Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law January 10, 2003
European Union (EU)-North Atlantic
Treaty Organisation (NATO): Declaration on European Security
and Defence Policy (ESDP) (December 16, 2002)
The EU and NATO ("Parties") welcomed NATO's
"continued important role" in crisis management
and conflict prevention, and reaffirmed that NATO remains
the foundation of the collective defense of its members.
The Parties also welcomed the European Security and Defence
Policy (ESDP), noting that its purpose was to add to the
"range of instruments already at the [EU]'s disposal
for crisis management and conflict prevention . . . ,
including military operations where NATO as a whole is
not engaged." The Parties agreed that a stronger
European role will contribute to NATO's vitality, especially
in the field of crisis management.
The Parties declared that their relationship
will be founded on the principles of: (1) partnership;
(2) effective mutual consultation, dialogue, cooperation
and transparency; (3) equality and due regard for the
EU's and NATO's decision-making autonomy and interests;
(4) respect for the EU and NATO Member States' interest;
(5) respect for the principles of the U.N. Charter; and
(6) coherent, transparent and mutually reinforcing development
of the common military capability requirements.
With the view of upholding these principles, the EU pledged
to ensure the "fullest possible involvement of non-EU
European members of NATO within ESDP."
High Court of Australia: Dow Jones
and Company Inc v. Gutnick, [2002] HCA 56 (December
10, 2002)
The High Court of Australia ruled that a defamation claim
involving an article published over the Internet and originating
in the United States could be tried in Australia.
Mr. Joseph Gutnick, an Australian businessman with business
interests in the United States and other countries, launched
a defamation suit in Australian courts against Dow Jones
& Company Inc., a U.S-based publishing enterprise
that prints and publishes, among other publications, Barron's
magazine, over an article published on the Internet through
the Barron's Online edition. Mr. Gutnick
argued that the article defamed him by claiming that he
had been involved in a money-laundering scheme with two
American businessmen.
The court of first instance and an appeals court ruled
that Mr. Gutnick's claim could proceed before Australian
courts, and Dow Jones appealed to the High Court of Australia.
Dow Jones requested that the claim be dismissed, arguing
that the article was published in New Jersey, the place
where Dow Jones maintains its Internet servers, and that
the United States represented the proper forum for adjudication
of the claim.
The High Court unanimously dismissed Dow Jones' appeal,
rejecting the latter's argument that the article was published
when it was uploaded at its U.S.-based servers.
The High Court held that the publication of a defamatory
article is a bilateral act that is completed only when
a defamatory publication is comprehended by a third party.
The High Court further held that the most important element
of this tort was the "infliction of the damage,"
which occurs at the "place (or the places) where
the defamation is comprehended."
The High Court reckoned that the Internet has a "uniquely
broad reach," but noted that it was "no more
or less ubiquitous than some television services."
The High Court opined that, irrespective of the relative
broadness of the Internet and various other communication
means, "those who make information accessible by
a particular method do so knowing of the reach that their
information may have."
The High Court rejected Dow Jones' argument that this
approach would force a publisher to consider every article
it publishes on the Internet against the defamation laws
of every country in the world. The High Court held
that this concern was "unreal . . . [since] in all
except the most unusual cases, identifying the person
about whom material is to be published will readily identify
the defamation law to which that person may resort."
International Criminal Tribunal for
the Former Yugoslavia (ICTY) (Appeals Chamber): Prosecutor
v. Brdjanin (Decision on Interlocutory Appeal), Case
No. IT-99-36-AR73.9 (December 11, 2002)
The ICTY Appeals Chamber set aside a subpoena ordering
Mr. Jonathan Randal, a former Washington Post reporter,
to appear before the Tribunal and testify in the case
against Mr. Brdjanin.
In January 2002, the Trial Chamber issued a "Confidential
Subpoena" directing Randal to appear before the Tribunal
to give evidence pertaining to a 1993 article that he
published in Washington Post and that contained quotes
attributed to Mr. Brdjanin on the plight of the non-Serb
population in Banja Luka, a town in the North-Western
Bosnia and Herzegovina. Mr. Randal moved to dismiss
the subpoena, but the Trial Chamber II dismissed his motion
on June 7, 2002, holding that he did not have a right
to a journalistic privilege. Mr. Randal appealed
arguing, inter alia, that he was entitled to a
"qualified testimonial privilege."
The Appeals Chamber noted that the Trial Chamber's discretion
to issue subpoenas "is not unfettered" and that
subpoenas, due to their inherent coercive powers and a
threat of a criminal sanction, should not be issued "lightly."
The Appeals Chamber further noted that the Trial Chamber
should take into account "admissibility and potential
value of the evidence sought to be obtained" before
it issues a subpoena.
The Appeals Chamber held that war correspondents, such
as Mr. Randal, serve an important public interest by keeping
the international public informed about "matters
of life and death," and that they should be given
an "adequate" ability to carry out their functions.
The Appeals Chamber further held that compelling war correspondents
to testify before the Tribunal on a "routine basis"
may have a "significant impact upon their ability
to obtain information and thus their ability to inform
the public on issues of general concern."
The Appeals Chamber ruled that the appropriate test for
issuing a subpoena to a war correspondent consists of
two steps: (1) the petitioning party must demonstrate
that the evidence sought is of direct and important value
in determining a core issue in the case; and (2) it must
demonstrate that the evidence sought cannot reasonably
be obtained elsewhere. The Appeals Chamber, however,
refused to apply the test to the particular circumstances
of the current case, concluding that this was the Trial
Chamber's task. The Appeals Chamber observed, nevertheless,
that it would be "difficult to imagine" how
Mr. Randal's testimony could be of direct and important
value to determining a core issue in the case, since he
obtained statements attributed to Mr. Brdjanin through
an interpreter and hence would not be able to account
personally for their accuracy.
International Tribunal for the Law
of the Sea (ITLOS): The "Volga" Case (Russian
Federation v. Australia) (Application for Prompt Release),
No. 11 (December 23, 2002)
The ITLOS ordered Australia to promptly release a Russian
fishing vessel upon the posting of a bond or other security
in the amount of AU$ 1,920,000.
On February 7, 2002, the Volga, a Russian long-line
fishing vessel, was boarded and apprehended by the Australian
military personnel in an area of the Southern Ocean beyond
the limits of the Exclusive Economic Zone of the Australian
Territory of Heard Island and the McDonald Islands.
The vessel and its crew were subsequently escorted and
detained in an Australian port. An Australian Court
charged three members of the Volga's crew with
an "indictable offence" for commercial fishing
in the Australian Fishing Zone without a proper fishing
license. The three crew-members had later been released
on bail and permitted to leave Australia.
The Volga and its equipment remained in Australia,
pending the final outcome of the proceedings against the
charged crew-members. Australian authorities set
the bond for the release of the vessel and its equipment
at AU$ 3,332,500. The terms of potential release
included, inter alia, a provision that the vessel
carries a fully operational Vessel Monitoring System until
the conclusion of the underlying legal proceedings, on
the basis that this would prevent further illicit fishing
once the ship is released.
The ITLOS held that, pursuant to the U.N. Convention
on the Law of the Sea, non-financial conditions "cannot
be considered components of a bond or other financial
security." The Tribunal noted that the object
and purpose of the Convention Articles 73(2) and 292 is
to provide a flag State with a mechanism for obtaining
the prompt release of a vessel and crew arrested for alleged
fisheries violations by "posting a security of a
financial nature whose reasonableness can be assessed
in financial terms." The Tribunal concluded
that an inclusion of additional non-financial conditions
in such security would thus "defeat this object and
purpose." In setting the amount of the bond
at AU$ 1,920,000, the ITLOS noted that this reflected
the total value of the vessel and its equipment.
United States (U.S.) Court of Appeals
for the Fourth Circuit: Hamdi v. Rumsfeld, No.
02-7338 (January 8, 2003)
The Fourth Circuit reversed the U.S. District Court for
the Eastern District of Virginia's order to the U.S. government
to produce various materials regarding Mr. Hamdi's detention,
and then remanded the case directing the district court
to dismiss Mr. Hamdi's petition for writ of habeas corpus.
The current appeal is the third in the case that Mr.
Hamdi, a U.S.-born detainee of the Norfolk Naval Station
Brig that was captured as an enemy combatant during the
ongoing military operations in Afghanistan, launched in
June 2002 challenging his detention.* This time,
the U.S. Government appealed the district court's order
for it to produce documents related to Mr. Hamdi's detention,
such as copies of Mr. Hamdi's statements and the notes
taken from any interviews with him, the names and addresses
of all interrogators who have questioned Mr. Hamdi, and
a list of the date of Mr. Hamdi's capture and all of the
dates and locations of his subsequent detention.
The district court's order resulted from its dissatisfaction
with an affidavit produced by the Special Advisor to the
Under Secretary of Defense for Policy, Michael Mobbs ("Mobbs'
Declaration"), which detailed the circumstances of
Mr. Hamdi's detention and his subsequent classification
as an "enemy combatant." The district
court judge held that the Mobbs' Declaration, which in
his view failed to show if Mr. Hamdi "ever fired
a weapon,” fell "far short" of supporting
Mr. Hamdi's detention.
As to the Mobbs' Declaration, the Fourth Circuit noted
that a "capable attorney could challenge [its] hearsay
nature . . . and probe each and every paragraph for incompleteness
or inconsistency," but held that such approach would
be flawed because it would conflict with the "executive's
assertion of its power to detain under the war powers
of Article II [of the U.S. Constitution]."
The Forth Circuit recognized that military actions are
not immune to mistakes, but that this does not justify
"active judicial supervision of combat operations
overseas." The Fourth Circuit opined that any
effort to ascertain the facts surrounding Mr. Hamdi's
conduct while amongst the U.S. enemies would "entail
an unacceptable risk of obstructing war efforts authorized
by Congress and undertaken by the executive branch."
The Fourth Circuit also held that Mr. Hamdi's citizenship,
although entitling him to file the petition to challenge
his detention, does not affect the legality of his detention
as an enemy combatant and does not entitle him to challenge
the facts contained in the Mobbs' Declaration. The
Fourth Circuit further held that the usual safeguards
enjoyed by U.S. citizens in criminal prosecutions "do
not translate neatly to the arena of armed conflict"
because the detention of enemy combatants serves some
major purposes, one of them being to prevent them from
rejoining the enemy and continuing to fight against the
United States and its allies. The Fourth Circuit
thus concluded that U.S. citizenship does not relieve
enemy belligerents from the consequences of their belligerency.
The Fourth Circuit emphasized that its decision should
not be interpreted as placing an "imprimatur upon
a new day of executive detentions," noting that the
current case does not concern just any U.S. citizen, but
a citizen "captured and detained by American allied
forces in a foreign theater of war during active hostilities
and determined by the [U.S.] military to have been indeed
allied with enemy forces." In instructing the
district court to dismiss Mr. Hamdi's petition, the Fourth
Circuit concluded that judicial review, although not disappearing
during wartime, was a highly deferential one in the cases
of battlefield captures in overseas conflicts.
United States (U.S.) Court of Appeals
for the Ninth Circuit: Altmann v. Republic of Austria,
No. 01-56003 (December 12, 2002)
The Ninth Circuit affirmed a decision by the U.S. District
Court for the Central District of California to exercise
jurisdiction over the lawsuit against Austria and the
Austrian Gallery alleging wrongful appropriation of six
Gustav Klimt paintings from their rightful heirs.
Mrs. Maria Altman, a U.S. national, is a niece of Ferdinand
Bloch, a pre-WWII Czech sugar magnate whose vast properties
in Austria, including the paintings in question, were
taken by Nazis in the aftermath of the 1938 "Anschluss"
of Austria by the Nazi Germany. Pursuant to his
last will, Mr. Bloch left his entire estate to Mrs. Altman
and another niece and a nephew. Despite the post-WWII
declaration by the Austrian government that all Nazi-motivated
transactions were void, Mrs. Altman and her relatives
still have not recovered the Klimt paintings.
Prior to filing the lawsuit in the United States, Mrs.
Altmann had filed and abandoned a complaint in Austria
due to very high litigation costs. In the U.S. district
court, Austria moved for dismissal arguing, inter alia,
the lack of subject matter jurisdiction and the forum
non convenies doctrine. The district court denied
the motion, holding that the jurisdiction was rooted in
the 1976 Foreign Sovereign Immunities Act (FSIA), which
in its view applied retroactively to the events of the
late 1930s and 1940s.
The Ninth Circuit upheld the district court's retroactive
application of the FSIA, holding that statutes that confer
or oust jurisdiction, such as the FSIA, or change procedural
rules, "may be applied in suits arising before their
enactment without raising concerns about retroactivity"
because they do not take away any substantive rights but
merely change the forum where the claim is being heard.
The Ninth Circuit further held that in determining whether
the FSIA may properly be applied turns to the question
whether Austria "could legitimately expect to receive
immunity from the [U.S. executive branch] for its complicity
in and perpetuation of the discriminatory expropriation
of the Klimt paintings." The Ninth Circuit
concluded that Austria could not have had "any expectation,
much less a settled expectation," that the U.S. executive
branch would have recommended immunity as a matter of
"'grace and comity'" for the wrongful appropriation
of Jewish property. The Ninth Circuit also ruled
that the facts advanced by Mrs. Altmann "fall squarely"
within the FSIA's expropriation exception to sovereign
immunity because they demonstrated that the Klimt paintings
had been wrongfully and discriminatorily appropriated
in violation of international law. As to the forum
non conveniens defense advanced by Austria, the Ninth
Circuit opined that the "requisite foreign travel,
coupled with the significant costs of litigating this
case in Austria, weigh heavily in favor of retaining jurisdiction
in the United States."
On January 9, 2003, Mexico
brought a case against the United States in a dispute
concerning alleged violations of the Vienna Convention
on Consular Relations with respect to 54 Mexican nationals
who have been sentenced to death in ten U.S. states.
The Convention provides, inter alia, for a right
of consular officers to visit their countrymen who are
in prison, custody or detention in a foreign country to
"converse and correspond with [them] and to arrange
for [their] representation." For more details,
click here
for the related press release.
International Law In Brief (ILIB) - Copyright 2003
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