Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law July 2007
Arbitration Institute of the Stockholm Chamber of Commerce: Arbitration Rules and Rules for Expedited Arbitrations (Entered into Force 1 January 2007)
Click here and here for documents. (Approximately17 and 16 pages respectively.)
The Arbitration Institute of the Stockholm Chamber of Commerce (“SCC Institute”), adopted new standard arbitration rules and rules for expedited arbitrations that entered into force on 1 January 2007. Changes in the new rules permit consolidation of parallel arbitrations, the indication of interim measures, and separate awards for advances in cost. The Expedited Rules streamline the standard rules to provide a faster, cheaper alternative for parties.
The SCC Institute was established in 1917 as a separate entity within the Stockholm Chamber of Commerce. The United States and Soviet Union recognized the institute as a neutral center for resolving East-West trade disputes during the Cold War era. Since that time, the SCC Institute has become one of the leading arbitration institutions in the world by expanding its services to over 40 countries.
The SCC Institute revised its arbitration rules to make them correspond better to international arbitration practice and to improve the clarity of decision-making procedures. The institute did not make any fundamental changes to the previous rules but did include some new developments (permitting consolidation of cases (Article 11), allowing interim measures (Article 32), and contemplating separate awards for advances on costs (Article 45). The new rules replaced the previous rules in all cases beginning on or after 1 January 2007.
The consolidation of claims provided for in Article 11 of the rules has garnered much attention. Pursuant to Article 11, if an arbitration request is filed concerning a legal relationship between parties who already have an action pending under the SCC rules, the SCC Board may, at the request of a party, include the claims from the new arbitration request in the pending proceedings. Because Article 11 does not define “legal relationship,” future practitioners must develop a definition as requests for consolidation are decided. The article also does not give any guidance on the standards the SCC Board should apply when making a decision pursuant to Article 11. The article requires the Board to consult the parties and the arbitral tribunal before reaching its decision however.
The Rules for Expedited Arbitrations differ from the standard rules in that they call for 1 arbitrator (as opposed to 3 under the standard rules), set the final award deadline at 3 months (as opposed to 6), limit the number of written statements, and provide for an oral hearing only upon request of a party or the arbitrator. The Expedited Rules provide a faster, cheaper alternative intended for less complicated disputes with minor amounts in controversy.
Extension of Memorandum of Understanding between the Government of the United States of America and the Government of Peru Concerning the Imposition of Import Restrictions on Archaeological Material from the Prehispanic Cultures and Certain Ethnological Material from the Colonial Period of Peru (9 June 2007)
The United States and Peru have agreed to the amendment and five-year extension of a 1997 memorandum of understanding (MOU) that places import restrictions in the United States on pre-Columbian archaeological artifacts and Colonial ethnological materials from all areas of Peru. The MOU also maintains import restrictions on Sipán archaeological material that were originally implemented by an emergency action taken by the United States in 1990. The United States entered into this agreement following a request from Peru made pursuant to Article 9 of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and it is in large part intended to curb the incentive for pillage of Peruvian artifacts. The MOU was first put into place in 1997 and was previously extended for a five year period in 2002.
Pursuant to Article IV B of the MOU, the text of Article II has been amended slightly. New to the 2007 extension is the inclusion of a requirement that Peru use its “best efforts to devise and maintain a comprehensive record of incidents of looting of archaeological sites . . . and ecclesiastical institutions.” Another amendment will allow for the “exchange of information on the effectiveness of the measures agreed to” in the MOU. Additionally, a provision encouraging Peru to strengthen cooperation within the Andean Region for the protection of its cultural patrimony in recognition of the inconsistency of political and cultural boundaries has been deleted. The 2007 extension does require Peru to try to make case studies of its effective efforts to fight looting undertaken at the local level, so that other communities may attempt similar methods. Also noteworthy is that Peru is no longer required to use its “best efforts” to exchange its archaeological and ethnological materials; but it must nevertheless still contemplate long term loans of such objects.
The MOU has been extended for five years and may be renewed, amended, or dissolved at the end of that period.
International Convention on the Removal of Wrecks, 2007 (23 May 2007)
The International Maritime Organization (IMO) focuses on safety and security at sea and prevention of marine pollution from ships. At a diplomatic conference the IMO held in Nairobi, Kenya, 14-18 May, 2007, the International Convention on the Removal of Wrecks (Convention) was adopted. The Convention provides the first set of uniform international rules aimed at ensuring the removal of wrecks located beyond the territorial sea. It does this in part by establishing a system of payment of compensation for the cost associated with removal of the wrecks. The term “wreck” in this context refers to “a sunken or stranded ship” in addition to objects related to such ships. According to the Convention’s preamble, if the wrecks are not removed, they “may pose a hazard to navigation or the marine environment.”
The Convention provides a legal basis for states to remove or have wrecks removed which pose a danger to or impede navigation or which may be expected to harm the marine environment or damage the coastline of one or more states. Ship owners are financially liable under the Convention and are required to take out insurance or offer another form of financial security to cover the cost of wreck removal.
The Convention includes 21 articles covering the requirements for reporting wrecks and the criteria to be considered when determining if a wreck actually poses a hazard. The list of conditions includes measures such as, depth of water, type of traffic and size of the wreck, in addition to the damage likely to result should cargo or oil be released into the marine environment. Furthermore, Article 9 addresses measures to facilitate the removal of wrecks and includes information relating to when an affected state may intervene in wreck removal. Article 10 sets forth the liability of the owner for the costs of locating, marking and removing the wreck. Article 12 sets forth rules regarding compulsory insurance or other financial security requirements. Article 15 covers settlement of disputes. Article 16 clarifies that the Convention will not affect the rights and obligations of states under either the Law of the Sea Convention or customary international law. The Convention will be open for signature from 19 November 2007 until 18 November 2008. It will enter into force twelve months following the date on which ten States have either signed it without reservation as to ratification, acceptance or approval or have deposited instruments of ratification, acceptance, approval or accession with the Secretary General.
International Criminal Tribunal for the former Yugoslavia (ICTY): Prosecutor v. Milan Martic (12 June 2007)
Click here for document. (Approximately 200 pages.)
The ICTY sentenced Milan Martic to 35 years in prison for crimes committed from 1991 to 1995 while he held leadership positions in the Serbian Autonomous District (SAO) Krajina. Martic was allegedly part of a joint criminal enterprise in the former Yugoslavia.
Milan Martic held various leadership positions (i.e. president, minister of defense, minister of internal affairs) in the SAO Krajina, later renamed the Republic of Serbian Krajina (RSK). In these positions Martic worked with others (e.g. Serb police forces in the SAO called the Martic Police) in the forcible removal of a majority of Croat, Muslim, and other non-Serbian peoples from about one third of the Republic of Croatia and large parts of Bosnia and Herzegovina to create a Serbian-dominated state.
The indictment alleged inter alia that Martic created and commanded special police forces which participated in criminal activity; that he personally participated in military actions and subsequent crimes of police and military forces; that he participated in the planning, preparation and execution of the takeover of the Croatian SAO and the removal of the non-Serbian populations from that territory; and that he openly espoused and encouraged the creation of a homogenous Serbian State by violence and participated with his troops to achieve this end.
Based on these allegations, the ICTY prosecutor charged Martic with individual criminal responsibility pursuant to Articles 7(1) and 7(3) of the statute of the ICTY for crimes against humanity (persecution, extermination, murder, imprisonment, torture, inhumane acts, inter alia) and violations of the laws or customs of war (murder, torture, destruction of institutions dedicated to education or religion, attacks on civilians, inter alia).
The trial chamber convicted Martic on all charges with the exception of extermination. The evidence established that widespread acts of murder and violence, detention and intimidation became pervasive throughout the RSK territory. There was no doubt that Martic was aware that the crimes charged in the indictment were widespread and pervasive, yet the trial chamber only heard of a few examples where Martic intervened to punish the criminal offenders.
The trial chamber also found that Martic was responsible for the attacks on Zagreb during May of 1995. The Chamber described Martic’s responsibility as “ordering” pursuant to Article 7(1) of the Statute. In reaching this conclusion, the Trial Chamber considered the evidence that Martic repeatedly admitted in the media that he ordered the attacks and that the attack on Zagreb was a response to Croatian attacks on the RSK.
Regarding the charge of extermination, given the totality of the circumstances the trial chamber found that it lacked sufficient evidence to convict Martic on this charge while nothing nonetheless that there was no minimum number of victims required for the crime; and it might be established by an accumulation of separate and unrelated killings.
Supreme Court of Canada: R. v. Hape (7 June 2007)
Click here for document. (Approximately 113 pages).
The Supreme Court of Canada dismissed an appeal seeking to have documentary evidence excluded, pursuant to § 24(2) of the Canadian Charter of Rights and Freedoms (Charter), on the basis that the evidence was obtained in violation of the accused’s rights under § 8 of the Charter to be secure against unreasonable search and seizure.
The Royal Canadian Mounted Police (RCMP) investigated the accused, a Canadian businessman, for suspected money laundering activities. The part of the investigation which is at issue in this case took place on the Turks and Caicos Islands where the accused’s investment company was located. After seeking permission from the local authorities, the RCMP searched the accused’s office. The Detective Superintendent of the Turks and Caicos Islands accompanied the RCMP during the searches. According to the testimony of the RCMP officers, they were aware that no warrants authorizing perimeter searches of the accused’s office had been obtained but they understood warrants to be in place for the covert entries. No warrants were entered into evidence at trial however.
The question presented before the Court was whether the Charter applies to extraterritorial searches and seizures that Canadian police officers conduct, and if not, whether “evidence obtained abroad ought to be excluded because its admission would render the trial unfair.” The Court used a two prong test to determine if the Charter applies to a foreign investigation. First it examined whether the activity in question falls under § 32(1) so that the Charter applies. To answer this query it analyzed whether the conduct at issue was that of a Canadian state actor; and if so, whether an exception to the principle of sovereignty applied that would justify the application of the Charter to the extraterritorial activities of the state actor. Second, it scrutinized whether evidence obtained through the foreign investigation ought to be excluded at trial because its admission would render the trial unfair. Applying both prongs of the test, the Court determined that the police officers were government actors, but that the searches were not a matter falling within the authority of Parliament and therefore not within § 32(1) of the Charter. The Court relied on the trial judge’s findings that Turks and Caicos controlled the investigation at all times. The Court also determined that admission of the evidence would not violate the accused’s right to a fair trial in large part because the searches and seizures were conducted consistently with Turks and Caicos law and there is no reason to believe that that law fails to “meet basic standards commonly accepted by free and democratic societies.”
Justice Bastarache joined by justices Abella and Rothstein concurred in the judgment. He determined that the Charter does apply extraterritorially “but the obligations it creates in the circumstances will depend on the nature of the right at risk, the nature of the action of the police, the involvement of foreign authorities and the application of foreign laws.”
Justice Binnie also concurred in the judgment and found that the accused could not bring his case within the requirements set forth in R v. Cook [1998] 2 S.C.R 597.
International Centre for Settlement of Investment Disputes (ICSID): Waguih Elie George Siag and Clorinda Vecchi v. The Arab Republic of Egypt: Decision on Jurisdiction (11 April 2007)
Click here for document. (Approximately 69 pages).
Members of the Tribunal: Professor Michael Pryles (Arbitrator), Professor Francisco Orrego Vicuña (Arbitrator), Mr. David A. R. Williams Q.C. (President)
A split ICSID tribunal held that it had jurisdiction over a property dispute between Waguih Elie George Siag and Clorinda Vecchi (“Claimants”) and the Arab Republic of Egypt (“Respondent”). The decision raised questions whether the tribunal had abandoned the strict treatment of individual nationality required by the ICSID Convention in favor of a more flexible treatment of individual nationality similar to the treatment of corporate nationality.
The Egyptian government sold property in Egypt to the Claimants to develop a tourist resort in 1989. Seven years later the Egyptian government confiscated the property. The Claimants brought the dispute before ICSID under the Italy-Egypt bilateral investment treaty (“BIT”). The BIT prohibits nationalization or expropriation and provides investors access to arbitration pursuant to the ICSID Convention. Article XXV of the ICSID Convention extends ICSID jurisdiction to disputes between a Contracting State and an individual when 1) the individual has the nationality of a Contracting State (a positive requirement), and 2) the individual does not have the nationality of the Contracting State that is party to the dispute (a negative requirement). Thus, the ICSID Convention does not allow Egyptian nationals to bring claims against Egypt, but the Convention would allow Italians to bring claims against Egypt. The Convention leaves the determination of nationality to national law with reference to international law as may be appropriate in the circumstances.
The Respondent argued that both Claimants were Egyptian nationals and therefore did not meet the negative nationality requirement. Not only did the Claimants have official documentation of their Egyptian nationality, but they also had never complied with Article X of the Egyptian nationality law requiring them to obtain permission or decree that they had given up their Egyptian nationality.
The Claimants responded that official documents were only prima facie evidence of nationality and that the ICSID tribunal should conduct its own analysis of Egyptian law. The claimants offered a literal interpretation of the nationality laws supported by the opinions of legal scholars. In their view, the claimants had lost their Egyptian nationality because they had not declared their intent to maintain their Egyptian nationality after having obtained another nationality.
Based on ICSID practice and an Egyptian Administrative Court decision, the ICSID tribunal agreed with the Claimants that official documents “have no legal value in providing Egyptian nationality.” The tribunal also rejected the Respondent’s interpretation of domestic law because there was no domestic case law on point and the “plain language” of the nationality law required the claimants to make a declaration of intent to retain Egyptian nationality after being granted another nationality. Both claimants met the negative nationality requirement because they failed to make a declaration after being granted nationality from other countries. Furthermore, the ICSID tribunal Champion Trading case established an Article XXV regime that did not leave room for the effective nationality test unless dual-nationality was at issue. Because dual-nationality was not an issue here, this case did not present a situation where international law principles could override the operation of domestic law.
In a partial dissent, arbitrator Orrego Vicuña called Mr. Siag’s question of nationality “artificial” for the property dispute at hand. The investment was made by an Egyptian citizen who kept all links with Egypt, who benefited from that citizenship when making the investment, and who brought the claim under a BIT with Italy, a country with which he had few connections. The international law principle of effectiveness must intervene to prevent the use of a nationality that is more convenient to Mr. Siag from prevailing over the real and effective nationality.
World Conservation Union (IUCN) Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural Resource Management (May 2007)
Click here for document. (Approximately 11 pages.)
The World Conservation Union, also known as the IUCN, is the world’s largest conservation network. The global network includes 83 states, 800 non-governmental organizations (NGOs), and 10,000 scientists. The IUCN seeks to ensure equitable and sustainable use of natural resources. The IUCN Council met from 14-16 May 2007, and produced guidelines for applying the precautionary principle to biodiversity conservation and natural resource management. The non-binding guidelines are a resource for policymakers, legislators, and practitioners.
In environmental law and policy, the precautionary principle holds that a lack of scientific proof that a certain action endangers the environment does not excuse a state in taking that action without consideration of cost-effective means to avoid potential harm to the environment. The principle is based on the idea that a false prediction that an action will not result in environmental harm will likely be more harmful to society than a false prediction that that action will result in environmental harm.
While the precautionary principle is accepted as sound policy, there is debate on whether the principle should be considered customary international law or a legal principle. That being said, all major environmental treaties since 1990 have incorporated the principle. Moreover, the IUCN highlights economic, cultural, and ethical considerations compelling the use of caution when dealing with the environment. For example, a misguided action may cause the loss of a species, the collapse of an ecosystem, and the loss of an indigenous culture and economy based on that ecosystem.
With these considerations in mind, the IUCN prescribed effective application of the precautionary principle in 12 guidelines.
Effective application of the precautionary principle begins with establishing the proper framework. Guidelines 1-5 suggest incorporating the principle into existing legal, institutional, and policy frameworks for conservation in a way that integrates the principle with other relevant rights and provides for clear obligations and operational measures to carry the principle out. All relevant stakeholders should be involved in the decision-making and implementation of the principle, and they should have the best information available in the process.
Guidelines 6-8 outline how potential threats, options, and consequences for an action can be defined. Ecological, social, and economic factors should be understood in relation to a potential threat. Alternative courses of action should be considered along with their benefits and consequences. Generally, those who derive benefit from an action should bear the burden of producing evidence that the action is safe.
Precautionary measures should be created and explicitly linked to potential threats. According to guidelines 9-11, proper precautionary measures are explicit, proportionate (i.e. reasonably balanced between precaution and opportunity cost), and equitable (considering social and economic costs where a measure negatively impacts the poor).
Finally, guideline 12 calls for an adaptive approach to effective implementation of the principle. An adaptive approach should include monitoring of impacts of decisions, further research into uncertain threats, periodic evaluation of the outcomes of implementation, and an efficient compliance system.
The United States and International Law. John B. Bellinger III, U.S. Department of State Legal Adviser, Remarks at The Hague, The Netherlands (6 June 2007)
John B. Bellinger III, Legal Adviser, State Department, spoke at The Hague to the Atlantic Commission on a wide array of international law issues including the relationship of the U.S. with the International Criminal Court (ICC); criticisms of the U.S. for not entering into a number of treaties; and U.S. domestic enforcement of international law.
With respect to the ICC, Bellinger cites the U.S. abstention from the vote in the Security Council referral to the ICC on Darfur as well as the willingness of the U.S. to consider assisting the ICC work in Darfur as demonstrating that the U.S. shares the main goals and values of the Court. Many in the international legal community welcomed Bellinger’s statement as showing a new U.S. openness to the ICC.
While many people criticize the U.S. because it has not become a state party to a number of treaties, such as CEDAW, Bellinger maintains that the seriousness and desire for accountability with which the U.S. assumes international obligations demonstrates the commitment of the U.S. to international law. The U.S. seeks to eliminate ambiguities and clarify policy issues during the negotiation phase of treaty formation not to show hostility toward a treaty but to ensure Senate approval of and full compliance with the terms of a treaty in light of the vigorous oversight through private litigation and public scrutiny to which the U.S. is subject.
Finally, Bellinger discusses the ways in which international obligations play an important role in the U.S. legal system. He notes that the U.S. Constitution recognizes treaties as “the supreme law of the land” and requires the President to faithfully execute the law. While some treaties may not be self-executing, Congress has passed laws to meet international treaty obligations. For example, Congress has implemented laws consistent with the Convention Against Torture and the Geneva Conventions. Additionally, substantial private enforcement of international law takes place in the U.S, such as that associated with extrajudicial killings and torture. Thus, while the Constitution does prevent treaties from circumventing certain legislative procedures, i.e. only the House of Representatives can create a crime, the U.S. Constitution and courts treat international law as real law creating serious obligations.
U.N. General Assembly Resolution 61/105: Sustainable Fisheries (6 March 2007)
The U.N. General Assembly (GA) adopted Resolution 61/105 calling for further implementation of the precautionary and the ecosystem approaches in ensuring the long-term sustainable use and management of fisheries resources. While GA resolutions are generally non-binding, within the realm of fisheries law the resolutions often portend significant legal developments on the horizon.
The ecosystem approach to fisheries management presents a holistic paradigm for dealing with marine resources. Past approaches to marine resources treated species individually and on an ad hoc basis. Under an ad hoc approach, countries might handle how whales compete with the fishing industry, but not consider how those whales affect organisms at different levels in the food structure. In contrast to the ad hoc approach, the ecosystem approach accounts for the multi-level relationships among marine life by focusing on the wider ecosystem. This approach allows marine food systems to be sustained while the countries meet their fishing needs.
In March 2006 a GA working group advocated further implementation of both approaches in managing marine biological resources. Resolution 61/105 follows many of the working group’s recommendations. The resolution recognizes that sustainable fisheries contribute to the security, income, and wealth of countries. Over fishing, unreported and unregulated fishing, inaccurate and misreported data about fishing, marine pollution and waste, among other things, all threaten to destroy marine ecosystems.
To achieve sustainable fisheries, countries should apply the precautionary and ecosystem approaches to the conservation and management of fish stocks, including straddling fish stocks, highly migratory species, and discrete high seas fish stocks. States should increase their reliance on scientific data when implementing conservation measures and work with regional fisheries management organizations (RFMOs) to improve data collection and reporting regarding compliance with fishing catch obligations.
States should also fully implement the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Agreement), as well as other similar agreements. In fully implementing the Agreement, states should ensure that their national legal systems are harmonized with the Agreement and that RFMOs adopt conservation measures consistent with it.
The resolution emphasizes that illegal, unreported, and unregulated fishing are a serious threat to marine ecosystems. States should self-regulate to ensure vessels flying under their flag do not engage in these activities. Along with self-regulation, states should strengthen the international law regime to handle these problems by developing a legally binding instrument through the U.N. to combat illegal, underreported, and unregulated fishing. The resolution also encourages increased international cooperation in monitoring and enforcing laws against illegal fishing. Finally, the resolution calls for states to reduce their overall fishing capacity, to discontinue the use of drift-net fishing, and to lower the incidence of by-catch and discards.
In all of this, states should cooperate with the U.N., regional organizations, and developing states to apply by 2010 the ecosystem approach in creating sustainable fishing industries.
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