Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law November 27, 2002
The Heads of State and Government of NATO member states
decided to invite Bulgaria, Estonia, Latvia, Lithuania,
Romania, Slovakia and Slovenia to immediately beginaccession talks to join NATO, noting that their accession
will "enhance NATO's ability to face the challenges
of today and tomorrow." The accession protocols
are expected to be signed by the end of March 2003, while
the completion of the ratification process and official
joining of the new members should take place not later
than at the May 2004 NATO Summit.
The Heads of State also decided to create a NATO Response
Force (NRF), stressing that effective military forces
are "vital" to safeguard the freedom and security
of NATO member states' populations and to contribute to
peace and security in the Euro-Atlantic region.
The NRF will consist of a "technologically advanced,
flexible, deployable, interoperable and sustainable"
force, which will reach its initial operational capability
by not later than October 2004 and its full operational
capability by not later than October 2006. The Heads
of State stressed that terrorism poses a "grave and
growing threat to Alliance populations, forces and territory,
as well as international security," and expressed
their determination to combat "this scourge"
for as long as necessary using a "multi-faceted"
and "comprehensive" approach.
Organization of American States (OAS):
Inter-American Convention Against Terrorism (June 3, 2002)
The Convention sets forth as its main objective the prevention,
punishment and elimination of terrorism. In order
to achieve this goal, the Convention obliges the States
Parties to adopt the necessary measures and to strengthen
mutual cooperation. The Convention lists ten international
instruments already in existence that the States Parties
to the Convention shall "endeavor" to join,
in case they still have not done so, and effectively implement
their provisions.
The Convention requires each State Party to institute
a legal and regulatory regime to prevent, combat, and
eradicate the financing of terrorism that shall include:
(1) domestic regulatory and supervisory measures for banks
and other financial institutions and entities that are
particularly susceptible to being used for the financing
of terrorist activities; (2) measures to detect and monitor
cross-border movements of cash, bearer negotiable instruments,
and "other appropriate movements of value;"
and (3) the establishment of a domestic financial
intelligence unit to "serve as a national center
for the collection, analysis and dissemination of pertinent
money laundering and terrorist financing information."
The Convention prohibits the States Parties from denying
a request for extradition or mutual legal assistance solely
on the ground of a political offense exception.
The Convention, however, requires each State Party to
deny refugee status to a person in respect of whom "there
are serious reasons for considering" that he or she
has committed an offense established in the international
instruments listed in the Convention. Similarly,
the Convention requires a denial of an asylum application
if there are "reasonable grounds to believe"
that the person committed an offense under the relevant
international instruments.
United Nations (U.N.): Draft Optional
Protocol to the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (November
7, 2002)
The U.N. Third Committee (Social, Humanitarian and Cultural)
approved the Draft Optional Protocol with the objective
to establish procedures for systematic visits by independent
international and national bodies to "places where
people are deprived of their liberty, in order to prevent
torture and other cruel, inhuman or degrading treatment
or punishment." The Draft Optional Protocol obliges
each State Party to allow visits to "any place under
its jurisdiction and control where persons are or may
be deprived of their liberty, either by virtue of an order
given by a public authority or at its instigation or with
its consent or acquiescence." Once it is adopted
by the U.N. General Assembly, the Optional Protocol will
be opened for signatures of the States Parties to the
Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, and shall enter into
force on the thirtieth day after the date of deposit of
the twentieth instrument of ratification or accession.
The Draft Optional Protocol establishes a Subcommittee
on Prevention of Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment within the existing Committee
against Torture. The Subcommittee shall be guided by
the principles of "confidentiality, impartiality,
non-selectivity, universality and objectivity," and
shall consist initially of ten members. The Draft Optional
Protocol requires each State Party to establish a national
preventive mechanism by setting up, designating or maintaining
one or several domestic "visiting bodies" for
the prevention of torture and other cruel, inhuman or
degrading treatment or punishment.
The Subcommittee shall design a program of regular visits,
and shall notify the States Parties about it so that they
could "make the necessary practical arrangements
for the visits to take place." Under the Draft Optional
Protocol, the States Parties shall, inter alia,
provide the Subcommittee with: (1) an unrestricted access
to all information regarding the number of detainees,
their treatment and conditions of detention, as well as
the number of detention places and their locations; (2)
the opportunity to have private interviews with the detainees
"without witnesses;" and (3) the liberty to
choose the places it wants to visit and the persons it
wants to interview. The Draft Optional Protocol restricts
objections to a visit to a particular place of detention
to those made on "urgent and compelling grounds of
national defence, public safety, natural disaster or serious
disorder in the place to be visited which temporarily
prevent the carrying out of such a visit," and excludes
a declaration of a state of emergency as a reason for
any such objection.
Click here
for a copy of the Draft Optional Protocol.
International Centre for Settlement
of Investment Disputes (ICSID) (Additional Facility):
Mondev International Ltd. v. United States of America,
Case No. ARB(AF)/99/2 (October 11, 2002)
An ICSID Arbitral Tribunal dismissed a claim alleging
violation of the minimum standard of treatment guaranteed
under Article 1105(1) of the North American Free Trade
Agreement (NAFTA) that Mondev International Ltd., a Canadian
company, had filed against the United States, holding
inter alia that there was "no trace"
of a procedural denial of justice to Mondev.
The claim arose out of a 1978 commercial real estate
development contract that Lafayette Place Associates ("LPA"),
an entity owned by Mondev, concluded with the City of
Boston ("the City") and the Boston Redevelopment
Authority ("BRA"). In 1992, LPA sued the
City and BRA for breach of contract, obtaining a jury
verdict in 1994 in its favor against both defendants.
The jury verdict was subsequently upheld by a trial judge
against the City, but set aside on the basis of immunity
from suit for intentional torts in respect of BRA.
On appeal, the Massachusetts Supreme Judicial Court affirmed
the ruling in respect of BRA, and also accepted the City's
appeal regarding the contract claim. LPA's subsequent
petitions for rehearing and for certiorari to the United
States Supreme Court were denied. In 1999, Mondev
brought the current claim pursuant to NAFTA Article 1116
and ICSID Additional Facility Rules "on its own behalf
for loss and damage caused to its interests in LPA."
Like the tribunal in the Pope & Talbot case
(see June 27, 2002 ILIB for the summary of the tribunal's
award on damages), the current Tribunal addressed the
July 31, 2001 NAFTA Free Trade Commission's interpretation
of Article 1105(1), which requires in the relevant part
that each NAFTA Party accords to investments of investors
of another Party treatment "in accordance with international
law, including fair and equitable treatment and full protection
and security." The FTC interpreted the terms
"fair and equitable treatment" and "full
protection and security" as not requiring treatment
"in addition to or beyond" that which is required
by the customary international law minimum standard of
treatment for aliens.
The Tribunal accepted U.S. argument that an arbitral
tribunal may not apply its own "idiosyncratic standard
in lieu of the standard laid down in Article 1105(1)."
The Tribunal noted that the FTC's interpretation clarified
that Article 1105(1) refers to a standard existing under
customary international law, and not to standards established
by other treaties that NAFTA Parties have entered into
and which have "their own systems of implementation."
The Tribunal held that, in the absence of a "clear
indication" to the opposite in NAFTA text, there
was no intention to incorporate by reference "extraneous
treaty standards" in Article 1105 and to make NAFTA
Chapter XI arbitration applicable to them. As to
the "minimum standard of treatment," the Tribunal
noted that this standard has "historically been understood
as a reference to a minimum standard under customary international
law, whatever controversies there may have been over the
content of that standard." The Tribunal further
held that by the term "customary international law"
the FTC referred to customary international law as it
"stood no earlier than the time at which NAFTA came
into force."
United States (U.S.) Court of Appeals
for the Second Circuit: Monegasque de Reassurances
S.A.M. (Monde Re) v. Nak Naftogaz of Ukraine, et al.,
Docket Nos. 01-7947, 01-9153 (November 15, 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 dismissal, on the basis of the forum non conveniens
doctrine, of a petition for confirmation of a foreign
arbitral award under the Convention on the Recognition
and Enforcement of Foreign Arbitral Awards ("New
York Convention").
Monde Re, a re-insurer organized under the laws of Monaco,
obtained an arbitration award against Naftogaz, an Ukrainian
company, from the International Commercial Court of Arbitration
in Moscow and subsequently sought its confirmation in
the United States. In addition to Naftogaz, Monde
Re sought confirmation and judgment against Ukraine, which
was not a party to the arbitration, arguing that Naftogaz
was an "agent, instrumentality or alter ego of Ukraine."
In dismissing Monde Re's petition on forum non conveniens
grounds, the district court inter alia held that
enforcing an award in a forum that has no connection to
the dispute or to the place of arbitration would "discourage
the use of arbitration provisions in international commercial
agreements and therefore 'might chill international trade'."
Monde Re appealed.
The Second Circuit held that doctrine of forum non
conveniens is procedural in nature and that it may
be applied in the course of recognition of domestic arbitral
awards, as well as those governed by the New York Convention.
The Second Circuit noted that Article V of the New York
Convention provides for seven grounds for refusal of the
recognition of an arbitral award that "pertain to
substantive matters rather than to procedure."
The Second Circuit also noted that Article III requires
that proceedings for enforcement of foreign arbitral awards
are subject to the rules of procedure that are applied
in the courts where enforcement is sought, holding that
the States Parties to the New York Convention were therefore
left free to apply differing procedural rules, as long
as they are not more burdensome than those applied in
respect of domestic awards.
Analyzing Monde Re's petition under the forum non
conveniens doctrine, the Second Circuit held that
Monde Re's choice of forum deserves "little deference"
because it was clear that "the jurisdiction provided
by the Convention is the only link between the parties
and the United States." The Second Circuit
also held that Ukraine could serve as an alternative forum
for the case, rejecting Monde Re's argument that that
forum would be inadequate because of "general corruption
in the body politic of that nation." The Second
Circuit concluded that this argument was a "speculation,"
and noted that it has been "reluctant to find foreign
courts 'corrupt' or 'biased'."
United States (U.S.) Court of Appeals
for the Ninth Circuit: United States v. Neil, No.
01-50459, D.C. No. CR-00-01292-SVW-1 (November 20, 2002)
The U.S. Court of Appeals for the Ninth Circuit affirmed
the judgment of the U.S. District Court for the Central
District of California, which established extraterritorial
jurisdiction over a foreign defendant who engaged in sexual
contact with a minor on a round-trip cruise that originated
from one of California's ports.
Mr. Emmanuel Ormand Neil, a citizen of St. Vincent and
the Grenadines, worked as a cabin steward on a cruise
ship registered in Panama that was operating weekly round-trip
cruises from San Pedro Harbor, California, to various
ports in Mexico. In October 2000, Mr. Neil admitted
the sexual molestation of a 12-year-old female passenger,
a U.S. citizen, and signed a written confession.
The crime took place in Mexican territorial waters.
In the subsequent trial, the district court sentenced
Mr. Neil to six months in custody after he had pled guilty
to two counts of sexual contact, reserving the right to
appeal the jurisdictional holding.
The Ninth Circuit held that both Congressional intent
and international law principles support the exercise
of extraterritorial jurisdiction over Mr. Neil's crime.
The Ninth Circuit noted that Congressional definition
of the special U.S. maritime and territorial jurisdiction,
contained in 18 U.S.C. § 7(8), includes "'[t]o the
extent permitted by international law, any foreign vessel
during a voyage having a scheduled departure from or arrival
in the United States with respect to an offense committed
by or against a national of the United States'."
As to the relevant international law principles, the Ninth
Circuit held that both the territorial and passive personality
principle apply in the current case because the crime,
which had been performed outside of U.S. borders, had
"detrimental effects within the United States"
and was committed against a U.S. national.
Africa Legal Aid (AFLA):
The Cairo-Arusha Principles on Universal Jurisdiction
in Respect of Gross Human Rights Offences: An African
Perspective (October 21, 2002)
The AFLA initiated the drafting of the Principles on
Universal Jurisdiction in Respect of Gross Human Rights
Offences ("Principles") prompted by, "among
other things," a concern for lack of prosecution
of the offenses which "have particular resonance
in Africa, such as the crime of apartheid."
(Emphasis in original) The Principles are aimed
at assisting African and other governments in "exercising
their powers and obligations, human rights organisations
and legal practitioners in their attempts to pursue international
justice, and advocacy and lobbying initiatives,"
as well as at "contributing to the progressive development
of international law."
The Principles provide that universal jurisdiction applies
to gross human rights offences committed "even in
peacetime." The Principles also provide that
universal jurisdiction should not be limited only to natural
persons, but that it should extend to legal entities as
well. The Principles suggest that crimes such as
acts of plunder and gross misappropriation of public resources,
trafficking in human beings and serious environmental
crimes, which have "major adverse economic, social
or cultural consequences," should be added to the
list of crimes subject to universal jurisdiction.
The Principles also require that states adopt measures
ensuring that their courts can exercise universal jurisdiction
over gross human rights offences, which should include,
but not be limited to, those contained in the Rome Statute
of the International Criminal Court.
The Principles provide that financial and other constraints,
as well as the use of truth and reconciliation commissions
and other alternative forms of justice, do not relieve
states of their "responsibility and their duty"
to prosecute, extradite or transfer for trial persons
suspected or accused of gross human rights violations
under international law. The Principles also provide
that the victims of these offences should receive reparation,
"to the extent possible."
The first Caribbean
Regional Conference of the International Law Association
will be held from March 26-29, 2003, in Bridgetown,
Barbados. Further information and registration forms
are available on the conference website at http://law.uwichill.edu.bb/2003ILA/intro.htm
Contact: Dr. David S. Berry, Faculty of Law,
University of the West Indies, Cave Hill Campus, P.O.
Box 64, Bridgetown, Barbados. Fax: (246) 424-1788; E-mail:
David.Berry@uwichill.edu.bb.
On November 18, 2002, the International
Arbitration Institute (IAI) launched an international
arbitration forum in the form of a discussion list via
e-mail (list serve). The registration process is
free of charge and very simple, and can be completed on
the IAI website at www.iaiparis.com.
The first discussion held in this forum will likely be
on the topic of provisional measures and international
arbitration, with the posting on the list of both the
proceedings of the May 31, 2002 IAI seminar on the first
applications of the ICC Rules for a Pre-arbitral Referee
Procedure and of the October 11, 2002 declaration made
by the Club of Arbitrators in Milan concerning the proposals
on Interim Measures in International Arbitration recently
delivered to the UNCITRAL Working Group II by the United
States of America.
The IAI is a Paris-based organization created under the
auspices of the French Arbitration Committee. The
IAI is currently chaired by Emmanuel Gaillard. Its
Advisory Board comprises five prominent international
arbitration specialists: Judge Mohammed Bedjaoui of Algeria,
Lord Dervaird of the United Kingdom, Judge Pierre Drai
of France, Professor Francisco Orrego Vicuna of Chile,
Professor Jean-François Poudret of Switzerland, and Professor
Hans Smit of the United States.
Contacts: Emmanuel Gaillard, Chairman (egaillard@shearmen.com);
Nanou Leleu-Knobil, Website Administrator and List Moderator
(nleleuknobil@shearman.com); International Arbitration
Institute, c/o Shearman & Sterling, 114, avenue des
Champs-Elysées, 75008 Paris, France; Tel.: +33.1.53.89.7000;
Fax: +33.1.53.89.70.70.
International Law In Brief (ILIB) - Copyright 2002
- The American Society
of International Law (ASIL) Editors: Branislav A. Maric, Scott Smith
- ILIB is a free-of-charge electronic resource.
In order to sign up to receive ILIB, or to unsubscribe,
please follow instructions at http://web3.ags.com:81/guest/RemoteListSummary/ILIB
- Shortly after it is distributed over the ILIB list serve,
each ILIB issue is also available at the main ILIB web
page at http://www.asil.org/ilibindx.htm, or ILIB Archive at
http://www.asil.org/ilib/ilibarch.htm.
If you have any problems using web links contained in
ILIB, please consider using ILIB copies posted on one
of the previous web pages. Please note that web
links contained in ILIB are accurate as of the date of
publication of each ILIB issue, and we are not responsible
for their accuracy thereafter.
- Information on subscription procedure and rates for
International Legal Materials (ILM) are available
at http://www.asil.org/internati.htm
- For a working list of Internet resources assembled and
used by the ILM Office in compiling both ILM and ILIB,
please visit http://www.asil.org/ilmlinks.htm
- In order to sign up to receive ASIL Insights,
please follow instructions at http://www.asil.org/insights.htm
- For ASIL membership information, visit us on the Internet
at http://www.asil.org/member.htm
- To comment on this publication, send an e-mail message
to Branislav A. Maric, Managing Editor at bmaric@asil.org
