Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law February 16 , 2005
Case concerning Certain Property (Liechtenstein v. Germany) Preliminary Objections (February 10, 2005) Click here for the decision.
The International Court of Justice (“the Court”) found that it did not have jurisdiction to entertain the claim brought by the Principality of Liechtenstein (“Liechtenstein”) against the Federal Republic of Germany (“Germany”). On June 1, 2001, Liechtenstein filed a claim against Germany relating to a dispute concerning the treatment of property formerly owned by a Liechtenstein national. In the aftermath of World War II, Czechoslovakia, an allied country, adopted the so-called Beneš Decrees, under which certain property owned by Liechtenstein nationals was confiscated. This confiscation included property owned by Prince Franz Josef II of Liechtenstein, the property now in question. When this property, a painting by the seventeenth century Dutch artist Pieter van Laer, was lent to a museum in Germany in 1991, Prince Hans-Adam II of Liechtenstein brought a lawsuit in the German courts asking for the painting to be handed over to him.
The German courts, in all instances, refused to entertain the claim, and the European Court of Human Rights also dismissed the claim that challenged the German decisions. The German courts found the Convention on the Settlement of Matters Arising out of the War and the Occupation (“Settlement Convention”) to govern the matter. Under Article 3 of Chapter Six of this convention, which entered into force on May 5, 1955, Germany was barred from raising objections against measures that were “carried out with regard to German external assets or other property, seized for the purpose of reparation or restitution… concluded, or to be concluded, by the Three Powers with other Allied countries.” Moreover, paragraph 3 of Article 3 provided that “no claim or action shall be admissible against persons who shall have acquired or transferred title to property on the basis of the measures referred to in paragraph 1 and 2 of this Article.” Liechtenstein’s application based the jurisdiction on Article 1 of the European Convention for the Peaceful Settlement of Disputes (“European Convention”) of April 29, 1957, which entered into force between Liechtenstein and Germany on February 18, 1980. This treaty provided for all international disputes between the contracting parties to be submitted to the ICJ, except those disputes “relating to facts or situations prior to the entry into force of this Convention as between the parties to the dispute” (Art. 27 (a) of the European Convention). Germany claimed, inter alia, that the Court lacked jurisdiction because the dispute would relate to facts or situations prior to 1980, namely the Beneš Decrees and the Settlement Convention. Liechtenstein argued that the facts or situations the dispute relates to are the decisions of the German courts, which were taken in 1995 and thereafter, that is after the crucial date of 1980. The Court, citing its own jurisprudence as well as the jurisprudence of the Permanent Court of International Justice (the Phosphates in Morocco case, the Electricity Company of Sofia and Bulgaria case and the Right of Passage case), finds that in order to determine the facts or situations to which this dispute relates, the “test of finding the source or real cause of the dispute” propagated in the decisions mentioned above is “equally applicable to this case.” In concluding that the dispute was triggered by the decisions of the German courts, but that the “source or real cause of the dispute is to be found in the Settlement Convention and the Beneš Decrees”, the Court upholds Germany’s objection and dismisses Liechtenstein’s claim.
Inter-American Court of Human Rights: Case of Lori Berenson Mejia v. Peru (November 25, 2004) Click here for the decision(in Spanish)
Inter-American Court of Human Rights (“the Court”) concluded that Peru violated Article 5 (Right to Humane Treatment) of the American Convention on Human Rights (“the Convention”) as it related to Article 1.1 of that Convention, in addition to Articles 8 (Right to a Fair Trial), and 9 (Freedom from Ex Post Facto Laws). It ordered that Peru amend its legislation in accordance with its decision. However, the Court did not order the release of Lori Berenson Mejia from prison. It held that the decision per se constituted a form of reparation. The Court recommended that that Peru provide Ms. Berenson with medical assistance. It also held that the civil damages that she owed to Peru should be cancelled.
According to the facts submitted by the Inter-American Commission on Human Rights, Lori Berenson Mejia was detained on November 30, 1995, in Lima, Peru, and later tried by a military tribunal with judges who wore hoods to disguise their faces. The military tribunal found her guilty of high treason and sentenced her to life imprisonment. Ms. Berenson filed an appeal for “extraordinary review” of her sentence in August 2000, and the Supreme Court of Military Justice in Peru annulled the sentence and dismissed jurisdiction, sending the case to an ordinary criminal court. Meanwhile, from January 1996 until October 1998, Ms. Berenson was held at Yanamayo prison, where she was subjected to harsh conditions of detention and suffered serious health problems.
After the military judgment had been rendered, copies of her case file were forwarded to an ordinary criminal court in Peru, where a new trial against her began in August 28, 2000. This trial ended in a judgment in June 2001 convicting her of the crime of collaboration with terrorism, set forth in Article 4, paragraphs (a) and (b) of Decree Law No. 25.475. Ms. Berenson was sentenced to 20 years in prison. The Supreme Court of Justice of Peru confirmed this judgment on February 13, 2002. Prior to her hearing before an ordinary criminal court, Ms. Berenson was placed on a platform surrounded by a cage-like structure with a place for the Peruvian media to see her. When the formal interrogation began, the first thing that the prosecutor did was to speak of the validity of the evidence obtained from the military court. The Commission alleged that the evidence used in the illegal military proceedings was the basis of the applicant’s conviction by Peru’s ordinary criminal court, and that the conviction by the criminal court was therefore in violation of the Convention as well.
The Inter-American Court of Human Rights found, inter alia, that the conditions of detention in the Yanamayo penitentiary involved cruel and inhumane treatment, and it recommended that Peru close the facility. It also found that the conditions imposed on Ms. Berenson by the Yanamayo facility as a result of the military trial were cruel, inhumane and degrading treatment in violation of Article 5 of the Convention. The Court also found that Peru violated Articles 8 and 9 of the Convention, given that the manner in which the military court carried out the trial was incompatible with the guarantees of due process under the Convention, and further, because the military court’s sentencing of the applicant was carried out on the basis of legislation that was incompatible with the Convention. However, the Court found that it was not shown that the applicant’s sentence in the ordinary criminal court was incompatible with Article 9 of the Convention. It noted that while the Court has found the crime of high treason incompatible with the Convention, Peru’s criminal court did not sentence the applicant for this crime. It found that the formulation of the crime of collaboration of terrorism as applied by the criminal court did not violate Article 9 of the Convention. Nor did it find that the proceedings in the criminal court violated the applicant’s rights to a fair trial or her right to be presumed innocent.
Judge Medina Quiroga dissented, noting that it appeared clear that the criminal court had used evidence wrongfully obtained by the military court, and that by refusing to consider the legality of the criminal court’s use of such evidence, the Inter-American Court of Human Rights was acting as if it were a higher court in Peru, one that is limited in its examination of evidentiary findings of lower courts, rather than a court of international human rights, charged with determining whether Peru complied with its international obligations. She observed that since this judgment was obtained invalidly, the reparation that should have been made was to free Ms. Berenson from prison.
International Centre for Settlement of Investment Disputes (ICSID):Empresas Lucchetti, S.A. and Lucchetti Peru, S.A. v. Republic of Peru (February 7, 2005) Click here for the decision.
The tribunal dismissed the investor’s claims for lack of jurisdiction ratione temporis under Article 2 of the Peru-Chile Bilateral Investment Treaty (“BIT”). The first claimant, Empresas Luchetti, S.A., is a Chilean pasta producer. The second claimant, Luchetti Peru, is a company that was established to supply local and export markets in Peru. The claimants submitted that they obtained all necessary permits for construction of an industrial plant, but the Municipality of Lima annulled the permits for the second claimant, basing the annulment of the permit on environmental problems and deficiencies in the granting of the permits. According to the claimants, Lucchetti Peru’s plant is constructed near, although not within, a protected wetland called los Pantanos de Villa. It submitted two environmental impact studies, and the second one was approved by the Instituto Nacional de Recursos Naturales (INRENA). INRENA also required that Lucchetti Peru comply with various environmental requirements, and Lucchetti Peru was subsequently monitored periodically for environmental compliance. The claimants contended that the plant was always found to have been in compliance, and it enjoyed an ISO 14.001 international certification. The Municipality of Chorrillos granted Luchetti Peru its operating license in December 1999, and it developed its business until August 22, 2001, when the Council of Lima’s Municipality revoked its license through Acuerdos de Consejo 258 and 259, “Ordering that the Council of the Municipality of Lima request the Congress of the Republic to declare the preservation, maintenance and protection of the Ecological Reserve of Pantanos de Villa a matter of public necessity.”
The claimants argued that the acts of Municipality of Lima were attributable to Peru and that Peru is responsible for complying with its obligations in accordance with the Peru-Chile BIT to protect their investment. Peru contended that since the BIT did not apply to investment disputes arising prior to its entry into force (August 3, 2001), the investment dispute brought by the claimants was outside of its jurisdiction, as their dispute began in 1997-1998, and was of a continuing nature. Peru contended that the claimants began construction of their plant without obtaining the proper approvals, and that opposition to the construction of the plant began in 1997 by the mayor of Lima. There were a series of administrative measures that followed, including a stop work notice. The claimants then initiated judicial proceedings in Peru in 1998, resulting in four judgments in favor of the claimants. Whereas the claimants contended that these judgments were res judicata and constitute an earlier, separate dispute, Peru argued that these judgments merely “suppressed” a continuing dispute, and that the judgments were obtained under corrupt circumstances and should not be given any weight with an ICSID tribunal.
The tribunal found that the adoption of the decrees in 2001 was directly related to the issues that gave rise to the 1997/98 dispute, “the municipality’s stated commitment to protect the environmental integrity of the Pantanos de Villa and its repeated efforts to compel Claimants to comply with the rules and regulations applicable to the construction of their factory in the vicinity of that environmental reserve.” The tribunal also concluded that, as for the time that elapsed between 1998 and the 2001 decree, “that fact alone will not transform an ongoing dispute into two disputes, unless the evidence indicates that the earlier dispute had come to an end or had not yet crystallized into a dispute.” The tribunal concluded that the claimants could not show that there were separate disputes, and that as a result, they were in the same situation as if the BIT had never come into existence.
United States (U.S.) Supreme Court: Jama v. Immigration and Customs Enforcement (January 12, 2005) Click here for the decision.
The U.S. Supreme Court held that 8 USC §1231(b)(2)(E)(iv) permits an alien to be removed to a country without the advance consent of that country’s government. Justice Scalia delivered the opinion of the Court.
The petitioner, Keyse Jama, was born in Somalia and remains a Somali citizen. He was admitted to the United States as a refugee, but his refugee status was terminated in 2000 as a result of his criminal conviction. The Immigration and Naturalization Service (INS) brought an action to remove him for having committed a crime of moral turpitude. Although the petitioner conceded that he was subject to removal, he sought relief from that determination such as adjustment of status, withholding of removal, relief under the Convention Against Torture and asylum. The petitioner declined to designate a country to which he preferred to be removed. The immigration judge ordered that he be removed to Somalia, as it was his country of birth and citizenship. The Board of Immigration Appeals affirmed that determination. The petitioner did not seek review of that determination in the Court of Appeals, rather, he instituted collateral proceedings under the habeas statute, 28 U.S.C. §2241, challenging the designation of Somalia as the country to which he would be removed. He claimed that given that Somalia had no functioning government, it could not consent in advance to his removal there, and that the U.S. Government was barred from removing him to Somalia absent such advance consent.
At issue before the Supreme Court (“the Court”) was the language of 8 USC §1231(b)(2), which sets forth the procedure by which the U.S. Attorney-General selects a destination for an alien’s removal. The Court found that the consent requirement relates only to situations where the normal removal options are “impracticable, inadvisable or impossible.” It held that “it would be a stretch to conclude that merely because Congress expressly directed the Attorney General to obtain consent when removing an alien to a country with which the alien lacks the ties of citizenship, nativity, previous presence, and so on, Congress must have also implicitly required him to obtain advance acceptance from countries with which the alien does have such ties.” The Court also held that silence from the government of Somalia regarding the petitioner’s deportation did not portend future mistreatment upon his return.
United Nations (U.N.) Security Council: Report of the Secretary-General on the Sudan (February 4, 2005)Click here for a link to recent Security Council reports.
The U.N. Secretary-General concluded that progress and cooperation to end the conflict and violations of human rights in the Sudan has been uneven, and that the number of civilians affected by the conflict has continued to grow at a rate that has outpaced the ability of humanitarian agencies to provide for their basic needs.
The U.N. Secretary-General issued this report pursuant to paragraphs 6, 13 and 16 of Security Council Resolution 1556, paragraph 15 of Security Council Resolution 1564 and paragraph 17 of Security Council Resolution 1574. In regard to the security situation in Sudan, the U.N. Secretary-General noted that in the past six months, the Sudanese government has progressively implemented some of the elements from a range of obligations in the security, human rights,
humanitarian and political spheres.
The U.N. Secretary-General referred, inter alia, to his earlier report of August 2004 (A/2004/703), and observed that initial moves on disarmament soon ended in September 2004, and that ever since there has been no evidence of any disarmament at all. Moreover, there has been no evidence that the Sudanese government has arrested the perpetrators of the attacks against civilians in accordance with the joint communiqué and resolution 1556 (2004). Over the last six months, fighting in Darfur involving Government forces, the armed movements and militia allied to the Government has continued.
In particular, the U.N. Secretary-General noted that on the eve of the next round of talks in Abuja on December 7, 2004, the Government began a series of offensive operations it termed “road clearing”, which in fact involved the burning of villages and looting, causing additional displacement of refugees. Such operations resumed in mid-January and coincided with militia attacks. The attack on Hamada village on January 13, 2005 involved the killing of large numbers of women and children. On January 26, more attacks occurred in Gereida and Shangil Tobai, the latter being currently under investigation by the African Union.
He further noted that although the incidence of killings of civilians has varied according to the slackening or intensification of military operations, January 2005 saw large-scale killings of civilians in villages in Southern Darfur, accompanied by reports of abduction and rape.
The Kyoto global warming agreement entered into force today, seven years after it was negotiated. It imposes limits on emissions of carbon dioxide and other gases. The agreement, negotiated in Kyoto, Japan in 1997 and ratified by 140 countries.
Center for Constitutional Rights’ Claim against Donald Rumsfeld dismissed (February 10, 2005)
The German Federal Prosecutor refused to launch investigations against Secretary of Defense Donald Rumsfeld and others with respect to claims related to the abuses in the Abu Ghraib prison in Iraq. On November 30, 2004, the New York-based Center for Constitutional Rights attempted to have Rumsfeld and others indicted under German criminal law. In his decision, the Prosecutor announces that the principle of subsidiarity outweighs the reasons for prosecution. Because the states primarily involved in the matter have a superior interest in the prosecution and are not “unwilling and unable” to prosecute the claims, no investigation will be launched by the German authorities.
Consumer and Human Rights Groups’ Request for Transparency and Amicus Curiae Participation in International Arbitration Proceedings Involving Argentina (January 27, 2005)
The Center for Legal and Social Studies (CELS), the Civil Association for Equality and Justice (ACIJ), Consumidores Libres Cooperativa Ltda. de Provisión de Servicios de Acción Comunitaria, Unión de Usuarios y Consumidores, and the Center for International Environmental Law (CIEL) have submitted a petition for transparency and participation as amicus curiae to an ICSID Tribunal hearing a case brought by Suez' subsidiary, Aguas Argentinas S.A., against Argentina.
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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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