April 5 - 10, 1999 Developments in international law, prepared by the Attorney-Editors of International Legal Materials The American Society of International Law
UNESCO: Second Protocol to the
1954 Hague Convention for the Protection of Cultural
Property in the Event of Armed Conflict, done at the
Hague, March 26, 1999 (final adopted text, subject to
verification, April 1, 1999)
Chapter 2 of The Second Protocol contains general provisions
regarding the protection of cultural property including
preparatory measures such as the taking of inventories
and making provisions for the relocation of moveable
cultural property. art. 5. Waiver of provisions
limiting the use of cultural property on grounds of
imperative military necessity use may only be invoked
"when and for so long as no choice is possible between
such use of the cultural property and another feasible
method for obtaining a similar military advantage...."
art. 6. Occupation forces are forbidden from making
specified uses of the cultural property. art. 9.
The Protocol provides for enhanced protection of the
cultural property under three conditions: (a) if it
is an object of cultural heritage of the greatest importance
for humanity; (b) it is protected by adequate domestic
legal and administrative measures recognizing its exceptional
cultural and historic value and ensuring the highest
level of protection; and (c) it is not used for military
purposes or to shield military sites and a declaration
has been made by the Party which has control over the
cultural property confirming that it will not be so
used. art. 10. Each side is to provide the Committee
for the Protection of Cultural Property in the Event
of Armed Conflict ("the Committee) a list of cultural
property for which it seeks enhanced protection. art.
11. Cultural property with enhanced protection
is to be immune from attack or military use. art. 12.
Additionally, the Protocol establishes the Committee
as a new administrative body to facilitate implementation
of the Protocol. ch.. 6.
With respect to serious violations of the Protocol,
each Party is obligated to exercise lawful jurisdiction.
arts. 15-16. The Protocol also applies to
armed conflicts "not of an international character,
occurring within the territory" of a Party. art. 22.
BM
U.K. House of Lords: Islam v. Secretary
of State for the Home Office, Ex Parte Shah (Mar. 25,
1999)
Ms. Shah and Ms. Islam are married Pakistani women
who sought refugee status in the UK at risk of being
falsely accused of adultery in Pakistan, and therefore
subject to a risk of criminal proceedings for sexual
immorality. If found guilty, possible punishments
may include public flogging or stoning to death.
The majority of the Panel held that given the evidence
of state-sanctioned or state-tolerated discrimination,
notwithstanding constitutional guarantees of equality,
women in Pakistan in such circumstances may be considered
"members of a particular social group" subject to protected
status pursuant to Art. 1A(2) of the 1951 Convention
Relating to the Status of Refugees.
Lord Steyn cited a 1995 report by Amnesty International
on Women in Pakistan which noted the absence of statutory
protections available to women, including the detention
of women accused of sexual misconduct for years without
the need for any evidence to be brought before a magistrate
prior to arrest. Steyn rejected the contention
that cohesiveness was required for the determination
of a "particular social group" as well as the argument
by the State that a social group could not exist because
some women in Pakistan were able to avoid the impact
of persecution. Steyn further stated that even
if women in Pakistan were not considered to be members
of a "particular social group", Shah and Islam would
qualify under a narrow basis argued by their counsel
on the basis of (1) gender, (2) the suspicion of adultery,
and (3) their unprotected status in Pakistan.
Lord Hoffman noted that the decision did not mean that
a woman was entitled to refugee status "merely because
she lived in a society which, for religious or any other
reason, discriminated against women" and that "[t]he
distinguishing feature of the present case is the evidence
of institutionalised discrimination against women by
the police, the courts and the legal system, the central
organs of the State."
Lord Millet stated that both discrimination and persecution
must be shown and that although the evidence demonstrated
that women in Pakistan are "treated as inferior to men
and subordinate to their husbands" and by international
standards, "subject to serious and quite unacceptable
discrimination on account of their sex", in Millet's
view the parties failed to show that the persecution
was because they are women rather than persecution as
individuals who have transgressed social and religious
norms. DL http://www.parliament.the-stationery-office.co.uk/pa/ld199697/ldjudgmt/ldjudgmt.htm
U.S. Ninth Circuit: Vongsakdy v.
INS, No. 97-71387 (Mar. 19, 1999)
Vongsakdy, a citizen of Laos, sought asylum and withholding
of deportation based on his past experiences in a Laotian
labor camp. The Bureau of Immigration Appeals
(BIA) denied the request for asylum on two grounds;
first that Vongsakdy did not demonstrate a well-founded
fear of future persecution and second, that Vongsakdy's
past persecution alone did not rise to the level required
for asylum. The Ninth Circuit reversed and remanded,
holding that in cases involving past persecution sufficiently
egregious to warrant a grant of amnesty on humanitarian
grounds, an evaluation of post-persecution experiences
is irrelevant.
Vongsakdy testified that when he was a nineteen-year-old
student, he was forcibly placed in the Viengxay labor
camp from 1975 to 1977 by the Laotian government, because
of his political belief in democracy and his family's
support of the former Laotian monarchy. While
under detention in the labor camp, he was tortured,
forced do hard manual labor for ten hours per day with
little food or water, and to undergo "reeducation".
Vongsakdy stated that his thumb was severed while attempting
to block rifle blows to the head for picking a piece
of fruit off a tree. Vongsakdy further stated
that following his release from the labor camp, he was
ordered to work as a health technician for life and
to attend "new politics" meetings.
The Ninth Circuit held that Vongsakdy's request for
asylum was warranted because of the severity of his
persecution. "Even absent a likelihood of future
persecution, asylum is warranted for humanitarian reasons
because Vongsakdy suffered 'atrocious forms of persecution'
on account of his political opinion." (citing Acewicz
v. INS, 984 F.2d 1056, 1602 (9th Cir. 1993).
The court noted that in evaluating the atrocity of Vongsakdy's
past persecution it was irrelevant that he had remained
in his country for a considerable period of time after
his release from work camp. TT http://laws.findlaw.com/9th/9771387.html
Canada Supreme Court: R v. Sundown,
No. 26161 (Mar. 25, 1999)
Sundown, a resident of Saskatchewan, is a member of
the Cree First Nation that is a party to Treaty 6.
Treaty 6 provides that Indians of this First Nation
are entitled to hunt for food on land that is occupied
by the provincial Crown, including Crown parkland.
Sundown testified that he cut down trees and constructed
a log cabin in Meadow Lake Provincial Park for shelter,
smoking fish and meat, and skinning pelts when hunting.
Evidence was presented of a long history among Cree
First Nation members to "expedition hunt" in this park.
Expedition hunts involve hunting for long periods of
time and thus historically have also involved the construction
of shelters for hunting activities. These shelters
have evolved over time from moss-covered lean-tos to
log cabins.
Park Regulations prohibit the construction of temporary
or permanent dwellings in the park without permission.
Sundown was convicted of building a permanent dwelling
without permission. The summary conviction appeal
court quashed the conviction and the Court of Appeal
affirmed that decision. The Supreme Court dismissed
the appeal.
The Supreme Court reasoned that a cabin is incidental
to the First Nation's treaty right to hunt in the expeditionary
style and that Sundown was not asserting a proprietary
interest in the parkland. The interest asserted
in building the cabin was part of the right to hunt,
belonging to the common band as a whole under Treaty
6. Like aboriginal rights, treaty rights should
not be interpreted as equivalent to common law property
rights. Park regulations allowed hunting in the
park during hunting seasons providing the Indians were
not using the parkland in any means incompatible with
the Crown's intended use simply by hunting expedition
style. The parkland had many cabins built in the
park, the only restriction being that prior permission
be obtained. The Court noted that the First Nation's
expedition-style hunting and fishing rights were negotiated
for and included in Treaty 6, therefore there was no
justifiable limitation under the facts to restrict the
First Nation's right to hunt expedition-style and construct
a log cabin. TT http://www.droit.umontreal.ca/doc/csc-scc/en/rec/html/sundown.en.html
ILIB
Special Section - Documents of the Lockerbie Trial
Security Council Resolution 1192
(Aug. 27, 1998) (on the Lockerbie trial)
The Security Council welcomed the initiative for the
trial of the two persons charged with the bombing of
Pan Am flight 103 before a Scottish court sitting in
the Netherlands and urged the Governments of the Netherlands
and the United Kingdom to pursue all arrangements regarding
the implementation of the initiative and the intended
agreement between the two Governments. Additionally,
the Security Council decided that the government of
Libya should comply by ensuring the appearance in the
Netherlands of the two accused for the trial, as well
as making available in the Netherlands any witnesses
or evidence that could be requested by the court.
Finally, the Security Council stated that the measures
set forth in resolutions 748 (1992) and 883 (1993) will
be suspended immediately if the Secretary-General reports
to the Security Council that the two accused have arrived
in the Netherlands for the purpose of trial, or have
appeared for trial before an appropriate court in the
United Kingdom or the United States, and that the Libyan
government has satisfied French authorities regarding
the bombing of UTA 772. BM http://www.un.org/Docs/sc.htm
U.K. High Court of Justiciary (Proceedings
in the Netherlands) (United Nations) Order 1998; Statutory
Instrument 1998 No. 2251 (Sept. 18, 1998)
The Order confers authority on the High Court of the
Justiciary to sit in the Netherlands for the purpose
of trying two Libyan citizens ("the accused") indicted
on charges of conspiracy to murder, murder, and contravention
of the Aviation Security Act of 1982, arising from the
bombing of Pan Am flight 103. Except for the necessary
departures, proceedings are to be conducted as if they
were in Scotland.
The Order provides that the Lord Justice Clerk will
appoint three Lords Commissioners of Justiciary ("the
judges") to constitute the court and nominate one of
them to preside. art. 5. In addition, the Order
provides for the appointment of an additional judge
who is entitled to act if one of the judges dies or
is absent for a prolonged period. art. 7.
The trial shall be conducted without a jury. art.
5(3). The court will rule by majority decision on any
questions of law, and on the verdict. If a conviction
is secured, the court will state its reasons in writing.
art. 5. In the case of an appeal, the court will
be made up of five judges also appointed by the Lord
Justice Clerk. art. 14. Finally, if a warrant
for the arrest or imprisonment of the accused has been
executed, the accused are to be confined in the premises
of the court until the end of the proceedings. art.
15. BM http://www.hmso.gov.uk/si/si1998/19982251.htm
Netherlands-U.K.: Agreement Between
the Government of the Kingdom of the Netherlands and
the Government of the United Kingdom of Great Britain
and Northern Ireland Concerning a Scottish Trial in
the Netherlands
Under the Agreement, the Dutch government provides
the Scottish court ("the court") with adequate premises
for the duration of the trial. art. 3(1). The
court will have full "juridical personality" for the
purposes of the trial and will be represented by the
Registrar. art. 4. While the court's premises
are inviolable, authorities of the Netherlands are responsible
for external security. art. 5.
The accused will be detained within the premises of
the court, before and during the trial. art. 16.
Furthermore, the accused will be transferred to the
United Kingdom only if they agreed to be tried by a
jury in Scotland or if they are convicted and therefore
have to serve sentences. Solicitors and advocates
of the accused are to subject to any measures by the
host country which may affect the free and independent
exercise of their functions under Scots law. art. 15.
In addition, the Dutch government has agreed to extend
immunity for witnesses and international observers.
arts. 17-18. Finally, all costs regarding the
court and trial will be borne by the Government of the
United Kingdom. BM http://www.law.gla.ac.uk/lockerbie/treaty.htm
Letter from the Secretary-General
to the President of the Security Council, U.N. Doc.
S/1999/378 (Apr. 5, 1999)
Pursuant to para. 8 of Security Council resolution
1192, the Secretary-General informed the Security
Council that the two Libyan citizens accused of bombing
Pan Am flight 103 arrived in the Netherlands on April
5, 1999, where they will be tried before a specially-established
Scottish court. Additionally, the Secretary-General
stated that the Libyan Government has satisfied the
French authorities regarding the bombing of UTA 772
and therefore the measures set forth in resolutions
748 (1992) and 883 (1993) should be suspended immediately.
Finally, pursuant to para. 8 of resolution 1192, the
Secretary-General will report within 90 days of the
date of the suspension of the aforementioned measures
regarding whether Libya complies with the remaining
provisions of resolutions 731 (1992) and 748 (1992).
If so, the remaining measures will be lifted immediately.
In this vein, the Secretary-General stated that "the
Libyan Arab Jamahiriya has already provided extensive
information and necessary assurances on this matter,
including to the Security Council." BM http://www.un.org/Docs/sc/letters/1999/s1999378.htm
U.N. Security Council Presidential
Statement (Apr. 8, 1999)
The Security Council acknowledged receipt of the Secretary-General's
letter and expressed its appreciation to the Governments
of the Republic of South Africa and the Kingdom of Saudi
Arabia, inter alia, for their committment toward
reaching a conclusion arising out of bombing of Pan
Am flight 103. The Security Council further noted
that in accordance with para. 8 of resolution
1192, "the measures set forth in resolutions 748 (1992)
and 883 (1993) were immediately suspended" upon receipt
of the Secetary-General's letter of April 5, 1999.
DL http://www.usia.gov/products/washfile.htm
The International Court of Justice
has issued a decision in the Request for Interpretation
of the Judgment of 11 June 1998 in the Case Concerning
the Land and Maritime Boundary between Cameroon and
Nigeria (Cameroon v. Nigeria), Preliminary Objections.
International Law In Brief will carry an analytic
abstract of this decision in our next issue.
International Law In Brief - Copyright 2000 - The American
Society of International Law Editors: Elizabeth J. Fabrizio, Esq., David
A. Levy, Esq. Interns: Branislav Maric, Adv., Teresa Taylor
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