Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law March 2, 2006
International Labour Organization (ILO): Maritime Labour Convention 2006 (February 23, 2006)
Click here for the proposed text of the Convention.
The International Labour Organization (the “ILO”), on February 23, 2006, adopted the so-called Maritime Labour Convention, 2006, (the “Convention”). According to a press release of the ILO, the Convention “sets out a wide range of rights to decent working conditions for seafarers and covers subjects including health, safety, minimum age, recruitment, hours of work and other vital issues affecting seafarers' lives.”
The final draft consolidates and updates more than 65 international maritime labor instruments adopted by the ILO over the past 80 years. The Convention is aimed at consolidating nearly all existing labor standards in order to meet current and future needs. Among other things, the Convention deals with
the minimum requirements for seafarers to work on a ship,
the conditions of employment,
the accommodation, recreational facilities, food, and catering,
the health protections, medial care, welfare and social protection.
Under the Convention, the seafarers will have to be properly informed about their rights and will also have the right to lodge a complaint on board a ship and ashore.
On the Convention’s entry into force, any Member that has already ratified it or subsequently ratifies it will be deemed to have denounced any convention adopted after 1930 which it has ratified and which is identified in the new Convention. The revised conventions (older conventions) will be in force for states that have not ratified the Convention, however, these revised conventions will be closed for further ratification.
International Center for Settlement of Investment Disputes (ICSID): Salini Construttori S.p.A. and Italstrade S.p.A. v. The Hashemite Kingdom of Jordan (January 31, 2006)
The Tribunal unanimously dismissed the claims of Salini Construttori S.p.A. and Italstrade S.p.A. (“the Claimants”).
The Claimants had a contract with the Ministry of Water and Irrigation/Jordan Valley Authority of Jordan for the Construction of the Karameh Dam Project. The parties are at disagreement over the amount owed to the contractor.
In its decision on jurisdiction rendered on November 29, 2004, the Tribunal held that it had jurisdiction “over the Claimants’ claims that Jordan, by refusing to accede to the Claimants’ request to refer the dispute to arbitration pursuant to Article 67(3) of the Contract, breached Articles 2(3) and Article 2(4) of the Bilateral Investment Treaty concluded between Jordan and Italy on 21 July 1996.” However, the Claimants’ remaining claims under the contract were, according to the Tribunal, outside its jurisdiction.
The Claimants submitted that it had been verbally agreed upon by the governments of Italy and Jordan that the dispute should be referred to arbitration, a commitment the Claimants asserted to be binding by virtue of the intent of the parties. The Claimants further contended that the failure to arbitrate the dispute constituted a violation of the “just and fair treatment” standard provided for in Article 2(3) of the Bilateral Investment Treaty (the “BIT”). Therefore, the Claimants asked the Tribunal to adjudge and declare “that, by refusing to implement the agreement reached in February 2000 with the Italian Government, Jordan has breached both the agreement and the BIT.” The Respondent rejected the existence of an agreement to arbitrate. To that effect, it recalled that the contract between the Claimants and the Jordan Valley authority provided that any dispute should be resolved by “reference to the competent Court of Law in the Kingdom, unless both parties shall agree that the dispute shall be referred to arbitration,” in which case the approval of the Council of Ministers had to be obtained.
The Tribunal pointed out that the Claimants were relying on an oral agreement. Citing the International Court of Justice’s opinion in the Aegean Sea Continental Shelf Case (Greece v. Turkey), the Tribunal confirmed the possibility of concluding an agreement orally. However, the Tribunal also pointed out that such an agreement could only be viewed as concluded, if the parties intended that agreement to create legal relations between them. As the Tribunal concluded that the Claimants failed to prove that an agreement regarding submission of the dispute to arbitration had been concluded between the parties, it rejected the Claimants’ claim. It was also determined that each side should bear its own costs, a decision to which Sir Ian Sinclair appended a separate declaration in which he indicated his dissent as to the allocation of costs regarding the proceedings on the merits.
The Arbitral Tribunal found no violation of the National Treatment principles by the Mexican government on the basis of Chapter 11 of the North American Free Trade Agreement.
Various entities of the Canadian company, International Thunderbird Gaming Corporation (Thunderbird), opened gaming facilities in several Mexican cities. Prior to the commencement of operations, Thunderbird requested an opinion letter from the Director Gobierno de la Secretaria de Gobernacion (SEGOB) as to the Mexican government’s stance on the legality of the type of facility of a proposed gaming facility. The Opinion Letter stated that the venture would be legal. One year later, after a change in government regimes and after Thunderbird had started developing and opening gaming sites, SEGOB issued another letter stating the company’s activities were illegal and subsequently SEGOB began shutting down the various enterprises. Thunderbird filed a claim under NAFTA’s Chapter 11 Dispute Settlement provision claiming that the Mexican government had violated the principles of National Treatment.
Despite a finding that International Thunderbird Gaming Corporation could make a claim on behalf of the various entities established to undertake this venture, the Tribunal found that the Opinion Letter did not create a “legitimate expectation” for Thunderbird to act, in part because the facts submitted to SEGOB in pursuance of the letter were contradictory to the nature of Thunderbird’s business. The Tribunal further found no violation of National Treatment because the Mexican government actively pursued both non-Mexican and Mexican companies for violation of the gambling laws. The Tribunal also determined that there was no violation of Minimum Standards of Treatment under NAFTA. As a result of these findings, Thunderbird was not entitled to damages and costs were awarded to Mexico.
The dissenting arbitrator, Thomas Wälde, agreed with many components of the majority including jurisdiction, admissibility, and general conditions for a “legitimate expectation” claim. However, the dissent disagreed with how the majority applied the legitimate expectation criteria to this case. Further, the dissent disagreed with the majority’s rejection of the National Treatment claim. The dissent stated that this disagreement was “based on a different weight which needs to be accorded to this principle in the particular context of an investment promotion and protection treaty which protects interests different from those involved in an ordinary commercial relationship involving two equal private parties.”
The European Court of Human Rights (the “Court”) held that there has been no violation of Article 14 (prohibition of discrimination) of the European Convention on Human Rights (the “Convention”), taken in conjunction with Article 2 of Protocol No. 1 (right to education).
The applicants, Czech nationals of Roma origin, were placed in special schools for children with learning difficulties. They alleged to have been placed in such schools due to their Roma origin, and asserted a violation of Article 2 of Protocol No. 1 taken together with Article 14 of the Convention. The Court noted the criticism that had been exercised by several organizations regarding the situation of Roma children in the Czech Republic. At the same time, it noted however, that it was not its task to assess the overall social context, but to asses the case at hand. The Court observed that, “if a policy or general measure has disproportionately prejudicial effects on a group of people, the possibility of its being considered discriminatory cannot be ruled out even if it is not specifically aimed or directed at that group. However, statistics are not by themselves sufficient to disclose a practice which could be classified as discriminatory.” The Court further found that “the rules governing children’s placement in special schools do not refer to the pupils’ ethnic origin, but pursue the legitimate aim of adapting the education system to the needs and aptitudes or disabilities of the children.” The Court made note of the fact that the decision on the school placement was taken by qualified professionals and that the applicants’ representatives had failed to show that the applicants were in fact able to follow an ordinary curriculum and to go to an ordinary school. Also, in some instances, the Court noted, it was the parents who requested that their children be kept in the special schools.
Finally, the Court noted: “[W]hile acknowledging that these statistics disclose figures that are worrying and that the general situation in the Czech Republic concerning the education of Roma children is by no means perfect, the Court cannot in the circumstances find that the measures taken against the applicants were discriminatory. “ The dissenting opinion of Judge Cabral Barreto is attached to the decision.
An Austrian Arbitration Court determined that the requirements of the Federal Act Regarding the Restitution of Artworks from Austrian Federal Museums and Collections (4 December 1998) were met and thus heirs of Ferdinand Bloch-Bauer were entitled to the return of five paintings Mr. Block-Bauer commissioned Gustav Klimt to create.
One legal issue centered on how Austria acquired ownership of the disputed paintings. To determine this question, the Arbitration Court discussed whether Ferdinand Bloch-Bauer’s wife, Adele’s instruction to donate the Klimt paintings to the Austrian State Gallery were nonbonding requests or binding legacies. The Court concluded Adele Bloch-Bauer’s request could be viewed in light of not only the words present in the will, but also her likely intent. The Court then stated that Ferdinand’s subsequent actions were probably undertaken with respect for Adele’s intent and thus Ferdinand’s donations of some, but not all of the paintings to the Austrian State Gallery was a valid action.
The Court further determined that the paintings belonged to Ferdinand and not Adele; therefore, there was alternative basis for a claim that Adele could have transferred right to the paintings to the Austrian State Gallery. The Court also decided that the actions of the individual who was designated by the State as the temporary administrator, including sale and barter of the paintings to various entities to satisfy taxes on the Bloch-Bauer estate, did not create an interest in the paintings for Austria. Finally, the Court determined that Ferdinand’s estate administrator did not invalidate the Bloch-Bauer heirs' claims to the paintings by failing to make an official restitution claim with the Austrian government after the War was over solely to gain export of other family objects and was in no way a statement that the family felt the Austrian government had ownership rights in the paintings.
District Court of The Hague (Rechtsbank ‘s Gravenhage): Cases against Heshamuddin Hesam and Habibulla Jalalzoy (October 14, 2005)
Click here and here for the decisions (in English).
Habibullah Jalalzoy and Heshamuddin Hesam (the ”accused”), both Afghan nationals, were sentenced by the District Court of The Hague (the “Court”) to nine and 12 years of imprisonment respectively in relation to war crimes and torture committed during the time of the communist regime in Afghanistan. During that time Hesam was head of the military intelligence, the KhAD-e Nezami, while Habibullah Jalalzoy was head of the military intelligence’s interrogation department.
In the interest of brevity, only the facts of Heshamuddin Hesam’s case are recited here.
In 1992, Hesam applied for refugee status in the Netherlands in order to obtain a residence permit. This application was rejected because there were “serious reasons to suppose that the suspect had been guilty of war crimes or crimes against humanity.” In 1997 it was decided that the Office of the Prosecutor would be informed of all rejected applications. In an investigation against another individual, during which the telephone lines were tapped, the Prosecution obtained evidence that revealed Hesam’s involvement in acts of torture, and Hesam was arrested in November 2004. Hesam alleged various violations of the standards set out by the European Court of Human Rights, inter alia, he asserted a violation of the nemo tenetur principle, the privilege against self-incrimination. The defense, referring to the Saunders judgment of the European Court of Human Rights, asserted that the Prosecutor violated said principle “because statements made under pressure” at the immigration office were used. The Court rejected that assertion and stated that the immigration procedure was strictly voluntary. Moreover, according to the Court, it “is not decisive whether a statement made is incriminating in itself, but whether this statement has been obtained (among other things) with a view to a criminal prosecution,” something the Court found not to be the case.
The defense also alleged that the Court lacked universal jurisdiction in respect of violations of common Article 3 of the Geneva Conventions, because an “authorization governed by international law is lacking.” The Court rejected this argument as well. After hearing expert opinions on the matter, the Court concluded that between 1978 and 1992 there was a non-international “armed conflict on the territory of Afghanistan between on the one hand governmental troops-whether or not supported by Russian troops- and groups that fought with arms against the government.”
Hesam was convicted of “complicity in torture,” of “deliberately allowing that a subordinate to him is guilty of violation of the laws and practices of war, while this violation consists of violence with joined forces against a person” and of “deliberately allowing that a subordinate to him is guilty of violation of the laws and practices of war, while this violation results in grave bodily harm of another person.” The Court concluded that the crimes were committed between 1985 and 1990.
An Afghan court recently sentenced a former spy chief, Assadullah Sarwari, to death for “killing hundreds of Muslim and Mujahid people in the feared communist prisons.”
Panel on the ICJ Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) and Its Implications for the Rules on the Use of Force
March 13, 2006, 12:30 - 2:00 pm, including a light lunch
Washington, DC
ASIL (Tillar House)
2223 Massachusetts Avenue, NW
Washington, DC
The panel will be moderated by Sean D. Murphy, Professor of Law at The George Washington University Law School. Panelists will include Pieter Bekker, Counsel with White & Case, NY and former ICJ staff lawyer, John Crook, Adjunct Professor at the George Washington University Law School and counsel for the US in several cases before the ICJ, and Todd F. Buchwald, Assistant Legal Adviser, US Department of State.
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 Elena Papangelopoulou, ILM Managing Editor at epapangelopoulou@asil.org
