Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law July 19, 2005
The International Court of Justice (the “Court”) determined the boundaries between the Republic of Benin (“Benin”) and the Republic of Niger (“Niger”).
The territories of the two States were part of French West Africa. Benin corresponds to the former colony of Dahomey, and the territory of Niger was subjected to several administrative transformations under colonial control. Both countries gained independence in 1960.
The States requested the Court by a Special Agreement (“agreement”) to
“(a) determine the course of the boundary between the Republic of Benin and the Republic of Niger in the River Niger sector;
(b) specify which State owns each of the islands in the said river, and in particular Lété Island;
(c) determine the course of the boundary between the two States in the River Mekrou sector.”
Article 6 of the agreement stipulated that the applicable law should be that of Article 38 paragraph 1 of the Statute of the International Court of Justice, “including the principle of State succession to the boundaries inherited from colonization, that is to say, the intangibility of those boundaries.” According to this principle, which is also referred to as the principle of uti possidetis juris, the borders as inherited from the French administration would be relevant, as well as the French colonial law, which is also referred to as “droit d’outre-mer.” Regarding the northeast border, Niger requested the Court to declare that the boundary between the countries “follows the line of deepest soundings in the River Niger, in so far as the line could be established at the date of independence.” The islands located in the River Niger should be allocated according to the line of deepest soundings. Benin on the other hand asked the Court to declare that the border was to follow the eastern bank of the river, giving Benin sovereignty over that section of the River Niger, including all its islands.
Neither party was able to convince the Court that it had title based on administrative acts during the colonial period, and the Court therefore had to consider evidence on the effectivités, that is the effective exercise of authority during the colonial period. Based on the evidence the Court concluded, “that the boundary between Benin and Niger follows the main navigable channel of the River Niger as it existed at the dates of independence.” The precise location of the main navigable channel was primarily based on a report furnished in 1970 at the request of the Governments of Dahomey, Mali, Niger, and the Federation of Nigeria. Sovereignty over the islands follows the line of the main navigable channel with the exception of three islands. According to this distribution, the island of Lété is under the sovereignty of Niger.
The Court was further asked to determine the boundaries between the two countries in the River Mekrou sector, which lies at the northern part of Benin. The Court held that the boundaries between Dahomey and Niger from 1927 on were considered to be coinciding with the River Mekrou. At the critical date, the date of independence, the boundary was considered to be the River Mekrou, it therefore is the boundary today according to the principle of uti possidetis.
The Grand Chamber of the European Court of Human Rights (the “Court”) held that there had been a violation of Article 2 (right to life) and Article 2 taken in conjunction with Article 14 (prohibition of discrimination) of the European Convention on Human Rights.
This case concerns the killing of two Bulgarian conscripts of Roma origin by the military police in July 1996. After having repeatedly been absent without leave, they were sentenced to imprisonment for several months. Both men escaped from prison and went to the Roma district of the village of Lesura, where the military police came to arrest them. They were shot by automatic weapon fire as they were trying to flee and died on the way to the hospital. After the shootings, the military officer who shot the two men allegedly yelled at one of the village residents while pointing a gun at him: “You damn Gypsies!” According to the Bulgarian authorities no offence had been committed, as the regulations of the military police had been abided by. The authorities alleged that the two men had been warned by warning shots had been fired in the air, and the officer who shot them had sought to avoid fatal injuries.
The Grand Chamber noted with grave concern that “the relevant regulations on the use of firearms by the military police effectively permitted lethal force to be used when arresting a member of the armed forces for even the most minor offence,” and stated that “such a legal framework is fundamentally deficient and falls well short of the level of protection…required by the Convention.” The Court further expressed that in this particular case recourse to lethal force was prohibited by Article 2 of the Convention, irrespective of how great the risk was that the two men escape, because they were unarmed, were showing no threatening behavior, and had no record of violence. The Court also noted that the force used was excessive and declared that there has been a violation of Article 2 with regard to the killings. The subsequent failure of the state to effectively investigate the deprivation also constituted a violation of Article 2 of the Convention.
The applicants contended that there had been a violation of Article 14 taken in conjunction with Article 2 of the Convention, because the killings were racially motivated. The Chamber had held that in the context of Article 14 of the Convention it might, in certain cases, e.g. where the authorities disregarded the evidence of possible discrimination, “draw negative inferences or shift the burden of proof to the respondent Government.” Bulgaria conceded that the burden of proof could shift in cases where the events in issue were…within the exclusive knowledge of the authorities, as in the case of death occurring during detention.” Arguing that this case did not fall under that category, Bulgaria requested that the Chamber’s approach be overruled.
The Grand Chamber, rejecting the approach taken by the Chamber, stated that, shifting the burden of proof to the Government “would amount to requiring the Government to prove the absence of a particular subjective attitude on the part of the person concerned.” The Court therefore held that no violation of Article 2 in conjunction with Article 14 had occurred with respect to the killings. However, the Grand Chamber held that there was a duty on the Bulgarian authorities under Article 14 taken with Article 2 to investigate the killings in light of a possible racist background, and that this duty had been violated.
International Centre for Settlement of Investment Disputes (ICSID): Gas Natural SDG, S.A. v. The Argentine Republic (June 17, 2005) (Decision on Jurisdiction)
The tribunal held that it had jurisdiction over the investment dispute brought pursuant to the Argentina-Spain Bilateral Investment Treaty (“BIT”).
This arbitration is one of several brought against Argentina relating to measures taken by the Argentine government during its economic crisis of 2001-2002. At issue before the tribunal was whether Argentina had given its consent to arbitration, whether the investor’s claims met the appropriate criteria for investment disputes within the meaning of the BIT, and whether the most favored nation clause set forth in the BIT applied to dispute settlement.
Gas Natural (“the claimant”), is a corporation organized under Spanish law and has its principal place of business in Spain. In 1992, the claimant took part in a tender offer by the Argentine government as part of the privatization of its gas sector. It then participated in a consortium that purchased 70% of the shares of an Argentine corporation and formed an Argentine company. According to the claimant, it invested in Argentina in reliance on Law No.23, 928 and Decree 2/28 of 1991, which established the parity and convertibility of the Argentine peso with the U.S. dollar.
Following Argentina’s economic crisis and default on its public debt, the President of Argentina repealed the requirement that the Argentine peso be tied to the US dollar by means of an emergency law in January 2002. The claimant alleged that the measures taken by the Argentine government pursuant to the emergency law breached the guarantees set forth in the BIT.
Argentina maintained that the claimant could not qualify as an investor under the BIT as it was only an indirect shareholder of the Argentine company. It also alleged that the emergency law and related measures were matters of general economic policy and could not come with the definition of 25(1) of the ICSID Convention, which provides for jurisdiction over legal disputes arising directly out of an investment. Argentina further claimed that it did not provide its consent to ICSID arbitration as the claimant had failed to resort to domestic courts prior to submission to arbitration, as required by the BIT.
The tribunal found that the claimant qualified within the definition of investment, and the claimant’s challenge concerned the meaning and scope of Argentina’s obligations under the BIT. It further held that by virtue of the most favored nation clause in the BIT, the claimant did not need to resort to domestic courts prior to submission of the arbitration dispute. It relied on the Maffezini and Siemens cases in support of its conclusion that dispute settlement was part of the treatment afforded to investors under the BIT. Therefore, the more favorable dispute settlement provisions from other BITs could be applied in this case, resulting in a waiver of the requirement that the dispute first be submitted to a domestic court.
The Supreme Court of Canada overturned the decisions of the Federal Court of Appeal and ordered the deportation of Mr. Mugesera.
In November 1992, Mugesera, an active member of a Hutu political party, delivered a speech to approximately 1000 people, in which Mugesera, among other things, referred to the Tutsi as “cockroaches” and allegedly encouraged those listening to the speech to eliminate the Tutsi. Subsequently, Mugesera fled Rwanda and applied for permanent residence in Canada.
The Canadian Immigration Act (the “Act”) provides that a person shall not be granted admission to Canada if there are reasonable grounds to believe that such person has committed a crime against humanity outside Canada.
In 1995, immigration proceedings were initiated to have Mugesera deported on the basis of his speech inciting murder, genocide, and hatred, constituting crimes against humanity.
With respect to whether the speech incited genocide, the Court, noting that this was a crime under Canadian as well as Rwandan law, determined that international jurisprudence was “highly relevant to the analysis.” The Court cited the decision of the International Criminal Tribunal for Rwanda (ICTR) in the Prosecutor v. Akayesu, in which the ICTR found that there is no need to establish a “direct causal link” to acts of murder or genocide, as “incitement is punishable by virtue of the criminal act alone irrespective of the result.” The Court found that the allegations of incitement to murder and genocide were “well founded.”
The Court then considered whether the speech could also constitute a crime against humanity, which would bar Mugesera from admission to Canada under the Act. In this case there were two possible underlying acts, the counseling of murder and the persecution by hate speech. Noting that there was some confusion regarding the elements of a crime against humanity, the Court again considered the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the ICTR and elaborated: “[T]he expertise of these tribunals and the authority in respect of customary international law with which they are vested suggest that their findings should not be disregarded lightly by Canadian courts applying domestic legislative provisions,…which expressly incorporate customary international law.” Following the ICTR’s decision in Prosecutor v. Rutaganda, the Court concluded
that the crime counseled has to be committed in order to constitute instigation. Due to the fact the speech of Mugesera was not directly linked to the murders, the counseling of murder was not found to constitute a crime against humanity. The Court however found that the speech fulfilled the requirements of persecution as a crime against humanity, and held that Mugesera was therefore inadmissible to Canada. It appears noteworthy that the Court, which had previously held in Finta, that all crimes against humanity require discriminatory intent, amended its jurisprudence to bring it into accordance with that of the international criminal courts.
A staff writer for Associated Press reported that the Canadian Justice Minister refused to extradite Mugesera to Rwanda without receiving “binding assurances” that Mugesera will not be subjected to death penalty if convicted in Rwanda.
Arbitration Institute of the Stockholm Chamber of Commerce: Petrobart Limited v. The Kyrgyz Republic (March 29, 2005)
Click here for the decision (available on transnational dispute management.com)
The arbitral tribunal found the Kyrgyz Republic liable for breaches of the Energy Charter Treaty (“the Treaty”) and awarded US$1,130,859 (with interest) in damages to Petrobart Limited.
The claimant, Petrobart Limited (“Petrobart”) is a company registered in Gibraltar. In February 1998, it concluded a contract for the supply and transfer of stable gas condensate with a state joint stock company in the Kyrgyz Republic called Kyrgyzgazmunaizat (“KGM”).
In February and March 1998, Petrobart delivered altogether about 17,205 tons of gas to KGM for which it issued five invoices, however KGM only paid for two. As a consequence, Petrobart stopped further delivery of the remaining quantities of gas and took legal action against KGM in order to obtain payment for the remaining invoices. In December 1998, Petrobart obtained a favorable judgment from the Bishek City Arbitration Court (“the Bishek Court”). However, in February 1999, the Bishek Court granted a request by KGM for a three months’ stay of execution of the judgment. The judgment of February 1999 also referred to a letter sent by the Vice Prime Minister of the Kyrgyz Republic requesting a stay of execution. In January 1999, the Government of the Kyrgyz Republic implemented Presidential Decree 282 to reorganize KGM. In April 1999, the Bishek Court declared KGM bankrupt.
Petrobart claimed, inter alia, that the Kyrgyz Republic, by means of its interventions in the judicial proceedings and executive decree ordering KGM’s reorganization, failed to provide it with stable, equitable, favorable and transparent conditions in violation of several articles of the Treaty, including Article 10(1).
In terms of jurisdiction, the Kyrgyz Republic argued, inter alia, that since the United Kingdom has not ratified the Treaty on behalf of Gibraltar, Petrobart could not be considered an investor under the treaty. In this regard, the tribunal took note of the fact that the United Kingdom first made a declaration under Article 45(1) of the Treaty regarding its provisional application, according to which the provisional application was to extend to Northern Ireland and to Gibraltar. However, when the United Kingdom ratified the Treaty, the ratification was made in respect of the United Kingdom and Northern Ireland, the Bailiwick of Jersey and the Isle of Man, with no mention of Gibraltar. The tribunal concluded that according to the text of Article 45(3)(a) of the Treaty, if the United Kingdom had indeed wished to terminate the Treaty’s provisional application to Gibraltar, then it should have made this clear by means of a notification or declaration.
The Kyrgyz Republic also argued that Petrobart’s claims were barred by res judicata, as it had brought claims before the Bishek Court and before an UNCITRAL arbitration panel.
The tribunal disagreed, finding that the Bishek Court case exclusively concerned the interpretation and application of Kyrgyz domestic law, and therefore its claims before the present arbitral tribunal under the Treaty could not be barred. As for the UNCITRAL arbitration, the tribunal found that these proceedings were based on Kyrgyz’s Foreign Investment Law, and likewise did not bar arbitration pursuant to the Treaty.
On the merits, the tribunal found, inter alia, that although there may have been good reasons for restructuring the system for supply of oil and gas in the Kyrgyz Republic, the Kyrgyz Republic was nevertheless under an obligation to carry out the reorganization in a way which protected the rights of Petrobart under the Treaty. The tribunal further concluded that the Bishek court's specific reference to a letter from the Vice Prime Minister requesting a stay of the execution of the judgment against KGM must be regarded as an attempt to influence a judicial decision to Petrobart’s detriment. The tribunal concluded that the Kyrgyz Republic violated Article 10(1) and Article 10(2) of the Treaty.
The U.S. Court of Appeals for the District of Columbia (“the Court”) reversed the district court’s earlier decision (click here for the decision), and concluded, inter alia, (1) that the U.S. Congress authorized the military commission established to try Hamdan, (2) that the 1949 Geneva Convention does not confer individual rights enforceable in federal court; (3) that the 1949 Geneva Convention does not apply to al Qaeda and its members, and (4) that the U.S. President’s determination that Hamdan cannot avail himself of Common Article 3 of the Geneva Convention, which contemplates “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties”, should prevail.
In December of 2003, Hamdan was removed from Guantanamo and placed in solitary confinement at Camp Echo. He was later appointed counsel, initially for plea negotiation. In April 2004, Hamdan filed a petition for habeas corpus. While Hamdan’s petition was pending before the district court, the U.S. government formally charged him with conspiracy to commit attacks on civilians and civilian objects, murder and destruction of property by an unprivileged belligerent, and terrorism. The charges stated that Hamdan was Osama Bin Laden’s personal driver between 1996 and 2001, and that he further served as Bin Laden’s personal bodyguard, transporting Bin Laden to training camps and safe havens.
Following the U.S. Supreme Court’s decision in Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004), Hamdan was given a formal hearing before a Combatant Status Review Tribunal. This tribunal confirmed Hamdan’s status as an enemy combatant. On November 8, 2004, the U.S. District Court for the District of Columbia granted Hamdan’s petition in part, finding that Hamdan could not be tried by a military commission unless a competent tribunal first determined that he was not a prisoner of war under the 1949 Geneva Convention. According to the Court, the U.S. President “is not a ‘tribunal,’” and his determination that Hamdan was a member of Al Qaeda does not meet the standard for determining whether Hamdan is entitled to a prisoner-of-war status under the Geneva Conventions.
The U.S. Court of Appeals for the District of Columbia disagreed, finding that even though the 1949 Geneva Convention protected individual rights, there was no mechanism to enforce these rights in court. The Court further found that even if he could enforce 1949 Geneva Convention rights in court, such rights would not apply to him, since al Qaeda is not a state and is not a Party to the Geneva Convention under Common Article 2.
The Court further found that, even if Common Article 3 covered Hamdan, it could abstain from testing the requirement in Common Article 3(1)(d) that sentences be pronounced “by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” This was so because challenges regarding the procedures applied (as opposed to the Military Commission’s jurisdiction to try him) could be contested in a federal court after exhausting his military remedies. The Court further found that nothing in the army regulations, particularly Army Regulation 190-8 §1-5(a)(2) suggests that the U.S. President is not a “competent authority” for determining prisoners’ legal status.
United Nations Security Council: Threats to international peace and security caused by terrorist acts (July 7, 2005)
The Security Council (SC) unanimously passed resolution 1611 (2005), in which it reiterated the “need to combat …threats to international peace and security cause by terrorist acts”. In this resolution the SC condemned the July 7th attacks in London and also expressed its view that any act of terrorism is a threat to international peace and security.
Council of Europe, Committee of Ministers: Interim Resolution ResDH(2005)84 Concerning the judgment of European Court of Human Rights in the July 8, 2004 (Grand Chamber) in the case of Ilascu and others against Moldova and the Russian Federation(July 13, 2005)
The Committee of Ministers of the Council of Europe (“the Committee”) made note of the European Court of Human Rights’ (ECHR) decision in Ilascu and others v. Moldova and the Russian Federation (44 ILM 759). It observed that whereas the Moldovan authorities have been active in providing information on a regular basis regarding the steps they have taken to secure the release of the prisoners, the same could not be said for the Russian authorities. The Committee deplored the fact that since its Resolution adopted on April 22, 2005 in which it urged the Russian authorities to comply with the judgment, the Russian authorities have called into question the validity of the judgment and have insisted that their payment of just satisfaction was sufficient compliance with the judgment.
The Committee further noted that, more than one year after the ECHR decision was delivered, two of the applicants are still imprisoned and their state of health has deteriorated.
The Committee urged the Russian authorities to end the arbitrary detention of the applicants still imprisoned and to secure their immediate release.
Belgian Court sentences two Rwandan nationals for involvement in Rwandan genocide (June 29, 2005)
A Belgian court sentenced two Rwandan half-brothers to 10 and 12 years of imprisonment, respectively. The two half-brothers, who were successful businessmen in Rwanda, were accused of providing weapons as well as vehicles to the Hutu militia during the 1994 genocide. The accused were tried under the 1993 Belgian law “Concerning the Punishment of Grave Breaches of Humanitarian Law” (published in 42 ILM 1258) that allows for war crimes committed abroad to be tried in Belgium, if the perpetrators are of Belgian nationality or normally reside in Belgium.
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