Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law January 25, 2008
The European Parliament (EP) passed a resolution January 16, 2008 condemning the use of rape as a weapon of war and recalling that the International Criminal Court has jurisdiction over such acts. Articles 7 and 8 of the Rome Statute defines rape, sexual slavery, enforced prostitution, forced pregnancy, and forced sterilization as constituting crimes against humanity and war crimes. In the preambular language of the resolution, the EP notes that in the eastern part of the Democratic Republic of Congo (DRC) women are being systematically attacked; there were 32,353 rapes reported during 2007 which the resolution notes is most likely a “fraction of the total sum.” The resolution calls upon the EU and the United Nations (UN) to recognize rape, forced impregnation, sexual slavery and other forms of sexual violence as crimes against humanity, serious war crimes and a form of torture, regardless of whether they are carried out in a systematic way. It calls upon the EU to provide “substantial funds” to offer medical, legal, and social support for victims of sexual abuse. It further calls on all UN member states that send personnel to the U.N. Mission in the Democratic Republic of Congo (MONUC) to pursue claims of sexual abuse and exploitation, particularly those with respect to minors, and to try those who have committed sexual abuse as soon as possible.
Extraordinary Chambers in the Courts of Cambodia (ECCC) Pre Trial Chamber Decision on Appeal against Provisional Detention Order of Kaing Guek Eav (December 3, 2007)
Click here for document. (Approximately 20 pages).
The Pre Trial Chamber rejected the arguments of the counsel for Kaing Guek Eav “Duch” the former leader of S-21 prison during the reign of the Khmer Rouge in Cambodia, opposing his provisional detention, and held the grounds for his detention are still justified.
Members of the Khmer Rouge tortured their enemies at S-21 prison before dispatching them 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.
On August 23, 2007, the counsel for Kaing Guek Eav appealed the order of provisional detention that the court issued against him July 31, 2007 see 46 I.L.M. 913 (2007). They made a number of arguments to support their appeal.
First, they claimed that Eav’s more than 8 years of detention violated his rights under Cambodian law as well as Article 9 (freedom from arbitrary arrest and detention) of the International Covenant on Civil and Political Rights (ICCPR). They claimed that this violation of the ICCPR should preclude the co-investigating judges from ordering provisional detention of Eav as they did pursuant to court rule 63(3). The Pre Trial Chamber held however, that the ECCC could only violate Article 9 if the entity responsible for the violation was connected to, or acting on behalf of the ECCC. Here however, the Military Court that detained Eav had no connection with the ECCC; and in fact detained Eav before the ECCC even came into existence.
Counsel for Eav also objected to the discretion that the co-investigating judges exercised by ordering provisional detention pursuant to Article 63(3) of the Court’s rules. After examining the subsections of rule 63(3) the Pre Trial Chamber refuted this claim. It noted that pursuant to 63(3)(a) there was a well-founded reason to believe that Eav committed the crimes with which he was charged, particularly as Eav admitted to leading the S-21 prison. Pursuant to 63(3)(b)(i)(ii), there was a genuine concern that if Eav remained at large in the civilian population, he might exert pressure on vulnerable remaining witnesses or victims not to testify and/or destroy evidence against him. Pursuant to rule 63(3)(b)(iii), the provisional detention was necessary to ensure Eav’s presence at the proceedings, because he disappeared from 1979 until 1999 and used various aliases to attempt to conceal his identity. He was appropriately provisionally detained pursuant to rule 63(3)((b)(iv) (security of charged person) because were he to be released, his life might be in jeopardy either from other Khmer Rouge officials against whom he testified, or from victims and their families who might want to avenge his crimes. Pursuant to rule 63(3)(b)(v), the Pre Trial Chamber found Eav’s provisional detention necessary to preserve public order given the large numbers of people in Cambodian society estimated to have lost family members to the Khmer Rouge, and to be suffering from post-traumatic stress disorder from the effects of the Khmer Rouge regime.
International Centre for the Settlement of Investment Disputes (ICSID): Azurix Corp. v. The Argentine Republic Decision on the Argentine Republic’s Request for a Continued Stay of Enforcement of the Award (December 28, 2007)
Click here for document. (Approximately 20 pages).
Members of the ad hoc Committee: Dr. Gavan Griffith Q.C., President, Judge Bola Ajibola, Mr. Michael Hwang S.C.
The ad hoc Committee (Committee) unanimously decided that the stay on the enforcement of the arbitral award against Argentina should remain in place pending the determination of Argentina’s application for annulment. The Committee refused to order a security during the remainder of the stay.
Argentina requested an annulment on November 13, 2006 of the tribunal’s July 14, 2006 $165 million award against it pursuant to Article 52 of the ICSID Convention, and a stay of enforcement of the award pursuant to rule 54(1) of the ICSID Arbitration Rules until its application for annulment was decided. Azurix, by contrast, opposed the stay and sought provision of security if the stay were continued. Azurix contended that a number of commentators as well as the majority of ICSID ad hoc committees opine that the posting of a security when a provisional stay is continued should be an automatic right. Azurix cited Argentina’s public announcements that it did not recognize the finding and determinative nature of the ad hoc committee decision on annulment in CMS v. Argentina, September 25, 2007 as support for the Committee to order security.
The ad hoc Committee noted that the posting of a security is within its discretion to order but is not mandatory. To require the posting of a security might undermine the confidence of all nations in ICSID by implying that there was discrimination between states because security is usually only sought against developing nations. The Committee further noted that the general approach is against strict adherence to previous Committee determinations as if they were common law precedent. In rejecting Azurix’s claims, the Committee reasoned that Argentina has not denounced the ICSID Convention and is thus still bound to enforce ICSID awards as final judgments of domestic courts. The Committee thus found the principal “security” for Azurix the very obligations to which Argentina has agreed pursuant to the ICSID Convention.
European Court of Human Rights: E.B. v. France (January 22, 2008)
Click here for document. (Approximately 35 pages).
The European Court of Human Rights (Court) Grand Chamber held by a vote of ten to seven that there had been a violation of Article 8 (freedom of interference with private and family life); and Article 14 (freedom from discrimination) of the European Convention (Convention) when France denied E.B., a French national nursery school teacher and lesbian, the authorization to adopt a child. By a vote of eleven to six, the Court ordered France to pay E.B. 10,000 Euros in non-pecuniary damage and 14,528 Euros for costs and expenses.
Ms. E.B. initially applied for authorization to adopt a child in 1998. She and “R” had been in a long-term relationship since 1990. Numerous levels of the French agencies charged with examining authorizations for adoptions denied E.B.’s authorization. They cited, among other reasons, the lack of a paternal referent or male role model for an adoptive child, and questioned R’s commitment to the adoption. E.B. then appealed the denial to the Besancon Administrative Court, which in February 2000 reversed the agencies’ decisions and held in E.B.’s favor, noting that E.B. is a nursery school teacher and she could provide an adopted child with a suitable home. The departement of the Jura appealed and both the Nancy Administrative Court of Appeal and the Conseil d’Etat held against E.B. and dismissed her appeal. E.B. then applied to the European Court of Human Rights in December 2002.
E.B. contended that both Articles 8 and 14 of the Convention applied to her case. While Article 14 prohibits discrimination on a number of bases including sex, race, and color, it does not specifically mention sexual orientation. Article 8 precludes unnecessary interference with family life and the right to respect for private and family life. E.B. claimed that the sexual orientation of an individual is part of her “private life” and the application for authorization for adoption fell within “family life” pursuant to Article 8. France, by contrast, asserted that E.B.’s application to the Court was inadmissible as beyond the scope of both Articles 8 and 14. France argued that the denial of E.B.’s authorization for adoption was not based upon her sexual orientation (as was the case in Fretté v. France, ECtHR 002-1) but rather because of lack of a paternal referent and R’s ambivalence to an adoption.
The Court held E.B.’s application to it admissible. While neither Article 8 of the Convention; nor other international instruments such as the 1993 Hague Convention on the Protection of Children and Cooperation in Respect of International Adoption, or the Convention on the Rights of the Child provide for a right to adopt a child, the Court has held that “private life” under Article 8 encompasses the right to establish and develop relationships with other humans and includes sexual orientation. It held that the prohibition of discrimination extends beyond those rights that the Convention explicitly enunciates and applies to additional rights falling within the general penumbra of Convention articles.
The Court next examined the two bases upon which the French administrative agencies had rejected E.B.’s application for authorization for adoption. The Court held that France’s requirement of a male referent could have served as a pretext for discriminating against E.B. because of her homosexuality, but concurred with the agencies’ concern over R’s ambivalence regarding the adoption. It held however, that the possible discrimination in the former tainted both reasons. Further, it noted that E.B.’s sexual orientation featured so prominently in the reasoning of the French authorities that she was subjected to impermissible differential treatment that did not pass the test in Article 14 of pursuing a “legitimate aim” or being reasonably proportional to the means employed and aim sought to be realized.
Economic Partnership Agreement Between the CARIFORUM States and the European Community and its Member States (January 1, 2008)
Click here for document. (Approximately 399 pages).
The CARIFORUM states and the Dominican Republic became the first and so far the only of the six sub-groupings of the African, Caribbean and Pacific (ACP) countries to enter into a full Economic Partnership Agreement (EPA) with the member states of the European Community at the end of 2007. CARIFORUM is comprised of the 15 Caribbean countries Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, Saint Lucia, Saint Vincent and the Grenadiers, Saint Christopher and Nevis, Surinam, and Trinidad and Tobago.
EPAs establish free trade agreements between two regions prompting the free movement of goods and services among the various countries through the removal, or reduction of tariffs and non-tariff barriers. This particular agreement will allow for all exports from the Caribbean, except for sugar and rice, to enter the European market duty- and quota-free and thus further improve the present level of preferential market access for the CARIFORUM states. In addition, European goods and service providers that enter the Caribbean markets will be able to do so under reduced tariffs and subject to less regulatory barriers.
Part I of the EPA contains specific areas of action for the implementation of the trade partnership, such as the promotion of sustainable development and regional integration of the CARIFORUM states, the provision of technical assistance for capacity and institution building, and the diversification of the CARIFORUM economies. Part II focuses on: custom duties, trade defense instruments, non-tariff measures, customs and trade facilitation, agriculture and fisheries, technical barriers to trade, sanitary and phytosanitary measures, investment, trade in services and e-commerce, and current payment and capital movement. The trade related chapters focus on competition, the protection and enforcement of intellectual property rights, public procurement, the environment, private investment, and the development and adherence to international labor standards.
In the area of goods liberalization, the CARIFORUM states agreed to liberalize 61.1% of imports in value over 10 years, 82.7% over 15 years and 86.9% over 25 years from the European Community. The agreement did not encompass agricultural and processed agricultural products, furniture, some chemicals and other industrial products. In regards to market access, the agreement focuses on services, investment and e-commerce and is compatible with GATS article V. In it, the EC agrees to significant commitments concerning the free movement of service providers (i.e. sellers of goods, graduate trainees, and investors) and provides entertainers, artists, and other short term business visitors from the CARIFORUM states with easier movement.
As another new development, the Agreement also includes noteworthy regulatory commitments in a number of sectors, such as tourism, that the EC agreed to in order to aid the CARIFORUM states in developing a more competitive service sector. Finally, the EPA also contains stipulations to prevent the lowering of environmental and social standards, especially in the cultural diversity laws and regulations which are in accordance with the UNESCO Convention on cultural diversity, in addition to provisions aimed to protect against corruption of investors.
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