Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law April 12 , 2005
Hague Conference on Private International Law: Working Draft of a Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (October 19-22, 2004)
Article 1 of the Working Draft of a Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (“Working Draft Convention”) provides that it aims to “(a) establish a comprehensive system of co-operation between the authorities of the Contracting States for the international recovery of child support and other forms of family maintenance, including the establishment of parentage when required for such purpose” and “(b) to provide for the recognition and enforcement of maintenance decisions.”
Article 10 of the Working Draft Convention covers the scope of applications that may be made for recovery of child support and other forms of family maintenance, including, (1) recognition or recognition and enforcement of a decision made in a Contracting State; (2) enforcement of a decision made in the requested State. In regard to (2), enforcement of a decision made in the requested State, the Drafting Committee included a footnote which sets forth its wish to draw the attention of the Plenary to a question that has so far not been addressed: “May an application to enforce a decision in a requested State extend also to the enforcement of a decision made in a non-Contracting State which is entitled to recognition [or has been recognized] in the requested State?”
Article 15 sets forth the bases for recognition and enforcement of maintenance decisions, and notes in section 3 that “[a] decision shall be recognized only if it has effect in the State of origin, and shall be enforced only if it is enforceable in the State of origin.” Article 17 sets forth five grounds for refusing recognition and enforcement: “[1] if recognition or enforcement of the decision is manifestly incompatible with the public policy (“ordre public”) of the State addressed; [2] if the decision was obtained by fraud in connection with a matter of procedure; [3] if proceedings between the same parties and having the same purpose are pending before an authority of the State addressed and those proceedings were the first to be instituted; [4] if the decision is incompatible with a decision rendered between the same parties and having the same purpose, either in the State addressed or in another State, provided that this latter decision fulfils the conditions necessary for its recognition and enforcement in the State addressed; or [5] if the respondent did not have proper notice of the proceedings and an opportunity to be heard, or did not have proper notice of the decision and the opportunity to challenge it.”
World Trade Organization (WTO) Appellate Body Report: United States-Measures Affecting the Cross-Border Supply of Gambling and Betting Services (April 7, 2005)
The Appellate Body (“AB”) overturned many findings of the Panel report, holding that the measures adopted by the United States were covered by the “moral exception” of Article XIV (a) of the General Agreement on Trade in Services (“GATS”). The complaint brought by Antigua and Barbuda (“Antigua”) concerned certain measures of state and federal authorities in the United States that allegedly made it unlawful for suppliers located outside the United States to provide gambling and betting services to consumers within the United States.
Antigua challenged three U.S. federal laws, the Wire Act, the Travel Act, and the Illegal Gambling Business Act (“IGBA”), as well as several state laws. The AB found that Antigua had failed to make a prima facie case with respect to the state laws, and that the Panel therefore erred in deciding on these laws. The United States argued that by excluding “sporting” from its GATS Schedule, it had also excluded gambling and betting, because “sporting” included gambling and betting. The AB confirmed the findings of the Panel that “the United States’ schedule under the GATS includes specific commitments on gambling and betting services.”
The AB then turned to the question of whether the provisions of Article XIV of the GATS could justify the measures adopted by the United States. The AB noted that previous decisions under Article XX of the GATT 1994 were relevant to its analysis under Article XIV of the GATS, and it observed that this case was not only the first instance where the Appellate Body has been called upon to address the general exceptions provision of the GATS, but also the first under any of the covered agreements where the Appellate Body has been requested to address exceptions relating to “public morals.” Concurring with the Panel, the AB held that the three federal laws were designed to protect “public morals and/or public order under Article XIV (a)” of the GATS. The AB then had to determine whether the measures were also “necessary” in the meaning of Article XIV (a) of the GATS. The Panel had decided that the United States had not “explored and exhausted all reasonably available WTO-compatible alternatives before adopting its WTO-inconsistent measure”, because it had failed to consult or negotiate with Antigua before imposing the measures. The AB overturned this finding and found that the Wire Act, the Travel Act, and the IGBA were “necessary” in the sense of Article XIV of the GATS.
Finally, the AB had to decide whether the prohibitions of the three federal laws were applied consistently to domestic as well as foreign providers. This was called into question by the Interstate Horseracing Act, which can be read to exempt domestic services suppliers from the prohibitions of the Wire Act, the Travel Act, and the IGBA. According to the AB, the US failed to prove that the Wire Act, the Travel Act, and the IGBA were applied consistently with the requirements of the chapeau of Article XIV of the GATS.
The Inter-American Court of Human Rights (“the Court”) unanimously held that it would not exercise jurisdiction over the forced disappearance of two young girls as this act occurred prior occurred prior to June 6, 1995, the date on which El Salvador deposited its instrument of recognition of the Court’s jurisdiction. However, the Court also unanimously held that some of the claims relating to the way in which El Salvador has failed to carry out an adequate investigation concerned facts that occurred after June 6, 1995, and it therefore concluded that it would exercise jurisdiction over such claims.
On June 2, 1982, two young sisters, Ernesta and Erlinda Serrano Cruz, who were 7 and 3 years old, respectively, were captured by soldiers during a military operation known as “Operation Clean-Up,” and their whereabouts continue to be unknown.
On June 14, 2003, the Inter-American Commission lodged a complaint against El Salvador claiming violations of Article 4 (Right to Life), 7 (Right to Personal Liberty), 18 (Right to a Name) and 19 (Rights of the Child) as they relate to Article 1.1 of the American Convention on Human Rights (the “American Convention”).
The Court stated that its jurisprudence has established the principle that forced disappearance is a crime against humanity, one that generates a continued multitude of violations of rights protected under the American Convention.It further held that the international responsibility of a State is further heightened when forced disappearance has been a practice applied by the State. It found that in such a case, when the State fails to adopt the necessary measures to investigate the crime and punish its culprits, it violates the American Convention.
The Court concluded, inter alia, that it would exercise jurisdiction over claims that El Salvador violated Articles 8 (Right to a Fair Trial) and Article 25 (Right to Judicial Protection) as they relate to Article 1.1 (Obligation to Respect Rights) of the American Convention.
The U.S. Court of Appeals for the First Circuit (the “Court”) upheld the judgment of the district court, finding the defendant liable under the Alien Tort Claims Act (“ATCA”), 28 U.S.C. §1350 and the Torture Victim Protection Act*, (“TVPA”) 28 U.S.C. § 1350 note (1991).
Winston Cabello (Cabello), a Chilean economist, was killed by Chilean military officers following a coup d’état on October 17, 1973.On October 18, 1973, a local Chilean newspaper published an official statement of the Chilean government, falsely indicating that thirteen political prisoners had been killed while attempting to escape during detention. When President Patricio Aylwin replaced General Pinochet’s regime in 1990, the Chilean government granted requests to exhume the bodies of the thirteen political prisoners. These exhumations revealed that many of the victims were slashed with corvos ( a type of knife). Between 1973 and 1990, Chilean military officials deliberately concealed Cabello’s burial location from his family.
On February 19, 1999, Cabello’s survivors filed an action in a U.S. district court against Armando Fernandez-Larios (Fernandez), a Chilean military officer who was alleged to have participated in his execution. Cabello’s survivors filed this lawsuit pursuant to the ATCA and the TVPA. They alleged that Fernandez participated in Cabello’s extra-judicial killing, torture, crimes against humanity, and cruel, inhuman or degrading punishment. A jury trial resulted in a verdict in favor of the Cabello survivors and in an award of $3 million dollars in compensatory damages and $1 million dollars in punitive damages. On appeal, Fernandez contended, inter alia, that (1) the claims were barred by the statute of limitations; (2) that he did not have any command responsibility and did not personally participate in the alleged human rights violations.
In regard to Fernandez’s statute of limitations argument, the Court found that equitable tolling applied. It contrasted the present case with its most recent decision in Arce v. Garcia, where it recently found that the ongoing civil war in El Salvador and the defendants’ pattern of denial of responsibility were insufficient to equitably toll the statute of limitations. In Cabello’s case, the Court found that it was not until 1990 that the survivors obtained knowledge of the manner of death. It noted that the Chilean government concealed both the manner in which Cabello died and the place of his burial, and that such cover-up events made it nearly impossible for the Cabello survivors to discover the abuses perpetrated against Cabello.
In terms of Fernandez’s liability under the ATCA and the TVPA, the Court noted that the ATCA and the TVPA are not limited to claims of direct liability, but also reach conspiracy and accomplice liability. In support of this conclusion the Court cited the U.S. Senate Report which relies on several international agreements that contemplate liability for indirect responsibility, including Article 4(1) of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Court found that there was sufficient evidence to support the jury’s finding of direct liability and indirect liability on the part of Fernandez.
*The decision erroneously refers to the statute as the “Tort Victim Protection Act”.
The U.S. Court of Appeals for the First Circuit upheld the default judgment entered against the Palestine Liberation Organization (the “PLO”) and the Palestine Authority (the “PA”) by the Rhode Island district court, finding, inter alia, that Palestine was not a state and therefore the PLO and PA could not assert sovereign immunity.
The background to the case concerns a terrorist attack which occurred in Israel on June 9, 1996, resulting in the death of Yaron Ungar (a citizen of the United States), his wife and infant son. The victims were leaving a wedding when they were shot by members of Hamas Islamic Resistance Movement. The Israeli authorities apprehended the assailants and an Israeli court convicted all of them.
On March 13, 2000, the administrator of the estates of Mr. and Mrs. Ungar filed suit in the U.S. District Court for the District of Rhode Island pursuant to the Anti-Terrorism Act (ATA), 18 USC §§2331-2338. The statute sets forth a cause of action in favor of any “national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors or heirs.” The statute further provides that venue may be in any district court where the plaintiff resides and the plaintiff may recover treble damages, costs and attorney fees.
The defendants asserted that the court could not entertain the suit as it concerned a non-justiciable political question, and further contended that they were immune from suit under sovereign immunity. In regard to the non-justiciable argument, the Court noted that “it is the relationship between the judiciary and the coordinate branches of the Federal Government…which gives rise to the ‘political question’” and further observed that not “every case or controversy which touches foreign relations lies beyond judicial cognizance.” It found that the defendants were organizations that allegedly violated the ATA, and that it was within its jurisdictional mandate to determine the defendant’s liability.
In terms of sovereign immunity, the Court noted that neither the Foreign Sovereign Immunities Act (“FSIA”) nor the ATA defined “foreign state” as it relates to a sovereign power, nor was there any precedent in the first circuit as to the attributes of statehood in this context. It examined the standard set forth in the Restatement (Third) of Foreign Relations which deems a state to be “an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, formal relations with such other entities.” It observed that political recognition, typically thought of as “a formal acknowledgment by a nation that another entity possess the qualifications for nationhood” is not a prerequisite for finding statehood. It further concluded that the Palestinian Authority has not yet exercised sufficient governmental control over Palestine to satisfy the Restatement test.
United States (U.S.) District Court for the District of Columbia: Leonard Malewicz v. City of Amsterdam(March 30, 2005)
Decision is available on LEXIS.
The U.S. District Court for the District of Columbia (“the Court”) denied the City of Amsterdam’s motion to dismiss the case on jurisdictional grounds.
This case relates to paintings that had been lent by the City of Amsterdam (“the City”) to museums in the United States. The heirs of the artist, Kazimir Malewicz, seek the return of the artwork as well as damages.
In 1927, the artwork had been entrusted by the artist to various friends, one of whom later sold the artwork to the Stedelijk Museum in Amsterdam. The heirs claim that this purchase was invalid. In 2003 of the artwork in question was exported to the United States to be part of a temporary exhibition New York City and Houston. The Mutual Educational and Cultural Exchange program administered by the U.S. Department of State granted this exhibition immunity from seizure and other forms of judicial process that might have had the purpose or effect of depriving the museums of custody or control of the artworks while in the United States. However, the 35 heirs filed suit two days before the exhibit in Houston closed. The heirs tried to base jurisdiction on an exception to the Foreign Sovereign Immunities Act (FSIA), according to which foreign states are not immune when rights in property have been taken in violation of international law and the property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state. As to the violation of international law, the City argued that domestic (Dutch) remedies must be exhausted before bringing a claim. The Court adopted the argument of the heirs and found that due to the fact that the City contends that the statute of limitations bars the heirs’ claims in Amsterdam, the domestic remedies in the Netherlands are inadequate and therefore need not be exhausted. Rejecting an argument proposed by the City, the Court found that, although the State Department had granted immunity from seizure, the artwork was present in the United States for purposes of FSIA jurisdiction. In examining the question of commercial activity of the City by lending the artwork to the museums in the United States, the Court reiterates that the “nature” of the activity rather than the “purpose” determine whether it falls under the commercial activity exception of the FSIA. Finally, the Court found that the record did not permit the court to ascertain whether there were sufficient contacts to expose the City to FSIA jurisdiction. The motion of the City, however, was denied.
The U.N. Security Council, having determined pursuant to Chapter VII of the U.N. Charter that the situation in Darfur continues to constitute a threat to international peace and security, decided to refer the situation in Darfur since July 1, 2002 to the Prosecutor of the International Criminal Court (ICC). It also decided that the Government of Sudan, and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the ICC and the ICC’s Prosecutor pursuant to this resolution. It also recognized that while States not party to the Rome Statute of the ICC have no obligation under the Statute, it nonetheless urged all States and concerned regional and other international organizations to cooperate fully with the ICC.
The U.N. Security Council recognized that, in accordance with Article 16 of the Rome Statute, no investigation or prosecution by the ICC may be commenced until 12 months following a Security Council request to that effect. It further recognized that those persons coming from States not parties to the Rome Statute “shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union, unless such exclusive jurisdiction has been expressly waived by that contributing State.”
The anti-discrimination Protocol entered into force on April 1, 2005. The Convention for the Protection of Human Rights and Fundamental Freedoms currently only protects from discrimination with respect to rights set forth in the Convention. Protocol No. 12 extends this obligation to “any right set forth by law” and explicitly imposes this obligation on public authorities.
The Protocol has been ratified by Albania, Armenia, Bosnia and Herzegovina, Croatia, Cyprus, Finland, Georgia, Netherlands, San Marino, Serbia and Montenegro, and The Former Yugoslav Republic of Macedonia.
ASIL 2005 Annual Meeting Highlights: Transcript of Justice Ruth Bader Ginsburg’s Keynote Address; Transcript of Remarks by Secretary of State Condoleezza Rice (April 1, 2005)
·Click here for the transcript of Justice Ruth Bader Ginsburg’s keynote address
·Click here for the transcript of remarks by Secretary of State Condoleezza Rice
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To comment on this publication, send an e-mail message to Ruth Teitelbaum, ILM Managing Editor at rteitelbaum@asil.org
