International Law in Brief

International Law In Brief

November 18 - December 1, 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

Multinational High-Level Conference, convened by the South Pacific Forum Fisheries Agency: Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, and Final Act (September 4, 2000)

The Multinational High-Level Conference convened by the South Pacific Forum Fisheries Agency adopted the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean ("Convention") with the objective of ensuring such stocks' long-term conservation and sustainable use. Art. 2. The Contracting Parties were in so doing "mindful" that effective conservation and management measures require application of both: 1) the precautionary approach; and 2) the best scientific information available. Preamble; Final Act, Para. 4.

The Convention establishes the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean ("Commission") to inter alia: 1) determine the total allowable catch or total level of fishing effort within the Western and Central Pacific Ocean ("Convention Area"); 2) adopt standards for the collection, verification and timely exchange and reporting of data on fisheries; 3) adopt "generally recommended" international minimum standards for the responsible conduct of fishing operations; and 4) promote the peaceful settlement of disputes. Arts. 9(1); 10(1)(a), (d), (h), (n).

The Convention requires the Commission to cooperate with other international organizations, including the U.N. Food and Agriculture Organization, in cases of inter alia: 1) matters of mutual interest; or 2) related objectives. Art. 22. The Convention also establishes that the absence of "adequate" scientific information shall not be used as a reason for postponing or failing to take conservation and management measures in applying the precautionary approach. Art. 6(2).

The Convention requires Commission members to inter alia: 1) adopt measures to minimize fishing vessel waste and pollution; 2) protect biodiversity in the marine environment; 3) prevent or eliminate over-fishing and excess fishing capacity; and 4) take into account the interests of artisanal and subsistence fishers. Art. 5(e)-(h). The Convention requires Commission members to give "due consideration" and "full recognition" respectively to the capacities and special requirements of developing coastal States, particularly small island developing States, in the Convention Area. Art. 7(2), 30(1).

The Convention further requires the Commission to take into account the need to ensure that measures do not result in the transfer of a "disproportionate burden" of conservation action to developing States Parties, territories or possessions. Art. 30(2)(c). The Convention also requires the compatibility of high seas and national jurisdiction conservation and management measures. Art. 8(1).

The Convention requires the Commission to promote transparency in its decision-making processes and other activities. Art. 21. The Convention also establishes the right of a Commission member either voting against a measure or absent from the vote to seek panel review on the basis of either: 1) the provisions of certain international agreements; or 2) unjustifiable discrimination "in form or in fact" against the member. Art. 20(6). During such review no Commission member shall be required to give effect to the contested decision, which the review panel may uphold, modify, amend or revoke. Art. 20(7)-(9).

Each Commission member shall take measures to ensure that fishing vessels flying the member's flag comply with the Convention's provisions and consequently adopted measures. Art. 24(1)(a). Each Commission member shall also, at the request of any other member, fully investigate any alleged violation by fishing vessels flying its flag. Art. 25(2). The Convention further requires that all investigations and judicial proceedings be carried out expeditiously. Art. 25(7). BM

Archived at http://www.macmeekin.com/Library/MHLC/toc.htm   The Convention was originally provided by Lee A. Kimball, ILM Corresponding Editor for the Environment.

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Judicial and Other Decisions

Federal Court of Australia: Wang v. Minister for Immigration and Multicultural Affairs, [2000] FCA 1599 (November 10, 2000)

Mr. Wang ("Appellant"), a citizen of the People's Republic of China, applied for an Australian protection visa based on a claim of refugee status within the meaning of Article 1A(2) of the 1951 Convention relating to the Status of Refugees ("Convention"), as amended by the 1967 Protocol Relating to the Status of Refugees. Paras. 29-30. The Appellant claimed a "well founded fear" by reason of alleged official persecution for inter alia having attended a Protestant Christian church unregistered with the Chinese Government. Paras. 30, 34-35.

The Australian Refugee Review Tribunal ("RRT") rejected the Appellant's request, concluding that any such punishment or mistreatment would not constitute persecution under the Convention, since the Appellant could have practiced at a registered church. Para. 31. An Australian Federal Court trial judge subsequently dismissed the Appellant's application for review, and the Appellant thereafter appealed to a Full Court of the Federal Court ("Court"). Paras. 29, 32.

The Court considered the case to raise the question whether a claimant's fear of practicing religion in a manner rendered unlawful by national laws is a "fear of persecution by reason of the person's religion or by reason of the person having broken the law." Para. 33 [emphasis in original]. The Court also found that for the purposes of Convention Article 1A(2) there were two elements to the concept of religion: 1) manifestation or practice of personal faith or doctrine; and 2) manifestation or practice of that faith or doctrine in a "like-minded community." Para. 81.

The Court held that a law regulating the practice of religion, and: 1) requiring that it be practiced or observed in a particular way; or 2) targeting or applying only to persons practicing religion, was not a law of "general application." Para. 66. The Court concluded that a fear of prosecution or official punishment for the breach of such laws can "of itself" give rise to a "well-founded fear" under the Convention. Id. The Court therefore held that the RRT and trial judge had erred in failing to apply such a standard in assessing whether the Appellant's fear was well-founded. Paras. 97, 103.

The Court held that the RRT had also erred by disregarding the community or congregational element of religious practice as an element of Convention Article 1A(2). Para. 101. The Court concluded that this had led the RTT to: 1) regard Chinese laws regulating religious practice as "analogous to town planning laws"; and 2) conclude that the enforcement of laws against the Appellant for practicing at an unregistered church to not be "persecution" by reason of religious practice. Para. 102.

The Court allowed the appeal, set aside the decisions of the RTT and trial judge, and remitted the case to the RRT for redetermination in accordance with law. Para. 112. BM

http://www.austlii.edu.au/au/cases/cth/federal_ct/2000/1599.html

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ICSID: Compania del Desarrollo de Santa Elena, S.A. v. Republic of Costa Rica, Case No. ARB/96/1 (February 17, 2000)

Compania del Desarrollo de Santa Elena, S.A. ("Santa Elena"), a Costa Rican corporation with majority U.S. shareholders, in the 1970s acquired a tract of land in Costa Rica for the purpose of developing it as a tourist and residential site. Paras. 1, 16. Beginning in 1978, Costa Rica undertook to expropriate the land for conservation purposes. Paras. 17-18, 22, 71. While Santa Elena thereafter retained possession of the property, the land could not be developed as expected, and was moreover without significant resale value. Paras. 80-81, 105.

While Santa Elena did not challenge the expropriation, Santa Elena claimed approximately U.S. $6,400,000 in compensation. Para. 19. For approximately twenty years, the amount of compensation was not resolved, (Para. 20), and the dispute was thereafter brought at Santa Elena's request before an International Centre for Settlement of Investment Disputes ("ICSID") Tribunal. Paras. 1-5, 26.

The Tribunal held that the appropriate date for assessing the property's value was the date of expropriation. Para. 83. The Tribunal further held that a "reasonable and fair approximation" of the property's value at the date of expropriation was U.S. $4,150,000. Para. 95.

The Tribunal found in regard to the parties' dispute over interest that no uniform rule of law had emerged in international arbitral practice as to the applicability of simple or compound interest in any given case. Paras. 96, 103. The Tribunal concluded that an interest determination is produced by an exercise of judgment that takes into account: 1) all of the case's circumstances at hand; and "especially" 2) considerations of fairness which "must form part of the law to be applied" by the Tribunal.Para. 103.

The Tribunal determined that compensation in the event of a delay between the loss of an asset's value and the receipt of the monetary equivalent "should reflect, at least in part" the additional sum that would have been earned by both its investment and the reinvestment of returns at "generally prevailing rates of interest." Para. 104. The Tribunal noted that compound interest's purpose was not to "attribute blame to, or to punish" the delay of payment, but to act as a mechanism to ensure appropriate compensation. Id.

The Tribunal held that simple interest was not justified, given the nearly twenty-two year delay between Santa Elena's loss and its compensation. Para. 105. The Tribunal also held, however, that full compound interest would not do "full justice," given Santa Elena's: 1) possession of the property; and 2) limited ability to exploit it. Para. 105. The Tribunal held that Santa Elena was entitled to compound interest, adjusted to take account of all "relevant factors." Para. 106. The Tribunal awarded Santa Elena a total of U.S. $16,000,000 in principal and interest. Para. 107. PH

Archived in PDF format at http://www.worldbank.org/icsid/cases/awards.htm

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Legislation and Regulation

France: Law relating to the Reception and Habitat of Migrants, Adopted Text No. 548 (June 22, 2000)

The French National Assembly adopted the Law relating to the Reception and Habitat of Migrants ("Law") in regard to those: 1) called gens du voyage (i.e. migrants); and 2) for whom mobile residences constitute their traditional habitat. Art. 1.I. The Law requires each Department (i.e. prefecture) to create a plan for the establishment of permanent areas for the reception of migrants, given inter alia: 1) the frequence and duration of migrants' stay; 2) possibilities for educating their children; and 3) access to care and the exercise of economic activity. Art. 1.II.

Communities of over 5,000 inhabitants must figure into the Departmental plan, which must establish inter alia: 1) the nature of social action on behalf of migrants frequenting permanent reception areas; 2) places for temporary occupation for the purpose of traditional or occasional assemblies; and 3) conditions under which the State will intervene to assure the proper unrolling of such assemblies. Id. An annex to the Departmental plan must also take into account lands that must be made available to migrants by their employers, notably within the framework of seasonal employment. Id.

Departmental plans shall be revised every six years from the date of publication. Art. 1.III. In each Department, a consultative commission comprised of inter alia: 1) community representatives; 2) migrant representatives; and 3) associations intervening on migrants' behalf shall take part in elaborating and implementing the plan. Art. 1.IV. Departments must implement their plans within two years of their publication. Art. 2.I.

Once a community implements their obligations under the Departmental plan, it may forbid the placing of mobile residences within their territory but outside of the designated areas. Art. 9.I. The same right applies to those communities not bound by a community plan but either endowing or financially contributing to a reception area. Id. A community's mayor may not, however, act in regard to land not owned by the community unless the encampment affects health, security or public tranquillity. Art. 9.I-II.

When occupation outside of designated areas may hinder the economic activity to which private land is allocated, the proprietor or the title-holder of a real usage right to the land in question may bring an action to force evacuation of mobile residences. Art. 9.IV. PH

French language original archived in PDF format at http://www.assemblee-nat.fr/2/2textes-a.html

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India: Information Technology Act 2000, No. 21 of 2000 (June 9, 2000)

The Indian Information Technology Act 2000 ("Act") provides legal recognition to electronic commerce in order to give domestic effect to the 1997 U.N. Model Law on Electronic Commerce. Preamble. The Act applies to India, as well as to "any offence or contravention thereunder committed outside India by any person." Art. 1(2). The Act declares as offenses inter alia: 1) tampering with computer source code documents; 2) hacking; and 3) electronic publishing of obscene material. Arts. 65-67.

The Act exempts from liability network service providers (i.e. intermediaries) and certain officers of an offending company (e.g. firms and organizations) if the provider or official proves that: 1) the offence or contravention in question was committed without the official or provider's knowledge; or 2) that "all due diligence" had been exercised to prevent its commission. Art. 79, 85. A high company official shall, however, be deemed individually guilty of a contravention attributable to the official's consent, connivance or neglect. Art. 85(2).

The Act empowers: 1) any police officer not below the rank of Deputy Superintendent of Police; or 2) any other Central or State Government officer authorized by the Central Government to enter any "public place" and there search and arrest without warrant any person reasonably suspected of inter alia "being about to commit" any offence under the Act. Art. 80(1). The Act defines a "public place" to include any public conveyance, hotel, shop or any other place "intended for use by, or accessible to the public." Id.

India's Central Government shall appoint one or more adjudicating officers with information technology experience to determine: 1) whether a contravention has occurred; and 2) the penalty or compensatory award that the officer "thinks fit" pursuant to the relevant legal provisions. Art. 46.

The Act also establishes a Cyber Appellate Tribunal ("Tribunal") to review appeals against orders of inter alia adjudicating officers, except for those rendered with the parties' consent. Art. 57(1-2). The Tribunal shall be "guided by the principles of natural justice." Art. 58(1) .

The Tribunal and adjudicating officers shall have certain of an Indian civil court's evidentiary and procedural powers while trying suits. Arts. 46(5), 58(2). Tribunal and adjudicating officer proceedings shall also be deemed "judicial proceedings" under the Indian Penal Code. Arts. 46(5), 58(3).

No court shall have jurisdiction over any matter in which an adjudicating officer or the Tribunal is empowered to make a determination. Art. 61. Neither may any court issue an injunction in respect to any action undertaken pursuant to any power conferred by or under the Act. Id. Persons aggrieved by Tribunal decisions or orders may, however, appeal to the Indian High Court. Art. 62.

The Act requires the Indian Central Government to constitute a Cyber Regulations Advisory Committee to advise inter alia the Central Government regarding any rules or for any other purpose connected with the Act. Art. 88. PH

http://www.mit.gov.in/itbillonline/itbill2000.htm

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International Law In Brief - Copyright 2000 - The American Society of International Law
Editors:  Peter C. Hansen, Esq., Branislav A. Maric