Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law November 15, 2005
The UNESCO General conference adopted the UNESCO Convention on Cultural Diversity “the Convention”), a treaty jointly negotiated by the European Commission, on behalf of the European Community, and the European Council, on behalf of member States.
The Convention’s main objective is to take into account cultural diversity when developing other policies. The preamble emphasizes “the need to incorporate culture as a strategic element in national and international development policies, as well as in international development cooperation, taking into account also the United Nations Millennium Declaration (2000) with its special emphasis on poverty eradication.”
Article 1(h) of the Convention lists as one of the objectives “to reaffirm the sovereign rights of States to maintain, adopt, and implement policies and measures that they deem appropriate for the protection and promotion of the diversity of cultural expressions on their territory.”
Article 3, concerning the scope of application, provides that the Convention “shall apply to the policies and measures adopted by the Parties related to the protection and promotion of the diversity of cultural expressions.”
Article 6 provides that each Party may adopt measures for protecting diversity of cultural expressions in its territory within the framework of the Convention.
Federal High Court of Nigeria: Emmanuel Egbuna and David Anyaele v. Charles Taylor and Others, Ruling on Preliminary Objections (November 1, 2005)
The decision was provided to the ILM office by Open Society Justice Initiative’s office in Nigeria.
The High Court of Nigeria (the “Court”) upheld the applicants’ right to maintain a claim before the Court.
The applicants are Nigerian nationals who suffered amputation in Sierra Leone in 1999 by, as their claim alleges, the Revolutionary United Front (RUF) militia, which was allegedly supported by Former President of Liberia Charles Taylor.
Charles Taylor was indicted by the Special Court for Sierra Leone (the “SCSL”) on March 7, 2003 on 17 counts of Crimes against Humanity, violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II and of Other Serious Violations of International Humanitarian Law. The indictment of the SCSL alleges, inter alia, that Charles Taylor “provided financial support, military training, personnel, arms, ammunition and other support and encouragement to the RUF” in order to destabilize Sierra Leone and to “obtain access to the mineral wealth.” Moreover, the indictment alleges that Charles Taylor participated in a joint criminal enterprise, the actions of which included the crimes of unlawful killings, abductions, forced labor, physical and sexual violence, use of child soldiers, and the looting and burning of civilian structures. Taylor sought safe haven in Nigeria, which granted him asylum in August 2003.
The applicants challenged the decision of granting asylum to Charles Taylor and asked the Court in Nigeria to review this decision, bringing a suit against Charles Taylor, the Federal commission for Refugees, the National Commission for Refugees, the President of the Federal Republic of Nigeria, and the Attorney-General of the Federal Republic of Nigeria.
The government raised preliminary objections arguing that the Court did not have jurisdiction due to the applicants’ lack of locus standi, because the question at issue was a political non-justiciable question, and because the action was barred by the statute of limitations. The applicants argued, inter alia, that they challenged an administrative act of granting refugee status and that this was not a political issue. As to the statute of limitations, the applicants submitted that “a well known exception to the limitation period is where it can be shown that a public officer has breached or abused his office.”
The Court held that the statute of limitations had not run, because the granting of asylum “constitutes an ongoing damage or injury to applicants and in such a situation their statutory right of action has not yet come to an end.” Dismissing the government’s locus standi argument, the Court noted that, according to the applicants’ affidavits, which alleged that the applicants were mutilated, “there is no other conclusion to reach… than the fact that these applicants are not pursuing any public right but rights that are personal to them.”
The Court also affirmed that the applicants have a reasonable cause of action.
In conclusion the Court held that “[t]his matter is properly before the Court and it is a competent action. This Court therefore has jurisdiction to hear it.”
According to Justice Initiative’s website, the Nigerian Government has expressed its intention to appeal this decision.
This case is the first in which the Inter-American Court of Human Rights (“the Court”) has pronounced on the right to a nationality under the American Convention on Human Rights (“the Convention”) in a contentious case.
The Court, in an unanimous vote, dismissed all of the objections of the Dominican Republic and declared, inter alia, that the Dominican Republic violated the petitioners’ rights to a nationality and to equal protection before the law as afforded to them by virtue of Articles 20 (Right to Nationality) and 24 (Right to Equal Protection), as they related to Article 1.1 (Obligation to Respect Rights) and Article 19 (Rights of the Child) of the Convention. The Court held that the Dominican Republic violated Articles 3 (Right to Juridical Personality) and 18 (Right to a Name) as they related to Article 1.1. The Court also declared that the Dominican Republic was to pay six million U.S. dollars or its equivalent in Dominican Republic currency to the petitioners, who would in turn compensate the NGOs for legal costs in assisting them with their case.
Both girls were born in the Dominican Republic; their mothers are Dominican nationals and theirs fathers are Haitian nationals. The Dominican Republic’s constitution provides that all persons born in its territory are Dominican nationals. In March of 1997, the girls’ mothers sought to obtain their official birth certificates and to be registered by the civil administration office of the Dominican Republic. The girls both had an unofficial birth document from their birth places. The officer at the local civil administration denied the girls their birth certificates and registration, on the ground that they did not have the necessary documents.
In March 1999, when the Dominican Republic recognized the jurisdiction of the Court, the girls did not have birth certificates or any document conferring upon them Dominican nationality. In September 1999, pursuant to the precautionary measures issued by the Inter-American Commission (“the Commission”) in favor of the Yean and Bosico girls, the Dominican Republic ordered the General Director of Migration to give the girls temporary certificates of domicile until their migratory status had been confirmed. In September 2001, the Dominican Republic gave the girls their birth certificates. However, during the time in which the girls were waiting for their birth certificates, the schooling of one of the girls was interrupted due to her inability to register for school in the absence of a birth certificate.
The Commission alleged, inter alia, that the Dominican Republic acted in violation of its international obligations by failing to take the necessary measures to assure protection of children pursuant to Article 19 of the Convention. It also contended that although the Dominican Constitution establishes that those persons born in the Dominican Republic are of Dominican nationality, it treated the petitioners as “foreign migrant workers” even though they or their families had been living in the country for 10 or more years. The Commission alleged that the girls were denied their birth certificates and registration based on discrimination against their ethnic background. It contended also contended that the families of the girls lived in fear that they would be forced to leave the country at any time in the absence of a certificate of nationality.
The Dominican Republic alleged, inter alia, that the inability of one of the girls to register for school was due to her own family’s negligence and the fact that they moved around frequently. It further contended that the decision not to grant the girls’ birth certificates was based on the fact that they failed to produce the necessary documents, and had nothing to do with discriminatory intent. It further contended that there was no policy of deportation of Haitians in the Dominican Republic and that the families’ allegations of fear and distress in this regard were unfounded.
The Court disagreed with all of the Dominican Republic’s arguments, and noted that Article 20 of the Convention provides that nationality is a fundamental human right from which a State party cannot derogate. It held that the Convention provides for the right of nationality in two respects (1) nationality as granting a person the minimum legal protection from having established a link between the State and the individual and (2) ensuring that the individual is not deprived of his or her nationality in an arbitrary manner. The Court also noted that State parties are under an obligation not to adopt practices or laws the application of which tends to increase the number of stateless persons.
The Inter-American Commission on Human Rights (“the Commission”) requested that the United States
“1. take the immediate measures necessary to have the legal status of the detainees at Guantanamo Bay effectively determined by a competent tribunal;
take all measures necessary to thoroughly and impartially investigate, prosecute and punish all instances of torture and other mistreatment that may be perpetrated against the detainees at Guantanamo Bay, whether through methods of interrogation or otherwise, and to ensure respect for the prohibition against the use in any legal proceeding of statements obtained through torture, except against a person accused of torture as evidence that the statement was made;
take the measures necessary to ensure that any detainees who may face a risk of torture or other cruel, inhuman or degrading treatment if transferred, removed or expelled from Guantanamo Bay are provided an adequate, individualized examination of their circumstances through a fair and transparent process before a competent, independent and impartial decision-maker. Where there are substantial grounds for believing that he or she would be in danger of being subjected to torture or other mistreatment, the State should ensure that the detainee is not transferred or removed and that diplomatic assurances are not used to circumvent the State’s non-refoulement obligation.”
In its written and oral representations to the Commission, the United States reiterated its previous position regarding the admissibility of the Commission’s precautionary measures request, namely that the Commission’s jurisdiction and competence do not extend to the laws and customs of war or to issuing requests for precautionary measures against non-States Parties to the American Convention. It also contended that there was a requirement of exhaustion of domestic remedies. It further submitted, inter alia, that as of September 27, 2005, 160 habeas proceedings involving 292 detainee petitions have been filed with U.S. courts. It noted that these proceedings include Hamdan v. Rumsfeld, 415 F. 3d 33 (DC Cir. 2005) and In re Guantanamo Detainees, 355 F. Supp. 2d 311 (D.D.C. 2005), resulting in conflicting conclusions as to whether non-resident aliens have the right to challenge their detention under the U.S. Constitution, under customary international law or under international treaties. It noted that a consolidated appeal to the U.S. District Court for the District of Columbia is said to be pending. The United States also submitted that there have been administrative proceedings at Guantanamo Bay, including proceedings before Combatant Status Review Tribunals that were initiated in July 2004 and are charged with determining whether detainees are properly classified as enemy combatants.
The United States also contended, with respect to allegations regarding the treatment of Guantanamo detainees, that the Department of Defense denies any allegations of torture and restates its commitment to treating detainees humanely. It submitted that as of December 2004, the U.S. government has documented eight instances of infractions which have resulted in different actions ranging from admonishment to court-martial. It further contended that the facility at Guantanamo is continually open to the International Committee of the Red Cross (“ICRC”) and foreign and domestic media.
In the petitioners’ submissions to the Commission, they alleged, inter alia, that there are still approximately 225 detainees who have been completely denied any right of access to counsel. Moreover, they submitted that the U.S. military has interfered with the Guantanamo detainees’ right to a confidential attorney-client relationship. In regard to the treatment of detainees, the petitioners alleged that the assurances provided by the U.S. government have proven unreliable; recent reports by the ICRC, statements by U.S. government officials, government memoranda leaked to the media and media reports indicate that the detainees have been subjected to beatings, sleep deprivation, sensory deprivation, exposure to extreme temperatures and prolonged isolation, and that such treatment has been approved at the highest levels of authority of the United States.
The petitioners further alleged that with respect to the transfer of detainees, the countries to which they have been transferred have deplorable human rights records, and that although the U.S. government has negotiated transfer agreements with some Muslim countries that seek assurances that these countries would refrain from torture, there are no means of enforcing such assurances.
In regard to jurisdiction, the Commission concluded that it has the authority to adopt precautionary measures in respect of non-State parties to the American Convention and to consider and apply international humanitarian law. It also stated that the principle of exhaustion did not apply to the precautionary measures, for such measures are “intended to reinforce and complement, rather than replace, domestic jurisdiction.”
The Commission also observed, inter alia, that, notwithstanding the Supreme Court decision in Rasul v. Bush, the information before it indicates “that nearly half of the Guantanamo detainees have not been given effective access to counsel or otherwise provided with a fair opportunity to pursue a habeas corpus proceeding in accordance with the Supreme Court’s ruling, despite the fact that the purpose of habeas is intended to be a timely remedy aimed at guaranteeing personal liberty and humane treatment.” It concluded that the situation at Guantanamo continues to be of an urgent character, and asked that the United States provide information concerning compliance with its precautionary measures, together with the additional information requested, within 30 days.
The decision concerns a dispute between a U.S. company, Noble Ventures, Inc. (“the claimant”) and Romania arising out of a privatization agreement concerning the acquisition, management and operation of a Romanian steel mill, Combinatul Siderugic Resita (“CSR”) and other associated assets. The privatization agreement was entered into between the claimant and the Romanian State Ownership Fund (“SOF”). Noble Ventures paid SOF the initial installment of the purchase price and SOF transferred to Noble Ventures its shares of CSR, comprising almost all of CSR’s equity share capital.
Noble Ventures alleged, inter alia, that Romania failed to honor the terms of several agreements related to the control of CSR, that Romania misrepresented CSR’s assets in the tender book prepared for the privatization, that Romania failed to carry out its obligation to negotiate debt rescheduling with state budgetary creditors in good faith, that Romania failed to provide full protection and security to its investment during a period of labor unrest in 2001, and that Romania’s initiation of insolvency proceedings were in bad faith, in violation of fair and equitable treatment, and tantamount to expropriation.
Romania contended, inter alia, that Noble Ventures simply failed to respect and/or understand the limits of the agreement it entered into with SOF, for it should have known that when CSR was privatized, it was very burdened with debt, and the SOF did not have the authority under Romanian law to forgive this debt. It argued that the parties’ share purchase agreement did not guarantee that CSR’s debts would be restructured. Having failed to obtain the debt restructuring it sought, Romania contended that Noble Ventures simply stopped paying CRS employees’ wages, resulting in a labor strike. In sum, Romania contended that Noble Ventures took a calculated risk and could not equate its own misjudgment with breaches of international obligations on the part of Romania.
One analytical point in dispute before the tribunal was the question of whether contractual obligations also amounted to international obligations by virtue of the “umbrella clause” in the BIT. The tribunal found that, given the language of Article II(2)(c) of the BIT, there was a clear reference to investment contracts. It noted that “Article II(2)(c) would be very much an empty base unless understood as referring to contracts.”
As to the substance of Noble Venture’s claims, the tribunal found that all of them were without merit. It noted that the duty to provide full protection and security “is not to be understood as an absolute standard providing for strict liability but as a due diligence standard.” The tribunal generally found no specific failure by Romania to exercise due diligence in protecting the claimant’s investment. Another question was whether judicial proceedings initiated by Romania due to Noble Venture’s insolvency could be regarded as expropriation at all. In this regard, the tribunal noted similarities between the ICJ’s decision in the ELSI case, and observed that the purpose of the judicial reorganization was to preserve, rather than to destroy, the ability of Noble Venture to revive CSR as an economic steel producer.
The tribunal held that each party would bear the expenses it incurred in connection with the arbitration.
The Grand Chamber held by sixteen votes to one that the prohibition of the headscarf at the University did not violate the applicant’s rights under the European Convention on Human Rights (the “Convention”).
The applicant, Leyla Sahin, is a Turkish national who comes from a family of practicing Muslims and considers it her duty to wear the headscarf. When she was a fifth year student of medicine at Istanbul University, the Vice Chancellor of the university issued a circular, according to which “students whose heads are covered (who wear the Islamic headscarf)…must not be admitted to lectures, courses or tutorials.” Sahin was subsequently denied access to lectures and examinations on various occasions due to the fact that she wore the headscarf. Sahin claimed that the ban of the Islamic headscarf at the university violated her right to freedom of religion and right to manifest her religion as set out in Article 9 of the Convention.
The Court found that there had been an interference which had been “prescribed by law.” The Court then had to consider whether this restriction was also necessary in a democratic society. The Court stated that the notion of secularism, a fundamental principle of the Turkish State, was “consistent with the values underpinning the Convention” and that “upholding that principle may be considered necessary to protect the democratic system in Turkey.” The Court noted that there was “no good reason to depart form the approach taken by the Chamber”, which had held: “[W]hen examining the headscarf in the Turkish context, there must be borne in mind the impact which wearing such a symbol, which is presented or perceived as a compulsory religious duty, may have on those who choose not to wear it. …[T]he issues at stake include the protection of the rights and freedoms of others and the maintenance of public order in a country in which the majority of the population, while professing a strong attachment to the rights of women and a secular way of life, adhere to the Islamic faith. Imposing limitations on freedom in this sphere may, therefore, be regarded as meeting a pressing social need by seeking to achieve those two legitimate aims…. The Court does not lose sight of the fact that there are extremist political movements in Turkey which seek to impose on society as a whole their religious symbols and conception of a society founded on religious precepts. … It has previously said that each Contracting State may, in accordance with the Convention provisions, take a stance against such political movements, based on its historical experience… The regulations concerned have to be viewed in that context and constitute a measure intended to achieve the legitimate aims referred to above and thereby to preserve pluralism in the university.” The Court added: “[W]here the value of pluralism, respect for the rights of others and, in particular, equality before the law of men and women are being taught and applied in practice, it is understandable that the relevant authorities should wish to preserve the secular nature of the institution concerned and so consider it contrary to such values to allow religious attire.”
The Court concluded that the interference was justified in principle and proportionate to the aim pursued.
The applicant also asserted a violation of Article 2 of Protocol I to the Convention (right to education). As to this issue, the Court found that although that provision applied to institutions of higher education, “the restriction in question did not impair the very essence of the applicant’s right to education.”
After the Appellate Body (the “AB”) report was issued in the sugar dispute between the European Communities (the “EC”) and Australia, Brazil, and Thailand (the “complaining parties”) finding that the EC granted sugar subsidies in violation of the Agreement on Agriculture, there was disagreement between the parties as to when the EC would have to comply with the rulings and recommendations of the Dispute Settlement Body (the “DSB”). Article 21 of the Dispute Settlement Understanding states that “[p]rompt compliance with recommendations or rulings of the DSB is essential in order to ensure effective resolution.” However, when members cannot fulfill their obligations promptly, they “shall have a reasonable period of time to do so” (Article 21.3 of the DSU).
When the negotiations between the parties failed as to what would be a “reasonable period of time” for implementation of the recommendations, the complaining parties compelled arbitration proceedings in order to have the “reasonable period of time” determined.
The EC requested the arbitrator to determine the “reasonable period of time” for implementation to be 19 months and 12 days from the day of adoption of the Panel and AB reports (May 19, 2005). The EC asserted, inter alia, that this amount of time was required in order for the current sugar regulations to be amended. The EC also asserted that, under the Cotonou Agreement between itself and the African, Caribbean, and Pacific States (the “ACP”), it had to consult with the ACP countries when it intended to take measures “which may affect their interests.”
While the arbitrator did not question the EC’s obligation under the Cotonou Agreement to consult with the ACP countries, the arbitrator did not find that the EC demonstrated why this would result in such a delay of implementation. As to the legislative procedure, the arbitrator estimated that the EC could adopt the necessary measures in a shorter time frame than the EC proposed, and also stressed the EC’s need to exercise all the discretion it had, as the compliance with international obligations was at issue.
The arbitrator ultimately determined the “reasonable amount of time” for implementation to be 12 months and 3 days from the date the Panel and AB reports were adopted. This period will therefore expire on May 22, 2006.
Click here for the ILIB on the Appellate Body report.
United Nations Security Council: Resolution 1636, The Situation in the Middle East
(October, 31, 2005)
Following the report of the United Nations International Independent Investigation Commission (the “Commission”), which implicated top-ranked Syrian and Lebanese security officials in the assassination of former Prime Minister Rafiq Hariri, the United Nations Security Council (the “SC”) unanimously adopted resolution 1636.
Acting under Chapter VII of the Charter of the United Nations, the SC decided that all individuals “designated by the Commission or the Government of Lebanon as suspected of involvement” in the assassination, shall be subject to the following measures:
All States shall take the measures necessary to prevent entry into or transit through their territories of such individuals.
The funds, financial assets and economic resources of such individuals shall be frozen.
The SC also decided that “Syria must detain those Syrian officials or individuals whom the Commission considers as suspected of involvement… in the terrorist act, and make them fully available to the Commission,” and that “Syria must cooperate with the Commission fully and unconditionally.” In addition, the SC “insists that Syria not interfere in Lebanese domestic affairs…refrain from any attempt aimed at destabilizing Lebanon, and respect scrupulously the sovereignty, territorial integrity, unity and political independence of this country.”
ICC Issues Arrest Warrants in Uganda: October 14, 2005
Click here for the statement of ICC Prosecutor Luis Moreno-Ocampo
The Prosecutor of the International Criminal Court (ICC) announced that five warrants of arrest in the Uganda situation had been unsealed, noting that the judges of the Pre-Trial Chamber were satisfied that the evidence they have before them provides reasonable grounds to believe that the five persons for whom they have sought arrest warrants have committed crimes against humanity and war crimes.
In December 2003, the Prosecutor of the ICC received a referral from Uganda, the first referral from a State Party since the ICC’s creation.
The Prosecutor noted in his statement that the criteria for the selection of the first case was the gravity of the crimes. He noted that the ICC found that the crimes committed in Northern Uganda by the Lord’s Resistance Army, the LRA and Ugandan forces were more numerous and of much higher gravity than those committed by the Uganda People’s Defense Force, the UPDF. He also stated that the ICC has focused its investigation on six attacks on civilians which the LRA has carried out in Northern Uganda since July 2002.
The crimes charged in the arrest warrants include rape, murder, enslavement, sexual enslavement and forced enlisting of children. The LRA leaders for whom the arrest warrants have been issued are Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen.
Mexico Ratifies the Rome Statute of the International Criminal Court: October 28, 2005
On October 28th, 2005, Mexico ratified the Rome Statute of the International Criminal Court. The Statute will enter into force for Mexico on January 1, 2006. With Mexico’s ratification, the total number of States Parties to the Rome Statute will be 100. There are currently 139 signatories.
Spain’s Audiencia Nacional: Issue of Arrest Warrant for Three U.S. Soldiers (October 20, 2005)
Judge Santiago Pedraz has issued an international arrest warrant for three U.S. soldiers, Sgt. Shawn Gibson, Capt. Philip Wolford and Lt. Col. Philip de Camp, concerning the shelling by a U.S. tank of a Baghdad hotel in April 2003 in which Jose Couso, of Spanish TV network Telecinco, died. Reuters news agency cameraman Taras Protsyuk, a Ukrainian, was also killed.
ERRATA
Plama decision on provisional measures: The October 17, 2005 ILIB mistakenly stated that there was no link to the decision on provisional measures. The decision is available on the ICSID web site: http://www.worldbank.org/icsid/cases/awards.htm#award33
International Criminal Tribunal for Rwanda (ICTR): Jean de Dieu Kamuhanda v. The Prosecutor (September 19, 2005): The October 31st ILIB had an incorrect date for this decision.
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