Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law September 7, 2007
International Tribunal for the Law of the Sea: The “Tomimaru” Case (Japan v. Russian Federation) (6 August 2007)
Click here for document. (Approximately 30 pages).
In a unanimous judgment, the International Tribunal for the Law of the Sea (ITLOS) held that Japan’s application under Article 292 of the of the United Nations Convention on the Law of the Sea (Convention) was without object and it therefore did not have to render a decision on it because Russian domestic courts had already concluded their proceedings regarding the confiscation of the Tomimaru, a Japanese fishing vessel.
The Tomimaru obtained a Russian license to fish for 1,163 tons of walleye and 18 tons of herring in an exclusive economic zone (EEZ) from October 1, to December 31, 2006. On October 31, 2006 it was fishing in this area when Russian inspectors boarded it and discovered that the Tomimaru contained 20 tons of walleye and over 31 tons of other types of fish not included in the license. A Russian prosecutor began a criminal case against the Master of the Tomimaru November 8, 2006 for illegal exploitation of an EEZ and damaging a marine environment. Russia detained the Tomimaru and confiscated the illegal fish.
Russia also began administrative proceedings against Kanai Gyogo, Co., (Kanai) the corporate owner of the Tomimaru November 14, 2006 for violating the terms and conditions of a fishing license. On December 28, 2006 the Petropavlovsk-Kamchatskii city court held that Kanai had indeed violated the terms of its fishing license. The court ordered the Tomimaru to be confiscated and the owner to pay a fine. Kanai appealed this decision to the Kamchatka District Court which confirmed this decision January 24, 2007. The owner next sought review in the Supreme Court of the Russian Federation. The Russian Federal Agency on Management seized the Tomimaru and listed it in the Federal Property Registry as belonging to the State of Russia April 9, 2007. Subsequently, the Petropavlovsk-Kamchatskii City Court levied a fine of 500,000 rubles (or about US $19,600) and awarded damages of 9,000,000 rubles against the Master. While the Master paid the fine he refused to pay the damages. Russia nevertheless permitted him to return to Japan May 30, 2007. The Russian Supreme Court dismissed the complaint July 26, 2007 because of lack of grounds for review of the decision below it.
Both Japan and Russia are states parties to the Convention. Japan applied to the ITLOS against the Russian Federation pursuant to Article 292 of the Convention July 6, 2007. Japan alleged that Russia violated Article 73(2) regarding the prompt release of arrested vessels after posting of a bond or other security. Japan asked the tribunal to order Russia to release the Tomimaru. Russia contended that its confiscation of the Tomimaru rendered Japan’s application without object and that the tribunal lacked competence to hear Japan’s application because Russian domestic courts had already considered the issue, rendered a decision, and that decision had been executed. The tribunal concurred with Russia. Relying upon its decision in Monte Confurco¸ the tribunal reasoned that Article 73 of the Convention requires a balancing of the interests of the coastal state regarding compliance with its laws with those of the flag vessel state in obtaining timely release of its vessels and crews upon the posting of a bond or other security. In holding Japan’s application without merit the tribunal opined that a decision to confiscate a vessel does not prevent ITLOS from reviewing an application while domestic proceedings are still pending in the detaining state. Here however, if it decided to release the Tomimaru pursuant to Article 292 of the Convention, it would contradict the Russian domestic court’s decisions; and impinge upon national competencies, in violation of Article 292, paragraph 3 of the Convention. This section requires ITLOS to handle an application for release without delay and address only the issue of release without “prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew.”
European Court of Human Rights Grand Chamber: J.A. Pye (Oxford) Ltd & J.A. Pye (Oxford) Land Ltd.v. The United Kingdom (30 August 2007)
Click here for document. (Approximately 25 pages including dissent).
The European Court of Human Rights (ECtHR) sitting in Grand Chamber held by a vote of ten to seven that there had been no violation of Article 1 of Protocol No. 1 (protection of property) of the European Convention on Human Rights (Convention) for the applicant companies when a neighbor acquired its land through adverse possession.
J.A. Pye (Oxford) Ltd. owned 23 hectares of agricultural land in Berkshire, U.K. until 1986 when it transferred the land to J.A. Pye (Oxford) Land Ltd. Mr. and Mrs. Graham owned property bordering the company’s land, and by agreement, were permitted to use it as grazing land until December 31, 1983. The company informed the Grahams December 30, 1983 that the grazing agreement was about to expire and they should vacate the land. Nevertheless, the Grahams continued to use the land without permission until 1999. In 1997 Mr. Graham registered “cautions” against the company’s title to the land, claiming that he had acquired title to it through adverse possession. The company sought to cancel the cautions in the High Court April 30, 1998. In response, the Grahams argued that two U.K. laws entitled them to ownership of the land: 1) the 1980 Limitation Act (1980 Act) which prohibited a suit from being brought to recover land after another party has owned it through adverse possession for twelve years; and 2) the Land Registration Act of 1925 which provided that at the end of the twelve year period, the registered owner was deemed to hold the land in trust for the adverse possessor.
The High Court determined February 4, 2000 that the Grahams took possession of the land through adverse possession beginning in September 1984 and the 1980 Act extinguished the company’s title. The company appealed and the Court of Appeals reversed, holding that the Grahams lacked the intent to possess the land. The Grahams subsequently appealed to the House of Lords which restored the order of the High Court.
The companies applied to the ECHR against the United Kingdom December 17, 2002 claiming that the U.K. law on adverse possession violated their rights pursuant to Article 1 Protocol 1 of the Convention. The Court declared their application inadmissible June 8, 2004. Subsequently however, a section of the Court held November 15, 2006 by a vote of four to three that there had been a violation of the Protocol. The United Kingdom then requested that the case be referred to the Grand Chamber, and the court granted that request April 12, 2006.
Pursuant to Article 1 of Protocol 1 all natural and legal persons have the right to peaceful enjoyment of their possessions. Such rights may only be infringed in the public interest and under general principles of international law. States are nevertheless permitted to enforce laws to control property.
The U.K. argued that the Grahams, as private parties, and not the state, were the source of the disruption of the applicants’ enjoyment of the land, and consequently the obligations of the U.K. under Article 1 of Protocol 1 had not been triggered. The ECHR did not concur because the U.K. legislation took governed the actions of private parties. In its reasoning, the ECHR examined whether a fair balance had been struck between the interests of the general public and those of the individuals involved. It noted that in sectors such as housing, it will respect legislature’s decision as to the general interest of the public unless such conclusions are “manifestly without reasonable foundation.” Finding that the U.K. laws struck a fair balance, the ECHR held that there was no violation of Article 1 of Protocol 1.
United States v. Noriega, Order Granting in Part, Defendant’s Emergency Motion for Stay of Extradition (S.D. Fla. 5 September 2007)
Senior U.S. District Court Judge William M. Hoeveler granted in part Manuel Antonio Noriega’s emergency motion for a stay of extradition to France on September 5, 2007. Judge Hoeveler ordered Noriega to produce evidence to support his allegation that France will not follow the rules of the Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T 3316, 75 U.N.T.S. 135 (Convention) with respect to his treatment, if the United States extradites Noriega to France. France seeks to try Noriega for alleged money laundering activities. Judge Hoeveler ordered the government to respond to Noriega’s allegation and if it is unable to confirm that France will comply with the Convention, the court will require the government to produce confidential diplomatic communications upon which the government has relied to satisfy itself that France will in fact comply with the Convention, which the court will then review in camera.
United States v. Noriega, Order Denying Defendant’s Petition for Writs of Habeas Corpus, Mandamus, and Prohibition (S.D. Fla. 24 August 2007)
Senior U.S. District Court Judge William M. Hoeveler denied former Panamanian General Manuel Antonio Noriega’s petition for writs of habeas corpus, mandamus, and prohibition, in Miami, Florida, on August 24, 2007, permitting the United States to extradite Noriega to France to stand trial for money laundering rather than repatriate him to Panama. Judge Hoeveler held that Noriega had failed to show a basis for the writs of mandamus and prohibition. He held that Noriega relied upon an improper basis for his petition for a writ of habeas corpus, 28 U.S.C. §2255, a federal statute allowing federal prisoners to bring suit alleging violations of their constitutional rights during protection; when he should have employed the federal habeas corpus statute, 22 U.S.C. 2241.
The U.S. District Court for the Southern District of Florida determined that Noriega was a prisoner of war (POW) pursuant to the Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T., 3316, 75 U.N.T.S. 135 (Convention) in 1992 (see United States v. Noriega, 808 F.Supp. 791, 803 (S.D. Fla. 1992). Judge Hoeveler discussed that once an individual is determined to have POW status certain rights attach until the individual’s final release and repatriation pursuant to Article 5 of the Convention. Nevertheless, Article 12 of the Convention permits the detaining power to transfer POWs to another party to the Convention after satisfying itself that the nation to which the POW is transferred is willing and able to apply the Convention.
Judge Hoeveler refused to discuss the applicability of the so-called “habeas stripping” provisions in 5(a) of the Military Commissions Act of 2006 Pub. L. No. 109-336, Oct. 17, 2006, 120 Stat. 2631 (see 45 I.L.M. 1246 (2006)), noting that the Supreme Court will do so soon.
RESOLUTIONS, DECLARATIONS AND OTHER DOCUMENTS
United Nations: Security Council Resolution 1770 Iraq (10 August 2007)
In Resolution 1770, the Security Council recalled its previous resolutions (1500 (2003), 1546 (2004), 1557 (2004), 1619 (2005), 1700 (2006)); and recognized that Iraq has a democratically elected, constitutionally-based government. It emphasized the need for all parties in Iraq to rebuff sectarianism, engage in the political process, and participate in the effort to promote political stability and unity. It emphasized the importance of the United Nations Assistance Mission in Iraq (UNAMI) to assist the Iraqis in building representative government, aiding fragile groups of persons including refugees and internationally displaced persons, and help safeguard human rights and judicial and legal reform. The Security Council expressed its distress for the humanitarian situation facing the people of Iraq, and affirmed the importance of a united response and sufficient resources to address the situation. It encouraged all parties to give humanitarian personnel unrestricted entrée to individuals in need of help, and to facilitate the safety of humanitarian and UN personnel.
It welcomed the inception of the International Compact with Iraq May 3, 2007, and the Iraqi Minister of Foreign Affairs request for UNAMI to help Iraq in rebuilding its society. Specifically, UNAMI will: assist the Government of Iraq and the High Electoral Commission to create procedures to hold elections and referenda; help create systems to resolve disputed internal boundary issues; help foster a regional dialog on issues such as border security, energy, and refugees; help with economic reform and sustainable development, civil social, and essential services; protect human rights and legal and judicial reform to improve the rule of law in Iraq.
The Security Council recognized the importance of the role that the Multi-National Force in Iraq plays to provide UNAMI with its security and logistical needs, and called upon all member states to continue supporting UNAMI.
United Nations Security Council Resolution 1773 The Situation in the Middle East (24 August 2007)
In resolution 1773, the Security Council determined that the circumstances in Lebanon continue to pose a threat to international peace and security. It decided to extend the mandate of the United Nations Interim Force in Lebanon (UNIFIL) until August 31, 2008. It advised all parties to honor the end of hostilities as well as the “Blue line.” It further encouraged all of the parties involved to collaborate with the UN and UNIFIL, and to honor their duty to safeguard UNIFIL and other UN personnel. The Security Council calls upon all parties to cooperate with it to attain a lasting ceasefire, and finally, it emphasizes the need to reach a complete and last peace in the Middle East.
At a conference celebrating the 100th anniversary of The Hague Rules of 1907, nine international criminal prosecutors issued a declaration recalling the principles of Nuremberg and emphasizing the importance of the rule of law in combating impunity.
The prosecutors in attendance were: Henry T. King and Whitney R. Harris of the International Military Tribunal at Nuremberg; Luis Moreno Ocampo from the International Criminal Court; David Crane, Sir Desmond DeSilva, and Stephen Rapp, from the Special Court for Sierra Leone; Robert Petit, Extraordinary Chambers for Cambodia; Hassan Jallow, International Criminal Tribunal for Rwanda; and David Tolbert, International Criminal Tribunal for the Former Yugoslavia. Other conference participants included Elizabeth Andersen, Executive Director, American Society of International Law (ASIL), and David Scheffer, former Ambassador for War Crimes.
Noting that ending the impunity of perpetrators of crimes “of concern to the international community” is an integral part of preventing the reoccurrence of such crimes, the prosecutors specifically called for the arrest and trial of Ratko Mladic, Radovan Karadzic, Felician Kabuga, Joseph Kony, and Ahmed Harun, and other individuals “sought by international justice.”
They cited Justice Robert H. Jackson at Nuremberg who stated, “We are able to do away with domestic tyranny and violence and aggression by those in power against the rights of their own people only when we make all men answerable to the law.”
ASIL, the Robert H. Jackson Center, Washington University’s Whitney R. Harris Institute for Global Legal Studies, and the Syracuse University College of Law sponsored the conference.
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