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International Law in Brief

International Law In Brief

March 1 - 5, 1999
Developments in international law, prepared by the
Attorney-Editors of
International Legal Materials
The American Society of International Law


Judicial Decisions

ICJ: Case Concerning the Vienna Convention on Consular Relations (Germany v. United States of America) Request for the Indication of Provisional Measures (Mar. 3, 1999)

Germany brought an application against the United States before the International Court of Justice (ICJ) in a dispute concerning an alleged violation of the Vienna Convention on Consular Relations regarding the case of Karl and Walter LaGrand, two brothers of German nationality convicted of murder in Arizona.  Karl LaGrand was executed in February 1999 while Walter LaGrand's execution was scheduled for March 3d. para. 12.  Germany maintains that both brothers were tried and sentenced to death without being informed of their right to consular assistance, pursuant to Art. 36(1)(b) of the Vienna Convention. para. 2.  Germany further contends that until recently it was unaware that the LaGrands were German nationals, and that when the LaGrands attempted to raise the violation of the Vienna Convention before the federal district court,  the court held that failure to previously raise the issue in state court barred its admissibility under the municipal law doctrine of "procedural default". paras. 3-4.

Germany asked the ICJ to declare that the US violated its obligations under the Vienna Convention and that consequently the criminal convictions were void, and to require the US to provide reparation for the execution of Karl LaGrand and restore Walter LaGrand to status quo ante prior to the violation of the Convention. para. 5.  Because of the "grave and exceptional circumstances" of Walter LaGrand's imminent execution, Germany also filed an urgent request for provisional measures prior to a determination on the merits by the ICJ. paras. 9-10.

The ICJ ordered the US to "take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings...[and] transmit the present Order to...the Governor of Arizona [who] is under the obligation to act in conformity with the international obligations of the United States...." para. 28.  The Order marked the first time the ICJ has granted a provisional measure proprio motu (on its own initiative) and without any other proceedings pursuant to Art. 75(1) of the Rules of the Court, because the execution "would cause irreparable harm to the rights claimed by Germany...." paras. 21, 24.

Judge Oda appended a declaration noting, inter alia, that direct ICJ intervention in the fate of an individual would be a departure from the function of the principle UN judicial body, which is essentially for the purpose of resolving inter-State disputes concerning the rights and duties of States.  Although Ota voted in favor of provisional measures "on humanitarian grounds", he stated that "if Mr. Walter LaGrand's rights as they relate to humanitarian issues are to be respected then, in parallel, the matter of the rights of victims of violent crime (a point which has often been overlooked) should be taken into consideration."

In a separate opinion, President Schwebel stated that while he was not opposed to the substance of the Order, he felt the Court misinterpreted its authority proprio motu to order provisional measures pursuant to Art. 75(1) of the Rules of Court, and that Germany could have brought its Application at an earlier date so as to permit a timely hearing on the request for provisional measures. AE
http://www.icj-cij.org/icjwww/idocket/igus/igusorder/igus_iorder_19990303.htm

Editor's note: Walter LaGrand was executed by the state of Arizona in its gas chamber on March 3, 1999.

Hong Kong Court of Final Appeal: Hebei Import and Export Corp. v. Polytek Engineering Co. Ltd., FACV No. 10/1998 (Feb. 9, 1999)

This case arose over the enforcement of an arbitral award made by an Arbitration Tribunal within the China International Economic and Trade Commission (CIETAC) arising out of defective equipment supplied by Polytek to Hebei. Hebei sought enforcement before the Hong Kong Court of Final Appeal pursuant to the New York Convention  Earlier, Polytek had petitioned the Beijing No. 2 Intermediate Court which refused to set aside the Award.  Before the Hong Kong Court, Polytek asserted that enforcement of the award should be refused on grounds of public policy arising out of apparent bias and due process flaws. Polytek argued that it had no notice of the inspection of the machinery when the Chief Arbitrator communicated directly with technical experts and that after delivery of the expert's report it was denied the opportunity of a hearing to contest the findings of the experts.

The Hong Kong Court noted the "principle that a party to an arbitration who wishes to rely on a non-compliance with the rules governing an arbitration shall do so promptly and shall not proceed with the arbitration as if there had been no compliance, keeping the point up his sleeve for later use", and held that the failure to raise objections to the arbitral tribunal justified enforcement of the award.  In dicta, the Court noted that the failure to raise the point before the Beijing Court would probably be an additional ground to enforce the award.

The Court further stated that in international arbitration, the "public policy" exception to enforcement under the New York Convention has been construed narrowly to refer to the "fundamental conceptions of morality and justice" of the forum. While the right of a party to present its case before an impartial and independent tribunal is "basic to the notions of justice and morality in Hong Kong", on the facts the Court held that Polytek's actions, taken as a whole, prevented it from asserting that it was unable to present its case.  FM
http://www.info.gov.hk/jud/guide2cs/html/cfa/judmt/facv_10_98.htm

U.S. District Court, S.D. New York: Bridgeman Art Library Ltd. v. Corel Corp., 97 Civ. 6232 (LAK) (S.D.N.Y. Feb. 18, 1999)

Bridgeman Art Library produced exacting color transparencies of public domain paintings and held a certificate of registration from the Register of Copyright for one of its transparencies.  Bridgeman sued Corel alleging copyright infringement, asserting that the transparencies were protected by UK copyright law and that the US had agreed to give effect to the UK's laws through accession to the Convention for the Protection of Literary and Artistic Works (Berne Convention) and the Universal Copyright Convention.  Applying UK law, the court granted summary judgment for Corel on the grounds that the transparencies were not original and therefore not valid subjects for copyright.  On Bridgeman's motion, the court reconsidered the issue of the scope of copyright for exact photos of public domain works and held as a matter of law that the works lacked sufficient originality to be copyrightable under either US or UK law.

The court considered whether through the exercise of the treaty power the US could constitutionally obligate itself to enforce a foreign copyright where the copyright law of that signatory State "does not limit copyright protection to works that are original" as required by the Copyright Clause of the US Constitution.  The court concluded that there was no real conflict of law issue because the Berne and Universal Copyright Conventions are not self-executing and both adopt national treatment regarding the determination of copyright infringement and remedies.  Adherence to Berne therefore was found to have no effect on the requirement of originality within the Copyright Clause, and that under US copyright law, while "probably the overwhelming majority of photographs" have the "modest amount of originality" required for copyright protection, "'slavish copying' although doubtless requiring technical skill and effort, does not qualify". TT
Download in Adobe pdf format   http://www.nysd.uscourts.gov/courtweb/pdf/99-01031.PDF

U.S. First Circuit Court of Appeals: United States v. Julio-Cardales, No. 97-2383 (Feb. 26, 1999)

Julio-Cardles, Hernandez, and Peterspn appealed their conviction for aiding and abetting in the possession with intent to distribute marijuana on board a vessel subject to the jurisdiction of the United States in violation of the Maritime Drug Law Enforcement Act (MDLEA).  The MDLEA defines a vessel subject to the juridiction of the United States as "a vessel registered in a foreign nation where the flag nation has consented or waived objection to the enforcement of United States law by the United States", inter alia.  46 USC app. sect. 1903(c)(1)(C).

The First Circuit noted that the United States had jurisdiction under the territorial principle of international law in that the flag nation, Venezuela, consented to the application of US law to the persons aboard the ship, as well as under the "protective principle" of international law on that grounds that Congress determined that drug trafficking aboard vessels threatens the security of the United States.  The court further rejected claims of due process violations, holding that "when individuals engage in drug trafficking aboard a vessel, due process is satisfied when the foreign nation in which the vessel is registered authorizes the application of United States law to the persons on board the vessel.  When the foreign flag nation consents to the application of United States law, jurisdiction attaches under the statutory requirements of the MDLEA without violation of due process or the principles of international law because the flag nation's consent eliminates any concern that the application of United States law may be arbitrary or fundamentally unfair." FM
http://laws.findlaw.com/1st/972383.html

 

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Reports and Other Documents

WTO: European Communities - Regime for the Sale and Distribution of Bananas, Arbitration under Article 22.6 of the DSU, Communication from the Arbitrators, WTO Doc. WT/DS27/48 (Mar. 2, 1999)

In a communication from the Chairman of the Arbitrators to the Chairman of the Dispute Settlement Body, the Arbitrators stated that they issued an initial decision regarding the scope of their work and requested additional information in order to "take a final view" regarding the WTO inconsistency, vel non, of the revised EC banana regime, and the level of suspension of concessions equivalent to any found nullification and impairment.  The Arbitrators stated that once they receive and analyze the requested information, they will be in a position to issue a final decision "soon thereafter". DL
http://www.wto.org/wto/dispute/ds27-48.htm

Arbitral Tribunal for Dispute Over Inter-Entity Boundary in Brcko Area: Final Award (Mar. 5, 1999)

At the 1995 Dayton Conference, Bosnia and Herzegovina (BIH) and the Republika Srpska (RS) were unable to reach an agreement as to which entity should control the Brcko area.  All parties then agreed that the final decision would be left to the International Arbitral Tribunal. para. 1.  The Tribunal warned the RS in an earlier ruling that "the RS would have to carry 'the burden of demonstrating very clearly that it has truly reversed course and committed itself to an apparently full program of full Dayton compliance.'" para. 4.  Instead, the evidence during the 1999 Vienna hearings showed obstructions against the attainment of Dayton's and the Tribunal's objectives taking place. para. 6.  The Tribunal made clear that "if pro-Dayton elements had been able to implement their programs in the Brcko area during the last year, the Tribunal's present decision ... might not have been necessary, but the SDR/SRS intransigence has left the Tribunal with no choice." para. 7.

The Tribunal criticized in particular the lack of refugees and displaced persons returning to their homes of origin. para. 16.  Because Serb displaced persons are now living in homes that lawfully belong to Bosniacs and Croats that were driven out in the ethnic cleansing process, it would be necessary for a substantial number of Serb displaced persons to move away in order to make housing available to returning Bosniacs and Croats in today's essentially 100% Serbian Brcko Grad. para. 18.  The Tribunal stated that these two-way returns have been impeded by the Serbian Democratic Party (SDS), whose primary  goal is the maintenance of Serbian "ethnic purity" in the Brcko region in clear defiance of Dayton's principle objectives. para. 19.  Dayton's multi-ethnic objective could not be achieved because during 1998 hard-line SDS officials in Brcko encouraged Brcko's Serbian displaced persons to stay where they were even if recovery of their own homes elsewhere was a real possibility. paras. 22-23.  Although there was little hard evidence of official encouragement of intimidation of Bosniacs and Croats trying to return to Brcko, the Tribunal noted a serious lack of political will to prevent such intimidation from occurring. para. 28.  The Tribunal further criticized the failure of the Serbs to facilitate a local multi-ethnic government. paras. 32-33.

The Tribunal decided that each entity shall be deemed to have delegated all of its power of governance within the pre-war Brcko Opstina to a new multi-ethnic democratic government to be known as "The Brcko District of Bosnia and Herzegovina" under the exclusive sovereignty of Bosnia and Herzegovina.  paras. 9 and 34.  The new District government will be subject to the powers of the common institutions of BIH in those areas which are the responsibility of the BIH common institutions.  In other respects the District government will operate on a self-governing basis. paras. 10, 34.  Moreover, the entire territory on the new District will be held in condominium by both entities simultaneously. para. 11.  The intent is to create a single, unitary multi-ethnic government instead of the previously existing two entities exercising governmental powers and three municipal governments. para. 36.  No entity police force will be allowed to enter the District in any official capacity. para. 40.  Neither entity will be allowed to base any of its military or other armed forces in the District. para. 41.

The Tribunal also made recommendations to the High Representative and to the international community to encourage Serb displaced persons presently residing in Brcko to return to the Federation and to revitalize the District's economy respectively. AE
http://www.state.gov/www/regions/eur/bosnia/990305_arbiter_brcko.html

 

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News and Notes

The International Law Students Association (ILSA) is seeking interns for immediate work on its projects, including the 40th Anniversary Phillip C. Jessup International Law Moot Court Competition.  For further information, contact Laura Title, ILSA Executive Assistant, by e.mail at ilsa@access.digex.net

 

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International Law In Brief - Copyright 2000 - The American Society of International Law
Editors:  Elizabeth J. Fabrizio, David A. Levy
Interns:  Alice Epler, Fredrick Mudenda, Teresa Taylor