International Law in Brief

International Law In Brief

Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
November 20, 2001

TREATIES, AGREEMENTS AND RELATED DOCUMENTS JUDICIAL AND SIMILAR PROCEEDINGS REPORTS AND OTHER DOCUMENTS BRIEFLY NOTED
TREATIES, AGREEMENTS AND RELATED DOCUMENTS

UNESCO: Universal Declaration on Cultural Diversity (November 2, 2001)

The UNESCO's General Conference adopted the Universal Declaration on Cultural Diversity, noting that the process of globalization creates the conditions for renewed dialogue among cultures and civilizations. The Declaration proclaims that cultural diversity is necessary for humankind "as biodiversity is for nature," and that it represents the "common heritage of humanity" that should be recognized and affirmed for the benefit of present and future generations.

The Declaration provides that cultural diversity may not be invoked to infringe upon or limit the scope of human rights guaranteed by international law, and concludes that cultural rights are an integral part of human rights. The Declaration emphasizes that it is necessary to reinforce international co-operation and solidarity in order to enable all countries, and "especially developing countries and countries in transition," to establish cultural industries that are viable and competitive at national and international level. The Declaration confirms that each state should define its cultural policy and implement it through the means it considers fit, with due regard to its international obligations.

Click here for the text of the Declaration.

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JUDICIAL AND RELATED DOCUMENTS

Permanent Court of Arbitration (PCA): Larsen v. Hawaiian Kingdom (Arbitration Award) (February 5, 2001)

An Arbitral Tribunal acting under the auspices of the Permanent Court of Arbitration ("PCA") ruled that there was no dispute capable of submission to arbitration between Mr. Larsen and the Hawaiian Kingdom ("Parties"). The Tribunal also determined that it was precluded, "in any event," from considering issues submitted by the Parties because the U.S. was not a party to the proceedings, and had not consented to them.

Mr. Larsen, who considered himself to be a subject of the Hawaiian Kingdom, alleged that the Government of the Hawaiian Kingdom was in "continual violation" of the principles of international comity by allowing the "unlawful imposition" of the U.S. municipal laws over his person within the "territorial jurisdiction of the Hawaiian Kingdom." The Hawaiian Kingdom accepted that Mr. Larsen's rights were violated, and indicated the U.S. as responsible for the violation. The Parties submitted the dispute to the PCA under the UNCITRAL (i.e. U.N. Commission on International Trade Law) Arbitration Rules.

The Arbitral Tribunal held that although the UNCITRAL Arbitration Rules were primarily drawn for the purposes of the arbitration of contractual disputes, there appeared "no reason" why the Rules could not be adapted to apply to a non-contractual dispute. The Tribunal accepted as applicable a principle, established by the jurisprudence of the International Court of Justice, that precludes an international tribunal from deciding a dispute between the parties before it, if the very "subject matter of the decision would be the rights or obligations" of a state which is not party to the proceedings. The Tribunal noted that the "gist" of the current dispute was not a dispute between the Parties, but a dispute between each of them and the U.S. The Tribunal thus concluded that, in the absence of the U.S., it could neither decide that Hawaii was not part of the U.S., nor proceed on the assumption that it was not.

Click here for the text of the Award.

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U.S. Court of Appeals for the Second Circuit: Robinson v. Government of Malaysia, No. 00-7730 (October 11, 2001)

The Court of Appeals for the Second Circuit ("Second Circuit") affirmed the Government of Malaysia's sovereign immunity from suit in the case that Mr. Robinson, a security guard at a building owned at the material time by the Malaysian Government, brought against Malaysia for a personal injury that he suffered while on duty. Mr. Robinson argued that Malaysia should be deprived of its sovereign immunity, inter alia, under the "non-discretionary torts" exception contained in ยง 1605(a)(5) of the Foreign Sovereign Immunities Act ("FSIA").

The Second Circuit noted that district courts, in case of a challenge to jurisdiction under the FSIA, must look at the substance of allegations to determine whether one of the exceptions to the FSIA's general exclusion of jurisdiction over foreign sovereigns applies. The Second Circuit further noted that it was unclear whether the district court dismissed Mr. Robinson's complaint on the basis of the allegations in the complaint alone, on the basis of undisputed facts, or the resolution of issues of fact. The Second Circuit held, nevertheless, that it was not necessary to return the case to the district court for clarification because Mr. Robinson's complaint was not "cognizable as a 'tortious act or omission'." The Second Circuit concluded that to sustain federal jurisdiction on generic allegations of "negligence" without an assertion or evidence of a factual predicate for such jurisdiction would "invite plaintiffs to circumvent the jurisdictional hurdle of the FSIA," and would be at odds with the FSIA's goal to provide a foreign government with an early dismissal when the substance of the claim against it does not support jurisdiction.

Click here for the text of the Judgment.

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U.S. Court of Appeal for the Fifth Circuit: Mazurek v. U.S., No. 00-31430 (November 7, 2001)

The Court of Appeals for the Fifth Circuit ("Fifth Circuit") affirmed the district court decision denying a motion to quash the summons of the U.S. Internal Revenue Service ("IRS") issued in response to a request by the French Tax Authority ("FTA") for Mr. Mazurek's financial records. The FTA's request was submitted pursuant to the U.S.-France Tax Treaty (see the decision for the full title of the Treaty), which provides for the exchange of tax and financial information between the two states. Mr. Mazurek had moved to quash the summons, and also initiated a separate action in France contesting the FTA's determination that he was a French resident for the period covered by the FTA's investigation.

Mr. Mazurek, inter alia, argued that the execution of the summons would expand the FTA's rights, contrary to the U.S.-France Treaty provisions, by allowing it access to information - through the IRS compliance - that it could not obtain under French law. Mr. Mazurek claimed that the latter required the FTA to suspend its investigation once the motion to challenge the residency was filed, and that the investigation could not be reinstituted while the motion is pending. The Fifth Circuit rejected this argument as not "wholly convincing," holding that although the Treaty does not mandate the exchange of information at variance with French law, neither "does the plain language of the Treaty forbid compliance with an otherwise proper treaty request" (emphasis in original). The Fifth Circuit held that Mr. Mazurek's argument failed also because the prohibition he argued was "merely temporal" rather than substantive, noting that French law did not completely prohibit the FTA from obtaining access to the relevant financial information.

Click here for the text of the Judgment.

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U.S. Court of Appeals for the Ninth Circuit: Al-Saher v. INS, No. 99-713-8 (October 23, 2001)

The Court of Appeals for the Ninth Circuit ("Ninth Circuit") granted the petition for review filed by Mr. Al-Saher, an Iraqi citizen whose application for asylum in the U.S., withholding of removal from the U.S., and protection under the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Torture Convention") had first been rejected by an immigration judge, and then by the Board of Immigration Appeals ("BIA"). The Ninth Circuit remanded the case to the BIA for entry of an order granting withholding of Mr. Al-Saher's removal.

The Ninth Circuit first held that Mr. Al-Saher failed to establish that the persecution he had been subjected to in Iraq was on the account of any of the five protected categories, i.e. race, religion, nationality, membership in a particular social group, or political opinion; thus failing to establish his eligibility for asylum. The latter finding would have caused Mr. Al-Saher's application against deportation to fail, if the Ninth Circuit had not found him eligible for withholding of removal under Article 3 of the Torture Convention. The Ninth Circuit accepted Mr. Al-Saher's testimony of beatings he had suffered while being detained by Iraqi authorities, and held that these were not practices "inherent in or incidental to lawful sanction." The Ninth Circuit noted also the 1997 Country Reports on Human Rights and Practices for Iraq, which confirmed that torture was "routinely administered" to those detained or imprisoned. The Ninth Circuit held that it was likely that Mr. Al-Saher would be tortured again, if forced to return to Iraq.

Click here for the text of the Judgment.

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U.S. Court of Appeals for the D.C. Circuit: Delta Foods Ltd. v. Republic of Ghana, 00-7081 (September 28, 2001)

The Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") affirmed the district court's order denying Ghana's motions to reopen a judgment enforcing against it a "consent decree" entered by the Ghana's High Court of Justice. The consent decree resulted from a settlement between Ghana and Delta Foods Ltd. ("Delta"), a Ghanian corporation, over a contractual dispute involving a purchase of corn from the U.S. After Ghana had failed to fulfill its obligations under the decree, Delta sued in the U.S. to enforce it. Ghana moved to dismiss on the grounds of forum non conveniens, comity and ripeness, but did not assert sovereign immunity then, or later on the appeal against summary judgment that district court had entered in Delta's favor. The first time Ghana asserted sovereign immunity was in the motion to vacate the district court's judgment, after it had already become final.

The D.C. Circuit noted that Ghana's failure to assert sovereign immunity in the district court was not by itself fatal because Ghana did not answer the complaint, and sovereign immunity was not necessarily waived by "the tactical choice to raise other preliminary objections first." The D.C. Circuit further noted that Ghana could have asserted sovereign immunity on appeal against the district court's judgment because the objection would have gone to the subject matter jurisdiction of the court. The D.C. Circuit held that "limit was reached" when the time to appeal ran out, rendering the district court's judgment final. In support, the D.C. Circuit noted the Supreme Court's reasoning that a party may not reopen the question of subject-matter jurisdiction in a "collateral attack upon an adverse judgment." The D.C. Circuit concluded that since it was obvious that Ghana could not assert sovereign immunity at this stage, it was not necessary to examine whether Ghana had waived its sovereign immunity.

Click here for the text of the Judgment.

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WTO Appellate Body Report: Mexico - Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the U.S. (Recourse to Article 21.5 of the DSU by the U.S.), WT/DS132/AB/RW (October 22, 2001)

The WTO Appellate Body upheld the second panel report in the case between Mexico and the U.S., which found Mexico in violation of its obligation to implement an original recommendation requesting it to bring its anti-dumping measures into conformity with its obligations under the Anti-Dumping Agreement ("AD Agreement"). The recommendation resulted from the findings set out in the first panel report, which concluded that Mexico's imposition of definitive anti-dumping duties on HFCS imports from the U.S. was in violation of the AD Agreement. Instead of implementing the recommendation, Mexico determined that it was appropriate to maintain the anti-dumping duties that were the object of the original anti-dumping investigation.

The Appellate Body, inter alia, rejected Mexico's objection that the second panel made a "fatal error" by not taking into consideration a lack of consultations between Mexico and the U.S. before the redetermination was referred to it. The Appellate Body rendered this intervention untimely, holding that it was incumbent on Mexico to raise this objection earlier in the proceedings, and noted that the Dispute Settlement Understanding provides for a panel to be validly established even when it is not preceded by consultations. The Appellate Body upheld the second panel's finding that Mexico erred in concluding that there had existed a significant likelihood of an increase in HFCS imports from the U.S. The Appellate Body concluded that the second panel satisfied its duty to provide a "basic rationale" for its findings, and did not act inconsistently with the standard of review set out in the AD Agreement.

Click here for the text of the Report.

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REPORTS AND OTHER DOCUMENTS

Council of Europe (Committee of Ministers): Recommendation Rec(2001)14 (On the European Charter on Water Resources) (October 17, 2001)

The Committee of Ministers of the European Council adopted the new European Charter on Water Resources ("Charter"), replacing the 1968 European Water Charter. The Charter is not binding, but the Council recommended to the EU member states to take note of it, and apply its principles "as appropriate" in the framework of their national policies. The Charter provides that fresh water resources, which constitute only 2.7% of the Earth's overall water mass, must be used in keeping with the objectives of sustainable development, and with "due regard for the needs of present and future generations."

The Charter declares that water policy and law must be based on the principles of prevention, precaution and correction at source. The Charter provides for the "polluter-pays" principle, which mandates that the cost of pollution prevention, control and reduction measures must be born by the polluter. The Charter requires that water resources are regularly monitored, and their general state periodically assessed. The Charter provides that water concessions must be granted for a limited duration, and subject to periodic review. The Charter calls upon states to co-operate in order to come to an agreement on an equitable and reasonable method of managing international watercourses, and other shared water resources, in "conformity with international law and [the Charter principles]." The Charter mandates for states sharing catchment basins to conclude bilateral or multilateral agreements specifying the geographic limits of their management co-operation over these resources.

Click here for the text of the Recommendation.

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U.S.: Presidential Military Order - Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism (November 13, 2001)

The President of the United States issued a Military Order establishing the competence of U.S. military tribunals to try certain individuals who are not U.S. citizens for violations of the laws of war and "other applicable laws." The President of the U.S. will decide which foreign individuals will be subject to a trial by U.S. military tribunals, and in doing so the President will have to be satisfied that: 1) there is a "reason to believe" that such an individual is or was, inter alia, a member of the Al-Qaida organization; and 2) it is "in the interest of the [U.S.]" that such an individual is subject to this order.

The President decided that, given the danger to the U.S. safety and the nature of international terrorism, it would not be practicable to apply in trials conducted pursuant the current Order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the U.S. district courts. The Order requires the concurrence of two-thirds of the members of a military tribunal for both the conviction and sentencing, and allows for the imposition of sentences such as life imprisonment or death. Conviction and sentence will be submitted to the President or the Secretary of Defense for "review and final decision." The Order prohibits disclosure of state secrets to "any person not otherwise authorized to have access to them." Finally, the Order prohibits an individual tried before a U.S. military tribunal to seek "any remedy or maintain any proceeding" in a: 1) Federal or State court in the U.S.; 2) foreign court; or 3) international tribunal.

Click here for the text of the Order.

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BRIEFLY NOTED

On November 16, 2001, the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) confirmed the conviction for genocide and for extermination as a crime against humanity in the case against Alfred Musema, a former director of the Gisovu Tea Factory in Kibuye Prefecture during the 1994 genocide in Rwanda. Please click here for the related press release.

On November 13, 2001, the International Tribunal for the Law of the Sea (ITLOS) received an application for the prescription of provisional measures submitted by Ireland against the United Kingdom. The Dispute inter alia concerns a MOX (i.e. Mixed Oxide) plant located in the North East of England, on the coast of Irish Sea. The hearing on the request for provisional measures was scheduled for November 19, 2001. For more information, please click here to access the ITLOS docket.

The Permanent Court of Arbitration (PCA) is currently drafting Optional Rules for Conciliation of Disputes Relating to Natural Resources and/or the Environment. The Optional Conciliation Rules will, once they are adopted, complement the already existing Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment (seeOctober 9, 2001 ILIB issue for the summary of these Rules). For the Draft Optional Conciliation Rules, please click here.

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International Law In Brief (ILIB) - Copyright 2001 - The American Society of International Law (ASIL)
Editors: Kaysie Clemmons, Branislav A. Maric