Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law May 25, 2005
Article 2 of the Revised Regulations (the “Regulations”) states that “[t]he purpose and scope of these Regulations are to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade.”
The Regulations set forth detailed provisions on ways of reporting and information sharing between member States. It also sets forth provisions applying to international travel, transport, and shipment.
Article 4 provides that each State party shall designate a national International Health Regulations focal point for the implementation of health measures under these regulations.
The Regulations also provide that each State party shall develop the capacity to detect, assess and report events in accordance with these Regulations as soon as possible but no later than 5 years. The WHO shall assist countries, upon request, to develop these capacities.
Article 62 provides that States may make reservations to the Regulations, as long as such reservations are not incompatible with their object and purpose.
International Centre for Settlement of Investment Disputes (ICSID): CMS Gas Transmission Company v. The Argentine Republic (May 12, 2005)
Decision available on the CMS website , (Go to SEC Filings, then click on 8k on May 17)
The Tribunal held, inter alia, that Argentina failed to accord CMS Gas Transmission Company (“CMS”) fair and equitable treatment in violation of Article II(2) of the Argentina-U.S. Bilateral Investment Treaty (“Treaty” or “BIT”). The Tribunal dismissed CMS’s claim for expropriation.
The background to the case concerns Argentina’s energy privatization incentives in the early 1990s, which included allowing tariffs to be calculated in dollars and then converted into pesos at the prevailing exchange rate, and to adjust tariffs every six months to reflect changes in inflation. TGN was one of the state-owned companies that was privatized. CMS’s acquisition of TGN represented almost 30% TGN’s shares. Following a severe economic crisis towards the end of the 1990s, the Argentine government called for a meeting with the representatives of the gas companies in order to call for a temporary suspension of the US PPI adjustment of the gas tariffs. They entered into an agreement with the Argentine government for the temporary suspension, with the understanding that this suspension would not be permanent nor affect the companies’ rights under their license agreements. Soon afterwards it was apparent that the agreement would not be implemented and the temporary suspension would not be lifted. Also, in 2001, the Argentine government introduced decree no. 1570/2001, which limited the right to withdraw deposits from bank accounts. Default was declared and several presidents succeeded one another in a matter of a few days. Argentina then enacted Emergency Law 25.561 on January 6, 2002, which introduced a reform of the foreign exchange system. CMS claimed that the aggregate of these measures harmed its investment, creating a cause of action by virtue of the BIT and the ICSID Convention. CMS argued that since no adjustment of tariffs has taken place since January 2000, and because tariffs may no longer be calculated in dollars, its domestic revenue has decreased by nearly 75%, among other losses attributable to the actions of the Argentine government.
Argentina argued, inter alia, that the privatization framework never guaranteed that a devaluation would not occur, and noted that the Board of TGN expressly warned in the investment prospectus that there were no assurances that changes in government policy would not affect the company. It also argued that the high tariffs calculated before the economic downturn factored in the risk of de-valuation. The Tribunal found that Argentina, in arguing that the tariff included both the devaluation as well as the country risks, simultaneously admitted that this risk was foreseeable and actually was foreseen, an argument that undermined its force majeure defense.
Argentina also relied on Article 25 of the Articles of State Responsibility developed by the International Law Commission in arguing that the measures it adopted were the only measures capable of safeguarding essential economic interests. The Tribunal observed that the issue of whether the measures taken were the only way for Argentina to safeguard its interests is debatable, and further noted that other exceptions and limitations to the Article 25 exception to State responsibility, such as contribution by Argentina to the economic crisis, had to be taken into consideration. The Tribunal found that Argentina’s defense on this ground could not be justified.
Argentina further relied on Article XI of the BIT which sets forth an Emergency Clause which states: “This Treaty shall not preclude the application by either Party of measures necessary for the maintenance of public order, the fulfillment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.” Argentina claimed that this clause provided the lex specialis governing emergency situations such as its economic crisis. The Tribunal concluded that this emergency clause was not self-judging, and that when States intend to create a right in a treaty to determine unilaterally the legitimacy of extraordinary measures which result in non-compliance with other obligations in that same treaty, they do so expressly. In this regard, the Tribunal cited the GATT, other examples in BITs, and cases from the ICJ such as the Nicaragua case. The Tribunal rejected Argentina’s argument on this ground, noting that even if its plea of necessity were accepted, it would have to comply with the other obligations in the Treaty as soon as the circumstances precluding the wrongfulness disappeared, which did not happen in this case.
Argentina also contended that CMS has not been substantially deprived of fundamental rights of ownership nor have any of its rights been rendered useless, and pointed to the Pope & Talbot v. Canada case and the CME v. Lauder case in support of its argument that CMS has in no way been deprived of its enjoyment of property, either directly or indirectly. Argentina persuaded the Tribunal to dismiss CMS’s expropriation claim. However, the Tribunal upheld CMS’s claim for violations of fair and equitable treatment under Article II(2) of the Treaty, noting that fair and equitable treatment is inseparable from stability and predictability. The Tribunal noted in this regard that there was no need to prove bad faith on the part of Argentina, rather, an objective assessment of whether the legitimate expectations of the investor were met could be made, and in this case, as in the Tecnicas Medioambientales case, the legitimate expectations that the host State act in a consistent manner were not met.
The Tribunal awarded compensation in the amount of $133 million, plus interest.
The full list of Claimant’s counsel may be found in paragraph 45 of the award.
Members of the Tribunal:
Francisco Orrego Vicuña, President
Marc LaLonde, Arbitrator
Francisco Rezek, Arbitrator
Dean Anne Marie Slaughter (former President of ASIL) and Professor José E. Alvarez (ASIL’s President elect, 2006) served as experts in this arbitration proceeding.
For more resources on International Arbitration, see EISIL.
This case concerns the application of Abdullah Öcalan, the former leader of the Kurdistan Workers’ Party (PKK), who is currently being incarcerated in prison in Turkey. The European Court of Human Rights (the “Court”), sitting as a Grand Chamber, found that Turkey violated, inter alia, Articles 3, 5, and 6 of the European Convention on Human Rights (the “Convention”).
The Turkish courts had issued arrest warrants against Öcalan, who was accused of founding an armed gang in order to destroy the integrity of the Turkish State and of instigating terrorist acts. In 1998, after being expelled from Syria, the applicant went to Kenya, where he was, under disputed circumstances, taken on board a Turkish aircraft and arrested by Turkish officials, who flew him to Turkey. After seven days of detention incommunicado, he was interrogated by security forces in the presence of a judge, where he made self-incriminating statements which were used against him on trial. Access to his lawyers was restricted and the meetings with his lawyers were either held with other people in the room or videotaped. Up to the date of the hearing held on January 4, 1999, Öcalan was not allowed access to the case file other than the indictment.
On 29 June 1999, the Ankara State Security Court with a military judge sitting on the bench, found the applicant guilty of carrying out actions aimed at the separation of a part of Turkish territory and of forming and leading an armed gang to achieve this goal and sentenced him to death. In 2002, Turkey abolished the death penalty in peacetime and Öcalan’s sentence was converted into life imprisonment.
The Court affirmed the Chamber’s findings that the applicant’s rights under Article 5 § 3 (right to liberty and security) of the Convention were violated due to his seven-day detention without being presented to a judge. The Grand Chamber held that the fact that a military judge sat on the bench prejudiced the Turkish State Security Court’s impartiality and independence. Finding the applicant’s access to the case file and his representatives inadequate, the Court also pronounced a violation of Article 6 of the Convention (right to a fair trial).
With respect to the imposition of the death penalty, the Court held that “it would be contrary to the Convention, even if Article 2 were to be construed as still permitting the death penalty, to implement a death sentence following an unfair trial,” and consequently found a violation of Article 3 (prohibition of torture). In terms of the applicant’s treatment and the detention conditions, the Court held that the solitary confinement and the restriction on the use of means of communication such as telephone and television did not amount to a violation of Article 3 of the Convention.
The Court stated that in principle, the best form of redress would be for the applicant to be given a retrial without delay, if he so requested.
International Criminal Tribunal for Rwanda (ICTR): The Prosecutor v. Mikaeli Muhimana (April 28, 2005)
Click here for a summary of the judgment on the ICTR.
Finding the accused guilty of genocide, the International Criminal Tribunal for Rwanda (ICTR) sentenced Mikaeli Muhimana to life imprisonment. The accused was charged under the Statute of the International Tribunal for Rwanda with genocide, alternatively, complicity in genocide, murder as a crime against humanity; and rape as a crime against humanity. All of the alleged events occurred between April and June 1994.
The Prosecution alleged the participation of Muhimana in attacks against Tutsi civilians and also accused him of luring civilian Tutsis out of their hiding places with the promise of medication, and then bringing armed assailants who killed more than two thousand people. The factors that led the ICTR to conclude that the accused had in fact the intent to destroy the Tutsi group in whole or in part as required by the Statute were the scale of the massacres, the number of assailants, and the great number of Tutsi civilians who died during these attacks. The ICTR also found Muhimana guilty of rape as a crime against humanity and murder as a crime against humanity. In determining the sentence, the ICTR took into account the provisions of the Rwandan criminal code regarding aggravating factors, as they were in effect at the material time. Muhimana was a well-known person and held a position of influence in the community, which would have allowed him to promote peace. Instead, he actively participated in the commission of crimes against Tutsi civilians, and the ICTR found this to be one of the aggravating factors in the determination of his sentence.
The Appeals Chamber of the International Criminal Tribunal for Rwanda (the “Appeals Chamber”) affirmed the conviction of Laurent Semanza (the “Appellant”) on charges of genocide and increased his sentence from 25 to 35 years’ imprisonment.
The Trial Chamber held that the Appellant provided substantial assistance to the principal perpetrators of the killings at Musha church, but did not find that there was sufficient evidence to prove that Semanza “ordered” the perpetrators to commit the killings. Accordingly, the Trial Chamber convicted the Appellant of complicity in genocide, while acquitting him of the crime of genocide. The Prosecution appealed with respect to this point and asked the Appeals Chamber to pronounce that the Appellant “ordered” the killings at Musha church, where a large number of Tutsi civilian refugees were killed by soldiers, gendarmes, and the Interahamwe militiamen. The Appeals Chamber found that the evidence did not support the findings of the Trial Chamber and entered a conviction for genocide with respect to the events at the Musha church. The Appeals Chamber noted that the superior-subordinate relationship under Article 6 (1) of the Statute of the International Criminal Tribunal for Rwanda (the “Statute”) “may be informal or of a purely temporary nature.” The Appellant raised 22 grounds of appeal relating, inter alia, to an apprehension of bias of the Trial Chamber, which the Appeals Chamber dismissed.
The Appeals Chamber also reversed the Trial Chamber’s findings with respect to charges of serious violations of Common Article 3 to the Geneva Conventions and Additional Protocol II under Article 4 of the Statute. The Trial Chamber held that it could not enter convictions for these acts due to the application of the law on cumulative convictions. The Appeals Chamber, noting that the jurisprudence on cumulation of convictions is settled, reiterated that “cumulative convictions under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other.” The Appeals Chamber held that convictions of war crimes under Article 4 of the Statute “require that the offences charged be closely related to the armed conflict,” and element not required for a conviction for crimes against humanity or genocide. The acquittal on the charges of serious violations of Common Article 3 of the Geneva Conventions and Additional Protocol II was reversed.
This case concerns the federal habeas corpus petition of Jose Medellin, a Mexican national, for review of his rights under the Vienna Convention on Consular Relations (the “Convention”). Medillin was tried and sentenced to death, a sentence which was affirmed by the Texas Court of Criminal Appeals. Medillin then filed a state habeas corpus action, claiming that he had not been notified of his right to consular access under the Convention. The trial court, as well as the Court of Criminal Appeals in Texas rejected this claim. Subsequently Medillin filed a federal habeas corpus petition, which was rejected by the District Court. The Court of Appeals denied the application for appealability, shortly after the Avena judgment was handed down by the International Court of Justice (“ICJ”), in which it held that the United States had breached its obligation under the Convention to inform 51 Mexican nationals (including Medilla), all of whom had been sentenced to death, of the right to consular notification. Few days before the oral argument at the Supreme Court, Medillin filed another state habeas corpus petition based on the Avena judgment as well as a memorandum filed by President Bush, which stated that the United States would discharge its international obligations under the Avena judgment “by having State courts give effect to the ICJ decision in accordance with general principles of comity.”
Stating that the “state proceeding may provide Medellin with the review and reconsideration of his Vienna Convention claim that the ICJ required,” the Supreme Court dismissed the writ as “improvidently granted.”
Justice O’Connor, joined by Justices Stevens, Souter and Breyer, filed a dissenting opinion in which she stated that she would “vacate the Court of Appeals’ decision to deny Medellin a certificate of appealability” and “remand for further proceedings.”
Click here for the Memorandum filed by President Bush to the Attorney General regarding the United States’ compliance with the Avena judgment.
Click here for more ASIL resources on the Avena case.
UN Commission on Human Rights: Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law(April 19, 2005)
The UN Commission on Human Rights approved a resolution on the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (the “Principles and Guidelines”).
The Principles and Guidelines describe the States’ obligations in cases of gross violations of international human rights law, which entail:
(1) the duty to investigate and
(2) the duty to submit to prosecution the person allegedly responsible for the violations, in case there is sufficient evidence and
(3) the duty to punish the person, if found guilty
Strong emphasis is placed on the fact that the Principles and Guidelines reiterate existing international law and do not create new rules and obligations. The text also stresses the duty of States to cooperate with one another in the investigation and prosecution of such violations. Moreover, the Principles and Guidelines name the obligation of the States to provide to the victims equal access to an effective judicial remedy. In addition, the Principles and Guidelines state that international law requires the States to make adequate, effective and prompt reparation available to the victims. The Commission further recommends that States, among other things, bring the Principles and Guidelines to the attention of members of the executive bodies of Government, such as law enforcement officials and military and security forces.
The United States initiated a roll-call vote, which resulted in 40 in favor to none against, with 13 abstentions, the United States’ vote being one of the abstaining votes.
For more resources on International Human Righs, See EISIL.
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To comment on this publication, send an e-mail message to Ruth Teitelbaum, ILM Managing Editor at rteitelbaum@asil.org
