Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law January 4, 2006
Protocol between the United States and Israel Amending the 1962 Convention on Extradition (signed on July 6, 2005)
The Protocol between the United States and Israel Amending the 1962 Convention on Extradition (“the Protocol” and “the 1962 Convention”, respectively) is designed to update the 1962 Convention so that it is consistent with the modern U.S. extradition treaties. The Protocol is self-executing and will not require implementing legislation.
Article II of the 1962 Convention is amended in the Protocol and defines an extraditable offense as including the following: “an attempt or conspiracy to commit an offense, participation in an offense, aiding and abetting, counseling, causing or procuring the commission of an offense, or being an accessory before or after the fact, provided that such attempt, conspiracy, participation, aiding and abetting, counseling, causing or procuring, or being an accessory is punishable under the laws of both Parties by deprivation of liberty for a period of one year or by a more severe penalty.”
The Letter of Submittal by U.S. Secretary of State Condoleezza Rice notes that additional flexibility has been added to Article II(3) of the Protocol, which provides that an offense shall be considered an extraditable offense “whether or not the laws of the parties place the offense within the same category of offense or describe the offense by the same terminology.”
Whereas the 1962 Convention’s Article IV stated that extradition determinations had to be made in accordance with the domestic law of the Requested Party, and that the person whose extradition was being sought could have the right to use such remedies provided by that domestic law, Article 5 of the Protocol eliminates this requirement. The Secretary of State’s Letter of Submittal notes that the provision was removed as it was “unnecessary and confusing.”
Article 7 of the Protocol provides for procedures for the provisional arrest and detention, in the event of urgency, of a person sought pending the presentation of a formal request for extradition.
On September 13, 2005, the Protocol was referred to the Committee in Foreign Relations.
Article 12 of the Protocol states that the Protocol, which is subject to ratification, shall enter into force on the date of the latter of the diplomatic notes in which Israel and the United States will notify the other that their internal legal requirements for the entering into force of the Protocol have been met.
International Court of Justice: Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) (December 19, 2005)
The dispute between the Democratic Republic of the Congo (the “DRC”) and the Republic of Uganda (“Uganda”) concerns military activities of Uganda on the territory of the DRC.
The DRC submitted, inter alia, that following an unsuccessful coup d’etat on August 2, 1998, which was aimed at overthrowing President Laurent-Desire Kabila, Uganda initiated a military intervention, which, inter alia, consisted of the occupation of parts of the northeast of the DRC, and support provided to Congolese armed troops opposed to the Kabila government. The DRC further maintained that, by virtue of the “Sirte Peace Agreement” signed on April 18, 1999, which provided for a cessation of hostilities between the parties’ forces, Uganda was obligated to withdraw its forces from the territory of the DRC. The DRC claimed that Uganda, following its withdrawal of troops, has provided arms to groups confronting one another in the Ituri region. The DRC further contended that Uganda “has left behind it a fine network of warlords, whom it is still supplying with arms and who themselves continue to plunder the wealth of the DRC on behalf of Ugandan and foreign businessmen.”
Uganda, on the other hand, claimed that between 1994 and 1997, the Congolese authorities provided military and logistical support to anti-Ugandan insurgents, for which reason Uganda had to reinforce its military positions along its own side of the border to the DRC. Uganda also asserted that after Kabila became President, he invited Uganda to deploy its troops in the eastern Congo because the DRC did not have the resources to “eliminate” anti-Ugandan insurgents operating in that area. Uganda contended, that on April 27, 1998, the “Protocol on Security along the Common Border” was signed by the DRC and Uganda, which provided for Ugandan troops to be deployed in the DRC in order to combat the anti-Ugandan insurgents on DRC soil.
Uganda further claimed that by August-September 1998 the DRC and the Sudan prepared to attack Ugandan forces in eastern Congo and that this led to an “untenable” security situation. It was, according to Uganda, “[i]n response to this grave threat, and in the lawful exercise of its sovereign right of self-defence”, that it decided to augment its forces in the eastern Congo.”
With respect to the DRC’s first submission, the Court held that in the period before August 1998, “the DRC did not object to Uganda’s military presence and activities in its eastern border area,” but that this authorization was withdrawn, by August 8, 1998 at the latest. The Court then examined whether military action after that date was justified by Uganda’s right to self-defense. To this end the Court noted that the armed attacks Uganda complained of “did not emanate from armed bands or irregulars sent by the DRC or on behalf of the DRC, within the sense of Article 3 (g) of General Assembly resolution 3314 (XXXIX) on the definition of aggression, adopted on 14 December 1974” and were therefore not attributable to the DRC. For this reason, the Court rejected Uganda’s argument of self-defense. The Court concluded that Uganda violated the sovereignty and territorial integrity of the DRC, and that Uganda’s military intervention constituted a grave violation of the prohibition on the use of force expressed in Article 2, paragraph 4, of the Charter of the United Nations.
As to the DRC’s second claim, in which the DRC complained of acts of oppression against the nationals of the DRC, the Court concluded that Uganda was an occupying power in Ituri and that the Uganda Peoples’ Defence Forces (the “UPDF”) committed, inter alia, “acts of killing, torture, and other forms of inhumane treatment of the civilian population, … failed...to protect the civilian population in fighting with other combatants, incited ethnic conflict and took no steps to end such conflicts, [and] was involved in the training of child soldiers.” Being attributable to Uganda, those acts of the UPDF constituted violations of international human rights law as well as international humanitarian law.
With respect to the DRC’s claim concerning the illegal exploitation of Congolese natural resources by Uganda, the Court held that Uganda was internationally responsible for acts of looting, plundering and exploitation of the DRC’s natural resources committed by members of the UPDF in the territory of the DRC.
While rejecting Uganda’s first counterclaim, in which Uganda alleged to have been “the victim of military operations and other destabilizing activities carried out by hostile armed groups based in the DRC” the Court upheld Uganda’s second counterclaim, finding, inter alia, that the DRC violated the 1961 Vienna Convention on Diplomatic Relations when it carried out attacks on the Ugandan Embassy in Kinshasa, during which Ugandan diplomats were mistreated.
The Court held that both states were under an obligation to pay reparations for their respective violations under international law, but reserved a subsequent procedure in order to determine the amount of reparations.
The Eritrea-Ethiopia Claims Commission (“the Commission”) concluded that it had jurisdiction over Eritrea’s Western Front claims and held that Ethiopia was liable, inter alia, for allowing the looting and burning of buildings and destruction of livestock in areas such as Teseney and Alighidir from May to June 2000, and for 90% of the total loss and damage to property in Guluj during the same period. It also found Ethiopia liable for failure to take effective measures to prevent the rape of women in the towns of Barentu and Teseney.
In respect of Eritrea’s claim of unlawful aerial bombardment, the Commission found that it had jurisdiction over Eritrea’s claim that Ethiopia conducted an indiscriminate and disproportionate bombing campaign in violation of customary international humanitarian law. It found that Eritrea’s claim concerning aerial bombardment generally failed for lack of proof. It did conclude, however, that the aerial bombing attacks by Ethiopia against the Harsile water reservoir were in violation of customary international humanitarian law. Since no damage to the Harsile water reservoir was shown, the Commission concluded that its finding of a violation would represent satisfaction to Eritrea.
In regard to Eritrea’s claims for displacement of persons in violation of customary international law, the Commission dismissed most of the claims for failure of proof, with the exception of a claim for the unlawful displacement of all of the residents of Awgaro in violation of Article 49 of Geneva Convention IV.
The Commission dismissed all of Eritrea’s claims concerning indirect displacement of civilians. The Commission noted that although it was undeniable that thousands of Eritreans were displaced as a result of Ethiopia’s offensives in 1999 and 2000, such displacement standing alone could not give rise to violations of international law. Citing one of its earlier awards, it noted that while Additional Protocol I of 1977 to the Geneva Conventions (“Protocol I”) prohibits “acts or threats of violence the primary purpose of which is to spread terror among the civilian population,” Protocol I also recognizes implicitly that civilians may be terrorized by hostilities without giving rise to liability under international law, where it has not been proven that the primary purpose of the acts of invasion was to cause terror to the civilian population.
The Eritrea-Ethiopia Claims Commission (“the Commission”) determined that it has jurisdiction over Ethiopia’s jus ad bellum claim. It further concluded that Eritrea violated Article 2, paragraph 4, of the Charter of the United Nations as a result of its use of armed force on May 12, 1998, and the days immediately following through its attack and occupation of the town of Badme, which was then under the peaceful administration of Ethiopia, in addition to other territory, Tahtay Adiabo and Laelay Adiabo Weredas.
Ethiopia brought its claims against Eritrea pursuant to Article 5 of the Agreement between the Government of the Federal Republic of Ethiopia and the Government of the State of Eritrea of December 12, 2000 (“the Agreement”).
Ethiopia sought monetary compensation for alleged violations of international law regulating the use of force, jus ad bellum, which took place in May and June 1998.
Eritrea challenged the Commission’s jurisdiction on the ground that Article 3 of the Agreement assigns the determination of liability for the use of force to an independent and impartial body to be appointed by the Secretary-General of the Organization for African Unity in consultation with the Secretary-General of the United Nations.
The Commission noted its understanding that such independent body authorized by Article 3 of the Agreement has never been established. It also held that Article 3 did not preclude it from deciding the jus ad bellum claims brought by Ethiopia. It held that the terms “origins of the conflict” and "misunderstanding between the parties regarding their common border” are not the same legal issues brought before the Commission in the present case. It held that Article 3 was specifically drafted to direct the impartial body to investigate factual matters, not to make determinations under international law.
On the merits, Ethiopia alleged, inter alia, that between May and June 1998, Eritrea launched a full scale invasion of Ethiopia at several points along their common border from Badme to Bure. Eritrea denied these allegations, claiming that (1) Ethiopia was unlawfully occupying Eritrean territory in the area around Badme; (2) that Ethiopian armed militia near Badme carried out forcible incursions into Eritrea in early May 1998 and fired on Eritrean forces on May 6 and 7, killing eight Eritrean soldiers and setting off fighting between small units in the area for several days; (3) that it was Ethiopia that declared war on Eritrea on May 13, 1998.
Eritrea maintained that its actions were lawful measures in self-defense, consistent with Article 51 of the UN Charter, and were taken in response to the fighting that occurred in Badme in May 1998.
The Commission determined that it could not accept Eritrea’s contention that recourse to force was lawful because some of the territory concerned territory to which Eritrea had a valid claim. The Commission noted that while it was true that the boundary area in Badme was in dispute between the parties, it concluded that self-defense cannot be invoked as a justification for resorting to force for the settlement of territorial disputes. The Commission observed that “border disputes between States are so frequent that any exception to the prohibition of the threat or use of force for territory that is allegedly occupied would create a large and dangerous hole in a fundamental rule of international law.”
It further held that “[a]s the text of Article 51 of the Charter makes clear, the predicate for a valid claim of self-defense under the Charter is that the party resorting to force has been subjected to an armed attack. Localized border encounters between small infantry units, even those involving the loss of life, do not constitute an armed attach for purposes of the Charter.”
International Centre for Settlement of Investment Disputes (ICSID): Aguas del Tunari, S.A. v. Republic of Bolivia, Decision on Jurisdiction (October 21, 2005)
The majority of the Tribunal dismissed the Republic of Bolivia’s objections to jurisdiction.
Aguas del Tunari (“AdT”) initiated the ICSID arbitration proceedings by alleging that several acts of the Republic of Bolivia (“Bolivia”) amounted to an expropriation of its investment in violation of the Agreement on the Encouragement and Reciprocal Protection of Investments between the Kingdom of the Netherlands and the Republic of Bolivia (“the treaty”).
The background of the dispute concerns Bolivia’s international tender process to privatize water, sewage services and an electricity generation license in 1998. AdT is the locally incorporated Bolivian entity for a consortium led by International Water, Ltd, incorporated in the Cayman Islands, and 100% owned by Bechtel Enterprise Holding, a U.S. company. A concession agreement between the Bolivian government and AdT took effect in 1999, and provided for a 40-year relationship between AdT and the Bolivian water and electricity authorities. The concession agreement resulted in significant public controversy in Bolivia, especially among labor organizations and civil society groups.
In November 1999, Bechtel informed the Bolivian water and electricity authorities of proposed changes in AdT’s ownership, transferring International Water Ltd’s shares to a Dutch company in December 1999. The Bolivian water authorities gave their approval for the proposed transfer, however Bolivia disputes both the content and the legal effect of such approval.
At the core of Bolivia’s objections was the argument that Bolivia could not have consented to an arrangement by which a company registered in Bolivia such as AdT could, at any time, restructure itself as a Dutch company and therefore bring a claim before ICSID under the Bolivia-Dutch bilateral investment treaty. Bolivia maintained, interalia, that the concession agreement itself referred to Bolivian law and was expressly designed to preclude ICSID arbitration. It also challenged the Tribunal’s jurisdiction under the treaty on the grounds that the Netherlands could not be the proper party to the arbitration, because AdT’s Dutch ownership breached the concession agreement and because AdT did not qualify as a Dutch investor under the treaty.
The Tribunal examined the concession agreement, and concluded that although a clear waiver of ICSID jurisdiction between the parties could be effective in theory, this was not the situation in the present case. It noted that the concession agreement was silent in regard to the availability of ICSID jurisdiction and arbitration generally, and that, contrary to Bolivia’s assertion, such silence could not imply a waiver of the right to invoke ICSID jurisdiction.
The Tribunal also disagreed with Bolivia’s argument that the concession agreement provided restrictions against changes in ownership. It further held that a breach of the concession agreement would not bar ICSID jurisdiction. The Tribunal also examined the question of whether AdT, for the purposes of the treaty, was a national of the Netherlands in accordance with Article 1(b) of the treaty which includes “legal persons controlled directly or indirectly, by nationals of that Contracting Party, but constituted in accordance with the law of the other Contracting Party.” The Tribunal, after a lengthy analysis of the meaning of the phrase “controlled directly or indirectly” in the treaty, concluded that Bolivia’s interpretation would frustrate the treaty’s purpose. It concluded “that the phrase ‘controlled directly or indirectly’ means that one entity may be said to control another entity (either directly, that is without an intermediary entity, or indirectly) if that entity possesses the legal capacity to control the other entity.”
José Luis Alberro-Semerana issued a declaration of dissent in which he maintained that if AdT can restructure itself during the time in which Bolivia allegedly acted in breach of the concession agreement and AdT’s rights, then the notion of reciprocity underlying the treaty and the balance of obligations between the host State and the investor are diminished. He also concluded that AdT had failed to prove that it was controlled by Dutch companies within the meaning of the treaty and therefore failed for lack of jurisdiction.
The Asylum and Immigration Tribunal (“the Tribunal”) granted the appeal, finding that the appellant, as a failed asylum seeker in the U.K., would be at risk of persecution in Zimbabwe within the meaning of the Convention relating to the Status of Refugees (“Refugee Convention”). It concluded that his removal to Zimbabwe would be in breach of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention on Human Rights”) and the Refugee Convention.
The appellant is one of several asylum seekers in the U.K. from Zimbabwe who has challenged his removal on the ground that his status as a failed asylum seeker in the U.K. rendered him subject to persecution in Zimbabwe, due to the fact that returned asylum seekers from the U.K. are considered traitors by the Zimbabwean government and subject to political persecution and abuse upon return there. This appeal was immediately identified by the Tribunal as being suitable for the purpose of making a factual determination as to the allegations that returned asylum seekers, as a class, face a risk of persecution in Zimbabwe.
The appellant in this case was found not to have had a legitimate claim for political asylum, the Tribunal noted that “[t]here is no doubt in our mind that the Appellant’s claim to asylum was, in all of its substantive parts, fraudulent, and that the Appellant himself has been deliberately dishonest in almost all his dealings with the authorities in this country.” At issue before the Tribunal was whether, by virtue of being a failed asylum seeker in the U.K., and notwithstanding the merits of his original asylum claim, the appellant faced a risk of persecution and abuse upon return to Zimbabwe that would make any removal to Zimbabwe by the U.K. a violation of its obligations under the Refugee Convention and the European Convention on Human Rights.
In the end the Tribunal found compelling the evidence put forth by the appellant alleging that Zimbabwe’s Central Intelligence Organization, the CIO, normally detains deported asylum seekers from the U.K. upon return to Harare airport. Those who are released from detention are normally kept under surveillance and are required to report to the police, in addition to being subject to physical abuse. The Tribunal noted that the evidence made clear that persons who were deported and sent to Zimbabwe from the UK were handled by the CIO and not by the ordinary immigration channels in Zimbabwe, and that such persons face a risk of harm. It concluded that the appellant had a well-founded fear of persecution under the Refugee Convention and would be at risk of treatment contrary to Article 3 of the European Convention on Human Rights if he were returned to Zimbabwe.
The Tribunal noted its fear that its decision might “demonstrate or confirm that refugee law is inherently prone to abuse.” It observed, however, that the U.K. government had in some ways contributed to the risk identified by the Tribunal for having failed to make any arrangements to ensure so far as possible that those returned to Zimbabwe voluntarily and those returned involuntarily were not readily distinguishable on arrival, and for its disinterest in the way in which failed asylum seekers were able to be identified by airline staff during their return to Zimbabwe.
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