Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law December 28, 2007
The United Nations Climate Change Conference held in Bali, Indonesia, December 3-14, 2007 culminated in an agreement, the “Bali Roadmap,” to address climate change through a series of negotiations slated to conclude in 2009. The Bali Roadmap recognizes that deep cuts in global greenhouse gas emissions are needed to meet the goals of the Convention. It emphasizes common but differentiated responsibilities to reduce emissions, taking into consideration the varying social and economic circumstances of the parties. The Bali Roadmap requires developing nations to take steps to prevent deforestation and forest degradation; while developed nations are expected to share technologies and resources with developing nations to help them craft environmentally sound practices.
International Court of Justice: Territorial and Maritime Dispute (Nicaragua v. Colombia) Preliminary Objections (December 13, 2007)
Click here for document. (Approximately 40 pages).
Nicaragua brought suit against Colombia December 6, 2001 in the International Court of Justice (Court) regarding a dispute over title to territory and to delimit the maritime jurisdiction between the nations. Nicaragua argued that it had sovereignty over the islands Providencia, San Andrés, Santa Catalina, as well as Roncador, Serrana, Serranilla, and Quitasueño keys. Colombia by contrast, denied that there was a controversy and contended that the Court lacked jurisdiction to hear the suit under both the Pact of Bogotá and Article 36(2) of the Court’s statute.
Nicaragua and Colombia are both former Spanish colonies. They signed a treaty in 1928 (the 1928 Treaty) which gave Nicaragua sovereignty over the “Mosquito coast” and Colombia sovereignty over San Andrés, Providencia, and Santa Catalina islands as well as other islands in the San Andrés Archipelago, and exempted the Roncador, Quitasueño, and Serrana keys from the scope of the treaty. The parties signed a protocol (1930 Protocol) May 5, 1930 stipulating that the 1928 Treaty was designed to end the territorial dispute and specifying that the San Andrés and Providencia Archipelago did not extend west of the 82nd longitude line. In 1948 the parties signed the American Treaty on Pacific Settlement (the Pact of Bogotá) which Nicaragua and Colombia ratified in 1950 and 1968 respectively. Article VI of the pact prevents its dispute settlement mechanisms to be applied to areas that the parties have “already settled,” or which are governed by agreements or treaties that are in force.
First Preliminary Objection
Colombia contended that the Court lacked jurisdiction to hear the suit under Article VI of the Pact of Bogotá because the 1928 Treaty “settled” the issues. By contrast Nicaragua claimed that Article XXXI of the Pact gave the Court jurisdiction and the 1928 Treaty did not resolve which islands, cays or reefs formed the San Andrés Archipelago, the ownership of the Roncador and Quitasueño reefs, or delimit a maritime boundary between the nations. Nicaragua argued further that the Court should not address such issues now because that would require it to delve into the merits of the case. The Court determined that the question whether the 1928 Treaty and 1930 Protocol settled the issues was a preliminary one that it needed to examine before finding that it had jurisdiction. The Court parsed the text of the 1928 Treaty and held by a vote of thirteen to four that its language specified that Colombia has sovereignty over the Archipelago and islands of San Andrés., Providencia, and Santa Cantalina and thus was “settled” within the meaning of the Pact of Bogotá. It held unanimously that the 1928 Treaty did not address which other maritime features formed part of the Archipelago, and the Protocol did not address the maritime delimitation and thus neither issue was “settled” within the meaning of the Pact of Bogotá, and the Court could therefore exercise its jurisdiction over both issues pursuant to Article XXXI of the Pact.
Second Preliminary Objection
Colombia objected to the Court’s exercise of jurisdiction pursuant to Article 36(2) of its statute and contended that the Pact of Bogotá as lex specialis was exclusive and governing. The Court reasoned that the only portion of the dispute to which this issue was relevant was with respect to the question over the sovereignty of the islands because it had already found that it possessed jurisdiction under the Pact of Bogotá to resolve the other issues. Because it had previously held that there was no dispute regarding the sovereignty of the islands, it held by a vote of fourteen to three that it lacked jurisdiction to hear this portion of the suit.
House of Lords: R (on the application of Al-Jedda) (FC) v. Secretary of State for Defence (December 12, 2007)
Click here for document. (Approximately 69 pages).
A national of both Britain and Iraq, Mr. Al-Jedda, detained by UK security forces in Iraq since 2004 on suspicion of being a terrorist, challenged a 2007 Court of Appeals decision against him that his detention violated his right under Article 5(1)(liberty and security) of the European Convention on Human Rights (Convention) as applicable to the United Kingdom through its 1998 Human Rights Act (HRA). He sought to be released and a declaration that his detention was unlawful. The House of Lords decided to dismiss the appeal, with a majority agreeing that the UN did not exercise effective control over the UK forces in Iraq, and Lord Rodger dissenting on this point.
Relying upon the decision of the European Court of Human Rights (ECtHR) in Behrami v. France, Saramati v. France, Germany and Norway¸ (May 2, 2007) see 46 ILM 743 (2007), counsel for the Secretary of State argued that the actions of the British forces in detaining Al-Jedda were attributable to the United Nations under international law. They contended further that the British forces were under an obligation pursuant to UN Security Council Resolution (SCR) 1546, and Articles 25 and 103 of the UN Charter, to detain Al-Jedda, and this duty superseded any duty pursuant to Article 5(1) under the Convention. Behrami and Saramati involved two joined cases, the latter discussing a man that French troops detained in Kosovo. The ECtHR held that it lacked the competence under the Convention to examine states’ contributions in Kosovo in fulfillment of their duties pursuant to SCR 1244 and a majority of the court thus held the applications to it inadmissible.
Lord Bingham of Cornhill enunciated the issues before the Court as being: 1) whether the detention of Al-Jedda was attributable to the UN and outside the scope of the ECtHR; 2) whether the UN SCRs and Articles 25 and 103 of UN Charter qualified Al-Jedda’s Convention rights so as not to violate Article 5(1); and 3) whether English common law or Iraqi law applied to Al-Jedda’s detention. He held that the first issue should be decided in favor of the appellant and against the Secretary of State. He did not find Behrami controlling and opined that the situation in Kosovo was very different than that in Iraq because the Multi National Force (MNF) in Iraq was not established at the behest of UN, and was not a subsidiary part of UN, unlike the UN Mission in Kosovo (UNMIK). On the second issue Lord Craighead suggests a balancing approach which would permit the UK to lawfully detain individuals pursuant to the authority in UN SCR 1546 where “imperative reasons of security exist,” but also to ensure that detainees’ Article 5 rights are infringed to the least extent possible. With respect to the third issue, he held that Al-Jedda's claim should be governed by the law of Iraq, as that is where the tort against him, the detention, occurred.
By contrast to Lord Bingham, Lord Rodger of Earlsferry held that Al-Jedda’s detention was attributable to the UN rather than the UK. He compared UN SCR 1244 which had governed the troops in Kosovso, with UN SCR 1546 which governed the MNF in Iraq. He reasoned that SCR 1546 explicitly authorized the MNF to intern people; and actually provided the Security Council more, not less, control over the MFN than did SCR 1244. He would therefore not permit Mr. Al-Jedda to bring suit in English courts under the HRA and would dismiss his appeal.
Baroness Hale of Richmond, Lord Carswell, and Lord Brown of Eaton-under-Heywood, generally concurred with Lord Bingham and would dismiss the appeal. Baroness Hale cited the recent House of Lords decision R (Al-Skeini) v. Secretary of State for Defence (2007), see 46 ILM 778 (2007) holding that Convention obligations are owed to those whom the UK detains in Iraq. Further, she concurred with Lord Brown of Eaton-under-Heywood that the role of the UN in Kosovo and Iraq was “completely different,” and in the latter it was concerned with the protection of human rights and compliance with humanitarian law, rather than restoring peace and security. She emphasized that individuals charged with the most serious crimes are the most in need of protection of the rule of law. Lord Carswell opined that while the United Kingdom may lawfully, for critical security reasons, intern individuals pursuant to SCR 1546, it must do so in such a way to minimize infringing upon detainee’s rights pursuant to Article 5(1) of the Convention.
International Centre for the Settlement of Investment Disputes: Grand River Enterprises et al v. United States (November 28, 2007)
ICSID rejected the challenge of the United States to an arbitrator serving under the UNCITRAL rules in a NAFTA proceeding.
Professor James Anaya had been serving as an arbitrator in a NAFTA proceeding while simultaneously helping parties with procedures before the Inter-American Commission on Human Rights and the United Nations Commission on the Elimination of Racial Discrimination (CERD) which were in the processing of examining U.S. compliance with international human rights norms.
On October 23, 2007, ICSID determined that it would be incompatible for Professor Anaya to serve in both capacities simultaneously. It thus asked Professor Anaya to inform it whether he would continue to help parties in the non-NAFTA proceedings. Professor Anaya informed ICSID that he would no longer participate in the proceedings before the Inter-American Commission on Human Rights, and that he ceased advocacy before the CERD, though he did provide orientation to clinical law students about the CERD in relation to their work on behalf of the Western Shoshone, and other indigenous peoples. ICSID applied Article 10(1) of the UNCITRAL arbitration rules providing for the challenge of an arbitrator when justifiable doubts arise as to his impartiality or independence. It distinguished between advocating on behalf of a position versus mentoring and instruction of students and found that Professor Anaya is now serving in the latter capacity which should not serve as a detriment to his continued service with the NAFTA proceeding.
Ecuador's Notification under Article 25(4) of the ICSID Convention
Click here for document. (Approximately one page).
On 23 November 2007, the Republic of Ecuador notified the International Centre for Settlement of Investment Disputes (ICSID or the Centre) that it “will not consent to submit to the jurisdiction [of ICSID] the disputes that arise in matters concerning the treatment of an investment resulting from economic activities related to the exploitation of natural resources, such as oil, gas, minerals or others.” The notice is significant because Ecuador is currently facing a number of ICSID arbitrations in its oil and mining sector.
The Republic of Ecuador acted pursuant to Article 25 (4) of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention), which allows a contracting state to notify ICSID of a class or classes of disputes it would or would not consider submitting to its jurisdiction. The notification can be made at the time of ratification, acceptance or approval of the ICSID Convention or at any time thereafter. Notably, only a few states have made notifications under Art. 25(4). See e.g., China, Guatemala, Jamaica, Saudi Arabia, Jamaica, Turkey, Papua New Guinea, Guyana, Israel.
The notice comes after Ecuador’s President Rafael Correa decreed an increase in the government’s share of the companies’ windfall oil profits from 50 percent to 99 percent.
The affected foreign companies will be forced to renegotiate their contracts and accept (i) to change the nature of their agreements, from production-sharing contracts to service contracts whereby companies will extract oil on behalf of the government for a fee and (ii) to solve their contractual disputes in domestic courts under Ecuadorian law instead of by international arbitration. The move also follows Bolivia's withdrawal from ICSID and Ecuador's announcement of its intention to terminate its bilateral investment treaty ("BIT") with the United States.
Since Ecuador became a Contracting State to ICSID on 14 February 1986, it has been a respondent in three concluded ICSID arbitrations and is currently involved in 6 proceedings. All of the cases except one have involved energy resources (i.e. oil, gas, and electricity). Moreover, at least 3 investors reportedly intend to challenge the new decree via arbitration.
Ecuador has offered its consent to ICSID in two ways: (i) by incorporating ICSID arbitration clauses in its petroleum contracts or (ii) by signing at least 23 bilateral investment treaties (BITs). Most of these BITs contain broad consent clauses to ICSID arbitration where oil and mining disputes have not been excluded.
Notably Ecuador’s Art. 25 notification provides that “every instrument containing the Republic of Ecuador’s prior consent to submit this class of disputes to the Centre’s jurisdiction, that has not been perfected by the express and explicit consent of the other Party prior to the date of submission of this notice, is hereby withdrawn by the Republic of Ecuador with immediate effect as of this date." This wording raises the question whether Ecuador can withdraw its prior consent to ICSID jurisdiction, and hence, whether investors will be precluded to avail themselves of ICSID arbitration for their existing and future oil and mining related disputes because of Ecuador’s notice excluding these sectors.
ICSID’s case law and history, and expert commentary suggest that the disputes should not be affected because of the following reasons. First, according to at least one commentator, notifications under Art. 25(4) “do not have any direct legal consequences” (Christoph Schreuer, THE ICSID CONVENTION: A COMMENTARY at 342). They do not bind the Contracting State making them (See e.g., Guyana and Israel notified the Centre of certain classes of disputes but withdrew them later) and do not amount to a reservation of the Convention. (See History, Vol. II, at 59). Instead, they have informational purposes only.
Second, the notifications do not constitute the consent required by Art. 25(1) (See SPP v. Egypt) nor do they preclude consent. See Christoph Schreuer, THE ICSID CONVENTION: A COMMENTARY at 343 (noting that several countries have concluded BIT’s that contradict the notifications previously made).
Finally, the notifications only apply prospectively and may not be used to withdraw or limit a consent previously given. This interpretation is in harmony with ICSID Art. 25 (1) providing that “when the parties have given their consent, no party may withdraw its consent unilaterally,” and is also consistent with ICSID’s case law. See Alcoa Minerals of Jamaica, Kaiser Bauxite v. Jamaica, Reynolds Jamaica Ltd and Reynolds Metals Company v. Jamaica.
In any event, if the ICSID door may be closed to investors, Ecuador’s notice may not preclude future arbitrations in other fora because many of its BITs contain agreements to arbitrate under other arbitration rules, such as the UNCITRAL Rules.
President George W. Bush signed the Genocide Accountability Act (Act) into law December 21, 2007. The Act amends Title 18 section 1091 of the U.S. Code by deleting the current subsection (d) and adding a new subsection. The new language in the Act would permit the prosecution of genocide if the alleged offender is an alien who was lawfully admitted for permanent residence in the U.S.; or a stateless person whose habitual residence is in the U.S., or, after the conduct for the offense transpires, the alleged offender is brought into, or found in the U.S., even if the conduct occurred outside of the U.S.
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