December 2-8, 2000 Developments in international law, prepared by the Attorney-Editors ofInternational Legal Materials The American Society of International Law
ACP-Commonwealth:Memorandum of
Understanding between the Secretariat of the African,
Caribbean and Pacific Group of States and the Commonwealth
Secretariat (October 31, 2000)
The Secretaries-General of the African, Caribbean and
Pacific Group of States ("ACP") and the Commonwealth
agreed to sign a Memorandum of Understanding ("Memorandum")
to set out a framework for cooperation and collaboration
in all areas in which their functions, programs and
activities are complementary and mutually supportive.
Para. 1.
The Parties shall cooperate in elaborating programs
for increasing effective participation by ACP and Commonwealth
developing countries in international trade and investment,
particularly by: 1) strengthening and diversifying export
supply capacities; and 2) enhancing efficiency and competitiveness.
Paras. 3-4. The Parties shall also cooperate to support
as appropriate sub-regional and regional ACP country
integration to: 1) expand those countries' production
and export capabilities; 2) diversify exports; and 3)
increase their competitiveness. Paras. 3, 5.
The Parties shall collaborate as appropriate in assisting
member countries in deriving greater benefit from: 1)
market access and other commitments made in the Uruguay
Round Agreements and WTO decisions; and 2) "special
and differential measures" applied in their favor. Para.
6(a). The Parties shall also collaborate as appropriate
in negotiations regarding inter alia: 1) further
liberalization of services; and 2) new and emerging
issues, particularly those arising in the context of
WTO working groups. Para. 6(b). The Parties shall also
collaborate in promoting measures that would result
in ACP regions' increased attractiveness to foreign
direct investment. Para. 8.
The Parties shall identify further areas for future
cooperation, including inter alia: 1) support
for democracy and good governance; 2) small states'
special needs; and 3) gender equality. Para. 9.
The Parties may engage in joint activities, and shall
agree on a collaboration program regarding the Memorandum's
provisions. Paras. 10-11. The Parties shall also undertake
a semi-annual review of the implementation of activities
under the Memorandum. Para. 12.
The Memorandum may be amended by mutual consent and
terminated by either Party with six months' written
notice. Paras. 13-14. Such termination will not inhibit
the completion of ongoing projects and cooperation programs.
Para. 14. PH
EU: Charter of Fundamental Rights
of the European Union (December 7, 2000)
European Union ("EU") leaders at their Nice summit
signed the Charter of Fundamental Rights of the European
Union ("Charter") to inter alia strengthen the
protection of fundamental rights in light of "changes
in society, social progress and scientific and technological
developments" by increasing their visibility. Preamble.
The Charter's provisions are addressed to EU institutions
and bodies, and to EU Member States only in the implementation
of EU law. Art. 51.1. The Charter does not establish
any new power or task for inter alia the EU,
nor does it modify any EU treaty power or task. Art.
51.2.
The Charter prohibits inter alia the death penalty,
eugenics, human cloning, collective expulsions, and
extradition to a state where there is a "serious risk"
of the person being subjected to the death penalty,
torture or other inhuman or degrading treatment or punishment.
Arts. 2.2, 3.2, 19.
The Charter recognizes the right to the protection
of personal data, as well as freedom for the arts and
scientific research. Arts. 8.1, 13. The Charter recognizes
individual equality under the law, and prohibits discrimination
on grounds of inter alia age and sexual orientation.
Arts. 20-21. The Charter recognizes and respects the
rights of: 1) the elderly to "lead a life of dignity
and independence and to participate in social and cultural
life," (Art. 25); and 2) the disabled to benefit from
measures designed to ensure their independence, social
and occupational integration and participation in community
life. Art. 26.
The Charter notes that the principle of gender equality
shall not prevent the maintenance or adoption of measures
providing for "specific advantages" in favor of the
"under-represented sex." Art. 23. The Charter moreover
states that children "may express their views freely"
and that such views shall be considered in matters concerning
them "in accordance with their age and maturity." Art.
24.1. The Charter prohibits the employment of children
below "minimum school-leaving age," subject to certain
exceptions. Art. 32. The Charter further recognizes
the right to protection from dismissal for reasons connected
to maternity, the right to paid maternal leave, or parental
leave following birth or adoption. Art. 33.2. The Charter
does so to "reconcile family and professional life."
Id.
The Charter recognizes the right of workers and employers
to negotiate and conclude collective agreements or defend
their interests by collective action, including strikes.
Art. 28. The Charter notes that third-country nationals
authorized to work in the EU are entitled to working
conditions "equivalent to those" of EU citizens. Art.
15.3. The Charter also recognizes the rights of: 1)
access to a free placement service; and 2) protection
from unjustified dismissal. Arts. 29-30.
The Charter states that high-level environmental protection
and environmental quality improvement must be ensured
in accordance with the principle of sustainable development.
Art. 37. The Charter also states that EU policies shall
ensure a high level of consumer protection. Art. 38.
PH
Editor's Note: The Charter's signed version was
not available at the time of this ILIB issue's publication.
This abstract used the text of the September 28, 2000
draft found on the EU website on the date of this issue's
publication (and the day after the Charter's signing),
in the absence of any indication made known to the ILIB
Editors that substantive changes had been made to the
draft. The September 28, 2000 draft version is available
in PDF format at http://europa.eu.int/comm/justice_home/unit/charte/pdf/charter_en.pdf
ECHR: Former King of Greece
v. Greece, No. 25701/94 (November 23, 2000)
Greece's Law no. 2215/1994 ("1994 Law") inter alia
proclaimed the Greek State to be the owner of the movable
and immovable property of the former king and royal
family of Greece. Para. 41. The king and eight family
members subsequently applied to the European Commission
of Human Rights ("Commission"), alleging that the 1994
Law violated their rights under the European Convention
for the Protection of Human Rights and Fundamental Freedoms
("Convention"). Paras. 1-2.
The Commission declared the application partly admissible
in regard to certain royal family members ("Applicants"),
and unanimously opined that there had been a violation
of Article 1 of Protocol No. 1 to the Convention ("Article")
protecting the right to peaceful enjoyment of possessions.
Para. 3. [See
November 8-19, 1999 ILIB for abstract of Commission
Report.] The case was thereafter referred to
the European Court of Human Rights ("Court"). Paras.
1, 4.
The Court rejected Greece's argument that the contested
estates were "inextricably linked" to the Head of State
institution so as not to "fall under the notion of 'possessions'"
protected by the Article. Paras. 51, 60-61, 66. The
Court instead held that the contested properties were
for the purpose of the Article "possessions" owned by
the Applicants and their ancestors "as private persons"
rather than in their capacity as royal family members.
Paras. 63, 66. The Court took particularly into account
the fact that Greece had prior to the 1994 Law treated
the members of the royal family as private owners of
the estates in question. Para. 62.
The Court considered that "in 1994 there was an interference"
with the Applicants' right to peaceful enjoyment of
their possessions amounting to a "deprivation" within
the meaning of the Article. Para. 78. The Court further
considered the 1994 Law to be the "sole legal basis"
for the interference, but concluded it could not find
the 1994 Law unconstitutional in light of the Greek
Special Supreme Court's contrary finding. Para. 82.
The Court determined the deprivation to be "provided
for by law" as required by the Article. Id.
The Court opined that national authorities are "in
principle better placed than the international judge"
to appreciate what is in the public interest. Para.
87. The Court further stated that the "notion of 'public
interest' is necessarily extensive." Para. 88. The Court
held that while "some doubt" might arise from the nearly
twenty-year gap between the constitutional transition
from monarchy and the 1994 Law, such a fact could not
deprive the 1994 Law's "overall objective" of its "legitimacy
as being 'in the public interest'." Id.
The Court determined, however, that the Applicants
had a " legitimate expectation" to be compensated for
the taking of their estates, and found that Greece had
failed to provide a "convincing explanation" as to why
it had not compensated the Applicants. Para. 98. The
Court opined that the lack of any compensation had upset
"the fair balance" between the protection of property
and public interest requirements. Para. 99. The Court
accordingly found a violation of the Article. Id.
The Court reserved the question of "just satisfaction"
under Convention Article 41, and invited Greece and
the Applicants to submit within six months their observations
on the question and to notify the Court of "any agreement"
that they might reach. Paras. 104, 107; Holding,
Para. 3.
In a partly dissenting opinion, Judge Koumantos, joined
by Judge Zupancic, argued inter alia against
the finding of an Article violation on the ground that
the Article was intended to protect private property
belonging to natural or legal persons rather than that
"assigned to certain persons in connection with their
public duties," even if such property were to retain
"some features governed by private law." Koumantos
Partly Dissenting Opinion. BM
WTO Appellate Body: European
Communities -- Measures Affecting Asbestos and Asbestos-Containing
Products, Communication from the Appellate Body
(regarding adopted additional procedure for dealing
with written briefs received from persons other than
parties or third parties to the dispute), WT/DS135/9
(November 8, 2000)
The World Trade Organization Appellate Body ("Appellate
Body"), hearing the appeal in European Communities
-- Measures Affecting Asbestos and Asbestos-Containing
Products [see
November 4-10, 2000 ILIB for abstract of WTO Panel Report],
adopted pursuant to Rule 16(1) of the Working Procedures
for Appellate Review, and for the purposes of the instant
appeal only, an additional procedure to deal with any
written briefs received by the Appellate Body from natural
or legal persons other than a party or a third party
to the dispute. Paras. 1-2. Such persons were to first
apply to the Appellate Body for leave to file a brief
by noon on November 16, 2000. Para. 2.
The additional procedure provides that the application
for leave to file shall inter alia: 1) be in
writing and no more than three typed pages long; 2)
describe the applicant and specify the nature of the
applicant's interest in the appeal; 3) identify the
specific legal issues in the appeal which the applicant
intends to address; 4) state why it would be desirable
for the Appellate Body to grant leave to file; and 5)
indicate the way in which the applicant would make a
contribution to resolving the dispute so as not to likely
be "repetitive of what has been already submitted by
a party or third party to this dispute." Para. 3.
Any person granted leave to file was to have by noon
on November 27, 2000: 1) filed a brief of no more than
twenty typed pages with the Appellate Body Secretariat;
and 2) served a copy of the brief on all the parties
and third parties to the dispute. Paras. 6-8. The parties
and third parties to the dispute shall be given a "full
and adequate" opportunity by the Appellate Body to comment
on and respond to any such brief. Para. 9. BM
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