Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law July 27, 2007
Extension of Memorandum of Understanding Between the Government of the United States of America and the Government of the Republic of Cyprus Concerning the Imposition of Import Restrictions on Pre-Classical and Classical Archaeological Objects and Byzantine Period Ecclesiastical and Ritual Ethnological Material (16 July 2007)
The United States and Cyprus have extended a memorandum of understanding (MOU) which imposes import restrictions in the United States on certain categories of Pre-Classical and Classical archaeological objects and Byzantine ecclesiastical and ritual ethnological materials. The Assistant Secretary for Educational and Cultural Affairs, United States Department of State, decided to extend the MOU because conditions continue to warrant the imposition of import restrictions. The most significant change to the document is the inclusion of the subcategory “Coins of Cypriot Types” to the “Metal” category of the Designated List of Archaeological Objects and Ethnographical Material (Designated List) that describes the items to which the restrictions apply. Items that are on the Designated List may bypass the import restrictions if Cyprus issues documentation certifying that such exportation is not in violation of its laws.
The relationship between the United States and Cyprus with respect to agreements addressing cultural property began in 1999 with an emergency action that was put into place to protect Byzantine ecclesiastical and ritual ethnological material from Cyprus. In 2002 the United States and Cyprus created an MOU addressing archaeological material from Cyprus. Last year, the two nations amended the 2002 MOU to include protection for the Byzantine ecclesiastical and ritual ethnological materials originally included in the 1999 emergency action. The current extension prolongs the amended bilateral agreement.
The MOU extends the import restrictions for five years and may be renewed, amended, or dissolved at the end of that period.
The majority of the House of Lords, with Lord Bingham dissenting, held that the 1998 Human Rights Act (HRA) does not apply extraterritorially to acts of a public authority unless the victim falls within the jurisdiction of the United Kingdom under article 1 (right to life) of the European Convention on Human Rights (Convention). It therefore dismissed the appeals of five of six claimants along with the cross-appeal of the Secretary of State (Secretary); but allowed the appeal of the sixth claimant to be remitted to the Divisional Court.
The appellants in this case are the family members of 6 Iraqis that members of the British armed forces allegedly killed in Basra, Iraq in 2003. In the first 5 cases, British soldiers allegedly killed civilian Iraqis in a variety of circumstances on the streets of Basra or in their homes. In the sixth, British soldiers detained and imprisoned Baha Mousa at a British military base, and he died after they brutally beat him. The appellants seek judicial review of the 26 March 2004 decision of the Secretary of State refusing to conduct a public investigation in their relatives’ deaths. While the Secretary of State contended that none of the appellant’s complaints fell within the extraterritorial jurisdiction of the European Court of Human Rights because none of the exceptions to the extraterritorial jurisdiction of the court applied, the Queen’s Bench held that Mousa’s claim did. The first five claimants appealed, and the Secretary cross-appealed the decision that the Act may apply to the sixth claim.
Writing for one of the majority opinions, Lord Rodger of Earlsferry discussed that § 6[1] of the HRA prohibits public authorities from acting in a way that is incompatible with a right under the Convention and its central purpose was to provide litigants in the United Kingdom with a remedy in domestic law rather than forcing them to apply at the European Court of Human Rights. He noted that the HRA was meant to offer remedies in domestic law to individuals whose rights are contravened by public authorities. For this reason, it would not offend the sovereignty of a foreign state to provide remedies for acts of a United Kingdom public authority in the territory of that state. In the case of Mr. Mousa, he was “within the jurisdiction” of the United Kingdom when he was beaten and died from his injuries. He would thus permit the case on behalf of Mr. Mousa to be remitted to the Divisional Court.
In his dissent, Lord Bingham discussed that claimants attempting to bring suit under the Act must meet three conditions: 1) the complaint falls within the scope of the Convention; 2) the claims come within the purview of the HRA; and 3) a public authority has violated a Convention right, here, the failure to investigate the deaths. He noted that the first condition is normally easy to prove, but here, the purported violations of the Convention occurred in Iraq, not a contracting state to the European Convention, though the European Court of Human Rights recognizes a number of extra-territorial exceptions to the general rule requiring the conduct to have occurred in a contracting state. With respect to the second condition, Lord Bingham emphasized the presumption against the extra-territorial application of domestic statutes, and further, that the UK has not given the Convention direct effect in domestic legislation. He would therefore dismiss all of the claims, including Mousa’s.
Extraordinary Chambers in the Courts of Cambodia Issues First Order of Provisional Detention against Kaing Guek Eav “Duch” (31 July 2007)
Click here for document. (Approximately 11 pages).
Click here for the 2003 Agreement between the United Nations and the Royal Government of Cambodia Creating the Extraordinary Chambers.
You Bunleng and Marcel Lemonde, Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia, issued the first indictment Tuesday July 31, 2007, against Kaing Guek Eav, the former chief of the “S-21” prison. Khmer Rouge members tortured their enemies at S-21 prison before taking them to be killed in the “killing fields” near Phnom Penh. Almost 2 million people are believed to have been killed during the reign of terror of the Khmer Rouge from 1975 to 1979. The court accuses Kaing Guek Eav, whose alias was “Duch,” of directing the S-21 prison from 1975 to 1979, where under his command Khmer Rouge perpetrated arbitrary detention, torture, and mass executions upon the civilian population. In a related event, the only known female survivor of S-21, 49 year-old Chim Math, announced July 24, 2007 that she will testify at the trial of former Khmer Rouge leaders, about what she witnessed at the prison where 14,000 people are believed to have been killed. The United Nations entered into an agreement with Cambodia creating the Extraordinary Chambers in June 2003 to prosecute those responsible for the crimes committed during the Khmer Rouge regime.
Cambodian officials placed Duch in provisional detention in May 1999 where he has been held for more than 8 years. Duch’s counsel argued that the length of his detention violated both Cambodian and international law standards, in particular, Articles 9(3) and 14(3)(c) of the International Covenant on Civil and Political Rights. Those sections require that an individual arrested or detained for a crime should be given a trial within a reasonable time or be released. In the provisional detention order, the judges examine whether the more than 8 year detention of Duch in separate proceedings taint the present ones; and whether the detention is so excessive and prejudicial to Duch’s rights to affect the jurisdiction of the Extraordinary Chambers and require it to stay the proceedings. In an analysis which examines jurisprudence from the United States, the United Kingdom, Israel, France, South Africa, New Zealand, the International Criminal Tribunal for the Former Yugoslavia, and the International Criminal Tribunal for Rwanda, the court answers both questions in the negative. The co-investigating judges state that they do not have jurisdiction to examine the legality of Duch’s prior detention. Moreover, the current proceedings will not prevent Duch from obtaining the full panoply of defense rights. The Extraordinary Chambers decided to hold Duch in provisional detention because of the gravity of the crimes with which he is charged, the possible disruption to Cambodian society were he to be released, and because Duch poses a flight risk to avoid a possible sentence of life imprisonment.
RESOLUTIONS, DECLARATIONS AND OTHER DOCUMENTS
United Nations Security Council Resolution 1762 Iraq (29 June 2007)
Acting pursuant to Chapter VII of the UN Charter, the United Nations Security Council decided to terminate the mandate of the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC) and the Iraq Action team of the International Atomic Energy Agency (IAEA) under resolutions 661(1990), 687 (1991), 699 (1991), 707 (1991), 715 (1991), 1051 (1996), 1284 (1999), 1441 (2002), (1483 (2003), 1540 (2004), and 1546 (2004).
The UN created the United Nations Special Commission (UNSCOM) in 1991 to investigate Iraq’s suspected manufacturing of chemical and biological weapons. After Iraq resisted UNSCOM and IAEA scrutiny in November and December 1998, the U.S. and the UK began a seventy-hour bombing campaign against military and intelligence sites in Iraq. This bombing led China, France, and Russia to call for the disbanding of UNSCOM. In 1999 the UN replaced UNSCOM with UNMOVIC in Security Council Resolution 1284 and required it to establish a reinforced monitoring mechanism and to address unsettled disarmament issues, as well as unearth other Iraqi sites to monitor and inspect.
In Resolution 1762, the Security Council thanks UNMOVIC and the IAEA for their work and urges states to develop and retain experts with acumen on weapons inspections area in the future. It recognizes that a democratically elected government that has expressed its support for the non-proliferation regime is now in place in Iraq. It emphasizes Iraq’s disarmament responsibilities under Security Council resolutions, the Nuclear Non-Proliferation Treaty (NPT), and the IAEA Safeguards Agreement, among others, and encourages Iraq to comply with all relevant disarmament and proliferation treaties.
Annexed to the resolution are two letters to the President of the Security Council. In the first, U.S. Secretary of State Condolezza Rice and U.K. Secretary of State for Foreign and Commonwealth Affairs Margaret Beckett notify the Security Council of the measures taken to ensure that Iraq meets its disarmament responsibilities. They stress that the U.S. and the U.K., in tandem with Iraq and other member states, have been working with the objective of seeking and destroying weapons of mass destruction since March 2003. They also highlight the findings of the Duelfer Report.
In the second letter, Iraqi Minister for Foreign Affairs Hoshyar Zebari requests the Security Council to consider terminating the mandates of UNMOVIC and the IAEA Iraq Action Team because “there are no longer any legal or technical grounds for continuing their mandate and we are certain that Iraq currently has none of the programmes or weapons in question.” Minister Zebari further emphasizes Iraq’s intent to comply with its disarmament obligations under the NPT and other relevant international agreements.
United States Executive Order: Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency (20 July 2007)
President George W. Bush issued an Executive Order (E.O.) July 20, 2007 regarding the interpretation of Common Article 3 of the Geneva Conventions and Central Intelligence Agency (C.I.A.) Operations of detention and interrogations programs.
In it, President Bush reaffirms the determination he made February 7, 2002, that members of al Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protection that the Geneva Conventions offer to prisoners of war.
The E.O. interprets Common Article 3 of the Geneva Conventions (“Common Article 3”) regarding detention and interrogation programs that the C.I.A. director approves. The E.O. states that it is to be considered authoritative for purposes of U.S. law and the U.S. government’s international law obligations. It emphasizes that such detention and interrogation programs fully comply with U.S. obligations under Common Article 3 if they do not include torture (as defined in 18 U.S.C. §§ 2340, 2441(d)), murder, cruel or inhuman treatment; mutilation or maiming; intentionally causing serious bodily harm; rape; sexual assault or abuse; taking of hostages; performing biological experiments; or acts intended to denigrate the religion, religious practices, or religious objects of a person. (See also the Military Commissions Act of 2006 (Pub. L. 109-366)(45 I.L.M. 1246 (2006)).
The E.O. provides that alien detainees will be subject to the conditions of confinement and interrogation practices it outlines if the C.I.A. Director determines that they are members of, or support, al Qaeda, the Taliban, or associated organizations, and are likely to have information that could help in finding, mitigating, or preventing terrorist attacks or in locating senior members of the Taliban, al Qaeda, or associated forces.
The E.O. further directs the Director of the C.I.A. to issue instructions governing the interrogation program, including training for interrogators.
Bolivia’s Denunciation of the ICSID Convention (16 May 2007)
Click here for additional information. (Approximately 1 page)
The Republic of Bolivia sent the World Bank a written notice of denunciation of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) 2 May 2007 pursuant to Article 71. This is the first time a Contracting State has formally denounced the ICSID Convention.
To date, there are currently 144 states parties to the ICSID Convention. Bolivia ratified the ICSID Convention 23 June 1995. Since becoming a Contracting State, Bolivia has been a Respondent in two ICSID arbitrations. See e.g., Quimica e Industrial del Borax Ltda. and others v. Republic of Bolivia (Case No. ARB/06/2) (Case is ongoing and the tribunal has not been constituted); Aguas del Tunari S.A. v. Republic of Bolivia, ICSID Case No. ARB/02/3 (investor settled case with Bolivia in early 2006 and withdrew its claim).
The implications of Bolivia’s denunciation remain unclear for foreign investors. The salient question is what will become of Bolivia’s existing rights and obligations under the Convention. The answer seems to depend on what constitutes “consent” under the Convention and when was it granted.
In regard to the expression of consent, Article 25 (1) of the ICSID Convention provides that the host State and the foreign investor must have an agreement to arbitrate in place. Consent through bilateral investment treaties (BITs) has become accepted practice and Bolivia currently has 24 BITs in place offering such consent. However, this consent varies from treaty to treaty, depending on the terminology employed in the BIT. For instance, some references to ICSID arbitration in Bolivia’s BITs merely offer the prospect of future consent, and do not provide consent to jurisdiction. According to at least one commentator, where an unqualified consent exists, as opposed to an agreement to consent, the rights and obligations should not be affected by Bolivia’s denunciation (Emmanuel Gaillard, “The Denunciation of the ICSID Convention”, International Arbitration Law at 9).
As to the time of consent, because it is determined by the investor’s acceptance of Bolivia’s offer to arbitrate, there are three possible scenarios where arbitrations began (i) prior to the denunciation notice; (ii) during the six-month period after receipt of such notice; and (iii) after the six-month period. First, pursuant to Article 72 of the ICSID Convention, a notice of withdrawal will not affect arbitrations where “consent” has been given prior to the notice of withdrawal. As such, any consent to ICSID arbitration given prior to 2 May 2007 will not be affected. Second, Article 71 provides that the denunciation shall take effect six months after receipt of Bolivia’s notice, i.e. 3 November 2007. Therefore, any ICSID arbitration begun after 2 May 2007 and before 3 November 2007 may still be on time. Third, after a state has given a notice of denunciation, and such notice has taken effect, it no longer has rights and obligations as a Contracting Party. Consequently, any attempt by an investor to give consent after 3 November 2007 would be too late. Most of Bolivia’s BITs also contain a so-called “survival clause” however, which ensures that most of the protections offered in the BIT will continue to apply to investments made prior to the termination of the treaty, for 10 to 20 years after that termination date. Thus, ICSID arbitration may still be available, even after Bolivia has ceased to be a contracting party, on a treaty by treaty basis.
In any event, although the ICSID door may be closed to investors, Bolivia’s withdrawal may not affect future arbitrations because many of Bolivia’s BITs provide for the use of other arbitration rules, such as the UNCITRAL Rules.
Bolivia’s withdrawal from ICSID comes at a time when the country is nationalizing key sectors of its economy. For example, on 1 May 2007 Bolivian President Evo Morales ordered the nationalization of Bolivia's oil and gas industry. Its move also coincided with the left-leaning governments of Venezuela and Nicaragua threatening to withdraw from ICSID. To date however, only Bolivia has officially done so.
--Marco Montanes
United Nations Security Council Resolution 1769: United Nations Peacekeeping Force in Darfur, Sudan (31 July 2007)
After determining that the situation in Darfur, Sudan, continues to pose a threat to international peace and security, and acting pursuant to Chapter VII of the United Nations Charter, the Security Council voted unanimously to issue a resolution mandating the creation of a hybrid African Union/United Nations peacekeeping operation in Darfur, Sudan (UNAMID). To date, the African Union has led the peacekeeping effort in Darfur with the African Union Mission in Sudan (AMIS). The Security Council approved UNAMID to operate for an initial period of twelve months. UNAMID will be comprised of up to 19,555 military personnel and 3,772 civilian police, as well as 19 “formed police units” with up to 140 officers in each.
UNAMID must establish an initial operational capability at its headquarters by October 2007, and must assume authority over all of the peacekeeping forces by 31 December 2007.
Resolution 1769 calls upon all parties to the conflict in the region to stop their hostilities and try to reach a lasting, permanent, cease fire. It demands an end to attacks on African Union peacekeeping forces, civilians, humanitarian agencies, and relief convoys. It tasks UNAMID with monitoring whether arms and related objects are present in Sudan, contrary to UN Security Council Resolution 1556 (2004). It asks the UN Secretary General to take all steps for UNAMID to comply with the “zero tolerance” policy on sexual exploitation and abuse, as well as methods to prevent, identify, and react to all forms of misconduct, including sexual exploitation and abuse.(See Secretary-General’s Bulletin on special measures for protection from sexual exploitation and abuse (ST/SGB/2003/13)). It calls on troop-contributing nations to hold pre-deployment awareness training, and to take disciplinary action in cases involving such misconduct.
The resolution authorizes UNAMID to take needed steps to protect its staff, facilities, and equipment, and to implement the Darfur Peace Agreement.
The Russian Association of International Law celebrated its 50th anniversary this year by, inter alia, publishing a nearly 1000-page treatise/textbook on public international law under the editorship of the late V. I. Kuznetsov (1940-2002) and B. R. Tuzmukhamedov, both of the Diplomatic Academy of the Russian Ministry of Foreign Affairs, with an Introduction by S. V. Lavrov, the present Minister of Foreign Affairs. A collective work in traditional Russian style by nineteen authors in all, the volume sets a new standard for Russian works in the field. This is the first occasion that the Russian Association of International law has lent its support and name to such an undertaking, and the authorship is of an appropriately senior level. The volume marks how far Russian doctrine has come since the Soviet era in every respect and will be of interest to a foreign readership. Discussions are underway for a translation.
ILIB is a free-of-charge electronic resource. To sign up for ILIB or ASIL Insights, click here.
To comment on this publication, send an e-mail message to Susan Notar, ILM Managing Editor at snotar@asil.org
