Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law October 17, 2005
Court of First Instance of the European Communities: Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities (September 21, 2005)
The Court of First Instance of the European Communities (the “Court”) delivered its judgment in two cases, which dealt with the subject of the freezing of assets of persons and entities possibly linked to terrorist organizations. In the interest of brevity, only the facts of this case are recited here.
Before and after the attacks of September 11, 2001, the United Nations (“UN”) Security Council (“SC”) adopted a number of resolutions which called upon all member states to freeze funds belonging to persons associated with the Taliban, Usama bin Laden and the Al-Qaeda network and also established a Sanctions Committee to overview the implementation of the resolutions by the member states.
In order to implement those resolutions, the Council of the European Union (the “Council”) adopted several regulations. Council Regulation No 881/2002 reads in pertinent part: “All funds and economic resources belonging to, or owned or held by, a natural or legal person, group or entity designated by the Sanctions Committee and listed in Annex I shall be frozen.”
Several persons and entities affected by measures initiated pursuant to those regulations have requested annulment of those regulations before the Court of First Instance. The applicant in this case is a national of Saudi Arabia, Yassin Abdullah Kadi (“Kadi”), whose assets were frozen. He requested that the regulation in question be annulled as it concerns him. Kadi challenged the measures alleging, inter alia, a breach of the right to a fair hearing, a breach of the fundamental right of respect for property and of the principle of proportionality, and a breach of the right to effective judicial review. The Council and the Commission argued, inter alia, that the Community, like the member states of the United Nations, is bound by resolutions of the SC, “especially those adopted under Chapter VII of the Charter of the United Nations.” In that context the Council and the Commission also mentioned Article 103 of the UN Charter, according to which the obligations under the Charter prevail in a case of conflict between the obligations under the Charter and other obligations.
The Court stated that it had to consider those arguments first before examining a possible infringement of the applicant’s fundamental rights. The Court established the primacy of the obligations under the UN Charter over any other obligation deriving from international treaty law as well as domestic law. This, according to the Court, also applied to obligations under the European Convention on Human Rights. Moreover, this primacy also applied to SC resolutions, because the Member States pledge in Article 25 of the Charter to “accept and carry out the decisions of the Security Council.” Noting that the Community itself is not a member of the UN, the Court held that “[n]evertheless, the Community must be considered to be bound by the obligations under the Charter of the United Nations in the same way as its Member States, by virtue of the Treaty establishing it.” Ultimately the Court upheld the institutions’ arguments and observed that, due to the fact that the regulations in question were merely implemented following an obligation to carry out the SC resolutions, an examination of the regulations would indirectly mean an examination of the legality of the resolutions. To this end, the Court noted that the examination of this issue escaped its jurisdiction, however, it concluded that it “is empowered to check, indirectly, the lawfulness of the resolutions of the Security Council in question with regard to jus cogens.” Concluding that none of the applicant’s right had been violated by a standard of jus cogens, the Court dismissed the action.
International Centre for Settlement of Investment Disputes (ICSID): Plama Consortium Limited v. Republic of Bulgaria, Order on Provisional Measures (September 6, 2005)
The tribunal rejected the claimant’s request for provisional measures.
“(1) that the Respondent immediately discontinue and/or cause to be discontinued all pending proceedings, and refrain from bringing or participating in any future proceedings before the Bulgarian Courts and Bulgarian authorities relating in any way to this arbitration including (i) the reopened insolvency proceedings against Plama; (ii) the execution actions commenced by the ASR and (iii) the execution of the CPC’s decision dated February 10, 2005
(2) that the Respondent takes no action of any kind that might aggravate or further extend the dispute submitted to the Tribunal
(3) that the Tribunal grant any further relief that it deems appropriate to preserve [Plama’s] rights
(4) that Respondent pays [sic] the full costs of this application, including the fees and expenses of PCL’s legal counsel.”
According to the claimant, several proceedings have been brought against Nova Plama (a company which the claimant purchased in Bulgaria) by two creditors in Bulgaria. The claimant argued that the debts claimed by these creditors in the Bulgarian court proceedings are part of the subject matter of dispute before the ICSID tribunal. It argued that it has a right to “non-aggravation of the dispute” pending before the ICSID tribunal, and that the insolvency proceedings in Bulgaria result in aggravation of its ICSID dispute. It further argued that its rights subject to the ICSID arbitration include “the right to fair and equitable treatment of its investment, the right to constant protection and security, non-impairment by unreasonable or discriminatory measures, the right for its investment not to be subject to measures of expropriation or measures having equivalent effect and the right to have an effective means for the assertion of claims and the enforcement of rights under domestic law.” The claimant further asserted that the creditor proceedings are preventing it from the use of its refinery.
The claimant invoked Article 47 of the ICSID Convention, which provides that “[e]xcept as the parties otherwise agree, the Tribunal may, if it considers that the circumstances so require, recommend any provisional measures which should be taken to preserve the respective rights of either party.”
The respondent argued that the relief sought by Plama was unnecessary to preserve any of its rights in the ICSID arbitration, and that the bankruptcy proceedings in Bulgaria have been initiated by private, third-party creditors who have no relation to Bulgaria or are in any way involved in the ICSID arbitration. It asserted that none of the proceedings threatened Plama’s ability to obtain an award of compensation for its claims for breaches of Part III of the Energy Charter Treaty. Moreover, the respondent asserted that, if the tribunal were to grant Plama’s request for provisional measures, such a decision would affect the rights of third parties who are not involved in the ICSID arbitration, as well as “public interest rights generally (such as enforcement of competition law)”.
The tribunal observed that although the bankruptcy proceedings in Bulgaria involving Nova Plama may aggravate the proceedings and result in the claimant’s loss of Nova Plama’s oil refinery, such disruption does not relate to the issues raised in the ICSID arbitration.
The tribunal further noted that the claimant “has not sought restitution or any other relief from this Tribunal which would permit it to continue to operate the Nova Plama refinery.” It concluded that “what is at issue here is Claimant’s right to monetary damages because of Respondent’s alleged breach of Treaty obligations.” The tribunal denied the request and reserved its decision on the costs of the procedure related to the request for provisional measures for a later stage of the arbitration.
The decision provided to the ILM office is not available on the internet.
Click here for the ILIB summary and link to the decision on jurisdiction.
European Court of Human Rights (ECHR) Grand Chamber: Maurice v. France (October 6, 2005)
The judgment is available in French on the Court’s website.
The Court unanimously held that there has been a violation of Article 1 of Protocol No. 1 (protection of property) of the European Convention on Human Rights (the “Convention”). The Court handed down its decision in two cases, but in the interest of brevity, only the facts of this case are recited here.
Mr. and Mrs. Maurice (“the applicants”) brought this application in their own right and as legal representatives of their child, which was born with infantile spinal amyotrophy, a severe disability. The disability was not detected during prenatal tests due to the negligence of the hospital. The applicants’ first child was born with infantile spinal amyotrophy, and on a second pregnancy which revealed the same disorder, the applicants decided to terminate the pregnancy.
The applicants brought an action for damages against the hospital “Hopitaux de Paris” (the “hospital”). Under the urgent procedure, the applicants were awarded EUR 152,499. On appeal, this amount was reduced to EUR 15, 245 due to a new law, the Law of 4 March 2002 which had come into effect in the meantime. This law, which is also known as the “Anti-Perruche-Law” (the “Law”), precludes claims against the hospital or doctor for compensation for special burdens arising due to the child’s disability which was not detected during pregnancy. In the main proceedings, the Paris Administrative Court therefore did not award them any damages relating to the “special burdens arising throughout the life of the child from her disability.” The appeal to this decision is pending before the Paris Administrative Court of Appeal.
The applicants claimed that the Law was infringing their right to peaceful enjoyment of their possessions within the meaning of Article 1 of Protocol 1 to the Convention.
Referring to the previous case law of the Court, the applicants asserted that they had a “possession” in that they had a “legitimate expectation of obtaining full compensation”, and that this compensation was taken away from them by virtue of the Law. The Court reiterated that claims can be possessions in the meaning of that provision, if there is a sufficient basis in national law. The Court found that there existed settled case-law in favor of the applicants and that they therefore had a possession within the meaning of the Convention. Finding that there had also been an interference with this possession, the Court went on to consider whether the infringement was justified. The Court deferred to the national authorities in deciding the “public interest”, acknowledging the government’s motives for the implementation of the Law, which were, as argued before the Court, concerns of fairness, ethical concerns, and the proper organization of the health service. The Court stated that “…the legislature is not in principle precluded in civil matters from intervening to alter the current legal position through a statute which is immediately applicable.”
The Court noted that the mere immediate applicability of the Law to pending cases did not upset the fair balance. However, the Court held that the applicants received inadequate compensation for the loss of the “essential heads of damage, relating to very large sums of money.” The Court also noted that new legislation that has been recently introduced does leave the applicants in uncertainty as to what compensation they will receive.
For these reasons the Court found that the “radical interference with the applicants’ rights upset the fair balance” and pronounced a violation of Article 1 of Protocol 1 of the Convention.
For more resources on the European Court of Human Rights, see EISIL.
Overturning the Chamber judgment, the Grand Chamber of the European Court of Human Rights (the “Court”) held by eleven votes to six that there has been no violation of Article 1 of Protocol No. 1 (protection of property) of the European Convention on Human Rights (the “Convention”).
The applicants are German nationals who inherited land that had been allocated to their relatives during the land reform in the Soviet Occupied Zone of Germany. Under this reform, land was allocated to farmers with some restrictions. However, these restrictions were lifted in a law known as the “Modrow-Law”, which was enacted by the parliament of the German Democratic Republic (the “GDR”) on March 16, 1990, and the individuals received full title to the land. This law remained in effect after the reunification of the GDR and the Federal Republic of Germany. However, after the reunification, the second Property Rights Amendment Act was passed, according to which land allocated during the land reform could only be inherited if on March 15, 1990, activities in the agriculture, forestry or food-industry sectors were carried out. Otherwise property to this land was to be transferred to the tax authorities of the State (Bundesland) without compensation.
The applicants submitted, inter alia, that the obligation to reassign the land to the tax authorities without compensation infringes on their right to the peaceful enjoyment of their possessions as set out in Article 1 of Protocol No. 1 of the Convention.
The Court reiterated that an infringement of property rights without compensation could only be permissible under exceptional circumstances. The issue was whether a “fair balance” had been struck between the protection of the right of property and the public interest. In its analysis, the Court considered the unique context of the German unification and also stated that a state has a “wide margin of appreciation when passing laws in the context of a change of political and economic regime.” The Court pointed out three factors that it considers to be decisive:
The Modrow-Law was enacted during a transitional period by a parliament that had not been democratically elected and the applicants could therefore “not be sure that their legal position would be maintained.”
The Court took account of the “huge task” the legislature faced “when dealing with… property rights during the transition to a democratic, market-economy regime.” In this respect the Court noted that the German legislature acted within a reasonable time in order to undo what, in its view, were the unjust results of the Modrow-Law.
According to the Court, the applicants benefited from a windfall-situation as a result of the Modrow-Law and the second Property Rights Amendment Act was enacted in the interest of social justice.
The Court concluded that, given the unique circumstances of the German reunification, the infringement without compensation did not strike an unfair balance. It therefore held that there has been no violation of the applicants’ property rights.
For more resources on the European Court of Human Rights, see EISIL.
Spain’s Tribunal Constitucional (“the Court”) overturned the decision of Spain’s Tribunal Supremo, finding that the jurisdiction provision for crimes against humanity, incorporated in Spain’s criminal code, was not limited, either by the language of the code or by other principles of international law, to cases involving Spanish nationals who were victims of genocide.
The Court delivered its opinion based on three appeals granted to Rigoberta Menchu Tum and others. The Tribunal Supremo had decided in 2003 that its jurisdiction was limited to acts of genocide in which Spanish nationals were victims, and in doing so relied on recent decisions by both German and Belgium courts in support of its conclusion.
The Court observed that the limitations on jurisdiction imposed by the Tribunal Supremo do not appear either in the Spanish criminal code or in the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”). The Court found that the lower court misread Article 23.4g of Spain’s Ley Orgánica del Poder Judicial (LOPJ), for the only restriction on jurisdiction is that the accused must not have already been brought before another court for the crimes in question. In particular, the Court held that Article VI of the Genocide Convention, which provides that “Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction” does not create any limitation on the exercise of universal jurisdiction; moreover, any such restriction imposed by the courts would deprive the Genocide Convention of its meaning and purpose.
For further analysis of the lower court’s decisions, see the Introductory Note by Luis Benavides, 42 ILM 683(2003), also available in Lexis and Westlaw.
Twenty-Seventh International Conference of Data Protection and Privacy Commissioners: Montreux Declaration- The protection of personal data and privacy in a globalised world: a universal right respecting diversities; Resolution on the use of biometrics in passports, identity cards and travel (September 16, 2005)
Click here for the Montreux Declaration on personal data and privacy
Click here for the resolution on the use of biometrics.
At the 27th International Conference of Data Protection and Privacy Commissioners, the Commissioners issued the Montreux Declaration in which they expressed their concern, inter alia, over disparities between different legal systems in relation to the protection of data protection and privacy. They also stated that the right to data protection and privacy “is an essential condition in a democratic society in order to safeguard the respect for the rights of the people, a free flow of information and an open market economy.”
The Commissioners agreed to the following goals:
“(a) to intensify in particular the exchange of information, the coordination of their supervisory activities, the development of common standards, the promotion of information concerning the activities and resolutions of this conference;
(b) to promote cooperation with countries which do not yet have independent supervisory data protection authorities;
(c) to promote the exchange of information with international Non Governmental Organisations which are dealing with data protection and privacy;
(d) to collaborate with the data protection officers of organizations;
(e) to create a permanent website in particular as a common base for information and resources management.”
The Commissioners also appealed, inter alia, “to international and supra-national organisations to commit themselves to complying with principles that are compatible with the principal international instruments dealing with data protection and privacy…” and “to hardware and software manufacturers to develop products and systems integrating privacy enhancing technologies.”
Also at this conference, the Commissioners released a Resolution on the use of biometrics in passports, identity cards and travel documents, which calls for “(1)effective safeguards to be implemented at an early stage to limit the risks inherent to the nature of biometrics, (2) the strict distinction between biometric data collected and stored for public purposes (e.g. border control) on the basis of legal obligations and for contractual purposes on the basis of consent, (3) the technical restriction of the use of biometrics in passports and identity cards to verification purposes comparing the data in the document with the data provided by the holder when presenting the document.”
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
