Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law August 25, 2005
Supreme Court of Israel: Mara’abe
v. The Prime Minister of Israel (September
15, 2005)
Click here for a link containing the Israeli Supreme Court decisions
The Supreme Court of Israel (“the Court”), sitting
as a High Court of Justice, unanimously issued
an order absolute,
which requires the state to reconsider “the
various alternatives for the separation fence route
at Alfei Menashe, while examining security alternatives
which injure the fabric of life of the residents
of the villages of the enclave to a lesser extent.”
This judgment
concerns the legality of the wall or barrier* in
the area of Alfei Menashe, an Israeli settlement
in the West Bank, located 4 km from the Green Line.
According to Israel, the separation fence, which
surrounds five Palestinian villages, was built
to prevent terrorist infiltration into the State
of Israel. The villagers received permanent resident
cards, which allow them to enter the enclave. Palestinians
who are not residents of the villages have to obtain
permits in order to enter the area. The petitioners,
who are residents of the villages within the enclave,
challenge the legality of the wall, arguing that
the military commander is not authorized to order
the construction of such a barrier. The petitioners
base their claim on the Advisory Opinion: Legal Consequences Of The Construction Of A Wall In The Occupied Palestinian
Territory (“the
Advisory Opinion”) rendered by the International Court of Justice (“the ICJ”). The
petitioners also challenged the validity of the
wall under The Beit Sourik Case rendered by the Supreme
Court of Israel, because it does not meet the proportionality
test established in that case. The Respondents
contend that “the military commander is authorized
to erect a separation fence, as ruled in The Beit Sourik Case,” and that the
ICJ Advisory Opinion is not of relevance because
it was decided on facts other than those established
in The Beit
Sourik Case.
The Court reiterated
its findings in The
Beit Sourik Case, in which it held that
a “military commander is not authorized to
order the construction of the separation fence
if his reasons are political.” The Court
further stated that in order to erect such a wall,
taking possession of land belonging to Palestinians
is necessary. According to theRegulations Concerning the Laws and Customs of War on Land (“the
Hague Regulations”) and theGeneva (IV) Convention Relative to the Protection of Civilian Persons
in Time of War 1949, the taking
of possession must be for “needs of the army
of occupation”, and is only allowed if it
is “absolutely necessary by military operation.” The
Court concluded that the military commander’s
authority entails actions taken in order to ensure
public order and security, and also comprises actions
aimed at protection of Israeli settlers.
In its Advisory
Opinion, the ICJ held that the right to self-defense
under Article 51 of the Charter of the United Nations did not have any relevance to
the case, because the attacks did not derive from
another State. The ICJ also noted that the attacks
originated within the territory occupied by Israel,
where it exercises control. The Court found the
ICJ ruling “hard to come to terms with,” and
stated that it did not need to “thoroughly
examine” the issue, as it held that “regulation
43 of the Hague Regulations authorizes the military
commander to take all necessary action to preserve
security.”
The Court then
compared the Advisory Opinion to The
Beit Sourik Case, and concluded that
the ICJ, too, had held that the “harm to
the Palestinian residents would not violate international
law if the harm was caused as a result of military
necessity, national security requirements, or public
order.” According to the Court, the difference
in result “stems from the difference in the
factual basis laid before the court. The security-military
necessity is mentioned only most minimally in the
sources upon which the ICJ based its opinion.” Moreover,
the Court stated that the ICJ considered the “entire
route” of the wall, whereas The
Beit Sourik decision only pertained
to a part of it.
The Court then
came to the question of what effect the Advisory
Opinion would have “on the future approach
of the Supreme Court on the question of the legality
of the separation fence according to international
law as determined in The
Beit Sourik Case?” It answered
this question as follows: [T]he Supreme
Court of Israel shall give the full appropriate
weight to the norms of international law, as developed
and interpreted by the ICJ in its Advisory Opinion.
However, the ICJ's conclusion, based upon a factual
basis different than the one before us, is not res
judicata, and does not obligate the
Supreme Court of Israel to rule that each and every
segment of the fence violates international law.
The Israeli Court shall continue to examine each
of the segments of the fence, as they are brought
for its decision and according to its customary
model of proceedings; it shall ask itself, regarding
each and every segment, whether it represents a
proportional balance between the security-military
need and the rights of the local population.”
With respect to
the existing route of the wall around Alfei Menashe,
the Court found that the military commander had
the authority to erect the wall, since the building
of the wall was merely motivated by a “security
consideration”, and not by political reasons.
The petitioners’ request that the wall be
built on the Green Line was rejected due to the
security-military considerations laid out by the
Respondents. The Court stated: “[A]ny
route of the fence must take into account the need
to provide security for the…residents of
Alfei Menashe.”
The
Court then had to decide whether the military commander
had exercised his authority proportionately. With
respect to the existing route of the wall the Court
determined that “the details of an alternative
route have not been examined, in order to ensure
security with a lesser injury to the residents
of the village.” For this reason, the route
of the fence did not meet the proportionality test,
and the Respondent must reconsider the existing
route.
*The barrier in question has
been described as a “wall” by
the U.N. General Assembly and International
Court of Justice, and as a “separation
fence” by the Israeli courts.
The Court reversed
the judgment of the district court, which held
that the President lacks the authority to detain
Padilla and that Padilla should therefore be either
criminally charged or released.
Jose Padilla,
a US citizen, was arrested in May 2002 at the Chicago
airport when he was returning from Pakistan. After
Padilla left the battlefield in Afghanistan, where
he had been fighting against the US forces, he
was recruited by al Qaeda members in Pakistan in
order to come to the United States and commit terrorist
attacks within the country. Subsequent to the President’s
determination of Padilla as an “enemy combatant”,
Padilla was taken into military custody, where
he has remained since.
Padilla filed
this petition for a writ of habeas corpus, and
the district court found that the President lacks
the authority to detain Padilla, and that his detention
violates the Constitution and laws of the United
States. The district court held that Padilla should
either be criminally charged or released. The issue
before the Court was “whether the President
of the United States possesses the authority to
detain militarily a citizen of this country who
is closely associated with al Qaeda, an entity
with which the United States is at war; who took
up arms on behalf of that enemy and against our
country in a foreign combat zone of that war; and who
thereafter traveled to the United States for the
avowed purpose of further prosecuting that war
on American soil, against American citizens and
targets.” The Court affirmed this authority
of the President pursuant to the Congress’ Authorization for Use of Military Force Joint Resolution (“the
AUMF”), which states “[t]hat the President
is authorized to use all necessary and appropriate
force…in order to prevent any future acts
of international terrorism.” The Court cited Hamdi v. Rumsfeld, in which the Supreme Court (“the
SC”) upheld the authority of the Executive
to militarily detain citizens who qualify as “enemy
combatants”. The Court concluded that, like
Hamdi, Padilla was an enemy combatant, and that
his military detention was therefore justified
under the AUMF. Padilla claimed that his situation
was different from Hamdi’s in that he was
seized on US soil, and that he therefore did not
fall within the narrow scope of the SC’s
opinion. The Court mentioned that the SC decision
did not refer to the site of the seizure and that Hamdi v. Rumsfeld permitted the detention of a person
who was engaged in “supporting forces hostile
to the United States” and who was “engaged
in armed conflict against the United States”.
Moreover, the Court held, that the distinction
by way of locus of seizure was not compatible with
the reasoning of the Court, which allowed the military
detention because “detention to prevent a
combatant’s return to the battlefield is
a fundamental incident of waging war.” The
Court found that this necessity was the same in
Padilla’s therefore rejected the argument.
Padilla further asserted that his military detention
is not “necessary and appropriate”,
because he is “amenable to criminal prosecution.” The
Court again noted that in this respect, his situation
did not differ from Hamdi’s, and that if “the
mere availability of criminal prosecution rendered
detention unnecessary within the meaning of the
AUMF, then Hamdi’s detention would have been
unnecessary and therefore unauthorized.” Moreover,
the Court was convinced “that the availability
of criminal process cannot be determinative of
the power to detain, if for no other reason than
that criminal prosecution may well not achieve
the very purpose for which detention is authorized
in the first place - - the prevention of return
to the field of the battle.”
Permanent Court of Arbitration (PCA): Case
Concerning Land Reclamation By Singapore
in and around the Straits of Johor (Malaysia
v. Singapore) (September 1,
2005)
The tribunal held that it had jurisdiction to render
the award. It also acceded to the joint request
by the parties to deliver a final, binding
award in accordance with the terms set forth
in the parties’ settlement agreement,
which is annexed to the award.
On July 4, 2003,
Malaysia transmitted to Singapore a notification
for the institution of arbitral proceeding as set
forth in Annex VII to the United Nations Convention on the Law of the Sea (UNCLOS) for
a dispute concerning land reclamation by Singapore
in and around the Straits of Johor, and a request
for provisional measures pending the constitution
of an arbitral tribunal in accordance with Annex
VII to UNCLOS. On September 5, 2003, Malaysia transmitted
to the International Tribunal for the Law of the
Sea (ITLOS) a request for provisional measures
in accordance with article 290 of UNCLOS. Malaysia
appointed Dr. Kamal Hossein and Singapore appointed
Professor Bernard H. Oxman to sit as judges ad
hoc in this instance at ITLOS, and they were admitted
to sit as ad hoc judges on September 24, 2003.
This ad hoc tribunal prescribed provisional
measures which provided, inter alia, that Malaysia and Singapore
establish promptly a group of independent experts
to determine the effects of Singapore’s land
reclamation and to propose, as appropriate, measures
to deal with any adverse effects of such land reclamation
and to avoid any action incompatible with the effective
implementation of this order. The provisional measures
also directed Singapore not to conduct its land
reclamation in ways that could cause irreparable
prejudice to Malaysia’s rights or serious
harm to the marine environment.
On October 10,
2003, the President of ITLOS appointed three additional
members to serve on an ad hoc arbitral tribunal
to resolve the dispute in accordance with UNCLOS:
Mr. Christopher Pinto (President), Professor Ivan
Shearer and Sir Arthur Watts, KCMG QC. This tribunal
designated the Permanent Court of Arbitration as
its registry for the arbitration. On April 26,
2005, the parties signed a settlement agreement.
The settlement agreement is in full and definitive
settlement of the dispute in regard to the land
reclamation and related issues. The parties agreed
that the maritime boundaries issues would be resolved
through amicable negotiations, without prejudice
to the existing rights of the parties under international
law to resort to dispute settlement. The settlement
agreement provides, inter alia, that Singapore shall modify
the final design of the shoreline of its land reclamation
in a certain area at Pulau Tekong, that Singapore
shall carry out maintenance drudging as is necessary
to ensure a limit on the depth of a certain dredged
area, and that Singapore shall pay a lump sum of
374,400 Malaysian Ringgit to compensate Malaysian
fishermen for losses as a result of the reclamation
works.
See EISIL for more resources on dispute settlement concerning the
Law of the Sea.
United States Court of Appeals for the Second Circuit: Alvero Belgium Insurance (formerly Royal and Sun Alliance
Insurance) v. American Airlines, Inc. et
al. (September 7, 2005)
Decision available on Lexis.
The U.S. Court of Appeals for the Second Circuit
(“the Court”) held that the United
States did not consent to be bound by the 1955 Hague Protocol by virtue of its ratification of Montreal Protocol No. 4, and it reversed and remanded the decision
of the district court.
The appeal arose
in the context of an attempt by a shipper to recover
from an air carrier for loss of goods transported
by international air freight. At issue before the
Court was which version of the treaty governing
air transportation was in effect between the United
States and Belgium in March 9, 2001, the date on
which the air carrier’s waybill in this case
was issued, and specifically, whether the United
States was a party to The Hague Protocol of 1955
that amended the Warsaw Convention of 1929.
On March 9, 2001,
American Airlines, Inc. (“AA” or “the
defendant”) issued an air waybill to ASCO
Industries (“Asco”) for the carriage
of five crates from Brussels, Belgium to Tulsa,
Oklahoma, USA, however only one out of the five
crates arrived. In August 2002, Asco’s subrogated
underwriter, Royal & Sun Alliance Insurance
(“the plaintiff”), brought an action
for damages for the loss of the remaining crates.
In district court, the defendant claimed that its
liability for the lost crates was limited to $20
per kilogram by Article 22(2) of the Original Warsaw
Convention. The plaintiff contended that the defendant
could not avail itself of the limitation on liability
set forth in Article 22(2) of the Original Warsaw
Convention because the defendant had failed to
comply with the requirements of Articles 9 and
8(c) of the Convention, both of which had to be
fulfilled in order to trigger Article 22(2)’s
limitation of liability. Article 9 provides that “if
the air waybill does not contain all the particulars
set out in article 8(a) to (i)…, the carrier shall not be entitled
to avail itself of the provisions of this convention
which exclude or limit his liability.” Article
8(c) requires that “the air waybill shall
contain … the agreed stopping places.”
The defendant
argued that in 2001, the United States and Belgium
both adhered to the amended version of the Warsaw
Convention adopted by The Hague Protocol of 1955
rather than the original Warsaw Convention, and
that The Hague Protocol deleted most of the air
consignment note requirements of the original Warsaw
Convention.
The Court noted
that two factors are to be considered in determining
whether an international agreement constitutes
binding treaty law in the United States: (1) whether
the United States has consented to be bound by
that agreement, and (2) whether that agreement,
by its terms, has entered into force as of the
date in question. The Court referred to its earlier
decision in Flores
v. Southern Peru Copper Corp. in which
it recognized that a “State only becomes
bound by-that is, becomes a party to a treaty when
it ratifies the treaty.” It also noted that
Article 28 of the Vienna Convention on the Law of Treaties confirms that, “unless
a different intention appears from the treaty or
is otherwise established, its provisions do not
bind a party in relation to any act or fact which
took place or any situation which ceased to exist
before the date of the entry into force of the
treaty with respect to that party.”
The Court concluded
that although the United States signed The Hague
Protocol in 1956, as of March 9, 2001, the date
on which the defendant issued the air waybill to
Asco, the Senate had not given its advice and consent
to its ratification. The Court noted that following
the events related to this lawsuit, the Department
of State acknowledged the difficulty in determining
whether the United States, by reason of its adherence
to Montreal Protocol No. 4, had also become a party
to The Hague Protocol. Later, U.S. President George
W. Bush re-transmitted The Hague Protocol to the
Senate for advice and consent. The Senate approved
The Hague Protocol on July 31, 2003, and it was
ratified by President Bush effective December 14,
2003.
For
more resources concerning air transport, see EISIL.
United Nations (U.N.) Convention against Corruption
to enter into force
The United Nations
Convention against Corruption will enter into force
on December 14, 2005, ninety days after the 30th ratification.
It seems however noteworthy, that this global Convention
has only been ratified by two EU member countries
and has not been ratified by the United States.
For the January,
2004 International Law in Brief on the contents
of the Convention, click here.
Methanex
Corporation v. U.S.: The Aftermath
Wednesday, October 19 2005 12:30 pm - 2:00 pm Washington, DC - United States
Co-Sponsored by the District of Columbia Bar International Law Section and
ASIL
In a long-awaited
ruling, a three-member arbitral tribunal under
NAFTA Chapter 11 has rejected a controversial claim
by the Canadian chemical company Methanex Corp.
against the United States Government, awarding
the government $4 million in fees. Methanex
had sought nearly $1 billion in damages allegedly
arising out of California’s ban on the gasoline
additive “MTBE,” a source of groundwater
contamination. This case was closely watched
by NGOs concerned with the use of NAFTA Chapter
11 to challenge environmental regulations. Was
the case correctly decided? Will it discourage
similar claims in the future? What kind of
precedent has been set by the panel’s rulings
on expropriation, national treatment, jurisdiction,
admissibility of evidence and amicus participation? Please
join us along with our co-sponsors, the American
Society of International Law, for this informative
discussion. Lead counsel for both parties, as well
as the leader of an NGO (and amicus curiae) will
dissect the decision and explore its ramifications
for the future of investor-state arbitration.
Speakers:
Andrea J. Menaker, Chief, NAFTA Arbitration
Division, Office of International Claims and Investment
Disputes, Office of the Legal Adviser, U.S. Department
of State
Christopher F. Dugan, Partner, Paul,
Hastings, Janofsky & Walker LLP
Daniel B. Magraw, Jr, President,
Center for International Environmental Law
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
