Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law August 11, 2005
Council of Europe: Convention on Action Against Trafficking in Human Beings (May 16, 2005)
Click here for the Convention and Accompanying Report on Trafficking in Human Beings.
The member States of the Council of Europe signed the Convention on Action Against Trafficking in Human Beings on May 16, 2005, (“the Convention). According to the report accompanying the Convention, trafficking in human beings “is the third largest illicit money making venture in the world after trafficking of weapons and drugs.”
Article I provides that the purposes of the Convention are (1) “to prevent and combat trafficking in human beings, while guaranteeing gender equality;” (2) “to protect the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims and witnesses, while guaranteeing gender equality, as well as to ensure effective investigation and prosecution ; and (3) “to promote international cooperation on action against trafficking in human beings.”
In terms of the scope of the Convention, Article 2 provides that it “shall apply to all forms of trafficking in human beings, whether national or transnational, whether or not connected with organised crime.”
Article 7 of the Convention provides for border control measures, and states, inter alia, that each party “shall adopt legislative or other appropriate measures to prevent, to the extent possible, means of transport operated by commercial carriers from being used in the commission of offences established in accordance with this Convention.” Such measures include verifying travel documents of all passengers in commercial carriers.
Articles 10-17 set forth “measures to protect and promote the rights of victims, guaranteeing gender equality.” Such measures include assistance to victims, including children, and provide that if the competent authorities of a party to the Convention have reasonable grounds to believe that a person has been a victim of human trafficking, then such person shall not be removed from its territory and until the person’s identification as a victim has been processed. Article 12 sets forth measures of assistance to victims of human trafficking, including access to medical and psychological treatment, accommodation and legal assistance.
For more international law resources on trafficking in human beings and other slave-like practices, see EISIL.
World Trade Organization (WTO): European Communities-The ACP-EC Partnership Agreement-Recourse to Arbitration Pursuant to the Decision of 14 November 2001, Award of the Arbitrator (Regarding the EC Banana Regime) (August 1, 2005)
The arbitrators determined that “the European Communities’ envisaged rebinding on bananas would not result in at least maintaining total market access for MFN banana suppliers, taking into account all European Community (EC) WTO market-access commitments relating to bananas.”
This arbitration was initiated under the procedures set forth in the waiver decision contained in the document “European Communities-ACP-EC Partnership Agreement, Decision of 14 November 2001” (The “Doha Waiver”). The Doha Waiver was one of two waivers designed to implement understandings related to the resolution of the WTO EC-Bananas III dispute.
In late March 2005, Colombia, Costa Rica, Ecuador, Guatemala, Honduras and Panama, followed by Venezuela, Nicaragua and Brazil notified the WTO that they were requesting arbitration pursuant to the procedures in the Annex to the Doha Waiver.
The Annex to the Doha Waiver states, inter alia, that the “mandate of the arbitrator shall be to determine, within 90 days of his appointment, whether the envisaged rebinding of the EC tariff on bananas would result in at least maintaining total market access for MFN [most favored nation] banana suppliers, taking into account the above-mentioned EC commitments.”
At issue, inter alia, was the way in which preferences that the EC grants to African, Pacific and Caribbean (APC) exporting countries impact market access for MFN banana suppliers. The existing EC banana import system consists of tariffs of 75 euros per metric ton, whereas all in quota banana imports from preferential suppliers enter the EC at zero duty. The EC proposed replacing its concessions on bananas with a bound duty of 230 euros pre metric ton.
The arbitrators noted that the meaning of a commitment under Article II of GATT 1994 is not to apply a tariff above the level specified in the Schedule of a Member concerned, and in this case, to ensure that certain conditions of entry into the EC market through an undertaking not to apply protective instruments or a level of protection above a bound level. It noted that for this reason, tariff bindings under Article II of GATT 1994 generally represent “commitments on conditions of competition for trade, not on volumes of trade.” In the context of the envisaged rebinding by the EC, the benchmark for assessing its legality is not the specific concept of tariff bindings, but rather, the broader concept of market access for the MFN suppliers.
In examining the price gap methodology employed by the EC, the arbitrators concluded that the envisaged rebinding leads to an outcome that would not result in at least maintaining total market access for MFN banana suppliers.
The U.S. Court of Appeals for the District of Columbia (“the Court”) dismissed the appeal.
The State Property Fund of Ukraine (SPF) appealed from a judgment confirming an arbitration award in favor of TMR Energy Limited (TMR), a Cypriot corporation. The arbitration took place in Stockholm, Sweden.
The Lisichansk Oil Refining Works (LOR), a former Soviet state-owned enterprise, entered into a joint venture with a Swiss company, which subsequently transferred its interest in the joint venture to TMR. The joint venture was known as “Lisoil”. The SPF was created in 1992 to implement Ukraine’s privatization plan.
In 1993, TMR entered into two contracts with LOR, one which provided that TMR and LOR would each have a 50% share of Lisoil and a second which stated that TMR would finance and upgrade several units of LOR’s oil refinery in exchange for LOR’s promise to provide crude or partially processed oil product to the updated units for refining oil. Lisoil was to have ownership of a portion of the refined oil produced by the upgraded units, and TMR was to be paid with proceeds from the sale of that oil. By 1997, Linos began experiencing financial difficulties and stopped giving Lisoil its share of refined oil, resulting in Lisoil’s inability to repay TMR. In 1999, TMR and SPF entered into a contract which provided that, after SPF’s succession to LOR’s 50% interest in Lisoil, the parties agreed not to undertake any actions that might damage the interests of Lisoil. After the contract was signed, TMR asked the SPF to make Linos turn over to Lisoil the refined oil that LOR had promised under the 1993 contract. The SPF refused. TMR eventually initiated arbitration proceedings, resulting in an arbitration award which held that the SPF had breached both the 1993 contract and the 1999 contract (to which it was a signatory). The arbitration panel awarded $36.7 million to TMR, plus interest and costs.
In January 2003, TMR filed a petition for confirmation of the award in the U.S. District Court for the District of Columbia. SPF argued that the district court lacked personal jurisdiction over it, and that in any event, the district court should have dismissed the case under the doctrine of forum non conveniens. The SPF did not contest the notion that the case came within an exception to the Foreign Sovereign Immunities Act for the enforcement of arbitral awards under the New York Convention. Rather, the SPF claimed that the due process clause of the Fifth Amendment to the U.S. Constitution requires a nexus between it and the forum in the District of Columbia.
First, the Court noted that the term “person” in the due process clause of the Fifth Amendment does not include a foreign state. Next the Court turned to the issue of whether the SPF has a constitutional status that is different from the State of Ukraine. In this regard the Court cited the Supreme Court’s 1983 decision in First National City Bank v. Banco Para el Comercio Exterior de Cuba (Bancec), which held that the FSIA “was not intended to affect the substantive law determining the liability of a foreign state or instrumentality” and relied instead on principles of international law and federal common law to determine that there was a presumption of independent status of state agencies. The Court found that the record in this case showed that Ukraine exercised plenary control over the SPF. It concluded that “[i]f the State of Ukraine exerted sufficient control over the SPF to make it an agent of the State, then there is no reason to extend to the SPF a constitutional right that is denied to the sovereign itself.”
Tsai-Yi Yang (“Yang”) and Fu-Chiang Tsui (“Tsui”) are the mother and father in this dispute, respectively. Yang is a resident of British Columbia, Canada, and Tsui is a resident of Pittsburgh, Pennsylvania. A custody dispute led each parent to file for custody for their daughter, resulting in a custody award to the father, Tsui, in Pennsylvania, and a custody award to Yang, the mother, in British Columbia. Having made an unsuccessful attempt at securing voluntary return of her daughter, Yang filed a petition pursuant to ICARA and the Hague Convention in the district court of the Western District of Pennsylvania. (At the time of her petition her daughter was residing in Pennsylvania).
At issue before the U.S. Court of Appeals for the Third Circuit (“the Court”) was whether it should abstain from reviewing the case, given that a state court custody proceeding was pending. This was an issue of first impression in the 3rd circuit, although other circuits have previously addressed the issue.
The Court noted that other circuits have generally concluded that where there are concurrent state court custody proceedings and federal court proceedings pursuant to a petition under the Hague Convention, and where the Hague Convention claim has not been raised in the state court custody proceeding, the federal courts have found that the abstention doctrine should not apply. The Court noted that there is a difference in subject matter between a custody determination and an adjudication of a Hague Convention petition. Whereas a custody litigation proceeding in state court determines the best interest of the child based on domestic state law, an adjudication of a Hague Convention petition focuses on determining where the child was habitually located and whether one parent wrongfully removed or retained the child in accordance with the Hague Convention. The Court noted that the language of the Hague Convention and ICARA themselves provide explicitly that courts in the United States are empowered to determine wrongful removal claims only under the Hague Convention and ICARA, and moreover, they are not to determine the merits of any underlying child custody claim. It further observed that the Hague Convention provides that any state court custody litigation should be stayed pending the outcome of the Hague Convention litigation. In this case, Yang did not raise the Hague Convention claim in state court, and the Court held that it would not abstain from granting jurisdiction over the Hague Convention claim.
For more international law resources on child abduction and child custody, see EISIL.
The U.S. Supreme Court (”the Court”) dismissed Alaska’s claims regarding submerged lands in the Alexander Archipelago. The Court appointed a Special Master, Gregory E. Maggs from whom the justices sought a recommendation in this matter.
Alaska sued the United States pursuant to the Submerged Lands Act, 43 U.S.C. section 1301, the Alaska Statehood Act, and pursuant to the Convention on the Territorial Sea and the Contiguous Zone (“the Convention”), 15 UST 1607. Alaska maintained that, notwithstanding the fact that the submerged lands in the archipelago in question were more than three miles from any island, the archipelago waters were historic inland waters, or in the alternative, a juridical bay in accordance with the Convention. Alaska further contended that it retained presumptive title to the submerged lands even though the bay was a national monument when Alaska was granted statehood.
The historical background to the dispute is as follows: in 1824, the United States and Russia entered into a treaty which granted U.S. vessels the right, over the next 10 years, to “frequent, without hindrance whatever, the interior seas, gulphs, harbours, and creeks [of the Alexander Archipelago], for the purpose of fishing and trading with the natives of the country.” According to Alaska, this treaty shows that Russia’s claim extended to the entire Archipelago and that therefore, Russia treated these archipelago waters as inland waters. The Court disagreed, finding that the Convention does not provide evidence that Russia asserted a right to exclude innocent passage.
Following the expiration of the 10-year right granted to U.S. vessels pursuant to the 1824 Treaty, Russia stationed a brig, the Chichagoff, at the southern border of Russian America. Alaska claimed that this was evidence that Russia’s purpose in stationing the brig there was to exclude foreign vessels from entering the Alexander Archipelago waters.
The Court disagreed, and referring to a 1903 Alaskan Boundary Tribunal report, concluded that the Chichagoff was stationed there as a reminder to American mariners that they were no longer free to trade with the natives. It was not there to exclude foreign vessels engaged only in innocent passage. The Court further concluded that none of the incidents related to Russian sovereignty and the way in which Russia treated the Alexander Archipelago prior to ceding Alaska to the United States in 1867 could support Alaska’s position the Alexander Archipelago constituted inland waters.
The Court found evidence for the notion that the area of the Alexander Archipelago was not considered inland waters from a letter by Secretary of State Bayard in 1886 and reprinted in Moore’s Digest of International Law, which provided that, with respect to waters surrounding the archipelago, the sovereigns of those islands could only claim a territorial sea of three miles from the coast of each island.
Alaska contended that the United States took the position that the area indeed constituted inland waters in a 1903 arbitration proceeding before the Alaska Boundary Tribunal. In its written submission to the Alaska Boundary Tribunal, the United States described its understanding of Alaska’s “political coast”, stating that “the boundary of Alaska,--that is, the exterior boundary from which the marine league [of the territorial sea] is measured,--runs along the outer edge of the Alaskan or Alexander Archipelago, embracing a group composed of hundreds of islands.” The Court disagreed with the United States’ assertion that in this arbitration, the United States’ statement was merely hypothetical, finding that the statement reflected a considered analysis of the Alexander Archipelago area. Nevertheless, the Court still concluded that such submission was not an adequate assertion of authority over the waters.
In the alternative, Alaska contended that the waters of the Alexander Archipelago constituted two vast, but as yet unnoticed, juridical bays, in accordance with Article 5(1) of the Convention, which provides that waters within juridical bays are deemed inland waters. Both parties agreed that in order for the juridical bay claim to survive, four of the Alexander Archipelago islands would have to be deemed to be connected to each other.
The Court rejected Alaska’s alternative theory, finding that its hypothetical juridical bays did not satisfy the requirement that the bays be well-marked indentations, namely, features that would allow a mariner looking at navigational charts that do not depict bay closing lines nonetheless to perceive the bay’s limits in order to avoid illegal encroachment on inland waters.
For more international legal resources on the territorial sea and the contiguous zone, see EISIL.
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