Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law February 1, 2007.
Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment (Entered into Force June 22, 2006)
Click here for document. (Approximately 10 pages).
The United Nations General Assembly adopted the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment (the “OPCAT”) December 18, 2002. The OPCAT entered into force June 22, 2006 with the ratification or accession of twenty states. As of November 1, 2006, there were 54 States signatories and 28 parties to it. As of November 1, 2006, the United States had neither signed nor ratified it.
Article 1 of the OPCAT sets forth its purpose: “to establish a system of regular visits undertaken by independent international and national bodies to places were people are deprived of their liberty, in order to prevent torture and other cruel, inhuman, or degrading treatment or punishment.” To accomplish this goal, it establishes a “Subcommittee on Prevention” that will be guided by principles of confidentiality, impartiality, non-selectivity, universality and objectivity. States parties are required to cooperate with the Subcommittee on Prevention. OPCAT requires States parties to establish or maintain domestic bodies able to conduct preventative visits. States parties must also permit visits, to any place in their jurisdiction and control where persons are or may be deprived of their liberty, which is defined as any form of detention or imprisonment in any public or private custodial setting where the person is not permitted to leave by order of any judicial, administrative, or other authority.
The Subcommittee on Prevention will conduct visits and make recommendations to States Parties on the protection of those deprived of their liberty against torture, and other cruel, inhuman or degrading treatment or punishment. It will advise and help States to improve the capacity of national preventative mechanisms. It will also cooperate with appropriate UN bodies and other international, regional, and national institutions. States Parties must provide the Subcommittee with unrestricted access to all information on the number of people deprived of their liberty and their location; unrestricted access to information on the treatment of the persons and their conditions of detention; unrestricted access to all places of detention; and the ability to have private interviews with the detained persons, with objections to such visits permitted only upon urgent and compelling grounds of national defense, public safety, natural disaster or serious disorder in the place to be visited.
Article 30 of the OPCAT does not permit reservations to it. The states that had ratified the Optional Protocol as of November 1, 2006 are: Albania, Argentina, Benin, Bolivia, Costa Rica, Croatia, the Czech Republic, Denmark, Estonia, Georgia, Honduras, Liberia, Liechtenstein, Maldives, Mali, Malta, Mauritius, Mexico, Moldova, Paraguay, Peru, Poland, Senegal, Serbia, Spain, Sweden, Ukraine, the United Kingdom of Great Britain and Northern Ireland, and Uruguay.
Conclusions and Recommendations of the Fifth Meeting of the Special Commission to Review the Operation of the Hague Convention on the Civil Aspects of International Child Abduction (25 October 1980) and the Practical Implementation of the Hague Convention of 19 October 1966 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children. Adopted by the Special Commission. (30 October to 9 November 2006)
Click here for document. (Approximately 16 pages).
The Special Commission took cognizance of critical developments since it met in 2001. Ten nations had joined the Convention bringing the total number of States parties to 76, including three members from three continents, demonstrating its global scope. Because the new members had not taken part in the original negotiations, there is a need for technical assistance and training. Further, because about two-thirds of the “taking” parents are primary caretakers, concerns with respect to implementation of the Convention have developed that its drafters could not have foreseen. After the 2001 meeting, the 1996 International Convention on the Protection of Children entered into force in January 2002. New initiatives are underway regarding cross-border mediation and inter-judicial judicial cooperation.
The Special Commission emphasized the importance of the applicant having access to legal aid and effective legal representation. This includes obtaining relevant advice which takes into consideration unique barriers posed by a lack of familiarity with languages or legal systems. The Commission opined that lack of means should not operate as a barrier to access to counsel. It also highlighted that impediments in obtaining access to counsel can have a negative impact upon the interests of the child as well as the parents.
The Special Commission endorsed the creation of “country profiles” with information on relevant national laws available to all States. It recommended the creation of a working group composed of nations with diverse legal systems to develop a “country profile form” that Contracting States will update. The States to be included in this working group are: Argentina, Australia, Bahamas, Belgium, Brazil, Canada, Chile, France, Portugal, South Africa, Spain, Sweden, the United Kingdom, and the United States of America.
The Special Commission reaffirmed the importance of its recommendation 1.13 of the Special Commission meeting of 2001 regarding the safe return of children. It noted that in most cases, a consideration of a child’s best interests requires that both parents have the opportunity to participate and be heard in child custody proceedings.
The Special Commission indicated its hearty approbation of the Hague Conference’s work to better legal mechanisms to resolve cross-frontier family disputes between a number of Hague Convention States and non-Hague Convention States.
JUDICIAL AND RELATED DOCUMENTS
European Court of Human Rights: Chitayev v. Russia (January 18, 2007)
Click here for document. (Approximately 33 pages).
Two brothers, Arbi Chitayev and Adam Chitayev, brought suit against the Russian Federation complaining that local officers had committed unlawful arrest and detention, torture, inhuman and degrading treatment against them, and that these crimes had been insufficiently investigated. The European Court of Human Rights (EHCR) held that there had been a violation of the brothers’ right not to be tortured in violation of Article 3 of the Convention, and that the alleged abuses had not been investigated adequately. The Court found a violation of Article 5 regarding arbitrary detention for only a portion of the time the brothers were held, from June 19 and October 4, 2000, with the other portion of time that they were detained, from April 17 to June 18 lawful under Russian law. The Court ordered Russia to pay 35,000 Euros to each brother in non-pecuniary damages, and 7,629.90 Euros in costs and expenses to the brothers’ representatives.
In January 2000 officers of the Temporary Office of the Achkhoy-Martan District (VOVD) searched the brother’s home for weapons and took a cellular phone. Adam Chitayev complained to the head of the VOVD that the search was unauthorized and requested that the phone be returned. On April 12, 2000, VOVD returned to the family home and took additional electronic goods and brought the brothers to the VOVD station. While the brothers were detained, they were tied to chairs and beaten, given electric shocks, strangled, set upon by dogs, and some of their skin was torn away with pliers. At one point, they were put into a truck with other prisoners and told that they were going to be executed, but were instead taken to another detention center. They were released in October 2000.
The Russian government argued that the ECHR should declare the case inadmissible as the brothers had failed to exhaust domestic remedies, and cited their failure to challenge the lawfulness of their arrest or detention to a prosecutor or a court, and they could have sought compensatory damages for their injuries in a civil court upon their release. The brothers responded by claiming that they could not have availed themselves of Chechen courts, or the legal system there generally, as neither were functioning in 2000. They argued further that after their release, they asked the prosecutor’s office to investigate their claims, and to prosecute those involved, but the officials failed to investigate or act. The ECHR examined the requirement of exhaustion of domestic remedies pursuant to Article 35 §1 and opined that the government’s bears the burden of demonstrating that the remedies were effective, and able to offer redress to the applicant’s complaints with a reasonable view of success. The court therefore dismissed the government’s argument with respect to exhaustion of remedies for the Article 3 claim regarding torture, but upheld it regarding their claims that their rights under Article 8 to respect for private and family life were violated by the searches and seizures, because the brothers could have sought judicial redress for such acts when the courts became operational.
The ECHR found that the brothers had been subjected to torture in violation of their rights under Article 3 because agents of the state intentionally, and during the course of their official duties, subjected them to “severe” pain and suffering to obtain a confession or other information from them.
United States Court of Appeal: Kensington International Limited v. Republic of Congo (2d Cir. 2006).
Click here for document. (Approximately 18 pages).
In 2002, an English court ordered the Republic of Congo to pay Kensington Limited $57 million plus interest on an overdue debt. Kensington then attempted to have the English order recognized in the U.S. and it filed suit in New York. In 2004 a district court granted summary judgment on Kensington’s claim to have the English court order recognized. On March 18, 2005, despite the Congo’s claim that it was protected by the Foreign Sovereign Immunities Act (FSIA) 28 U.S.C. § 1609 et eq., , the district court granted Kensington’s motion to require the Congo to post security for costs and attorney’s fees. The Congo appealed. The Court of Appeals dismissed the appeal, holding that the order to post security is not appealable under the collateral order doctrine.
As a threshold issue, the Court of Appeals held that the District Court’ s order was not appealable as an interlocutory order because it failed to satisfy the third prong of the test of the collateral order doctrine. That test requires that the order: 1) must conclusively determine the disputed question; 2) resolve an important issue completely separate from the merits of the action; and 3) be effectively unreviewable on appeal from a final judgment. The Court relied upon earlier precedent distinguishing FSIA immunity from suit under 28 U.S.C. §1604 which are appealable collateral orders, and claims of FSIA immunity from attachment, which are not appealable. Under the holding of Caribbean Trading, 948 F.2d 1129 (2d Cir. 1992),an order granting security is not appealable because the wronged party may obtain full relief on appeal from final judgment. The Congo attempted to argue that it could distinguish Caribbean Trading here because the order would require it to include immune assets into the jurisdiction, nullifying the immunity of the assets and making them attachable under the FSIA and would constitute irreparable and unreviewable harm. The Court of Appeals did not concur because the district court’s order did not reach beyond the FSIA limits. The Second Circuit therefore dismissed the Congo’s appeal for lack of jurisdiction.
While the Congo asserted FSIA immunity for its property pursuant to 29 U.S.C. §1609, the Second Circuit highlighted exceptions to is immunity t in 28 U.S.C. §§1610, 1611. The court applied one of those exceptions, §1610(d)(1), which provides that the property of a foreign state used for a commercial activity in the U.S. is not immune from suit if the foreign state has explicitly waived its immunity from attachment before the suit. Here, the Congo waived its immunity under the FSIA in the loan agreement with Kensington.
United States: Belhas v. Ya’Alon (D.D.C. December 14, 2006)
Plaintiffs, Lebanese citizens who were injured or killed, and their families, brought suit against Israeli General Moshe Ya’Alon pursuant to the Alien Tort Claims Act (ATC) , 28 U.S.C. §1350, and the Torture Victim Protection Act (TVPA), 28 U.S.C. §1350 (note), alleging that his acts constituted war crimes, extrajudicial killing, crimes against humanity, and cruel inhuman or degrading treatment or punishment. The defendant contended that the plaintiffs’ suit was barred by the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §1602 et seq., has non justiciable political questions, and is barred by the Act of State doctrine. The District Court for the District of Columbia granted the defendant’s motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, holding that it lacked jurisdiction to hear the suit pursuant to the Foreign Sovereign Immunities Act.
The suit arose out of a bombing by the Israeli military of Qana, Lebanon, on April 18, 1996 which killed civilians and United Nations (UN) soldiers at a UN compound. General Moshe Ya’Alon is now retired, but served as the head of Israeli Army Intelligence at the time of the bombing. On February 6, 2006, General Ya’Alon submitted a letter to the court from the Ambassador of the State of Israel to the United States Department of State Under-Secretary for Political Affairs indicating that the lawsuit dealt with issues facing the sovereign State of Israel, and that permitting such a suit against former officers is allowing a suit against Israel. The District Court explained that, pursuant to the FSIA, foreign states are presumed to possess immunity from suit unless one of the exceptions to the FSIA applies. The armed forces of a nation are so closely tied with the structure of a foreign state that they must always be considered a part of the foreign state rather than an agency or instrumentality of it. Those acting in their official capacity for the state are considered to be “agencies or instrumentalities” of the state. The plaintiffs argued that General Ya’Alon is liable pursuant to the TVPA for extrajudicial killing even if he was acting in his official capacity, and that the FSIA does not preclude suits against individuals acting beyond the scope of their authority for war crimes, crimes against humanity, extrajudicial killing, and cruel, inhuman, or degrading treatment or punishment.
The plaintiffs argued that under the TVPA, individual officials should be treated in a manner different than that of the state for purposes of FSIA immunity, and that the TVPA pierces the FSIA because it allows liability for persons acting under actual or apparent authority or color of law. The District Court did not concur, despite noting that officials acting on behalf of a foreign state could be sued under one of the exceptions to the FSIA such as actions by state sponsors of terrorism, 28 U.S.C. § 1605(a)(7).
United States: Doe v. Exxon Mobile Corporation (D.C. Cir. January 12, 2007)
Click here for document. ( Approximately 24 pages)
Exxon Mobil Corporation (“Exxon”) appealed a district court order denying its motion to dismiss, contending that the case involved a non-justiciable political question. In the alternative, Exxon sought the court of appeals to declare its appeal as a writ of mandamus compelling the district court to dismiss. The court of appeals held that it lacked jurisdiction over Exxon’s appeal under the collateral order doctrine and that the denial of a motion to dismiss based upon political question grounds is not an immediately appealable collateral order. It further denied the petition because Exxon did not establish a “clear and indisputable” right to have the plaintiffs’ claims dismissed.
Exxon operates a natural gas and processing plant in Aceh province, Indonesia. Plaintiffs, eleven Indonesian villagers from Acheh alleged that Exxon’s security forces committed murder, torture, sexual assault, battery, false imprisonment, and other torts. The plaintiffs further asserted that the security forces were comprised of members of the Indonesian military, and Exxon knew they had committed human rights abuses in the past, and the forces acted under Exxon’s “direction and control.”
In June 2001 the plaintiffs sued Exxon and PT Arun LNG Company under the Alien Tort Statute (ATC) and the Torture Victims Protection Act (TVPA), and brought claims for wrongful death, assault, battery, arbitrary arrest and detention, false imprisonment, intentional and negligent infliction of emotional distress, negligence in hiring and supervision, and conversion. They sought compensatory and punitive damages, declaratory relief, attorney’s fees, and an injunction prohibiting the defendant’s from similar conduct in the future. In October 2001, the defendants moved to dismiss on the grounds that the case involved a non-justiciable political question. The district court asked the State Department whether hearing the plaintiffs’ claims would impinge on U.S. foreign policy interests. The State Department’s Office of the Legal Advisor indicated that hearing the plaintiffs’ claims would “risk a potentially adverse impact on the significant interests of the United States,” particularly with respect to the war on terror and that it might discourage foreign investment; but that whether the case would adversely impact upon U.S. Foreign Policy interests depended upon the nature, intrusiveness, and extent of discovery. The court of appeals defined the issue before it as whether a district court’s denial of a defendant’s motion to dismiss on ground of a political question is an immediately appealable collateral order. It held that it was not because Exxon had not satisfied the third prong of the test for the collateral order doctrine: whether the order in question will be effectively unreviewable on appeal from final judgment. The court of appeals refused to grant’ Exxon’s petition for mandamus, because to do so, it would have to find that the district court “clearly and indisputably” exceeded its jurisdiction by refusing to dismiss the case under the political question grounds.
Briefly Noted: International Criminal Court: Pre-Trial Chamber Commits Thomas Lubanga Dyilo for Trial (January 29, 2007)
On January 29, 2007, the Pre-Trial Chamber 1 of the International Criminal Court confirmed three charges brought by the Prosecutor against Thomas Lubanga Dyila and referred the case for trial. The Pre-Trial Chamber decided that there is sufficient evidence to establish that Dyilo is criminally responsible as co-perpetrator for war crimes of recruting and enlisting children under the age of fifteen years of age to serve as child soldiers and actually having them fight on the front lines in Ituri, Democratic Republic of the Congo.
United Nations Report of the Secretary-General: Uniting our strengths: Enhancing United Nations support for the rule of law (December 14, 2006).
Click here for document. (Approximately 17 pages).
In his report, the Secretary-General cites key developments since 2004 when the Security Council met to discuss "Justice and the rule of law: The United Nations role." These include consistent integration of rule of and transitional justice issues into the strategic planning and implementation of new peace operations as well as the recognition by most Member States of the importance of the establishment of the rule of law as an integral aspect of peacekeeping to attain sustainable peace and security. He refers to the Security Council’s increasing inclusion of human rights and reforms in police, judicial, and legal sectors in its mandates as another example of such progress.
The Secretary-General references a number of areas in which reforms are still needed however. For example, because the UN has often relied on outside expertise in rule of law and post-conflict justice work, such “chronic outsourcing” hinders capacity building and increasing the institutional memory at the UN. He calls for greater coordination of rule of law efforts both within and outside of the UN. He created a “Rule of Law Coordination and Resource Group” (RLCRG) within the UN Secretariat that will be led by the Deputy Secretary-General. It will consist of the Office of Legal Affairs, the Department of Peacekeeping Operations, the OHCHR, UNODC, UNDP, UNIFEM, and UNHCR. It will coordinate Rule of Law work across the UN system in an effort to promote greater coherence and collaboration, as well as serving as a venue for resources and "best practices" on the rule of law. The RLCRG will also lead a consultative process with Member States and other partners to pinpoint areas in which the UN should improve its capacity, and suggest specific timeframes in which to accomplish its work. It will also consider the establishment of a "rule of law trust fund" for the UN system to use in its rule of law endeavors.
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