International Law In Brief
Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
August 19, 2002
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- ASEAN-U.S.: Joint Declaration for Cooperation to Combat International Terrorism (August 1, 2002)
- Republic of Rwanda-DRC: Peace Agreement on the Withdrawal of the Rwandan Troops from the Territory of the Democratic Republic of the Congo and the Dismantling of the ex-FAR and Interahamwe Forces in the Democratic Republic of the Congo (July 30, 2002)
JUDICIAL AND SIMILAR PROCEEDINGS
TREATIES, AGREEMENTS AND RELATED DOCUMENTS
Association of South East Asian Nations (ASEAN)-United States (U.S.): Joint Declaration for Cooperation to Combat International Terrorism (August 1, 2002)
The ASEAN Member States and the United States ("the Parties") reaffirmed the importance of having a framework for cooperation to "prevent, disrupt and combat international terrorism through the exchange and flow of information, intelligence and capacity-building," adding that the purpose of this cooperation is to enhance the efficacy of those efforts to combat terrorism. As the means of implementation of these principles, the Parties will inter alia (1) continue and improve intelligence and terrorist financing information sharing on counter-terrorism measures; (2) enhance liaison relationships amongst their law enforcement agencies to include practical counter-terrorism regimes; (3) strengthen capacity-building efforts; and (4) provide assistance on transportation, border and immigration control challenges. In addition, the Joint Declaration called upon the Parties to join all twelve of the U.N. conventions and protocols relating to terrorism.
Click here for the text of the Joint Declaration.
Republic of Rwanda-Democratic Republic of the Congo (DRC): Peace Agreement on the Withdrawal of the Rwandan Troops from the Territory of the Democratic Republic of the Congo and the Dismantling of the ex-FAR and Interahamwe Forces in the Democratic Republic of the Congo (July 30, 2002)
Under the Peace Agreement, the Republic of Rwanda ("Rwanda") and the Democratic Republic of the Congo ("DRC") agreed that the previous modalities, set forth in the 1999 Lusaka Cease-fire Agreement, for the tracking down and disarmament of the former Armed Forces of Rwanda ("ex-FAR") and Interahamwe forces in the DRC territory have not been effectively implemented. The Parties acknowledged that the launch of the African Union, recent U.N. resolutions, and the involvement of third parties (i.e., the U.N. Secretary General and South Africa) "present a window of opportunity to urgently resolve this matter."
The Agreement requires that the DRC continue the process of tracking down and disarming ex-FAR and Interahamwe forces within the DRC territory under the DRC Government's control. To this end, the DRC is obliged to collaborate with the U.N. Organizational Mission in the Democratic Republic of the Congo (MONUC) and the Joint Military Commission (JMC). On the other side, Rwanda undertakes to withdraw its troops from the DRC territory, following the process of tracking down and disarming ex-FAR and Interahamwe forces.
The Agreement requests MONUC, acting together with "all relevant UN agencies," to immediately set up processes to repatriate all Rwandese, ex-FAR and Interahamwe to Rwanda. The Parties also agreed to put into place a mechanism, which may include the presence of a short-term international force, for the normalization of the security situation along their border.
Click here for the text of the Agreement.
JUDICIAL AND RELATED DOCUMENTS
International Centre for Settlement of Investment Disputes (ICSID): Compañía de Aguas del Aconquija S.A. & Vivendi Universal v. Argentine Republic (Decision on Annulment), Case No. ARB/97/3 (July 3, 2002)
An ICSID ad hoc Committee ("the Committee") partially annulled the award in a dispute arising out of a concession contract between Argentina and a French investor, which operated water and sewage systems in the Argentinian province of Tucumán.* The investor sought partial annulment of the award pursuant to Article 52(1) of the ICSID Convention, arguing that the Tribunal had, inter alia, manifestly exceeded its powers.
In the award, the original ICSID Arbitral Tribunal ("the Tribunal") found that it had jurisdiction, but dismissed the investor's claim on the merits, establishing the primacy of the forum selection provisions of the concession contract over the relevant provisions of the 1991 Argentine-French Bilateral Investment Treaty (BIT). The Tribunal concluded that Argentina could not be held liable "unless and until" the investor had asserted its rights in proceedings before the "contentious administrative courts of Tucumán," pursuant to the requirements of the concession contract, and had been procedurally or substantively denied its rights.
The Committee noted that a state might breach a treaty without breaching a contract, and vice versa, holding that these were two separate issues. Moreover, the Committee opined that a state couldn?t rely on an exclusive jurisdiction clause in a contract "to avoid the characterisation of its conduct as internationally unlawful under a treaty." The Committee found that the conduct alleged by the investor, if established, "could have breached the BIT," and that the Tribunal was obliged to consider and decide such a claim, after it had determined that it had jurisdiction. (Emphasis in original) The Committee therefore concluded that the Tribunal manifestly exceeded its powers in dismissing the claim and failing to decide whether or not there was a breach of the BIT.
Document was provided to the ILM Office in print format from the law firm of Sidley Austin Brown and Wood LLP.
* The award was reproduced in 40 ILM 426 (2001). For the summary of the award, see 40 ILM 425 (2001) or December 16-30, 2000 ILIB.
International Criminal Tribunal for the Former Yugoslavia (ICTY): Prosecutor v. Brdjanin and Talic (Decision on Motion to Set Aside Confidential Subpoena to Give Evidence), (June 7, 2002)
The ICTY Trial Chamber II ("the Trial Chamber") dismissed the motion by Mr. Jonathan Randal, a retired journalist, who sought to set aside a "Confidential Subpoena" directing him to appear before the ICTY to give evidence concerning his earlier interview with Mr. Radoslav Brdjanin, who is one of the accused in the current case. In 1993, Mr. Randal wrote an article for the Washington Post containing quotes attributed to Mr. Brdjanin on the plight of the non-Serb population in Bosnia and Herzegovina's town of Banja Luka and surrounding areas. Mr. Randal later refused to testify before the ICTY due to his position as a journalist.
Mr. Randal did not argue an absolute immunity from testifying for journalists; instead he called for the creation of a "presumption against compulsory process for journalists except in extraordinary situations." Mr. Randal suggested that this presumption could be overcome provided that, inter alia, the court is satisfied that (1) the "unwilling journalist," if forced to testify, would provide admissible evidence that is of crucial importance to the court's determination of a defendant's guilt or innocence, and (2) the journalist, his family, or sources would not be placed in "any reasonably apprehended personal danger."
The Trial Chamber acknowledged a "vital role" of journalists reporting from various conflict areas in bringing to the attention of the international community the horrors and reality of the conflict. The Trial Chamber opined, however, that these reports would loose much of their weight and relevance, if not become potentially useless, if the journalistic privileges are "framed in a way so as to render the utility of [these] reports ... totally dependent on the wish or sole discretion of the journalist concerned." As to Mr. Randal's case, the Trial Chamber held that it "fails to see how the objectivity and independence of journalists can be hampered or endangered by their being called upon to testify, ..., especially in those cases where they have already published their findings." In addition, the Trial Chamber held that the standards related to journalistic privileges set forth in the Goodwin case, which was decided by the European Court of Human Rights, did not apply because Mr. Randal had no confidential information that he has not published, or an undisclosed confidential source that he wishes not to disclose.
Click here for the text of the Decision.
REPORTS AND OTHER DOCUMENTS
United Nations (U.N.) Security Council: Resolution 1425 (On the Situation in Somalia), S/RES/1425 (July 22, 2002)
Acting under Chapter VII of the U.N. Charter, the U.N. Security Council has reaffirmed the embargo on weapons and military equipment sales and aid to Somalia, and decided that the arms embargo should also prohibit "the direct or indirect supply to Somalia of technical advice, financial and other assistance, and training related to military activities." The Security Council requested that the Secretary-General establish a Panel of Experts with expertise in the areas of armament and financing thereof, civil aviation, maritime transport, and regional affairs, along with specialized knowledge of Somalia to generate independent information on violations of the arms embargo, and as a beginning towards giving effect to and strengthening the embargo.
Click here for the text of the Resolution.
BRIEFLY NOTED
On August 12, 2002, the U.N. Security Council amended the Statute of the International Tribunal for Rwanda to establish a pool of eighteen ad litem judges. The measure is expected to enhance the ICTR's capacity to dispose of the pending cases.
Click here for the text of the Resolution.
International Law In Brief (ILIB) - Copyright 2002 - The American Society of International Law (ASIL)
Editors: Branislav A. Maric, Scott Smith