Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law October30, 2004
The United States-Uruguay Bilateral Investment Treaty (“BIT”) was signed on October 25, 2004. The provisions are similar to those contained in the investment chapters of those FTAs signed in the past two years. The United States recently completed a revision of the model BIT text it has used in BIT negotiations and the U.S.-Uruguay BIT was the first to be based on this new U.S. model BIT text.
The United States has also just finished its fifth round of negotiations for a United States-Panama Free Trade Agreement.
World Trade Organization (WTO) Panel: United States-Measures Affecting the Cross-Border Supply of Gambling and Betting Services(November 10, 2004)
Click here for the decision. Click here for an ASIL Insight on the WTO decision
The WTO Panel found that the U.S. Wire Act, the U.S. Travel Act and the U.S. Illegal Gambling Business Act are inconsistent with U.S. obligations under Article XVI of the General Agreement on Trade in Services (GATS) due to specific commitments the United States has undertaken in its GATS Schedule.
Antigua and Barbuda brought the dispute on behalf of its domestic industry pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) and Article XXIII of the GATS, regarding measures applied by central, regional and local authorities in the United States that affected the cross-border supply of gambling and betting services.
The Panel observed that this was the first occasion on which Article XIV of the GATS has been invoked by a Member in a WTO dispute. The parties were in dispute as to the interpretation of the relevant schedule of commitments under the GATS. On this point the Tribunal agreed with Antigua and Barbuda, finding that the United States had made a full market access commitment in its Schedule for gambling and betting services.
The United States argued that the Wire Act, the Travel Act and the Illegal Gambling Business Act are necessary to protect "public morals" and "public order" within the meaning of Article XIV(a) of GATS.
Although the WTO Panel found that the above-mentioned regulations were designed to address concerns of public morals and order, the question was whether the United States had explored and exhausted reasonably available WTO-consistent alternatives. Given that the United States had undertaken a specific market access commitment to the cross-border supply of gambling services under the GATS schedules, the Panel held that it was obliged to consult with Antigua and Barbuda before and while imposing its prohibition on the cross-border supply of gambling and betting services and to consider WTO-consistent alternatives, including those that may be suggested by Antigua and Barbuda, in addition to other WTO members.
The Supreme Court of Chile confirmed the prison sentence of Miguel Krassnoff Martchenko, Juan Manuel Contreras Sepúlveda and others in a case of forced disappearance occurring in 1975. It unanimously upheld the principle that forced disappearance is a crime against humanity, not subject to statutes of limitation. It further found that because forced disappearance is an ongoing crime until proof of the victim's death has been established, the 1978 amnesty decree issued by the military government that covered human rights crimes committed between from 1973 to 1978 does not apply.
On appeal, the defense argued, inter alia,that contrary to the Court of Appeals’ reasoning, the international treaties cited by the Court of Appeals are not integrated into the national laws of Chile. Defense counsel for Krassnoff argued that the Inter-American Convention on Forced Disappearance of Persons, signed in 1994, has not yet been ratified by the Chilean National Congress, and therefore could not be applied by the Chilean Court. The defense also submitted that the Court of Appeals erred in going beyond the scope of the crimes of accused set forth in the indictment.
The Supreme Court of Chile disagreed, finding that Chile was bound by the Inter-American Convention on Forced Disappearance of Persons notwithstanding the fact that it has not yet been ratified by the Chilean parliament. Moreover, the Supreme Court found that the principles the Court of Appeals had applied were those enunciated by the United Nations International Law Commission and applied by the Nuremberg Tribunal and the International Criminal Tribunal for the Former Yugoslavia, principles of international law by which Chilean courts were also bound.
Click here for EISIL resources on Crimes against Humanity.
The U.S. District Court for the District of Columbia (“the Court”) granted Hamdan’s petition for habeas corpus in part, and denied the U.S. government’s motion. According to the Court, the U.S. President “is not a ‘tribunal,’” and his determination that Hamdan was a member of Al Qaeda does not meet the standard for determining whether Hamdan is entitled to a prisoner-of-war status under the Geneva Conventions. The Court held that the U.S. government must convene a competent tribunal (or address a competent tribunal already convened) and seek a specific determination as to Hamdan’s status under the Geneva Conventions and in accordance with the law of war, 10 U.S.C. § 821. It further concluded that the procedures established for the Military Commission by the President’s order are “contrary to or inconsistent” with those applicable to courts-martial, 10 U.S.C. § 836.
United Nations (U.N.) Security Council Resolution 1572 (2004) (The Situation in Côte d’Ivoire) (November 15, 2004)
Click here for recent U.N. Security Council Resolutions
Acting under Chapter VII of the U.N. Charter, the U.N. Security Council condemned the air strikes committed by the national armed forces of Côte d’Ivoire (“FANCI”), noting that these air strikes constituted flagrant violations of the ceasefire agreement of May 3, 2003. It demanded that all Ivoirian parties to the conflict, the Government of Côte d’Ivoire well as the forces nouvelles, comply with the ceasefire. The U.N. Security Council confirmed its full support for the action undertaken by the United Nations Operation in Côte d’Ivoire (“UNOCI”) and French forces in accordance with their mandate under U.N. Security Council resolution 1528 (2004). It demanded that the Ivoirian authorities desist from using radio and television broadcasting to incite hatred and intolerance.
Also acting under Chapter VII of the U.N. Charter, the U.N. Security Council declared that all States shall cease transferring arms or any related military material to Côte d’Ivoire. It further decided that all States, for a period of twelve months, shall prevent the entry or transit through their territories of all persons designated by the U.N. Security Council’s special committee as those threatening the peace and national reconciliation process in Côte d’Ivoire.
Cambodia: Ratification of legislation establishing a UN-supported tribunal to prosecute leaders of the Khmer Rouge regime (October 4, 2004)
The Cambodian parliament ratified legislation to establish a UN-supported international criminal tribunal designed to try leaders of the Khmer Rouge for genocide and crimes against humanity. Click here for more information on the Special Tribunal for Cambodia.
The International Tribunal for the Law of the Sea(ITLOS):
The International Tribunal for the Law of the Sea (ITLOS)received an application submitted on behalf of the Government of Saint Vincent and the Grenadines against the Government of Guinea-Bissau under article 292 of the United Nations Convention on the Law of the Sea. The application seeks the release of the Juno Trader, a reefer vessel flying the flag of Saint Vincent and the Grenadines, along with 19 members of its crew. The Application states that the Juno Trader was boarded by members of the navy of Guinea-Bissau on September 26, 2004, while traversing the exclusive economic zone of Guinea-Bissau, due to the alleged violation of Guinea-Bissau’s national legislation on fishing in the maritime waters of Guinea-Bissau. The Juno Trader was brought into Bissau, where it is still detained, along with its crew of Russian and Ukrainian nationals.The Government of Saint Vincent and the Grenadines maintains that the fish were caught legally by a fishing vessel in the exclusive economic zone of Mauritania and that the cargo had subsequently been transhipped onto the Juno Trader, which was engaged in transporting the cargo to its owners in Ghana when the arrest took place.
