Developments in international law, prepared by theEditorial Staff of International Legal Materials
The American Society of International Law June 28, 2005
The Supreme Court of Argentina (“the Court”), in a 7-1 vote, with one abstention, declared that its amnesty laws are unconstitutional. It also held that crimes of forced disappearance and kidnapping of minors are crimes against humanity, for which there is no statute of limitations.
Argentina’s “full stop” law of 1986 (Law No. 23,492) set forth a 60-day deadline for the initiation of new prosecutions. When that law failed to prevent the prosecution of large numbers of defendants, the Argentine Congress enacted the “due obedience law” (Law No. 23,521) in 1987, granting automatic immunity from prosecution to all members of the military except top commanders. On June 22, 1987, the Supreme Court of Argentina ruled that the due obedience law was constitutional, and effectively prevented any further prosecution of what has become known as “dirty war” crimes committed during Argentina’s military rule from 1976-1983.
The background to the decision concerns the kidnapping by Julio Hector Simón and other Argentine military officials of José Poblete, his wife, Gerudis Hlaczik, and their daughter, Claudia Victoria Poblete. José Poblete and Gerudis Hlaczik were members of a group called “Christians for Liberation.” The parents in this family were tortured and have since “disappeared” while their daughter’s life was spared.
The Court noted that the amnesty laws, laws 23.492 and 23.521 were enacted after Argentina assumed its international obligations pursuant to the American Convention. It also observed that Argentina’s Constitution provides that international treaties have the same status as the Argentine constitution. It concluded that the Argentine Congress’s enactment of amnesty laws, which prevented Argentina from fulfilling its obligations under the American Convention and under several other principles of international law, violated Argentina’s constitution, specifically, Article 75, section 22. The Court further found that forced disappearance was a crime against humanity, in violation of jus cogens norms. It held therefore that any statutes of limitation for the crimes of forced disappearance occurring during the period of military rule in Argentina were prohibited under international law. Failure to prosecute such crimes, and the enactment of laws designed to avoid prosecution, was, in the Court’s view, a violation of such norms. The Court therefore rejected the defense’s argument that it was immune from prosecution due to the fact that the Inter-American Convention on Forced Disappearance of Persons was enacted after the amnesty laws, and application of its principles would constitute an unconstitutional, retroactive application of the law.
The Court also cited the jurisprudence of the Inter-American Court of Human Rights (IACHR), particularly the Barrios Altos case, Chumbipuma Aguirre v. Peru (Decision of March 14, 2001). In this case, the IACHR established strict limitations of the ability of a member State’s legislature to enact amnesty laws for crimes against humanity. The Court emphasized that application of the principles of the Barrios Altos case had to be interpreted in good faith as guidelines for its own jurisprudence.
U.S. District Court for the Southern District of New York: Presbyterian Church of Sudan et al. v. Talisman Energy, Inc. (June 13, 2005)
The U.S. District Court for the Southern District of New York (“the Court”) denied the defendant’s motion for judgment on the pleadings.
One of the key issues in dispute between the parties was whether corporations could be held liable under customary international law for violations of jus cogens. Jus cogens norms include the prohibition on genocide, torture, slavery, crimes against humanity and extrajudicial killing.
The plaintiffs, who are current and former residents of Southern Sudan, alleged in their complaint that they were victims of genocide, crimes against humanity and other violations of international law as a result of acts perpetrated by the Canadian energy company, Talisman Energy, Inc (“Talisman”) and the Government of Sudan (“Sudan”). Talisman moved for a judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Talisman contended that, in accordance with the standards set forth in recent Second Circuit and Supreme Court decisions, there was insufficient evidence that customary international included corporate liability for grave human rights violations, or for secondary liability for aiding and abetting or conspiracy to commit serious human rights abuses. In particular, Talisman argued that since the district court’s 2003 decision in Presbyterian Church of Sudan et al. v. Talisman Energy, Inc.244 F. Supp. 2d 289 (S.D.N.Y. 2003), in which the judge held, inter alia, that corporations may be held liable under international law for violations of jus cogens norms, more recent decisions such as the Supreme Court decision in Sosa v. Alvarez-Machain, 124 S. Ct 2739 and the Second Circuit decision in Flores v. Southern Peru Copper Corp., 406 F.3d 65 narrowed the scope of permissible claims under the Alien Tort Claims Act.
Citing Flores, Talisman argued that customary international law, defined as “those clear and unambiguous rules by which States universally abide, or to which they accede, out of a sense of legal obligation and mutual concern,” could not include corporate liability for human rights violations in view of the fact that there was no treaty or international tribunal decision imposing such liability. Talisman further claimed that the ICTR and ICTY Statutes did not reflect customary international law as these statutes were created under special circumstances.
The Court disagreed, citing the ICJ decision in Military and Paramilitary Activities in and Against Nicaragua, noted that “in order to deduce the existence of customary rules, … it is sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule.”
The Court also held that the ICTY and ICTR Statutes and the decisions of their Tribunals confirm the principle that customary international law prohibiting violations of jus cogens norms such as genocide applies to private actors in addition to state actors. The Court held that the Supreme Court in Sosa v. Alvarez-Machain explicitly contemplated the existence of corporate liability under customary international law.
United States Court of Appeals for the Seventh Circuit: Enahoro v. Abubakar (Interlocutory Appeal) (May 23, 2005)
The decision is available on Lexis.
The U.S. Court of Appeals for the Seventh Circuit rejected the defendant’s claim that the Foreign Sovereign Immunities Act (FSIA) applies to individuals in government.
This interlocutory appeal relates to the suit brought by Nigerian nationals in the U.S. District Court for the Northern District of Illinois against the defendant, Abdulsalami Abubakar, a former Nigerian general who was a member of the military junta. The plaintiffs made allegations of torture and killings that occurred during that time and allege that the defendant, who had the third highest political and military position, was behind the torture and the killings. Plaintiff Hafsat Abiola, the daughter of a pro-democracy activist, alleges that the defendant is responsible for the death of her parents. Her father was a presidential candidate in the 1993 elections. After contesting the election results and the election’s nullification by the military, he was charged with treason and put in prison, where he was, among other things, subjected to torture and inhumane treatment. He died in prison in 1998. Plaintiff Abiola’s mother, who had started a campaign to free her husband, was shot in her car in 1996. Plaintiffs Enahoro and Nwankwo, both political activists, were imprisoned and denied medical treatment. Nwankwo also claims that he was stripped naked and flogged.
Abubakar submitted that the FSIA applied to individuals in government as well as foreign governments and agencies and that he was therefore immune from jurisdiction. Following the decision of the district court that the FSIA does not apply to individuals, Abubakar brought the interlocutory appeal to have this question decided. The Court of Appeals affirmed the decision of the district court and held that since the FSIA did not apply, jurisdiction over Abubakar had to be based on other grounds. The court then found that it had jurisdiction under the Alien Tort Statute (ATS), which provides that “the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Citing the Supreme Court decision in Sosa v. Alvarez-Machain, the court held that the ATS, in this case, could however not provide a cause of action, but merely a jurisdictional basis. The court concluded “that the cause of action Congress provided in the Torture Victim Protection Act [(“TVPA”)] is the one which plaintiffs alleging torture or extrajudicial killings must plead.” The court further stated: “We find that the [Torture Victim Protection] Act does, in fact, occupy the field.” It is a requirement of the TVPA that remedies be exhausted, and the court noted that “nothing in the record indicates that they [plaintiffs] have exhausted their remedies.” Due to the fact that the plaintiffs have not brought the suit under the TVPA, the court remanded “for a determination regarding whether the plaintiffs should be allowed to amend their complaint to state such a claim.”
The dissenting opinion contested the view of the majority that the TVPA occupied the field and stated that the ATS and the TVPA are “not competing provisions, but are meant to be complementary and mutually reinforcing.” The ATS does not require exhaustion of remedies. According to the dissenting opinion, the claims would therefore not be procedurally barred.
Click here for the ILIB summary of Sosa v. Alvarez-Machain.
International Centre for Settlement of Investment Disputes (ICSID): Sempra Energy International v. The Argentine Republic, Decision on Jurisdiction (May 11, 2005)
The tribunal concluded that it had jurisdiction over the investment dispute.
Sempra Energy International (“Sempra” or “the claimant”) brought a request for arbitration before ICSID in order to challenge measures adopted by the Argentine authorities which, according to Sempra, altered the general regulatory framework in such a way as to harm Sempra’s investment in two natural gas distribution companies. Sempra invoked the provisions contained in the 1991 treaty between Argentina and the United States concerning the encouragement and protection of investment (“the bilateral investment treaty” or “the BIT”).
Sempra, like other foreign companies which have submitted requests for ICSID arbitration against Argentina, participated in Argentina’s privatization of the gas sector, a program beginning in 1989. It owns 43.09% share capital of Sodigas Sur S.A. (“Sodigas Sur”) and Sodigas Pampeana S.A. (“Sodigas Pampeana”). Camuzzi, another company which has requested concurrent ICSID arbitration proceedings (please see the Briefly noted section of this ILIB for links to both recent Camuzzi decisions) owns 56.91% of Sodigas Sur and Sodigas Pampeana. These latter Argentine companies, in turn, hold 90% and 86.09% shares in Argentine companies that are licenses granted by Argentina to supply and distribute natural gas in several Argentine provinces.
In particular, Sempra maintained that the suspension of licensee companies’ tariff increases that were based on the U.S. producer index and the subsequent pesification of these tariffs pursuant to Law No. 25561 gave rise to a breach of investment protections afforded under the BIT.
Argentina asserted, inter alia, that Sempra’s claim was connected to the licenses, and that such licenses were governed by contracts and forum selection clauses providing that disputes be settled in Argentine courts. Argentina also relied on the Vacuum Salt case to support its argument that Sempra failed to qualify as an investor under Article 25(2)(b) of the ICSID Convention. Vacuum Salt Products v. Republic of Ghana, (ICSID Case No. ARB/92/1, Award of February 16, 1994, (ICSID Rev—FILJ 72 (1994)) found that because the investor did not have control of the company, he could not bring a claim under the ICSID Convention.
The Tribunal distinguished Vacuum Salt from the present case (and from the Enron case brought against Argentina), noting that in Vacuum Salt, the company in question was “entirely subject to Ghanian legislation, without there being even a foreign-investment contract, and, even more important, there was no bilateral investment treaty to protect the investment.”
The Tribunal also addressed Argentina’s reliance on SGS v. Philippines, stating that even this case “does not depart from the essential principle that those aspects of the dispute originating in the treaty can be submitted to the arbitral forum, even though the tribunal required that a contract-related component of that dispute concerning the precise amount due under the contract had to be resolved first by the domestic court.”
Members of the tribunal:
Professor Francisco Orrego Vicuña, President
Hon. Marc Lalonde, P.C., O.C., Q.C., arbitrator
Dr. Sandra Morelli Rico, arbitrator
Click here to search other international investment instruments on line
International Centre for the Settlement of Investment Disputes (ICSID): Impregilo S.p.A. v. Islamic Republic of Pakistan (Decision on Jurisdiction) (April 22, 2005)
The tribunal found that it had jurisdiction over the investor’s claims “only in so far as such claims concern” its “own alleged loss.” It found contract claims to be excluded from its jurisdiction, but held that it could exercise jurisdiction over treaty claims.
GBC (Ghazi-Barotha Contractors), a joint venture (“JV”) established under the laws of Switzerland, concluded two contracts (“the Contracts”) in 1995 with the Pakistan Water and Power Development Authority (“WAPDA”). The Contracts called for the construction of a barrage downstream and the construction of a channel respectively. Impregilo (“the claimant“), an Italian company, is one of the five joint venture participants. The JV was established between an Italian, German, French, and two Pakistani companies, and Impregilo was selected to act as “leader” of the JV.
The claimant alleged that the Pakistan (the “respondent”) breached the Contracts, as well as several provisions of a Bilateral Investment Treaty (“BIT”) concluded between the governments of Pakistan and Italy. According to the claimant, jurisdiction was based on Article 25 (1) of the ICSID Convention and Article 9 of the BIT between Italy and Pakistan. Pakistan contested the tribunal’s jurisdiction. With respect to jurisdiction rationae personae, the respondent argued inter alia that Impregilo, which claimed to be “entitled to claim the entirety of the damages suffered by GBC because of its role in the JV with the partners,” lacked locus standi due to the fact that GBC itself had no legal personality. Moreover, the respondent continued, the claimant could not have the right to bring claims on behalf of the other parties of the JV, as the BIT was only concluded to confer privileges to Italian investors. The tribunal, citing a treatise on the drafting history of the ICSID Convention, indicated, that “legal personality is a requirement for the application of Art. 25 (2) (b) and that a mere association of individuals or of juridical persons would not qualify.” As a result, the tribunal found that Impregilo was not able to bring claims on behalf of the JV. The tribunal then examined whether Impregilo could make claims on behalf of the other participants in the JV. The tribunal reiterated that “consent of the parties is the cornerstone of the jurisdiction of the Centre.” Due to the fact that the other investors did not fall within the ambit of the BIT, Impregilo could not make claims on their behalf. As to jurisdiction rationaemateriae, the tribunal concluded that “WAPDA is a legal entity distinct from the State of Pakistan”, and that Art. 9 of the BIT did not cover contracts concluded by legal entities other than the State of Pakistan. The tribunal concluded, however, that although Impregilo’s contract claims did not fall within ICSID’s jurisdiction, the tribunal was not barred from considering claims under the BIT itself, as the claims under the BIT were “analytically distinct”. Pakistan’s submission that ICSID’s jurisdiction was barred due to the arbitration provisions in the Contracts was dismissed on the same grounds.
DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS
UN Security Council: Resolution 1607 (The situation in Liberia) (June 21, 2005)
The Security Council, acting under Chapter VII of the Charter of the United Nations, renewed the diamond embargo against Liberia previously imposed by resolution 1521 (2003). The resolution was adopted unanimously.
Click here for the Security Council’s 2005 resolutions.
Iraqi Special Tribunal Questions Saddam Hussein (June 13, 2005)
The Investigative Judges of the Iraqi Special Tribunal (the “tribunal”) questioned the former president of Iraq, Saddam Hussein, on a massacre which occurred in the village of Dujail, shortly after an assassination attempt on Saddam Hussein in 1982.
The tribunal’s temporal jurisdiction is limited to the period between July 17, 1968 and May 1, 2003, and Article 10 of the Statute for the Iraqi Special Tribunal stipulates that “[t]he Tribunal shall have jurisdiction over any Iraqi national or resident of Iraq.” The tribunal has material jurisdiction over the crimes of genocide, crimes against humanity, war crimes, and violatoins of certain Iraqi laws.
Saddam Hussein’s highest possible sentence could include the death penalty, as it was re-imposed by the Iraqi Interim Government.
Sudan establishes special criminal court to try those accused of war crimes in Darfur (June 14, 2005)
The Justice Minister of the Sudan established a special court to try those accused of war crimes in the Darfur region. Shortly before, on June 6, 2005, the International Criminal Court (the “Court”) opened investigations into the situation in Darfur. Article 1 of the Rome Statute of the International Criminal Court (the “Rome Statute”) defines the jurisdiction of the Court as complementary to that of the national criminal jurisdictions, and Article 17 provides that the Court shall declare a case inadmissible where “[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” Sudan is not a signatory state to the Rome Statute and the investigations at the Court were initiated following a Security Council referral, which was issued under Chapter VII of the Charter of the United Nations on March 31, 2005.
Click here for the report of the International Commission of Inquiry on Darfur.
Click here for more resources on the case of Darfur.
Please note that there have been two, separate proceedings brought by an investor, Camuzzi International S.A., against Argentina. Please excuse any confusion caused by the June 14, 2005 ILIB in this regard.
The following are links to both Camuzzi decisions:
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To comment on this publication, send an e-mail message to Ruth Teitelbaum, ILM Managing Editor at rteitelbaum@asil.org
