International Law In Brief
April 15-28, 2000
Developments in international law, prepared by the
Attorney-Editors of International Legal Materials
The American Society of International Law
- Treaties, Agreements and Related Documents
- IDA - UNTAET: Trust Fund for East Timor Grant Agreement (World Bank - U.N. financing agreement for East Timor operations)
- Judicial and Similar Proceedings
- U.K. High Court of Justice, Queen's Bench Division: Irving v. Penguin Books Ltd. (libel suit concerning accusations of holocaust denial)
- U.S. Second Circuit Court of Appeals: In Re: Air Crash Off Long Island, New York, on July 17, 1996 (TWA Flight 800 Crash, Death on the High Seas Act)
- Legislation and Regulation
- UNTAET: Regulation On the Establishment of Village and Sub-District Development Councils for the Disbursement of Funds for Development Activities (Local control by East Timorese over development funds and activities)
- Briefly Noted
Under a Grant Agreement ("Agreement"), the World Bank's International Development Association ("IDA") shall serve as Trustee for monies granted under the Trust Fund for East Timor ("TFET") to the U.N. Transitional Administration of East Timor ("UNTAET") for the purposes ("Project") of: 1) strengthening the capacity of East Timor sub-districts and villages to plan and implement development decisions; 2) building and reconstructing economic infrastructure; 3) supporting productive economic activities; and 4) supporting cultural heritage and social reconciliation. Preamble; Schedule 2.
The IDA shall make available to UNTAET the TFET Grant in the amount of $7 million, but is not obligated to make any payment except insofar as funds are received for the purposes of U.N. Security Council Resolution 1272. Sect. 2.01. UNTAET may open a U.S. dollar-denominated special deposit account for the purposes of the Project. Id. UNTAET agrees to carry out the Project with due diligence and efficiency through the UNTAET Office of Governance and Public Administration. Sect. 3.01. UNTAET will conform with appropriate administrative, agricultural, engineering, environmental, financial and social practices, (Id.), and will promptly provide as needed the funds, facilities, services and other resources required for the Project. Id.
Funds for sub-district projects may not: 1) go towards military or paramilitary purposes; 2) be related to the manufacture or use of environmentally hazardous goods (including asbestos and pesticides), arms or drugs; or 3) include financing of government salaries. Schedule 4, Sect. 3(e). Prior to the issuance of proposal requests to consultants, the proposed plan for the selection of Project consultants is to be furnished to the IDA for review and approval. Schedule 3, Sect. II, Part D.1. UNTAET will also each fiscal year furnish the IDA with an independent audit of its operations, resources and expenditures. Sect. 4.01. The IDA may suspend UNTAET's right to withdraw funds under certain circumstances. Art. V; Schedule 6, Sect. 6.02. Disputes between the IDA and UNTAET under the Agreement shall be submitted to an Arbitral Tribunal if not resolved by the parties. Schedule 6, Sect. 9.03.
An UNTAET regulation establishing development councils at the village and sub-district levels is specified as a condition to the Agreement's effectiveness. Article 6.01(c); Schedule 4. (See also abstract of UNTAET Regulation 13.) UNTAET must also take measures to avoid or minimize the acquisition of land or assets of villagers, to avoid their displacement, and if necessary arrange for compensation and resettlement. Schedule 4, Sect. 8. The Project is scheduled to be completed by June 30, 2001. Schedule 2. JJ
Judicial and Other Decisions
David Irving, a World War II and Nazi Germany historian, brought a libel action against Penguin Books Ltd. and U.S. author Deborah Lipstadt ("Defendants") for allegedly disparaging remarks made in Lipstadt's book "Denying the Holocaust -- The Growing Assault on Truth and Memory." Irving claimed that the book accused him of being a Nazi apologist and admirer of Hitler, and was part of a "concerted attempt" and a "sinister international campaign" to ruin his reputation as a historian. Paras. 1.2, 3.8.
The Defendants did not accept Irving's interpretation of the contested passages, and in a justification defense asserted that Irving was discredited as a historian for denying the Holocaust and persistently distorting the historical record to depict Hitler in a favorable light. Paras. 1.2, 4.2. After concluding that the contested passages referred to Irving, Justice Gray concluded that the passages did in fact bear meanings defamatory to Irving, including that: 1) Irving is an apologist for and partisan of Hitler; 2) Irving is one of the most dangerous spokespersons for Holocaust denial; and 3) Irving is discredited as a historian. Para. 2.15.
Justice Gray further concluded that the book represented a "deliberate attack" on Irving to discredit him and undermine credence that might otherwise be given to his Holocaust denial claims. Para. 3.9. Justice Gray did not find, however, that Irving was the victim of a conspiracy in which the Defendants were implicated. Id.
Justice Gray noted that the Defendants under a justification defense must prove, under a higher standard of proof than normally applied in civil cases, the substantial truth of the defamatory imputations. Paras. 4.7, 4.10. After conducting an exhaustive factual review of events involving Hitler, the Third Reich, the Holocaust, and Irving himself, and after finding much to commend Irving's role as a military historian, (Para. 13.7), Justice Gray found that the Defendants' criticisms were "almost invariably well-founded," and that Irving had "significantly misrepresented" what the evidence revealed. Para. 13.9. Justice Gray also noted that the evidence of "historians of the greatest distinction" supported the Defendants' criticisms. Para. 13.10.
After making a number of specific factual conclusions concerning the review, Justice Gray concluded that Irving was a Holocaust denier, an anti-Semite, a racist, and an associate of several extreme right-wing individuals and U.S. organizations. Paras. 13.95, 13.101, 13.106, 13.114-15. Justice Gray also noted that "anti-semitism is a form of racism," (Para. 13.106), and found that Irving's "errors" converged to exonerate Hitler and "reflect Irving's partisanship for the Nazi leader." Para. 13.142.
Justice Gray concluded that the Defendants had proved the substantial truth of most of the imputations, (Paras. 13.165-66), and that these were of "sufficient gravity" to render the remainder of no "material effect on Irving's reputation." Para. 13.167. Justice Gray deemed the justification defense successful, and ruled for the Defendants. Paras. 13.168, 14.1. PH
Trans World Airlines, Inc., The Boeing Company and Hydro-Aire, Inc. ("Appellants") appealed a decision by the U.S. District Court for the Southern District of New York ("District Court") denying the Appellants' motion to dismiss claims for non-pecuniary damages brought by the relatives and estate representatives of 213 victims ("Appellees") killed in the July 17, 1996 TWA Flight 800 airplane crash eight nautical miles off Long Island, New York.
The District Court had denied the Appellants' argument that Section 2 of the Death on the High Seas Act ("DOHSA") limited the Appellees' recovery to "a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought." The District Court concluded that DOHSA applies only where death occurred both on the "high seas" (i.e. beyond U.S. territorial waters) and more than a marine league from the shore. The District Court further concluded that U.S. territorial waters had been extended by Presidential Proclamation to twelve nautical miles, and so ruled that: 1) the crash did not occur on the high seas; and 2) DOHSA did not limit recovery.
The U.S. Second Circuit Court of Appeals ("Court") noted that the case was one of first impression for the Second Circuit, and affirmed. The Court acknowledged that the term "high seas" is ambiguous both in DOHSA's legislative history and in a number of U.S. Supreme Court and lower court decisions. The Court accepted, however, the Appellees' argument that "high seas" equates to "international waters" (i.e. those beyond U.S. territorial waters). The Court noted that Congress had enacted DOHSA to provide a uniform cause of action where none had previously existed, and which arose beyond U.S. federal and state territorial limits, within which common-law remedies were available.
The Court noted that while the U.S. territorial sea had been one marine league (i.e. three nautical miles) for nearly two centuries, Presidential Proclamation No. 5928 ("Proclamation") extended the U.S. territorial sea in 1988 from three to "[twelve] nautical miles from the baselines of the U.S. determined in accordance with international law." The Court determined that "[t]he background and legislative history of DOHSA demonstrate Congress's intent to exclude all state and federal territorial waters from its scope," and consequently held the twelve nautical mile mark as the starting point of DOHSA's application.
The Court also concluded that Congress gave priority to preserving pre-existing remedies over security uniformity in admiralty law. The Court noted that it would be "particularly inappropriate" to displace pre-existing state or federal remedies under which remedies could be more generous than those under DOHSA.
Judge Sotomayor noted in dissent that when DOHSA was enacted, the start of the "high seas" and the end of U.S. territorial waters coincided at the one marine league limit of the states' territorial seas. Judge Sotomayor asserted that Presidential Proclamation No. 5928 merely changed the meaning of U.S. territorial seas for international rather than domestic purposes, and that Congress had not intended DOHSA, as domestic law intended to preserve state remedies, to be affected by a change in the meaning of the U.S. territorial sea under international law. MB
Archived at http://laws.findlaw.com/2nd/989622.html
Pursuant to U.N. Security Council Resolution 1272, previous UNTAET regulations, and the IDA-UNTAET Trust Fund for East Timor Grant Agreement (see abstract of TFET Grant Agreement), UNTAET established a system of village and sub-district councils for the allocation of development funds. Preamble; Sect. 1.2. These bodies do not, however: 1) exercise the legislative, executive or judicial power of government; 2) prejudice any constitutional or institutional development provided by UNTAET in East Timor; or 3) duplicate or replace the role of traditional and local leaders of villages and sub-districts. Sects. 1.3-1.4.
Village councils shall consist of at least two democratically selected representatives from each village hamlet, with a total of between ten and sixty. Sect. 2.1. In principle, a village council shall consist of an equal number of women and men. Id. The selection of hamlet representatives is organized by a selection committee consisting of the hamlet chief and two trusted members of the hamlet community, one male and one female. Sect. 4.1.
The regulation establishes a selection procedure for nomination for candidates, who must: 1) be over 18 years old; 2) be usually resident in the hamlet; 3) not be traditional or local leaders; and 4) have sufficient time for village council work. Sects. 4.2-4.3. The first selection process shall involve a term of one year, while later processes will involve three-year terms. Sect. 5.1. Representatives shall not serve more than three terms. Id. Voting procedures are established, and the franchise is given to all residents either over 17 or married. Sects. 5.2-5.4.
The village council selects a Chairperson and Deputy Chairperson from among themselves. Sect. 6.1. The Chairperson serves as an ex officio village representative to the sub-district council. Id. Before each sub-district council meeting the village council shall choose from among themselves other sub-district council representatives, at least one of whom is a woman. Sects. 7.3(d), 10.3. Sub-district councils consist of between ten and forty representatives from village councils. Sect. 10.1.
Village councils are responsible for: 1) identifying, planning and carrying out development activities, programs and contracts using allocated funds received from any source; 2) drawing up an annual village development work plan; 3) submitting twice per year written and oral progress reports to traditional and local leaders, as well as the village community; and 4) convening public hamlet and village meetings to discuss development plans and activities. Sect. 7. Voting procedures are established, as well as a village monitoring team system for correcting and reporting to UNTAET any poor workmanship or bad practice. Sects. 8-9, 11.3.
Sub-district councils shall: 1) allocate development funds provided at their level from any source; 2) carry out development projects and contracts; 3) monitor construction and development in villages, and report poor workmanship to UNTAET; 4) assist and stimulate development activities within the sub-district and between villages; and 5) resolve development disputes between villages. Sects. 11; 14(g). Each sub-district council also selects two representatives, at least one of whom shall be a woman, to assist the UNTAET District Administrator and national agencies in development planning, implementation and monitoring. Sect. 14. Voting and consensus procedures, open meetings, written decision requirements, and the selection and work of financial supervisors are established. Sects. 12-13. PH
Archived in PDF format at http://www.un.org/peace/etimor/untaetR/UntaetR.htm
The ASIL has issued two new Insights. The first, by Judson Berkey and entitled "Implications of the WTO Protections for Food Geographic Indications", is located at http://www.asil.org/insigh43.htm. The second, by Michael Scharf and entitled "A Preview of the Lockerbie Case," is located at http://www.asil.org/insigh44.htm.
International Law In Brief - Copyright 2000 - The American Society of International Law
Editor: Peter C. Hansen, Esq.