ISSUE #26: September 2002

2223 Massachusetts Avenue, NW           Washington, DC 20008-2864

Contact Persons: Chair & Editor:     Professor William R. Slomanson  Thomas Jefferson School of Law - telephone: (619) 297-9700 x1513 - facsimile: (619) 296-4284 - e-mail: bills@tjsl.edu Vice Chair:            Martha Trofimenko - e-mail: trofimenko@mail.dol.net ASIL Admin:         Dr. Charlotte Ku - e-mail: cku@asil.org - telephone: (202) 939-6000 - facsimile: (202) 797-7133 URL: http://www.lawschool.cornell.edu/lawlibrary/asil/

In This Issue (September 2002): Message From the Chair UN Decade Objectives Members' Activities Opinion Page Special Feature (new Russian Court) Reader's Corner Your Turn

Note: We no longer use page numbers for this Newsletter- now that we have shifted to an electronic format. Next Newsletter: Fall 2002.

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Please advise the Editor of your significant professional developments. We can thus keep in touch and serve as resources for one another.

Brian Lepard Spoke on a panel this month at the 55th Annual NGO/DPI Conference at UN Headquarters in New York. His topic was Enforcing International Human RIghts Law: A Religious and Ethical Perspective.


Brian also signed copies of his new book during this visit to the UN. The title is Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions (Penn State Press: 2002).


Maurice Mendelson, Q.C. Maurice has taken an early retirement from his duties as the Chair of International Law at University College, London University. He can now concentrate on his practice as a barrister specializing in international law at Blackstone Chambers, Temple, London.

His recent professional activities include appearing as counsel for Cameroon in its dispute before the ICJ against Nigeria.He completed his work as Chairman of the International Law Association, International Committee on the Formation of Customary (General) International Law, with the adoption by the Association of the Final Report of the Committee, including London Statement of Principles relating to the Formation of General Customary International Law, in International Law Association Report of 69th Conference (2000) 712-777. It is available at <http://www.ila-hq.org>. Maurice recently published On the Quasi-Normative Effect of Maritime Boundary Agreements in Liber Amicorum for Judge Shigeru Oda (2002), 1069-86. Finally, his The Curious Case of Qatar v. Bahrain in the International Court of Justice will soon appear in 72 British Year Book of International Law (2001).


Thomas Waelde He has just ended eleven years in his role as Executive Director of the Centre for Energy, Petroleum, Mineral Law and Policy at the University of Dundee. The Centre has become the internationally largest and leading graduate school in the field, with over 200 graduate students from all of the world (among them about 30 Ph.D. candidates).

Thomas is now on a one-year sabbatical to complete a book on EU Energy Law. He has thus commenced writing a book that is tentatively entitled International Energy Law and Policy. He has also published (with A. Gunst) a work regarding access conditions for cross-border electricity trade, in the Journal of World Trade, entitled Reputation and Enforcement in International Business Transactions (Business Law International); Environmental Regulation as a "Regulatory Taking in International Treaties (International and Comparative Law Quarterly).
In 2001, Thomas completed a major study on OPEC & International Treaties and, for APEC, on the legal and treaty regime of electricity interconnectors. He continues a long-term advisory project to build up infrastructure concession law, tender regulation and model terms in Serbia and is special counsel in several investment arbitrations.

In 2002 Thomas spoke in Vienna (with OPEC) on international investment and trade treaties; in Cartagena de Indias on privatization and restructuring of state oil companies; in Cambridge, UK, to a Shell corporate counsel workshop on the Government Perspective in Investment Disputes; in Brussels in a European electricity operators conference on access conditions and the Energy Charter Treaty; and in Geneva, at the Global Arbitration Forum on the Quatar-Bahrain ICJ judgement.


Hon. Y.K.J Yeung Sik Yuen (Mauritius Supreme Court) prepared the Working Paper E/CN.4/Sub.2/2002/38, Human Rights & Weapons of Mass Destruction, or with Indiscriminate Effect, or of a Nature to Cause Superfluous Injury or Unnecessary Suffering for the UN Sub-Commission on the Promotion & Protection of Human Rights on the subject. He will prepare an update for the Fifty-Fifth Session of the Sub-Commission (August 2003).


Bill Slomanson (Thomas Jefferson School of Law) Taught a Public International Law course at Pristina University as part of the humanitarian effort to rebuild Kosovo. Published the 4^th ed. of his classroom text Fundamental Perspectives on International Law (Thompson West 2002), Course Web Page portion of this book at <http://home.att.net/~slomansonb/txtcsesite.html>, and its companion online Teacher’s Manual.

Neither the Editor nor the American Society of International Law endorse an op-ed by the decision to publish it. Op-ed pieces are provided as a means of generating thoughtful dialogue on issues arising under International Law.

by Howard N. Meyer

Students who sign up for a course in the Law of Nations, aka International Law, are warned as they begin, about a question that will pop up often in their later careers. The Introduction or first chapter of their casebook begins Is International Law really "Law?"

The student who has already spent fifty or more dollars for the book, will be troubled and may well ask herself: "What am I doing here?" The immediate disposition of the question in the classroom is not the end of it. The phrase "Is it really law?" is encountered repeatedly during a professional life.

The nation’s founders entertained no doubt about the law’s reality when in the original Constitution of 1787, they empowered the Congress "To define and punish [along with piracy] offenses against the Law of Nations."

What was supposed to be in the minds of those who drafted the Constitution, ("original intent") is given respectful attention in discussions of its meaning. There is one exception: the intention of the nation’s founders to insure compliance with International Law is never given a thought. As his term of office approached its end, President Eisenhower (who was preparing to warn his successor regarding the military-industrial complex) declared that it was necessary "for mankind to make the rule of law in international affairs as normal as it is now in domestic affairs." In the same address he endorsed the obligatory jurisdiction of the World Court, and with characteristic prescience said "It is better to lose a point now and then in an international tribunal, and gain a world in which everyone lives at peace under a rule of law."

Twenty five years later, after losing a point in the Nicaragua case, the Reagan Administration cast that obligatory jurisdiction aside. Since then disinterest in International Law has developed into disrespect. This has been noted by and increasingly troubled those engaged in teaching, writing about and studying International Law.

The American Society of International Law is the principal organization in the United States that represents these professionals. It is the forum in which they exchange views and it makes their scholarship available in its publications. More than one elected leader of the A.S.I.L. has, during recent years, voiced his or her concern at decline in regard for the Law of Nations.

One recent president of the organization, Professor Louis Henkin complained that International Law was not "taken seriously." A successor, Thomas Franck, long the respected editor of the A.S.I.L’s Journal acted in response to the concern of his colleagues. He appointed a special committee to seek "ways in which ASIL could promote greater awareness of International Law in politics, the judiciary and the media." The committee included an impressive constellation of leading scholars and public figures, including Associate Justice Sandra Day O’Connor. Their Chair, Rita Hauser, a distinguished practitioner in the field said in a few words what it was that had brought the group together: "…international law is today probably less highly regarded than at any time since ASIL’s founding [1906] it is a subject not widely taught at law schools and one arguably given short shrift by all three branches of the U.S. Government. (emphasis added.)

The Committee developed in response a detailed plan for "outreach." This was a public relations project to raise the level of knowledge about and regard for International Law. This was launched in 1999.

Has there been a noticeable change in the status of International Law in America since ?

The national response to a current event of enormous significance has been illuminating and dismaying. The Bush White House has announced its intention to overthrow the government of Iraq. It has threatened the use of force, of U.S. military personnel and weaponry

The very announcement of such a policy presents questions of International Law. Is it ever legally permissible for a nation to send armed forces across the borders of another nation, to intrude in its domestic affairs to the extent of demanding or bringing about a change in its government. If it is, does legal justification exist in the case of Iraq?

There has been active and sometimes vigorous debate in most media about the policy, its wisdom, its cost in human lives and resources, its feasibility, the aftermath. This is at a much lower level in Congress, where imminence of a midterm election raises fears of the consequences of clashing with the "Commander in Chief." The summer months have seen relatively little discussion among non-governmental public figures or in academia.

The extraordinary feature of such debate as there has been is the almost total absence of consideration of possible illegality of the Bush Administration’s conduct.

It is not the writer’s purpose to argue one side or the other of the legal questions at stake. But it cannot be denied that there are legal questions presented. To ignore them, to argue as if they do not exist, is an abdication of responsibility by the media, a disregard of a constitutional obligation by members of Congress, and a symptom of poor citizenship among the population

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Howard N. Meyer recently published The World Court in Action, on the history of the International Court of Justice during the 20^th Century.

THE ECONOMIC COURT OF THE COMMONWEALTH OF INDEPENDENT STATES

Overview

The Commonwealth of Independent States is an international organization originally created by three republics of the former Soviet Union. During the conference in Alma-Ata on the 21^st of December 1991, a total of eleven former-republics adopted the Alma-Ata Declaration and signed the Protocol to the Agreement Establishing the CIS. The Economic Court is a main judicial body of this organization, established by the Agreement on the status of the Economic Court of CIS signed on the 6^th of July 1992. Rules of the Court were adopted by its Plenum in 1994, but were revised in 1997.

Currently there are only eight members¹ of the CIS that participate in the activities of the Court: Armenia, Belarus, Kazakhstan, Kyrgystan, Moldova, Russia, Tajikistan and Uzbekistan. The seat of the Court is in Minsk, Belarus. Every member-State nominates two judges to the Plenum of the Court. Judges shall be chosen using procedure for the nomination of judges for supreme arbitral² and commercial courts of the member-States. They are elected for a ten-year term. The Court can sit as follows: chambers created for one-year period (three or five judges); full Court consisting of all judges of the Court; and Plenum constituted with judges of the Court and head judges of the supreme commercial and arbitral courts of the member-States. Each of these function differently and each has ditinct jurisdictional powers. Plenum, for example, serves as a court of appeal for the chamber courts.

Any branch of government of a member-State or its authorized agencies may bring cases before the Court. The main purpose of the creation of the court is to resolve the inter-governmental disputes that cannot be referred to the domestic supreme commercial or arbitral courts of a member-State. During the period from February 1994 to January 2001 the Court heard 47 cases (37 interpretations of treaties and agreements, 7 cases in relation to the breach of agreements, and 3 labor cases). The Court considered 5 cases during 2000.

The Court has the power to consider only two types of economic disputes: those related to the economic agreements between member-states and their agencies and those concerning the legislation that regulates economic relationships. In addition, the Court can also provide member-States with an interpretation of the treaties related to the CIS, the legislation of the former Soviet Union, and applicability of such legislation to CIS States.

According to the Court’s decision rendered in 1997, Regarding Interpretation of the Article 31 of the Agreement on the Creation of the CIS, "parties are obligated to resolve their disputes in the peaceful manner and refer them to the Economic Court of CIS³." The Agreement contains the unconditional obligation for its signatories to refer all their disputes to the Economic Court. Member-States do not have a right to refer their disputes to other international courts or tribunals, without prior consideration of the Economic Court.

There are several problems. First, the financing of the court is insufficient. Judges do not received their payroll for months, only thirty-two percent of the necessary funding is actually provided⁴. Second, decisions of the Court should be published in official periodicals in the member-States–which frequently does not happen. The Court still does not have its own publication arrangement, whereby decisions and opinions could be published. Third, the narrow jurisdiction of the Court is limited only to economic disputes. It does not allow the Court to determine disputes in other areas of inter-State relationships. This limitation considerably diminishes the Court’s potential influence on the Commonwealth. Fourth, the institutions which can bring lawsuits before the court is very limited, resulting in the inadmissibility of cases and undermining the main purpose of the court: namely, dispute resolution within the CIS. The final limit is the uncertainty as to the binding nature of the decisions and lack of enforcement mechanisms.

In October 2000 Plenum considered the proposition to deal with some of these problems by extending the Court’s jurisdiction via creation of specialized chambers and tribunals to deal with disputes in different areas of social activity.

The following case summary provides useful insight into the working of the Court:

Economic Court of the Commonwealth of Independent States
State Registration No. G960027
Dated: October 3, 1996 Act Number: C-1/15-96
Russian Federation vs. Republic of Kazakhstan⁵ Decision⁶

In this case court had to render decision on two major issues:

a) Did Kazakhstan broke the agreement concluded between its government and Nizhegorodskey Region of the Russian Federation on the 11^th of November 1992 in pursuance of the treaty singed on the 25^th of May 1992; and

b) If the answer to the first question is positive, what measures shall be taken to ensure that Kazakhstan will fulfill its obligations under the agreement and provide compensation for damages.

The court, consisted of five judges, considered an application made by the government of the Russian Federation to the government of the Republic of Kazakhstan in respect to the breach of the contract and compensation for damages resulted from the breach, as follows:

There was a series of agreements concluded between the parties during the period from August 1991 to November 1992, that finally resulted into the endorsement of the Implementation Program. The decision itself is somewhat controversial as to the concise determination of the number of agreements and their character. Nevertheless, it does not contain contradictions on this subject.

Generally from the analysis of the decision as a whole, it appears that the first agreement "On the principles of trade and economic cooperation between Kazakhstan Soviet Socialist Republic and Russian Soviet Federal Soviet Republic" was signed on the 17^th of August, 1991 ("August 1991 Agreement"). Later that year, on the 21^st of November, parties agreed on the Protocol of confirmation of the amounts of supplied products and the control of the supply process of the most important types of products and goods" ("November 1991 Agreement"). They were followed by the Agreement on friendly relationships, cooperation and mutual assistance between the Russian Federation and the Republic of Kazakhstan, that was concluded on the 25^th of May 1992 ("May 1991 Agreement"). The Court does not mention this agreement in the discussion of the negotiations, and it only comes up in the letter submitted by the respondent. In its turn this agreement was followed by the Agreement on Economic, Science-Technical and Cultural Cooperation between the Regions of the Republic of Kazakhstan and Nizhegorodskey Region of the Russian Federation, concluded on the 11^th of November 1992 ("November 1992 Agreement").

In order to assist in the performance of the agreements parties to the latter agreement developed the Implementation Program of the Mutual Decision to Cooperate in Economic Sphere between Nizhegorodskey Region and Taldukorganskey Region of the Republic of Kazakhstan ("Implementation Program"). November 1992 Agreement provided first concretization of the relationships, namely, Nizhegorodskey Region was to provide Kazakhstan Regions with manufactured products, and Kazakhstan Regions were to provide Nizhegorodskey Region with agricultural and consumption products. It also defined the executive bodies of the Agreement: Trade Industrial House "Ekaterynodar-Nyzhnuy Novgorod" ("ENN") on the part of the Nizhegorodskey Region and Trade House "Taldykorgan-Nyzhnuy Novgorod" ("TNN") on the part of Taldukorganskey Region. The Implementation Program, in its turn, defined the quantity and names of the products to be supplied, whereas November 1992 Agreement set up equivalents in the value of one product to another⁷. Latter was obviously necessary because of the very nature of the barter transaction.

During January 1993 ENN has provided TNN with 288 vehicles of the defined type, whereas TNN have sent only 16’667 tons instead agreed 56’380 tons of corn.

ENN tried to settle the dispute that arose by means of negotiations, but with no positive results. ENN is asking either to deliver 39’713 tons of corn, that constitute the difference of the agreed amount and the amount already supplied or to provide equivalent amount of money.

Neither the government of Kazakhstan nor the Taldukorganskey Region sent their representatives to participate in the hearing. The Court nevertheless considered respondent’s objections stated in several letters sent by the representative of the different bodies of the government. Generally there were three major objections:

1) respondent claimed that there was no final agreement between the parties as to the equivalent in the value of products, therefore respondent proposed to submit the dispute to the arbitration;

2) respondent opposed the jurisdiction of the Economic Court of CIS to decide this matter, on the ground that on his opinion there were no intergovernmental supply agreement that would result from November 1992 Agreement.

3) respondent insisted that the default in supply under the agreement resulted from the absence of the value of products, therefore respondent proposed to determine the prices of the products taking into account prices on the world market.

The first and the third objections contradict each other because were submitted by the different governmental representatives. The latter objection shall not be taken into account, because government of Kazakhstan never verified the authority of the objector to act on its behalf.

During January 1993 ENN has provided TNN with 288 vehicles of the defined type, whereas TNN have sent only 16’667 tons instead agreed 56’380 tons of corn.

In regard to the first objection presented by the respondent, Court finds that mutual obligations of the governments arose from May 1992 & November 1992 Agreements, on the ground that:

a) both agreements were signed by the representatives of governments and their fulfillment was supported by the respective governments, as clearly seen from the correspondence presented before the Court;

b) according to Section 8 of the Agreement on Common Conditions in the Supply of Goods between Organizations of Member-States of CIS signed on the 20^th of March 1992 all documents on coordination of the amounts of supply signed by the bodies that regulated the actual supply shall be considered as essential part of the Agreement on Trade-Economic Cooperation;

c) according to the decisions of this court No. 03/94 (14December1992) and No. 04/95 (04August1993) obligations taken by companies and territorial subdivisions as a part of the development of inter-governmental agreements and approved on the governmental level, shall be considered as obligations of those governments. The Court can use these decisions because according to the Statute it has a right to use generally accepted principles of international law. These principles allow the use of the decisions of the international tribunals as sources of international law. Therefore Court believes that it shall use these decisions as precedents in order to decide current dispute.

In regard to the second objection presented by the respondent, Court finds that the Regions are the representatives of the member-states. The partial fulfillment of the obligations by the representatives of the states means partial fulfillment of the obligations by the states themselves. Therefore the Court believes that it shall take into account the relationships between ENN and TNN to the degree they are evidence of the intergovernmental relationships.

The Economic Court of CIS taking into account:

1) the principle of pacta sunt servanda stated in the Article 26 of the Viennese Convention on the Law of Treaties dated May 23 1969

2) the obligation to abstain from the acts resulting into economic losses, taken by the signatories to the Agreement on the Regulations of the Relationships among the Member-States of the CIS in the Area of Trade-Economic Cooperation signed on the 14^th of February 1992 and that actions conducted by the Republic of Kazakhstan have such effect decided:

a) that the government of the Republic of Kazakhstan has broken its obligations under the November 1992 Agreement to supply the Russian Federation with 39713 tons of corn in exchange to supplied vehicles by the Russian Federation; and

b) to recommend the government of the Republic of Kazakhstan within 3-month period from the moment this decision will take its effect to either specifically perform the agreement or to pay damages resulted from the breach of the contract; and

c) to charge the government of the Republic of Kazakhstan with the court costs in the amount of 1.5 million of the Belarus currency.

The decision is appealable in the three-month period to the Plenum of the Economic Court of the CIS.

1. Out of 10 that signed the 1992 Agreement; Only Ukraine is a member-state of the CIS and is not a signatory to the Agreement creating the Court.
2. Court of Arbitration in former Soviet Republics is a part of a state judicial system that deals with commercial matters. Judicial procedure has little or no similarities with those provided by UNCITRAL, ICC or any other arbitration rules.
3. Unofficial translation.
4. According to the BALTA Agency, Minsk, December 22, 2000.
5. Review and relevant translation done by Anatoly I Vlasov, 3rd year Political Science student at the University of Toronto, prior, a student at the faculty of law in the ISTU, Kiev, Ukraine.
6. None of these parts are word-by-word translation of the Decision. The original decision is not divided into three different parts. "The Facts" give an overview of the relevant part of the decision, while other parts (esp. The Merits) provide text that is more close related to the original Russian text.
7. 300,000 tons of corn = 400 GAZ 31029 vehicles, 180 tones of corn for 1 vehicle if 100 vehicles supplied, 220 tons for 1 vehicle if 300 vehicles supplied.

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