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
April 4, 2002

TREATIES, AGREEMENTS AND RELATED DOCUMENTS

JUDICIAL AND SIMILAR PROCEEDINGS

LEGISLATION AND REGULATION

REPORTS AND OTHER DOCUMENTS

BRIEFLY NOTED

TREATIES, AGREEMENTS AND RELATED DOCUMENTS

International Institute for the Unification of Private Law (UNIDROIT): Convention on International Interests in Mobile Equipment (November 16, 2001)

The Convention defines an international interest in mobile equipment as an interest in a "uniquely identifiable object" of the following categories: (1) airframe, aircraft engines and helicopters; (2) railway rolling stock; and (3) space assets. Under the Convention, an interest in mobile equipment can be granted by the chargor under a security agreement, vested in a person who is the conditional seller under a title reservation agreement, or vested in a person who is the lessor under a leasing agreement.

The Convention provides for several formal requirements for the constitution of an international interest, such as that the agreement creating or providing for the interest: (1) is in writing; (2) relates to an object of which the chargor, conditional seller or lessor has power to dispose; and, in the case of a security agreement (3) enables the secured obligations to be determined, but without the need to state a sum or maximum sum secured. The Convention also provides that the interest in an object also extends to proceeds of that object.

The Convention establishes an International Registry for registration of: (1) international interests, prospective international interests and registrable non-consensual rights and interests; (2) assignments and prospective assignments of international interests; (3) acquisitions of international interests by legal or contractual subrogations under the applicable law; and (4) notices of national interest. Additionally, the International Registry can also register subordinations of any of the previously enumerated categories of interest. The Convention requires that a registration undertaken by one party, must be preceded by a written consent of the other.

Click here for the text of the Convention.

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International Institute for the Unification of Private Law (UNIDROIT): Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment (November 16, 2001)

The Protocol stresses the need to adapt the Convention to meet the particular requirements of aircraft finance and to extend the sphere of its application to include contracts of sale of aircraft equipment. The Protocol requires that a contract of sale for aircraft equipment: (1) is in writing; (2) relates to an aircraft object of which the seller has power to dispose; and (3) enables the aircraft object to be identified "in conformity with this Protocol." The Protocol provides that the registration of a contract of sale for aircraft equipment remains effective indefinitely. The Protocol allows for waivers of sovereign immunity from jurisdiction of domestic courts of the parties to a dispute, or sovereign immunity from enforcement of rights and interests relating to an aircraft object, provided that the waivers in question are in writing and contain a description of the aircraft object.

Click here for the text of the Protocol.

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JUDICIAL AND RELATED DOCUMENTS


United States (U.S.) District Court for the Southern District of New York: Tachiona v. Mugabe, 00 Civ. 6666 (VM) (February 14, 2002)

The U.S. District Court for the Southern District of New York ("District Court") accepted the U.S. Government's motion to intervene for the limited purpose of preserving a right to appeal the District Court's decision. The District Court also upheld, after it had reconsidered it pursuant to the U.S. Government's request, its previous decision that the Plaintiffs' claims against the Zimbabwe African National Union-Patriotic Front ("ZANU-PF") could proceed to adjudication. The case involves a class action describing a "campaign of torture, terrorism, summary executions and related violations of international law" allegedly committed by the Defendants.

In the previous proceedings, the District Court dismissed the claims against Zimbabwe's President, Mr. Mugabe, and Zimbabwe's Foreign Affairs Minister, who were also the ZANU-PF's senior officials, thus honoring the U.S. Government's "Suggestion of Immunity" on behalf of the two officials. The District Court rejected, however, the U.S. Government's argument that the ZANU-PF had not been properly served with process because the process had been effectuated through personal service on Mr. Mugabe and Zimbabwe's Foreign Affairs Minister who, in the Government's view, enjoyed personal inviolability under the Vienna Convention on Diplomatic Relations ("Convention"). It was this part of the holding that the U.S. Government requested the District Court to reconsider.

In the current proceedings, the District Court held, inter alia, that the U.S. Government's reliance on the Convention was "misplaced" because the Convention did not make any mention of heads of state or foreign ministers, nor of the scope of privileges and immunities or defenses from territorial jurisdiction applicable to these two categories of foreign officials. The District Court noted that "[i]mplicit in the Government's posture" was its concept of "great weight" that had to be accorded to its "proffered reading of an international agreement." The District Court held that, if this notion was to prevail, the court's constitutional role and discretion in treaty interpretation would be effectively reduced to that of a "mere echo" of the Government's perspective. The District Court concluded that it could not accept such a proposition because it made a "mockery" of constitutional separation of powers, and would "spell doom for judicial independence."

Text of Decision is available on LEXIS.

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World Trade Organization (WTO) Award of the Arbitrator: United States ? Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan (Arbitration under Article 21.3(c) of the Understanding on rules and Procedures Governing the Settlement of Disputes), WT/DS184/13 (February 19, 2002)

A WTO Arbitrator determined that the reasonable period for the U.S. to comply with the recommendations and rulings of the WTO Dispute Settlement Body, which adopted the Appellate Body and Panel Reports in the current case on August 23, 2001, was fifteen months, starting from the date of the adoption of the reports and expiring on November 23, 2002. The Arbitrator specified that the period would cover both legislative and administrative phases of implementation. The Arbitrator noted that the DSU Article 21.3(c) provided as a "guideline for the arbitrator" that the "reasonable period of time" for implementation of the Appellate Body and Panel rulings should not exceed fifteen months, but that the same period may be longer or shorter depending on the particular circumstances. (Emphasis in original.) In the course of the proceedings, the U.S. requested to be awarded a period of eighteen months for implementation, while Japan argued that the reasonable period was ten months.

Click here for text of the Award.

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LEGISLATION AND REGULATION

United States (U.S.) Department of Defense: Military Commission Order No. 1 ? Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism (March 21, 2002)

Pursuant to the Military Commission Order No. 1 ("Order"), the U.S. Military Commissions shall have jurisdiction over individuals subject to the President's Military Order of November 13, 2001 (see ILIB ? November 20, 2001), who are alleged to have committed violations of the laws of war and "all other offences triable by military commission." The Order provides, inter alia, for the rules and procedure for establishment and organization of Military Commissions, including Prosecution, Defense, and other personnel.

As to the organization of Defense, the Order provides for the establishment of the Office of the Chief Defense Counsel, with the Chief Defense Counsel as the supervisor of the overall defense efforts and one or more Detailed Defense Counsels. The Order sets forth as a duty of Detailed Defense Counsels to, inter alia, defend the Accused "zealously within the bounds of the law without regard to personal opinion as to [his/her] guilt." The Order also allows the Accused to retain the services of a civilian attorney, a U.S. citizen, of his/her own choosing and "at no expense to the [U.S.] Government." The retention of a civilian attorney would not relieve a Detailed Defense Counsel of his/her duties. Among other requirements, the civilian attorney has to be determined as eligible for access to "information classified at the level SECRET or higher." The Order provides, however, that a civilian attorney's qualification will not guarantee his/her presence at "closed Commission proceedings or that person's access to any information protected [pursuant to the Order]."

The Order's procedural provisions require, inter alia, that a copy of the charges is furnished to the Accused "sufficiently in advance of trial to prepare a defense." Additionally, the Prosecution shall provide the Defense with access to evidence it intends to introduce at trial, as well as with the access to evidence "known to the Prosecution that tends to exculpate the Accused." The latter needs to be in accordance with the provisions, contained in the Order, related to the protection of information and State secrets. Pursuant to the same conditions, the Defense will be provided with the access to evidence before the sentencing proceedings, unless the Commission waives this requirement for a "good cause shown" by the Prosecution.

Under the Order, an affirmative vote of two-thirds of the Commission's members is required for determination of a sentence, with the exception of death-sentence, which requires a unanimous, affirmative vote of all of the members. Other than the death-sentence, the Order provides that those who are found guilty can be sentenced to life-imprisonment or lesser term, payment of a fine or restitution, or "such other lawful punishment or condition of punishment as the Commission shall determine to be proper."

A Military Commission's decision will not become final until it is reviewed in a multi-level review process, with the President of the United States, or the U.S. Secretary of Defense as his designee, on the top. The President or the Secretary of Defense have the power, pursuant to the President's Military Order, to make a final decision. One of the other review levels includes a three-member Review Panel, comprised of Military Officers, which may include civilians and of which at least one "shall have experience as a judge." Review Panel's deliberations are closed, and it can return the case for further proceedings, if the Panel's majority agree that a "material error of law occurred." A Military Commission's "Not Guilty" finding, however, cannot be changed to a finding of "Guilty."

Click here for the text of Order.

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REPORTS AND OTHER DOCUMENTS

United Nations (U.N.) General Assembly: Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (January 25, 2002)

The Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, held from August 31-September 8, 2001 in Durban, South Africa, contains, among other documents, the Declaration and the Programme of Action that were issued by the Conference's Participants. In the Declaration, the Participants noted with concern the "continued and violent occurrence" of racism, racial discrimination, xenophobia and related intolerance. Moreover, the Participants noted that theories of superiority of certain races and cultures over others, promoted and practiced during the colonial era, continued "to be propounded in one form or another even today."

The Participants recognized "with deep concern" the increase in anti-Semitism and Islamophobia in various parts of the world, as well as the "emergence of racial and violent movements" based on racism and discriminatory ides against Jewish, Muslim and Arab communities. The Participants expressed their concern over "the plight of the Palestinian people under foreign occupation," and recognized the "inalienable" right of the Palestinian people to self-determination and to the establishment of an independent State. The Participant also recognized the right to security for all States in the region, including Israel, and called upon all States to support the peace process.

The Programme of Action represents a "practical and workable" version of the objectives that were set forth in the Declaration. On the international level, the Programme of Action contains, inter alia, a number of suggestions and requests pertaining to the rights and status of: (1) Africans and people of African descent; (2) indigenous peoples; (3) migrants; (4) refugees; and (5) "other victims." On the national level, the Programme of Action, inter alia, urges States to undertake various legislative, judicial, regulatory, administrative and other measures to prevent and protect against racism, racial discrimination, xenophobia and related intolerance, as well as to ratify and implement relevant international and regional legal instruments on human rights and non-discrimination.

Click here for a full text of the Report.

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United Nations (U.N.) Security Council: Resolution 1401 (On the Situation in Afghanistan), S/RES/1401 (March 28, 2002)

The U.N. Security Council endorsed the establishment of a U.N. Assistance Mission in Afghanistan (UNAMA). The UNAMA is established for an initial period of twelve months, and its mandate and structure are laid out in the U.N. Secretary-General's report titled: "The Situation in Afghanistan and its Implications for International Peace and Security" (click here for the text of the report). The Security Council called upon al Afghan parties to cooperate with the UNAMA in the implementation of its mandate and to ensure the security and freedom of movement of its staff throughout the country. The Security Council reaffirmed its strong commitment to the sovereignty, independence, territorial integrity and national unity of Afghanistan.

Click here for a full text of the Resolution.

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United Nations (U.N.) Security Council: Resolution 1402 (On the Situation in the Middle East, Including the Palestinian Questions), S/RES/1402 (March 30, 2002)

The U.N. Security Council expressed its grave concern over the further deterioration of the situation in the Middle East, and reiterated its demand for an immediate cessation of all acts of violence, including terrorist acts, provocation, incitement and destruction. The Security Council called upon both parties to move "immediately" to a meaningful ceasefire, and called for the withdrawal of Israeli troops from Palestinian cities, including Ramallah. Furthermore, the Security Council called upon the parties to cooperate fully with Special Envoy Zinni to implement the Tenet security plan as a "first step towards implementation of the Mitchell Committee recommendations, with the aim of resuming negotiations on a political settlement."

Click here for a full text of the Resolution.

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BRIEFLY NOTED

NEW! ILM CD-ROM containing all six ILM issues from 2001 is now available. CD-ROM does not require any pre-installation and includes a full-search option. Prices as low as $50. For more information on the CD-ROM and how to order, please click here.

On March 27, 2002, the European Court of Human Rights declared as inadmissible an application by Slobodan Milosevic, the former President of the Federal Republic of Yugoslavia, who is currently on trial before the International Criminal Tribunal for the Former Yugoslavia (ICTY) at The Hague. Mr. Milosevic filed the application against the Netherlands on December, 20, 2001, seeking inter alia his release from the ICTY custody. For more information, click here for the related press release.

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