International Law In Brief
Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
December 12, 2002
JUDICIAL AND SIMILAR PROCEEDINGS
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- ICJ: Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening), No. 94 (October 10, 2002)
- ICTY (Appeals Chamber): Prosecutor v. Bobetko (Decision on Challenge by Croatia to Decision and Orders of Confirming Judge), IT-02-62-AR54bis and IT-02-62-AR108bis (November 29, 2002)
- U.S. Court of Appeals for the Ninth Circuit: Arce v. Gutierrez, No. 02-55079/55120 (November 20, 2002)
- U.S. Court of Appeals for the Ninth Circuit: Flatow v. Iran, No. 00-56446 (October 23, 2002)
- U.S. Court of Appeals for the Ninth Circuit: Motorola, Inc. v. Federal Express Corporation; and Kuehne & Nagel, Inc., No. 00-17374 (October 16, 2002)
JUDICIAL AND RELATED DOCUMENTS
International Court of Justice (ICJ): Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening), No. 94 (October 10, 2002)
The ICJ decided that the sovereignty over the disputed Bakassi Peninsula lies with Cameroon as a result of delimitation between Great Britain and Germany under the Anglo-German Agreement of March 11, 1913.
Cameroon filed the case in 1994 concerning a dispute "'relat[ing] essentially to the question of sovereignty over the Bakassi Peninsula'," but also requested the determination of the maritime boundary between the two states. Pursuant to an additional application by Cameroon later that year, the subject of the dispute was extended to include a definite delimitation of the countries' mutual land boundary from Lake Chad to the sea. In 1999, the Court authorized an intervention by Guinea, which sought to protect its legal rights in the light of pending maritime boundary claims between Cameroon and Nigeria.
In its decision, apart from determining the sovereignty over the Bakassi Peninsula, the Court determined the boundary line in the Lake Chad area and from Lake Chad to the Bakassi Peninsula, as well as the maritime boundary between the two countries. The Court also addressed the issues of state responsibility raised by the Parties. The Court noted that the land boundary dispute between the Parties "falls within an historical framework" that includes the period of the European Powers' partitioning of Africa in nineteenth and early twentieth centuries, subsequent changes in status of the relevant territories under the League of Nations' mandate, followed by the U.N. trusteeships, and the eventual accession to independence by the territories in question. The Court further noted that both this history and the history of the delimitation of the Parties' maritime boundary, which is more recent in time, involve various international instruments such as conventions and treaties, diplomatic exchanges, and certain administrative instruments.
As to the dispute over the Bakassi Peninsula, the Court held that the boundary between Cameroon and Nigeria in this area is delimited by Articles XVIII to XX of the Anglo-German Agreement of March 11, 1913. The Court rejected Nigeria's argument that the title to sovereignty over Bakassi never passed on to Great Britain from the Kings and Chiefs of Old Calabar, one of many groups of local chiefs of the Niger delta. The Court noted that the Treaty of Protection signed on September 1884 between Great Britain and the Kings and Chiefs of Old Calabar did not specify "the territory to which the British Crown was to extend 'gracious favour and protection', nor did it indicated the territories over which each of the Kings and Chiefs signatory to the Treaty exercised his powers." The Court held, however, that Great Britain had a "clear understanding" of both the territory ruled by the Kings and Chiefs of Old Calabar, as well as of their standing, and that it administered the region by "indirect rule."
The Court noted that, after the First World War, Germany renounced its colonial possessions, including the ones obtained by the virtue of the 1913 Agreement, and that these territories were divided between Great Britain and France acting under the League of Nations' mandate. Bakassi was "comprised within British Cameroon," where it remained after the Second World War when the mandate was converted to a trusteeship under the United Nations' auspices. The Court held that Nigeria, after gaining independence in 1961, "clearly and publicly recognized Cameroon title to Bakassi," as well as that Cameroon had since its independence "engaged in activities which made clear that it in no way was abandoning its title to Bakassi." Moreover, the Court held that Cameroon immediately protested 1994 invasion of Bakassi by the Nigerian military. The Court concluded that the current judgment obliges Nigeria to "expeditiously and without condition ... withdraw its administration and its military and police forces from ... the Bakassi Peninsula."
Click here for the judgment.
Note on post-judgment developments:
On November 7, 2002, Nigeria Information Service Center reported Nigeria's official position with respect to the Court's decision. The statement read that it was "apparent" that the Court did not take "a lot of fundamental facts ... into consideration in arriving at their declaration." The statement further read that Nigeria appreciated and thanked the U.N. Secretary-General for brokering a meeting at the highest political level between Nigeria and Cameroon before the judgment was delivered and for "offering his good offices to broker a similar meeting ... with a view to effecting reconciliation, normalization of reactions and good neighbourliness." The statement concluded that Nigeria assures people of Bakassi and all other "Nigerian communities similarly affected" by the Court's decision of "the support and solidarity of all other Nigerians." Click here for the full text of the statement.
On November 15, 2002, the U.N. Secretary-General, Mr. Kofi Annan, issued a communiqué following his meeting in Geneva with President Paul Biya of Cameroon and President Olusegun Obasanjo of Nigeria, regarding the ICJ's decision in the dispute between two states. According to the communiqué, the Presidents of the two countries agreed to ask the Secretary-General to establish a mixed commission of the two sides, to consider "ways of following up the ICJ ruling and moving the process forward." The mixed commission would also consider "all the implications of the decision, including the need to protect the rights of the affected populations in both countries." In addition, the commission would also be entrusted with the task of demarcating the land boundary between the two countries. The first meeting of the commission was to be held in Yaoundé on December 1, 2002. Click here for the full text of communiqué.
On December 2 and 3, 2002, the U.N. News Service reported that the mixed commission held its first meeting as scheduled, and decided to dispatch an assessment mission to the disputed Bakassi peninsula "in a bid to grasp the issues related to the countries' disagreement." The commission also agreed to establish a sub-commission of legal experts and cartographers from Nigeria, Cameroon and the United Nations, whose task would be to demarcate the land boundary between the two countries. Click here for the December 2, 2002 press release and here for the December 3, 2002 press release.
International Criminal Tribunal for the Former Yugoslavia (ICTY) (Appeals Chamber): Prosecutor v. Bobetko (Decision on Challenge by Croatia to Decision and Orders of Confirming Judge), IT-02-62-AR54bis and IT-02-62-AR108bis (November 29, 2002)
The ICTY Appeals Chamber rejected Croatia's challenge to a Confirming Judge's decision to confirm an indictment against Mr. Janko Bobetko, a retired Croatian general, and orders for Mr. Bobetko's arrest and surrender to the ICTY, holding that a state ordered to arrest or detain an individual pursuant to Article 29(d) of the ICTY Statute "has no standing to challenge the merits of that order." Croatia filed the challenge under, inter alia, Rule 108bis of the ICTY's Rules of Procedure and Evidence.
The Appeals Chamber noted that Rule 108bis provides a state directly affected by an interlocutory decision of a Trial Chamber with "the right to file a request for review by the Appeals Chamber if that decision concerns issues of general importance relating to the powers of the Tribunal." The Appeals Chamber concluded that Rule 108bis could not apply in the present case because, inter alia, an indictment is not an interlocutory order for the purpose of Rule 108bis since, "at the time when the confirmation takes place, the proceedings in which the indictment is to be filed have not yet commenced." Moreover, the Appeals Chamber ruled that even if it was to treat the arrest warrant in question as an interlocutory order, Rule 108bis is not available "where the State claims that its legitimate political interests have been affected, or where it has a genuine concern that the facts alleged in the indictment are not historically accurate." (Emphasis in original)
The Appeals Chamber also approached the merits of Croatia's challenge dismissing Croatia's submission that the prosecution must interview or offer to interview every proposed accused person before seeking a confirmation of an indictment. The Appeals Chamber ruled that there was no such requirement, but held that "there is nothing to prevent the prosecution and the accused from reaching an agreement whereby he is able to make his initial appearance before the Tribunal whilst still at liberty." The Appeals Chamber, however, rejected to pronounce on Croatia's submission that Mr. Bobetko need not to be arrested because he satisfies all the requirements for provisional release and would thus be immediately granted such release, if arrested. The Appeals Chamber held that any such pronouncement would be premature before a point in time when "an appeal is brought by the Accused to the Appeals Chamber from a Trial Chamber decision in an application for provisional release."
Click here for the decision.
Click here for the separate opinion by Judge Hunt.
Click here for the declaration of President Jorda and Judge Shahabuddeen.
United States (U.S.) Court of Appeals for the Ninth Circuit: Arce v. Gutierrez, No. 02-55079/55120 (November 20, 2002)
The U.S. Court of Appeals for the Ninth Circuit reversed the U.S. District Court for the Southern District of California's ruling that an access right of a Mexican parent constituted a custody right warranting return of his children to Mexico under the provisions of the 1980 Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention").
In August 2000, Mr. Arce and Mrs. Gutierrez, both Mexican citizens, divorced before a Mexican family court. Their divorce agreement stipulates that Mrs. Gutierrez retains the "custody and care" of their two minor children, while Mr. Arce enjoys visitation rights. The agreement also provides that, until the children reach adult age, Mr. Arce must grant full authorization "on every occasion that his minor children seek to leave the country accompanied by [Mrs. Gutierrez] or any other person." In early 2001, Mrs. Gutierrez and her children came to the home of her sister in San Diego, United States, where she applied for asylum for all three of them on the basis of her status as a victim of domestic violence. The asylum request was not the subject of the current proceedings.
Current proceedings were initiated by the local district attorney's office that, acting in assistance of the California Attorney General's Office as the Central Authority for the purposes of discharging duties under the Hague Convention, requested the return of Mrs. Gutierrez's children to Mexico. The district court granted the petition, holding inter alia that the children "had been wrongfully removed in violation of Arce's custody rights under the [Hague] Convention ... ." Mrs. Gutierrez appealed.
The Ninth Circuit held that, under the Hague Convention, the ne exeat clause, which prohibits Mrs. Gutierrez to take her children abroad without a prior approval by her former husband, does not provide custody rights to the latter. The Ninth Circuit interpreted the relevant provisions of the divorce agreement to confer not more than access rights to Mr. Arce. The Ninth Circuit held that the Hague Convention provides that a child's removal is wrongful "only if one of the parent's custody rights are breached," in which case it mandates the child's return to the country of its habitual residence prior to the removal. The Ninth Circuit stressed that "[a] parent with custodial rights has the affirmative right to determine the country, city, and precise location where the child will live." (Emphasis in original) The Ninth Circuit further held that the Hague Convention's remedy for the breach of access or visitation rights is a request "to make arrangements for organizing or securing the effective exercise of rights of access," and that the relevant application should be submitted to the Central Authority of the state to which the child has been taken.
Click here for the decision.
United States (U.S.) Court of Appeals for the Ninth Circuit: Flatow v. Iran, No. 00-56446 (October 23, 2002)
The U.S. Court of Appeals for the Ninth Circuit affirmed the U.S. District Court for the Southern District of California's refusal to recognize Bank Saderat Iran (BSI) as an entity not separate from the Government of Iran.
In 1998, Mr. Stephen Flatow obtained a multimillion dollar default judgment against Iran for wrongful death of his daughter in a 1995 terrorist attack in Israel committed by the Shaqiqi faction of the Palestine Islamic Jihad, which had, according to the U.S. State Department, received material support and resources from Iran. Mr. Flatow subsequently registered his judgment with the U.S. District Court for the Southern District of California and obtained a writ of execution on property owned by a BSI's wholly owned subsidiary. The writ of execution was later released from the property to enable its sale, and the proceeds of the sale were held in an interest-bearing account pending the resolution of Mr. Flatow's claim. The district court held that the evidence presented by Mr. Flatow was "not sufficient to overcome the presumption that BSI is a juridical entity separate and apart from the Islamic Republic of Iran and therefore BSI was not subject to execution of the judgment against Iran." Terminating the case, the district court granted BSI's motion for the release of the money. Mr. Flatow subsequently appealed.
The Ninth Circuit noted that the U.S. Supreme Court in Bancec case (i.e., First Nat'l City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611(1983)) indicated that the presumption of separate juridical status may be overcome if: (1) it is demonstrated that a corporate entity is "so extensively controlled by its owner that a relationship of principal and agent is created;" and (2) to recognize an instrumentality as a separate juridical entity would "work 'fraud or injustice'." The Ninth Circuit analyzed BSI's corporate structure finding, inter alia, that BSI's daily affairs and its 3000 branches worldwide are "overseen by the Board of Directors, consisting of career bankers, the Managing Director, and other bank officers." The Ninth Circuit opined that the level of economic control exercised by the Iranian government over BSI is quite limited, and agreed with the district court's finding that Mr. Flatow "has not shown that the Iranian government is the real beneficiary of BSI's banking operations."
Click here for the decision.
United States (U.S.) Court of Appeals for the Ninth Circuit: Motorola, Inc. v. Federal Express Corporation; and Kuehne & Nagel, Inc., No. 00-17374 (October 16, 2002)
The U.S. Court of Appeals for the Ninth Circuit affirmed the U.S. District Court for the Northern District of California's decision to award damages and prejudgment interest under the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on 12 October 1929 ("Warsaw Convention").
Kuehne & Nagel, Inc. ("K&N") appealed the district court's award of damages in the amount of $244,080 arguing that the district court erred in determining the liability limitation based on the weight of the entire shipment rather than only the weight of the damaged component. K&N also argued that the Warsaw Convention does not allow the award of prejudgment interest.
The shipment in question was a cellular telephone base station system weighting more than 12,000 kilograms that belonged to Motorola and was transported from Dallas, Texas to Tokyo, Japan. Motorola hired K&N to transport the system, while the latter used Federal Express as a direct air carrier. Upon the system's arrival in Tokyo, damage was discovered at a crate containing the system's common control frame, which weighted 680 kilograms. Motorola claimed, and the district court accepted, that the damaged control frame, which had to be replaced, was one of the system's "fundamental pieces," and that its subsequent replacement delayed the installation of the entire system.
The Ninth Circuit affirmed the district court's finding that the control frame was essential for the functioning of the system as a whole, and that the liability therefore must be based on the weight of the entire system. The Ninth Circuit noted that the 1955 Hague Protocol* amended the Warsaw Convention to include the affected weight standard, which provides for the evaluation of carrier's liability for damage of "a part of the registered baggage or cargo, or of an object contained therein" based on the total weight of the cargo, provided that the damaged part "affects the value of other packages covered by the same baggage check or the same air waybill, ... ." The Ninth Circuit held that the incorporation of the affected weight standard was a "mere clarification" of the Warsaw Convention, and that the parties to the Hague Protocol "understood the new language to be no less advantageous to the shipper than existing Warsaw Convention language."
The Ninth Circuit ruled that the award of prejudgment interest is consistent with the purposes of the Warsaw Convention, regardless of the fact that the Convention does not discuss prejudgment interest and the fact that several domestic and foreign courts are split on this issue. The Ninth Circuit noted that the Fifth Circuit held that prejudgment interest can be awarded under the Convention to a cargo liability claim and that it allows for more adequate recovery and ensures speedy disposition of claims. The Second and Seventh Circuit disagreed, holding that the Convention's purpose was to "fix definite and uniform limits on the cost to airlines of damages sustained by their customers." The Ninth Circuit further noted that the English Court of Appeal held that prejudgment interest is not allowed under the Convention due to the absence of an explicit language to this effect.
The Ninth Circuit held that the purpose of prejudgment interest is to assure that "the plaintiff receives the full value of his limited damages," and that the latter are not "eroded by the defendant's actions in delaying a prompt resolution of the claim." The Ninth Circuit also agreed with the Fifth Circuit's position that prejudgment interest "furthers the purpose of speedy resolution of claims." The Ninth Circuit reasoned that the absence of a specific inclusion of prejudgment interest in the Convention's language, while the same language contains a reference to "the court costs and ... other expenses of the litigation incurred by the plaintiff," does no prohibit prejudgment interest because, "[c]onceptually, prejudgment interest more closely resembles other costs of litigation ? attorney's fees and costs ? than damages."
* Protocol to Amend Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on 12 October 1929, September 28, A955, 478 U.N.T.S. 371.
Click here for the decision.
BRIEFLY NOTED
Earlier today, the International Tribunal for the Law of the Sea was scheduled to commence a two-day hearing on the Application for the release of the "Volga" and members of its crew (Russian Federation v. Australia). The Application was filed by the Russian Federation on December 2, 2002. "Volga", a vessel flying the flag of the Russian Federation, was boarded on February 7, 2002, by Australian military personnel on the high seas in the Southern Ocean for "alleged illegal fishing in the Australian fishing zone," and is currently detained in the Australian port of Perth. Click here for the related press releases.
On December 9-10, 2002, the Tribunal marked the twentieth anniversary of the opening for signature of the 1982 U.N. Convention on the Law of the Sea, which established a "comprehensive legal framework to regulate all ocean space, its issues and resources." The 1982 Convention also established the current Tribunal. Click here for the related press release.
On December 9, 2002, the Republic of the Congo filed an application against France before the International Court of Justice regarding the proceedings for crimes against humanity and torture commenced in France against the Congolese Minister of the Interior. In connection with these proceedings, French authorities also issued a warrant for the witness hearing of the President of the Republic of the Congo, Mr. Denis Sassou Nguesso. In its application, the Republic of the Congo contends that French proceedings breached the principle of sovereign equality among all Members of the United Nations, and violated the international customary rule of criminal immunity of a foreign head of state. Click here for the related press release.
On December 11, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia set aside the subpoena against Mr. Jonathan Randal, a former Washington Post reporter, which would have compelled him to testify in the trial against Mr. Radoslav Brdjanin, a Bosnian Serb indicted by ICTY. Mr. Randal interviewed Mr. Brdjanin in the course of the conflict in Bosnia and Herzegovina. The central issue on the appeal was whether the ICTY should recognize a qualified testimonial privilege for war correspondents. A summary of the Appeals Chamber decision will be published in one of the next ILIB issues. Click here for the related press release.
International Law In Brief (ILIB) - Copyright 2002 - The American Society of International Law (ASIL)
Editors: Branislav A. Maric, Scott Smith