed EC countermeasures would not in
a "literal sense" amount to an exact counter
to the benefits to recipients of the FSC/ETI subsidy because
it is "impossible for a foreign government to counter
precisely the specific benefits to specific firms."
The Arbitrator concluded that the proposed countermeasures
were not disproportionate to the "initial wrongful
act" to which they are intended to respond.
Click here for the European
Communities' September 13, 2002, Notice on invitation
for comments on the list of products that could be subject
to countermeasures.
The President of the United States
of America: The National Security Strategy of the United
States of America (September 17, 2002)
The President of the United States of America ("the
U.S. President") stressed that the "first and
fundamental" commitment of the Federal Government
is to defend the nation against its enemies, and that
as a matter of "common sense and self-defense, America
will act against [...] emerging threats before they are
fully formed." The U.S. President also promised
that the United States will "hold to account"
nations compromised by terror, including those harboring
terrorists, because "the allies of terror are the
enemies of civilization."
The U.S. President declared that the
United States will defend the peace by "fighting
terrorists and tyrants," noting that terrorists are
organized to penetrate open societies and to "turn
the power of modern technologies against us."
The U.S. President noted that the events of September
11, 2001 show that "weak states, like Afghanistan,
can pose as great a danger to [the U.S.] national interests
as strong states." The U.S. President also
noted the U.S. conviction that no nation can build a safer,
better world alone and that all nations have important
responsibilities, stressing that those that enjoy freedom
"must actively fight terror."
Finally, the U.S. President declared that the United
States is committed to such "lasting institutions"
as the United Nations, the World Trade Organization, the
Organization of American States, and NATO, as well as
other "long-standing alliances," assuring that
international obligations "are to be taken seriously"
in all cases.
The ASIL's International
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in their second year or higher to assist as Fall 2002
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credit may, however, be available for students who qualify.
For more information please contact Branislav A. Maric
at bmaric@asil.org,
or mail a cover letter and a current resume to International
Legal Materials, The American Society of International
Law, 2223 Massachusetts Ave., N.W., Washington, D.C. 20008-2864.
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