Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law
October 9, 2001
From the Editors
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current developments in international law.
Organization of American States (OAS):
Inter-American Democratic Charter, AG/doc.8 9HHVIII-E/01
(September 6, 2001)
The OAS Foreign Ministers at their meeting in Lima, Peru,
adopted the Inter-American Democratic Charter ("Charter"),
declaring that the peoples of the Americas had a right
to democracy and their governments had an obligation to
promote and defend it. The Charter notes that democracy
is essential for the social, political and economic development
of the peoples of the Americas. The Charter also notes
that the effective exercise of representative democracy
is the basis for the rule of law and of the constitutional
regimes of the OAS member states.
The Charter provides that an unconstitutional interruption
or alternation of a member state's democratic regime and
constitutional order constitutes an "insurmountable obstacle"
to its government's participation in the work of the OAS
bodies. In case of such an unconstitutional alternation
of a member state's constitutional regime that "seriously
impairs [its] democratic order," the OAS Permanent Council,
upon the convocation by any OAS member state, should assess
the situation and make appropriate decisions, including
those providing for diplomatic initiatives such as good
offices. If diplomatic initiatives fail, the Charter empowers
the OAS General Assembly to suspend, by an affirmative
vote of two thirds, the member state in question from
participation in the OAS. The suspended member should,
nevertheless, continue to fulfill its obligations to the
OAS - and especially with respect to human rights. BM
Inter-American Court of Human Rights:
Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru)
(March 14, 2001)
The Inter-American Court of Human Rights ("Court") accepted
Peru's recognition of "international responsibility" for
the violation of rights to life, humane treatment, and
fair trial and judicial protection guaranteed under the
American Convention on Human Rights ("Convention") in
the case of a street execution of fifteen people and wounding
of four others that took place in 1991 in Lima's neighborhood
of Barrios Altos. The judicial investigation into the
crime did not begin until 1995 and was eventually terminated
after the Congress of Peru issued two amnesty laws that
inter alia "exonerated . . . from responsibility"
members of the army, police force and civilians who had
violated human rights or taken part in such violations
from 1980 to 1995.
During the course of the proceedings before the Court,
Peru declared its intention to withdraw recognition of
the Court's contentious jurisdiction. The Court rejected
this declaration as "inadmissable" and being in violation
of the "basic principle pacta sunt servanda." However,
Peru later submitted to the Court that it recognized its
international responsibility, and that it would "initiate
a friendly settlement procedure" with the Inter-American
Commission on Human Rights and the petitioners in the
case. The Court held that it would evaluate the agreement
reached by the parties, and that in case the agreement
is not reached within three months from the date of the
notification of the judgment, it would determine the scope
and amount of the reparations. The Court concluded that
self-amnesty laws are "manifestly incompatible" with the
aims and spirit of the Convention because they "lead to
the defenselessness of victims and perpetuate impunity."
BM
Document was provided in hard copy by the Organization
of American States (OAS).
International Criminal Tribunal for
the Former Yugoslavia (ICTY): Prosecutor v. Krstic,
Case No.: IT-98-33-T (August 2, 2001)
An ICTY Trial Chamber rendered the first genocide conviction
in the Tribunal's history in the case against Mr. Radislav
Krstic, a general of the Army of the Republika Srpska
and a former Drina Corps commander, for his involvement
in the military campaign in and around Srebrenica where
up to 8000 adult Bosnian Muslim men were executed in July
1995. General Krstic was also found guilty of persecution
for murders, cruel and inhumane treatment, terrorising
the civilian population, forcible transfer and destruction
of personal property of Bosnian Muslim civilians, and
murder as a violation of the laws and customs of war.
The Trial Chamber sentenced General Krstic to forty-six
years of imprisonment.
The Trial Chamber found that the Bosnian Serb forces
"effectively destroyed" the community of the Bosnian Muslims
in Srebrenica and eliminated all likelihood that it could
ever reestablish itself on that territory. The Trial Chamber
concluded that these acts must be qualified as genocide,
per Article 4 of the ICTY Statute, because they incorporated
the "intent to kill . . . in part" the Bosnian Muslim
group.
As to the General Krstic's individual responsibility,
the Trial Chamber held that he exercised "'effective control'"
over Drina Corps troops and assets at the material time
and throughout the territory on which the detentions,
executions and burials of victims were taking place. The
Trial Chamber further held that General Krstic "shared
the genocidal intent to kill the men," and participated
in a "joint criminal enterprise" because he was aware
that the killings of the military-aged Bosnian Muslim
men of Srebrenica would lead to annihilation of the entire
Bosnian Muslim community at Srebrenica. Finally, the Trial
Chamber concluded that although General Krstic did not
conceive the plan to kill the men, he fulfilled a "key
coordinating role" in implementing the killing campaign
and thus must be considered a principal perpetrator of
the crimes. BM
U.S. Court of Appeals for the Ninth
Circuit: Alvarez-Machain v. U.S., No. 99-56762
(September 11, 2001)
The U.S. Court of Appeals for the Ninth Circuit ("Ninth
Circuit") reaffirmed that Mr. Humberto Alvarez-Machain's
("Alvarez") forcible abduction from Mexico to the U.S.,
where he was immediately arrested by the U.S. Drug Enforcement
Agency ("DEA"), had been in the violation of the "'law
of nations'." The Ninth Circuit also reaffirmed that the
U.S. federal common law, instead of Mexican law, should
be applicable in determining the amount of damages to
be awarded to Alvarez.
In 1990, Mr. Alvarez, a Mexican citizen, was arrested
pursuant to an U.S. arrest warrant after he had been forcibly
abducted from Mexico by a group of Mexican nationals who
had been employed by the DEA for this purpose. Mr. Alvarez
had been later acquitted and he returned to Mexico. In
the current proceedings, Mr. Alvarez argued that the U.S.,
DEA agents, and those Mexican citizens involved in his
abduction should be held responsible for inter alia:
kidnaping; arbitrary detention; and false arrest and imprisonment.
The Ninth Circuit held that although no international
human rights instruments referred to transborder abduction
specifically, various "established international human
rights norms," such as the right to freedom of movement
or right to remain in one's country, encompassed it. The
Ninth Circuit also held that Alvarez's seizure violated
the international customary legal norm against arbitrary
detention because there was no Mexican warrant or any
lawful authority for his arrest. The Ninth Circuit ruled
in favor of the application of the U.S. federal common
law on damages as "stronger," and therefore working in
favor of enhancing the policies "underlying international
human rights law." BM
Permanent Court of Arbitration (PCA):
Optional Rules for Arbitration of Disputes Relating to
Natural Resources and/or the Environment (June 19, 2001)
The PCA, at an Extraordinary Meeting of its Member States,
adopted the Optional Rules for Arbitration of Disputes
Relating to Natural Resources and/or the Environment ("Rules").
According to the PCA, the Rules are the first of this
kind relating to the resolution of controversies concerning
environmental protection or conservation of natural resources.
The Rules provide that, unless the parties to an arbitration
have otherwise agreed, the arbitral tribunal may take
"any interim measures" it deems necessary, including provisional
orders with respect to the subject matter of the dispute,
to inter alia prevent "serious harm to the environment."
The Rules further provide that such interim measures may
be established in the form of an interim award, and that
the Tribunal may require appropriate security for such
measures.
The Rules allow the parties to an arbitration to appoint
arbitrators who are not members of the PCA. The Rules
oblige the PCA Secretary-General to provide, for the "purpose
of assisting the parties," a list of persons considered
to have expertise in the subject matters of a dispute
at hand. BM
U.N. Security Council: Resolution
1366 (On the U.N. Security Council Role in Prevention
of Armed Conflicts), S/RES/1366 (2001) (August 30, 2001)
The U.N. Security Council ("Council") expressed its commitment
to take "early and effective" action to prevent armed
conflict, by employing "all appropriate means at its disposal"
including, with the consent of the receiving States, its
missions to areas of potential conflict. As part of a
conflict prevention strategy, the Council stressed the
importance of including inter alia "civilian police"
in peacekeeping operations on a case-by-case basis, to
facilitate a "smooth transition" to the post-conflict
peace-building phase and ultimate conclusion of the mission.
In the context of peace-building, the Council emphasized
the particular importance of rehabilitating child soldiers.
The Council acknowledged "the lessons to be learned for
all concerned" from failure of preventive efforts that
preceded tragedies such as the genocide in Rwanda and
the massacre in Srebrenica (Bosnia and Herzegovina). BM
On September 13, 2001 a Chamber of the Second Section
of the European Court
of Human Rights (ECHR) declared partly admissible
the application of the son of Umberto II, the last king
of Italy and the head of the House of Savoy, who inter
alia complained that he has been banned from
entering and stying in Italy by the Italian Constitution.
The Court's press release can be found at http://www.echr.coe.int/Eng/Press/2001/Sep/DecisiondeSavoieepresse.htm.
International Law In Brief
- Copyright 2001 - The American Society of International
Law
Editors: Kaysie Clemmons, Branislav A. Maric
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