Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law October 31 , 2007
The parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) adopted new compliance procedures at the 14th Convention of the Parties in The Hague, June 3-15, 2007, that took effect September 13, 2007. Experts indicate that the new measures are important because of the broader implications they portend for the second phase of operationalization of international environmental regimes.
CITES is a voluntary international governmental agreement designed to guarantee that international trade does not threaten the continued existence of various species of flora and fauna. Members of the World Conservation Union adopted a resolution in 1963 that led to the drafting of CITES. Representatives from 80 countries agreed to the Convention March 3, 1973, and it entered into force July 1, 1975. It currently has 172 States parties and provides differing degrees of safeguards to over 30,000 types of plants and animals.
After States parties adopt CITES, they are legally bound to follow it. CITES entered into force for the United States January 7, 1975. States parties must designate at least one Management authority to administer a licensing system to govern the import, export, and re-export of species that the Convention covers, and at least one Scientific Authority to advise them on the impact of trade of the species.
The new compliance measures provide for a variety of ways to raise potential compliance concerns. States parties may bring their compliance concern directly to the attention of another States party; and/or raise the issue with the CITES Secretariat. States parties may also alert the Secretariat to their possible inability to comply, including their difficulty to meet given deadlines. Compliance matters may be rejected if deemed to be trivial or ill-founded. The “Standing Committee” that monitors compliance with CITES may take a number of steps including issuing written cautions; recommending capacity-building measures; requesting a compliance action plan; or even recommending the cessation of all trade in a given specimen.
International Civil Aviation Organization (ICAO): Resolution and Report on Climate Change (September 28, 2007)
Click here for document. (Approximately 37 pages).
The International Civil Aviation Organization (ICAO) is a specialized agency of the United Nations that the Convention on International Civil Aviation (the Chicago Convention) created in December 7, 1944. The Chicago Convention entered into force April 4, 1947. It sets international standards and recommends practices regulating international air transportation. ICAO has a number of purposes including meeting the need for safe, orderly, and efficient air transportation; and encouraging flight safety. ICAO currently has 190 States parties.
The Assembly of the ICAO met in Montreal in September 2007 and adopted consensus Resolution A36-17/1. The resolution requests the ICAO Council to form of a new body to develop “an aggressive” plan of action on international aviation and climate change to address a wide array of issues including sharing of information on reducing emissions; developing mechanisms to gauge the progress achieved in reducing emissions; identifying global objectives for international aviation regarding fuel efficiency and possible ways to attain them; and sharing information on results achieved with States parties. The Assembly also asked States parties to encourage the international aviation industry to keep lowering its greenhouse gas emissions, and report on measures taken to alleviate airspace congestion that is resulting in the unnecessary burning of jet fuel.
The resolution also recognizes ICAO’s and States parties’ responsibility to ensure that the environment is protected while simultaneously developing civil aviation. Specifically, ICAO and States parties will try to decrease the number of people affected by significant levels of aircraft noise; alleviate or lessen the effects of aircraft emissions on air quality; and decrease the effects of aviation greenhouse gases on world climate.
Members of the ad hoc Committee: Judge Gilbert Guillame, President, Judge Nabil Elaraby, Professor James R. Crawford. Secretary of the ad hoc Committee: Mr. Gonzalo Flores
An ad hoc committee (Committee) of the International Centre for the Settlement of Investment Disputes (ICSID) upheld Argentina’s application for an annulment of a Tribunal Award with respect to an “umbrella clause” in the bilateral investment treaty (BIT) between the US and Argentina. The Committee dismissed Argentina’s other claims for annulment.
The case arose out of Argentina’s economic crises. As part of its economic recovery effort, Argentina privatized a number of government owned industries including the gas industry and created Transportadora de Gas del Norte (TGN) to which it granted a license to distribute gas. Argentina eventually sold 70% of TGN to a group of investors. It also tied the Argentine peso to the US dollar. CMS Gas Argentina bought a total of 29.42% of the shares of TGN. It was CMS’ understanding that tariffs were to be calculated in dollars and then converted to pesos at time of billing and adjusted every six months in accordance with the US Producer Price Index (US-PPI). In 2001 Argentina's economic situation worsened. It passed Law No. 25.561 which declared a state of emergency and ended the adjustment of tariffs in accord with the US-PPI and set the tariff calculation at one peso to one dollar.
CMS applied for arbitration against Argentina. In its May 2005 Award the Tribunal held that there had been no expropriation or discriminatory/arbitrary treatment of CMS under the BIT. It held that Argentina had breached the duty to provide CMS with fair and equitable treatment as required under Article II(2)(a) of the BIT, and failed to follow the obligations pursuant to which the investment was made under Article II(2)(c) of the BIT. It rejected Argentina’s defenses that it had acted out of necessity and Article XI of the BIT and awarded CMS US $133.2 million. Argentina applied to ICSID for an annulment of the May 12, 2005 award asserting pursuant to Article 52(1) of the Convention that the Arbitral Tribunal had manifestly exceeded its powers and failed to state the reasons for which the award was made in violation of Article 52(e) of the ICSID Convention.
In a number of places in its decision the Committee notes that its jurisdiction is a limited one under Article 52 of the ICSID Convention and that it is not an appellate body. The Committee rejected Argentina’s argument that it manifestly exceeded its powers when it permitted CMS to bring suit regarding its lost incomes because it deemed CMS to be an investor under the BIT that had made a capital investment covered by the BIT, and its claims for violation thus fall within the jurisdiction of the Tribunal. The Committee likewise disposed of Argentina’s claim that it transformed the fair and equitable and umbrella clauses of the BIT into strict liability provisions because the Tribunal’s finding that the Argentine emergency law transformed the business environment upon which the investment was based was founded upon applicable law and relevant facts.
With respect to Argentina’s claims about the umbrella clause however, the Committee noted a “significant lacuna” in the Tribunal’s Award because it did not enunciate its reasoning how CMS could enforce the obligations of Argentina to TGN. The Committee thus annulled the Tribunal’s finding on Article II(2)(c) for failure to state reasons for its decision. The Committee decided however, that this part of the Tribunal Award was severable from the rest of it, and thus does not require the annulment of the entire Award.
While noting a number of additional “lacunae and elisions” in the Tribunal’s analysis of Argentina’s state of necessity defense and Article XI of the BIT, the Committee nonetheless rejected those claims, after determining that there was no manifest excess of powers or lack of reasoning in the Award.
Supreme Court of Belize: Cal v. Attorney General (October 18, 2007)
Click here for document. (Approximately 65 pages).
The Supreme Court of Belize held that both the domestic law of Belize and international law requires the Government of Belize to recognize and respect the land ownership claims of indigenous Mayan peoples, and to refrain from taking any act that affects the value or use or enjoyment of this property.
This suit involves two consolidated claims of Mayans from Santa Cruz and Conejo villages, in the Toldeo District of Southern Belize against the Government of Belize. The claimants alleged that they hold customary land tenure to their land and that these claims should be entitled to protection under the Constitution of Belize and through international law. They asserted further that the Government violates their property rights by issuing third-party land concessions regarding extractions of natural resources, and threatening to grant property rights that are inconsistent with traditional Mayan practices. The Government by contrast, argued that the villagers’ claims were extinguished by British Sovereignty over the land, as British Honduras from 1862 until 1981 when Belize gained its independence. The Court emphasized however, that this sovereignty did not extinguish the Maya’s pre-existing rights in their land, and cited the High Court of Australia decision in Mabo and others v. Queensland (No. 2), 145 CFR IFC 92/04.
The Court quotes expert testimony on Mayan culture at length to ultimately find that the Mayas hold usufruct ownership of their land, with each village possessing elaborate rules to regulate land use within the community. The Court held that the Constitution of Belize should protect these property rights from expropriation without reasonable compensation, and the Court turned to the Report of the Inter-American Commission in the Maya Communities case, and Article XXIII of the American Declaration on the Rights and Duties of Man, a component of the Charter of the Organization of American States, of which Belize is a member, to support this view. The Court concurred with the claimants that the Government’s acts and omissions regarding their property is discriminatory and violative of their right to equality pursuant to sections 3 and 16 of the Constitution of Belize.
While the Court recognizes the domestic nature of the proceedings, it nonetheless further holds that the Government of Belize is violating a number of international treaty norms and customary international law rules by failing to recognize the claimants’ property rights. These include the International Covenant on Civil and Political Rights; the Convention on the Elimination of All Forms of Racial Discrimination, and the Charter of the Organization of American States.
The United States increased the sanctions it has imposed against Iran because of its proliferation activities October 25, 2007, by designating the Islamic Revolutionary Guard Corps (IRGC)(also called the Iranian Revolutionary Guard Corps), the Ministry of Defense and Armed Forces Logistics (MODAFL), and three Iranian banks: 1) Bank Melli; 2) Bank Mellat; and 3) Bank Saderat; as supporters of terrorism pursuant to Executive Order 13382 (June 29, 2005); and Security Council Resolution 1737 (December 23, 2006)(46 ILM 1 (2007)). This designation will prohibit financial transactions involving any of the named organizations and will freeze all of their assets in the United States.
The UN Security Council imposed sanctions against a number of the officers of the IGRC in Security Council Resolution 1747. The IGRC is comprised of five military branches as well as a counterintelligence directorate. It operates prisons and engages in defense production, and the oil industry. MODAFL controls the Defense Industries Organization that UN Security Council Resolution 1737 sanctioned. The three banks subject to the sanctions have been linked to the financing of sensitive equipment and organizations such as Hezbollah and Hamas.
International Criminal Court: Opening of Field Office in Central African Republic (October 18, 2007)
Click here for link to Registrar Bruno Cathala’s speech inaugurating the court. (In French).
The International Criminal Court (ICC) opened its fifth field office in Bangui, Central African Republic (CAR), October 18, 2007, with an inaugural speech by its Registrar, Bruno Cathala. The ICC has established other field offices in Abéché, Chad, Bunia and Kinshasa, Democratic Republic of the Congo, and Kampala, Uganda. The ICC Prosecutor, Luis Moreno Ocampo, announced an investigation of international criminal activities in the CAR in May 2007. The field office will permit investigators, witness protection experts, and the defense, to work efficiently while in the field.
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
