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
May 6, 2003

JUDICIAL AND SIMILAR PROCEEDINGS

DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS

BRIEFLY NOTED

JUDICIAL AND RELATED DOCUMENTS

ASEAN Arbitral Tribunal (ICSID Additional Facility Rules): Yaung Chi Oo Trading Pte Ltd. v. Government of the Union of Myanmar (Award), ASEAN Case No. ARB/01/1 (March 31, 2003)

The Tribunal declined jurisdiction in the first arbitration award issued under the 1987 Association of Southeast Asian Nations Agreement (ASEAN) Investment Agreement. The dispute concerns a joint venture agreement concluded in 1993 between Myanmar Foodstuff Industries (?MFI?) and the State industrial Organization of Myanmar on the one hand (?the Respondent?), and Yaung Chi Oo trading Pte. Ltd., (?YCO? or ?the Claimant?) a company incorporated in Singapore, on the other. The parties formed a joint venture company, ?MYCO,? which was designed to operate a brewery in Myanmar. YCO claimed that in December 1997, armed agents of the Myanmar Government seized the brewery, in addition to freezing certain YCO bank accounts. YCO regained control of the brewery in January 1998. In November 1998, YCO claimed that the Myanmar Government sent armed agents to take control of the management of the brewery by force. YCO claimed that these seizures resulted in a violation of the provisions of the 1987 ASEAN Investment Agreement, notably, Articles III, IV and VI.

Myanmar was not a member of ASEAN at the time of the conclusion of the joint venture agreement. Myanmar acceded to the 1987 ASEAN Agreement in July 1997 and became a party to the 1998 Framework Agreement for ASEAN Investment (?1998 Framework Agreement?).

At issue was whether the Tribunal had jurisdiction over YCO?s claims under the 1987 ASEAN Agreement, or in the alternative, under the 1998 Framework Agreement. The Tribunal concluded that since the 1987 ASEAN Agreement was not in force at the time the joint adventure agreement was signed, the investment was not protected under Article II(3) of the 1987 ASEAN Agreement. This was so because the language of Article II(3) required that an express subsequent act amounting at least to a written approval and eventually to registration of the investment be made. According to the Tribunal, ?The mere fact that an approval and registration earlier given by the host State continued to be operative after the entry into force of the 1987 ASEAN Agreement for that State is not sufficient.? The Tribunal noted that examples of such approval could be in the form of a renewal of the joint venture agreement for another term, or formal approval by the Myanmar Foreign Investment Commission (?FIC?) of an amendment to the joint venture agreement under Myanmar?s foreign investment law, but that no evidence of any such approval was presented in this case. The Tribunal therefore held that YCO?s investment did not qualify under Article II(3) of the 1987 ASEAN Agreement.

In the alternative, YCO claimed that its investment was entitled to protection under the 1998 Framework Agreement. YCO argued that the 1998 Framework Agreement expanded the notion of investment to cover both existing and future investments. The Tribunal held that the Framework Agreement applied to ASEAN investments lawfully in existence in the host State at the time the Framework Agreement entered into force for that State, but did not expand the definition of investment contained in the 1987 ASEAN Agreement.

YCO also claimed jurisdiction under the 1998 Framework Agreement by invoking the most-favored nations provision of Article 8, citing more favorable treatment to investors under the Philippines-Myanmar Bilateral Investment Treaty (?BIT?). The Tribunal declined jurisdiction on this ground, noting that the Claimant failed to invoke the most favored nations clause at the initiation of arbitration proceedings. It further observed that in any event, there was no indication that there would be arbitral jurisdiction under any BIT entered into by Myanmar under the present facts. The Tribunal therefore concluded that it was unnecessary for it to consider jurisdiction under the 1998 Framework Agreement.

This document was provided to the ILM Office in electronic format.

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High Court of Australia: Oates v. Attorney-General for the Commonwealth of Australia and Anor Respondents, HCA 21 (April 10, 2003)

The High Court of Australia (?High Court?) upheld the validity of a request made by the Attorney General of Australia for the extradition of the appellant from the Republic of Poland.

The appellant, Oates, was a director of a company based in Australia who in 1995 was charged with securities fraud by the Australian Securities Commission. At the time of the issuance of his arrest, Oates was a resident in Poland where he had lived since 1991. In July 1996, the Attorney General requested the extradition of Oates to Australia from the Republic of Poland. The request was communicated to Poland in October 1996, the appellant was arrested, and remained in custody until May 1997. (The appellant has since been subject to legal proceedings in Poland).

The High Court examined the issues raised on appeal in terms of Australia?s 1988 Extradition Act and the 1932 Extradition Treaty between Australia and Poland. The appellant argued that the grounds upon which the request for extradition was made were not offenses listed in the 1932 Extradition Treaty between Australia and Poland, and that the request for extradition was therefore invalid, and should be quashed. He further argued that the 1988 Extradition Act distinguished between the extradition of persons from Australia and Australia?s requests to other countries that they extradite fugitives to Australia, and that the language of the 1988 Act imposed limitations on the exercise of power to make a request for extradition.

The High Court noted that the 1932 Extradition Treaty makes no reference to several offenses that would now be regarded as offenses giving rise to extradition, such as drug trafficking or hijacking aircraft. It further noted developments in the area of corporate law resulting in the creation of new criminal offenses. The High Court held that Section 40 of the 1988 Extradition Act vests power to make extradition requests with the Executive, and further found that nothing in the Act provided any restriction on the Executive?s power to make a request for extradition.

Click here for the decision.

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United States (U.S.) Court of Appeals for the District of Columbia Circuit: Simpson v. Libya, No. 01-7191 (April 22, 2003)

The U.S. Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") partially reversed the U.S. District Court for the District of Columbia's ("district court") denial of Libya's motions to dismiss a claim for torture and hostage taking filed against it by a U.S. national.

In February 1987, Ms. Simpson, a U.S. national, was on a cruise trip in the Mediterranean when her ship was seriously damaged in a storm and was allowed to take a safe harbor in the Libyan Port of Benghazi. Few days later, Libyan authorities boarded the ship and forcibly removed the passengers and crew, including Ms. Simpson and her husband. According to Ms. Simpson, she and her husband were first held captive by Libyan authorities, who threatened to kill them if they tried to leave, and then separated them from each other for approximately three months. Ms. Simpson was then released, but her husband stayed in Libyan hands for another four months.

Ms. Simpson filed her complaint in July 2000, and the district court granted her motion for entry of default. Subsequently, Ms. Simpson extended to Libya an offer to arbitrate, subject to certain conditions. In return, Libya filed an entry of appearance and motion to reopen the case and extend time to file an answer, all of which were granted by the district court. The district court denied, however, Libya's subsequent motion to dismiss for lack of subject matter and personal jurisdiction, and failure to state a claim. Libya brought the instant interlocutory appeal under collateral order doctrine.

On appeal, the D.C. Circuit reversed the district court's holding in part related to Ms. Simpson's claim of torture, holding that Ms. Simpson's allegations of interrogation, death threats by Libyan authorities, forcible separation from her husband, although reflecting "a bent toward cruelty on the part of their perpetrators," were not in themselves so "unusually cruel or sufficiently extreme and outrageous as to constitute torture within the meaning of the [Torture Victim Protection] Act." As to Ms. Simpson's claim of hostage taking, the D.C. Circuit opined that it failed to articulate any intended purpose behind her detention. The D.C. Circuit noted that the International Convention Against the Taking of Hostages, as well as Section 1605(e)(2) of the U.S. Foreign Sovereign Immunities Act ("FSIA"), provide that the intended purpose of the detention is to "'compel a third party . . . to do or abstain from doing any act as an explicit or implicit condition for the release of a hostage'." The D.C. Circuit thus remanded this portion of the district court's finding, providing Ms. Simpson with an opportunity to attempt to amend her complaint in order to satisfy the definition of hostage taking as used in the FSIA and the Convention.

Click here for the decision.

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World Trade Organization (WTO) Appellate Body Report: European Communities ? Antidumping Duties on Imports of Cotton-Type Bed Linen from India (Recourse to Article 21.5 of the DSU by India) WT/DS141/AB/RW (April 8, 2003)

The WTO Appellant Body reversed in part the Dispute Settlement Body Panel (?DSB? or ?Panel?) Report which concluded that the EC?s determination of the volume of imports for calculating injury was correct.

In March 2001, the DSB adopted the Appellate Body Report which found that the EC had acted inconsistently with its obligations under Article 2.2.2(ii) of the Agreement on Tariffs and Trade 1994 (the ?Anti-Dumping Agreement?). In August 2001, the Council of the European Union adopted regulations designed to implement the recommendations and rulings of the DSB. Pursuant to these regulations, EC investigating authorities recalculated dumping margins, finding that three of the five Indian producers examined individually were dumping, while two were not. The investigating authorities deducted the imports attributable to those two from the volume of dumped imports, and thereby found that the volume of dumped imports was lower than the volume in their original determination. The two producers who were not found to be dumping constituted 53% of all imports attributable to the five producers which were examined individually. The EC then concluded, based on this recalculation, that all imports attributable to all other Indian producers or exporters which had not been examined individually had been dumped.

In May 2002, India claimed that the EC investigating authorities failed to comply with the recommendations and rulings of the DSB, and requested that the matter be determined by a panel constituted under Article 21.5 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (?DSU?). The Panel held that the measures in question were not inconsistent with either the Anti-Dumping Agreement or the DSU.

Among several questions raised on appeal were 1) whether the Panel erred in finding that the EC?s calculation of dumped imports was consistent with paragraphs 1 and 2 of Article 3 of the Anti-Dumping Agreement; and 2) whether the Panel was correct in dismissing India?s claim that the EC acted inconsistently with Article 3.5 of the Anti-Dumping Agreement by failing to ensure that injuries caused by ?other factors? were not attributed to the dumped imports.

The Appellate Body found that although paragraph 1 and 2 of Article 3 did not provide a ?specific methodology?for investigating authorities to calculate the volume of dumped imports, this did not result in granting ?unfettered discretion? to investigating authorities ?to pick and choose whatever methodology they see fit for determining the volume and effects of the dumped imports.?(emphasis in original) The Appellate Body observed that although there is a right to conduct a limited examination of dumping using samples which are statistically valid, such examination must be based on positive evidence and on an objective examination. The Appellate Body held that the EC?s dumping determination was not based on an ?objective examination as required under Articles 3.1 and 3.2 of the Anti-Dumping Agreement.?

The Appellate Body rejected India?s argument that the Panel erred in dismissing its claim under Article 3.5 based on the EC?s failure to ensure that injuries caused by ?other factors? were not attributed to the dumped imports. The Appellate Body found that India had raised the very same claim in the original proceedings, and that the original panel?s finding resulted in a final resolution of the matter.

The Appellate Body recommended that the DSB request the EC to bring its measure, to the extent it was found to be inconsistent with its obligations under the Anti-Dumping Agreement, in conformity with that Agreement.

Click here for the decision.

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DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS

United Nations (U.N.) Security Council: Resolution 1467 (Proliferation of Small Arms and Light Weapons and Mercenary Activities: Threats to Peace and Security in West Africa), S/RES/1467 (March 18, 2003)

The Security Council expressed its "profound concern" over the impact of the proliferation of small arms and light weapons, as well as mercenary activities, on peace and security in West Africa. The Council condemned serious violations of human rights and international humanitarian law to which these proliferation activities have contributed. The Council requested the States of West Africa to put into effect all relevant measures that have been adopted at national, regional and international levels to combat these problems, and to cease military support for armed groups in neighboring countries.

The Council also called on the states in the region to consider a number of recommendations that might contribute to the "more effective implementation of the ECOWAS Moratorium on Small Arms." The recommendations, inter alia, include: (1) expanding the scope of the Moratorium to include an information exchange mechanism for all types of small arms procured by ECOWAS member States as well as for arms transfers by supplier countries; (2) enhancement of transparency in armaments, including through the establishment of an ECOWAS register to record national inventories of small arms and light weapons; and (3) introduction of a standardized "end-user certificate" for imported weapons.

Click here for the U.N. Resolution.

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United Nations (U.N.) Security Council: Resolution 1472 (The Situation Between Iraq and Kuwait), S/RES/1472 (March 28, 2003)

Acting under Chapter VII of the U.N. Charter, the Security Council requested all parties concerned to "strictly abide by their obligations under international law, in particular the Geneva Conventions and the Hague Regulations, including those relating to the essential civilian needs of the people of Iraq, both inside and outside Iraq." The Council noted that Article 55 of the Fourth Geneva Convention requires from the Occupying Power to ensure, to the fullest extent of the means available to it, the food and medical supplies of the population.

The Council also called on the international community to provide, in consultation with relevant states, "immediate humanitarian assistance" to the people of Iraq, both inside and outside Iraq. The Council recognized that current exceptional circumstances in this country require "technical and temporary adjustments" to the "Oil-for-Food" Programme that had been established under resolution 986 (1995). The said adjustments should ensure the implementation of the approved funded and non-funded contracts that the Iraqi Government concluded for the humanitarian relief of Iraqi people.

The Council authorized the U.N. Secretary-General and his representatives to, inter alia, establish alternative locations, both inside and outside Iraq, in consultation with the relevant governments, for delivery, inspection and authenticated confirmation of humanitarian supplies and equipment provided under the Programme. The Secretary-General and his representatives should also review the approved and non-funded contracts concluded by the Iraqi Government in order to set new priorities in their fulfillment, bearing in mind the need for adequate medicine, health supplies, foodstuffs and other materials and supplies for essential civilian needs.

The Council urged all parties concerned to allow, in accordance with the Geneva Conventions and the Hague Regulations, "full unimpeded access by international humanitarian organizations to all people of Iraq in need of assistance and to make available all necessary facilities for their operations and to promote the safety, security and freedom of movement of [U.N.] and associated personnel and their assets, as well as personnel of humanitarian organizations in Iraq in meeting such needs."

Click here for the U.N. Resolution.

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BRIEFLY NOTED

United States-Vietnam Textile Agreement (April 25, 2003)

The United States and Vietnam have signed an agreement setting forth a cap on the total value of Vietnamese textile and clothing exports to the United States. The cap took effect on May 1, 2003. The agreement will stay in force until December 31, 2004, with the possibility of continuing on an annual basis until Vietnam joins the World Trade Organization (WTO).

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Afghanistan applies for Membership in the World Trade Organization (WTO) (April 22, 2003)

The WTO is expected to consider Afghanistan?s application for WTO membership at its next general council meeting on May 15th. If the members of the WTO accept Afghanistan?s application, a working party will be created to negotiate and draft the terms and conditions of Afghanistan?s accession to the WTO.

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International Court of Justice (ICJ): Certain Criminal Proceedings in France (Republic of the Congo v. France) (April 29, 2003)

The public hearings concerning the Republic of Congo?s request for the indication of provisional measures concluded on April 29, 2003. On April 11, 2003, the Registry of the ICJ announced that France had given its special consent to the Court?s jurisdiction to entertain the Republic of Congo?s application originally filed on December 9, 2002. In its application, the Republic of Congo requested that the ICJ indicate a provisional measure ?for the immediate suspension of the proceedings being conducted by the investigating judge of the Meaux tribunal de grande instance.? French judicial authorities have been investigating crimes against humanity and torture and have filed a complaint against the President of the Republic of Congo, the Congolese Minister of the Interior, in addition to other individuals including the Inspector-General of the Congolese Armed Forces.

Click here for the verbatim records of the hearings available on the ICJ?s website.

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International Law In Brief (ILIB) - Copyright 2003 - The American Society of International Law (ASIL)
Editors: Ruth Teitelbaum, Branislav A. Maric, Scott Smith