September 6 - 10, 1999 Developments in international law, prepared by the Attorney-Editors of International Legal Materials The American Society of International Law
Israel-PLO: The Sharm el-Sheikh
Memorandum on Implementation Timeline of Outstanding
Commitments of Agreements Signed and the Resumption
of Permanent Status Negotiation (September 4, 1999)
On September 4, 1999, the Government of the State of
Israel and the Palestinian Liberation Organization ("Parties")
signed the Sharm el-Sheikh Memorandum on Implementation
Timeline of Outstanding Commitments of Agreements Signed
and the Resumption of Permanent Status Negotiation (the
"Memorandum"). The Memorandum aims at the full
and mutual implementation of the Interim Agreement
and all other agreements concluded between the Parties
since September 1993 ("Prior Agreements"), as well as
all outstanding commitments emanating from the Prior
Agreements.
The Parties stated their determination to resume the
Permanent Status negotiations in order to conclude a
Framework Agreement within five months from the resumption
of the Permanent Status negotiations, and reach a Permanent
Status Agreement within a year from that time. Art.
1.
The Memorandum regulates the gradual shifting of control
of designated territory from Israeli control through
joint control to ultimate Palestinian control. Art.
2.
The Government of Israel consented to the release of
prisoners, including 350 before October 9, 1999. Art.
3. An ad hoc joint committee shall agree
on the names of those who will be released, and shall
recommend the results to the relevant Authorities through
the Monitoring and Steering Committee. Art. 3.a-b, d.
The Palestinian prisoners are to be released before
next Ramadan. Art. 3.e.
The operation of the Southern Route of the Safe Passage
for the movement of persons, vehicles and goods will
start on October 1, 1999, in accordance with the provisions
of a Safe Passage Protocol to be concluded by the Parties
no later than September 30, 1999. Art.5.a. The
specific location of the crossing point of the Northern
Route of the Safe Passage shall be determined not later
than October 5, 1999. Art. 5.b. Subject to agreed
modifications, the Safe Passage Protocol shall be applied
to both the Southern and Northern Routes. Art. 5.c.
Temporary use of non-Safe Passage routes for movement
between the West Bank and Gaza Strip shall be facilitated
by Israel. Art. 5.f.
The Parties established principles to facilitate the
construction of the Gaza Sea Port. Art. 6. The
Port, which will not be operated before a joint Sea
Port Protocol is reached, will serve as an international
passage. Art. 6.b-c. Dates are scheduled for the
opening of the Shuhada Road in Hebron and the wholesale
market-Hasbahe. Art.7.a-b.
The Parties agree to act to insure the immediate, efficient,
and effective handling of all security matters, including
taking "all necessary measures" to prevent acts of terrorism,
violence or incitement. Art. 8. Finally, the Parties
agreed not to "initiate or take any step that will change
the status of the West Bank and the Gaza Strip in accordance
with the Interim Agreement." Art. 10.
U.S. District Court - S.D. New
York: Greek Orthodox Patriarchate of Jerusalem v. Christie's
Inc., 98 CIV 7664 (August 1999)
The Patriarchate, an Orthodox order of monks based
in Jerusalem, sought the return of the Archimedes Palimpsest
("Palimpset") sold for $2 million at auction at Christie's
New York in October 1998. The Palimpsest is a
tenth-century manuscript containing a copy of certain
writings of the philosopher Archimedes. Through
the centuries the Palimpsest had belonged to the Patriarchate's
library, the Metochion, until it disappeared at the
beginning of this century. In the 1920s a French
businessman acquired the Palimpsest, which subsequently
remained in the possession of his successors, until
placed for auction at Christie's by the family.
The Patriarchate had previously filed a motion for
a preliminary injunction to prevent the auction, which
the district court rejected. The court granted
the Defendants' motion for summary judgment, and dismissed
the Patriarchate's suit for return of the Palimpsest.
The court noted initially that, pursuant to its diversity
jurisdiction, it must apply the choice of law rules
of the forum state (i.e. New York). Under
New York law, the law applicable to adverse possession
or prescription of a chattel, such as the Palimpsest,
is determined by the local law of the state where the
transfer is claimed to have taken place. Following
this rule, the court held that French law should apply
because the relevant transfer of title, namely the family's
original acquisition of the Palimpsest, had occurred
in France, where the French family alleged its acquisition
under prescriptive possession. The court noted
that the Patriarchate did not dispute the validity of
the transfer from the French family to Christie's, and
thence to the purchaser, but only argued that the French
family had never obtained legitimate title to the Palimpsest.
The court rejected the Patriarchate's contention that
New York should apply, on the grounds that: (1) it was
based on public policy arguments rather than on legal
principles; and (2) the French law's provision of diminished
protection for original owners did not violate "fundamental
notions of justice or prevailing concepts of good morals"
that would trigger the application of New York law.
The court noted that Article 2262 of the French Civil
Code provides 30 years for actions to be brought for
return of chattels in adverse possession and prescription
cases, during which the possession must be "continuous
and uninterrupted, peaceful, public, unequivocal, and
as owner." Finding that nothing suggested that
the French party had kept the Palimpsest hidden or had
any motive to do so since the early 1970s, and finding
no proof of such concealment in the earliest part of
the prescribed period (i.e. the late 1960s),
the court stated that the Patriarchate "has simply cast
aspersions on the validity of the [French family's]
title during the period of the late 1960s to early 1970s,"
and determined that the Patriarchate had failed to present
any genuine issues of material fact that could overthrow
the motion for summary judgment.
The court made clear that even had New York law applied,
the defendant's laches defense would have barred
the Patriarchate's claim because the Patriarchate was
not diligent "at all" in searching for the Palimpsest
for almost seventy years. The court noted a divergence
between Second Circuit and New York state approaches,
whereby the New York Court of Appeals applied the laches
defense, while the Second Circuit Court of Appeals has
based its decisions on the statute of limitations doctrine,
in which the owner's diligence is not at issue.
The court stated that the laches defense, as
permitted in New York state courts, can limit the possibility
of extreme delay before plaintiffs pursue their claims.
Moreover, in the context of claims of lost or stolen
works of art or cultural artifacts, the doctrine of
laches safeguards the interests of a good faith
purchaser of lost or stolen art by "weighing in the
balance of competing interests the owner's diligence
in pursuing his claim." BM
Download in Adobe pdf format http://www.nysd.uscourts.gov/courtweb/pdf/99-04869.PDF
U.S. District Court - D. Maine:
Estados Unidos Mexicanos v. Decoster, No. 98-186-P-H
(August 9, 1999) Order
A number of individual migrant workers filed suit against
private employers alleging employment discrimination.
Mexico sought to join the suit seeking equitable relief
concerning discrimination in Maine against migrant workers
"of Mexican race and descent," including both Mexican
citizens or nationals, and American citizens of Mexican
ancestry. Mexico asserted its standing to raise
the claim as parens patriae (literally "parent
of the country"). The district court held that,
although parens patriae quasi-sovereign standing
in federal court may be available to U.S. domestic states,
territories or commonwealths to raise claims on behalf
of their citizens, the rationale for doing so is inapplicable
to foreign states.
The court noted that Mexico was seeking to assert neither
the private plaintiff's discrimination claims, nor a
proprietary or economic claim, but rather a separate
interest of its own - a quasi-sovereign claim on behalf
of its own citizens and U.S. citizens of ethnic Mexican
backgrounds. In dismissing Mexico's claim for
lack of standing, the court held that to recognize parens
patriae standing for a foreign sovereign, the court
would have to make decisions regarding another sovereign's
public policy goals, and in so doing would intrude on
the foreign relations and treaty-making powers reserved
to the political branches of the government. The
court further noted that Mexico had alternative means
available to advance such interests, including
financing the private discrimination lawsuits brought
by Mexican citizens or their descendants, negotiating
a treaty with the United States, or by seeking other
remedies which may be available under international
law. DL
Israel Supreme Court: Legality
of the Interrogation Methods Applied by the Israeli
General Security Service (September 6, 1999)
The General Security Service ("GSS") has been applying
physical force against persons undergoing interrogation
in accordance with government directives regulating
interrogation methods.
Two public entities, the Public Committee Against Torture
in Israel and the Association for Citizen's Rights in
Israel, and five individual applicants submitted their
claims, arguing that the interrogation methods used
by the GSS were illegal and constituted torture, which
is strictly prohibited under international law.
The methods in question were: (1) shaking (Para. 9);
(2) the "Shabach" position (Para. 10); (3) crouching
for periods on the toes (Para. 11); (4) excessive tightening
of handcuffs (Para. 12); and (5) sleep deprivation (Para.
13). In response, the State argued that the government,
through its general and residual powers, duly authorized
GSS investigators to use these methods. The State
also argued that these methods do not rise to the level
prohibited by international law, because they "do not
cause pain and suffering", and have been employed "as
a last resort in very extreme cases." Para. 15.
The Court also took into consideration the Commission
of Inquiry's Report, published in 1995, which approved
the use of a moderate degree of physical pressure.
The Commission also had concluded that in cases where
the saving of human life requires obtaining certain
information, an investigator who "applies that specific
degree of physical pressure which does not constitute
abuse or torture of the suspect, but is instead proportional
to the danger to human life, can avail himself of the
'necessity' defense, in the face of potential criminal
liability." Para. 16.
The Court held that although many directives followed
the Commission's report, some of them bearing ministerial
approval, a specific statutory provision authorizing
GSS investigators to conduct interrogations did not
exist. Therefore, the Court held that the directives
merely constituted internal regulations. Para. 20.
Furthermore, the Court noted that the authority to conduct
interrogations must conform to the basic principles
of the democratic regime, while the methods themselves
must be "free of torture, free of cruel, inhuman treatment
of the subject and free of any degrading handling whatsoever."
Paras. 22-23. The Court held that all of the methods
raised by the Applicants were illegal and did not fall
within the general authority to investigate. Para. 28.
Regarding the "necessity" defense, the Court held that
it could not be seen as an authorization for GSS investigators
to use physical means during the course of interrogations.
More specifically, the Court stated that "the very nature
of the defense does not allow it to serve as the source
of a general administrative power." Para. 36.
The Court concluded that a statute: 1) must precede
the use of any physical means during the course of the
interrogation; 2) cannot infringe upon a suspect's liberty;
and 3) must be consistent with "the values of the State
of Israel," as provided in Article 8 of the Basic Law
(Human Dignity and Liberty). Paras. 38-39. Finally,
the Court suggested that "[a]lthough a democracy must
often fight with one hand tied behind its back, it nonetheless
has the upper hand." Para. 39.
Judge Kedmi, concurring in the decision, called for
its suspension for the period of one year. During
that time, the Parliament
would have the opportunity to consider the exceptional
interrogation methods both in general and in emergencies,
such as the "ticking time bomb" situation, while the
GSS would be able to cope with emergencies while adapting
to new developments in Israel regarding human rights.
BM
Download in Rich Text Format http://www.court.gov.il/mishpat/html/en/verdict/judgment.rtf
U.N. Security Council Resolution
1261 (August 25, 1999) (on protection of children in
time of war)
Resolution 1261 notes international efforts to end
the use of children as soldiers in violation of international
law, including ILO Convention No. 182 on the Prohibition
and Immediate Action for the Elimination of the Worst
Forms of Child Labor (see ILIB 6/14 - 6/18 http://www.asil.org/ilib0218.htm#01)
and the Rome Statute of the International Criminal Court.
Pmbl. The Security Council strongly condemns the
targeting of children in situations of armed conflict,
as well as attacks on objects protected under
international law, including places such as schools
or hospitals that usually have a significant presence
of children. Para. 2. Resolution 1261 calls upon all
parties to strictly comply with their obligations under
international law, including the 1949 Geneva Conventions
and the Convention on the Rights of the Child, inter
alia. Para. 3. The Security Council
expressed its support for the work of the Commission
on Human Rights toward a draft optional protocol to
the Convention on the Rights of the Child regarding
the involvement of children in armed conflict, and hoped
that further progress would made toward finalizing this
work. Para. 6.
Parties to armed conflicts are called upon to undertake
"feasible measures" during such conflicts to minimize
harm to children, including instituting "days of tranquility"
to allow delivery of basic necessary services, and to
provide "unhindered access" to humanitarian personnel
and the delivery of humanitarian assistance to "all
children affected" by armed conflict. Arts. 8, 11.
In particular, the Security Council urges parties to
take special measures to protect children from rape
and other forms of sexual violence in situations of
armed conflict, and to take into account the special
needs of girl children "throughout armed conflicts and
their aftermath". Art. 10. Resolution 1261 urges
States and the United Nations system to intensify efforts
to end the recruitment and use of children in armed
conflicts in violation of international law, and to
facilitate the reintegration of those children so used
in violation of international law into society. Arts.
13, 15. The Security Council stated its support
for rehabilitative efforts for children affected by
armed conflict and "reaffirm[ed] ... its readiness to
consider appropriate responses whenever buildings or
sites which usually have a significant presence of children
are specifically targeted in situations of armed conflict,
in violation of international law." Arts. 17-18.
Finally, the Security Council requested the Secretary-General
to submit by July 31, 2000 a report on the implementation
of the resolution, and stated that it would remain "actively
seized of the matter." DL
Archived at USIA Web site http://www.usia.gov/products/washfile.htm
The International Criminal Tribunal
for the former Yugoslavia (ICTY) has announced that
Judge Antonio Cassese, the first President of
the Tribunal, has resigned effective February
1, 2000, or at the the conclusion of the Kupreskic
trial, whichever is sooner. Judge Cassese will
return to his academic work at Florence University.
http://www.un.org/icty/pressreal/p435-e.htm
International Law In Brief - Copyright 2000 - The American
Society of International Law Editors: Peter C. Hansen, Esq., David A.
Levy, Esq. Interns: Matthew Casebolt, Adam Hill, Giuliano
Iannaccone, Branislav Maric, Adv., Kaniah Whitehorn, Laziz
Yusupov, Adv.
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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