June 17-23, 2000 Developments in international law, prepared by the Attorney-Editors ofInternational Legal Materials The American Society of International Law
ECHR: Averill v. United Kingdom,
No. 36408/97 (June 6, 2000)
Mr. Liam Averill, an Irish citizen ("Applicant") was
arrested in Northern Ireland under section 14(1)(b)
of the Prevention of Terrorism (Temporary Provisions)
Act 1989. Para. 9. After being taken to Gough Barracks,
the Applicant was not granted access to a solicitor
for 24 hours pursuant to section 45 of the Northern
Ireland (Emergency Provisions) Act 1991. Id.
Despite being warned under the Criminal Evidence (Northern
Ireland) Order 1988 that failure to mention any fact
on which the Applicant would rely in court might be
treated in court as supporting relevant evidence against
the Applicant, the Applicant kept silent. Paras. 11-13.
At trial the judge, sitting without a jury, accepted
the prosecution's forensic evidence and found the Applicant
guilty. Paras. 14, 20-21. Although the Applicant had
given evidence and called several witnesses to support
an alibi, (Paras. 17-18), the trial judge drew a "very
strong adverse inference" against the Applicant, and
noted that "it would have been a simple and easy thing
for [the Applicant] to have told these matters to the
interviewing police officers." Para. 22.
The Court of Appeal of Northern Ireland upheld the
conviction, finding that the trial judge had acted in
a "careful and critical manner, he adverted to all the
evidence and he was satisfied of the guilt of the [Applicant]
having not only heard the evidence but observed the
witnesses." Para. 28.
The Applicant subsequently escaped and appealed to
the European Court of Human Rights ("Court"), (Paras.
1, 30), alleging violations of: 1) the right to a fair
trial guaranteed by Article 6, Section 1 of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms ("Convention"), (Para. 36); and 2) the right
to legal assistance in criminal matters guaranteed by
Article 6, Section 1 in conjunction with Article 6,
Section 3(c) of the Convention. Para. 53.
On the fair trial question, the Court noted its prior
view in Murray v. United Kingdom that the right
to silence is not absolute. Para. 42. The Court further
noted its conclusion in Murray that while "it
would be incompatible with the right to silence to base
a conviction solely on or mainly on the accused's silence
or on a refusal to answer questions or to give evidence
himself," this right cannot and should not prevent taking
into account the accused's silence "in situations which
clearly call for an explanation from [the accused]."
Para. 43.
The Court found that the trial judge had not convicted
the Applicant "solely or mainly on account of his silence,"
but also on strong forensic evidence. Para. 48. The
Court also concluded that the Applicant's testimony
had "lacked credibility" and had not been disregarded
"merely because the trial judge [had drawn] adverse
inferences from [the Applicant's] silence." Id.
For these reasons, the Court concluded that the fair
trial right provided by Article 6, Section 1 of the
Convention had not been violated. Para. 50.
The Court unanimously held, however, that the denial
of legal assistance to the Applicant had breached Article
6, Section 1 in conjunction with Article 6, Section
3(c) of the Convention. Para. 59; Holding 3. The Court
found that "the concept of fairness" enshrined in Article
6 required that legal assistance be accessible even
"at the initial stages of police interrogation." Para.
57.
The Court denied damages to the Applicant, noting that
such would be inappropriate for an Applicant unlawfully
at large. Para. 63. The Court further noted that a "finding
of a violation of the Convention, in itself, constitutes
sufficient just satisfaction." Para. 64. The Court,
however, awarded the sum of 5,000 pounds sterling to
the Applicant in costs and expenses. Para. 67.
Judge Loucaides, in partial dissent, asserted that
there had been a violation of Article 6, Section 1 of
the Convention "arising out of the drawing of adverse
inferences from the [A]pplicant's silence." Judge Loucaides
stated that "the right to remain silent, if it is to
be meaningful, must be absolute," and that a person
in custody should not be compelled to self-incriminate
under any circumstances. Judge Loucaides asserted that
the purpose of the right to silence is to protect individuals,
especially the weak and vulnerable, from "oppressive"
law enforcement methods. Judge Loucaides noted that
while a person may not be guilty, the person may not
be in a position to "establish effectively his innocence"
in such an "inherently coercive setting." MF
U.K. House of Lords: Berezovsky
v. Michaels; Glouchkov v. Michaels (Consolidated
Appeals) (May 11, 2000)
Messrs. Berezovsky and Glouchkov ("Plaintiffs") brought
individual suits against the editor and publishers of
Forbes, an American magazine, over an article characterizing
the plaintiffs as "criminals on an outrageous scale."
The trial judge held that while defamation had been
established under English law, the action would be stayed
under the Spiliada case'sprinciple that
"the court must identify the jurisdiction in which the
case may be tried most suitably or appropriately for
the interests of all the parties and the ends of justice."
The trial judge subsequently held on the merits that
the Plaintiffs' connections with England were tenuous,
and that Russia was the more appropriate jurisdiction
for the action.
On review, the Court of Appeal concluded that the trial
judge had "misdirected himself" on the evidence and
that the Court of Appeal was entitled to consider the
matter afresh. The Court of Appeal held that England
had jurisdiction over the action, finding that there
was a "substantial complaint about English torts." The
Court relied on The Albaforth case's principle
that " . . . the jurisdiction in which a tort has been
committed is prima facie the natural forum for the determination
of the dispute."
On appeal by Forbes to the House of Lords ("House"),
the House found that all the constituent elements of
libel had occurred in England, and agreed with the Court
of Appeal's finding that the Plaintiffs' connections
with England and reputations there were significant.
The House also noted that Russia was an inappropriate
forum because, unlike in England, very few copies of
the article had been distributed there. The House concluded,
moreover, that a judgment in favor of the plaintiffs
there would not restore their reputations in England.
The House also rejected Forbes's argument that wide
distribution rendered the U.S. an appropriate alternative,
finding the Plaintiffs' U.S. connections to be minimal.
The House found under TheAlbaforth's
principle that England was "the most appropriate jurisdiction
for the trial of the actions."
The House also decided that the Court of Appeal was
entitled to "interfere" with the trial judge's exercise
of discretion, on the ground that the trial judge had
erred in finding that Russia rather that England could
serve as the appropriate forum.
The House for these reasons dismissed both appeals.
Lord Nolan, supporting the leading opinion, asserted
that the main question in the case was whether the Court
of Appeal was justified in reversing the decision of
the trial judge to stay the action. Lord Nolan supported
the Court of Appeal's assertion of English jurisdiction,
saying that "[a] businessman or politician takes his
reputation with him wherever he goes, irrespective of
the place where he has acquired it."
In dissent, Lord Hoffmannasserted that the
trial judge had correctly applied the Spiliada test
in denying English jurisdiction. Lord Hoffman noted
that the Court of Appeal should not have interfered
with the trial judge's exercise of discretion, even
if the Court of Appeal had taken a different view regarding
a factor in the decision. Lord Hoffman characterized
the plaintiffs as "forum shoppers" who had chosen England
as the best place to vindicate their international reputations,
and stated that it was not necessary to "always put
[England] forward as the most appropriate forum" for
such cases.
Lord Hope of Craighead, also in dissent, concluded
that the plaintiffs had not established facts sufficient
under Spiliada to render England the most appropriate
forum. MF
U.S. Supreme Court: Crosby v.
National Foreign Trade Council, No. 99-474 (June
19, 2000)
In June 1996 Massachusetts passed an act ("Act") barring
"state entities from buying goods or services from any
person (defined to include a business organization)
. . . doing business with Burma." Sect. I. Such business
activities included any person: 1) having operations
or franchises in Burma; or 2) providing any goods or
services to the government of Burma. Id. The
Act, however, exempted entities present in Burma to
provide either medical supplies or international telecommunication
goods or services, or solely to report the news. Id.
Three months later, Congress passed the Foreign Operations,
Export Financing, and Related Programs Appropriations
Act ("Statute"), which banned "all aid to the Burmese
Government except for humanitarian assistance, counternarcotics
efforts, and promotion of human rights and democracy."
Id. The Statute also directed the President to
develop a comprehensive, multilateral strategy to bring
democracy to and improve human rights practices in Burma.
The President was further empowered to waive any sanction
under the Statute if the President determines and certifies
to Congress that the application of the sanction would
be contrary to U.S. national security interests. Id.
The National Foreign Trade Council subsequently brought
suit in the U.S. District Court for the District of
Massachusetts for declaratory and injunctive relief
against Massachusetts state officials charged with administering
the Act. Sect. II. The District Court's subsequent enjoining
of the Act's enforcement was upheld by the U.S. Court
of Appeals for the First Circuit. Id.
On appeal, the Supreme Court ("Court") noted that Congress
had intended the Statute to give the President flexibility
and effective authority over economic sanctions against
Burma. Sect. III(A). The Court held that "[i]t is simply
implausible that Congress would have gone to such lengths
to empower the President if it had been willing to compromise
his effectiveness by deference to every provision of
[a] state statute" whose enforcement might "blunt the
consequences of discretionary Presidential action."
Id. The Court further concluded that the Act
undermined the President's capacity for effective diplomacy.
Sect. III(C).
The Court found that the Act conflicted with federal
law "at a number of points by penalizing individuals
and conduct that Congress has explicitly exempted or
excluded from sanctions." Sect. III(B). The Court rejected
the State's argument that "no real conflict" existed
between the Statute and the Act in terms of goals or
compliance, and determined that the inconsistency of
sanctions "undermines the congressional calibration
of force." Id. The Court held that Congressional
failure to enact express preemption did not imply approval,
and noted that "the existence of conflict cognizable
under the Supremacy Clause does not depend on express
congressional recognition" of such conflict. Sect. IV.
The Court concluded that the Act was an obstacle to
the accomplishment of Congressional objectives, and
moreover that the Act undermined the intended purpose
of the Statute. Sect. III. The Court held under the
Supremacy Clause of the U.S. Constitution that the Act
was pre-empted by the Statute, and its application unconstitutional.
Sect. V. The Court affirmed the decision of the U.S.
Court of Appeals for the First Circuit. Id.
Justices Scalia and Thomas concurred in the judgment,
finding it "perfectly obvious on the face" of the Statute
that Congress had intended the President to use discretionary
authority in sanctioning Burma. The Justices also criticized
the Court for turning to the Statute's legislative history,
and cautioned that such practice could in the future
render appellate litigation more time-consuming and
expensive. AC
South Africa: Promotion of Equality
and Prevention of Unfair Discrimination Act, B57B-99
(February 2, 2000)
South Africa's Promotion of Equality and Prevention
of Unfair Discrimination Act ("Act") is intended to
facilitate the transition to a democratic society, and
is "guided by the principles of equality, fairness,
equity, social progress, justice, human dignity and
freedom." Preamble. The Act has among its objects
that of facilitating: 1) the implementation of relevant
provisions of the South African Constitution; and 2)
compliance with international law obligations such as
the Convention on the Elimination of All Forms of Racial
Discrimination and the Convention on the Elimination
of All Forms of Discrimination against Women. Sect.
2.
The Act establishes "a duty and responsibility" for
the state to promote and achieve equality by inter
alia: 1) developing awareness of fundamental rights;
2) enacting further legislation; and 3) providing assistance,
advice and training on issues of equality. Sect. 25.
All persons must also promote equality. Sect. 24.
The Act prohibits unfair discrimination against any
person by the state or any person. Sect. 6. Prohibited
grounds for discrimination are race, gender, sex, pregnancy,
marital status, ethnic or social origin, color, sexual
orientation, age, disability, religion, conscience,
belief, culture, language and birth. Sect. 1. Moreover,
any other ground is prohibited if it causes systematic
disadvantage, undermines human dignity, or seriously
affects equal enjoyment of rights and freedoms in a
manner comparable to the listed grounds. Id.
The Act also provides an illustrative list of unfair
practices in various sectors, such as labor and employment,
education, housing, insurance, professions and the provision
of goods and services. Sect. 29; Schedule.
Criteria for fair discrimination include: 1) the context;
2) reasonable and justifiable differentiation according
to objectively determinable criteria intrinsic to the
activity concerned; and 3) impact or likely impact on
the victim. Sect. 14. Measures to "protect or advance
persons or categories of persons disadvantaged by unfair
discrimination" do not constitute unfair discrimination.
Id. Fairness criteria do not, however, apply
also to hate speech and harassment. Sect. 15.
Under the Act, every magistrate's court and High Court
serves as an "equality court" for its jurisdiction.
Sect. 16. The Act establishes the procedure for designating
presiding officers of equality courts, (Id.),
and affirms that the provisions regulating court activity
apply also to equality courts, unless otherwise provided
by the Act. Sect. 19. The Act also requires that proceedings
must be conducted in open court. Id.
Proceedings under the Act may be instituted by: 1)
persons acting in their own or the public interest,
or for those otherwise unable; 2) associations acting
in the interest of its members; 3) group or class members
or those acting in their interest; 3) the South African
Human Rights Commission; or 4) the Commission for Gender
Equality. Sect. 20. To initiate proceedings notification
is made to the clerk of an equality court, who will
in due time refer the matter to a presiding officer
of the equality court. Id.
The presiding officer will first decide whether to
transfer the case to a more appropriate body. Id.
If the matter is retained, the equality court must then
hold an inquiry to determine whether "unfair discrimination,
hate speech or harassment" has taken place as alleged.
Sect. 21. The respondent bears the burden of proof once
a prima facie case is established. Sect. 13.
The Act also gives a right of appeal to the High Court
or the Supreme Court of Appeal, as appropriate, to "[a]ny
person aggrieved by any order made by an equality court
in terms of or under this Act." Sect. 23.
The Act requires an Equality Review Committee to be
established to advise the Minister about the operation
of the Act and laws that impact on equality. Sects.
32-33. MF
The ASIL has published two new Insights.
The first, by Peter J. Spiro, is entitled "U.S.
Supreme Court Knocks Down State Burma Law," and
appears at http://www.asil.org/insigh46.htm
The second, by Peter H.F. Bekker, Ph.D, is entitled
"World Court Rejects Jurisdiction in 1999 Aerial
Incident Case brought by Pakistan against India,"
and appears at http://www.asil.org/insigh47.htm
The abstract of the former case appears above
in this edition of ILIB. The abstract of the latter
case is forthcoming.
The ASIL's International Legal Materials
Office is looking for law students in their second
year or higher to assist as Fall 2000 interns.
Very strong writing and English skills are required,
as well as the ability to work under fast-paced conditions
involving highly varied material. Internships are located
in Washington, DC, and are unpaid. Academic credit may,
however, be available for students who qualify. For
more information, please refer to http://www.asil.org/interns.htm
International Law In Brief - Copyright 2000 - The American
Society of International Law Editors: Peter C. Hansen, Esq., Branislav
A. Maric Interns: Amit Chugh, Marina Fedorova
To comment on this publication, send an e.mail message
to Peter C. Hansen, Editor at phansen@asil.org
For membership information, visit us on the Internet http://www.asil.org
