Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law December 14, 2007
The East African Community (EAC) is comprised of the nations of Burundi, Kenya, Rwanda, Tanzania, and Uganda. It works to promote cooperation among its partner states in political, economic, and social sectors. The EAC created a customs union in 2005 and is working toward the development of a common market in 2010. The EAC, South Africa, and Namibia entered into an interim economic partnership agreement with the European Community (EC) November 23, 2007. It is the first international agreement that the EAC concluded as a coalition and is designed to lay the groundwork for a full economic partnership agreement (EPA) that the parties hope to finalize by the end of 2008.
The Interim Economic Partnership Agreement (IEPA) has a number of objectives including helping to eradicate poverty in the region, promoting the eventual integration of the EAC states into the world economy, and ameliorating the EAC states’ conditions for economic growth. It creates a free trade area between the EAC and the EC that will conform to Article XXIV of the General Agreement on Tariffs and Trade (GATT 1994). The EC agrees to provide duty free and quota free treatment for all products from Botswana, Lesotho, Mozambique, Namibia, and Swaziland. To continue meeting their obligations to the World Trade Organization, the EAC states will progressively open their market to products from the EU during the next twenty-five years.
Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (November 23, 2007)
Click here for document. (Approximately 28 pages).
The Hague Conference on private international law is a global inter-governmental organization that tries to achieve “progressive unification” of private international law rules. It first met in 1893 at the behest of T.M.C. Asser. Its governing statute entered into force in 1955. It currently has 68 state and regional economic integration organization members including China, the European Community, France, the Russian Federation, the United Kingdom, and the United States.
The Twenty-First Diplomatic Session of the Hague Conference on Private International Law adopted the Hague Convention on the International Recovery of Child Support and Other Forms of Maintenance (Convention), as well as a Protocol on the Law Applicable to Maintenance Obligations on November 23, 2007. The United States signed the Convention that day and it will enter into force after a second nation ratifies it.
The preambular language of the Convention invokes Articles 3 and 27 of the United Nations Convention on the Rights of the Child and its focus upon the “best interests” of children. It emphasizes that all children are entitled to a standard of living sufficient for their physical, mental, spiritual, and social growth. Article 1 sets forth the Convention’s purpose: to provide for the successful international recovery of child support and other types of family maintenance. It will accomplish this goal by: creating a comprehensive structure through which contracting states will cooperate; making applications for the creation of maintenance decisions available; establishing procedures for the recognition and enforcement of maintenance decisions; and mandating efficient steps for timely enforcement of maintenance orders.
The Convention applies to maintenance obligations for children under the age of 21 and to spousal support orders. The Convention also applies regardless of the marital status of the child’s parents. With respect to child maintenance obligations, contracting states must designate central authorities to carry out the obligations of the Convention. Contracting states with Federal systems, more than one system of law, or autonomous territorial units may designate more than one central authority. Central authorities promote cooperation among each other, as well as send and accept maintenance obligations.
Permanent Court of Arbitration: Award of the Arbitral Tribunal: Guyana and Suriname (September 17, 2007)
Click here for document. (Approximately 180 pages).
The Arbitral Tribunal was composed of: H.E. Judge Dolliver M. Nelson, President, Professor Thomas M. Franck, Dr. Kamal Hossain, Professor Ivan Shearer, and Professor Hans Smit.
The Arbitral Tribunal (Tribunal) constituted under the United Nations Convention on the Law of the Sea (Convention) to fix a maritime boundary between Guyana and Suriname unanimously found the boundary to be a series of geodetic lines joining points that the Tribunal specified in its award. In the territorial sea, the boundary follows a N10º E line from the starting point to the three nautical mile limit, then a diagonal line from the intersection of the N10º E line and the three nautical mile limit, to the intersection of the 12 nautical mile limit and the equidistance line. The Tribunal further determined that Suriname’s expulsion of Guyana from the proximity of the CGX oil rig and drill vessel C.E. Thorton June 3, 2000 comprised a threat of the use of force and thus a violation of Article 279 of the Convention, the UN Charter Article 2(4), and general principles of international law. It further held that the parties violated their duty under Articles 74(3) and 83(3) of the Convention to make every effort not to jeopardize or impede attaining a final delimitation agreement. The Permanent Court of Arbitration serves as the registry for the Tribunal.
The maritime boundary dispute between Guyana and Suriname dates to 1799. In the 1950s both nations granted oil exploration rights to companies to begin search for oil in the disputed area. In 1998 Guyana granted CGX Resources, Inc. concessions for oil exploration, and in 1999 CGX began seismic testing. In May 2000, Suriname ordered CGX to stop testing in the disputed area. In June 2000 two Surinamese navy patrol boats neared the CGX oil rig and its drill vessel the C.E. Thorton and ordered them to leave the area and the crew aboard the C.E. Thorton complied with the request. Because of a lack of success with diplomatic efforts to resolve the dispute, Guyana began the proceedings against Suriname February 24, 2004 pursuant to Articles 286, 287, and Annex II of the Convention, to which both nations are parties.
In the portion of its award in which it delimited the maritime boundary, the Tribunal examined Article 15 of the Convention which permits it to consider “special circumstances” for delimiting the territorial sea of two adjacent nations in a way other than the general rule regarding the median line. It concluded that Suriname’s presentation of evidence of small craft navigation in the western channel in the disputed area constituted such special circumstances.
The Tribunal concurred with Guyana’s argument that Suriname’s expulsion of the CGX and the C.E.Thorton constituted an unlawful threat of the use of force because it viewed Suriname’s actions as more similar to a threat of military action rather than regular law enforcement activity. In doing so, it rejected Suriname’s contention that the measures that it took June 3, 2000 were reasonable and proportionate law enforcement measures, and typical steps for coastal states to take in disputed areas to prevent illicit drilling on the continental shelf. The Tribunal refused to order Guyana compensation for this violation however, because it was not satisfied that Guyana had proved its claims for compensation sufficiently.
The Tribunal held that the parties violated their obligations under Article 74(3) and 83(3) of the Convention to take all steps to enter into provisional arrangements of a “practical nature” and not jeopardize reaching a final delimitation agreement. It differentiated between unilateral acts which do not cause permanent change to the physical environment such as seismic exploration, and those that do, such as oil and gas exploration. It cited Suriname’s resort to “self-help” of threatening the CGX rig, and Guyana’s plans to conduct exploratory drilling as violations of the relevant Articles.
International Centre for the Settlement of Investment Disputes (ICSID): Sempra Energy International and Argentine Republic (Award) (September 28, 2007)
Click here for document. (Approximately 140 pages).
The Arbitral Tribunal was composed of: Francisco Orrego Vicuna, President, Marc Lalonde, Arbitrator, and Sandra Morelli Rico, Arbitrator.
The Arbitral Tribunal (Tribunal) decided that Argentina had breached its obligation to provide Sempra Energy International (Sempra) fair and equitable treatment pursuant to Article II(2)(a) of the 1991 Bilateral Investment Treaty (BIT) between the United States and Argentina and failed to observe its obligations with respect to the investment under the “umbrella clause” pursuant to Article II(2)(c) of the BIT. It ordered Argentina to pay Sempra $128,250,462 US as well as 6% interest.
The dispute is another that arose out of the Argentine economic crisis. As part of its economic recovery effort Argentina privatized a number of government owned industries including the gas sector. In 1991 Argentina set the Argentine peso on par with the U.S. dollar. In 1992 it passed the Gas Law and implementing regulations in the Gas Decree which separated gas transportation from distribution in Argentina and created 8 companies to distribute gas. Sempra invested in two companies conducting distribution activities. Sempra argued that it relied upon Argentina’s investment framework in its decision to invest in Argentina, including calculating tariffs in U.S. dollars and adjusting them semi-annually according to the U.S. Producer Price Index (US-PPI). In 2001 the Argentine 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, the “pesification” of its system.
The Tribunal found Sempra’s arguments about the right to the calculation of the tariffs in US dollars persuasive after reviewing the legal and regulatory framework and finding that this was a central feature of the tariff regime.
It rejected Argentina’s state of necessity defense argument under both customary international law and the BIT. The Tribunal discussed the recent LG&E decision in which an arbitral tribunal upheld Argentina’s state of necessity defense, as well as the CMS and Enron decisions, in which tribunals did not, and reasoned that this difference was likely because of each tribunal’s assessment of the facts. It concluded nonetheless that it was not convinced by Argentina’s attempt to use the defense here because Argentina could have dealt with the issues regarding public order and social unrest through its existing constitutional arrangements rather than the Emergency Law.
The Tribunal rejected Sempra’s claim that Argentina’s measures expropriated Sempra’s investment in violation of Article IV of the BIT because it determined that expropriation cannot occur without a transfer of a key property right to another party, particularly, the state.
The Tribunal held that Argentina had breached its obligation under Article II(2)(a) of the BIT to Sempra to provide it with fair and equitable treatment because the measures that Argentina took substantially altered the legal and business framework under which the investment was decided and implemented. The Tribunal also found a violation of the “umbrella clause” of Article II(2)(c) of the BIT. While it noted that not all contractual breaches are also violations of the BIT, it nonetheless found such a breach here, where Argentina introduced major legal and regulatory changes that substantially altered the legal and regulatory investment framework under which Sempra initially invested.
European Court of Human Rights Grand Chamber: D.H. v. The Czech Republic (November 13, 2007)
Click here for document. (Approximately 65 pages).
In a case involving eighteen Roma schoolchildren, the European Court of Human Rights (ECtHR) held by a vote of 13 to 4 that the Czech Republic’s separation of the children into special schools discriminated against them on the basis of their race or ethic origin and violated their right to education pursuant to Article 14 of the Convention and Article 2 of Protocol No. 1. The Court thus ordered the Czech Republic to pay each of the students 4,000 Euros in non-pecuniary damage, and 10,000 Euros for costs and expenses.
The Roma have historically been subject to discrimination in Europe and currently comprise about 5% of the total population. During World War II, the Nazis viewed the Roma as an inferior race and sought to exterminate them. After World War I, the Czech Government created “special schools” or zvlastni skoly for children with special needs, including mental disabilities. A disproportionate number of Roma children continue to attend such schools today.
The Czech Government placed the eighteen students in this case in special schools in Ostrava between 1996 and 1998, at their parents’ consent or request. Despite being notified of the right to appeal the placement, none did. In June 1999 twelve of the students filed an appeal with the Constitutional Court pursuant to Articles 3 and 14 of the Convention and Article 2 of Protocol Number 1 and claiming that the government failed to apprise them of the consequences of being placed in special schools. They argued further that the special schools resulted in de facto racial segregation and discrimination against them that lacked an objective or reasonable justification. The Constitutional Court rejected their claims, in part because nothing demonstrated to it that the relevant domestic statutory provisions had been interpreted or applied unconstitutionally, and because none of the students exercised their right to appeal to contest placement.
Eighteen Roma schoolchildren applied for suit at the ECtHR against the Czech Republic April 18, 2000 asserting pursuant to Article 14 of the Convention and Article 2 of Protocol No. 1, that the Czech Government treated them less favorably than children in a comparable situation with no objective or reasonable justification.
In its analysis, the Court discusses the European Commission against Racism and Intolerance (ECRI) recommendations outlining the permanent negative effects of the dual educational system upon the Roma children in the Czech Republic. It cites to the language prohibiting discrimination in a number of international agreements including the ICCPR, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention on the Rights of the Child, and the decisions in the House of Lords Regina v. Immigration Officer at Prague Airport and another, ex parte European Roma rights Centre and others (2004), and the United States Supreme Court Griggs v. Duke Power Co., 401 U.S. 424 (1971). While Article 14 prohibits discrimination lacking an objective or reasonable justification, member states may treat groups differently to correct “factual inequalities” among them. Because discrimination based upon ethnic origin is a particularly invidious type of bias however, it must be subjected to exceptional scrutiny. In addition, because of the historic maltreatment to which the Roma have been subject in Europe, the Court noted that they are entitled to special protections, which extends to the educational sphere, particularly where as here, the applicants are minors. The Court examined statistical data revealing that in 1999, Roma children comprised 80% to 90% of the total number of children in special schools. The Court rejected the Government’s argument that the Roma parents had provided their consent for their children to attend special schools, because the parents were members of a disadvantaged community who were often poorly educated, and did not realize the consequences of consent. While the Court lauds the Czech Government’s efforts to tackle the challenge of educating the Roma children, it nonetheless found its approach insufficient, and lacking the safeguards needed to protect the rights of the Roma children.
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