March 22 - April 2, 1999 Developments in international law, prepared by the Attorney-Editors of International Legal Materials The American Society of International Law
Summit of Central African Heads
of State on the Conservation and Sustainable Management
of Tropical Forests: The Yaounde Declaration (Mar. 17,
1999)
The Heads of State from Cameroon, Republic of the Congo,
Gabon, Equatorial Guinea, Central African Republic,
and Chad signed a declaration on matters relating to
the conservation and sustainable management of forest
ecosystems. The document calls upon the heads
of state to move faster on setting up protected transborder
zones, and to adopt harmonized forestry policies.
The parties agreed, inter alia, to work to eliminate
large-scale poaching and other non-sustainable exploitation
of forest resources, to promote forums to exchange information
and experience on sustainable forest management, and
to create networks to connect forest research and development
institutions in the region. Finally, the parties
agreed to revive the Organization for Wildlife Conservation
in Central Africa to aid in the implementation of these
programs. EF http://www.panda.org/forestsummit/declaration.html
U.K. House of Lords: Regina v.
Bartle and the Commissioner of Police for the Metropolis
and Others, Ex Parte Pinochet (Mar. 24, 1999)
A seven-member panel of the House of Lords considered
two questions in the case surrounding Spain's request
for the extradition of Senator Augusto Pinochet; first,
whether the extradition request included any charges
that amount to extradition crimes under British law;
and, second, if there were any extradition crimes charged,
whether Pinochet would have immunity for those crimes.
The principle of double criminality with respect to
extradition requires that "the conduct complained of
must constitute a crime under the law both of [the requesting
state] and of the United Kingdom." An examination
of the legislative history of the Extradition Act 1989
and its predecessor led Lord Browne-Wilkinson to hold
that crimes were extradition crimes only if the acts
were criminal under UK law at the time the acts were
committed. Section 134 of the Criminal Justice
Act 1988 (in effect as of September 29, 1988) implemented
the provisions of the Convention against Torture and
other Cruel, Inhuman or Degrading Treatment or Punishment
(the Torture Convention) and made acts of torture committed
by a "public official or other person acting in an official
capacity" unlawful.
Lord Hope of Craighead examined the offenses with which
Pinochet was charged and found that most of the charges
listed in the request concerned events that happened
before the Criminal Justice Act was in effect.
Of the 32 draft charges, Lord Hope held that only those
acts committed on or after September 29, 1988 could
be extradition charges. In addition, charge 3
(conspiracy to take hostages) could not be an extradition
crime because it did not satisfy the conditions of the
UK Taking of Hostages Act. After this analysis,
the only charges remaining to be considered on the immunity
question were the parts of charges 2 and 4 on conspiracy
to torture during the period beginning September 29,
1988, and charge 30 (torture committed on June 24, 1989),
as well as charge 9 (conspiracy to murder in Spain)
and the parts of charge 4 dealing with conspiracies
in Spain to murder in Spain and conspiracy in Spain
to commit acts of torture in Spain. Lord Hope
of Craighead noted, however, that:
"it is important not to lose sight of the fact that
the case which is being made against Senator Pinochet
by the Spanish judicial authorities is that each act
of torture has to be seen in the context of a conspiracy
to commit torture. As a whole, the picture which
is presented is of a conspiracy to commit widespread
and systemic torture and murder in order to obtain control
of the government and, having done so, to maintain control
of government by those means for as long as might be
necessary."
Lord Browne-Wilkinson examined the law of torture and
its development following World War II and the Nuremberg
Tribunal, as it became an international crime.
Citing Prosecutor v. Furundzija, [ICTY No. 17-95-17/1-T
(1988), 38 I.L.M. 317 (1999), abstract at ILIB, January
1999, at 2], Browne-Wilkinson recognized the "jus
cogens nature of the international crime of torture."
The Torture Convention created an international regime
in which "continued immunity for ex-heads of state is
inconsistent with its provisions." No state was
to provide a haven for those who had committed torture.
On the question of immunity, the Panel found that while
there was no express waivers of state immunity in the
Torture Convention, the international law of torture,
particularly through the Torture Convention, had developed
to the point that a universal jurisdiction was in place.
Because the Convention applies to state officials, no
claim of immunity can result for a head of state.
Furthermore, Lord Hope of Craighead found that Pinochet
lost immunity ratione materiae as of the dates
that the UK and Chile ratified the Torture Convention
because "it was no longer open to any state which was
a signatory to the Convention to invoke the immunity
ratione materiae in the event of allegations
of systemic or widespread torture committed after that
date being made in the courts against its officials
or any other person acting in an official capacity."
Therefore, the Panel held that while Pinochet did have
immunity ratione materiae for the acts in charge
9 and parts of charge 4 dealing with conspiracy in Spain
to murder and to torture in Spain, he had no immunity
for the extradition crimes listed in charge 30, and
those parts of charges 2 and 4 on conspiracy to torture
during the period beginning September 29, 1988.
The Panel noted that the change in the charges would
require the UK Secretary of State to reconsider his
decision to proceed with the extradition.
Lord Goff of Chieveley agreed with the analysis of
the Panel as to the determination of which charges survived
the application of the double criminality principle,
but disagreed with the finding on immunity. Lord
Goff would have found that Pinochet did have immunity
ratione materiae as a former head of state because
the Torture Convention lacked an express waiver of immunity
and because the application of the double criminality
principle eliminated the other charges that would have
led to a finding of systemic or widespread torture.
EF http://www.parliament.the-stationery-office.co.uk/pa/ld199697/ldjudgmt/ldjudgmt.htm
U.S. District Court, S.D. Florida:
Alejandre v. Republic of Cuba, No. 96-10126-CIV (S.D.
Fla. Mar. 18, 1999)
Following the decision of the District Court which
awarded plaintiffs $187,627,911 in compensatory and
punitive damages arising from the downing of two Brothers
to the Rescue airplanes by the Cuban airforce, the plaintiffs
sought to enforce the award though garnishment of amounts
payable to the Cuban long distance carrier by AT&T
et al for long distance telephone charges between
the U.S. and Cuba.
In 1998, Congress amended the Foreign Sovereign Immunities
Act (FSIA) through section 117 of the Omnibus Appropriations
Bill. Section 117, which includes a presidential waiver
clause, provides for the attachment or execution of
property, including blocked assets, following a judicial
determination of liability in which a state has lost
its immunity pursuant to the sect. 1605(a)(7) of the
FSIA as amended by the Antiterrorism and Effective Death
Penalty Act (AEDPA). President Clinton signed
the appropriations legislation but waived section 117
in its entirety, in the interest of national security.
The District Court upheld plaintiff's contention that
the presidential waiver was not authorized by the legislation,
stated that section 117 and the AEDPA were enacted "to
provide an executable judicial remedy to the nationals
of the United States attacked by a terrorist foreign
state. Had Congress intended to give the President the
authority single-handedly to impede the achievement
of this goal, it would have done so more clearly...."
The court rejected arguments that the President had
inherent constitutional authority absent a waiver provision
on the basis of presidential power to receive "Ambassadors
and other public Ministers" noting that there was no
diplomatic property at issue, and similarly declined
to consider the potential effect of the decision on
the US treaty obligations pursuant to the Vienna Conventions
on Diplomatic and Consular Relations, noting that not
only was no diplomatic property at issue, but that Congress
"expressly decided to put diplomatic property at risk
of attachment or execution by passing section 117....
By opening the door to the United States' potential
violation of its treaty obligations, Congress intentionally
sent a the [sic] message to foreign terrorist states
that U.S. victims of violations of international law
will be compensated, even if it must be from diplomatic
property." The court further held that the Cuban
telecom company ETESCA was an instrumentality of the
Cuban government for the purposes of attachment or execution
of the judgment and that the deposit of the funds in
a Canadian bank account did not defeat U.S. jurisdiction
over the property.
In dicta, Judge King criticized the position of the
Administration in the litigation: "The Court notes
with great concern that the very President who in 1996
decried this terrorist action by the Government of Cuba
now sends the Department of Justice to argue before
this Court that Cuba's blocked assets ought not be used
to compensate the families of the U.S. nationals murdered
by Cuba. The Executive branch's approach to this
situation has been inconsistent at best. It now
apparently believes that shielding a terrorist foreign
state's assets are more important than compensating
for the loss of American lives." fn. 16. DL
U.S. Supreme Court: Minnesota v.
Mille Lacs Band of Chippewa Indians, No. 97-1337 (Mar.
24, 1999)
In 1837, several Bands of Chippewa entered into a treaty
with the United States which ceded Chippewa land to
the federal government while the Chippewa retained certain
hunting, fishing, and gathering rights on the land (the
right of usufruct) "during the pleasure of the President
of the United States." President Zachary Taylor
issued an Executive Order in 1850 revoking the retained
rights and requiring the removal of Chippewa to unceded
lands. The District Court and the Eighth Circuit
held that the Mille Lacs Band of Chippewa retained rights
of usufruct under the 1837 Treaty and that President
Taylor did not have constitutional authority to issue
the removal order attempting to abrogate the Chippewa's
usufructory rights.
The Supreme Court affirmed, holding that the Executive
Order was unconstitutional in that the removal order
was outside the authority of the President and that
the unconstitutional removal portions could not be severed
from the parts of the Order attempting to abrogate the
retained hunting, fishing, and gathering rights.
The majority of the Court disagreed with Chief Justice
Rehnquist's assertion that the President had "inherent
power" to order the removal of the Chippewa, and noted
that "[t]he Chippewa were on the land long before the
United States acquired title to it." The Court
further held that a subsequent 1885 Treaty with the
Chippewa did not abrogate their rights of usufruct in
that the latter document was a land purchase treaty
and did not unambiguously terminate rights retained
under the 1837 Treaty. The Court rejected Minnesota's
contention that the Chippewa's usufructory rights were
extinguished by virtue of Minnesota's admission to the
Union on an "equal footing" with all other States.
"[B]ecause treaty rights are reconcilable with state
sovereignty over natural resources, statehood by itself
is insufficient to extinguish Indian treaty rights to
hunt, fish, and gather on land within state boundaries."
In dissent, Rehnquist asserted that the Executive Order
was constitutional in that (1) the Order was pursuant
to a treaty ratified by advice and consent of the Senate,
therefore the exercise of presidential authority was
"impliedly authorized" by Congress; (2) the plain meaning
of the text of the Order deals with the extinguishment
of rights upon the land rather than being a "removal
order"; (3) removal was lawful because once the President
terminated the right to fish, hunt, and gather on the
land, the Chippewa had no legal right to remain on the
ceded land; and (4) the Executive Order should enjoy
a presumption of severability leaving the extinguishment
of usufructory rights even if the removal order was
unlawful.
Justice Thomas' dissent emphasized that the question
of whether the Chippewa retain the privilege to hunt,
fish, and gather does not require consideration of the
extent to which the exercise of that privilege is subject
to state regulation. DL http://laws.findlaw.com/US/000/97-1337.html
ICTR: Prosecutor v. Bernard Ntuyahaga,
ICTR 98-40-T (Mar. 18, 1999)
Bernard Ntuyahaga was charged with a single count of
crimes against humanity. The indictment alleged
that Ntuyahaga was criminally responsible for the murder
of Ms. Agathe Uwilingiyimana, then-Prime Minister of
Rwanda, and ten Belgian soldiers of the United Nations
Assistance Mission for Rwanda. The Tribunal granted
the Prosecutor's motion to withdraw the indictment.
The Prosecutor argued that withdrawal of the indictment
would promote concurrent jurisdiction under Art. 8(1)
of the Statute of the Tribunal by allowing national
courts to prosecute the accused. Belgium instituted
proceedings against persons implicated in the murder
of its soldiers in its national court. The Tribunal
recognized the complementary relationship of the Tribunal
and national courts, but noted that Art. 8(1) must be
read in conjunction with Art. 8(2) giving the Tribunal
primacy over domestic courts. The Tribunal also
stated that Art. 9, in accordance with the non bis
in idem principle, provides that no person shall
be tried in a national court for acts tried by the Tribunal,
however the Tribunal may try a person who has previously
been tried for the same acts in a national court.
Further, the States may defer cases to the Tribunal
but the Tribunal may not defer investigations and proceedings
to the national courts. The Tribunal held that
where, as in this case, an indictment has been confirmed
and the initial appearance has taken place, concurrent
jurisdiction cannot be invoked by the Prosecutor in
support of a request for withdrawal of an indictment.
The Tribunal affirmed that the Prosecutor has "sole
responsibility" for the prosecutions, including decisions
whether or not to proceed with a matter, and granted
the motion to withdraw the indictment. The Tribunal
held, however, that withdrawal of an indictment "is
tantamount to a termination of the proceedings", and
that it "d[id] not have jurisdiction to order the release
of a person who is no longer under indictment into the
custody of any given State, including the Host State,
the United Republic of Tanzania." The Tribunal
therefore ordered the "immediate release" of Ntuyahaga
from the Tribunal's detention facilities. TT http://www.ictr.org/english/decisions/withdraw.htm
On April 1, 1999, the new
Canadian territory of Nunavut came into existence
following the passing of the Nunavut Land Claims Act
and the Nunavut Act in 1993 by the Parliament of Canada.
The new territory encompasses two million square kilometers,
one-fifth of Canada's land mass, and is to have a representative
government that will incorporate the Inuit culture and
traditions. The text of the Acts creating the
territory can be found at http://www.inac.gc.ca/nunavut/index1.html
Judge Dionysios Kondylis
of Greece, newly-appointed to the International Criminal
Tribunal for Rwanda, resigned from the Tribunal
in a letter dated March 22, 1999. http://www.ictr.org/english/pressrel/172.htm
The U.S. Department of Defense
(DoD) is seeking applications for the position
of Deputy General Counsel (International Affairs).
Among the substantive issues within the responsibility
of International Affairs are arms control treaty negotiation
and compliance reviews, humanitarian law, law of armed
conflict, war powers, law of outer space, and law of
the sea, inter alia. For further
information, visit the DoD Web site, http://personnel.persec.osd.mil/epd/99-11.txt
International Law In Brief - Copyright 2000 - The American
Society of International Law Editors: Elizabeth J. Fabrizio, David A.
Levy Interns: Alice Epler, Fredrick Mudenda, 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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