Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law December 1, 2005
Draft Treaty Establishing the Energy Community (March 22, 2005)
(signed by the European Community, the Republic of Albania, the Republic of Bulgaria, Bosnia and Herzegovina, the Republic of Croatia, the former Yugoslav Republic of Macedonia, the Republic of Montenegro, Romania, the Republic of Serbia and the United Nations Interim Administration Mission in Kosovo pursuant to the United Nations Security Council 1244)
The Draft Treaty Establishing the Energy Community (“the draft treaty”) noted that the signatories are “[r]esolved to establish among the Parties an integrated market in natural gas and electricity…” and “to create a stable regulatory market and framework capable of attracting investment in gas networks, power generation and transmission networks, so that all Parties have access to the stable and continuous gas and electricity supply that is essential for economic and development social stability…”. The draft treaty also provides for a commitment to improve the environmental situation in relation to gas and electricity.
The draft treaty states that each party shall implement the Acquis communautaire on energy in compliance with the timetable for these measures set out in Annex 1. The Acquis communautaire on energy refers to the European Community Directive 2003/54/EC (June 26, 2003) concerning common rules for the internal market for electricity, the European Community Directive 2003/55/EC (June 26, 2003) and European Community Regulation 1228/2003/EC concerning access to the network for cross-border exchanges in electricity.
The draft treaty provides that the contracting parties shall implement the Acquis Communautaire on Environment and recognize the importance of the Kyoto Protocol, noting that all contracting parties shall endeavor to accede to the Kyoto Protocol.
The draft treaty also provides, inter alia, for the Creation of a Ministerial Council, a Regulatory Board and a Secretariat. In terms of dispute settlement, the Ministerial Council will have the power to determine the existence of a breach of obligations under the treaty and to suspend rights derived from its application.
The draft treaty, which is subject to revision to be approved by all parties, will enter into force the first day of the month following the date on which the European Community and six Contracting Parties have notified the Secretary-General of the European Union (who shall be the depositary of the treaty) that the procedures necessary for implementation have been completed.
International Centre for Settlement of Investment Disputes (ICSID): Wena Hotels Ltd. v. Arab Republic of Egypt, on the Application by Wena Hotels Ltd. for Interpretation of the Arbitral Award dated December 8, 2000 (October 31, 2005)
This decision is the first decision from an ICSID tribunal to interpret an arbitration award pursuant to Article 50(1) of the ICSID Arbitration Rules.
The tribunal held that theclaimant’s application for interpretation of the 2000 arbitration award was partially admissible to the extent that it concerned the award’s determinations on expropriation. It concluded that Egypt, as a party to the original arbitration proceedings and the present interpretation proceedings, must not take any legal actions “that would presume the contrary” of the determinations concerning expropriation in the 2000 award.
The arbitration award, rendered on December 8, 2000, concerned the seizure by Egyptian officials of the Nile Hotel in Cairo and the Luxor hotel in April 1991. Wena Hotels Ltd (“Wena” or “the claimant”) operated the hotels under two lease and development agreements that it had entered into in 1989 and 1990. Wena sought damages for alleged violations of the investment treaty between the United Kingdom and Egypt. The tribunal unanimously found that Egypt’s actions amounted to an expropriation and awarded Wena damages.
In the present arbitration proceeding, Wena filed an application for interpretation of the 2000 award, asserting that despite the award’s holding that Egypt expropriated Wena’s property in the hotel and lease development agreements, recent legal actions that Egypt and its constituent entities have taken raise questions about the meaning of the award’s conclusion that Egypt expropriated Wena’s interests in the Luxor lease. Wena alleged that by initiating subsequent legal actions against Wena for rent allegedly owed on the Luxor lease, Egypt has ignored the holding of the award stating that Egypt expropriated Wena’s fundamental rights of ownership in that lease.
Egypt maintained, inter alia, that Wena was “seeking to subvert the interpretation process envisaged in Article 50(1) of the ICSID Convention in order to resolve the commercial dispute between it and [an Egyptian Company for Tourism and Hotels] under the Luxor Lease that was excluded from the Original Arbitration.”
The tribunal concluded that the claimant’s application for interpretation of the arbitration award was admissible to the extent that it concerned the question of whether the expropriation was total and permanent; whether the expropriation took effect on April 1, 1991; and whether Egypt is precluded from taking actions that presume that the expropriation was not total and permanent. The tribunal found that section 135 of the 2000 award means that this total and permanent deprivation of Wena’s rights included “its rights to make use of its investments made under the Luxor Lease and to enjoy the benefits of such investments in accordance with such Lease; said expropriation occurred as of April 1, 1991; and (iii) subsequent legal actions by Egypt, as a party to the arbitration, that presume the contrary are precluded.”
The tribunal dismissed the application for interpretation of the award as it related to the consequences of the expropriation on Wena’s legal relationships with third parties.
The tribunal held that each party would bear the costs of the arbitration equally.
The European Court of Human Rights (the “Court”) found that the restriction of voting rights of all convicted prisoners violated Article 3 of Protocol No. 1 of the European Convention on Human Rights (the “Convention”).
The applicant pleaded guilty to manslaughter on the ground of diminished responsibility in 1980 and was sentenced to a term of discretionary life in prison. The applicant’s tariff (that part of the sentence relating to retribution and deterrence) expired in 1994, but he continued to remain in detention due to considerations relating to risk and danger to the public.
The applicant was barred from voting by section 3 of the Representation of the People Act 1983, which states that “[a] convicted person during the time that he is detained in a penal institution in ursuance of his sentence ... is legally incapable of voting at any parliamentary or local election.” The law provided for exceptions for persons committed to prison for contempt of court or for default in paying fines.
The applicant initiated proceedings under section 4 of the Human Rights Act 1998 in the United Kingdom, but his claim was rejected.
The Chamber of the Court held unanimously that there had been a violation of Article 3 of Protocol No. 1, because the voting restriction was disproportionate, as it excluded every convict of from voting, irrespective of the length of the sentence and the nature of the crime committed.
Before the Grand Chamber, the applicant contested the idea uttered in Parliament that stripping a convict of his voting rights was part of his punishment and that punishment could legitimately remove fundamental rights other than the deprivation of liberty and argued that this was inconsistent with the stated rehabilitative aim of prison.
The Court noted that although the wording of Article 3 of Protocol No. 1 to the Convention is drafted in a different manner than the provision of the International Covenant on Civil and Political Rights, it still guarantees the individual’s right to vote and to stand for election. The Court also stated that, although “the right to vote is not a privilege”, it is not absolute and the member states are granted a wide margin of appreciation. Underlining “that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty”, the Court specified that restrictions with the right to vote had to comply with the principle of proportionality.
The Court noted that the restriction “applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances,” and concluded that [s]uch a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be.”
In May 1992, Sefer Halilovic was appointed by the Presidency of the Republic of Bosnia and Herzegovina (“RBiH”) as Commander of the Territorial Defence (TO). Halilovic was a founder of the Army of the Republic of Bosnia and Herzegovina, and until June 1993, he was Supreme Commander of the Main Staff of the Army of the Republic of Bosnia and Herzegovina. When Rasim Delic was appointed Commander, Halilovic remained Chief of the Main Staff of the Army of the Republic of Bosnia and Herzegovina.
Halilovic voluntarily surrendered to the Court on September 25, 2001.
The Prosecution alleged that murders were committed in September 1993 by troops of the Army of the Republic of Bosnia and Herzegovina in the villages of Grabovica, Uzdol in the Jablanica and Prozor areas in Herzegovina. According to the Prosecution, these crimes were committed during a military operation called “Operation Neretva,” the commander of which was Halilovic. The indictment against Sefer Halilovic charged him with murder, punishable under Article 3 (violations of the laws or customs of war) of the Statute of the Tribunal (the “Statute”) as recognized by Article 3(1) (a) of the Geneva Conventions, and Article 7 (3) of the Statute. According to the indictment, Halilovic incurred individual criminal responsibility under 7 (3) of the Statute, because “notwithstanding his duties as a commander…Sefer Halilovic did not take effective measures to prevent the killings of civilians in Grabovica” and “did not take steps to carry out a proper investigation to identify the perpetrators of the killings in both Grabovica and Uzdol and as commander of the Operation to punish them accordingly.”
The Trial Chamber found that the Prosecution failed “to prove beyond reasonable doubt that Sefer Halilovic was either de jure or de facto commander of the alleged operation called Operation Neretva.” Although the Court found that civilians had been killed by soldiers of the Army of Bosnia and Herzegovina in the villages of Grabovica and Uzdol, it held that the Prosecution had not proven beyond reasonable doubt that Sefer Halilovic had effective control over the troops that were in Grabovica and Uzdol. The Court reiterated that “[i]t is a principle of international criminal law that a commander cannot be held responsible for the crimes of persons who were not under his command at the time the crimes were committed.”
The District Court (the “Court”) dismissed the action of a group of anonymous Palestinians who filed suit in the United States, against, inter alia, the State of Israel, its government and military officials (the “Israeli defendants”), and Israeli settlers (the “settler defendants”).
The suit against the Israeli government was dismissed for failure of proper service, although the Court also noted that the suit was barred by foreign sovereign immunity.
Service of the individual Israeli defendants, who were sued in their individual and personal capacities failed with respect to the “personal capacity claims” due to the fact that the requirements of the Hague Convention on the service abroad of judicial and extrajudicial documents in civil or commercial matters were not satisfied. Although service with respect to the Israeli defendants’ official capacities was not faulty, the suit was dismissed for a “failure to sufficiently allege ultravires action.”
The plaintiffs argued, inter alia, that their claims were not barred by the Foreign Sovereign Immunities Act (FSIA), because the Israeli defendants allegedly committed violations of jus cogens international law principles, and that foreign sovereign immunity was therefore waived. On this issue the Court held that the question of whether Israel had committed a juscogens violation was non-justiciable, and that even assuming that Israel acted in violation of international law, this would still not constitute an implied waiver of foreign sovereign immunity. The Court then turned to the “commercial activity exception”, under which foreign sovereign immunity can be lifted. The plaintiffs submitted that this exception applied because the Israeli defendant’s actions in the West Bank were tantamount to “private real estate development.” Finding that the commercial exception did not apply due to the nature of the acts of the State of Israel and that in any case, no caused direct effect was proved as required by the commercial exception provision, the Court turned to the “tortious act” exception, which it also rejected due to the fact that the alleged tort was not committed in the United States. In terms of personal jurisdiction over the Israeli defendants, the Court noted that there were no sufficient contacts in the United States, and that, even if there were a sufficient basis for exercising jurisdiction, the Israeli-Palestinian conflict would constitute a political question under the political question doctrine and would therefore be non-justiciable. Moreover, the Court held that the plaintiffs’ claims were precluded by the act of State doctrine, because the “actions challenged by plaintiffs are classic acts of state” and that the “fact that plaintiffs have alleged juscogens violations does not change things. Within our territorial borders, the law of the United States is paramount, under which the law of nations does not preempt the act of state doctrine even if the conduct at issue allegedly violates international law.” The plaintiffs also alleged RICO violations by the Israeli defendants, but the Court rejected the exterritorial application of the RICO statute in this case, inter alia, because the RICO statute “may not be transformed into an avenue through which to litigate the political crises of the global community.”
The Court rejected the application of the RICO statute to defendants in the United States, interalia because of justiciability concerns and because it found that the claims were not supported by facts.
(Click here for the ILIB summary and link to the earlier decision http://www.asil.org/ilib/ilib0603.htm#J5Also see 42 ILM 420 (2003) for an Introductory Note about the Court of Appeals decision by Prof. Roger Alford)
The U.S. District Court for the District of Columbia (“the Court”) held that it could not exercise subject matter jurisdiction over the plaintiff’s claims pursuant to §1605 of the Foreign Sovereign Immunities Act (“FSIA”). It granted Ethiopia’s motion to dismiss.
On January 24, 2003, the U.S. Court of Appeals for the D.C. Circuit reversed the U.S. District Court for the District of Columbia's dismissal of a suit that sought recovery for property damages suffered during the conflict between Ethiopia and Eritrea. The D.C. Court of Appeals held that the Eritrea-Ethiopia Claims Commission was an inadequate forum, due to its "inability to ake an award directly to Nemariam, and Eritrea's ability to set off Nemariam's claim, or an award to Eritrea based upon her claim, against claims made by or an award in favor of Ethiopia." It observed that Ethiopia was asking both Nemariam and the court to rely upon the "goodwill of Eritrea," holding that an alternative forum in which the plaintiff can fail to recover anything for a valid claim could not be deemed adequate.
On return to the district court following the 2003 decision of the D.C. Court of Appeals, the plaintiffs alleged that the Court had jurisdiction pursuant to the expropriation exception of the FSIA. The plaintiffs claimed that Ethiopia engaged in a practice of systematic expulsion of persons of Eritrean origin, that Ethiopia issued an order freezing the bank accounts of those individuals, and that the freezing of bank accounts was an expropriation. The defendants argued that bank accounts do not constitute property within the meaning of §1605 of the FSIA because they are merely a contractual right and the right to receive payment. The Court agreed, finding that the FSIA only applies to tangible property, and that a bank account is merely “a debt that a bank owes to the depositor” (quoting Guidry v. Bank of LaPlaceu, 954 F.2d 278, 283 95th Cir. 1992).
The United Nations Security Council (the “SC”) adopted Resolution 1640, in which it, inter alia, expresses its concern about the decision of the Government of Eritrea to ban United Nations helicopter flights within the Eritrean airspace. In this Resolution, the SC also expresses “its grave concern at the Ethiopian Government’s failure, to date, to accept without preconditions the implementation of the final and binding decision of the Eritrea-Ethiopia Boundary Commission,” The SC further notes “with deep concern the high concentration of troops on both sides of the TSZ” (Temporary Security Zone), and stresses that the “continuation of the situation” would “constitute a threat to international peace and security.” Calling on both Eritrea and Ethiopia to “show maximum restraint and to refrain from any threat or use of force against each other,” the SC did not preclude sanctions as a measure of disciplining the two states, as it expressed its determination to consider measures under Article 41 of the UN Charter, should one or both states fail to comply with its demands. Under Article 41 of the UN Charter, the SC can call upon all Member States to apply measures not involving the use of armed force in order to maintain or restore international peace and security.
Security Council Resolution 1638: The Situation in Liberia (November 11, 2005)
In Resolution 1638, the United Nations Security Council notes that former President of Liberia Charles Taylor “remains under indictment by the Special Court for Sierra Leone” (SCSL). The Security Council granted the United Nations Mission in Liberia (UNMIL) the power to arrest Charles Taylor and transfer him to the SCSL, should he return to Liberia.
BRIEFLY NOTED
United States ratifies the Inter-American Convention against Terrorism (November 2, 2005)
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