Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law May 2, 2007
The European Union and the United States signed an Air Transportation Agreement (the Agreement) that will replace current bilateral agreements between the United States and European Union member states (see the synopsis of the European Court of Justice decision below on the U.S./Netherlands agreement) to create an “open skies” initiative between the U.S. and the EU. The agreement is anticipated to result in economic benefits to both the EU and the U.S. It will eliminate World War II era barriers and will permit airlines in the U.S. and the EU to fly between any city in the U.S. and the EU. It will also remove the current restrictions on the United Kingdom’s Heathrow airport, which is currently limited to only four airlines that fly between the U.S. and the U.K.: American, United, Virgin, and British Airways.
The Agreement creates a joint committee to help the U.S. and the EU collaborate and solve future issues that may arise. It permits investors in the U.S. to invest in an airline in the European Community, if the carrier is either majority owned or controlled by a member state or EU national. In turn, EU investors may own 49.9 percent of a U.S. Airline, or on an individual basis, a greater percentage, so long as the individual does not possess greater than 25% of the voting stock and U.S. citizens are in charge of the air carrier.
*Note that as of May 1, 2007 the agreement was not yet available on-line. When it becomes available, ILIB will post it.
International Criminal Tribunal for Rwanda (ICTR) Ndindabahizi v. Prosecutor (16 January 2007).
Click here for document (Approximately 57 pages, dissent 3 pages).
The ICTR Appeals Chamber confirmed the decision of Trial Chamber I to sentence Emmanuel Ndindabahizi, former Minister of Finance, to imprisonment for life. It vacated the Trial Chamber’s conviction of Ndindabahizi for genocide and murder at the Gaseke roadblock. Trial Chamber 1 found Ndindabahizi guilty of two counts of crimes against humanity (extermination and murder) and one count of genocide in July 2004.
Emmanuel Ndindabahizi was sworn in as Minister of Finance of the Interim Government in Rwanda on 9 April 1994. The Trial Chamber found that on 23 and 24 April 1994, the appellant led men to the Gitwa Hill, armed them, and urged them to kill Tutsi people. It also found that the appellant armed individuals at a roadblock at Gaseke with machetes and urged them to kill Tutsis in May 1994, and that just after the appellant left the roadblock a man was killed. The appellant appealed his convictions and the sentence against him alleging that the indictment was vague, there were errors of fact and that he had not been in Gitwa at the Gaseke roadblock, exculpatory evidence had not been disclosed, the decision of the Trial Chamber exceeded the scope of the indictment, an there was no legal basis for the finding of genocide.
The Appeals Chamber cited the standard of review in Article 24 of the tribunal statute, which permits it to review only errors of law invalidating decisions of the Trial Chamber as well as errors of fact resulting in a miscarriage of justice. The court noted that Article 20(4) of the statute requires an accused to be informed promptly and in detail of the nature and cause of the charges against him. An indictment would thus be deficient if it failed to enunciate the facts underlying the charges with sufficient specificity to allow the accused to prepare his defense. If particular acts are alleged to have occurred, the indictment must list the victim’s identity, place and time of the alleged crimes, and means by which criminal acts were committed. The Trial Chamber set a range of thirteen days for the crimes at Gitwa Hill, and the defense did not object to this at trial, nor indicate that its case was materially prejudiced. The Appeals Chamber rejected this ground of appeal and reasoned that the date range of 13 days indicated the relevant time period sufficiently to allow the appellant to prepare his defense. The appellant argued that the Prosecutor failed to disclose evidence that would show that he was in Kigali and not Gitwa on 13 and 23 April. The prosecution admitted that it should have disclosed the evidence under Rule 68 of the tribunal, but that its admission upon appeal provided the appellant with a sufficient remedy, and questions why the appellant did not try to produce a “Kigali alibi” at trial, and points out that under Rule 67(A) a new alibi cannot be argued on appeal. As to the alleged error that appellant was at the Gaseke roadblock, while the Appeals Chamber found that the Trial Chamber erred by basing its finding that he was present upon the uncorroborated and inconsistent testimony of one witness, it also found that “the acquittal for the killing of Mr. Nors at the Gaseke roadblock does not materially diminish the gravity of the crimes for which the Appellant has been found guilty.”
European Court of Human Rights: Ivanova v. Bulgaria (12 April 2007)
Click here for document. (Approximately 15 pages).
The European Court of Human Rights (ECHR) held unanimously that there had been a violation of Article 9 of the European Convention “right to religion”, that there was no reason to examine the complaint under Article 14 of the Convention separately, and ordered Bulgaria to pay the applicant 589.23 Euros in pecuniary damage; 4,000 Euros in non-pecuniary damage; 2,500 Euros in costs and expenses, tax (all of which is to be converted into Bulgarian levs).
Bulgaria’s Persons and Family Act of 1994 required non-profit organizations with religious affiliations to register with the Council of Ministers. Of the over one-hundred organizations that requested to register, twenty-three were denied. The organizations that were not permitted to register were prohibited from signing contracts in the name of the entity, opening bank accounts, and denied tax benefits. One such group was “Word of Life”, a Christian Evangelical group. Word of Life adherents began meeting secretly and the Bulgarian police disrupted the meetings. Kalinka Todorova Ivanova was a mechanical engineer and a follower of Word of Life who was employed on a temporary basis at the River Shipbuilding and Navigation School in Ruse. The School had received public and media criticism for employing members of Word of Life, as a result of which the Bulgarian Regional Prosecutor’s Office and National Security Service began investigating the religious activities of the School’s employees. In November 1995 the Educational Inspector asked Ivanova to resign. She refused, and on 28 December 1995 she was dismissed, ostensibly for failing to meet the necessary educational and professional qualifications for her post as “swimming pool manager.” Ivanova exhausted domestic remedies in Bulgaria, by bringing suit and appealing to the Ruse District Court, the Ruse Regional Court in June 1997, and finally the Supreme Court of Cassation, all of which also dismissed her claims. Ivanova then applied to the ECHR alleging that she had been fired from her job because of her religious beliefs and this violated her Article 9 right to freedom of religion. Bulgaria asserted that her complaint was unfounded and that her dismissal was not because of her religious beliefs.
In its analysis the ECHR emphasized that the freedom of thought, conscience, and religion is one of the foundations of a democratic society. After examining the facts, it found that Ivanova was fired because of her religious beliefs and affiliation with Word of Life, and this constituted a violation of her right to freedom of religion. It discussed that there was a general intolerance by the Bulgarian authorities for Word of Life during the applicable time period. While Ivanova had also brought suit pursuant to Article 14 of the Convention for discrimination, the court stated that her complaint repeats her complaints under Article 9 and thus did not need to review it separately.
European Court of Human Rights Grand Chamber: Evans v. United Kingdom (10 April 2007)
Click here for document. (Approximately 25 pages).
The European Court of Human Rights (ECHR) held unanimously that there was no violation of Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) providing for the “right to life.” By a vote of thirteen votes to four, it held that there was no violation of either Article 8, providing for respect for private and family life, or Article 14 of the Convention, prohibiting discrimination. Judges Turmen, Tsatsa-Nikolovska, Spielmannn and Ziemele filed a dissenting opinion.
Ms. Natallie Evans filed an application with the ECHR in 2005 pursuant to Articles 2, 8, and 14 of the Convention, alleging that the “Human Fertilisation and Embryology Act of 1990 (Act of 1990) in the United Kingdom allowed her former partner to vacate his consent to the embryos that they had created through in vitro fertilization (IVF) and stored jointly at any time before the embryos were implanted. The couple created six embryos in 2001 that were then placed in storage. The relationship between the two subsequently soured and the man “J” notified the clinic that it should destroy the embryos. The clinic informed Ms. Evans that pursuant to the 1990 law, it would have to destroy the embryos. Ms. Evans brought suit to enjoin J from revoking his consent to reauthorize implantation of the embryos; and she alleged that the Act of 1990 violated her rights and those of the embryos pursuant to Articles 2 and 8 of the Convention, and her Article 14 rights as well. The trial judge held in favor of J and rejected Ms. Evan’s contention that J should be estopped from withdrawing his consent. Ms. Evans appealed and the appellate court rejected her claim, holding that the 1990 Act clearly required the consent of both parties from the time an embryo was created until it was implanted. The House of Lords refused to hear Ms. Evans’s appeal.
In its decision, the ECHR examined the history of the 1990 Act and the fact that it arose from a report examining the social, ethical, and legal implications of human embryology. The Court emphasized the lack of consensus on the regulation of IVF, the issue of embryos created by IVF, or when consent to use genetic material may be withdrawn, both in Europe and internationally. It also examined international texts such as the Council of Europe Convention on Human Rights and Biomedicine States; and the Universal Declaration on Bioethics and Human Rights; both of which require consent for medical intervention. It relied upon one of its earlier decisions that requires it to look to member states to define when the right to life begins. Under English law, embryos do not possess independent rights and the Court thus found that there had been no violation of Article 2. In its analysis of the Article 8 right to respect for private life, the ECHR noted the irreconcilable interests of Ms. Evans and “J.” It examined whether the Act of 1990 struck a fair balance between the competing public and private interests involved; and held that Parliament did not exceed its authority to craft the 1990 Act as it did. The ECHR further held that there was no violation of Article 14 on the same basis as its finding that there was no violation of Article 8.
European Court of Justice Grand Chamber Commission of the European Communities v. The Netherlands (24 April 2007)
Click here for document. (Approximately 13 pages).
The European Court of Justice (ECJ) held that the Netherlands had failed to fulfill its obligations under Articles 5 and 52 of the European Community Treaty (now articles 10 and 43) by entering into a bi-lateral agreement with the United States regarding air fares.
The case concerns a so-called “open skies” agreement entered into between the Netherlands and the United States. The European Commission previously brought suit against eight other member states for their “open skies” agreements with the United States: 1) Austria; 2) Belgium; 3) Denmark; 4) Finland; 5) Germany; 6) Luxembourg; 7) Sweden; and 8) the United Kingdom. In all of the cases except that of the United Kingdom which involved another issue, the ECJ held that by entering into and retaining international agreements with the United States regarding the cost of air fares and rates that airlines charged on intra-Community routes regarding computerized reservation systems (CRSs) and used in the member states, and by allowing the U.S. to have the right to pull out, defer, or restrict traffic rights where airlines were not owned by a member state or its nationals, the member states failed to meet its responsibilities under Articles 5 and 52 of the Treaty (as amended) and regulations 2409/92 and 2299/89. These regulations concerned the procedures and rates to be applied to airlines within the Community, and permitted only Community carriers to introduce new products or lower fares than those “for identical products.” After this holding, the Commission wrote to the Netherlands asking it not to pursue bilateral negotiations with the U.S. and to end its 1957 Agreement with the U.S. (as amended)
The Commission of the European Communities brought suit against the Netherlands in 2004 seeking the European Court of Justice to declare that the Netherlands failed to meet its responsibilities pursuant to Article 5 and Article 52 of the EC Treaty, and Council Regulations number 2409/92 regarding fares and rates for air travel, and 2299/89 regarding a code of conduct for computerized reservation systems (CRSs). The Netherlands argued that by brining its suit, the Commission failed to consider developments subsequent to the previous ECJ decision. In 2003, the Council of the European Union permitted the Commission to negotiate air transport agreements with the U.S. and other non-member states within the framework of Regulation number 847/2004 of the European Parliament. By contrast, the Commission argued that when the European Community has taken certain steps to create common rules, member states are no longer allowed to contract with non-member states regarding duties with an impact upon those rules. The Commission argued that the Netherlands infringed on the exclusive competence of the Community by entering into agreements with the U.S. regarding air fares and rates charged by airlines on intra-Community routes and CRSs in the Netherlands.
In its analysis, the ECJ noted that regulations 2409/92 and 2299/89 permit only Community airlines to establish new products or fares lower than existing ones for the same products, giving the Community exclusive competence to enter into agreements with non-member states to set fares and rates as well as CRSs. The court also held that the 1957 agreement with the U.S. gave airlines in the Netherlands preferential treatment over those of other member states, in breach of Article 52 of the Treaty.
United States Supreme Court Microsoft v. AT&T (30 April 2007)
Click here for document. (Approximately 18 pages)(Chief Justice Roberts did not participate in the case. Justice Stevens filed a dissenting opinion).
The patent law in the United States generally provides that no infringement has occurred when a patented product is built and sold overseas. Pursuant to the exception in 35 U.S.C. §271(f) of the Patent Act however, there is infringement when a patented component is provided from the U.S. to be joined with others overseas. Here, the issue was whether Microsoft’s Window’s operating system infringed upon AT&T’s patented apparatus for digitally encoding and compressing recorded speech when it was loaded upon computers manufactured in another country from software copied overseas from either an electronic file or master disk sent from the U.S. In an opinion delivered by Justice Ginsburg, the United States Supreme Court held that it does not. The Court emphasized that copies of the software that are manufactured abroad are installed on computers overseas, rather than those that Microsoft sends from the U.S., and for this reason, it does not violate §271(f)(1).
AT&T brought an infringement suit against Microsoft in 2001 in the U.S. district court for the Southern District of New York contending that Microsoft violated both domestic and foreign application of U.S. patent law. The District Court held Microsoft liable under §271(f). A panel for the Court of Appeals affirmed.
In its reasoning, the Supreme Court examined when computer software may constitute a “component” pursuant to §271(f), and whether Microsoft “supplied” such “components” from the U.S. of the computers manufactured overseas. While AT&T argued that computer software in the “abstract” is a “component” pursuant to §271(f), (which the Court analogized as being like the notes of Beethoven’s Ninth Symphony), Microsoft and the U.S. argued that only a copy of the software could be a “component” (which the Court compared to a copy of the sheet music of the Ninth Symphony). The Court repeatedly emphasized that because only foreign-manufactured copies of the software or electronic files were installed on computers overseas, and not software manufactured in the U.S., Microsoft was not infringing upon AT&T’s patent. AT&T argued that such a reading of §271(f) permits software makers to take advantage of a lacuna because they can avoid liability by making copies of software abroad rather than the U.S. The Court however, noted that Congress is free to consider and/or fill such a lacuna if it finds such action to be warranted.
G8 Business Declaration: Joint Statement of the G8 Business Organizations (25 April 2007)
Click here for document. (Approximately 10 pages).
Leaders of major business organizations of G8 nations met in Berlin in April 2007 to discuss issues they viewed as critical to the global economy. Their deliberations will in turn be addressed by the heads of States at the G8 Summit. The group urged the leaders of the G8 to address the growing challenges to international trade, investment, the efficiency of capital markets, protections provided to intellectual property, and global environmental conditions, while “keeping energy options open.” They urged the G8 to create and sustain policies in these sectors for sustainable economic growth and the development of capital necessary to promote economic development.
Specifically, the group called for leaders of the G8 to break the deadlock on the Doha round, particularly with respect to agricultural issues, to diminish agricultural subsidies and tariffs, liberalization of trade in services, and enhance WTO rules. Noting the deleterious consequences that piracy of intellectual property poses for business interests, the leaders called for the G8 to improve intergovernmental collaboration to better enforce intellectual property rights as well as working with developing nations to improve compliance, specifically targeting counterfeiting and piracy crimes. The leaders called for the G8 nations to prevent investment protectionism and to provide more openness and predictability in government investment. They urged G8 nations to promote market stability including transparency rules and ways to reduce the risk in financial markets. They suggested that the G8 take emergency measures to reduce green house gas emissions, and create market-friendly strategies to promote energy efficiency, possibly through voluntary international standards but not through mandatory government preferences for technologies or energy sources, which they caution would only restrain innovation and progress. Finally, they urged the leaders of the G8 nations to collaborate with African governments to improve the infrastructure of African nations to promote foreign investment.
United Nations Mission for Iraq (UNAMI) Human Rights Report 1 January -31 March 2007 (25 April 2007)
Click here for document. (Approximately 30 pages).
United Nations Security Council Resolution 1546 (2004) requires the United Nations Mission for Iraq (UNAMI) to “promote the protection of human rights, national reconciliation, and judicial and legal reform in order to strengthen the rule of law in Iraq.” The UNAMI Human Rights Office (HRO) has been publishing bi-monthly reports on the conditions in Iraq to help the Government of Iraq to protect basic human rights and the rule of law. The report published 25 April 2007 recognizes the enormous challenges facing the Government of Iraq with insurgents attacking its police, and both Sunni and Shi’a groups attacking, abducting, and executing civilians. Nevertheless, the report emphasizes that Iraq remains bound by international and domestic law to try to stem the bloodshed, and cites in particular its responsibility pursuant to the International Covenant on Civil and Political Rights (ICCPR) (which Iraq ratified in 1971) to provide certain minimum protections to civilians, even in emergency conditions.
The report cites a particularly high incidence of violence in Baghdad, Nineveh, Salahuddin, Diyala, and Babel. The Iraqi Ministry of Interior reported that 1,646 civilians were killed in February 2007, though the UNAMI report notes that it is uncertain how this data was gathered. Troop levels and checkpoints increased on Baghdad streets. Numerous civilians were killed in February and March 2007 including 135 people on 3 February when a truck bomb exploded at a market in Baghdad, also injuring 339 people. The report further warns of the increasing division of the city of Baghdad along Sunni and Shi’a lines. It cites United Nations High Commissioner for Refugees (UNHCR) estimates that 736,433 people fled their places of residence since the end of February 2006, with 200,000 of those becoming displaced since December 2006. These internally displaced persons require shelter and access to the Public Distribution System (PDS). While the 2005 Iraqi Constitution safeguards the religious freedoms of Iraqis, there is growing persecution of minorities protesting discrimination and intimidation because they belong to a given minority or religion. The report notes a growing concern about efforts to restrict freedom of expression by curtailing the activities of journalists as well as harassment and intimidation, and even attacks on journalists. New emergency procedures implemented in February 2007 lack basic guarantees of due process rights, allowing arrests without warrants and interrogation of suspects without time limits for pre-trial detention. There are reports of torture in detention centers under the authority of the Ministries of Interior and Defense.
United States: NATO Freedom Consolidation Act of 2007 (P.L. 110-17)(9 April 2007)
In the North Atlantic Treaty Organization (NATO) Freedom Consolidation Act of 2007 (the Act), Congress calls for the admission of Albania, Croatia, Georgia, Macedonia (FYROM), and Ukraine to NATO, if the nations continue to implement democratic, defense, and economic reforms, and demonstrate their ability and desire to fulfill their NATO obligations. Congress also confirms its commitment to enlarge NATO (as it previously iterated in the NATO Participation Act of 1994, the NATO Enlargement Act of 1996, the European Security Act of 1998, and the Gerald B.H. Solomon Freedom Consolidation Act of 2002). It encourages the allies of the United States to work collaboratively to achieve global security and support NATO enlargement by entering into Membership Action Plans with Georgia and taking note of the steps that Albania, Croatia, Georgia, Macedonia (FYROM), and Ukraine, have made to being able to assume the duties of NATO membership. The Act also designates Albania, Croatia, Georgia, Macedonia (FYROM), and Ukraine as eligible to receive assistance and monies pursuant to the NATO Participation Act of 1994 and the Arms Export Control Act.
European Union United States Summit: Declaration on Political and Security Issues (30 April 2007)
Click here for document. (Approximately 10 pages).
The declaration expresses the support for the work of Marti Ahtisaari, UN Special Envoy, to resolve the status of Kosovo, as well as NATO’s ongoing efforts to strengthen security through KFOR. It calls for Belarus to free political prisoners, and indicates that the EU and the US will be amenable to pursuing bilateral relations with Belarus once it has demonstrated its support for “human rights, the rule of law, and democratic values.” While the declaration demonstrates the concern of the EU and the U.S. about Russia's current stance vis-a-vis political pluralism, the rule of law, human rights, and freedoms of the press and assembly; they will continue to collaborate with Russia on areas of mutual concern including nuclear non-proliferation, counterterrorism, energy security, and the resolution of “frozen conflicts,” as well as assisting Russia to accede to the World Trade Organization. They voice their continued support for a democratic Afghanistan, in part to thwart terrorist efforts to attack the U.S. and the E.U. While they note the importance of a continued international military presence in Afghanistan, they reiterate their commitment to help reconstruct the infrastructure in Afghanistan and create new economic opportunities for the Afghani people.
They address a number of ongoing instabilities in the Middle East. With the aim of creating a democratic Palestinian state that can co-exist peacefully with Israel, they agree to collaborate with the Quartet. They assert their commitment to the sovereignty and independence of Lebanon and its democratically-elected government. As called for in United Nations Security Council Resolutions 1644 and 1664, they urge that the Special Tribunal for Lebanon on the assassination of former Prime Minister Hariri be created as soon as possible. They indicate that they remain disquieted by Syria’s actions in the region, as well as its repression of civil society, and they call upon Syria to comply with Security Council Resolutions 1559, 1595, 1636, 1680, and 1701. They will work with the United Nations and the World Bank to increase the activity of multilateral development organizations in Iraq; and indicate that further financial resources should be committed to assisting Iraq to promote self-governance and the rule of law.
They call upon Iran and the Democratic People’s Republic of Korea (DPRK), to comply with relevant UN Security Council Resolutions and to take the steps that the international community has required regarding nuclear non-proliferation. Noting that after four years the conflict in Darfur continues unabated, they concur that it is now time to “take immediate actions to stop the fighting and human suffering in Darfur and find a political solution to end the conflict.” To this end they support attempts to deploy a hybrid peacekeeping force pursuant to the Addis Ababa framework.
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