Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law May 9, 2005
International Convention for the Suppression of Acts of Nuclear Terrorism (April 13, 2005)
The U.N. General Assembly unanimously adopted the International Convention for the Suppression of Acts of Nuclear Terrorism (the “Convention”) on April 13, 2005. The Convention is the thirteenth convention designed to combat terrorism, and is the first one adopted by the General Assembly since the terrorist attacks of September 11, 2001. The Secretary General of the U.N. will open the Convention for signatures on September 14, 2005.
Article 3 provides that the Convention shall not apply where the offense is committed within a single State, the alleged offender and the victims are nationals of that State, the alleged offender is found in the territory of that State and no other State has a basis under other provisions of the Convention to exercise jurisdiction.
Article 4(2) provides that “[t]he activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law are not governed by this Convention, and the activities undertaken by the military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.”
Article 4(4) also notes that the Convention is not designed to address the issue of the legality of the use or threat of use of nuclear weapons by States.
Articles 5 and 6 provide for the measures each State Party is to adopt including the establishment of criminal offenses under its national laws.
United Nations (U.N.) Convention on Jurisdictional Immunities of States and Their Property, Resolution A/RES/59/38 adopted by the United Nations General Assembly, Fifty-ninth session (December 2, 2004)
Click here for a link to the General Assembly Resolutions.
For more comprehensive analysis and background discussion of the U.N. Convention on Jurisdictional Immunities of States and Their Property, See David Stewart, Current Developments, The UN Convention on Jurisdictional Immunities of States and Their Property, 99 American Journal of International Law (AJIL), 194 (January 2005).
The U.N. General Assembly adopted the U.N. Convention on Jurisdictional Immunities of States and Their Property on December 2, 2004. The General Assembly stressed the importance of uniformity and clarity in the law of jurisdictional immunities of States and expressed its deep appreciation to the International Law Commission and the Ad Hoc Committee on Jurisdictional Immunities of States and Their Property.
The U.N. Convention on Jurisdictional Immunities of States and Their Property provides for a presumption of immunity, as supported by principles of customary international law.
Article 2 sets forth the definition of “State” as “(1) the State and its various organs of government; (ii) constituent units of a federal State or political subdivisions of the State, which are entitled to perform acts in the exercise of sovereign authority, and are acting in that capacity; (iii) agencies or instrumentalities of the State or other entities, to the extent that they are entitled to perform and are actually performing acts in the exercise of sovereign authority of the State.”
Article 4 of the Convention entitled “Non-retroactivity of the present Convention” provides that “the present Convention shall not apply to any question of jurisdictional immunities of States or their property arising in a proceeding instituted against a State before a court of another State prior to the entry into force of the present Convention for the States concerned.”
Article 10 provides that State immunity cannot be invoked for commercial transactions. Article 14 sets forth an exception for intellectual and industrial property, stating that States cannot invoke immunity in proceedings related to the determination of intellectual property rights, even if such rights are provisional in the forum State, or to an alleged infringement by the State in the territory of the forum State.
Unlike the U.S. Foreign Sovereign Immunities Act (FSIA), there is no exception to immunity for expropriation. Nor is there an exception for acts of state-sponsored terrorism, as appears in the FSIA.
Article 21 sets forth categories of property that shall not be considered as property intended for use by the State for other than government, non-commercial purposes. These categories include military property, property (including any bank account) intended to be used for diplomatic missions or missions to international organizations, property of the central bank or other monetary authority of the State, property forming part of the cultural heritage or scientific interest of the State.
The Convention was opened for signature on January 17, 2005 and will remain open for signature until January 17, 2007. So far, Austria, Morocco, Belgium and Portugal have signed the Convention. (Click here for more information on signatories)
Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (April 28, 2005)
The Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (the “Agreement”) states that the Contracting Parties recognize the importance of safety of ships and the right to navigation in accordance with the United Nations Convention on the Law of the Sea (“UNCLOS) of December 10, 1982 and the Agreement “reaffirm[s] the duty of States to cooperate in the prevention and suppression of piracy under the UNCLOS.”
On April 28th, 2005, Japan, Laos and Singapore signed and deposited the Agreement. Cambodia also signed the Agreement.
Article I employs the UNCLOS Article 101 definition of piracy as constituting any of the following acts:
(a) any illegal act of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship, or against persons or property on board such ship;
(ii) against a ship, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or intentionally facilitating an act described in subparagraph (a) or (b).
Article 3, concerning General Obligations, provides that each Contracting Party shall, in accordance with its national laws and in accordance with international law, take effective measures to prevent piracy and armed robbery against ships and to arrest pirates or persons who have committed robbery against ships.
Article 4 provides for the establishment of an “Information Sharing Center” that will be located in Singapore and will have a Secretariat and Governing Council. The Information Sharing Center will handle Requests for Cooperation from the Contracting Parties. Article 10 (2) provides that a Contracting Party may request another Contracting Party, either directly or through the Information Sharing Center, to take appropriate measures against persons or ships involved in piracy.
Article 17 provides that disputes “shall be settled amicably by the Contracting Parties concerned through negotiations in accordance with applicable rules of international law.”
The Government of Singapore is the depositary of the Agreement. The Agreement will be open for signature by the People’s Republic of Bangladesh, Brunei Darussalam, the Kingdom of Cambodia, the People’s Republic of China, the Republic of India, the Republic of Indonesia, Japan, the Republic of Korea, the Lao People’s Democratic Republic, Malaysia, the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Democratic Socialist Republic of Sri Lanka, the Kingdom of Thailand, and the Socialist Republic of Viet Nam. It will come into force 90 days after the date on which the tenth instrument of notification, by one of the above States, indicating the completion of its domestic requirements has been submitted to the depositary.
Text of the Agreement provided to the ILM Office by a Corresponding Editor.
The WTO Appellate Body (AB) issued its report on the complaints brought by Australia, Brazil and Thailand (the Complaining Parties). The AB upheld the Panel’s findings that the European Communities (EC) subsidized its sugar exports in violation of Articles 3 and 8 of the Agreement on Agriculture (the Agreement).
The AB also agreed with the Panel’s specific findings that the sales of surplus “C Beet” involved export subsidies in the meaning of Article 9.1 (c) of the Agreement and also affirmed that the high fixed prices of quota sugar allowed the sugar producers to export surplus sugar at below total cost of production.
The European Communities argued that the Complaining Parties were estopped from bringing claims with respect to the surplus sugar. The EC based this argument on the fact that the EC’s system of calculating quotas had been known to the members of the WTO for many years, but no member ever raised any concerns against this procedure. The AB held that, even assuming the principle of estoppel applied to the WTO dispute settlement system, the claims of the Complaining Parties would not be barred.
The Panel, due to constraints of judicial economy, had not issued findings on whether the export subsidies also violated the Agreement on Subsidies and Countervailing Measures (SCM Agreement). The AB concluded that the Panel erred in not addressing the claims under the SCM Agreement, but found that it did not have sufficient factual findings to complete its analysis.
Ukashu Nuru, a citizen of Eritrea, petitioned the court for review of the Board of Immigration Appeals’ (“BIA”) final order of removal, including the order denying his application for asylum, withholding of removal, and protection under the CAT. Article III of the CAT, which has been ratified and codified in 8 USC§1231 by the United States, provides that a state may not remove a person to another nation if there are “substantial grounds for believing that he would be in danger of being subjected to torture” in that nation. The immigration judge had concluded that Nuru was a credible witness, but denied him withholding of removal and his petition for political asylum on the grounds that Nuru would not suffer from torture on account of his political beliefs. Rather, the immigration judge concluded that Nuru would probably be prosecuted for deserting the army, a consequence that could not justify relief under CAT.
At his hearing before the immigration judge, Nuru testified that he was drafted into the Eritrean military service in July 1996 and following six months of training, was assigned to the front line of the Eritrean-Sudanese conflict where he served for a year. At a front line meeting in 1997, his battalion commander instructed the soldiers to continue fighting what had become a losing battle against the Sudanese forces, who were much better equipped, despite substantial casualties suffered by the Eritrean army. Nuru voiced his opposition to the war to the battalion commander. Following Nuru’s protest, he was stripped and bound in a “helicopter” position, beaten and left outside in the desert sun for twenty-five days, during which time he was given very little to eat and drink. After sustaining physical injuries, he received some medical attention, and, rather than return to the camp, fled first to his parents’ home, then to a relative in Ethiopia, then to Italy, and finally to the United States where he sought asylum. Following Nuru’s escape, the Eritrean military searched his parents’ home looking for him, seized his two brothers as accessories in his desertion, and forcibly closed his father’s business. According to Nuru, his brothers have not been heard from since. Before the immigration judge, Nuru asserted that if he were forced to return to Eritrea, he would likely be executed or tortured.
The immigration judge concluded that Nuru was a common deserter and that his fear of being punished as a deserter, a lawful punishment by an official authority, upon return to Eritrea did not give rise to relief under CAT. The ninth circuit disagreed. In reviewing Nuru’s CAT claim, the court concluded that the treatment he received following his protest of the war amounted to torture on account of his political opinion. It also examined the U.S. State Department’s Report for Eritrea which noted several human rights violations committed by the Eritrean military and police. In regard to the exception to torture under CAT which excludes “pain or suffering arising only from, inherent in or incidental to lawful sanctions” from the definition of torture, the court disagreed with the immigration judge’s reasoning. It noted that because the CAT does not provide a definition of “lawful sanctions”, the U.S. Senate was concerned that when it ratified the CAT the “lawful sanctions” exception could be interpreted too broadly. Although the U.S. Senate did not adopt a reservation defining the term, it did qualify its ratification of the CAT with the understanding that a state “could not through its domestic sanctions defeat the object and purpose of the Convention to prohibit torture.” (136 Rec. 36, 198 (1990)) The court further observed that the Attorney General promulgated implementing regulations defining “lawful sanctions” as “judicially imposed sanctions and other enforcement actions authorized by law, including the death penalty, “ but only as long as those sanctions do not defeat the object and purpose of CAT to prohibit torture. The court found that to find that the punishment Nuru received in Eritrea was lawful would defeat the object and purpose of CAT, and that torture could never be a lawful means of punishment. The fact that Nuru would be subject to punishment as a deserter in addition to his well-founded fear of being tortured on account of his political beliefs could not preclude relief under CAT.
The award was based upon the claim of Maria Altmann (born Bloch-Bauer) to the account of Ferdinand Bloch-Bauer. The award compensates the heirs of Ferdinand Bloch-Bauer and Otto Pick, who were two of the major shareholders of Osterreischische Zuckerindustrie AG (OZAG), for losses they incurred as a result of a Swiss Bank’s breach of a Syndicate Agreement and its complicity in the Nazi’s confiscation of their property.
Prior to 1938, the Jewish owners of more than 50 percent of OZAG’s shares entered into a Syndicate Agreement with a Swiss Bank. They transferred their shares to the Bank’s name and provided, in accordance with the Syndicate agreement, that the Bank could not sell or transfer these shares without the unanimous agreement of the beneficial owners.
The CRT concluded that the Bank actively assisted in the forced sale of their OZAG shares by unlawfully transferring those shares that were held by the Bank to a designated Nazi purchaser at a small fraction of the shares’ value, without having obtained unanimous consent of the parties to the Syndicate agreement. The CRT’s award, of approximately $22 million, has been the largest one given since the $1.25 billion fund was established by a consortium of Swiss banks. The Executive Summary of the Opinion States:
“While this Award is unique in size, it is, unfortunately, representative of several general findings of the CRT. First, this Award is merely a striking example of the widespread betrayal of Jewish clients by Swiss banks. Having marketed themselves to the Jews of Europe as a safe haven for their property, Swiss banks repeatedly turned Jewish-owned property over to Nazis in order to curry favor with them. Second, this Award is striking in that no record of the rise and fall of the OZAG Syndicate was found in the Bank’s records. Rather, the documents upon which this award is based were submitted by the Claimant and/or obtained by the CRT from archival sources. We will never know how many other examples of betrayal were buried in the records of the 2,757,950 accounts (of the 6,858,116 opened in Swiss Banks between 1933-1945) the Banks concede they have destroyed completely or would have been found in the remaining accounts for which only fragmentary records survive. …”
The process of the Claims Resolution Tribunal (CRT) for Swiss Bank Account Cases was established pursuant to three documents: (1) the Settlement Agreement in the Holocaust Victim Assets class action litigation in the U.S. District Court for the Eastern District of New York, Chief Judge Edward R. Korman presiding; (2) the Final Order and Judgment of the Court approving the Settlement Agreement of July 26, 2000 (as corrected on August 2, 2000); and (3) the Plan of Allocation and Distribution proposed by Special Master Judah Gribetz, approved by Judge Korman on November 22, 2000, and upheld by the United States Court of Appeals for the Second Circuit on July 26, 2001. Click here for more information on the history and process of the CRT.
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