Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law July 5, 2006
The dispute initiated by Ireland under Annex VII of the Convention related to the operation of a MOX plant located in the UK on the coast of the Irish Sea, and to international movements of radioactive materials and the protection of the marine environment of the Irish Sea. The MOX plant is designed to recycle plutonium from spent nuclear fuel by mixing plutonium dioxide with depleted uranium dioxide, thereby producing MOX (mixed oxide fuel), which is used in nuclear power stations as an energy source. The Convention was approved on behalf of the European Community in 1998. The Community declaration relating to Community competence stipulates that the Community has exclusive competence with regard to the prevention of marine pollution only to the extend to which those provisions affect existing Community rules.
Before the Tribunal Ireland inter alia claimed that the UK failed to take the necessary steps to prevent, reduce, and control pollution of the marine environment. Subsequent to the European Commission’s (the “Commission”) decision to bring this case before the European Court of Justice, the tribunal suspended hearings in November 2004 in order to have the issue of jurisdiction and the Community law competence resolved.
The Commission claimed that Ireland violated Article 292 of the EC Treaty by bringing proceedings against the UK because it failed to respect the exclusive jurisdiction of the ECJ. Article 292 of the EC Treaty stipulates that member states shall not submit a dispute concerning the interpretation or application of the Community law to any method of settlement other than those provided for in the Treaty. The Commission further argued that issues raised in this case by Ireland fell within the jurisdiction of the Community, by virtue of it becoming a party to the Convention and owing to the Declaration of Community competence. Ireland submitted that the issues raised were not covered by Community competence, because no community law provision was affected by the provisions of the Convention.
The Court found that the provisions relied on by Ireland before the arbitral tribunal were rules that formed part of the Community legal order, and that the Court therefore had jurisdiction over the dispute. It also found this jurisdiction to be exclusive and therefore held that Ireland acted in violation of Articles 220 and 229 of the EC Treaty. The Court also found that by submitting instruments of Community law for interpretation and application by the arbitral tribunal amounted to a violation of Article 292 of the EC Treaty and also, in so far as the challenged measures fell within the scope of the Treaty Establishing The European Atomic Energy Community (the “EACE”), a violation of Article 193 of the EAEC.
The applicants are Swedish nationals who made unsuccessful requests to view records held on them by the Swedish Security Police. Their requests were refused on the ground that making them available might threaten national security or hinder police activities. The police and courts relied on Chapter 5, section 1(2), of the 1980 Secrecy Act. The applicants, rely on Article 8 of the European Convention on Human Rights [hereinafter “Convention”] (right to respect for private life), Article 10 (freedom of expression), Article 11 (freedom of assembly and association) and Article 13 (right to an effective remedy).
In terms of Article 8 and the storage of applicants’ information, the Court held that the storage of the information had a legal basis under the 1998 Police Data Act. In addition, the scope of the discretion conferred on the competent authorities and the manner of its exercise was indicated with sufficient clarity. The Court also accepted that the storage of the information in question pursued legitimate aims, namely the prevention of disorder or crime, in the case of Segerstedt-Wiberg, and the protection of national security, for the other applicants. The Court concluded that the continued storage of the information that had been released was necessary concerning Segerstedt-Wiberg, but not for any of the remaining applicants. In terms of the refusal to grant full access to the information, the Court held that Sweden was entitled to consider national security interests and the fight against terrorism over the interests of the applicants.
In terms of Articles 10 and 11, the Court considered that the storage of personal data related to political opinion, affiliations and activities that had been deemed unjustified for the purposes of Article 8 constituted an unjustified interference with the rights protected by Articles 10 and 11 concerning all the applicants, except Segerstedt-Wiberg.
In terms of Article 13 and the applicants’ access to an effective remedy, the Court observed that the Parliamentary Ombudsman and Chancellor of Justice could receive individual complaints and had a duty to investigate them to ensure that the relevant laws had been properly applied. However, they lacked the power to render a legally-binding decision. Therefore, the court found neither remedy, considered on its own, to be effective within the meaning of Article 13 for all of the applicants. Under Article 41 of the Convention (just satisfaction) the Court awarded 3,000 EUR to Segerstedt-Wiberg, 7,000 EUR to Nygren and Schmid, and 5,000 EUR to Ehnebom and Frejd for non-pecuniary damage. The Court also awarded 20,000 EUR, jointly, for costs and expenses.
ICSID: Biwater Gauff (Tanzania) LTD., (Claimant) and United Republic of Tanzania (Respondent) (ICSID Case No. ARB/05/22) Procedural Order No. 1 (March 31, 2006)
On 2 August 2005, Biwater Gauff (Tanzania) [hereinafter “BGT”] filed a request for arbitration in which it sought binding provisional measures in respect to: (1) preservation and provision of documentation of City Water’s bank accounts and City water’s assets; (2) Preservation and provision of City Water’s papers, records, and correspondence; and (3) Additional provisional measures based on “necessity and urgency”. UROT replied by challenging: (1) jurisdiction and other preliminary issues that may be presented to the Tribunal in the early stages of arbitration; (2) the necessity and urgency; and (3) that BGT’s request was an invitation for the Tribunal to prejudge the merits of the case. The power of a Tribunal to impose provisional measures is contained in Article 47 of the ICSID Convention which states that “Except as the parties otherwise agree, the Tribunal may, if it considers that the circumstances so require, recommend provisional measures which should be taken to preserve the respective rights of either party” and Arbitration Rule 39 (1) which states that a party may request provisional measures at any time during a proceeding. The requirements that must be met for provisional measures are urgency, necessity, a right that requires protection; circumstances threatening the right; etc. In terms of preservation of evidence, the Tribunal held that for purposes of their possible presentation, the UROT preserve, and take no adverse step in relation to all documents within BGT’s request. In terms an inventory of documents, the Tribunal found BGT’s request overly broad and potentially burdensome. Nonetheless, it ordered that the UROT take all necessary steps to provide an inventory of (a) the documents seized or taken over or otherwise existing at City Water’s offices, and (b) documents relating to City Water’s operation. Regarding the production of various categories of documents the Tribunal held that its recommendation on preservation was sufficient to protect the rights in question. The Tribunal also held that Article 47 is designed to ensure that the Tribunal can properly discharge its mandate, while Article 43 is one element in a range of provisions that structure how this mandate is discharged. Allowing Article 47 as a method of obtaining disclosure of documents might lead to the use of Article 47 to circumvent other procedures. Finally, regarding BGT’s application concerning City Water’s Bank accounts, the Tribunal ordered that the UROT take all necessary steps to procure that all of the bank statements… be delivered to City Water’s new address. For City Water’s assets the Tribunal ordered that there were no case management advantages in accelerating the requests. The Tribunal also ordered that the request for a statement of account was too broad and covered under the aforementioned production order.
Supreme Court of the United States: Hamdan v. Rumsfeld, Secretary of Defense et al. (June 29, 2006)
The decision is available on Lexis.
The Supreme Court (“the Court”) of the United States held that the military commission cannot be used to try Hamdan.
The petitioner Hamdan, a Yemeni citizen, was captured in Afghanistan in 2001 and transferred to prison in Guantanamo Bay, Cuba. About a year later, President Bush held that Hamdan was eligible for trial by military commission. Yet a year later, Hamdan was charged with conspiracy to “commit …offenses triable by military commission.” Hamdan challenged his detention and prosecution in habeas corpus and mandamus proceedings. The District Court granted habeas relief and the commission proceedings were suspended, because the President’s authority to establish military commissions extends only to the offenders or offenses triable by such a commission under the law of war. Because such law included the Third Geneva Convention, and because Hamdan was entitled to its full protections until adjudged under it, that he was not a prisoner of war, the District Court granted the relief sought. The DC Circuit reversed the judgment holding that the Geneva Convention was not judicially enforceable.
The Supreme Court reversed the judgment and remanded the case. Justice Stevens delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer joined. The majority opinion concludes that the military commission convened to try Hamdan violated in structure and procedure both the Uniform Code of Military Justice (“UCMJ”) and the Geneva Conventions.
Justices Stevens, Souter, Ginsburg, and Breyer also found that the offense with which Hamdan has been charged is not an “offense that by the law of war may be tried by military commissions.
The Government filed a motion to dismiss the writ of certiorari, basing its arguments on the Detainee Treatment Act of 2005 (the “DTA”). It argued that the Supreme Court lacked jurisdiction to review the Court of Appeals decision, because the DTA stripped the Court of its jurisdiction. The Court did not find the DTA to apply to this case and dismissed the Government’s motion.
In terms of the military commissions, the Court first noted that these are not expressly authorized by any congressional Act. Citing its decision in Quirin, the Court reiterated that Congress had, through Article of War 15, which is in substance identical to Art. 21 of the UCMJ, sanctioned the use of military commissions to try offenders and offenses against the law of war. That authorization, however, is in view of the Court not an unlimited one. Rather, the military commissions have to abide by the law of war. Also, neither the AUMF nor the DTA override this authorization regarding the established commission.
The majority opinion, finding that at a minimum Common Article 3 of the Geneva Conventions was applicable to the armed conflict during which Hamdan was captured, stipulated that “Common Article 3 obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements.”
Justices Scalia, Alito and Thomas dissented in their respective opinions.
Chief Justice Roberts took no part in the consideration or decision of this case as he sat on the bench that delivered the judgment under review.
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