International Law in Brief

International Law In Brief

December 7 - 11, 1998
Developments in international law, prepared by the
Attorney-Editors of
International Legal Materials
The American Society of International Law


From the Editors

The Executive Committee of The American Society of International Law is soliciting comments regarding whether International Law In Brief should be continued past February, 1999.  If you would like to express an opinion as to the continuation of this service, please send an e.mail to david.levy@his.com  All messages will be forwarded to the ASIL Executive Committee.


Judicial Decisions

WTO: Indonesia - Certain Measures Affecting the Automobile Industry, Arbitration under Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes, WT/DS54/15 (Dec. 7, 1998)

Following a June 23, 1998 decision by the WTO Dispute Settlement Body (DSB) that certain 1993 measures relating to the automobile industry violated Indonesia's WTO obligations, Indonesia stated its willingness to comply with the recommendations and rulings of the DSB, but that it would require a "reasonable period of time ... until no later than 23 October 1999" to examine its implementation options.  paras. 1-3.  The European Communities requested a binding arbitration pursuant to Article 21.3(c) of the Dispute Settlement Understanding (DSU) regarding what would be a "reasonable period of time" for implementation of the recommendations and rulings. para. 3.

Indonesia argued that it required fifteen months to implement the recommendations and rulings given its current social and economic problems. para. 7.  The arbitrator held that a reasonable period of time for implementation should be the "shortest period possible" under the domestic legal system -- in this case, six months -- and rejected Indonesia's request for an additional nine months as a transitional period to allow affected domestic industries to make structural adjustments. para. 23.  However, the arbitrator noted that under Art. 21.2 of the DSU "[p]articular attention should be paid to matters affecting developing country Members..." and that Indonesia is "not only a developing country; it is a developing country that is currently in a dire economic and financial situation."  Under these "very particular circumstances", the arbitrator considered that an additional six months beyond the six months required for Indonesia's domestic rule-making process constituted a "reasonable period of time" for implementation of the DSU's recommendations and rulings. DL
download in Adobe pdf format http://www.wto.org/wto/dispute/54-15.pdf

Supreme Court of Canada: R v. Cook, No. 25852 (Oct. 1, 1998)

The Supreme Court of Canada upheld an appeal in a case involving an American national arrested in the U.S. pursuant to a provisional warrant, which was issued in connection with an extradition request made by Canadian authorities arising out of a murder committed in Vancouver. para. 2.  Two days after his arrest, Canadian investigators interviewed the accused man in a New Orleans prison and obtained a tape-recorded statement from him.  He was not informed of his right to counsel under sect. 10(b) of the Canadian Charter of Rights and Freedoms until 20 minutes into the interrogation and after he was asked if he had committed the murder. paras. 4-5.  The Supreme Court noted "the manner in which the warning was provided was so confusing that it deprived the appellant from forming a decision about whether or not to seek legal advice.  For example, the detective told the appellant that his right to counsel could be exercised by talking to a religious elder, his mother or a friend." para. 6.  The accused gave a statement that he denied killing the victim. para. 7.

At trial in response to a two-day voir dire, the trial judge ruled that there had been a violation of sect. 10(b) of the Charter but that the accused's statements made to the Canadian detectives in the U.S. could  be admitted in cross-examination to impeach his credibility. para. 8.  The accused was found guilty of second degree murder and was sentenced to life imprisonment with no chance of parole for 15 years.  An appeal to the Court of Appeals was dismissed. para. 10.

The majority of the Supreme Court of Canada held that the provisions of the Charter applied to the Canadian detectives in the U.S. and that the statement should have been excluded under sect. 24(2) of the Charter. para. 25.  Recognizing that "the principle of sovereign equality generally prohibits the extraterritorial application of domestic laws", the Court recognized a narrow exception on the basis of the nationality of the investigating detectives. paras. 26, 46.  Therefore, the Court held that the Charter is applicable to the actions of Canadian law enforcement authorities on foreign territory, provided that the application of the Charter standards do not interfere with the sovereign authority of the foreign state. para. 46.  The Court found that there was no interference with the sovereign authority of the U.S. and was careful to distinguish the facts of this case from the Harrer and Terry cases which found provisions of the Charter should not be applied to evidence gathering by U.S. authorities in the U.S. paras. 44-46, 51, 54. EF.
http://www.droit.umontreal.ca/doc/csc-scc/en/rec/index.html

High Court of Australia: Re Minister for Immigration and Multicultural Affairs, Ex parte SE [1998] HCA 72 (Nov. 25, 1998)

The Somali applicant arrived in Australia in October 1997 on a British Airways flight.  The applicant's first application for a protection visa as a refugee was refused.  When the applicant should have boarded a British Airways aircraft to leave the country he refused to so and contended that an order nisi should be granted principally on the grounds that the proposed removal was unlawful in that it involved the detention in custody by a private contractor, P&I Associates Pty Ltd., which is neither authorized by the Migration Act, not by any other law of the Commonwealth. P&I Associates Pty Ltd. is a private company that specializes in offering "a complete management service" in the repatriation of inadmissibles, deportees, inter alia, to the individual's country of origin.

The High Court of Australia refused the application for an order nisi because it sees "no basis...suggesting that any of the arrangements for escort or supervision have been made at the behest of [the Minister for Immigration and Multicultural Affairs] or his department".  The Court held that such arrangements are "entirely a matter for the airline...."

The Court further rejected the applicant's contention that the Refugee Review Tribunal erred in its determination that he lacked a individualized well-founded fear of persecution on account of clan membership. AE
http://www.austlii.edu.au/au/cases/cth/high_ct/1998/72.html

 

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Reports and Other Documents

North Atlantic Council: Statement on Kosovo (Dec. 8, 1998)

The North Atlantic Council stated that it remains concerned about the security situation in Kosovo.  Several incidents have shown that neither the Belgrade authorities nor the armed Kosovar elements are complying fully with Security Council Resolutions 1160, 1199, and 1203.  The Council calls upon both parties to maintain the cease-fire, to comply fully with the Security Council resolutions, and to conclude the negotiating process.

A political solution which provides an enhanced status for Kosovo is supported by the Council.  The Council furthermore expects both parties to facilitate the war crimes investigations by the ICTY.  It expressed its belief that stability in Kosovo is linked to the democratization of the Federal Republic of Yugoslavia (FRY) and in this respect condemns recent actions taken by President Milosovic to suppress the independent media.

The Council also stated its intention to cooperate fully with the OSCE Kosovo Verification Mission (KVM) and in this respect calls on the FRY government and on Serbian authorities to respect the freedom of movement and right of access of the OSCE KVM personnel and to meet their responsibilities as set out in the Security Council resolutions regarding the security and safety of the OSCE verifiers.  The Council will deploy the standing elements of the NATO-led Extraction Force in the FRY to facilitate the withdrawal of OSCE KVM personnel in an emergency. AE

ICTY:  Report by Judge McDonald to the Security Council (Dec. 8, 1998)

In a report on the implementation of Security Council Resolution 1207, Judge Gabrielle Kirk McDonald noted that the Federal Republic of Yugoslavia (FRY) has obstructed Security Council resolutions and Judge McDonald urged the Security Council to adopt effective measures to ensure the FRY's compliance with its obligations under international law.

Judge McDonald stated that the FRY failed to comply with Resolution 1207 which sets forth the Security Council's demand to immediately and unconditionally execute arrest warrants against three individuals.  Moreover, it was noted that the FRY has continued to deny visas to the Prosecutor's investigators in contravention of Security Council Resolutions 1160, 1199, and 1203.

Judge McDonald concluded with a plea to the Security Council "not to let one State stand in the way of peace [and] ... not to allow the FRY's obstructionism to go unchecked for it sets a dangerous precedent ...." AE
http://www.un.org/icty/pressreal/p371-e.htm

 

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News and Notes

ILIB Special Report on Progress toward Hague Jurisdiction and Judgments Convention

The third session at the Hague Conference on Private International Law to prepare a convention providing for required and prohibited bases of jurisdiction and the recognition and enforcement of judgments in civil and commercial matters took place November 10-20, 1998 with the participation of delegations from 40 countries and a number of intergovernmental and non-governmental organizations.  The drafting committee of the special commission that is charged with this project produced a first, very preliminary draft of certain convention provisions with alternative texts, variants, and bracketed language based on working documents and negotiations so far.  That draft and issues not fully considered will be studied by governments preparing for the fourth and last scheduled preparatory session of the commission in June 1999 before the Hague Conference's diplomatic session in October 2000 at the conclusion of which the final convention text is to be adopted.

The fourth negotiating session faces an enormous task.  The third session produced very preliminary draft language on certain aspects of critical issues relating to required and prohibited grounds of jurisdiction, provisional and protective measures, concurrent jurisdiction (lis pendens), declining jurisdiction (forum non conveniens), and recognition and enforcement (and non-enforcement) of resulting judgments.  In addition, a host of difficult issues remains so far unaddressed, including: geographic scope of the convention, non-enforcement by reason of lack of fairness or independence of the judgment court, government litigation, relationship to other conventions on the same subject, and whether the convention will provide only for required and prohibited grounds of jurisdiction or will also permit litigation based on other grounds (with the resulting judgments, however, not benefitting from its provisions on recognition and enforcement).

The U.S. delegation to the session included practicing attorneys (representing the ABA Litigation Section and the Association of Trial Lawyers of America), law professors, and government officials from the State and Justice Departments.  Further consultation  with the U.S. private legal and business sectors through the Study Group of the Secretary of State's Advisory Committee on Private International Law is planned before the June 7-18, 1999 session at The Hague.

Persons and organizations interested may request a copy of the draft provisions from the Department of State (L/PIL) by e.mail to pildb@his.com or by fax to (202) 776-8482. PP

ASIL Wildlife Law Interest Group announces Fourth International Wildlife Law Conference

The ASIL Wildlife Law Interest Group announces its Fourth International Wildlife Conference to be held on March 20, 1999 in Washington, D.C. at the American University Washington College of Law.  The annual International Wildlife Conference brings together members of the academic, governmental, and student communities to address critical issues related to the role of international legal regimes to protect endangered species of flora and fauna.  Longer versions of many of the papers presented will be published in a special symposium issue of  the Journal of International Wildlife Law & Policy.  Panel topics will include implementation of the CITES agreement, international legal efforts for the conservation of tigers, and regional wildlife treaty regimes. For further information visit the Wildlife Interest Group website,  http://eelink.net/~asilwildlife/iwlc.htm

 

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International Law In Brief - Copyright 1998 - The American Society of International Law
Editors:  Elizabeth J. Fabrizio, David A. Levy
Intern:  Alice Epler
To comment on this publication, send an e.mail message to David A. Levy, Interim Editor at
david.levy@his.com
For membership information, visit us on the Internet
http://asil.org