Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law November 11, 2002
The Hague District Court, the Netherlands:
Slobodan Milosevic v. The International Tribunal for
the Prosecution of Persons Responsible for Serious Violations
of International Humanitarian Law Committed in the Territory
of the Former Yugoslavia since 1991, et al. (Judgment
in Interim Injunction Proceedings), Case No. KG 02/105
(February 26, 2002)
The Hague District Court ("court") dismissed
an application for provisional relief filed by Mr. Slobodan
Milosevic, the former president of the Federal Republic
of Yugoslavia, against the International Tribunal for
the Prosecution of Persons Responsible for Serious Violations
of International Humanitarian Law Committed in the Territory
of the Former Yugoslavia since 1991 ("Tribunal")
and the State of the Netherlands.
In his application, Mr. Milosevic alleged that the Tribunal
has been denying him the right to unhindered and confidential
communication with his lawyers, in the context of proceedings
that Mr. Milosevic had instituted before the European
Court of Human Rights ("ECHR").* Mr. Milosevic
argued that this has been in violation of Article 6 (i.e.,
right to a fair trial), paragraph 3(b) and (c) of the
European Convention for the Protection of Human Rights
and Fundamental Freedoms, and of Article 14, paragraph
3(b) of the International Covenant on Civil and Political
Rights. Mr. Milosevic requested the court to order
the Tribunal to enter into consultations with him in order
to find a solution which will end the Tribunal's "violation
of his right to correspond with, ..., his lawyers"
in connection with the ECHR case. In addition, Mr.
Milosevic requested the court to order the State of the
Netherlands to urge the Tribunal to enter into the consultation.
The court ruled that the State of the Netherlands and
its courts lacked competence to take cognizance of Mr.
Milosevic's claim. The Court noted that the Netherlands
had "expressly" transferred this authority to
the Tribunal pursuant to the provisions of the Agreement
of 29 July 1994 between the Netherlands and the United
Nations (also known as "the Headquarters Agreement")
and the Act of Parliament of 21 April 1994 (also known
as the "Implementation Act"). Thus, the
court concluded that the "the State of the Netherlands
has nothing to do with the plaintiff's being deprived
of his liberty by the Tribunal."
Document obtained from the Dutch Ministry of Foreign
Affairs.
* The ECHR subsequently dismissed Mr. Milosevic's
application in this proceeding for the failure to exhaust
local remedies in the Netherlands. For more information
on this decision, please see April 18, 2002 ILIB.
United States (U.S.) Court of Appeals
for the Second Circuit: Virtual Countries, Inc. v.
Republic of South Africa, et al., Docket No. 01-7900
(August 7, 2002)
The U.S. Court of Appeals for the Second Circuit affirmed
the U.S. District Court for the Southern District of New
York's ("district court") dismissal of a complaint
against the Republic of South Africa ("South Africa")
and South African Tourism Board, upholding the district
court's finding of immunity under the Foreign Sovereign
Immunities Act of 1976 ("FSIA").
The case arose out of a controversy surrounding the "southafrica.com"
Internet domain name, owned by Virtual Countries ("Virtual").
Virtual, a U.S. comany, has been using "southafrica.com"
to provide access to news, weather, tourist and other
information related to the southern region of the African
continent. In a press release of October 30, 2000,
South Africa stated that it intends to lodge an application
claiming the "southafrica.com" domain with the
World Intellectual Property Organization ("WIPO")
in order to be able to use it as a strategic marketing
tool in promoting trade and tourism. South Africa
asserted that sovereign countries have the "first
right" to own their own domain names. Virtual
alleged that this statement by South Africa had a "'devastating
and direct effect ... on [Virtual's] short and long-term
business operations'," including Virtual's ability
to raise capital. The district court dismissed the
complaint for the lack of subject matter jurisdiction
under the FSIA holding, inter alia, that the press
release had no direct effect in the United States.
Virtual appealed.
The Second Circuit ruled that Virtual failed to provide
sufficient evidence for the contentions that it had lost
investment opportunities, or that South Africa's press
release caused its financial difficulties. The Second
Circuit noted that an effect is direct "if it follows
as an immediate consequence of the defendant's
activity," and stressed that Congress did not intend
to provide jurisdiction "wherever the ripples caused
by an overseas transaction manage eventually to reach
the shores of the United States." (Emphasis
in original.) The Second Circuit held that South
Africa's press release mentioned only its intention to
initiate arbitral proceedings, and that it would be speculative
to conclude that this triggered Virtual's alleged injury.
The Second Circuit concluded that to permit jurisdiction
in this case would be contrary to the "predictability
interest fostered by the [FSIA]."
Council of the European Union: Council
Conclusions and EU Guiding Principles concerning Arrangements
between a State Party to the Rome Statute of the International
Criminal Court and the United States Regarding the Conditions
to Surrender of Persons to the Court (September 30, 2002)
The Council of the European Union ("Council")
confirmed the EU support for the early establishment and
effective functioning of the International Criminal Court
("ICC") and the preservation of the "full
integrity of the Rome Statute." The Council
stressed that the ICC is the international community's
"effective tool ... to buttress the rule of law and
combat impunity for the gravest crimes."
The Council adopted the Guiding Principles as the guidelines
for the Member States when "considering the necessity
and scope of possible agreements or arrangements"
with the United States regarding the conditions for surrender
to the ICC. The Guiding Principles note that entering
into U.S.-proposed agreements, as presently drafted, would
be inconsistent with the obligations of the ICC States
Parties under the ICC Statute and "may be inconsistent"
with other international agreements to which ICC States
are Parties.
The Guiding Principles require that any solution should
ensure that persons who committed crimes falling within
the ICC's jurisdiction do not enjoy impunity. The
Guiding Principles further require that any solution as
to the "scope of persons" should take into account
that international law provides some persons with state
or diplomatic immunity, as well as that the it should
"cover only persons present on the territory of a
requested State because they have been sent by a sending
State." The Guiding Principles provide that
any new agreement or an amendment to an existing one is
ratified "in accordance with the constitutional procedures
of each individual state."
Click here
for the Conclusions and Guiding Principles.
The European Convention
(The Secretariat): Preliminary Draft Constitutional Treaty
(October 28, 2002)
The Presidium of the European Convention,* chaired by
Mr. Valéry Giscard d'Estaing, issued the preliminary draft
Constitutional Treaty. The proposed names for the
Union are European Union, European Community, United States
of Europe and United Europe. The draft provides
that the Union's values are "human dignity, fundamental
rights, democracy, the rule of law, tolerance, respect
for obligations and for international law."
The Union's objectives are, inter alia, (1) protection
of the common values, interests and independence of the
Union; (2) promotion of economic and social cohesion;
(3) strengthening of the internal market, and of economic
and monetary union; and (4) development of a common foreign
and security policy, and common defense policy, to "defend
and promote the Union's values in the wider world."
The draft provides for a single institutional structure,
aimed at ensuring the "consistency and continuity
of the policies and activities carried out in order to
attain the Union's objectives." The draft lists
the following institutions of the Union: the European
Council and its Presidency, the European Parliament, the
Commission and its Presidency, a Congress of the Peoples
of Europe, the Court of Justice, the Court of Auditors,
and the European Central Bank. Under the draft,
the European Parliament, the Council and the Commission
will be assisted by two advisory organs: an Economic and
Social Committee and a Committee of the Regions.
Click here
for the preliminary draft constitutional treaty.
The European Convention's purpose is to "propose
a new framework and structures for the European Union
which are geared to changes in the world situation, the
needs of the citizens of Europe and the future development
of the European Union." For more information,
visit the European
Convention web site.
United Nations (U.N.) Security Council:
Resolution 1438 (On the Threats to International Peace
and Security Caused by Terrorist Acts), S/RES/1438 (October
14, 2002)
The U.N. Security Council condemned "in the strongest
terms" the recent bomb attacks in Bali, Indonesia,
as well as other recent attacks in various other countries.
The Security Council stressed that it regards such acts
of international terrorism as a threat to international
peace and security. The Security Council urged all
states, in accordance with Resolution 1373 (2001) (see
October 23, 2001 ILIB),
to work together urgently and to cooperate with and provide
support and assistance to the Indonesian authorities in
their efforts to find and bring to justice the perpetrators,
organizers and sponsors of these terrorist attacks.
United Nations (U.N.) Security Council:
Resolution 1441 (The situation between Iraq and
Kuwait) (November 8, 2002)
The U.N. Security Council, acting under Chapter VII of
the U.N. Charter, decided that Iraq "has been and
remains in material breach of its obligations" under
relevant U.N. resolutions, and recalled that it has repeatedly
warned Iraq that it will face "serious consequences"
as a result of its continued violations of its obligations.
In particular, the Security Council noted Iraq's failure
to cooperate with U.N. inspectors and the International
Atomic Energy Agency (IAEA). The Security Council
decided that the current Resolution should afford "a
final opportunity" for Iraq to comply with its disarmament
obligations, as well as to set up an enhanced inspection
regime with the aim of bringing to "full and verified
completion the disarmament process established by resolution
687 (1991) and subsequent resolutions of the Council."
The Resolution requires Iraqi Government to provide to
U.N. Monitoring, Verification and Inspection Commission
(UNMOVIC), the IAEA, and the Security Council, within
30 days, a "currently accurate, full and complete
declaration of all aspects of its programmes to develop
chemical, biological, and nuclear weapons, ballistic missiles,
and other delivery systems such as unmanned aerial vehicles
and dispersal systems designed for use on aircraft, including
any holdings and precise locations of such weapons, components,
sub-components, stocks of agents, and related material
and equipment, the locations and work of its research,
development and production facilities, as well as all
other chemical, biological, and nuclear programmes, including
any which it claims are for purposes not related to weapon
production or material."
The Resolution also requires that UNMOVIC and the IAEA
have immediate, unimpeded, unconditional, and unrestricted
access to, inter alia, "any and all, including
underground, areas, facilities, buildings, equipment,
records, and means of transport which they wish to inspect."
The Resolution authorizes UNMOVIC and the IAEA to resume
inspection no later than 45 days following the date of
its adoption, and requires them to update the Security
Council 60 days thereafter. The Resolution demands
that Iraq cooperate "immediately, unconditionally,
and actively with UNMOVIC and the IAEA."
The Security Council requested the U.N. Secretary-General
to immediately notify Iraq of the Resolution, and demanded
that Iraq confirm within seven days of that notification
its intention to comply fully with its provisions.
On October 22, 2002, the U.N. General Assembly and the
Security Council re-elected two present ICJ Members, Judges
Shi Jiuyong (China) and Abdul G. Koroma (Sierra Leone),
and elected three new members, Messrs. Hisashi Owada (Japan),
Bruno Simma (Germany) and Peter Tomka (Slovakia), to serve
the terms of office of nine years, starting February 6,
2003. For more information and biographies of the
newly elected members, click here
to access the relevant press release.
On November 7, 2002, the ICJ concluded the public hearings
related to the Federal Republic of Yugoslavia's Application
for Revision of the Judgment of 11 July 1996 in the Case
Concerning Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Yugoslavia), Preliminary Objections (Yugoslavia v.
Bosnia and Herzegovina). The public hearings
were devoted to the question of the admissibility of Yugoslavia's
Application. Click here
for related press release.
