Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law March 19, 2005
World
Trade Organization (WTO) Appellate Body Report: United
States-Subsidies on Upland Cotton (March 3, 2005)
The
Appellate Body report is available on WTO Appellate
Body’s website.
The
Appellate Body upheld most of the Panel’s earlier
findings. The Appellate Body found, inter alia,
that Step 2 payments to domestic users of U.S. upland
cotton are subsidies contingent on the use of domestic
over imported goods that are inconsistent with Articles
3.1(b) and 3.2 of the SCM Agreement. It also found
that Step 2 payments to exporters of U.S. upland cotton
are subsidies contingent upon export performance within
the meaning of Article 9.1(a) of the Agreement on Agriculture
that are inconsistent with Articles 3.3 and 8 of the
SCM Agreement. In terms of export guarantee programs,
the Appellate Body upheld the Panel’s finding
that production flexibility contract payments and direct
payments do not qualify as “green box” measures
in conformity with paragraph 6(b) of Annex 2 of the
Agreement on Agriculture and are therefore not exempt
from actions under Article XVI of GATT 1994 and Part
III of the SCM Agreement by virtue of Article 13(a)(ii)
of the Agreement on Agriculture. It also upheld several
of the Panel’s other findings, including its
finding that Step 2 payments to domestic users in addition
to several other domestic loan and assistance payments
granted “support to a specific commodity”,
namely, upland cotton, and that the U.S. price-contingent
subsidies constituted significant price suppression
within the meaning of Article 6.3(c) of the SCM Agreement.
The Appellate Body found it unnecessary, for the purposes
of resolving the dispute, to rule on the disputed phrase “world
market share” in Article 6.3(d) of the SCM Agreement.
European
Court of Human Rights (ECHR): Chamber Judgments in
Six Applications against Russia: Isayeva, Yusupovaand
Bazayeva v. Russia; Case
of Khashiyev and Akayeva v. Russia; Case
of Isayeva v. Russia (February
24, 2005)
The
judgments are available on the Court’s website.
These
Chamber judgments all relate to incidents which occurred
in Chechnya between October 1999 and February 2000.
The European Court of Human Rights (ECHR) ruled that
Russia, in all six cases, violated Article 2 (right
to life) and Article 13 (right to an effective remedy)
of the European
Convention on Human Rights (the Convention).
Applicants
Khashiyev and Akayeva complained about extra-judicial
executions of five members of their family by the
Russian military. Criminal investigations failed
to identify those responsible for the killings, however
a civil court ordered the Russian Ministry of Defense
to pay damages for the killings. The applicants claimed
that their relatives had been tortured and killed,
and alleged inter alia, a violation of Articles
2 and 13 of the Convention. The ECHR found it to
be established that the applicants’ relatives
were killed by servicemen and that the killings were
attributable to the State. As the Russian government
did not argue any reasons of justification, the ECHR
held that there had been a violation of Article 2
of the Convention. Moreover, the lack of an effective
criminal investigation also constituted a violation
of Article 2, in spite of the civil damages awarded.
Applicants
Isayeva, Yusupova, and Bazayeva complained about
the indiscriminate bombings by the Russian military,
which hit civilians who were trying to escape from
the fighting in Grozny through a “humanitarian
corridor” created to grant safe passage to
civilians. Isayeva was wounded due to the bombing,
and her two children and her daughter-in-law were
killed. Yusupova was also wounded and Bazayeva’s
carscontaining
the family’s possessions were destroyed. The
applicants claimed that the bombing violated their
rights under Articles 2 and 3 of the Convention,
and Bazayeva also claimed a violation of Article
1 of Protocol 1 (protection of property). Russia
argued that the pilots could not have seen the civilians
and that the bombings were justified under Article
2 § 2 (a) of the Convention. The Court determined
that the Russian authorities should have known about
the “humanitarian corridor” and should
have exercised “extreme caution as regards
the use of lethal force”. The failure of the
authorities to plan and execute the attack with the
requisite care for the lives of the civilian population
constituted a violation of Article 2, however the
bombings did not give rise to a separate issue under
Article 3 of the Convention.
Applicant
Isayeva also complained about indiscriminate bombing
of her village, during which her son and three nieces
were killed. The applicant claimed a violation of
Article 2 and Article 13, as she alleged that the
investigation was ineffective and that she did not
have access to an effective remedy. Russia argued, inter
alia, that the attack was legitimate under Article
2 § 2 (a), as it was “absolutely necessary
and proportionate to suppress the active resistance
of the illegal armed troops”. The Court found
that Russia, due to the lack of planning this attack
with the prerequisite care for the lives of the civilian
population, had violated Article 2 of the Convention.
Moreover, the Court held that the ineffectiveness
of the investigations also constituted a violation
of Article 2 of the Convention.
U.S.
District Court for the Eastern District of New York: In
re “Agent Orange” product Liability Litigation;
The Vietnam Association for Victims of Agent Orange/Dioxin
et al. v. Dow Chemical et al. (March 10, 2005)
Decision
available on Lexis.
The
U.S. District Court for the Eastern District of New
York (“the Court”) dismissed the case.
The
complaint was brought by Vietnamese nationals and an
association against manufacturers such as Dow Chemical
for injury resulting from the United States’ use
of herbicides during the Vietnam War. The plaintiffs
alleged that the defendant manufacturers were liable
under U.S. law and international law.
In
regard to the international law claims, the plaintiffs
relied on the Alien Tort Statute “ATS”,
28 U.S.C. §1350 as a basis of jurisdiction, and
also alleged that the defendants’ acts were unlawful
under the Torture Victim Protection Act “TVPA”,
28 U.S.C. §1350, the War Crimes Act, 18 U.S.C. §2441,
the 1925 Geneva Protocol for the Prohibition of the
Use of War in Asphyxiating Poisonous or Other Gases,
and of Bacteriological Methods of Warfare; Article
23 of the Annex to the Hague Convention IV, Respecting
the Laws and Customs of War on Land, signed October
18, 1907; Geneva Convention relative to Protection
of Civilian Persons in Time of War, signed at Geneva
on August 12, 1949; Agreement for the Prosecution and
Punishment of the Major War Criminals of the European
Axis and Charter of the International Military Tribunal
at Nuremberg, signed and entered into force on August
8, 1945.
In
regard to the Alien Tort Statute, the Court cited the
U.S. Supreme Court decision in Sosa v. Alvarez Machain,
and emphasized that “Congress intended the ATS
to furnish jurisdiction for a relatively modest set
of actions alleging violations of the law of nations.” It
further found that the “imprecise scope of the
Hague Convention IV’s prohibition on the use
of‘poison or poisoned
weapons’ and the uncertainty as to whether that
prohibition even applies to lethal chemical weapons
designed to kill human beings, is fatal to any claim
that the [Hague] Convention [IV] sets forth a sufficiently
definite prohibition on military use of herbicides
that could be enforced in United States courts.”
Although
the Court found that corporations could not be exonerated
from civil legal actions under international law, it
concluded that in this case, the heart of the plaintiffs’ claims
was based upon the [U.S.] Government’s decision
to procure the products at issue, in addition to the
military decisions regarding the precise nature of
their use. Therefore, according to the Court, rather
then simply seeking to hold the defendants’ liable
for their own alleged negligence in the manufacture
of Agent Orange, the plaintiffs essentially sought
to hold the defendants liable for the decisions made
by the President regarding the manner in which to prosecute
the war in Vietnam.
The European Court of
Justice (ECJ) held that a legal person cannot plead
before a national court the incompatibility of community
legislation with certain rules of the World Trade Organization
(WTO).
The
claimant, Van Parys NV, is a company established in
Belgium which has imported bananas into the European
Community from Ecuador for more than 20 years. In 1998
and 1999, the relevant Belgian authority (Belgisch
Interventie-en Restitutiebureau) refused to issue the
claimant import licenses for the full quantity for
which the claimant had applied. The Belgian authority’s
refusals were based on European Community regulations
governing the imports of bananas into the European
Community. The claimant challenged the acts of the
Belgian authorities before the Belgian Raad van State
and argued that the European Community regulations
in question (Regulation EEC No. 404/93, as amended,
and Regulations Nos 2362/98, 2806/98, 102/1999 and
608/1999) were illegal in light of the WTO Rules and
in light of the WTO’s decision that such legislation
was incompatible with WTO rules.
The
ECJ pointed out that WTO rules are not among the rules
that the ECJ must take into account when reviewing
European Community measures. The ECJ held that it is
only in the event that the European Community has intended
to implement a particular obligation assumed in the
context of the WTO, or where the European Community
measure expressly refers to provisions of the WTO agreements
that it is able to review the legality of the European
Community measures in
light of WTO Rules. In regard to GATT 1947, it referred
to Case 70/87 Fediol v Commission [1989]
ECR 1781, paragraphs 19 to 22, and Case C-69/89 Nakajima v Council [1991]
ECR I-2069, paragraph 31, and, as regards the WTO agreements, Portugal v Council,
paragraph 49, and Biret International v Council,
paragraph 53).
The
ECJ found that in the absence of a resolution mutually
agreed between the parties and compatible with the
agreements in question, the main purpose of the dispute
settlement system is in principle, according to Article
3(7) of the Understanding
on Rules and Procedures Governing the Settlement of
Disputes (“DSU”), to secure the withdrawal
of the measures in question if they are found to be
inconsistent with the WTO rules. It also noted that
such provision further provides that where the immediate
withdrawal of the measures is impracticable, compensation
may be granted or the application of concessions or
the enforcement of other obligations may be suspended
on an interim basis pending the withdrawal of the inconsistent
measure.
The
ECJ also referred to Article 22(2) of the DSU which
provides that if the Member concerned fails to enforce
those recommendations and decisions within a reasonable
period, if so requested, and within a reasonable period
of time, it is to enter into negotiations with any
party having invoked the dispute settlement procedures
with a view to agreeing compensation. If no satisfactory
compensation has been agreed within 20 days after the
expiry of the reasonable period, the complainant may
request authorization from the WTO’s Dispute
Settlement Body to suspend, in respect of that member,
the application of concessions or other obligations
under the WTO agreements.
The
ECJ concluded that to require European Community Courts
to apply directly WTO Rules in order to ensure conformity
of European Community law with WTO rules would deprive
the legislative or executive bodies of the European
Community of the possibility of negotiated settlement.
Rwandan
courts begin hearings in genocide case (March 10,
2005)
Traditional
community courts in Rwanda have begun trying people
accused of involvement in the 1994 genocide. The so-called “gacaca” courts
will relieve the overwhelmed conventional courts of
their caseload. Approximately 12,000 courts have been
set up for this reason, and the hearings have begun
in more than 100 locations. Under gacaca tradition,
the suspects have to represent themselves and are tried
where they allegedly committed the crimes. The highest
sentence the gacaca courts can hand down is life imprisonment.
ICC
holds status conference on Democratic Republic of
Congo (March 15, 2005)
The
International Criminal Court (ICC) convened a status
conference with the Prosecutor on the investigation
in the Democratic Republic of Congo. The hearing, which
was held in closed session, was to focus on war crimes
allegedly committed in the Democratic Republic of Congo.
Kosovo
Prime Minister charged with war crimes (March 8,
2005)
The
Prime Minister of Kosovo, Ramush Haradinaj, has been
indicted for war crimes by the International Tribunal
for the Former Yugoslavia (ICTY). Haradinaj was a commander
in the Kosovo Liberation Army (KLA), and is now charged
with crimes against humanity and violations of the
laws and customs of war. He resigned from his position
as Prime Minister to face his trial in The Hague.
Bosnia’s
war crimes court will ease the burden of the International
Criminal Tribunal for the Former Yugoslavia (ICTY)
by taking some of its caseload. The ICTY will end its
work in 2010, and from that date the domestic courts
will take over all the remaining cases. The new court,
mainly staffed by international judges and prosecutors,
will review about 1,000 cases now pending in lower
level Bosnian courts and take over the ones considered
particularly sensitive. Before the establishment of
the new war crimes court Bosnian courts have only been
able to try low-profile war crimes cases after receiving
approval by the ICTY. The Bosnian war crimes court
will apply the Bosnian criminal code.
ILIB is a free-of-charge electronic resource. To sign up for ILIB or ASIL Insights, click here.
To comment on this publication, send an e-mail message to Ruth Teitelbaum, ILM Managing Editor at rteitelbaum@asil.org
