Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law June 14 , 2005
International Centre for Settlement of Investment Disputes
(ICSID): Camuzzi International S.A. v. The Republic of Argentina (Decision
on Jurisdiction) (June 10, 2005)
The Tribunal concluded that it has jurisdiction over
a dispute brought pursuant to the Argentina-Luxembourg
Bilateral Investment Treaty ("BIT") and the ICSID
Convention.
The claimant, Camuzzi International S.A., ("Camuzzi")
a company incorporated under the laws of Luxembourg,
is the owner of 99.99% of the shares of Camuzzi Argentina
S.A., a company incorporated under the laws of Argentina.
It is holds a 40% share ownership of an Argentine
company, TRELPA S.A. and a 51% share ownership in
another Argentine company, the Empresa de Transporte
de Energía por Distribución Troncol
de la Patagonia ("TRANSPA"). Camuzzi invested in
these Argentine companies as part of the privatization
process of the Argentine electricity industry.
In terms of the requirements for submitting an arbitration
dispute before an ICSID tribunal, Camuzzi argued
that it could by-pass an 18-month waiting period
set forth in the BIT by virtue of the BIT's most
favored nation clause, and by application of more
favorable waiting periods in other BITs, such as
the one contained in the U.S.-Argentina BIT. The
Tribunal allowed Camuzzi to by-pass the 18-month
waiting period.
The claimant asked the Tribunal to declare, inter
alia, (1) that Argentina breached
Article 3(1) of the BIT for failure to afford
fair and equitable treatment to Camuzzi's investment
in Argentina's territory; (2) that Argentina
has violated Article 3(2) of the BIT by failing
to afford full security and protection of its
investment and for having impaired the use of
its investment, either de
facto or de
lege, by means of unfair and discriminatory
measures; (3) that Argentina has failed to afford
most favored nation treatment under the BIT and
in accordance with the minimum standard of international
law; (4) that Argentina took measures tantamount
to expropriation and failed to provide prompt,
fair and adequate compensation; and (5) that
Argentina violated Article 10(2) of the BIT for
having failed to comply with its contractual
undertakings. The claimant is seeking damages
of US$ 215,541,348 in compensation for expropriation.
Argentina raised several objections to jurisdiction,
arguing, inter
alia, that the claimant failed to meet
the nationality requirements of Article 25 of the
ICSID Convention. Also, like the respondents in GAMI v. Mexico,Enron v. Argentina and LGE Corp v. Argentina, Argentina in this case unsuccessfully
relied on the ICJ's decision in the Barcelona Traction case (Barcelona Traction, Light and Power
Co. Ltd. (Belgium v. Spain), Judgment of February
5, 1970, ICJ Reports 1970, 3) to
assert the argument that the shareholders could not
bring claims for injuries to the companies in which
they hold shares. The Tribunal held that the Barcelona Traction case referred to the
unique circumstances of diplomatic protection and
was inapplicable in the present context of investor-State
arbitration under a bilateral investment treaty.
Argentina also maintained that the investor's claims
were contractual claims and, moreover, subject to
forum selection clauses in the concession contracts,
citing SGS v. Philippines and the Vivendi annulment decision. The Tribunal
distinguished this case on the facts, noting that
Camuzzi was not a party to the concession contracts
containing the forum selection clauses.
The Tribunal allowed the case to proceed on the merits,
reserving its decision on costs for the merits phase.
Members of the Tribunal:
Enrique Gómez-Pinzón, President
Henri C. Alvarez
Héctor Gros Espiell
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investment.
The WTO Panel found that Mexico violated the Antidumping Agreement (the "AD Agreement") and that several
provisions of Mexico's Foreign Trade Act were inconsistent
with WTO rules.
This dispute concerns claims made by the United
States regarding the imposition of definitive anti-dumping
duties by Mexico on imports of "long-grain white
rice" and the Mexican Foreign Trade Act (the "Act").
The Panel found inter
alia that Mexico "acted inconsistently
with Articles 3.1, 3.2, 3.4, and 3.5 of the AD Agreement
by choosing to base its injury determination on a
period of investigation which ended more than fifteen
months before the initiation of the investigation." The
Panel stated that "there is necessarily an inherent
real-time link between the investigation leading
to the imposition of measures and the data on which
the investigation is based."
The second claim related to the data used by Mexico
in its injury investigation. The Mexican authorities
used data of only six months of each of the three
years examined, which was the peak period of import
for white rice. The United States submitted that
this calculation did not constitute "positive evidence" as
required by Article 3.1 of the AD Agreement. Mexico
argued inter
alia that the AD Agreement does not "provide
for any rules on how the period of investigation
for the injury analysis should be integrated in the
anti-dumping investigation. In its analysis of what constitutes an "objective
examination" in the sense of Article 3.1 of the AD
Agreement, the Panel referred to the US-Hot-Rolled Steel case, where the Appellate Body
held that the investigation must be conducted "in
an unbiased manner, without favouring the interests
of any interested party," in order to meet the requirements
of Article 3.1 of the AD Agreement. The fact that
the Mexican authorities chose to include only the
periods of high imports was, according to the Panel,
not a choice of an "unbiased and objective authority." The
Panel consequently found that Mexico acted inconsistently
with Articles 3.1 and 3.5 of the AD Agreement.
The United States also won on the claims regarding the
Mexican Foreign Trade Act, which the Panel found
to be inconsistent with several provisions of the
AD Agreement and the Agreement on Subsidies and Countervailing Measures ("the SCM
Agreement"). Among other things, the United States
challenged Article 64 of the Act, which required
the Mexican authorities to "determine a countervailing
duty on the basis of the highest margin of price
discrimination or subsidization obtained from the
facts available", where the producer failed to appear
at the investigation, or failed to provide
the necessary information, or had not exported the
products at issue during the period of investigation.
The Panel found that "by making a requirement to always
use the highest margin based on the facts available," "the
Act effectively prevents the authorities from using
the best information" available as required by Annex
II of the AD Agreement. Article 64 of the Act was
found to be in violation of Article 6.4 of the AD
Agreement, paragraphs 1,3,5, and 7 of Annex
II of the AD Agreement, as well as Article 12.7 of
the SCM Agreement.
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This case concerns the application of Mr. Wolfmeyer (the "applicant"),
an Austrian citizen, who had been convicted in the
first instance of having committed homosexual acts
with adolescents. The European Court of Human Rights (the "Court") held that there
has been a violation of Article 14 (prohibition of
discrimination) of the European Convention on Human Rights (the "Convention") taken
in conjunction with Article 8 (right to respect for
private and family life).
The applicant was convicted pursuant to Article 209 of
the Austrian Criminal Code, which penalized consensual
homosexual acts between "a male" over the age of
19 and "a person of the same sex who has attained
the age of 14 but not the age of 18." The Constitutional
Court, after referral to review the constitutionality
of Article 209 from the Innsbruck Court of Appeal,
held that the law was unconstitutional. Pursuant
to this decision, the applicant was acquitted. Although
the Constitutional Court found that Article 209 was
unconstitutional, it did not base its decision on
reasons of discrimination or incompatibility with
the Convention. The applicant complained to the Court
about Article 209 of the Criminal Code as well as
the proceedings that had been instituted against
him. Claiming a violation of his right to respect
for his private life and a violation due to the law
being discriminatory, the applicant relied on Article
8 of the Convention taken alone and in conjunction
with Article 14. In terms of admissibility, the Government
of Austria argued that the applicant was not a victim,
as he had been acquitted by the Court of Appeals.
The applicant argued that "the acquittal could not
remove the discrimination which lay in the mere conduct
of criminal proceedings against him." The applicant
further argued that he had not been granted any compensation
for the non-pecuniary damage he had suffered and
that he also had to bear most of the defense costs
he incurred. The Court reiterated that the applicant
would remain a victim for purposes of the Convention, "unless
the national authorities have acknowledged, either
expressly or in substance, and then afforded redress
for, the breach of the Convention." The Court found
that the national authorities had not acknowledged
in substance, the violation of the applicant's right,
and held that in any case, no adequate redress had
been granted by the national authorities. The Court
also pointed out that it was crucial for its determination
that the mere maintenance in force of Article 209
violated the Convention, an issue the Court had already
decided in S.L. v. Austria.
The Court held that the mere maintenance in force of
Article 209 as well as the conduct of the criminal
proceedings against the applicant violated his rights
under Article 14 taken in conjunction with Article
8. It also held that there was no need to examine
whether there had been a violation of Article 8 alone.
The applicant was awarded EUR 10,000 for non-pecuniary
damage and EUR 18,000 for costs and expenses.
Permanent Court of Arbitration: In the Arbitration Regarding the Iron Rhine ("Ijzeren
Rijn") Railway, between the Kingdom of Belgium
and the Kingdom of the Netherlands (May
24, 2005)
The Tribunal concluded, inter alia, that the Netherlands' domestic
environmental measures could not amount to a denial
of Belgium's transit right or render the exercise
of such right unreasonably difficult. The Tribunal
also held that "[e]nvironmental law and the law
on development stand not as alternatives but as
mutually reinforcing, integral concepts, which
require that where development may cause significant
harm to the environment, there is a duty to prevent,
or at least mitigate such harm. ... This duty,
in the opinion of the Tribunal, has now become
a principle of general international law. This
principle applies not only in autonomous activities
but also in activities undertaken in implementation
of specific treaties between the Parties."
The background to the case
concerns the "Iron Rhine," a railway linking the port
of Antwerp, Belgium, to the Rhine basin in Germany
via provinces in the Netherlands. The railway,
dating back to the 19th century, has
been in limited use until 1991. Since 1991, the
Iron Rhine has not been used for through traffic
between Belgium and Germany. In the 1990s, the
Government of the Netherlands took a number of
legal steps pursuant to its domestic legislation
to designate nature reserves, some of which lie
across the route of the Iron Rhine railway. Following
a Memorandum of Understanding in 2000, which provided
for the completion of environmental impact studies
in the framework of the reactivation of the railway,
Belgium and the Netherlands ("the parties") disagreed
as to the entitlement of Belgium, on the one hand,
to create a plan for reactivation of the use of
the railway, and the entitlement of the Netherlands,
on the other, to impose conditions, particularly
environmental regulations, specified under Dutch
law, for such reactivation of the use of the railway.
The legal instrument related
to the origin of the Iron Rhine is the Treaty between
Belgium and the Netherlands relative to the Separation
of their Respective Territories ("1839 Treaty of
Separation"). Belgium's right of transit across
Dutch territory was further elaborated in the 1873
treaty commonly known as the "Iron Rhine Treaty." The
arbitration agreement requested that an arbitral
tribunal interpret their rights pursuant to these
treaties as well as general principles of international
law, and possibly European Community ("EC") law.
In terms of applicable law, the
Tribunal concluded that Article XII of the 1839
Treaty of Separation continues to apply to the
present dispute. Although the Tribunal discussed
several aspects of EC law, it ultimately concluded
that it need not refer questions of EC law to the
European Court of Justice pursuant to Article 292
of the EC Treaty.
With respect to the Netherlands'
obligations under Article XII of the 1839 treaty
of Separation, the Tribunal concluded that the
Netherlands was entitled to apply its national
legislation for the reactivation of the Iron Rhine,
as long as this did not amount to a denial of the
right of transit by Belgium. Any measures prescribed
by the Netherlands would also have to follow generally
accepted principles of good faith and reasonableness
and could not render Belgium's transit right unreasonably
difficult.
In terms of the allocation of costs,
the Tribunal concluded, inter
alia, that the costs of environmental
protection measures could not be separated from
the other costs that were necessary for reactivating
the Iron Rhine, and that Belgium's obligations
to fund investments are not limited to those for
reactivation of the railway.
Members of the Tribunal:
Judge Rosalyn Higgins (President)
Professor Guy Schrans
Judge Bruno Simma
Professor Alfred Soons
Judge Peter Tomka
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dispute resolution at the Permanent Court of Arbitration.
Kajelijeli (the "Appellant") served as a bourgmestre
(mayor) of Mukingo commune, Ruhengeri prefecture
from 1988 to 1993 and was re-appointed bourgmestre
of the commune in June 1994 and remained so until
mid July 1994. He was also a leader of the Interahamwe militia.
The Trial Chamber of the ICTR sentenced Kajelijeli to
two concurrent life terms for genocide and extermination
as a crime against humanity, as well as to 15 years
for direct and public incitement to commit genocide.
With respect to the crime of genocide and the crime
of extermination as crimes against humanity, the
Trial Chamber held the Appellant responsible under
both Article 6 (1) as well as Article 6 (3) of the Statute of the Tribunal (the "Statute"). Whereas Article 6
(1) describes the individual responsibility of a
person under the Statute, Article 6(3) sets forth
the requirements for criminal responsibility incurred
as a superior. Referring to the jurisprudence of
the ICTY Appeals
Chamber in Kordic and Cerkez, the Appeals Chamber stated that "concurrent
conviction for individual and superior responsibility
in relation to the same count based on the same facts
constitutes legal error invalidating the Trial Judgment." For
this reason, the Appeals Chamber vacated the Appellant's
convictions insofar as they were based on a finding
of the Appellant's superior responsibility.
The Appeals Chamber did, however, convert the two concurrent
life sentences and fifteen years' sentence into one
single sentence of 45 years' of imprisonment. This
was due to the fact that the Applicant's rights had
been violated during his arrest and detention. The
Appeals Chamber concluded that the Applicant was
entitled to a remedy, although it excluded the remedy
of dismissing the case for lack of jurisdiction as "disproportionate." In
its review of the Applicant's rights, the Appeals
Chamber relied upon "sources of law for this Tribunal, i.e., its Statute, the Rules and customary international law as reflected inter alia in the International Covenant on Civil and Political Rights." Moreover,
the Court referred to provisions of the European Convention on Human Rights and the American Convention on Human Rights "as persuasive authority."
The complainant, Ahmed Hussein Mustafa Kamil Agiza, an
Egyptian national who was detained at the time of
the submission of his complaint, alleged, inter
alia, that his removal by Sweden to Egypt
on December 18, 2001 violated Article 3 of the Convention against Torture.
In 1998, the complainant was tried in Egypt in
abstentia for terrorist activity before
a "Superior Court Martial, along with over one
hundred other accused of being members of "Al
Gihad", and was sentenced, without possibility
of appeal, to 25 years' imprisonment. In 2000,
the complainant left Iran for Canada and claimed
asylum during a transit stop in Stockholm, Sweden.
The complainant sought asylum on the grounds
that he had been sentenced to "penal servitude
for life" in absentia on account of terrorism
linked to Islamic fundamentalism, and would be
executed upon his return. The Swedish Migration
Board sought the opinion of the Swedish Security
Police to advise it on the case. Whereas the
Migration Board thought that the complainant
was entitled to refugee status, the Security
Police disagreed. In the end, the Swedish Government
rejected the complainant's asylum application
for reasons that are omitted from the text of
the Committee's decision at Sweden's request
and with the agreement of the Committee.
Sweden argued, inter alia, that it acted in accordance
with international law, specifically, in accordance
with UN Security Council Resolution 1373 of September
28, 2001, in which the Security Council decided that
UN Member States shall deny safe haven to those who
finance, plan, support or commit terrorist acts and
shall ensure that the institution of refugee status
is not abused by perpetrators, organizers of facilitators
of terrorist acts, in accordance with international
law. Sweden maintained that it sought and obtained
guarantees from Egyptian authorities with respect
to the treatment of the complainant upon return there.
It also submitted that representatives from the Swedish
embassy made several visits to the complainant in
Egypt and did not find any signs of torture.
The complainant's counsel argued that Sweden was aware
of the risk that the complainant would be subjected
to torture in Egypt, and for this reason it sought
to obtain a guarantee that his human rights would
be respected. However, according to the complainant's
counsel, Sweden made no arrangements prior to the
complainant's expulsion as to how the guarantees
in question were to be implemented upon his return
to Egypt. In this regard the complainant's counsel
cited the ECHR case of Chahal v. United Kingdom, in which the Court found
that the Indian government's guarantee was, on its
own, an insufficient protection against human rights
violations.
The Committee concluded that Sweden failed to provide
for a review by an effective, independent and partial
judicial body of the Migration Board's decision to
expel the complainant. The Committee recalled that
the protections of the Convention against Torture
are absolute. It observed that "the procurement of
diplomatic assurances, which, moreover, provided
no mechanism for their enforcement, did not suffice
to protect against this manifest risk."
The Committee further concluded that Sweden violated
Article 22 of the Convention against Torture by expelling
the complainant immediately upon the Government's
decision, thereby depriving him of a meaningful opportunity
to exercise his eight to seek interim measures before
the Committee.
BRIEFLY NOTED
International Criminal Court (ICC) opens investigation
in Darfur (June 6, 2005)
The Chief Prosecutor of the ICC, Luis Moreno-Ocampo has decided to open an investigation
into the situation in Darfur. On March 31, 2005,
the United Nations Security Council, acting under Chapter VII of the U.N. Charter, adopted Resolution 1593, referring situation
in Darfur to the Prosecutor of the ICC. The investigation
will focus on the individuals who bear the greatest
criminal responsibility for crimes committed in Darfur.
Click here for further information on Darfur available on ASIL's
website
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here.
To comment on this publication, send an e-mail message
to Ruth Teitelbaum, ILM Managing Editor at rteitelbaum@asil.org
