Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law December 12, 2002
International Court of Justice (ICJ):
Case Concerning the Land and Maritime Boundary between
Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial
Guinea Intervening), No. 94 (October 10, 2002)
The ICJ decided that the sovereignty over the disputed
Bakassi Peninsula lies with Cameroon as a result of delimitation
between Great Britain and Germany under the Anglo-German
Agreement of March 11, 1913.
Cameroon filed the case in 1994 concerning a dispute
"'relat[ing] essentially to the question of sovereignty
over the Bakassi Peninsula'," but also requested
the determination of the maritime boundary between the
two states. Pursuant to an additional application
by Cameroon later that year, the subject of the dispute
was extended to include a definite delimitation of the
countries' mutual land boundary from Lake Chad to the
sea. In 1999, the Court authorized an intervention
by Guinea, which sought to protect its legal rights in
the light of pending maritime boundary claims between
Cameroon and Nigeria.
In its decision, apart from determining the sovereignty
over the Bakassi Peninsula, the Court determined the boundary
line in the Lake Chad area and from Lake Chad to the Bakassi
Peninsula, as well as the maritime boundary between the
two countries. The Court also addressed the issues
of state responsibility raised by the Parties. The
Court noted that the land boundary dispute between the
Parties "falls within an historical framework"
that includes the period of the European Powers' partitioning
of Africa in nineteenth and early twentieth centuries,
subsequent changes in status of the relevant territories
under the League of Nations' mandate, followed by the
U.N. trusteeships, and the eventual accession to independence
by the territories in question. The Court further
noted that both this history and the history of the delimitation
of the Parties' maritime boundary, which is more recent
in time, involve various international instruments such
as conventions and treaties, diplomatic exchanges, and
certain administrative instruments.
As to the dispute over the Bakassi Peninsula, the Court
held that the boundary between Cameroon and Nigeria in
this area is delimited by Articles XVIII to XX of the
Anglo-German Agreement of March 11, 1913. The Court
rejected Nigeria's argument that the title to sovereignty
over Bakassi never passed on to Great Britain from the
Kings and Chiefs of Old Calabar, one of many groups of
local chiefs of the Niger delta. The Court noted
that the Treaty of Protection signed on September 1884
between Great Britain and the Kings and Chiefs of Old
Calabar did not specify "the territory to which the
British Crown was to extend 'gracious favour and protection',
nor did it indicated the territories over which each of
the Kings and Chiefs signatory to the Treaty exercised
his powers." The Court held, however, that
Great Britain had a "clear understanding" of
both the territory ruled by the Kings and Chiefs of Old
Calabar, as well as of their standing, and that it administered
the region by "indirect rule."
The Court noted that, after the First World War, Germany
renounced its colonial possessions, including the ones
obtained by the virtue of the 1913 Agreement, and that
these territories were divided between Great Britain and
France acting under the League of Nations' mandate.
Bakassi was "comprised within British Cameroon,"
where it remained after the Second World War when the
mandate was converted to a trusteeship under the United
Nations' auspices. The Court held that Nigeria,
after gaining independence in 1961, "clearly and
publicly recognized Cameroon title to Bakassi," as
well as that Cameroon had since its independence "engaged
in activities which made clear that it in no way was abandoning
its title to Bakassi." Moreover, the Court
held that Cameroon immediately protested 1994 invasion
of Bakassi by the Nigerian military. The Court concluded
that the current judgment obliges Nigeria to "expeditiously
and without condition ... withdraw its administration
and its military and police forces from ... the Bakassi
Peninsula."
On November 7, 2002, Nigeria Information Service Center
reported Nigeria's official position with respect to the
Court's decision. The statement read that it was
"apparent" that the Court did not take "a
lot of fundamental facts ... into consideration in arriving
at their declaration." The statement further
read that Nigeria appreciated and thanked the U.N. Secretary-General
for brokering a meeting at the highest political level
between Nigeria and Cameroon before the judgment was delivered
and for "offering his good offices to broker a similar
meeting ... with a view to effecting reconciliation, normalization
of reactions and good neighbourliness." The
statement concluded that Nigeria assures people of Bakassi
and all other "Nigerian communities similarly affected"
by the Court's decision of "the support and solidarity
of all other Nigerians." Click here for the full text
of the statement.
On November 15, 2002, the U.N. Secretary-General, Mr.
Kofi Annan, issued a communiqué following his meeting
in Geneva with President Paul Biya of Cameroon and President
Olusegun Obasanjo of Nigeria, regarding the ICJ's decision
in the dispute between two states. According to
the communiqué, the Presidents of the two countries agreed
to ask the Secretary-General to establish a mixed commission
of the two sides, to consider "ways of following
up the ICJ ruling and moving the process forward."
The mixed commission would also consider "all the
implications of the decision, including the need to protect
the rights of the affected populations in both countries."
In addition, the commission would also be entrusted with
the task of demarcating the land boundary between the
two countries. The first meeting of the commission
was to be held in Yaoundé on December 1, 2002. Click
here for the
full text of communiqué.
On December 2 and 3, 2002, the U.N. News Service reported
that the mixed commission held its first meeting as scheduled,
and decided to dispatch an assessment mission to the disputed
Bakassi peninsula "in a bid to grasp the issues related
to the countries' disagreement." The commission
also agreed to establish a sub-commission of legal experts
and cartographers from Nigeria, Cameroon and the United
Nations, whose task would be to demarcate the land boundary
between the two countries. Click here
for the December 2, 2002 press release and here
for the December 3, 2002 press release.
International Criminal Tribunal for
the Former Yugoslavia (ICTY) (Appeals Chamber): Prosecutor
v. Bobetko (Decision on Challenge by Croatia to Decision
and Orders of Confirming Judge), IT-02-62-AR54bis
and IT-02-62-AR108bis (November 29, 2002)
The ICTY Appeals Chamber rejected Croatia's challenge
to a Confirming Judge's decision to confirm an indictment
against Mr. Janko Bobetko, a retired Croatian general,
and orders for Mr. Bobetko's arrest and surrender to the
ICTY, holding that a state ordered to arrest or detain
an individual pursuant to Article 29(d) of the ICTY Statute
"has no standing to challenge the merits of that
order." Croatia filed the challenge under,
inter alia, Rule 108bis of the ICTY's Rules
of Procedure and Evidence.
The Appeals Chamber noted that Rule 108bis provides
a state directly affected by an interlocutory decision
of a Trial Chamber with "the right to file a request
for review by the Appeals Chamber if that decision concerns
issues of general importance relating to the powers of
the Tribunal." The Appeals Chamber concluded
that Rule 108bis could not apply in the present
case because, inter alia, an indictment is not
an interlocutory order for the purpose of Rule 108bis
since, "at the time when the confirmation takes
place, the proceedings in which the indictment is to be
filed have not yet commenced." Moreover, the
Appeals Chamber ruled that even if it was to treat the
arrest warrant in question as an interlocutory order,
Rule 108bis is not available "where the State
claims that its legitimate political interests
have been affected, or where it has a genuine concern
that the facts alleged in the indictment are not historically
accurate." (Emphasis in original)
The Appeals Chamber also approached the merits of Croatia's
challenge dismissing Croatia's submission that the prosecution
must interview or offer to interview every proposed accused
person before seeking a confirmation of an indictment.
The Appeals Chamber ruled that there was no such requirement,
but held that "there is nothing to prevent the prosecution
and the accused from reaching an agreement whereby he
is able to make his initial appearance before the Tribunal
whilst still at liberty." The Appeals Chamber,
however, rejected to pronounce on Croatia's submission
that Mr. Bobetko need not to be arrested because he satisfies
all the requirements for provisional release and would
thus be immediately granted such release, if arrested.
The Appeals Chamber held that any such pronouncement would
be premature before a point in time when "an appeal
is brought by the Accused to the Appeals Chamber from
a Trial Chamber decision in an application for provisional
release."
United States (U.S.) Court of Appeals
for the Ninth Circuit: Arce v. Gutierrez, No. 02-55079/55120
(November 20, 2002)
The U.S. Court of Appeals for the Ninth Circuit reversed
the U.S. District Court for the Southern District of California's
ruling that an access right of a Mexican parent constituted
a custody right warranting return of his children to Mexico
under the provisions of the 1980 Hague Convention on the
Civil Aspects of International Child Abduction ("Hague
Convention").
In August 2000, Mr. Arce and Mrs. Gutierrez, both Mexican
citizens, divorced before a Mexican family court.
Their divorce agreement stipulates that Mrs. Gutierrez
retains the "custody and care" of their two
minor children, while Mr. Arce enjoys visitation rights.
The agreement also provides that, until the children reach
adult age, Mr. Arce must grant full authorization "on
every occasion that his minor children seek to leave the
country accompanied by [Mrs. Gutierrez] or any other person."
In early 2001, Mrs. Gutierrez and her children came to
the home of her sister in San Diego, United States, where
she applied for asylum for all three of them on the basis
of her status as a victim of domestic violence.
The asylum request was not the subject of the current
proceedings.
Current proceedings were initiated by the local district
attorney's office that, acting in assistance of the California
Attorney General's Office as the Central Authority for
the purposes of discharging duties under the Hague Convention,
requested the return of Mrs. Gutierrez's children to Mexico.
The district court granted the petition, holding inter
alia that the children "had been wrongfully removed
in violation of Arce's custody rights under the [Hague]
Convention ... ." Mrs. Gutierrez appealed.
The Ninth Circuit held that, under the Hague Convention,
the ne exeat clause, which prohibits Mrs. Gutierrez
to take her children abroad without a prior approval by
her former husband, does not provide custody rights to
the latter. The Ninth Circuit interpreted the relevant
provisions of the divorce agreement to confer not more
than access rights to Mr. Arce. The Ninth Circuit
held that the Hague Convention provides that a child's
removal is wrongful "only if one of the parent's
custody rights are breached," in which case it mandates
the child's return to the country of its habitual residence
prior to the removal. The Ninth Circuit stressed
that "[a] parent with custodial rights has the affirmative
right to determine the country, city, and precise location
where the child will live." (Emphasis in original)
The Ninth Circuit further held that the Hague Convention's
remedy for the breach of access or visitation rights is
a request "to make arrangements for organizing or
securing the effective exercise of rights of access,"
and that the relevant application should be submitted
to the Central Authority of the state to which the child
has been taken.
United States (U.S.) Court of Appeals
for the Ninth Circuit: Flatow v. Iran, No. 00-56446
(October 23, 2002)
The U.S. Court of Appeals for the Ninth Circuit affirmed
the U.S. District Court for the Southern District of California's
refusal to recognize Bank Saderat Iran (BSI) as an entity
not separate from the Government of Iran.
In 1998, Mr. Stephen Flatow obtained a multimillion dollar
default judgment against Iran for wrongful death of his
daughter in a 1995 terrorist attack in Israel committed
by the Shaqiqi faction of the Palestine Islamic Jihad,
which had, according to the U.S. State Department, received
material support and resources from Iran. Mr. Flatow
subsequently registered his judgment with the U.S. District
Court for the Southern District of California and obtained
a writ of execution on property owned by a BSI's wholly
owned subsidiary. The writ of execution was later
released from the property to enable its sale, and the
proceeds of the sale were held in an interest-bearing
account pending the resolution of Mr. Flatow's claim.
The district court held that the evidence presented by
Mr. Flatow was "not sufficient to overcome the presumption
that BSI is a juridical entity separate and apart from
the Islamic Republic of Iran and therefore BSI was not
subject to execution of the judgment against Iran."
Terminating the case, the district court granted BSI's
motion for the release of the money. Mr. Flatow
subsequently appealed.
The Ninth Circuit noted that the U.S. Supreme Court in
Bancec case (i.e., First Nat'l City Bank
v. Banco Para El Comercio Exterior de Cuba, 462 U.S.
611(1983)) indicated that the presumption of separate
juridical status may be overcome if: (1) it is demonstrated
that a corporate entity is "so extensively controlled
by its owner that a relationship of principal and agent
is created;" and (2) to recognize an instrumentality
as a separate juridical entity would "work 'fraud
or injustice'." The Ninth Circuit analyzed
BSI's corporate structure finding, inter alia,
that BSI's daily affairs and its 3000 branches worldwide
are "overseen by the Board of Directors, consisting
of career bankers, the Managing Director, and other bank
officers." The Ninth Circuit opined that the
level of economic control exercised by the Iranian government
over BSI is quite limited, and agreed with the district
court's finding that Mr. Flatow "has not shown that
the Iranian government is the real beneficiary of BSI's
banking operations."
United States (U.S.) Court of Appeals
for the Ninth Circuit: Motorola, Inc. v. Federal Express
Corporation; and Kuehne & Nagel, Inc., No. 00-17374
(October 16, 2002)
The U.S. Court of Appeals for the Ninth Circuit affirmed
the U.S. District Court for the Northern District of California's
decision to award damages and prejudgment interest under
the Convention for the Unification of Certain Rules Relating
to International Carriage by Air signed at Warsaw on 12
October 1929 ("Warsaw Convention").
Kuehne & Nagel, Inc. ("K&N") appealed
the district court's award of damages in the amount of
$244,080 arguing that the district court erred in determining
the liability limitation based on the weight of the entire
shipment rather than only the weight of the damaged component.
K&N also argued that the Warsaw Convention does not
allow the award of prejudgment interest.
The shipment in question was a cellular telephone base
station system weighting more than 12,000 kilograms that
belonged to Motorola and was transported from Dallas,
Texas to Tokyo, Japan. Motorola hired K&N to
transport the system, while the latter used Federal Express
as a direct air carrier. Upon the system's arrival
in Tokyo, damage was discovered at a crate containing
the system's common control frame, which weighted 680
kilograms. Motorola claimed, and the district court
accepted, that the damaged control frame, which had to
be replaced, was one of the system's "fundamental
pieces," and that its subsequent replacement delayed
the installation of the entire system.
The Ninth Circuit affirmed the district court's finding
that the control frame was essential for the functioning
of the system as a whole, and that the liability therefore
must be based on the weight of the entire system.
The Ninth Circuit noted that the 1955 Hague Protocol*
amended the Warsaw Convention to include the affected
weight standard, which provides for the evaluation of
carrier's liability for damage of "a part of the
registered baggage or cargo, or of an object contained
therein" based on the total weight of the cargo,
provided that the damaged part "affects the value
of other packages covered by the same baggage check or
the same air waybill, ... ." The Ninth Circuit
held that the incorporation of the affected weight standard
was a "mere clarification" of the Warsaw Convention,
and that the parties to the Hague Protocol "understood
the new language to be no less advantageous to the shipper
than existing Warsaw Convention language."
The Ninth Circuit ruled that the award of prejudgment
interest is consistent with the purposes of the Warsaw
Convention, regardless of the fact that the Convention
does not discuss prejudgment interest and the fact that
several domestic and foreign courts are split on this
issue. The Ninth Circuit noted that the Fifth Circuit
held that prejudgment interest can be awarded under the
Convention to a cargo liability claim and that it allows
for more adequate recovery and ensures speedy disposition
of claims. The Second and Seventh Circuit disagreed,
holding that the Convention's purpose was to "fix
definite and uniform limits on the cost to airlines of
damages sustained by their customers." The
Ninth Circuit further noted that the English Court of
Appeal held that prejudgment interest is not allowed under
the Convention due to the absence of an explicit language
to this effect.
The Ninth Circuit held that the purpose of prejudgment
interest is to assure that "the plaintiff receives
the full value of his limited damages," and that
the latter are not "eroded by the defendant's actions
in delaying a prompt resolution of the claim."
The Ninth Circuit also agreed with the Fifth Circuit's
position that prejudgment interest "furthers the
purpose of speedy resolution of claims." The
Ninth Circuit reasoned that the absence of a specific
inclusion of prejudgment interest in the Convention's
language, while the same language contains a reference
to "the court costs and ... other expenses of the
litigation incurred by the plaintiff," does no prohibit
prejudgment interest because, "[c]onceptually, prejudgment
interest more closely resembles other costs of litigation
— attorney's fees and costs — than damages."
* Protocol to Amend Convention for the Unification of
Certain Rules Relating to International Carriage by Air
signed at Warsaw on 12 October 1929, September 28, A955,
478 U.N.T.S. 371.
Earlier today, the International
Tribunal for the Law of the Sea was scheduled to commence
a two-day hearing on the Application for the release
of the "Volga" and members of its crew (Russian
Federation v. Australia). The Application was
filed by the Russian Federation on December 2, 2002.
"Volga", a vessel flying the flag of
the Russian Federation, was boarded on February 7, 2002,
by Australian military personnel on the high seas in the
Southern Ocean for "alleged illegal fishing in the
Australian fishing zone," and is currently detained
in the Australian port of Perth. Click here
for the related press releases.
On December 9-10, 2002, the Tribunal marked the twentieth
anniversary of the opening for signature of the 1982 U.N.
Convention on the Law of the Sea, which established a
"comprehensive legal framework to regulate all ocean
space, its issues and resources." The 1982
Convention also established the current Tribunal.
Click here
for the related press release.
On December 9, 2002, the Republic of the
Congo filed an application against France before the International
Court of Justice regarding the proceedings for crimes
against humanity and torture commenced in France against
the Congolese Minister of the Interior. In connection
with these proceedings, French authorities also issued
a warrant for the witness hearing of the President of
the Republic of the Congo, Mr. Denis Sassou Nguesso.
In its application, the Republic of the Congo contends
that French proceedings breached the principle of sovereign
equality among all Members of the United Nations, and
violated the international customary rule of criminal
immunity of a foreign head of state. Click here
for the related press release.
On December 11, the Appeals Chamber of
the International Criminal
Tribunal for the Former Yugoslavia set aside the subpoena
against Mr. Jonathan Randal, a former Washington Post
reporter, which would have compelled him to testify in
the trial against Mr. Radoslav Brdjanin, a Bosnian Serb
indicted by ICTY. Mr. Randal interviewed Mr. Brdjanin
in the course of the conflict in Bosnia and Herzegovina.
The central issue on the appeal was whether the ICTY should
recognize a qualified testimonial privilege for war correspondents.
A summary of the Appeals Chamber decision will be published
in one of the next ILIB issues. Click here
for the related press release.
International Law In Brief (ILIB) - Copyright 2002
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