Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law July 29, 2005
Click here for the ASIL Insight by Prof. Ronald A. Brand
The Hague Convention on Choice of Court Agreements (“the Convention”) is designed to ensure that parties’ choice of court agreements made pursuant to international commercial transactions and other international civil matters are honored. It also aims to ensure recognition and enforcement of court judgments in the courts designated by the parties’ choice of court agreements. This means that the court designated by the parties in an international transaction shall have exclusive jurisdiction, and other courts are under an obligation to decline to hear the case.
The Convention applies to international litigation, not to international arbitration proceedings. Article 2 of the Convention provides that it shall not apply to exclusive choice of court agreements when the party is a consumer or, where the exclusive court selection clause concerns an employment contract. Article 2 further excludes the following matters from the scope of the Convention:
a) the status and legal capacity of natural persons;
b) maintenance obligations;
c) other family law matters, including matrimonial property regimes and other rights or obligations arising out of marriage or similar relationships;
d) wills and succession;
e) insolvency, composition and analogous matters;
f) the carriage of passengers and goods;
g) marine pollution, limitation of liability for maritime claims, general average and emergency towage and salvage;
h) anti-trust (competition) matters;
i) liability for nuclear damage;
j) claims for personal injury brought by or on behalf of natural persons;
k) tort or delict claims for damage to tangible property that do not arise from a contractual relationship;
l) rights in rem in immovable property, and tenancies of immovable property;
m) the validity, nullity, or dissolution of legal persons, and the validity of decisions of their organs;
n) the validity of intellectual property rights other than copyright or related rights;
o) infringement of intellectual property rights other than copyright or related rights, except where infringement proceedings are brought for breach of a contract between the parties relating to such rights, or could have been brought for breach of that contract;
p) the validity of entries in public registers.
Article 3 of the Convention provides, however, that where one of the above-listed matters arises merely as a preliminary question, or where one of the above matters arises as part of a defense, it will not necessarily be excluded from the Convention.
United Nations Compensation Commission (UNCC) Governing Council: Report and Recommendations Made by the Panel of Commissioners Concerning the Fifth Installment of F4 Claims (June 30, 2005)
The United Nations Compensation Commission (UNCC) awarded USD 252,028, 468 (less than 1% of the total claimed amount) in compensation to the claimants.
The UNCC was established by the U.N. Security Council in 1991 to process claims and pay compensation for losses resulting from Iraq's invasion and occupation of Kuwait. In terms of the UNCC mandate, the Secretary-General of the United Nations, in his report to the Security Council of May 2, 1991, stated:
“The Commission is not a court or an arbitral tribunal before which the parties appear; it is a political organ that performs an essentially fact-finding function of examining claims, verifying their validity, evaluating losses, assessing payments and resolving disputed claims. It is only in this last respect that a quasi-judicial function may be involved. Given the nature of the Commission, it is all the more important that some element of due process be built into the procedure. It will be the function of the Commissioners to provide this element.”
The fifth installment of “F4” claims consisted of 19 claims submitted by six governments (“the claimants”) related to the damage caused by Iraq’s invasion and occupation of Kuwait. Five claims were submitted by Iran, two claims were submitted by Jordan, four claims were submitted by Kuwait, four claims were submitted by Saudi Arabia and three claims were submitted by Syria. The claims sought compensation for damage to or depletion of natural resources, including cultural heritage resources and damages to public health. The claims relate to damage resulting from, inter alia:
pollutants from the oil well fires and damaged oil wells in Kuwait;
oil spills into the Persian Gulf from pipelines, offshore terminals and tankers;
influx of refugees into the territories of some of the claimants;
operations of military personnel and equipment;
mines and other remnants of war; and
exposure of the populations of the claimants to pollutants from the oil well fires and oil spills in Kuwait and to hostilities and various acts of violence.
Iraq contended that much of the damage for which the claimants sought compensation could not be attributed solely to Iraq’s invasion and occupation of Kuwait. It maintained that the environment in the claimants’ countries was already damaged prior to the invasion as a result of oil exploration, operation of refineries and petrochemical industries, in addition to contamination resulting from the Iran-Iraq war.
The Panel dismissed several of the claims due to insufficient evidence, such as Turkey’s claim for damage to forests resulting from the number of refugees passing through Turkey following the invasion of Kuwait, and Syria’s claim of public health damage (ie respiratory illness) resulting from the oil well fires in Kuwait. The Panel dismissed Saudi Arabia’s claim for premature deaths resulting from exposure to airborne particulate matter for failure to demonstrate a direct link between the increased pollution from the oil well fires in Kuwait and the mortality rate in Saudi Arabia. The most compensation recommended to any one of the claimants was to Jordan, for losses in groundwater resources and land resources, resulting in a recommended amount of USD161,926,734 in compensation. (Jordan’s claimed more than 5 billion dollars in damage).
The U.S. Court of Appeals for the Ninth Circuit (“the Court”) held that the basic purpose of the Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 49 (the “Hague Convention”) and the International Child Abduction Remedies Act (ICARA), 42 U.S.C.S.§11601 et seq, is to allow the home country to make custody determinations whenever possible. It further found that the grave-risk exception to the remedy of return is to be drawn very narrowly, otherwise this exception would undermine the very purpose of the Hague Convention.
At issue before the Court was whether two minor children, abducted by their father in Canada and brought to the United States, should be returned to Canada in accordance with the International Child Abduction Remedies Act and the Hague Convention. The basic facts are as follows: Catherine Gaudin and John Remis have two children together, who were living with their mother, Gaudin in 2000. The father, Remis, concerned about the way in which their children were being raised, took their children to Hawaii, refused to return them and filed for custody in Hawaii Family Court. In July 2000, the Hawaii Family Court awarded temporary custody of the children to Remis. The children’s mother then filed a petition in federal court pursuant to ICARA and the Hague Convention, seeking return of the children to Canada. The children’s father did not dispute the fact that he had removed the children from Canada, but argued that, pursuant to Article 13P1(b) of the Hague Convention, the children should not be returned to Canada due to the Convention’s exception for cases in which the children would face a grave risk of psychological harm. The father submitted a declaration from a clinical psychologist who reported “significant concerns” about the children’s mental health and observed that returning the children to their mother, whose religious obsessions resulted in severely restricting the children’s activities, would damage their mental health.
The Ninth Circuit noted that the district court mistakenly assumed that it had broad discretion to consider what would be suitable under the “totality of the circumstances” under the Hague Convention and under ICARA when it decided not to order return of the children to Canada It found that the proper question was rather “whether any reasonable remedy can be forged that will permit the children to return to their home jurisdiction for a custody determination while avoiding the ‘grave risk of psychological harm’ that would result from living with their mother.” The Court noted that the district court should not have been influenced by the custody proceedings in Hawaii Family Court. Whether the children would be better off with their father was for a custody determination; such determination, pursuant to the Hague Convention and ICARA, must be made by the home jurisdiction, in this case, Canada. As for the exception for psychological damage, the Court held that the risk must be grave and must be proven by clear and convincing evidence. The Court held that on remand, the district court must decide, without referring to the Hawaii state court, whether the narrow exception for grave psychological damage has been met in this case.
Click here for EISIL resources on child custody and child abduction.
United States (U.S.) District Court for the District of Columbia: O.K. et al. v. George W. Bush et al. (July 12, 2005)
Available on Lexis
The U.S. District Court for the District of Columbia (“the Court”) denied the detainee’s motions for preliminary injunctions seeking to prevent further “interrogation, torture and other cruel, inhuman or degrading treatment.”
The petitioner is an eighteen-year old detainee at the U.S. Naval Base in Guantanamo Bay, Cuba, who has been held in U.S. custody since the age of fifteen. He is a citizen of Canada who was taken into U.S. custody in Afghanistan following a gunfight during which at least one American soldier was killed. This case began on July 2, 2004, when the petitioner filed a petition for a writ of habeas corpus, through his grandmother as next friend, whereby he challenged his detention and the conditions of his confinement in U.S. custody. The petitioner challenged his detention under several U.S. federal statutes and under international law.
Among his allegations of torture and abuse, the petitioner claims to have been shackled for hours in stress positions without access to a toilet, to have been used as a “human mop” to then clean up after himself, to have been subjected to refrigerator-like temperatures and to have been thrown on the floor of his cell. The petitioner also claimed that military guards threatened to send him to jail in Egypt, where the guards said he would be sexually assaulted.
The Court noted that in order for him to prevail on a motion for a preliminary injunction, the petitioner would have to demonstrate, inter alia, that he will suffer irreparable harm absent the relief requested.
The Court observed that the petitioner failed to cite any law “for the extraordinary notion that a court may forbid the interrogation of individuals captured in the course of ongoing military hostilities. Even supposing that the Court has the constitutional authority to intrude so dramatically on the prerogative of the Executive in the performance of the war power, petitioners do not offer a plausible legal or evidentiary basis for the exercise of authority in this case.” The Court further found that, “even if the petitioner were able to demonstrate that he possesses a right to be free from torture and that certain of his allegations would constitute violations of that right, he has not come forward with the showing necessary to secure the forward-looking order he seeks.” The Court noted that the petitioner had failed to prove that he will face a real and immediate threat of repeated injury, since most of his allegations date to 2003.
International Criminal Court (ICC): Report of the Prosecutor of the International Criminal Court, Mr. Luis Moreno Ocampo, to the U.N. Security Council Pursuant to U.N. Security Council 1593 (June 29, 2005); Statement of the Prosecutor, Mr. Luis Moreno Ocampo
On March 31, 2005, the U.N. Security Council adopted Resolution 1593 (2005) in which it referred to the situation in Darfur since July 1, 2002 to the Prosecutor of the International Criminal Court (ICC).
The Report of the Prosecutor notes that following this Resolution, the Office of the Prosecutor (‘the Office”) immediately carried out a comprehensive fact-finding mission. On April 5, 2005, the Office received more then 2,500 items, including documentation, video footage and interview transcripts that was gathered by the International Commission of Inquiry on Darfur. The Prosecutor noted that he does not consider the list of persons potentially bearing responsibility provided by the International Commission of Inquiry to be binding. He stated that the Office is conducting its own independent investigations in accordance with the Rome Statute. In addition to the information provided by the Commission of Inquiry on Darfur, the Office has collected more than 3,000 documents from a variety of sources and has interviewed more than 50 individuals with expertise concerning the situation in Darfur. He noted that statements were taken at the seat of the Court, in accordance with the Rome Statute and Rules of Procedure.
In terms of admissibility of the alleged crimes within the jurisdiction of the ICC, the Prosecutor reported that, in accordance with the complementarity regime and article 53(1)(b) of the Rome Statute, he must consider 1) whether or not there has been any national investigation or prosecution of these cases in Sudan or 2) if there is or has been an investigation or prosecution, whether they have been vitiated by an unwillingness or inability to genuinely carry out the investigation or prosecution. He observed that the Office has interviewed more than a dozen individuals and has sought information on national proceedings that may have been undertaken in relation to crimes within the jurisdiction of the ICC that were allegedly committed in Darfur. In particular, the Office has gathered information on Committees Against Rape established by a Sudanese Ministerial Order in 2004 and the Special Courts created under the Special Courts Act in 2004.
The Prosecutor reported that in light of the information reviewed above concerning Sudan’s national efforts at addressing the crimes, he determined on June 1, 2005 that there are cases that would be admissible before the ICC in relation to the Darfur situation. He also noted that mid-June 2005, the Government of Sudan provided the Office with information related to the establishment of a new, specialized tribunal to deal with some individuals alleged to be responsible for the crimes committed in Darfur. The Prosecutor noted that, as part of the ICC’s on-going admissibility assessment, it would follow the work of this additional specialized tribunal in order to determine whether its has investigated or prosecuted cases that have been determined to be admissible before the ICC.
United Nations Commission on International Trade Law (UNCITRAL): Adoption of Draft Convention on the Use of Electronic Communications in International Contracting (July 15, 2005)
UNCITRAL concluded its 38th session in Vienna Austria and adopted a new draft convention for the use of electronic communications in international contracting. The draft convention aims to enhance legal certainty and predictability for international contracts where electronic communications are involved. Some of the issues the convention aims to clarify include identifying the location of a party which has been part of an agreement using an electronic communication and identifying the time and place of dispatch and receipt of electronic communications. Most importantly, the new convention aims to assure that companies around the world are able to enforce contracts negotiated electronically.
UNCITRAL is composed of 60 Member States elected by the U.N. General Assembly.
For more resources on electronic commerce see EISIL.
International Tribunal for the Law of the Sea (ITLOS): Election of Seven Members (June 22, 2005)
The States parties to the United Nations Convention on the Law of the Sea elected seven judges of the International Tribunal for the Law of the Sea (ITLOS) during its meeting held in New York on June 22, 2005.
Judge Nelson (Grenada) and Judge Park (Republic of Korea) were re-elected. Judge Pawlak (Poland), Judge Yanai (Japan), Judge Türk (Austria), Judge Kateka (United Republic of Tanzania) and Judge Hoffman (South Africa) are the newly-elected judges. The judges on the ITLOS serve for a term of nine years and may be re-elected.
ILIB is a free-of-charge electronic resource. To sign up for ILIB or ASIL Insights, click here.
To comment on this publication, send an e-mail message to Ruth Teitelbaum, ILM Managing Editor at rteitelbaum@asil.org
