International Law In Brief
Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
November 27, 2002
TREATIES, AGREEMENTS AND RELATED DOCUMENTS
JUDICIAL AND SIMILAR PROCEEDINGS
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- ICSID (Additional Facility): Mondev International Ltd. v. United States of America, Case No. ARB(AF)/99/2 (October 11, 2002)
- U.S. Court of Appeals for the Second Circuit: Monegasque de Reassurances S.A.M. (Monde Re) v. Nak Naftogaz of Ukraine, et al., Docket Nos. 01-7947, 01-9153 (November 15, 2002)
- U.S. Court of Appeals for the Ninth Circuit: United States v. Neil, No. 01-50459, D.C. No. CR-00-01292-SVW-1 (November 20, 2002)
TREATIES, AGREEMENTS AND RELATED DOCUMENTS
North Atlantic Treaty Organisation (NATO): Prague Summit Declaration (November 21, 2002)
The Heads of State and Government of NATO member states decided to invite Bulgaria, Estonia, Latvia, Lithuania, Romania, Slovakia and Slovenia to immediately begin accession talks to join NATO, noting that their accession will "enhance NATO's ability to face the challenges of today and tomorrow." The accession protocols are expected to be signed by the end of March 2003, while the completion of the ratification process and official joining of the new members should take place not later than at the May 2004 NATO Summit.
The Heads of State also decided to create a NATO Response Force (NRF), stressing that effective military forces are "vital" to safeguard the freedom and security of NATO member states' populations and to contribute to peace and security in the Euro-Atlantic region. The NRF will consist of a "technologically advanced, flexible, deployable, interoperable and sustainable" force, which will reach its initial operational capability by not later than October 2004 and its full operational capability by not later than October 2006. The Heads of State stressed that terrorism poses a "grave and growing threat to Alliance populations, forces and territory, as well as international security," and expressed their determination to combat "this scourge" for as long as necessary using a "multi-faceted" and "comprehensive" approach.
Click here for the declaration.
Organization of American States (OAS): Inter-American Convention Against Terrorism (June 3, 2002)
The Convention sets forth as its main objective the prevention, punishment and elimination of terrorism. In order to achieve this goal, the Convention obliges the States Parties to adopt the necessary measures and to strengthen mutual cooperation. The Convention lists ten international instruments already in existence that the States Parties to the Convention shall "endeavor" to join, in case they still have not done so, and effectively implement their provisions.
The Convention requires each State Party to institute a legal and regulatory regime to prevent, combat, and eradicate the financing of terrorism that shall include: (1) domestic regulatory and supervisory measures for banks and other financial institutions and entities that are particularly susceptible to being used for the financing of terrorist activities; (2) measures to detect and monitor cross-border movements of cash, bearer negotiable instruments, and "other appropriate movements of value;" and (3) the establishment of a domestic financial intelligence unit to "serve as a national center for the collection, analysis and dissemination of pertinent money laundering and terrorist financing information."
The Convention prohibits the States Parties from denying a request for extradition or mutual legal assistance solely on the ground of a political offense exception. The Convention, however, requires each State Party to deny refugee status to a person in respect of whom "there are serious reasons for considering" that he or she has committed an offense established in the international instruments listed in the Convention. Similarly, the Convention requires a denial of an asylum application if there are "reasonable grounds to believe" that the person committed an offense under the relevant international instruments.
Click here for the convention.
United Nations (U.N.): Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (November 7, 2002)
The U.N. Third Committee (Social, Humanitarian and Cultural) approved the Draft Optional Protocol with the objective to establish procedures for systematic visits by independent international and national bodies to "places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment." The Draft Optional Protocol obliges each State Party to allow visits to "any place under its jurisdiction and control where persons are or may be deprived of their liberty, either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence." Once it is adopted by the U.N. General Assembly, the Optional Protocol will be opened for signatures of the States Parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and shall enter into force on the thirtieth day after the date of deposit of the twentieth instrument of ratification or accession.
The Draft Optional Protocol establishes a Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment within the existing Committee against Torture. The Subcommittee shall be guided by the principles of "confidentiality, impartiality, non-selectivity, universality and objectivity," and shall consist initially of ten members. The Draft Optional Protocol requires each State Party to establish a national preventive mechanism by setting up, designating or maintaining one or several domestic "visiting bodies" for the prevention of torture and other cruel, inhuman or degrading treatment or punishment.
The Subcommittee shall design a program of regular visits, and shall notify the States Parties about it so that they could "make the necessary practical arrangements for the visits to take place." Under the Draft Optional Protocol, the States Parties shall, inter alia, provide the Subcommittee with: (1) an unrestricted access to all information regarding the number of detainees, their treatment and conditions of detention, as well as the number of detention places and their locations; (2) the opportunity to have private interviews with the detainees "without witnesses;" and (3) the liberty to choose the places it wants to visit and the persons it wants to interview. The Draft Optional Protocol restricts objections to a visit to a particular place of detention to those made on "urgent and compelling grounds of national defence, public safety, natural disaster or serious disorder in the place to be visited which temporarily prevent the carrying out of such a visit," and excludes a declaration of a state of emergency as a reason for any such objection.
Click here for a copy of the Draft Optional Protocol.
Click here for a related press release.
JUDICIAL AND RELATED DOCUMENTS
International Centre for Settlement of Investment Disputes (ICSID) (Additional Facility): Mondev International Ltd. v. United States of America, Case No. ARB(AF)/99/2 (October 11, 2002)
An ICSID Arbitral Tribunal dismissed a claim alleging violation of the minimum standard of treatment guaranteed under Article 1105(1) of the North American Free Trade Agreement (NAFTA) that Mondev International Ltd., a Canadian company, had filed against the United States, holding inter alia that there was "no trace" of a procedural denial of justice to Mondev.
The claim arose out of a 1978 commercial real estate development contract that Lafayette Place Associates ("LPA"), an entity owned by Mondev, concluded with the City of Boston ("the City") and the Boston Redevelopment Authority ("BRA"). In 1992, LPA sued the City and BRA for breach of contract, obtaining a jury verdict in 1994 in its favor against both defendants. The jury verdict was subsequently upheld by a trial judge against the City, but set aside on the basis of immunity from suit for intentional torts in respect of BRA. On appeal, the Massachusetts Supreme Judicial Court affirmed the ruling in respect of BRA, and also accepted the City's appeal regarding the contract claim. LPA's subsequent petitions for rehearing and for certiorari to the United States Supreme Court were denied. In 1999, Mondev brought the current claim pursuant to NAFTA Article 1116 and ICSID Additional Facility Rules "on its own behalf for loss and damage caused to its interests in LPA."
Like the tribunal in the Pope & Talbot case (see June 27, 2002 ILIB for the summary of the tribunal's award on damages), the current Tribunal addressed the July 31, 2001 NAFTA Free Trade Commission's interpretation of Article 1105(1), which requires in the relevant part that each NAFTA Party accords to investments of investors of another Party treatment "in accordance with international law, including fair and equitable treatment and full protection and security." The FTC interpreted the terms "fair and equitable treatment" and "full protection and security" as not requiring treatment "in addition to or beyond" that which is required by the customary international law minimum standard of treatment for aliens.
The Tribunal accepted U.S. argument that an arbitral tribunal may not apply its own "idiosyncratic standard in lieu of the standard laid down in Article 1105(1)." The Tribunal noted that the FTC's interpretation clarified that Article 1105(1) refers to a standard existing under customary international law, and not to standards established by other treaties that NAFTA Parties have entered into and which have "their own systems of implementation." The Tribunal held that, in the absence of a "clear indication" to the opposite in NAFTA text, there was no intention to incorporate by reference "extraneous treaty standards" in Article 1105 and to make NAFTA Chapter XI arbitration applicable to them. As to the "minimum standard of treatment," the Tribunal noted that this standard has "historically been understood as a reference to a minimum standard under customary international law, whatever controversies there may have been over the content of that standard." The Tribunal further held that by the term "customary international law" the FTC referred to customary international law as it "stood no earlier than the time at which NAFTA came into force."
Click here for the decision.
United States (U.S.) Court of Appeals for the Second Circuit: Monegasque de Reassurances S.A.M. (Monde Re) v. Nak Naftogaz of Ukraine, et al., Docket Nos. 01-7947, 01-9153 (November 15, 2002)
The U.S. Court of Appeals for the Second Circuit affirmed the U.S. District Court for the Southern District of New York's dismissal, on the basis of the forum non conveniens doctrine, of a petition for confirmation of a foreign arbitral award under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention").
Monde Re, a re-insurer organized under the laws of Monaco, obtained an arbitration award against Naftogaz, an Ukrainian company, from the International Commercial Court of Arbitration in Moscow and subsequently sought its confirmation in the United States. In addition to Naftogaz, Monde Re sought confirmation and judgment against Ukraine, which was not a party to the arbitration, arguing that Naftogaz was an "agent, instrumentality or alter ego of Ukraine." In dismissing Monde Re's petition on forum non conveniens grounds, the district court inter alia held that enforcing an award in a forum that has no connection to the dispute or to the place of arbitration would "discourage the use of arbitration provisions in international commercial agreements and therefore 'might chill international trade'." Monde Re appealed.
The Second Circuit held that doctrine of forum non conveniens is procedural in nature and that it may be applied in the course of recognition of domestic arbitral awards, as well as those governed by the New York Convention. The Second Circuit noted that Article V of the New York Convention provides for seven grounds for refusal of the recognition of an arbitral award that "pertain to substantive matters rather than to procedure." The Second Circuit also noted that Article III requires that proceedings for enforcement of foreign arbitral awards are subject to the rules of procedure that are applied in the courts where enforcement is sought, holding that the States Parties to the New York Convention were therefore left free to apply differing procedural rules, as long as they are not more burdensome than those applied in respect of domestic awards.
Analyzing Monde Re's petition under the forum non conveniens doctrine, the Second Circuit held that Monde Re's choice of forum deserves "little deference" because it was clear that "the jurisdiction provided by the Convention is the only link between the parties and the United States." The Second Circuit also held that Ukraine could serve as an alternative forum for the case, rejecting Monde Re's argument that that forum would be inadequate because of "general corruption in the body politic of that nation." The Second Circuit concluded that this argument was a "speculation," and noted that it has been "reluctant to find foreign courts 'corrupt' or 'biased'."
Click here for the decision.
United States (U.S.) Court of Appeals for the Ninth Circuit: United States v. Neil, No. 01-50459, D.C. No. CR-00-01292-SVW-1 (November 20, 2002)
The U.S. Court of Appeals for the Ninth Circuit affirmed the judgment of the U.S. District Court for the Central District of California, which established extraterritorial jurisdiction over a foreign defendant who engaged in sexual contact with a minor on a round-trip cruise that originated from one of California's ports.
Mr. Emmanuel Ormand Neil, a citizen of St. Vincent and the Grenadines, worked as a cabin steward on a cruise ship registered in Panama that was operating weekly round-trip cruises from San Pedro Harbor, California, to various ports in Mexico. In October 2000, Mr. Neil admitted the sexual molestation of a 12-year-old female passenger, a U.S. citizen, and signed a written confession. The crime took place in Mexican territorial waters. In the subsequent trial, the district court sentenced Mr. Neil to six months in custody after he had pled guilty to two counts of sexual contact, reserving the right to appeal the jurisdictional holding.
The Ninth Circuit held that both Congressional intent and international law principles support the exercise of extraterritorial jurisdiction over Mr. Neil's crime. The Ninth Circuit noted that Congressional definition of the special U.S. maritime and territorial jurisdiction, contained in 18 U.S.C. § 7(8), includes "'[t]o the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States'." As to the relevant international law principles, the Ninth Circuit held that both the territorial and passive personality principle apply in the current case because the crime, which had been performed outside of U.S. borders, had "detrimental effects within the United States" and was committed against a U.S. national.
Click here for the decision.
LEGISLATION AND REGULATION
Africa Legal Aid (AFLA): The Cairo-Arusha Principles on Universal Jurisdiction in Respect of Gross Human Rights Offences: An African Perspective (October 21, 2002)
The AFLA initiated the drafting of the Principles on Universal Jurisdiction in Respect of Gross Human Rights Offences ("Principles") prompted by, "among other things," a concern for lack of prosecution of the offenses which "have particular resonance in Africa, such as the crime of apartheid." (Emphasis in original) The Principles are aimed at assisting African and other governments in "exercising their powers and obligations, human rights organisations and legal practitioners in their attempts to pursue international justice, and advocacy and lobbying initiatives," as well as at "contributing to the progressive development of international law."
The Principles provide that universal jurisdiction applies to gross human rights offences committed "even in peacetime." The Principles also provide that universal jurisdiction should not be limited only to natural persons, but that it should extend to legal entities as well. The Principles suggest that crimes such as acts of plunder and gross misappropriation of public resources, trafficking in human beings and serious environmental crimes, which have "major adverse economic, social or cultural consequences," should be added to the list of crimes subject to universal jurisdiction. The Principles also require that states adopt measures ensuring that their courts can exercise universal jurisdiction over gross human rights offences, which should include, but not be limited to, those contained in the Rome Statute of the International Criminal Court.
The Principles provide that financial and other constraints, as well as the use of truth and reconciliation commissions and other alternative forms of justice, do not relieve states of their "responsibility and their duty" to prosecute, extradite or transfer for trial persons suspected or accused of gross human rights violations under international law. The Principles also provide that the victims of these offences should receive reparation, "to the extent possible."
Document obtained from the AFLA.
BRIEFLY NOTED
The first Caribbean Regional Conference of the International Law Association will be held from March 26-29, 2003, in Bridgetown, Barbados. Further information and registration forms are available on the conference website at http://law.uwichill.edu.bb/2003ILA/intro.htm Contact: Dr. David S. Berry, Faculty of Law, University of the West Indies, Cave Hill Campus, P.O. Box 64, Bridgetown, Barbados. Fax: (246) 424-1788; E-mail: David.Berry@uwichill.edu.bb.
On November 18, 2002, the International Arbitration Institute (IAI) launched an international arbitration forum in the form of a discussion list via e-mail (list serve). The registration process is free of charge and very simple, and can be completed on the IAI website at www.iaiparis.com.
The first discussion held in this forum will likely be on the topic of provisional measures and international arbitration, with the posting on the list of both the proceedings of the May 31, 2002 IAI seminar on the first applications of the ICC Rules for a Pre-arbitral Referee Procedure and of the October 11, 2002 declaration made by the Club of Arbitrators in Milan concerning the proposals on Interim Measures in International Arbitration recently delivered to the UNCITRAL Working Group II by the United States of America.
The IAI is a Paris-based organization created under the auspices of the French Arbitration Committee. The IAI is currently chaired by Emmanuel Gaillard. Its Advisory Board comprises five prominent international arbitration specialists: Judge Mohammed Bedjaoui of Algeria, Lord Dervaird of the United Kingdom, Judge Pierre Drai of France, Professor Francisco Orrego Vicuna of Chile, Professor Jean-François Poudret of Switzerland, and Professor Hans Smit of the United States.
Contacts: Emmanuel Gaillard, Chairman (egaillard@shearmen.com); Nanou Leleu-Knobil, Website Administrator and List Moderator (nleleuknobil@shearman.com); International Arbitration Institute, c/o Shearman & Sterling, 114, avenue des Champs-Elysées, 75008 Paris, France; Tel.: +33.1.53.89.7000; Fax: +33.1.53.89.70.70.
International Law In Brief (ILIB) - Copyright 2002 - The American Society of International Law (ASIL)
Editors: Branislav A. Maric, Scott Smith