Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law September 7, 2006
Council of Europe: Entry intro force of Additional Protocol to the Convention on cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems (January 28, 2003)
On March 1, 2006, the Additional Protocol to the Convention on cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems (the “Additional Protocol”) entered into force.
The Additional Protocol provides a signatory State “shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the following conduct:”
“distributing, or otherwise making available, racist and xenophobic material to the public through a computer system.”
“threatening, through a computer system, with the commission of a serious criminal offence as defined under its domestic law, (i) persons for the reason that they belong to a group, distinguished by race, colour, descent or national or ethnic origin, as well as religion, if used as a pretext for any of these factors, or (ii) a group of persons which is distinguished by any of these characteristics.
“insulting publicly, through a computer system, (i) persons for the reason that they belong to a group distinguished by race, colour, descent or national or ethnic origin, as well as religion, if used as a pretext for any of these factors; or (ii) a group of persons which is distinguished by any of these characteristics.”
“distributing or otherwise making available, through a computer system to the public, material which denies, grossly minimises, approves or justifies acts constituting genocide or crimes against humanity, as defined by international law and recognised as such by final and binding decisions of the International Military Tribunal, established by the London Agreement of 8 August 1945, or of any other international court established by relevant international instruments and whose jurisdiction is recognised by that Party.”
International Centre for Settlement of Investment Disputes (ICSID): CMS Gas Transmission Company v. Argentine Republic (Decision on the Argentine Republic’s Request for a Continued Stay of Enforcement of the Award) (September 1, 2006)
The ad hoc Committee (the “Committee”) decided that the stay of the enforcement of the award be continued pending its decision on the application for annulment.
The Argentine Republic (“Argentina”) filed an application requesting the annulment of the award in CMS Gas Transmission Company v. Argentina dated May 12, 2005. Argentina sought annulment on grounds that the tribunal manifestly exceeded its powers and that the award had failed to state the reasons on which it was based. In that application Argentina also requested, as provided for in Article 52(5) of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“ICSID Convention”), that the enforcement of the award be stayed until the application for annulment was decided. Article 52 (5) of the Convention states:
“The Committee may, if it considers that the circumstances so require, stay enforcement of the award pending its decision. If the applicant requests a stay of enforcement of the award in his application, enforcement shall be stayed provisionally until the Committee rules on such request.”
Accordingly, the enforcement of the award was provisionally stayed. After the Committee was established, hearings were held on whether enforcement of the award should be stayed and whether Argentina was to provide assurances as to the payment of the award, should its application for annulment fail.
Argentina submitted that an enforcement of the award pending the decision annulment “would irreparably harm Argentina.” CMS Gas Transmission Company (“CMS”) requested that the provisional stay should not be continued “unless Argentina provides adequate assurances (such as the provision of an irrevocable and unconditional bank guarantee in favour of CMS) as to the payment of the Award, should its application for annulment fail.” In support of its request, CMS inter alia stated that Argentina had consistently expressed its intention to challenge a final ICSID award in the matter before other fora. In that regard, Argentina noted that the ICSID Convention does not provide for a bond in the case of a continuance of a stay of enforcement and that the fee for such an assurance by an international bank would be extremely high.
The Committee noted that, because the stay of enforcement was not automatic, it could be granted subject to a condition. The Committee then went on to state that “[a]s a general matter, a respondent State seeking annulment should be entitled to a stay provided it gives reasonable assurances that the award, if not annulled, will be complied with.” On the issue of compliance, the parties disagreed on the status of the ICSID Convention in Argentina’s domestic law.
Upon request of the Committee, Argentina submitted a written statement of compliance in which it “irrevocably” committed “Argentina to enforce the pecuniary obligations imposed upon it by the Award in the event that annulment is not granted.” This, in view of the Committee, “should dispel the doubts that CMS may legitimately have had in the past.
International Centre for Settlement of Investment Disputes (ICSID): Suez, Sociedad General de Aguas de Barcelona S.A., (Claimants) and The Argentine Republic (Respondent) (Decision on Jurisdiction) (August 3, 2006)
Dismissing the Argentine Republic’s (“Argentina”) objections in their entirety, the tribunal decided that it has jurisdiction over the dispute.
Aguas Argentinas S.A.(“AASA”), Suez, Sociedad General de Aguas de Barcelona S.A. (“AGBAR”), Vivendi Universal S.A. (“Vivendi”) and AWG, (together “the Claimants”) brought this arbitration against Argentina. AASA is a company incorporated in Argentina. Suez, and Vivendi, both incorporated in France, AGBAR, incorporated in Spain, and AWG, incorporated in the United Kingdom, were shareholders in AASA.The dispute relates to the Claimants’ investments in a concession for water distribution and waste water treatment services in the city of Buenos Aires and some surrounding municipalities. The Claimants alleged a series of acts and omissions by Argentina, including Argentina’s alleged failure or refusal to apply previously agreed adjustments to the tariff calculation and adjustment mechanisms.
The Claimants announced in February 2006 that they were “in the process of selling their interests in AASA to third parties” and that AASA was therefore withdrawing its claim from the arbitration in order to facilitate the required approval by Argentina.
Argentina, inter alia contended that, owing to the withdrawal of AASA the Claimants, as mere shareholders, did not have standing to bring this claim. In that regard Argentina relied on domestic corporation law, according to which “any injury to the shareholders is derivative of the alleged injury to the company in which they hold shares.” The Claimants argued that the issue of whether a shareholder has standing should be resolved under the application of international law, rather than domestic law. They asserted that their shares were protected investments under the respective Bilateral Investments Treaties (“BITs”). The tribunal concluded that the plain language of all applicable BITs stated that shares are “investments,” and that therefore even the shareholders of AASA could bring the dispute without AASA participating in it.
Argentina also asserted that Claimants AGBAR and AWG did not have standing because they had not complied with the provisions of the Argentina-Spain BIT and the Argentina-
U.K. BIT requiring submission of an investment dispute to local courts before
invoking international arbitration. The Claimants relied on the Most-Favored-Nation clause in the respective BITs and argued that by virtue of the Argentina-France BIT, according to which no requirement of prior litigation in local courts was necessary, they had standing to bring the case. The Tribunal examined the BITs in question and found that dispute settlement was not excluded from the Most-Favored-Nation clauses. The tribunal found support for its conclusion in Maffezini v. Spain. Argentina, on the other hand, cited the Plama v. Bulgaria, in which the tribunal found that it had no jurisdiction because dispute settlement was not included in the most-favored-nation treatment according to the will of the negotiating parties of the BIT. The tribunal distinguished the factual situation at issue of that in Plama and dismissed Argentina’s objections in their entirety.
United States District Court for the Eastern District of Virginia (Alexandria Division): Khaled El-Masri v. George Tenet, et al. (May 12, 2006)
The document is available on Lexis.
The United States District Court for the Eastern District of Virginia dismissed the claims of Khaled El-Masri (the “plaintiff”) who claimed to have been “an innocent victim of the United States’ ‘extraordinary rendition’ program.” The plaintiff, inter alia, asserted that, after having been seized by authorities in the former Yugoslav Republic of Macedonia where he was kept in a hotel room for 23 days, he was blindfolded and dragged into an airplane which took him to Kabul, Afghanistan. There, plaintiff contended to have been beaten and placed in a small, cold cell, a prison cell he contends is run by the CIA and is known as the “Salt Pit.” He was released after four months of captivity.
In his complaint the plaintiff, a German citizen of Lebanese descent, named several defendants, interalia, former Director of the CIA George Tenet, certain unknown agents of the CIA, and several corporations. He asserted three causes of action. The first cause of action is brought against George Tenet and the unknown CIA agents for violations of his Fifth Amendment right to due process. A claim under the Alien Tort Statute (“ATS”) brought against all defendants for the violation of the international legal prohibition of prolonged arbitrary detention. Finally, the plaintiff also brought an ATS claim for the violation of the international legal norms prohibiting cruel, inhuman, or degrading treatment.
The issue before the Court was whether the United States’ assertion of the state secrets privilege barred the case from proceeding. In its analysis, the Court first noted that the state secrets privilege is an evidentiary privilege, which must be “formally asserted by the head of the Executive Branch agency with control over the state secrets at issue.” The Court then stated that it needed to determine whether the privilege claimed qualified as a state secret and answered that question in the affirmative. The Court made note of the fact that the state secrets privilege is an absolute privilege, which is not subject to a judicial balance of the various interests at stake. It then concluded that the privilege had been validly asserted, as “any admission or denial of the allegations” asserted by the plaintiff would “reveal the means methods employed pursuant to this clandestine program and such a revelation would present a grave risk of injury to national security. Finally, the Court determined that no special procedural mechanisms would be adequate to prevent disclosure of the state secrets because “the very subject of the litigation is itself a state secret.” The Court concluded that “while dismissal of the complaint deprives El-Masri of an American judicial forum for vindicating his claims, well established and controlling legal principles require that in the present circumstances, El-Masri’s private interests must give way to the national interest in preserving state secrets. The United States’ motion to dismiss must therefore be granted.”
The plaintiff has filed an appeal to this decision.
The Human Rights Council, acting upon U.N. General Assembly Resolution 60/251 of 15 March 2006, adopts the United Nations Declaration on the Rights of Indigenous Peoples as proposed by the Chairman-Rapporteur of the working group of the Commission on Human Rights in accordance with paragraph 5 of General Assembly Resolution 49/214 of 23 December 1994 and General Assembly Resolution 60/1 of 16 September 2005. The latter reaffirmed the commitment of the international community to adopt a final draft United Nations Declaration on the Rights of Indigenous Peoples. The Human Rights Council recommends that the General Assembly adopt the draft resolution as contained in this document. The draft Declaration states that indigenous peoples should be free and equal to all other people and free from any form of discrimination. Article 3 states that they have the right of self-determination the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means of financing their autonomous functions, and Article 5 states that “[e]very indigenous individual has the right to a nationality.” Also, Article 17 stipulates that Indigenous People have the right “to establish their own media in their own languages.” Article 26 states that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. The draft Declaration also provides for an obligation of States to provide effective mechanisms to protect the rights established in the draft Declaration.
Council of Europe (Parliamentary Assembly): Recommendation 1507 on Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe Member States (June 27, 2006)
This resolution is a reaction by the Parliamentary Assembly of the Council of Europe to what it calls “numerous and systematic human rights abuses committed in the so-called ‘war on terrorism’”. In particular, the Resolution states that the evidence of these detentions and inter-state transfers shows that the United States finds neither the classic instruments of criminal law and procedure nor the framework of the laws of war, including respect for the Geneva Conventions, apt to address the threats posed by terrorism. The Resolution condemns the systematic exclusion of all forms of judicial protection and regrets that by depriving hundreds of suspects their basic rights the United States has undermined the cause of justice and tarnished its reputation as a protector of human rights. The Resolution further details the acts of collusion by certain Council of Europe Member States with the acts of detention and inter-transfer of terror suspects by the United States. To prevent these violations from occurring again, the Parliamentary Assembly commends the actions of the Secretary General of the Council of Europe under Article 52 of the ECHR and calls upon Member States to prevent such actions in the future. In addition, the United States, as an observer, is called upon to dismantle its system of illegal detentions and stop unlawful inter-state transfers. Finally, the Resolution calls for a review of existing bi-lateral agreements and legal arrangements of all Member States to avoid creating direct or indirect de jure or de facto exemptions in applying European conventions to which Council of Europe Member States are parties.
The report, which covers the period from May to July 2006 has been prepared in accordance with the provisions of Security Council resolution 1612 (2005).
It specifies “incidents of grave child rights abuses, indicative of the nature and trend of systematic violations in the Sudan report.” In particular, the report “focuses specifically on the killing and maiming of children, their recruitment and use as soldiers, grave sexual violence, abductions and denial of humanitarian access to children, and indicates that these violations continue in the Sudan largely unabated.” The report estimates that thousands of children are still associated with armed forces and groups in Darfur and were actively involved in conflict between May and July 2006.” The report explains strategies that can be used to address the children’s rights violations. Finally, the Secretary-General issues recommendations for the protection of children affected by the war.
According to a press release of the Office of the Prosecutor of the International Criminal Court (“the ICC”), Thomas Lubanga Dyilo, has been formally charged by the Prosecutor “with enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities.” Dyilo is a former leader of a militia group at war in the North Eastern Ituri district of the Democratic Republic of the Congo. Pending confirmation of the charges at the confirmation hearing on September 28, 2006, this case will be the first trial before the ICC and the first time that an individual has been brought before an international court solely on the basis of these crimes.
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