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
July 11, 2002

TREATIES, AGREEMENTS AND RELATED DOCUMENTS

JUDICIAL AND SIMILAR PROCEEDINGS

BRIEFLY NOTED

TREATIES, AGREEMENTS AND RELATED DOCUMENTS

International Security Assistance Force (ISAF) and the Interim Administration of Afghanistan ("Interim Administration"): Military Technical Agreement (January 4, 2002)

The ISAF and the Interim Administration concluded the Military Technical Agreement ("Agreement") to provide for the details of the ISAF's assistance in the maintenance of security in the designated areas in Afghanistan. The ISAF, originally envisaged in Annex 1 to the 2001 Agreement on Provisional Arrangements in Afghanistan pending the Re-establishment of Permanent Government Institutions ("Bonn Agreement"), was authorized by the United Nations Security Council Resolution 1386 on December 20, 2001.

The Agreement requires from the Interim Administration to provide the ISAF with "any information relevant to the security and safety of the ISAF mission, its personnel, equipment and locations." The ISAF's responsibility to provide security and "law and order" includes maintenance and support of a recognized Police Force operating in accordance with "internationally recognized standards and Afghanistan law." Under the Agreement, the Interim Administration will ensure that all Afghan military units come under its command and control "in accordance with the Bonn Agreement." The Agreement provides the ISAF with "complete and unimpeded" freedom of movement throughout Afghanistan's territory and airspace.

Annex A of the Agreement provides that the ISAF' and supporting personnel, including associated liaison personnel, are immune from personal arrest or detention, and may not be "surrendered to, or otherwise transferred to the custody of, an international tribunal or any other entity or State without the express consent of the contributing nation." Annex A obliges the ISAF forces to respect the laws and culture of Afghanistan.

Note: The ISAF's initial mandate of six months, which was due to expire on June 20, 2002, was extended for a period of six months pursuant to the United Nations Security Council Resolution 1413 of May 23, 2002.

Click here for a copy of the text of the agreement

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Organization of American States (OAS) and the Sixth Inter-American Specialized Conference on Private International Law (CIDIP-VI): Model Inter-American Law on Secured Transactions (February 8, 2002)

The Model Inter-America Law on Secured Transactions ("Model Law") was approved at a plenary session of the Sixth Inter-America Specialized Conference on Private International Law, which had been convoked by the OAS General Assembly. The Model Law's objective is to regulate security interest in movable property securing the performance of "any obligations whatsoever, present or future, determined or undetermined of any nature." In order to give effect to the Model Law, any state adopting the Model Law will have to create a unitary and uniform registration system for movable property security.

The Model Law provides that a secured creditor has the preferential right to payment from the proceeds of the sale of the collateral, after a security interest has been publicized by the means of, inter alia: (1) registration; or (2) delivery of possession or control of the collateral to the secured creditor or to a third person on its behalf. For the purpose of the Model Law, a secured interest is created by contract between the secured debtor and secured creditor. As a "minimum," a written security contract must contain: (1) date of execution; (2) identification information for secured debtor and creditor; (3) the maximum amount secured by the security interest; (4) general or specific description of the collateral; (5) an "express indication" that the movable property described is to serve as a collateral for the secured obligation; and (6) a generic or specific description of the secured obligations.

Click here for a copy of the text of Model Law.

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JUDICIAL AND RELATED DOCUMENTS

International Court of Justice (ICJ): Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), No. 126 (July 10, 2002)

The ICJ rejected the Congo's request for indication of provisional measures, holding that it lacked the prima facie jurisdiction. The ICJ, however, rejected Rwanda's request that the case is removed from the Court's List, citing the "absence of a manifest lack of jurisdiction."

The Congo instituted proceedings against Rwanda on May 28, 2002, accusing the latter of, inter alia, armed aggression and "massive, serious and flagrant violations of human rights and of international humanitarian law." Noting the urgency of the situation, the Congo requested the ICJ to indicate provisional measures that would, inter alia, order Rwanda to "cease and desist" from the aggression and occupation of the Congo's territory. As the basis for the ICJ's jurisdiction over the dispute, the Congo cited a number of international treaties and conventions, to some of which Rwanda was not a party.

The ICJ decided to consider its prima facie jurisdiction solely on the basis of the international instruments advanced by the Congo pursuant to Article 36(1) of the ICJ Statute, since Rwanda, unlike the Congo, has not accepted the Court's compulsory jurisdiction. The ICJ, however, rejected to consider those international instruments advanced by the Congo to which Rwanda was either not a party, or that were not directly in support of "the argument on the jurisdiction of the Court." The ICJ held that some of the remaining instruments, such as the Convention on Racial Discrimination and the Genocide Convention, contained valid reservations by Rwanda that precluded the establishing of the prima facie jurisdiction in the current case.

The ICJ underlined that there is a "fundamental distinction" between the questions of the acceptance by a state of the ICJ's jurisdiction, and the compatibility of particular acts with international law. The ICJ concluded that while the former requires consent, the latter question can only be reached on the merits. The ICJ held that regardless of whether states accept its jurisdiction, "they remain in any event responsible for acts attributable to them that violate international law," stressing the necessity for both the Congo and Rwanda to use their influence to prevent repeated grave violations of human rights and international humanitarian law "which have been observed even recently."

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International Criminal Tribunal for the Former Yugoslavia (ICTY) (The Registrar): Prosecutor v. Kvocka and others, Case No. IT-98-30/1-A (July 8, 2002)

The ICTY Registrar decided to withdraw the assignment of counsel and to discontinue the provision of legal aid to Mr. Zoran Zigic, who had been sentenced to 25 years of imprisonment for crimes against humanity and violation of the laws and customs of war and whose appeal is currently pending.

The Registrar noted that Mr. Zigic, prior to being assigned a counsel in 1998, declared that he was "not employed, does not receive any family allowances or social benefits, and does not own any movable or immovable property." Mr. Zigic's legal defense team later grew to a total of ten people, and the costs of his defense have amounted to an approximately US $ 1,425,683.37. The Registrar estimated that the costs for the remainder of the proceedings would amount to US $ 32,000.00.

The Registrar obtained the evidence showing that Mr. Zigic, his immediate family, and the persons with whom he resided before his detention, benefitted substantially from a fee-splitting scheme according to which they received cash transfers from members of Mr. Zigic's defense team, "which in turn, were diverted from their revenues as assigned defense counsel." The Registrar found that Mr. Zigic received in this manor a total amount of approximately US $ 175,000, and held that he therefore has sufficient means to remunerate the cost of his defense for the remainder of the appeal. The Registrar concluded that the actions of Mr. Zigic and "particular members of his defense team have gravely abused the system established by the International Tribunal to ensure effective legal assistance to all suspects and accused who are unable to pay their defense."

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United States (U.S.) Supreme Court: JPMorgan Chase Bank v. Traffic Stream (BVI) Infrastructure Ltd., No. 01651 (June 10, 2002)

The U.S. Supreme Court ("Supreme Court") reversed the U.S. Court of Appeals for the Second Circuit's ("Second Circuit") ruling that a British Virgin Islands ("BVI") corporation was not a citizen or subject of a foreign state for the purposes of alienage diversity jurisdiction.

Traffic Stream (BVI) Infrastructure Ltd. ("Traffic Stream"), a corporation organized under the BVI's laws, defaulted on its financial obligations to JPMorgan Chase Bank ("Chase"). Chase subsequently sued Traffic Stream in the U.S. District Court for the Southern District of New York, which found subject matter jurisdiction under the alienage diversity jurisdiction. The Second Circuit overturned this decision, concluding that the jurisdiction was lacking since Traffic Stream was a citizen of the BVI, which is an Overseas Territory of the United Kingdom and not an independent foreign state. The Supreme Court granted certiorari, holding that the Second Circuit's decision "conflicts with those of other Circuits, ..., and implicates serious issues of foreign relations."

The Supreme Court noted that it has never held that the requisite status as citizen or subject must be held directly from a formally recognized state, "as distinct from such a state's legal dependency." The Supreme Court rejected the Second Circuit's position that the relationship between the United Kingdom and its territories "is too attenuated" for the former to be viewed as the latter's governing authority, holding that the United Kingdom exercises "ultimate authority" over the BVI's statutory law, as well as responsibility for the BVI's external relations. Furthermore, the Supreme Court rejected Traffic Stream's argument that the BVI's residents are not subjects of the United Kingdom since they enjoy fewer rights than other subjects of the kingdom. The Supreme Court concluded that "[f]or good or ill, many societies afford greater rights to some of its members than others without any suggestion that the less favored ones have ceased to be citizens or subjects."

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United States (U.S.) Court of Appeals for the Fourth Circuit: Base Metal Trading, Ltd. v. OJSC "Novokuznetsky Aluminum Factory," No. 01-1916 (March 6, 2002)

The U.S. Court of Appeals for the Fourth Circuit ("Fourth Circuit") upheld a district court's decision dismissing for lack of personal jurisdiction an action against the OJSC "Novokuznetsky Aluminum Factory" ("NKAZ"), a Russian corporation.

Base Metal Trading, Ltd. ("Base Metal"), a foreign corporation itself, filed the action to confirm a foreign arbitration award against the NKAZ pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("Convention"). Base Metal also moved to seize or attach an aluminum shipment, which had arrived in Baltimore Harbor and allegedly belonged to the NKAZ. Base Metal argued that the presence of the NKAZ's property in the United States confers jurisdiction over the NKAZ for the purpose of confirming and enforcing the foreign arbitral award. However, it was undisputed between the parties that the aluminum shipment in question was not in anyway related to the subject matter of the previous arbitration, and that the dispute that led to arbitration award did not have anything to do with the United States or Maryland.

The Fourth Circuit noted that the Convention does not confer personal jurisdiction when the latter would not otherwise exist. The Fourth Circuit stressed that the presence of property alone could not support jurisdiction, when the property which serves as the basis for jurisdiction is "completely unrelated" to the plaintiff's cause of action. The Fourth Circuit held that the single shipment, which was the object of the attachment proceedings, did not amount to "'continuous and systematic' contacts," and that Base Metal thus failed to establish the presence of "sufficient minimum contacts" between the NKAZ and the U.S. forum. The Fourth Circuit also rejected Base Metal's alternative argument that the jurisdiction arose under federal law, holding that the latter failed to demonstrate sufficient contacts with the United States as a whole. The Fourth Circuit concluded that finding jurisdiction in this case would, therefore, "turn the notion of 'fair play and substantial justice' on its head," noting that it was unclear why the federal courts' "limited resources" should be spent resolving disputes between two foreign corporations with "little or no connection to [the United States]."

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United States (U.S.) Court of Appeals for the Ninth Circuit: Advanced Micro Devices, Inc. v. Intel Corporation, No. 02-15070 (June 6, 2002)

The U.S. Ninth Circuit Court of Appeals ("Ninth Circuit") reversed a district court's refusal to grant a request for domestic discovery for use in foreign proceedings.

Advanced Micro Devices, Inc. ("AMD"), filed a complaint with the Directorate General-Competition ("Directorate") of the European Communities ("EC") against Intel Corporation ("Intel") alleging that the latter was abusing its dominant market position in the European Common Market. In connection with this proceeding, which is currently in the preliminary investigative stage, AMD sought discovery in the United States under 28 U.S.C. ยง 1782 asking Intel to produce documents and transcripts of testimony from another district court proceeding. Intel objected that the matter before the EC Directorate did not fall under Section 1782's definition of "proceeding in a foreign or international tribunal."

The Ninth Circuit opined that Section 1782, inter alia: (1) has a "broad and inclusive" language; (2) is not limited to assistance in proceedings before conventional courts; (3) does not require that proceedings are pending; and (4) applies to preliminary investigations leading to judicial proceedings, as well as bodies of a quasi-judicial or administrative nature. The Ninth Circuit held that the proceeding for which AMD sought the discovery was, "at minimum, one leading to quasi-judicial proceeding," since it was appealable to the Court of First Instance and then to the Court of Justice of the European Communities. The Ninth Circuit concluded that the allowance of "liberal discovery seems entirely consistent with the twin aims of Section 1782: providing efficient assistance to participants in international litigation and encouraging foreign countries by example to provide similar assistance to [U.S.] courts."

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BRIEFLY NOTED

From July 8-10, African heads of state met in Durban, South Africa, to launch the African Union, replacing the 39-year-old Organisation of African Unity. The Durban conference set up the four most important of the seventeen bodies which will make up the AU, notably the Commission, Conference, Executive Council, and Permanent Representative Committee. For more information, click here to visit the AU website.

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