December 28, 1998 - January
8, 1999 Developments in international law, prepared by the Attorney-Editors of International Legal Materials The American Society of International Law
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Treaties
and Other International Agreements
Council of Europe, Convention (No.
172) on the Protection of the Environment Through Criminal
Law, ETS No. 172 (Nov. 4, 1998)
The Convention reflects the concern of the Member States
of the Council of Europe that "the uncontrolled use
of technology and the excessive exploitation of natural
resources entail serious environmental hazards" and
that Parties should take "effective measures to ensure
that the perpetrators of [environmental hazards having
serious consequences] do not escape prosecution and
punishment." pmbl. Each Party is obligated to criminalize
certain intentional or negligent forms of environmental
offenses, although the latter may be limited by declaration
to acts of gross negligence. Arts. 2-3. For example,
the intentional discharge of ionizing radiation into
the air, soil, or water which causes death or serious
injury -- or creates a "significant risk" of death or
serious injury, is to be prohibited, as is the "unlawful
disposal, treatment, storage, transport, export or import
hazardous waste" which causes or is likely to cause
death or serious injury or "substantial damage to the
quality of air, soil, water, animals, or plants", inter
alia. Art. 2. Aiding and abetting the intentional
commission of an environmental offense is to be criminalized
under domestic law. Id.
Under the Convention, a Party has jurisdiction if the
offense is either committed on its territory, on one
of its ships or airplanes, or by one of its nationals
if the offense is punishable under criminal law where
it was committed or if the place where it was committed
does not fall under any territorial jurisdiction. Art.
5(1). Moreover, a Party shall have jurisdiction in cases
where an alleged offender is present in its territory
and it does not extradite the person to another Party
after a request for extradition. Art. 5(2).
Sanctions for offenders shall include imprisonment
and fines, but may include reinstatement of the environment.
Art. 6. Each Party must also adopt measures permitting
confiscation of property and proceeds. Art. 7.
If an offense has been committed on behalf of a corporation,
liability shall extend to both the entity and natural
persons. Art. 9.
Parties may declare that they grant environmental NGOs
the right to participate in criminal proceedings concerning
offenses under the Convention. Art. 11. The Convention
will come into force 30 days after three States which
participated in its drafting express their consent to
be bound. Art. 13. AE http://www.coe.fr/eng/legaltxt/172e.htm
U.K.: Government of Wales Act 1998
(July 31, 1998)
The Act establishes the National Assembly for Wales
(Cynulliad Cenedlaethol Cymru) as well as other
Welsh public offices, and reforms certain Welsh public
bodies while abolishing others.
Parts I and II of the Act establish the National Assembly
for Wales (the Assembly) and sets forth its functions.
The Assembly is a corporate body which consists of one
member for each Assembly constituency as well as members
for each Assembly electoral region. It exercises
its functions on behalf of the Crown. para. 1.
Elections for the Assembly are to be held every four
years. para. 3. Each eligible voter may cast two
votes: a constituency vote for a candidate to be the
Assembly member to the Assembly constituency, and an
electoral region vote for either a registered political
party which has submitted a list of candidates for the
Assembly electoral region or an individual who is a
candidate for that Assembly electoral region. para.
4. The balance of Part I concerns technical matters
regarding the operation of the National Assembly, including
voting qualifications; disqualifications of Assembly
members; salaries, allowances, and pensions of Assembly
members; oaths of allegiance, inter alia.
Part II sets forth the functions of the Assembly and
devolution of authority. By Order in Council,
Her Majesty may transfer general ministerial functions
to the Assembly, exercise concurrent competence, or
require that Crown Ministers consult or obtain agreement
of the Assembly on matters in relation to Wales. para.
22. In this case all properties, rights and liabilities
of the Minister of the Crown are also transferred to
the Assembly, unless the Order in Council provides otherwise.
paras. 23-24. The transfer of specified properties,
rights, or liabilities is possible by order of the Secretary
of State. para. 25. Other functions the Assembly
may exercise include the Welsh health authority and
other Welsh public bodies. paras. 27-28.
Part III deals with the procedure of the Assembly.
The procedure is to be regulated by the standing orders
of the Assembly. para. 46. The Assembly is to
conduct its business on the basis of equality of both
the English and Welsh languages, "so far as is both
appropriate in the circumstances and reasonably practicable",
and standing orders are to be made in both English and
Welsh. para. 47. The Act outlines what types of
committees and other offices are to be established by
the Assembly, including regional committees. paras.
51-61. The Act also contains details on the enactment
of subordinate legislation and on transparency in National
Assembly proceedings. paras. 64-68, 70. The Act
contains requirements regarding conflicts of interest
for Assembly members, and the Assembly may require persons
belonging to public bodies to produce documents and
other evidence relating to financial dealings and possible
conflicts of interest. paras. 74-75.
Part IV deals with financial matters, including payments
to the Assembly, Assembly expenditures, and financial
accountability, inter alia. paras. 80-105.
Part V concerns other Assembly matters, for example
in connection with European Community law, human rights,
and international obligations; investigation of complaints
of maladministration by the Welsh Ombudsman (Ombwdsmon
Gweinyddiaeth Cymru); Welsh public records; and
the promotion of sustainable development; while Part
VI deals with the reform of certain Welsh public bodies.
AE http://www.hmso.gov.uk/acts/acts1998/19980038.htm
U.S. Third Circuit: United States
v. Kole, No. 96-5457 (Dec. 29, 1998)
Kole plead guilty to conspiracy to import heroin into
the U.S. The district court granted the prosecution's
requested enhancement of Ms. Kole's sentence pursuant
to 21 U.S.C. sects. 851 and 960 based on a prior felony
drug conviction in the Philippines. Section 851(c)(2)
bars consideration of any prior conviction that "was
obtained in violation of the Constitution of the United
States...." On appeal, Ms. Kole claimed that this
enhancement was improper because she was denied effective
assistance of counsel in the Philippines, and because
the Philippine legal system does not recognize the right
to a jury trial.
The Third Circuit affirmed the district court, holding
that the Congressional intent behind Section 851 was
to ensure "fundamental fairness by excluding any conviction
that was obtained in a manner inconsistent with concepts
of fundamental fairness and liberty" guaranteed under
the Due Process clause of the Fifth Amendment, and that
although jury trials are "fundamental" to the system
of justice guaranteed under the Constitution, they are
"relatively unique to that system", and that "other
societies may well be able to fashion a system with
no juries that is fundamentally fair to the accused,
thus comporting with our system of justice." The
Third Circuit considered the protections afforded criminal
defendants in the Philippines and noted that the Philippine
judges opinion in Kole's case "reflects...judicial independence
and respect for the rights of the accused," and held
that despite the lack of a jury, Kole was afforded a
fundamentally fair trial. "Clearly, the legal
system of the Philippines seeks to guard the individual
against official tyranny and protect individual liberty.
Congress could not have intended [sect.] 851 to be used
to exclude criminal convictions under such a system
merely because the sovereign provides a method of protecting
fundamental liberties that does not include the right
to trial by jury."
The Third Circuit also dismissed Ms. Kole's argument
of ineffective assistance of counsel. Kole alleged
that the joint representation of her and her spouse
prevented the defense attorney from distinguishing between
her involvement and that of her husband. The court
disagreed, noting that the assertion was "more a creature
of hindsight than of record." AE http://laws.findlaw.com/3rd/982030P.html
Declaration of the Bosnia Peace
Implementation Council with Annex (Dec. 16, 1998)
The Peace Implementation Council met in Madrid to review
progress in implementing the Peace Agreement in Bosnia
and Herzegovina. In its Declaration, the Council
noted with satisfaction that basic institutions of the
state, both political and economic, have been established
and that key laws have been enacted. para. 2.
The Council recognized the continued need for an international
civil and military presence in the region to help build
peace, but also noted that further reforms have to be
implemented "to prepare for life without total reliance
on foreign aid." paras. 5-6. Additionally, the
Council urged all authorities in Bosnia and Herzegovina
to cooperate fully with the International Criminal Tribunal
for Yugoslavia. para. 7.
The Council stated its determination to "continue to
encourage the return of refugees and displaced persons"
to their homes of origin and noted the need to create
an environment where these returns are sustainable.
paras. 10-12.
The Council focused on four areas where it sees the
need to strengthen the inner core of Bosnia and Herzegovina.
First, the rule of law has to be strengthened by the
creation of an independent, impartial and multi-ethnic
judiciary; increased protection against organized crime;
and the establishment of multi-ethnic police forces;
as well as establishing state-level judicial institutions,
reinforcing institutions for the protection of human
rights, strengthening the Constitutional Court, increasing
public awareness about legal assistance and citizen's
rights, and developing a mechanism for the enforcement
of legal rulings. para. 12.1 Second, common institutions
including the civil service and law reform efforts must
be enhanced for efficiency. para. 12.2. Third,
a self-sustaining market economy must be created through
the pursuit of stability-oriented macroeconomic policies,
for example, under the present stand-by agreement with
the IMF and the privatization of state-owned industries
and banks. para. 12.3 Fourth, the Council noted
that democratization must be reinforced. In this
respect, the Council calls for a new electoral law which
promotes a democratic and multi-ethnic political process,
increased transparency in relations between Entities,
and further reforms of the media. para. 12.4.
The Council also identified goals for strengthening
Bosnia and Herzegovina externally through cooperation
between the armed forces and Entity and State governments
to maintain military stability, nurturing stronger joint
military institutions, and removing the military from
inappropriate involvement in the political process.
The Council further called for the establishment of
a common security policy and a Bosnia and Herzegovina
Border Service at the state level to control the country's
frontiers. para. 13. Finally, the Council called
for the strengthening of ties between Bosnia and Herzegovina
and Europe, and reaffirmed its support for the High
Representative and his role in interpreting civilian
aspects of the Peace Agreement. paras. 14-15.
The Peace Implementation Agenda is attached as an annex
to this Madrid Declaration. It details ten operational
areas which the peace implementation should emphasize:
refugee return, rule of law, institutions, self-sustaining
economy, democratization, Bosnia and Herzegovina within
Europe, military and security issues, Brcko, succession
issues, and international support for civic implementation.
EF/AE
archived at http://www.usia.gov/products/washfile.htm
Statement by the President of the
Security Council, U.N. Doc. S/PRST/1998/37 (Dec. 23,
1998) (on Angola)
The President of the Security Council, on behalf of
the Security Council, stated concern over the deterioration
of conditions in Angola and identified Jonas Savimbi
and the leadership of the Uniao Nacional para a Indepencia
Total de Angola (UNITA) as having the "primary responsibility
for the failure to achieve peace in Angola". The
Security Council demands that UNITA unconditionally
comply with its obligations under the Acordos de
Paz, the Lukasa Protocol, and relevant Security
Council Resolutions, and called upon both the Government
of Angola and UNITA to cooperate with the Special Representative
of the Secretary General to revive the peace process.
In particular, the Security Council expressed its concern
over the worsening humanitarian situation in Angola
and emphasized the responsibility of the Government
of Angola and UNITA to facilitate humanitarian assistance
efforts and guarantee the safety and freedom of movement
of humanitarian workers. The Security Council
further expressed its "grave concern" over reports of
downed aircraft over UNITA-controlled areas and demands
a full investigation, "including the fate of the crews
and passengers." DL http://www.un.org/plweb-cgi/htsince.cgi?dbname=scstats&foryear=1998
Security Council Resolution 1219
(Dec. 31, 1998) (on Angola)
This Security Council Resolution refers to the crash
of United Nations flight 806 and the disappearance of
other aircraft within Angola reportedly over territory
controlled by UNITA (Uniao Nacional para a Indepencia
Total de Angola). The Security Council, concerned
with the fate of the passengers and crew, "deplores
the incomprehensible lack of cooperation in clarifying
the circumstances of this tragedy and in permitting
the prompt dispatch of a United Nations search and rescue
mission." para. 1. The Security Council demands
that Jonas Savimbi, the leader of UNITA, guarantee the
security and access necessary to search for possible
survivors as well as his assistance in the search.
In addition, the Government of Angola is called upon
to fulfill its commitment to cooperate "as appropriate."
para. 2. AE http://www.un.org/Docs/sc.htm
International Law In Brief - Copyright 2000 - The
American Society of International Law Editors: Elizabeth J. Fabrizio, David A.
Levy
Interns: Alice Epler, Teresa Taylor
To comment on this publication, send an e.mail message
to David A. Levy, Interim Editor at david.levy@his.com
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