Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law January 28, 2005
The Eritrea-Ethiopia Claims Commission found Ethiopia liable for several violations of international law involving acts or omissions by its civilian officials, military personnel and others for whom Ethiopia is responsible, including: (1) erroneously depriving some Ethiopians who were not dual nationals of their Ethiopian nationality; (2) arbitrarily depriving dual nationals who remained in Ethiopia and those who remained in third countries during the war of their Ethiopian nationality (4) arbitrarily depriving dual nationals who were expelled to Eritrea but who were not screened pursuant to Ethiopia’s security review procedure of their Ethiopian nationality; (5) permitting local farmers, militia or police to forcibly expel rural people, many or most of whom were solely Ethiopian nationals; (6)permitting the forcible expulsion to Eritrea of some members of expellees’ families who did not hold Eritrean nationality; (7)permitting local authorities to forcibly expel to Eritrea an unknown, but considerable, number of dual nationals for reasons that cannot be established; (8) frequently failing to provide humane and safe treatment to persons being expelled to Eritrea from Ethiopia; (9) holding Eritrean civilians on security related charges in prisons and jails under harsh and unsanitary conditions and with insufficient food, in addition to subjecting them to beatings and other abuse; (10) detaining Eritrean civilians without apparent justification, holding them together with prisoners of war, and subjecting them to harsh and inhumane treatment while so held; (11)other unlawful measures related to taxes and real property of Eritrean expellees.
Eritrea’s civilian claims were brought by expellees, civilian detainees and “persons of Eritrean extraction living in Ethiopia,” who contended that Ethiopia is liable for loss, damage and injury they suffered resulting from violations of international law in connection with the 1998-2000 international armed conflict between Eritrea and Ethiopia.
In terms of the Commission’s jurisdiction over the claims concerning non-Eritrean nationals, the Commission noted that Article 5, paragraph 9 of the Agreement between the Government of the State of Eritrea and the Government of the Federal Democratic Republic of Ethiopia of December 12, 2000 (“the December 2000 Agreement”) provides a lex specialis, providing that “in appropriate cases, each party may file claims on behalf of persons of Eritrean or Ethiopian origin who may not be its nationals. Such claims shall be considered by the Commission on the same basis as claims submitted on behalf of that party’s nationals.”
In this case, Ethiopia objected to some of Eritrea’s claims concerning persons who were not Eritrean nationals. The Commission found that despite this lex specialis allowing Eritrea to bring claims on behalf of non-nationals, it failed to do so in accordance with the structure of Article 5, paragraph 9, since Eritrea made the claims for non-nationals “on behalf of itself” rather than on behalf of the non-nationals. The Commission observed that the failure to do this was not just a matter of form, and that such claims for injuries to non-nationals Eritrea would be outside its jurisdiction, and the subsequent damages portion would be affected.
In terms of applicable law, the Commission concluded that “customary international humanitarian law was the most significant legal component in the Parties’ relationship when many of these events took place.” It further noted that “[n]either international humanitarian law nor any treaty applicable between the Parties during the war addresses the loss of nationality or the situation of dual nationals in wartime.”
The key issues underlying Eritrea’s claims related to the emergence of the new State of Eritrea and in particular the referendum on Eritrean independence of April 1993. Eritrea claimed that after the initiation of the war, Ethiopia deprived thousands of Ethiopian citizens of Eritrean origin of their Ethiopian citizenship and expelled them in violation of international law. Ethiopia contended that the expellees had voluntarily acquired Eritrean nationality, and that those who were expelled were expelled lawfully following a determination that they were a security threat. The Commission concluded, upon taking account “the unusual transitional circumstances associated with the creation of the new State of Eritrea and both Parties’ conduct before and after the 1993 Referendum”, that those who participated in the Referendum Act acquired dual nationality. It held that they became citizens of the newly emerged State of Eritrea, and at the same time, Ethiopia continued to regard them as its own nationals.
The Commission found that in instances where the Ethiopian government applied reasonable criteria to identify dual nationals who posed a threat to wartime security, the termination of their Ethiopian nationality was not contrary to international law. It noted that international humanitarian law allows belligerents broad powers to expel nationals of an enemy State from their territory during armed conflict. However, in instances where the Ethiopian government allowed, for example, forced roundups by local people and crowds, such actions were in violation of international humanitarian law standards.
The Eritrea-Ethiopia Claims Commission found Eritrea liable for the following violations of international law:
(1) failing to ensure that Ethiopians in Eritrea who were not in detention were protected against acts or threats of violence by civilian and military police and the civilian population as required by Article 27 of Geneva Convention IV;
(2) failing to ensure Ethiopians the right to find paid employment on the same basis as nationals after the June 2000 Cease-Fire Agreement, in violation of Article 39 of Geneva Convention IV;
(3) failing to ensure that Ethiopians were able to obtain medical treatment to the same extent as Eritrean nationals in accordance with Article 38 of Geneva Convention IV;
(4) detaining Ethiopians in police stations, prisons and jails without clear legal basis, without charge or trial or minimum procedural rights, including those under Article 75 of Protocol I, and for concealing some of these Ethiopians from the ICRC in violation of Article 143 of Geneva Convention IV;
(5) allowing Ethiopian detainees to be subjected to physical and psychological abuse and substandard living, sanitary and health conditions contrary to Articles 27 and 37 of Geneva Convention IV;
(6) detaining Ethiopians at Hawshaite camp in western Eritrea during and after February 1999 without legal justification, and for permitting the Ethiopians so detained to be subjected to inhumane treatment and to inadequate food, sanitary and health conditionscontrary to Article 27 and 37 of Geneva Convention IV;
(7) detaining several thousand Ethiopian civilians during and after May 2000 without sufficient justification satisfying Article 42 of Geneva Convention IV;
(8) failing to provide these detainees humane treatment and the minimum standards of food and accommodation in violation of Articles 27, 89 and 90 of Geneva Convention IV;
(9) permitting these detainees to be subjected to acts of violence and physical abuse by camp guards, and in particular, for permitting untrained and undisciplined camp guards to use indiscriminate and excessive lethal force against detainees at Wi’a detention camp in July 2000, causing numerous deaths and serious injuries;
(10) expelling several thousand Ethiopians from Eritrea directly from detention camps, prisons and jails during the summer of 2000 under conditions that did not allow them to protect their property or interests in Eritrea;
(11) failing to ensure the safe and humane repatriation of departing Ethiopians in transports that were not conducted or supervised by the ICRC; and
(12) allowing the seizure of property belonging to Ethiopians departing other than from detention camps, prisons and jails, and otherwise interfering with the efforts of such Ethiopians to secure or dispose of their property.
The Commission held that the law primarily applicable to Ethiopia’s claims was that of customary international humanitarian law. It also noted that Geneva Convention IV and Protocol I applied, in particular, Article 75 of Protocol I set forth the “fundamental guarantees” that applied to any “persons who are in the power of a Party to the conflict who do not benefit from more favorable treatment under the Conventions or under this Protocol.”
International Centre for Settlement of Investment Disputes (ICSID): Salini Construttori S.p.A. and Italstrade S.p.A. v. the Hashemite Kingdom of Jordan,ICSID Case No. ARB 02/13, Decision on Jurisdiction, (November 15, 2004)
At issue was whether the breach of contract claims related to a construction project were within the jurisdiction of the tribunal. The relevant Bilateral Investment treaty (“BIT”), between Italy and Jordan, contained a clause in Article 2(4) of the BIT which provided that “Each Contracting Party shall create and maintain in its territory a legal framework apt to guarantee to investors the continuity of legal treatment, including the compliance, in good faith, of all undertakings assumed with regard to each specific investor.” The claimants argued that this clause was an “umbrella clause” having the effect of transforming contractual disputes into breaches of the BIT. The tribunal disagreed, and distinguished the language in the Italy-Jordan BIT from that of other BITs such as the one underlying the dispute in SGS v. Philippines.
The BIT also contains a provision stating that dispute settlement procedures agreed upon between investors and the government in an “investment agreement” shall be followed by the Parties.The tribunal concluded held that since the contract required that disputes be adjudicated in Jordanian courts, the tribunal was obliged to honor the forum selection clause for contractual disputes, notwithstanding the so-called umbrella clause referring to undertakings in the BIT. A subsidiary argument of the claimants was that by virtue of the Most Favored Nations Clause, they could bypass the Italy-Jordan BIT’s provision excluding contractual disputes from ICSID arbitration by relying on other BITs entered into by Jordan without such a limitation.The tribunal found that the common intent of the parties to exclude contractual disputes from ICSID jurisdiction in the Italy-Jordan BIT was clear. It distinguished this case and the MFN clause at issue from that of Maffezini v. Spain, and further found that there was no intention to make the MFN clause in that Italy-Jordan BIT apply to dispute settlement. The tribunal concluded therefore that it lacked jurisdiction over the breach of contract claims.
United Kingdom House of Lords: Opinions of the Lords of Appeal for Judgment in the Cause of A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent); X (FC) and another (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) UKHL 56 (December 16, 2004)
Before the UK House of Lords was a challenge to a decision by the Court of Appeal against a decision of the Special Immigration Appeals Commission (SIAC). The appellants had been certified by the Home Secretary under section 21 of the Anti-terrorism, Crime and Security Act 2001 on December 17, 2001 and were detained under section 23 of that act on December 19, 2001. The appellants are foreign (non-UK) nationals, and none has been charged with any crime. They challenged the lawfulness of their detention, and specifically contended that their detention was inconsistent with obligations binding the UK under the European Convention on Human Rights (“ECHR”), which was given domestic effect through UK’s Human Rights Act of 1998.
The House of Lords observed that the ECHR gives member states a limited right to derogate from some articles of the ECHR, including article 5 concerning the right to liberty and security of person. The House of Lords found that the appellants’ challenge to their detention was lawful as it invited the courts to review, on proportionality grounds, the compatibility of their detention with the ECHR. It noted that, contrary to the Attorney-General’s assertion, it was within the authority of the judicial branch to examine this question. This was so given that section 6 of the 1998 Human Rights Act renders unlawful any act of a public authority, including a court, incompatible with ECHR rights, has required courts in section 2 to take account of relevant ECHR jurisprudence, and has, in section 3, required that UK courts, give effect to the Convention rights and has conferred a right of appeal on derogation issues.
In terms of derogations from Article 5 of the ECHR, the House of Lords noted that measures which derogate from article 5 are permissible only to the extent strictly required by the exigencies of the situation, and the burden on the state making the derogation must prove that there is a public emergency threatening the life of the nation. The House of Lords therefore allowed the appeals to proceed.
United Nations Security Council: Resolution 1579 (The Situation in Liberia) (December 21, 2004)
The U.N. Security Council expressed its concernthat former President Charles Taylor and others closely associated with him continue to engage in activities that undermine peace and stability in Liberia and the region. It took noteof the reports of the United Nations Panel of Experts on Liberia dated September 24, 2004 (S/2004/752) and December 6, 2004 (S/2004/955) submitted pursuant to resolution 1549 (2004). Referring to the letter from the Special Representative of the Secretary-General in Liberia of December 13, 2004 to the Chairman of the Committee established by paragraph 21 of resolution 1521 (2003), the Security Council noted that illegal exploitation of natural resources such as diamonds and timber, illicit trade in such resources, and the proliferation and trafficking of arms fuel and exacerbate conflicts in West Africa, particularly in Liberia.
Actingunder Chapter VII of the Charter of the United Nations, the Security Council decided to renew measures on arms, diamonds and timber imposed by U.N. Security Council Resolution 1521 (2003).
Click here for the Security Council’s 2004 resolutions.
Unocal to Reach Settlement in Alien Tort Claims Act Case (December 13, 2004)
Unocal and the Parties to the lawsuits related to the construction of the Yadana gas pipeline in Myanmar (Burma), issued a joint statement in which they declared that they agreed in principle about the settlement of the claims.
The plaintiffs, 15 Burmese villagers, filed a claim against Unocal in 1996 in Los Angeles under the 1789 Alien Torts Claim Act, 28 U.S.C. §1350. Assisted by the Center for Constitutional Rights and EarthRights International, the plaintiffs asserted that Unocal should be held liable for human rights abuses including murder, rape, torture, extortion, and forced labor, which allegedly occurred during the construction of the pipeline.
“Unocal will compensate plaintiffs and provide funds enabling plaintiffs and their representatives to develop programs to improve living conditions, health care and education and protect the rights of people from the pipeline region”, the statement adds. The terms of the settlement, however, remain confidential.
The ILM Editorial Office welcomes Ms. Elena Papangelopoulou. Ms. Papangelopoulou has completed an LLM at George Washington University in International and Comparative Law and is a member of the New York Bar.
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