International Law in Brief

International Law In Brief

April 19 - 30, 1999
Developments in international law, prepared by the
Attorney-Editors of
International Legal Materials
The American Society of International Law


Legislation

UK: Scotland Act 1998 (1998 Chapter 46)

The Act provides for the establishment of the Scottish Parliament ("the Parliament").  The members of the Parliament are to be elected by simple majority and proportional representation. sect. 1.  The Parliament has the power to pass laws in the form of Acts of the Scottish Parliament. sect. 28.  The Acts are subject to Royal Assent before they become legally binding.  The Parliament is to enjoy limited competence including: agriculture, fisheries and forestry, economic development, education, the environment, health, and local government.  The Parliament of the United Kingdom retains competence in matters such as: the constitution, defense and national security, foreign policy and relations with Europe, and the stability of the UK's fiscal, economic, and monetary system. schedule 5.

According to the Act, the Scottish administration is headed by the First Minister, Ministers, the Lord Advocate, and the Solicitor General for Scotland. sect. 44.  The First Minister has the power to appoint the Scottish Ministers and junior Ministers. sects. 47, 49.  Certain functions previously exercised by the Ministers of the Crown are transferred to the Scottish Ministers, however the Act provides for "shared powers" to be exercised concurrently. sects. 53, 56.  Additionally, "a member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the convention rights or with Community law." sect. 57(2)  If such an action is proposed or made, it will be terminated or revoked by the order of the Secretary of State (for Scotland), who is not a member of the Scottish executive.  This process also applies to any subordinate legislation that exceeds the legislative competence of the Parliament. sect. 58.  Finally, the Act provides for the Parliament to pass tax-varying resolutions, based on the basic rate determined by the Parliament of the United Kingdom, beginning with fiscal year 2000-01.  sects. 73-74.

Attached to the Act are additional Schedules which define: constituencies, regions and regional members for the purpose of the Act (Schedule 1); general and specific reservations regarding the legislative competence of the Parliament (Schedule 5); devolution issues (Schedule 6); and the procedure for subordinate legislation. (Schedule 7). BM

Editorial note: the first elections for the Scottish Parliament are scheduled for May 6, 1999.
http://www.legislation.hmso.gov.uk/acts/acts1998/19980046.htm

 

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Judicial and Other Decisions

WTO Panel Report: European Communities - Regime for the Importation, Sale and Distribution of Bananas - Recourse to Article 21.5 by the European Communities, WT/DS27/RW/EEC (April 12, 1999)

On September 27, 1997 the Dispute Settlement Body (DSB) adopted the Appellate Body  report on European Communities - Regime for the Importation, Sale and Distribution of Bananas (WT/DS27/AB/R) and the Panel's report recommending that the European Communities (EC) bring their import regulations on bananas into conformity with GATT 1994 and GATS.  The EC was given until Jan. 1, 1999 to implement the recommendations and rulings of the DSB.

Guatemala, Honduras, Mexico, and the United States criticized the EC's new measures and consultations were held on September 17, 1998.  The EC agreed to such consultations only in so far as they related to measures that had already been formally adopted and published, i.e., Regulation 1637/98.  The EC refused to engage in discussions concerning import licensing rules which had not yet been adopted at that time and had not even been submitted to the management committee as a preliminary step for their definitive approval by the Commission.  On October 28, 1998 the Commission adopted Regulation 2362/98 which contained detailed rules implementing Council Regulation 404/93 concerning the importation of bananas.  The EC subsequently requested the establishment of a panel, pursuant to Art. 21.5 of the DSU to find that the implementing measures must be presumed to be WTO consistent unless their conformity has been "challenged under the appropriate DSU procedures." para. 1.4

The Panel held that there is no provision in the DSU authorizing a panel to compel a Member to join an Article 21.5 proceeding as a party. para. 4.12.  The Panel agreed with the EC that there is no presumption of inconsistency attached to a Member's measures, but held that the failure of another Member to challenge such measures or complain cannot give rise to a presumption that the Member "accepts the measures of the other Member as consistent with the WTO Agreement." para. 4.13.  Furthermore, the Panel stated that since the EC's implementing measures were found to be inconsistent with its WTO obligations in the proceedings initiated by Ecuador, such measures cannot be presumed to be consistent for the purposes of this Panel. para 4.15.  Consequently, the Panel did not have to consider whether an original respondent in a panel proceeding, such as the EC, is authorized to initiate an Article 21.5 proceeding, but stated in dicta that they "would not rule out the possibility of using Article 21.5 in such a matter, particularly when the purpose of such initiation was clearly the examination of the WTO-consistency of implementing measures." para. 4.18. TT
Download in Adobe pdf format   http://www.wto.org/wto/dispute/27rweece.pdf

WTO Panel Report:  European Communities - Regime for the Importation, Sale and Distribution of Bananas - Recourse to Article 21.5 by Ecuador, WT/DS27/RW/ECU (April 12, 1999)

Ecuador brought this complaint before the Dispute Settlement Body (DSB) alleging that the European Communities (EC) failed to comply with the DSB's recommendations in the matter European Communities - Regime for the Importation, Sale and Distribution of Bananas (DS/27/R/ECU & DS/27/AB/R) concerning the EC's import measures for bananas.  In particular, Ecuador argued that EC Regulations 1637/98 and 2362/98 are inconsistent with the EC's obligations under Articles I and XIII of GATT 1994 and Articles II and XVII of GATS.  Additionally, Ecuador requested that the Panel reaffirm its prior rulings and interpretations, as confirmed and modified by the Appellate Body as well as provide the EC with more explicit guidance on compliance.  The EC requested that the Panel reject all of Ecuador's allegations and find that the EC had complied with the original DSB's recommendations and rulings.

The Panel rejected the EC's argument that under Article 21.5 of the DSU, the Panel can only verify the consistency of measures taken to comply with the recommendations in the matter and not consider other claims raised by Ecuador.  The Panel found that this limitation is not present in the Panel's terms of reference nor in the ordinary meaning of the terms of Art. 21.5 of the DSU.  paras. 6.2-6.12.

Ecuador also alleged that the division on the revised EC import regime for bananas into (i) an MFN tariff quota of 2,553,000 tonnes, and (ii) an amount of 877,700 tonnes reserved for traditional imports from ACP States at a zero-duty level, fails to conform with the non-discrimination requirements of Article XIII.  The EC argued that the amount of 857,700 tonnes constitutes an upper limit on a tariff preference and is not a tariff quota subject to Article XIII.  The Panel, however, held that Article XIII applied to the 857,700 tonnes limit because a tariff quota is a quantitative limit on the availability of a specific tariff rate. paras. 6.20-6.23.  The Panel found that imports from different non-substantial supplier countries are not similarly restricted within the meaning of Article XIII:1.  Furthermore, the Panel found that the allocation of a collective tariff quota for traditional ACP imports under the revised regime is inconsistent with Article XIII (1-2) of GATT.  paras. 6.24-6.29.

The Panel held that violation of Article I:1 of GATT is waived by Article 168 of the Lome Convention, which provides that the unlimited preferential tariff of zero for non-traditional ACP banana imports within the "other" category of the MFN tariff quota is required.  Additionally, the Lome waiver covers the tariff preference of 200 Euro per tonne for out-of-quota imports of non-traditional ACP bananas.  paras. 6.70-6.80.

Regarding GATS, the Panel held that under the revised regime, Ecuador's suppliers of wholesale services are accorded de facto less favorable treatment than EC/ACP suppliers of those services in violation of Articles II and XVII of GATS. para. 6.134.  The Panel also found that the criteria for acquiring "newcomer" status under the revised EC licensing procedures, as applied to Ecuador's service suppliers, gave them de facto less favorable conditions of competition than similar EC service suppliers and is in violation of Article XVII of GATS. BM
Download in Adobe pdf format  http://www.wto.org/wto/dispute/27rwecue.pdf

WTO Decision by the Arbitrators: European Communities - Regime for the Importation, Sale and Distribution of Bananas - Recourse to Arbitration by the European Communities under Article 22.6 of the DSU, WT/DS27/ARB (April 9, 1999)

The United States, pursuant to Article 22.2 of the DSU, requested the suspension of tariff concessions to the European Communities in the amount of US$ 520 million.  The EC objected that the proposed level of suspension is not equivalent to the level of nullification or impairment of benefits suffered by the US, as well as the principles and procedures for suspension, set out in Article 22.3 of the DSU, had not been followed.  In accordance with Article 22.6 of the DSU, the matter was submitted to the original panel for arbitration. para. 1.1

The EC argued that the US request was in reality a cross-sectorial request, and that the request for suspension of concessions had to be made coextensively with the amount of nullification or impairment suffered "in each of those sectors or under each of those agreements taken separately." para. 3.8  The Arbitrators held, however, that the ordinary meaning of Article 22.3(a) and its "same sector(s)" concept included both "all goods" and "distribution services", and that the findings of violations under GATT and GATS in the original dispute "were closely related and all concerned a single import regime in respect of one product, i.e., bananas." para. 3.10.  Therefore, the US had the right to request suspension of concessions in either, or both, of the two sectors, up to the level of nullification or impairment suffered. id.  Furthermore, the Arbitrators held that it must determine the inconsistency of the revised EC regime first, in order to establish the equivalence of the US concession suspensions. para. 4.8

The Arbitrators held that there is a continuation of nullification or impairment of US benefits under the revised EC regime (paras. 5.96-5.98), reaffirming the findings in European Communities - Regime for the Importation, Sale and Distribution of Bananas - Recourse to Article 21.5 by Ecuador, supra.

Regarding the level of nullification or impairment of US trade flows, the Arbitrators held that the benchmark for calculation should be losses in the US exports of goods to the EC and losses by US service suppliers in or to the EC. para. 6.12.  The Arbitrators held, however, that the losses of US exports to third countries should not be considered for calculation, because "there is no right and no need under the DSU for one WTO Member to claim compensation or request authorization to suspend concessions for the nullification or impairment suffered by another WTO Member with respect to goods bearing the latter's origin or service suppliers owned or controlled by it." para. 6.14  Otherwise, that would constitute "double counting" of the same nullification and impairment, which would be incompatible with the standard of "equivalence" set forth in Article 22, paragraphs 4 and 7. para. 6.16.

Finally, in order to determine the level of nullification or impairment, the Arbitrators compared the value to the relevant EC imports from the US under the present banana import regime with their value under a WTO-consistent regime. para. 7.1.  Consequently, the Arbitrators determined that the level of nullification or impairment suffered by the US was US$ 191.4 million per year, and authorized the suspension accordingly.  BM
Download in Adobe pdf format   http://www.wto.org/wto/dispute/1735d.pdf

ICJ: Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion of April 29, 1999

Dato' Param Cumaraswamy, as Special Rapporteur of the Commission on Human Rights on the Independence of Judges and Lawyers, was conducting an investigation into allegations concerning the independence of the judiciary, lawyers, and court officials in Malaysia. para. 4.  Cumaraswamy commented on certain litigations that had been carried out in Malaysia during an interview with International Commercial Litigation magazine in November 1995. para. 5.  As a result, two companies filed suit against Cumaraswamy for defamation in an amount totaling US$ 24 million. id. The Secretary-General subsequently issued a note confirming a note of the UN Legal Counsel, which stated that Cumaraswamy was immune from legal process under Article VI, sect. 22 of the Convention on the Privileges and Immunities of the United Nations (the Convention) because he was acting in his official capacity as Special Rapporteur to the United Nations when he was interviewed. para. 6.  In June 1997 the Malaysian High Court for Kuala Lumpur concluded that Cumaraswamy was not absolutely protected by the immunity claimed because the Secretary-General's note was merely "an opinion" with no binding force on the court. para. 8.

The ICJ held that Special Rapporteurs appointed by the Human Rights Commission, and its sub-commissions, have been entrusted with a task by the United Nations and are consequently "entitled to the privileges and immunities provided for in Article VI, Section 22, that safeguard the independence exercise of their functions." para. 43.  Whether particular actions of Special Rapporteurs are within the scope of their mission is a fact-specific inquiry, however the ICJ noted that interviews with the press has become "standard practice" for Special Rapporteurs of the Commission, and that the words quoted in International Commercial Litigation were uttered within the course of performance of Cumaraswamy's mission. paras. 52-56.  The Court further noted that as the chief administrative officer of the UN, it is up to the Secretary-General to assess whether its agents were acting within the scope of their mission, and that the Secretary-General has a duty to inform the government of the member State. para. 60.  The member State has a corresponding duty to inform its courts of the position taken by the Secretary-General. para. 62.

The Court further noted that the question of immunity from process is "distinct" from the question of compensation for damages incurred as a result of actions of the United Nations or its agents acting in their official capacity. para. 66.  While the UN may be responsible for payment of compensation, the ICJ emphasized that it is not to be dealt with in national courts, but rather settled by the UN pursuant to Article VIII, Section 29 of the Convention.

Vice-President Weeramantry and Judges Oda and Rezek appended seperate opinions.  Judge Koroma appended a dissenting opinion.  Weeramantry stressed that the UN should protect its officials from being tried for acts performed in the course of their duties, but that UN personnel  have a corresponding duty to ensure that whatever actions they take or statements they make are always within the limits of the performance of their duties.

Judge Oda stated the view that whether or not Malaysia informed its courts of the position taken by the Secretary-General was not a relevant issue in this case.  Oda noted that as a State, Malaysia was responsible for the actions of its national courts in allowing the proceedings against Cumaraswamy to be pursued, rather than being dismissed.  Finally, Judge Oda stated that Malaysia is obligated under Article VIII, Section 30 of the Convention to accept this Advisory Opinion as decisive, and that it was not necessary for the Court to make an explicit statement in paragraph 4.  Judge Rezek emphasized that the Government of Malaysia not only had a duty to inform its courts of the finding of the Secretary-General, but had a further obligation "to ensure that the immunity is respected". (emphasis in original).

In dissent, Judge Koroma noted that the issue of whether the Convention is applicable to Cumaraswamy is a mixed question of law and fact which should not have been submitted to the Court. paras. 14-15.  Koroma further stated the view that once the request was submitted, the Court should have exercised its discretion and declined to answer the question put to it. para. 15.
http://www.icj-cij.org/icjwww/idocket/inuma/inumaframe.htm

 

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Briefly Noted

The American Society of International Law is seeking applications for the position of Editor of International Legal Materials and International Law In Brief.  J.D. or equivalent legal training, experience in publications and working with legal materials, and demonstrated competence in electronic retrieval, storage, and dissemination of documents are essential.  Send resume and salary requirements to:  ILM Editor Search, 2223 Massachusetts Ave., NW, Washington, DC 20008-2864.  Review of resumes will begin May 15th.  For further information, visit the ASIL Web site, http://www.asil.org/jobs.htm

The State Department Office of the Assistant Legal Adviser for Private International Law (L/PIL) announces a new Web address for its PILDB Web site.  http://www.state.gov/www/global/legal_affairs/private_intl_law.html

FR Yugoslavia has instituted proceedings before the International Court of Justice against the US, UK, France, Germany, Italy, the Netherlands, Belgium, Canada, Portugal, and Spain, accusing the States of bombing Yugoslav territory in violation of their international legal obligation not to use force against another State.  Yugoslavia has requested the Court to order the immediate cessation of the use of force as a provisional measure. The ICJ will hold hearings on Yugoslavia's request for provisional measures on Monday, May 10th. http://www.icj-cij.org/icjwww/idocket.htm

NATO 50th Anniversary Summit documents are available on the NATO Web site, http://www.nato50.gov

Cambodia was admitted to the Association of Southeast Asian Nations (ASEAN) on April 30th as its tenth member. http://www.aseansec.org/news/camb_adm.htm

The Southwestern Legal Foundation announces three CLE programs of interest to international commercial practitioners.  International Commercial Litigation - Strategies and Solutions will be held on June 14; the annual Symposium on Private Investments Abroad will be held on June 15-16; and Transnational Commercial Arbitration - Litigating the Merits of an International Arbitration will be held on June 17th.   All sessions will take place in the Westin Galleria Hotel, Dallas, Texas.  For further information, contact Mark P. Smith at marksmith@swlegal.org

 

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International Law In Brief - Copyright 2000 - The American Society of International Law
Editors:  Elizabeth J. Fabrizio, Esq., David A. Levy, Esq.
Interns:  Branislav Maric, Adv., Teresa Taylor