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
February 28, 2002

TREATIES, AGREEMENTS AND RELATED DOCUMENTS

JUDICIAL AND SIMILAR PROCEEDINGS

REPORTS AND OTHER DOCUMENTS

BRIEFLY NOTED

TREATIES, AGREEMENTS AND RELATED DOCUMENTS

United Nations Commission on International Trade Law (UNCITRAL): Convention on the Assignment of Receivables in International Trade (January 31, 2002)

The UNCITRAL Convention on the Assignment of Receivables in International Trade ("Convention") applies to assignment of international receivables and to international assignment of receivables, provided that the assignor is located in a contracting state at the time of conclusion of the assignment. In case of a subsequent assignment, the Convention applies if any prior assignment is governed by the Convention. The Convention defines assignment as the transfer by agreement from assignor to assignee of "all or part of or an undivided interest in the assignor's contractual right to payment of a monetary sum ('receivable')" from a debtor. Under the Convention, the creation of rights in receivables as security for indebtedness or other obligation is also deemed to be a transfer.

For a receivable to be international, the Convention requires that the assignor and the debtor were located in different states at the time of conclusion of the original contract. Similarly, an assignment is considered to be international if the assignor and the assignee were located in different States at the time of conclusion of the assignment. The Convention provides that an assignment of a receivable is effective "notwithstanding any agreement between the initial or any subsequent assignor and the debtor or any subsequent assignee limiting in any way the assignor's right to assign its receivables." Under the Convention, one of the three alternative criteria for determining the formal validity of an assignment contract, regardless of whether the parties to the contract are from the same state or different states, is the law which governs the contract. The other alternative criteria are the law of the state in which the contract was concluded (for contracts concluded between persons who are located in the same state), or the law of one of the states (for contracts concluded between persons located in different states).

Click here for the text of Convention.

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JUDICIAL AND RELATED DOCUMENTS

International Court of Justice (ICJ): Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), No. 121 (February 14, 2002)

The ICJ ruled that Belgium must cancel, "by means of its own choosing," an international arrest warrant that a Belgian investigating judge had issued against the former Congolese Minister for Foreign Affairs ("Minister") on April 11, 2000. The ICJ held that the warrant was in violation of Belgium's obligation to respect the immunity of the Congolese Minister and, "more particularly, infringed the immunity from criminal jurisdiction and the inviolability . . . enjoyed by him under international law." The warrant was issued pursuant to a 1993 Belgium law that entrusted Belgium courts with jurisdiction over offences such us grave breaches of the 1949 Geneva Conventions and their Additional Protocols, and crimes against humanity, regardless of where the offences were committed. The law in question also provided that immunity stemming from official capacity of potential offenders would not represent an obstacle to its application.

In December 2000, the ICJ had rejected the Congo's request for indication of provisional measures that would have ordered Belgium to discharge the warrant, holding that it had not been established that an "irreparable prejudice" might be caused to the Congo's rights. (see ILIB December 16-31, 2000).

In the current proceedings, the ICJ first addressed certain issues of jurisdiction and admissibility raised by the Parties. The ICJ rejected Belgium's objection that it lacked jurisdiction in the case due to the fact that the former Minister was relieved of his position in the Congolese government, holding that it had jurisdiction on the date the case was referred to it and that it continued to do so "regardless of subsequent events." Additionally, the ICJ held that, although events subsequent to the filing of an application might render the application without object, the change that had taken place in the case of the former Minister had not "put an end" to the current dispute and had not "deprived the Application of its object." The ICJ also affirmed that the Congo had never sought to invoke the Minister's personal rights and that it continued to have "a direct legal interest in the matter," thus rejecting Belgium's objection that the rule on exhaustion of local remedies barred the Congo's application.

On the merits, the ICJ noted that, in customary international law, the immunities accorded to Foreign Affairs Ministers were "not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States." The ICJ further noted that an incumbent Foreign Affairs Minister, when abroad, enjoyed a "full immunity from criminal jurisdiction and inviolability," even when he or she was suspected of having committed war crimes or crimes against humanity. The ICJ emphasized, however, that the immunity from jurisdiction did not mean that Foreign Affairs Ministers enjoyed "impunity" in respect of any crimes they might have committed because this immunity could, inter alia, be waived by their states, or cease to exist after they leave the office. (Emphasis in original.) The ICJ also pointed out that an "incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction."

Click here for the text of Decision.

Editor's Note: For detailed analyses of the case, click here for the related ASIL Insight.

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REPORTS AND OTHER DOCUMENTS

World Trade Organization (WTO) Doha Ministerial: Ministerial Declaration (November 14, 2001)

The Ministerial Declaration reaffirmed the principles and objectives set out in the Marrakesh Agreement Establishing the World Trade Organization, and stressed that the WTO is determined to maintain the process of reform and liberalization of trade policies in the light of the global economic slowdown. The Ministerial Declaration noted that the WTO would continue to make positive efforts designed to ensure that "developing countries, and especially the least-developed among them, secure a share in the growth of world trade commensurate with the needs of their economic development."

The Ministerial Declaration recognized that "under WTO rules" no country should be prevented from taking measures for the prevention of human, animal or plant life or health, or of the environment, unless the measures in question are applied in a manner constituting an "arbitrary or unjustifiable discrimination between countries . . ., or a disguised restriction on international trade." In the light of the expansion of the WTO membership, the Ministerial Declaration confirmed the "collective responsibility" to ensure "internal transparency and the effective participation" of all WTO members. Finally, the Ministerial Declaration contains the "broad and balanced" Work Programme, incorporating an expanded negotiating agenda and other "important decisions and activities necessary to address the challenges facing the multilateral trading system."

Click here for the text of Declaration.

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World Trade Organization (WTO) Doha Ministerial: Declaration on the TRIPS Agreement and Public Health (November 14, 2001)

The Declaration recognized the "gravity" of the public health problems affecting many developing and least-developed countries, and stressed the need for the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS Agreement") to be part of the "wider national and international action to address these problems." The Declaration affirmed that the TRIPS Agreement "can and should" be interpreted and implemented in a manner supportive of WTO members' right to "protect public health and, . . ., to promote access to medicines for all."

The Declaration reaffirmed that, under the TRIPS Agreement, each member is free to establish its own regime for the exhaustion of intellectual property rights without challenge, subject to the relevant MFN and national treatment provisions. The Declaration provided that the least-developed countries would not be obliged, with respect to pharmaceutical products, to implement or apply Sections 5 ("Patents") and 7 ("Protection of Undisclosed Information") of Part II of the TRIPS Agreement, or to enforce rights provided for under these Sections until January 1, 2016.

Click here for the text of Declaration.

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World Trade Organization (WTO) Doha Ministerial: Decision on Implementation-related Issues and Concerns (November 14, 2001)

The WTO Ministerial Decision on Implementation-related Issues and Concerns ("Decision") addressed issues and concerns that had been raised by many developing-country members regarding the implementation of some WTO Agreements and Decisions. In the context of the WTO Agreement on Agriculture, the Decision urged the WTO members to "exercise restraint" in challenging measures notified under the "green box" by developing countries to promote rural development and adequately address food security concerns.

With respect to the WTO Agreement on the Application of Sanitary and Phytosanitary Measures, the Ministerial Conference urged members to provide the financial and technical assistance necessary to enable least-developed countries to respond adequately to the introduction of any new sanitary and phytosanitary measures which "may have significant negative effects on their trade." The Ministerial Conference agreed that investigating authorities should examine "with special care" any application for the initiation of an anti-dumping investigation where an investigation of the same product from the same member resulted in a negative finding within the 365 days prior to the application filing. Unless the pre-initiation examination indicates that circumstances have changed, the Decision requires that the investigation is terminated.

Click here for the text of Decision.

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World Trade Organization (WTO) Doha Ministerial: Procedures for Extensions Under Article 27.4 for Certain Developing Country Members (November 20, 2001)

The Ministerial Conference provided for certain procedures that the Committee on Subsidies and Countervailing Measures ("SCM Committee") should follow in respect of extensions of the transition period under Article 27.4 of the Agreement on Subsidies and countervailing Measures. Accordingly, a member seeking an extension needs to, inter alia, show that the extension is necessary in the light of the member's "economic, financial and development needs." Furthermore, the member seeking an extension should submit an initial notification to the SCM Committee not later than February 28, 2002 providing detailed information about the programmes for which the extension is being sought. All extensions for eligible programs for calendar year 2003 should be granted by the SCM Committee not later than December 15, 2002, and Section 2 of the present document contains the list of programmes eligible for extension for this period.

Click here for the text of Decision.

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World Trade Organization (WTO) Doha Ministerial: Decision on the ACP-EC Partnership Agreement (November 14, 2001)

The Ministerial Conference decided to waive, until December 31, 2007, terms and conditions set out in Article I, paragraph 1, of the General Agreement "to the extent necessary to permit" the European Communities ("EC") to provide preferential tariff treatment for products originating in the ACP States (i.e., African, Caribbean and Pacific Group of States). The Ministerial Conference noted that the ACP-EC Agreement was aimed at improving the standard of living and economic development of the ACP States. The Decision does not require the EC to extend the same preferential treatment to "like products" of any other member. However, the waiver does not preclude "the right of affected members to have recourse to Articles XXII and XXIII of the General Agreement."

Click here for the text of Decision.

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World Trade Organization (WTO) Doha Ministerial: Decision on Transitional Regime for the EC Autonomous Tariff Rate Quotas on Imports of Bananas (November 14, 2001)

The Ministerial Conference recognized the need to afford sufficient protection to the ACP (i.e., African, Caribbean and Pacific) banana supplying countries in order to enable them to prepare for a tariff-only regime. The Ministerial Conference decided to waive the application of Article XII, paragraphs 1 and 2, of the GATT 1994 with respect to the EC's separate tariff quota of 750,000 tones for bananas originating from the ACP States. The waiver was effective as of January 1, 2002, and will last until December 31, 2005. The Decision provides that any member that considers that the separate tariff quota in question is, inter alia, being applied inconsistently with the waiver, may bring the matter before the General Council. The Decision also provides that the waiver shall not preclude the right of affected members to have recourse to Articles XXII and XXIII of the GATT 1994.

Click here for the text of Decision.

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BRIEFLY NOTED

On December 6, 2001, Nicaragua instituted proceedings against Colombia concerning title to territory and maritime delimitation in the western Caribbean. For more information, please click here for the related press release.

In the previous ILIB issue (February 11, 2002), we mistakenly indicated European Union as the source of the Cybercrime Convention. Please note that the correct source for the Convention is the Council of Europe. We apologize for any inconvenience that this may have caused.

International Law In Brief (ILIB) - Copyright 2002 - The American Society of International Law (ASIL)
Editors: Branislav A. Maric, Scott Smith