International Law In Brief
Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
November 6, 2001
TREATIES, AGREEMENTS AND RELATED DOCUMENTS
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- The Hague District Court: Milosevic v. The Netherlands, KG 01/975 (August 31, 2001)
- ICJ: Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) - Application by the Philippines for Permission to Intervene, No. 102 (October 23, 2001)
- ICTY Appeals Chamber: Prosecutor v. Kupreskic, et al, IT-95-16-A (October 23, 2001)
- WTO Appellate Body Report: U.S. - Import Prohibition of Certain Shrimp and Shrimp Products (Recourse to Article 21.5 of the DSU by Malaysia), WT/DS58/AB/RW (October 22, 2001)
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- ASEAN: Joint Communique of the Third ASEAN Ministerial Meeting on Transnational Crime (AMMTC) (October 11, 2001)
- ICJ: Note Containing Important Information for Parties to New Cases (October 31, 2001)
- U.S.-Russia: Joint Statement on Counterterrorism by the President of the U.S. and the President of Russia (October 21, 2001)
TREATIES, AGREEMENTS AND RELATED DOCUMENTS
ILO: Safety and Health in Agriculture Convention (C184) (June 21, 2001)
The Safety and Health in Agriculture Convention ("Convention") obliges ILO Members to formulate, carry out and periodically review a coherent national policy on safety and health in agriculture. The Convention calls on Members to designate on the national level competent authorities responsible for the implementation of the policy and for the enforcement of national laws and regulations on occupational safety and health in agriculture. The Convention requires the Members to ensure that an adequate and appropriate system of inspection for agricultural workplaces is in place and is provided with adequate means.
The Convention establishes as a duty of employers to ensure the safety and health of agricultural workers in every aspect related to their work. The Convention forbids that workers are required or permitted to engage in the manual handling or transport of load which by reason of its "weight or nature" is likely to jeopardize their safety or health. The Convention sets as a general prohibition for young persons below 18 years of age to be involved in a hazardous agricultural work. The Convention allows for this age limit to be dropped to 16 years of age in case young workers hold prior training, and their safety and health are fully protected.
Click here for the text of the Convention.
ILO: Safety and Health in Agriculture Recommendation (R192) (June 21, 2001)
The Safety and Health in Agriculture Recommendation ("Recommendation") clarifies that the measures concerning labor inspection in agriculture, prescribed by Article 5 of the Safety and Health in Agriculture Convention ("Convention"), should be taken in the light of the principles embodied in the 1969 Labour Inspection (Agriculture) Convention and Recommendation. The Recommendation specifies various obligations and rights of competent authorities, for which the Convention requires to be formed at the national level by the Members, in the maintenance of occupational safety and conduct of health surveillance.
The Recommendation obliges multinational enterprises to provide adequate safety and health protection for their workers in agriculture "in all their establishments," without discrimination and regardless of the place or country in which they are situated. The safety and health protection, according to the Recommendation, should be in accordance with national laws and practices, and the ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy.
Click here for the text of the Recommendation.
U.S.-Jordan: Agreement on the Establishment of a Free Trade Area (October 24, 2000)
On September 28, 2001, the President of the United States signed an implementing legislation for the U.S.-Jordan Free Trade Agreement, which the two countries completed in October 2000. The Agreement established a free trade area between the Parties, in accordance with the relevant provisions of the GATT 1994 and GATS. The Parties agreed to progressively eliminate customs duties on goods originating from the two countries within a ten year period, and to accord to these goods the national treatment consistent with Article III of the GATT 1994.
The Parties recognized that it would be inappropriate to encourage trade by relaxing domestic environmental and labor laws, and agreed to ensure that they do not waive or otherwise derogate from these laws for this purpose. The Agreement affirmed the right of each Party to establish its own environmental and labor standards. The Parties recognized the economic growth and opportunity provided by electronic commerce, and pledged to refrain from imposing inter alia: customs duties on electronic transactions; and unnecessary barriers on electronic transmissions, including digitized products. The Parties established a Joint Committee to supervise the proper implementation of the Agreement, and to review the mutual trade relations.
Click here for the text of the Agreement.
JUDICIAL AND RELATED DOCUMENTS
The Hague District Court: Milosevic v. The Netherlands, KG 01/975 (August 31, 2001)
The Hague District Court ("court") rejected the application for release filed by Mr. Slobodan Milosevic, the former Yugoslav president who has been awaiting trial before the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the U.N. detention unit of the Scheveningen prison, The Netherlands, since June 29, 2001. Mr. Milosevic argued, inter alia, that the ICTY had "no basis in law," since it had been established by the U.N. Security Council, and not by the means of a treaty.
The court held that the Dutch courts had no jurisdiction to decide on Mr. Milosevic's application for release. The court noted that the Agreement of 29 July 1994 between the Netherlands and the U.N. (the so-called "Headquarters Agreement") transferred the jurisdiction to hear an application for release from detention from the Dutch courts to the ICTY. The court held that Mr. Milosevic's direct or indirect return to Yugoslavia would "in effect mean that the plaintiff would no longer be detained to answer the charges brought by the Prosecutor of the Tribunal." The court concluded that all the claims submitted by Mr. Milosevic, such as the illegality of his extradition to the ICTY and immunity from prosecution, fell within the exclusive competence of the ICTY.
Document provided in electronic format to the ILM Office by the Dutch Ministry of Foreign Affairs.
ICJ: Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) - Application by the Philippines for Permission to Intervene, No. 102 (October 23, 2001)
The ICJ rejected the application by the Philippines for permission to intervene in the case between Indonesia and Malaysia ("Parties"), which was brought before the ICJ in 1998 and concerns the sovereignty over two islands (i.e. Pulau Ligitan and Pulau Sipadan). The Philippines intervened to "preserve and safeguard [its] historical and legal rights" over the territory of North Borneo, and argued that these rights were or might be affected by the ICJ's determination of the territorial dispute between the Parties.
The ICJ found the application by the Philippines to be in accordance with Article 81 of the Rules of Court because it was timely and without formal defects. The ICJ held that the absence of the jurisdictional link between the Philippines and the Parties did not block the intervention because the Philippines sought to intervene as a non-party. The ICJ, however, held that the Philippines failed to establish an "interest of a legal nature" that would justify the intervention. The ICJ was of the opinion that legal instruments submitted by the Philippines in support of its claim over the North Borneo were not only outside of the ICJ's attention in the present case, but were not "themselves sources of title" for the Philippines. The ICJ noted that, notwithstanding the failure of the Philippines to demonstrate an entitlement to intervene in the pending case, it "remains cognizant" of the positions stated by the Parties and the Philippines in the present proceedings.
Click here for the text of the Decision.
ICTY Appeals Chamber: Prosecutor v. Kupreskic, et al, IT-95-16-A (October 23, 2001)
The ICTY Appeals Chamber reversed the convictions of Zoran and Mirjan Kupreskic, two brothers who had been found guilty of persecution as a crime against humanity, and their cousin Vlatko Kupreskic, who had been found guilty of aiding and abetting persecution as a crime against humanity. The Appeals Chamber also reduced sentences for Drago Josipovic and Vladimir Santic, from fifteen to twelve and twenty-five to eighteen years, respectively. The case dealt with atrocities committed by the Bosnian Croat forces against Bosnian Muslim civilian inhabitants of Ahmici, a small village in central Bosnia, during the war in Bosnia and Herzegovina.
The Appeals Chamber upheld the arguments by Zoran and Mirjan Kupreskic that the trial chamber had erred in law by returning their convictions on the basis of material facts that were not pleaded in the Amended Indictment with the requisite detail. The Appeals Chamber concluded that this had infringed the right of Kupreskic brothers to prepare their defense, and rendered the trial against them unfair. The Appeals Chamber determined that the trial chamber had erred also in accepting the identification evidence provided by a single witness who was thirteen years old at the time of the attack on Ahmici, and who purported to identify Kupreskic brothers in "extremely difficult circumstances." With respect to Vlatko Kupreskic, the Appeals Chamber held that there was no sufficient amount of evidence to support the inference that he had been in some way associated with the planning of the attack on Ahmici. The Appeals Chamber concluded that a "miscarriage of justice" occasioned with respect to all three defendants, and ordered their immediate release.
Click here for the text of the Decision.
WTO Appellate Body Report: U.S. - Import Prohibition of Certain Shrimp and Shrimp Products (Recourse to Article 21.5 of the DSU by Malaysia), WT/DS58/AB/RW (October 22, 2001)
The WTO Appellate Body upheld an earlier Panel Report finding that Section 609 of the U.S. Public Law 101-162, as implemented by the Revised Guidelines of July 8, 1999, is now applied in a manner consistent with the requirements of Article XX of the GATT 1994. The Public law had banned shrimp imports into the U.S. from countries without adequate conservation policies for the sea turtles. The Revised Guidelines made possible for the shrimp exporting countries to be certified by the U.S. Department of State in case they can demonstrate that they have implemented, and are enforcing, a regulatory program to protect sea turtles that is "comparably effective" to the one enforced by the U.S. [emphasis in original]
The Appellate Body held that the Panel was correct in concluding that the U.S. measure of conditioning market access for shrimp exporters on the adoption of a turtle protection program that is comparable in effectiveness with the U.S. conservation program allowed for "sufficient flexibility" in the application of the measure so as to avoid "arbitrary or unjustifiable discrimination." The Appellate Body concluded that the Revised Guidelines thus permitted a degree of flexibility that would enable the U.S. to consider specific conditions prevailing, for the purpose of the present case, in Malaysia. The Appellate Body noted, however, that since Malaysia has not applied for certification any consideration of whether it would be certified was speculative.
Click here for the text of the Decision.
REPORTS AND OTHER DOCUMENTS
ASEAN: Joint Communique of the Third ASEAN Ministerial Meeting on Transnational Crime (AMMTC) (October 11, 2001)
The ASEAN Ministers renewed their commitment to combat transnational crime affecting the ASEAN region, and expressed their concern with the "newly emerging" trends of transnational crime, such as terrorism and cyber crime. The Ministers strongly condemned all acts of terrorism, and in particular the September 11 terrorist attacks against the U.S. The Ministers agreed to work closely with the international community to strengthen co-operation in preventing and combating terrorism. The Ministers stressed their concern over the increase in cyber crime in the region, and its serious impact on the peace, security, prosperity and progress of ASEAN. The Ministers affirmed their commitment to strengthen ASEAN collaboration, and its regional capacity to effectively combat cyber crime.
Click here for the text of the Communique.
ICJ: Note Containing Important Information for Parties to New Cases (October 31, 2001)
The Note Containing Important Information for Parties to New Cases ("Note") resulted from a re-examination of the ICJ's working methods in the light of the congested state of its case list and the budgetary constrains it had to face. The measures contained in the Note are given in the form of six Practice Directions, and are aimed at accelerating the ICJ's work.
In order to discourage the practice of simultaneous deposit of pleadings in cases brought by a special agreement, the ICJ expects the future special agreements to contain provisions as to the number and order of pleadings. The ICJ affirmed that such provisions would be without prejudice to any issue in the case, including the burden of proof. The ICJ noted an "excessive tendency" towards the proliferation and protraction of annexes to written pleadings, and strongly urged parties to append to their pleadings only "strictly selected" documents. The Note provides that, in the interest of accelerating proceedings on preliminary objections, the time-limit for the presentation of written statement of observations and submissions of one party to the preliminary objections of the other should "generally" not exceed four months.
Click here for the text of the Note.
U.S.-Russia: Joint Statement on Counterterrorism by the President of the U.S. and the President of Russia (October 21, 2001)
The Presidents of the U.S. and Russia categorically rejected and resolutely condemned terrorism in all its forms and manifestations, regardless of motive, and stressed that the September 11 terrorist attacks against the U.S. represented a crime against humanity. The Presidents stated that terrorism posed a direct threat to the rule of law and to human rights and democratic values, and called for all states to join a sustained global coalition to defeat international terrorism.
The Presidents reaffirmed that the U.S. and Russia were ready to cooperate closely with the U.N. to promote a post-conflict settlement in Afghanistan that would provide for the formation of a representative, broad-based government capable of ensuring the "restoration of a peaceful Afghanistan that maintains good relations with countries of the region and beyond it." The Presidents agreed that the financial, communications and logistics networks of terrorist organizations must be destroyed, and called upon all nations "without exception" to take appropriate actions in this regard. The Presidents also stressed the importance of "speedy" ratification and implementation of existing international counterterrorism conventions.
Click here for the text of the Statement.
BRIEFLY NOTED
The American Society of International Law, The Netherlands Society of International Law (NVIR), and the T.M.C. Asser Instituut are organizing the 2002 Hague Joint Conference on Contemporary Issues of International Law. The topic of the conference is: "From Government to Governance? The Growing Impact of Non-State Actors on the International and European Legal System." The event is scheduled to take place from July 4-6, 2002 in The Hague, The Netherlands. If you are interested in submitting papers, please read the related information at the ASIL website. For other information about the conference, click here.
International Law In Brief (ILIB) - Copyright 2001 - The American Society of International Law (ASIL)
Editors: Kaysie Clemmons, Branislav A. Maric