International Law In Brief
Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
April 18, 2002
JUDICIAL AND SIMILAR PROCEEDINGS
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- ECHR: Milosevic v. The Netherlands, Application no. 77631/01 (March 19, 2002)
- U.S. Court of Appeals for the Ninth Circuit: Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., No. 01-15539 (March 26, 2002)
- U.S. Court of Appeals for the Ninth Circuit: Rio Properties, Inc. v. Rio International Interlink, No. 01-15466; No. 01-15784 (March 20, 2002)
JUDICIAL AND RELATED DOCUMENTS
European Court of Human Rights (ECHR): Milosevic v. The Netherlands, Application no. 77631/01 (March 19, 2002)
The ECHR rejected as inadmissible, for the reason of non-exhaustion of domestic remedies, the application that Mr. Slobodan Milosevic, the Former President of the Federal Republic of Yugoslavia, had filed against the Netherlands. Mr. Milosevic has been in custody of The Hague-based International Criminal Tribunal for the Former Yugoslavia (ICTY) since June 29, 2001, and he brought summary civil proceedings against the Netherlands before the Regional Court of The Hague.* The Regional Court rejected Mr. Milosevic's request for release from the ICTY's custody for the lack of jurisdiction, and held that all other claims submitted by Mr. Milosevic fell within the ICTY's exclusive competence (see ILIB ? November 6, 2001). Mr. Milosevic appealed this ruling at first, but then withdrew the appeal on January 17, 2002.
The ECHR noted that Mr. Milosevic complained, inter alia, under Article 5 ("Right to Liberty and Security") of the European Convention for the Protection of Human Rights and Fundamental Freedoms that his detention on Netherlands territory was illegal under Netherlands domestic law, that the ICTY's establishment pursuant to a United Nations Security Council Resolution was unlawful, and that he enjoyed immunity from prosecution as a former head of state. The ECHR held, however, that Mr. Milosevic did not "make use of the opportunities offered by Netherlands law" to challenge the findings of The Hague Regional Court. The ECHR rejected Mr. Milosevic's argument that the Regional Court's judgment demonstrated that he was left without "adequate and effective" domestic remedies, and reiterated that the existence of "mere doubts" as to the prospects of success of a particular remedy, which was not "obviously futile," was not a valid reason for failing to exhaust domestic remedies.
Click here for a copy of the text of decision.
* The English translation of The Hague Regional Court's decision was submitted to ILM Office by the Netherlands Ministry of Foreign Affairs. The translation referred to the court as the "Hague District Court," which was the name used in the subsequent ILIB summary. The text of the translation is available in January 2002 ILM issue (41 ILM 86 (2000)).
United States (U.S.) Court of Appeals for the Ninth Circuit: Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., No. 01-15539 (March 26, 2002)
The U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit") affirmed the district court's dismissal of Glencore Grain's application for the confirmation of its arbitration award against Shivnath Rai, an Indian manufacturer and exporter of rice. Glencore Grain, a Netherlands Corporation, requested the recognition of the award, which had been obtained in the United Kingdom, pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention"), but the district court dismissed this request for the lack of personal jurisdiction. The Ninth Circuit reviewed the dismissal de novo.
The Ninth Circuit held that both the New York Convention and Chapter II of the Federal Arbitration Act ("FAA"), the New York Convention's implementing legislation for the U.S., provided for the subject matter jurisdiction of the district court over the Glenrcore Grain's application. The Ninth Circuit found, however, that neither the New York Convention nor the FAA removed the district court's "obligation" to find the personal jurisdiction over Shivnath Rai. The Ninth Circuit held that personal jurisdiction could not be established over Shivnath Rai, inter alia, because it lacked the requisite minimum contacts with California, where there was no evidence that Shivnath Rai owned any property, kept bank accounts, had employees, solicited business, or had designated an agent for service of process.
Click here for a copy of the text of decision.
United States (U.S.) Court of Appeals for the Ninth Circuit: Rio Properties, Inc. v. Rio International Interlink, No. 01-15466; No. 01-15784 (March 20, 2002)
The U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit") upheld the district court's decision that had, inter alia, allowed for service of process on Rio International Interlink ("RII"), a Costa Rican entity participating in an Internet sports gambling operation, via RII's email address. The case involved various "statutory and common law" trademark infringement claims filed by Rio Properties, Inc. ("RIO"), a U.S. casino owner and the holder of the registered domain name "www.playrio.com," against the RII for its use of domain names that were very similar to the one used by RIO.
The Ninth Circuit recalled that there was no precedent in the U.S. Courts of Appeals dealing with service of process by email and "only one case anywhere in the federal courts." The Ninth Circuit held that the Federal Rule of Civil Procedure 4(f)(3) permitted the district court to order a "special method of service," even if other methods of service remained incomplete or unattempted. The Ninth Circuit also held that the Constitution did not require any particular means of service of process, but only required that the method selected was "reasonably calculated" to provide notice and an opportunity to respond. The Ninth Circuit concluded that this broad constitutional principle unshackled the federal courts from "anachronistic methods of service and permits them entry into the technological renaissance." The Ninth Circuit noted that email was the method of communication utilized and preferred by RII, which ?had neither an office nor a door,? but only a computer terminal.
Click here for a copy of the text of decision.
LEGISLATION AND REGULATION
International Court of Justice (ICJ): Practice Directions (April 4, 2002)
The ICJ promulgated a set of nine Practice Directions aimed primarily at improving its working methods and accelerating its procedure, as well as increasing the number of decisions that it renders each year. Practice Direction I discourages the practice of simultaneous deposit of pleadings in cases brought by special agreements, and notes that the ICJ "would expect" that future special agreements contain provisions as to the number and order of pleadings. Practice Direction III notes an "excessive tendency" towards the "proliferation and protraction" of annexes to written pleadings, and strongly urges parties to append to their pleadings only "strictly selected" documents.
Practice Directions VII and VIII provide that it is not in the "interest of the sound administration of justice" that (1) a person who recently acted, or is still acting, as an agent, counsel or advocate in one case before the Court, sits as a judge ad hoc in another case; and (2) a recent Member of the Court, judge ad hoc, Registrar, Deputy-Registrar or a higher official of the Court, appears as agent, counsel or advocate in a case before the Court. The Directions call on parties to a case to refrain from nominating or designating such individuals as judges ad hoc, agents, counsels or advocates until the expiration of the period of three years after their last appearance before or appointment with the Court.
Click here for a copy of the text of practice directions.
REPORTS AND OTHER DOCUMENTS
League of Arab States: The Beirut Declaration (March 28, 2002)
The League of Arab States requested Israel to reconsider its policies and "declare that a just peace is its strategic option as well." The League called upon Israel to facilitate: (1) its full withdrawal from all the territories occupied since 1967; (2) the achievement of a just solution to the Palestinian Refugee problem, in accordance with the United Nations General Assembly Resolution 194; and (3) the acceptance of the establishment of a "Sovereign Independent Palestinian State on the Palestinian territories occupied since the 4th of June 1967 in the West Bank and Gaza strip, with East Jerusalem as its capital." According to the Declaration, the Arab Countries would in return "consider the Arab-Israeli conflict ended," and enter into a peace agreement and establish normal relations with Israel. The Arab States also declared that they would provide security for all the states in the region.
Click here for a copy of the text of declaration.
United Nations (U.N.) Security Council: Resolution 1403 (On the Situation in the Middle East, Including the Palestinian Questions), S/RES/1403 (April 4, 2002)
The U.N. Security Council demanded the implementation of its Resolution 1402 (see ILIB ? April 4, 2002), which has not yet been implemented, and expressed its concern over the further deterioration of the situation in the Middle East. The Security Council welcomed the mission of the United States Secretary of State to the region, and other efforts to bring about a "comprehensive, just and lasting peace to the Middle East." The Security Council will remain seized of the matter.
Click here for a copy of the text of resolution.
BRIEFLY NOTED
The Rome Statute of the International Criminal Court (ICC) will enter into force on July 1, 2002, after 10 new states ratified the Statute on a special ceremony held on April 11, 2002 at the United Nations? New York headquarters. Currently, the total number of States Parties to the ICC Statute is 66, which is six more that the number required for its entry into force. It is expected that the ICC will become fully operational in 2003. For more information about the ICC, click here to visit the ICC website. For more details on the April 11 ratifications, click here to read the latest ASIL Insight.
The United States informed the World Trade Organization (WTO) that it intends to implement the recommendations set forth in the WTO Appellate Body Report in United State ? Section 211 Omnibus Appropriation Act of 1998 (AB-2001-7, January 2, 2002) by January 3, 2003. The Appellate Body report found certain portions of the 1998 Act to be inconsistent with most-favored-nations principals. For more information on the Report, click here for an earlier ILIB summary.
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.
International Law In Brief (ILIB) - Copyright 2002 - The American Society of International Law (ASIL)
Editors: Branislav A. Maric, Scott Smith