Article 1 provides that the Annex will apply to environmental emergencies in the Antarctic Treaty area relating to scientific research, tourism and other governmental and non-governmental activities for which advance notice is required under Article VII(5) of the Antarctic Treaty. The Annex also applies to tourist vessels that enter the Antarctic Treaty area.
Article 3 sets forth preventive measures that each Party shall require its operators to undertake in order to reduce environmental emergencies and their potential adverse impact.
Article 5, entitled “Response Action”, provides that each Party shall require each of its operators to take prompt and effective action in response to any environmental emergencies arising from the operator’s activities, and sets forth notification procedures.
Article 6 sets forth the conditions for liability for environmental emergencies. It provides that “an operator that fails to take prompt and effective response action to environmental emergencies arising from its activities shall be liable to pay the costs of response action taken by Parties pursuant to Article 5(2) to such Parties.” Article 6(3) provides for strict liability, and Article 6(4) provides for joint and several liability in the event that an environmental emergency arises from the activities of two or more operators.
For more information on the Antarctic Treaty June 2005 Consultative meeting, click here
Article 2 states that the purpose of the Convention on the Prevention of Terrorism (“the Convention”) is to help to prevent terrorism and its negative impact on the full enjoyment of human rights, in particular the right to life. It provides that measures will be taken at the national level and through international cooperation.
Article 5 sets forth the definition of “public provocation to commit a terrorist offence”: “ the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger than one or more such offences may be committed.” Article 5(2) provides that each Party must adopt measures necessary to establish public provocation to commit a terrorist offence as a criminal offence under its domestic law.
Articles 6 and 7 state that the Parties to the Convention shall establish “recruitment for terrorism” and “training for terrorism” as crimes under their domestic laws. Article 6 defines recruitment for terrorism as follows: “to solicit another person to commit or participate in the commission of a terrorist offence, or to join an association or group, for the purpose of contributing to the commission of one or more terrorist offences by the association or the group.”
Article 7 defines “training for terrorism” as “to provide instruction in the making or use of explosives, firearms or other weapons or noxious or hazardous substances, or in other specific methods or techniques, for the purpose of carrying out or contributing to the commission of a terrorist offence, knowing that the skills provided are intended to be used for this purpose.”
Article 12 provides that, notwithstanding the crimes to be set forth under domestic law under Articles 5 to 7 and 9 of Convention, the right to freedom of expression , freedom of association and freedom of religion are to be protected, as set forth in the Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, and other obligations under international law.
Council of Europe: Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (May 16, 2005)
The Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, recalling Security Council Resolution 1373 (2001), sets forth measures to implement the International Convention for the Suppression of the Financing of Terrorism.
Article 2 provides that each Party shall have the ability “to search, trace, identify, freeze, seize and confiscate property, of a licit or illicit origin, used or allocated to be used by any means, in whole or in part, for the financing of terrorism, or the proceeds of this offence, and to provide co-operation to this end to the widest possible extent” and Article 3 calls on the Parties to adopt legislation that enables them to confiscate “instrumentalities and proceeds or property the value of which corresponds to such proceeds and laundered property.”
Article 7 sets forth measures designed to give courts power to order banks and other financial institutions to obtain financial records. It also notes that “Parties shall consider extending this provision to accounts held in non-bank financial institutions.”
Articles 12-15 provide for the creation of a Financial Intelligence Unit (FIU). Article 12(2) states that each Party shall ensure that the FIU has access, on a timely basis, to financial, administrative and law enforcement information.
United Kingdom (U.K.) Supreme Court of Judicature Court of Appeal (Civil Division): Occidental Exploration and Production Company v. Republic of Ecuador (September 9, 2005)
The U.K. Supreme Court of Judicature Court of Appeal (“the court”) held that, in accordance with the U.K. 1996 Arbitration Act, it had the power to consider a challenge to the jurisdiction of an arbitral tribunal that has issued an award and damages under a Bilateral Investment Treaty. (Click here for the award)
The appeal in this case is from a judgment of the Queen’s Bench Division concerning the question of whether, in accordance with section 67 of the U.K. Arbitration Act, English courts may consider a challenge to the jurisdiction of an arbitration award made pursuant to the Ecuador-U.S. Bilateral Investment Treaty (“BIT”). The arbitration was conducted pursuant to the UNCITRAL Arbitration Rules, and London was the designated place of arbitration. In the arbitration award, Occidental Exploration (“Occidental”) was awarded damages for, inter alia, breach of the national treatment and fair and equitable treatment of the BIT.
Ecuador sought to have the arbitration award set aside in August 2004. Occidental objected to Ecuador’s motion, contending that Ecuador’s challenge would require the English courts to interpret the BIT, in violation of a rule of English law that would make such interpretation “non-justiciable.”
On appeal the court observed, “ [w]e see no good reason why any arbitration held pursuant to such an agreement, or any supervisory role which the court of the place of arbitration may have in relation to any such arbitration, should be categorized as being concerned with “transactions between States” so as to invoke the principle of non-justiciability in Buttes Gas. …If issues regarding jurisdiction are justiciable before the arbitrators, we do not find it easy to see why they should be regarded as non-justiciable before the English Court.”
The court further held that the recognition and enforcement provisions of the New York Convention constituted a significant factor weighing in favor of the court’s exercise of jurisdiction. It also noted that the parties to the BIT and the parties in the dispute understood that courts could refuse to recognize an arbitral award based on want or excess of jurisdiction of the arbitrators, and that this principle was put into effect by means of section 103 of the U.K. 1996 Arbitration Act.
See EISIL for more resources on the enforcement and recognition of arbitration awards.
The Applicant, Bosphorus Hava Yollari (“BHY”), is a Turkish airline, which leased two Boeing aircraft from Yugoslav Airlines (“JAT”) in 1992. In 1991, the United Nations pronounced sanctions against the Federal Republic of Yugoslavia (“FRY”), due to the armed conflict and human rights violations that occurred in the FRY. In 1993, the UN Security Council (“SC”) adopted Resolution 820, which called on States to impound aircraft in their territories “in which a majority or controlling interest is held by a person or undertaking in or operating” from the FRY. While one of the leased aircraft was at Dublin Airport, for maintenance service, it was impounded by the Irish authorities pursuant to EC Regulation 990/93, which implemented SC Resolution 820.
BHY’s challenge of the impoundment was successful before the High Court, which found that Article 8 of the EC Regulation did not apply to the aircraft and the decision to impound was therefore “ultra vires.” The Supreme Court, on appeal, referred the issue of whether Article 8 of that Regulation applied to the aircraft to the European Court of Justice (“ECJ”). This issue was disputed because, although the aircraft was property of the Yugoslav Airlines, it was leased by the Turkish airline. The ECJ held that the Regulation applied to the aircraft.
The applicant asserted that Ireland exercised discretion in the implementation of the sanctions that was subject to review in accordance with Article 1 of Protocol 1 of the Convention. The Court found against the applicants’ submissions, that the EC Regulation was “generally applicable” and “binding in its entirety,” and that the interference with the property was therefore“not the result of an exercise of discretion by the Irish authorities, either under EC or Irish law, but rather amounted to compliance by the Irish State with its legal obligations flowing from EC law and, in particular, Article 8 of EC Regulation 990/93.” The Court then had to strike a balance between Ireland’s obligations towards the EC on the one hand, and the rights under the Convention on the other. The Court stated that an interference with the property rights had occurred, and that “compliance with EC law by a Contracting Party constitutes a legitimate general interest” as required by Article 1 of Protocol No. 1. The Court then reiterated that, although a Contracting Party is responsible for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations,” such state action taken in compliance with other international legal obligations will be justified as long as the relevant organization is considered to protect fundamental rights…in a manner which can be considered at least equivalent to that for which the Conventions provides.” The “presumption will be that a state has not departed from the requirements of the Convention” when it merely implements legal obligations. Finding that such a presumption existed in favor of the EC and that this presumption had not been rebutted, the Court held that Article 1 of Protocol 1 was not violated.
For more resources on the European Court of Human Rights, see EISIL.
Powszechny Zaklad Ubezpieczen (“PZU”) was a wholly state-owned, Polish insurance company. In 1999, the State Treasury of the Republic of Poland published an invitation for an international tender to sell 30% of the share capital of PZU. After negotiations, the State Treasury of the Republic of Poland selected Eureko B.V., (“Eureko”) a company incorporated in the Kingdom of the Netherlands, along with another buyer and entered into a share purchase agreement (“SPA”).
Eureko claimed that within a few months following the execution of the SPA, there were several acts of political interference with the privatization that continued from 2000-2002, resulting in delays of the initial public offering. Eureko contended that as a result of its investment in PZU, it acquired rights that were entitled to protection by the Republic of Poland pursuant to the BIT, and such rights were frustrated by measures attributable to the Republic of Poland.
The Republic of Poland contended that Eureko’s claims were inadmissible since they were predicated upon contractual claims. It relied on the terms of the SPA, which provided that disputes concerning the SPA would be subject to the exclusive jurisdiction of a “Polish public court competent with respect to the Seller.” Referring, inter alia, to the decision of the ad hoc Committee in the Vivendi annulment decision, the Republic of Poland also submitted that international law requires that the extent of the State’s contractual obligations must first be determined by the forum selected in the contract before a tribunal constituted pursuant to an investment treaty can consider whether the State breached its treaty obligations.
The tribunal noted that the Vivendi annulment tribunal held that where “ ‘the fundamental basis of the claim’ is the treaty laying down an independent standard by which the conduct of the parties may be judged, the existence of an exclusive jurisdiction clause in a contract between the claimant and the respondent state…cannot operate as a bar to the application of the treaty standard. At most, it might be relevant…in assessing whether there has been a breach of the treaty.” (para 101).
The tribunal found that the principle underlying the decision of the ad hoc committee in Vivendi required it to consider whether the facts of this case constituted breaches of the BIT.
On the merits, the tribunal concluded that the Republic of Poland breached its international law obligations under the BIT when in late 2001 to early 2002, it abruptly altered its privatization strategy that had been approved by a government resolution in 1999. The tribunal found that Eureko had relied on the 1999 resolution when it invested in Poland by initially purchasing a 30% minority share of PZU. The tribunal found that even though the terms of the SPA itself did not create a legal obligation for the Republic of Poland to carry out the initial public offering of some or all of the remaining shares of PZU, the tribunal concluded that Eureko was fully justified, at the time of entering into the SPA, in believing that the Republic of Poland would honor and abide by the principles set forth in its 1999 resolution, and the failure to do so resulted in violations of the fair and equitable treatment (Article 3 of the BIT) and acts tantamount to expropriation (Article 5 of the BIT).
In his dissenting opinion, Jerzy Rajski concluded that the dispute was of a purely contractual nature, not giving rise to a dispute under the BIT. He also criticized the majority for failing to interpret the contractual issues under Polish law.
On remand from the Supreme Court, the United States Court of Appeals for the District of Columbia Circuit (the “Court”) held that the case presented a “ nonjusticiable political question, namely, whether the governments of the appellants’ countries foreclosed the appellants’ claims in the peace treaties they signed with Japan.”
Fifteen women from China, Taiwan, South Korea, and the Philippines sued Japan over money damages for allegedly having been subjected to sexual slavery and torture before and during World War II. The suit was initially filed in the district court under the Alien Tort Statute, and the district court dismissed the case, finding that Japan’s activities did not fall under the commercial activity exception of the Foreign Sovereign Immunities Act (“FSIA”). Alternatively, the district court held that the complaint presented a “nonjusticiable political question, due to a “series of treaties signed after the war” that “clearly aimed at resolving all war claims against Japan.” The Court affirmed this decision on the ground that the alleged activities occurred before the FSIA was passed, and that according to the law applicable at the time, Japan would have been afforded absolute immunity. However, the Supreme Court held in Republic of Austria v. Altmann, that the FSIA applied “regardless of when the underlying conduct occurred.” Therefore, the Supreme Court vacated the Court of Appeals judgment in this case and remanded it for consideration.
The Court disagreed with the appellants’ argument that it had to “establish jurisdiction under the FSIA” before deciding that the case was nonjusticiable under the political question doctrine, because a dismissal based on the political question doctrine is not an adjudication on the merits.
The Court pointed out that Japan has signed peace treaties long ago with all of the governments of the appellants' countries. Moreover, the Court continued, “judicial intrusion into the relations between Japan and other foreign governments would impinge upon the ability of the President to conduct the foreign relations of the United States.” Japan and the Allied Powers had concluded a Treaty of Peace in 1951 (the “Treaty”), in which “all claims of the Allied Powers and their nationals” were waived. The appellants argued that this Treaty did not affect their rights, as their governments were not parties to it. The appellants also asserted that their claims against Japan were not affected by the treaties signed by their own governments, as those treaties did not explicitly mention claims of individuals.
The Court agreed with the argument raised by the United States in the “Statement of Interest of the United States” that it would be “anomalous” to allow foreign nationals to sue Japan in the courts of the United States, while U.S. nationals would be precluded from doing so. Noting that “[t]he question whether the war-related claims of foreign nationals were extinguished … is one that concerns the United States only with respect to her foreign relations, the authority for which is demonstrably committed…to the political branches,” the Court dismissed the case under the political question doctrine.
U.S. Court of Appeals for the Fifth Circuit: Gomez v. Dretke (August 17, 2005)
The U.S. Court of Appeals for the Fifth Circuit (“the court”) decided to stay the proceedings pending the petitioner’s re-exhaustion of state remedies.
Gomez, an inmate convicted in state court of capital murder, sought a writ of habeas corpus, claiming, inter alia, a violation of the Vienna Convention on Consular Relations, 21 U.S.T. 77, 596 U.N.T.S. 261 (the “Vienna Convention”).
The court noted that a panel of this same court had denied the petitioner’s claims in Medellin v. Dretke, based on the procedural default rule. Medellin then brought a case before the U.S. Supreme Court, where he argued that the International Court of Justice decision in the Case Concerning Avena and other Mexican Nationals, 2004 ICJ No. 128 (March 31, 2004) required that habeas relief be available to him and that his Vienna Convention claim should be considered following the Avena decision. After the briefing in the U.S. Supreme Court case of Medellin had been completed, the U.S. President advised the Attorney General that “the United States will discharge its international obligations under the decision of the [ICJ in Avena] by having state courts give effect to the decision in accordance with the general principles of comity.” The U.S. Supreme Court decided to stay its proceedings pending his pursuit of relief in state court, finding that the “state proceeding may provide Medellin with the review and reconsideration of his Vienna Convention claim that the ICJ required. ” The Supreme Court also dismissed Medellin’s writ as “improvidently granted.”
In this case, the court noted that even if the petitioner’s Vienna Convention claim were entitled to a certificate of appealablity, “there is a question whether a treaty based violation would fall under the category of ‘nonconstitutional lapses we have held not cognizable in a postconviction proceeding’ unless they meet the ‘fundamental defect test.’” Medellin, 125 S. Ct at 2090. The court concluded that staying the proceedings pending the resolution of Gomez’s successive habeas application would allow it to avoid “myriad constitutional quandaries.” It also concluded that staying the federal court proceedings pending Gomez’s re-exhaustion of state remedies would be in line with its jurisprudence that has consistently underscored the central importance of cooperation between the parallel systems of state and federal courts.
Click here for more ASIL resources on the Avena case.
SOVEREIGNTY, SUPREMACY, SUBSIDIARITY: THE SHIFTING ALLOCATION OF AUTHORITY IN INTERNATIONAL LAW: AN INTERNATIONAL CONFERENCE IN HONOR OF PROF. RUTH LAPIDOTH,
(recipient of the 2000 ASIL Prominent Women in International Law Award)
June 18-20, 2006
Hebrew university of Jerusalem, Mt. Scopus, Jerusalem, Israel
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