Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law March 19, 2002
Council
of Europe (COE): Protocol No. 13 to the Convention for
the Protection of Human Rights and Fundamental Freedoms,
Concerning the Abolition of the Death Penalty in all Circumstances
(February 21, 2002)
The Protocol No. 13 ("Protocol")
was adopted by the Committee of Ministers of the Council
of Europe, and will be opened for signature to all member
states on May 3, 2002. The Protocol provides for
the full abolition of the death penalty. The Protocol
underlines that "[n]o one shall be condemned to [the
death] penalty or executed." The Protocol prohibits
any derogation from or reservation in respect of its provisions
under Articles 15 ("Derogation in Time of Emergency")
and 57 ("Reservations") of the European Convention
for the Protection of Human Rights and Fundamental Freedoms.
The Protocol noted that everyone's right to life is a
"basic value in a democratic society" and that
abolition of the death penalty was "essential for
the protection of this right and for the full recognition
of the inherent dignity of all human beings."
European
Court of Human Rights (ECHR): Bankovic and Others v.
Belgium and 16 Other Contracting States, Application
No. 52207/99 (December 12, 2001)
The ECHR Grand Chamber dismissed
as inadmissible an application by the relatives of individuals
that were killed in the 1999 bombing of a Belgrade building
of the Radio Television of Serbia ("RTS") during
the North Atlantic Treaty Organisation ("NATO")
air strikes against the Federal Republic of Yugoslavia
("FRY"). The application was brought against
all the European NATO member states, which are also parties
to the Convention for the Protection of Human Rights and
Fundamental Freedoms ("Convention"). The
FRY was not, and is still not, a party to the Convention.
The ECHR rejected the Applicants'
arguments that the respondent States' control over the
FRY's airspace was "nearly as complete as Turkey's
control over the territory of northern Cyprus," and
that the RTS strike thus brought them within the jurisdiction
of the respondent States. The ECHR noted that the
jurisdictional competence of a State was primarily territorial,
and that a state might not exercise jurisdiction on the
territory of another state without the latter’s
consent, invitation and acquiescence. The ECHR also
noted that Convention Article 1, which provides that States
Parties shall secure to everyone "within their jurisdiction"
the rights and freedoms under the Convention, must be
considered to reflect "this ordinary and essentially
territorial notion of jurisdiction."
The ECHR concluded that state
practice in the application of the Convention had been
"indicative" of a lack of any apprehension on
the part of the Contracting States of their extra-territorial
responsibility in contexts similar to the present case.
The ECHR found that its case-law demonstrated that its
recognition of the exercise of extra-territorial jurisdiction
by a Contracting State was "exceptional."
The ECHR noted that it had done so when "a respondent
State, through the effective control of the relevant territory
and its inhabitants abroad as a consequence of military
occupation or through the consent, invitation or acquiescence
of the Government of that territory, exercises all or
some of the public powers normally to be exercised by
that Government."
Inter-American Commission
on Human Rights (IACHR): Detainees at Guantanamo Bay,
Cuba – Pertinent Parts of Decision on Request for
Precautionary Measures (March 12, 2002)
The IACHR adopted precautionary measures asking the Government
of the United States of America ("U.S.") to
"take the urgent measures necessary to have the legal
status of the detainees at Guantanamo Bay determined by
a competent tribunal." The IACHR noted that
available information suggested that the Guantanamo detainees
remained entirely at the "unfettered discretion"
of the U.S. Government. The IACHR concluded that
absent clarification of the legal status of the detainees,
the rights and protections to which they might be entitled
under international or domestic law "[could not]
be said to be the subject of effective legal protection"
by the U.S.
The IACHR was of the opinion that no person under the
authority and control of a state, regardless of his or
her circumstances, was devoid of legal protection for
his or her fundamental and non-derogable human rights.
The IACHR noted that where persons found themselves within
the authority and control of a state and where circumstances
of armed conflict might be involved, their fundamental
rights might be determined in part by "reference
to international humanitarian law as well as international
human rights law." The IACHR stressed that
the Organization of American States member states, including
the U.S., had charged it with "supervising member
states' observance of human rights in the Hemisphere."
The IACHR concluded that, under the circumstances, the
requested precautionary measures were both "appropriate
and necessary" in order to ensure that the legal
status of each of the detainees was clarified and that
they were afforded the legal protections, which should
not fall below the minimum standards of non-derogable
rights.
Text of the Decision was provided to the ILM Office
by the IACHR. The ILM Office is not aware of an
on-line version of the Decision.
U.S. Court
of Appeals for the Ninth Circuit: Gaudin v. Remis,
No. 01-15096 (March 11, 2002)
The Ninth Circuit remanded
the current case to the district court to determine whether
Ms. Gaudin had moved permanently to Hawaii. Ms.
Gaudin previously appealed a lower court ruling that had
rejected her petition, under the Hague Convention on the
Civil Aspects of International and Child Abduction ("Convention"),
for the return of her two children to Canada, the place
of her last confirmed residence, on the basis that they
would face a grave risk of psychological harm. Mr.
Remis, Ms. Gaudin's former husband and the children's
father, refused to return the children after they had
come for an extended visit to Hawaii, the place of his
residence. On appeal, Mr. Remis argued that his
former wife moved to Hawaii and that the petition under
the Convention had thus become moot.
The Ninth Circuit noted that
the Convention's principal remedy was the return of an
abducted child. The Ninth Circuit further noted
that the Convention did not require that the child be
returned to his or her state of "habitual residence,"
in case the petitioner had moved to another country.
The Ninth Circuit held, however, that if a petitioner
relocated permanently to the same country in which the
abductor and the children were found, he or she "cast[ed
his/her] lot with the judicial system of that country."
The Ninth Circuit therefore concluded that if Ms. Gaudin
had moved to Hawaii, her potential relief lied with the
Hawaiian courts and not with the Convention. The
Ninth Circuit, however, found that it was "ill-equipped"
to resolve that factual dispute, and remanded the issue
to the district court for evidentiary hearing.
World Trade Organization (WTO) Appellate
Body Report: United States – Section 211 Omnibus
Appropriations Act of 1998, AB-2001-7 (January 2,
2002)
The WTO Appellate Body partially reversed an earlier
panel holding that found Section 211 of the U.S. Omnibus
Appropriations Act to be in accordance with the U.S. obligations
under the Agreement on Trade-Related Aspects of Intellectual
Property Rights ("TRIPS Agreement"). Under
Section 211, U.S. courts are not allowed to "recognize,
enforce or otherwise validate any assertion of treaty
rights by a designated national or its successor-in-interest"
for marks, trade names, or commercial names substantially
similar to those that were used in connection with "a
business or assets" that were confiscated by the
Cuban Government on or after January 1, 1959, unless the
original owners or their bona fide successors-in-interest
have "expressly consented." For the purposes
of Section 211 "designated national," inter
alia, means: Cuba, any Cuban national, or a "national
of any foreign country who is a successor-in-interest
to a designated national."
The Appellate Body held that Section 211 violated the
national treatment obligations set forth in the TRIPS
Agreement because it imposed an "additional obstacle"
on non-U.S. successors-in-interest that was not faced
by U.S. successors-in-interest. Additionally, the
Appellate Body held that Section 211 was in violation
of the TRIPS Agreement's most-favored-nations treatment
provisions because it discriminated between a Cuban national
and a non-Cuban foreign national "both of whom are
original owners of [U.S.] trademarks composed of the same
or substantially similar signs as a trademark used in
connection with a business or assets that were confiscated
in Cuba." The Appellate Body reversed the panel
report in part related to the protection of trade names,
holding that WTO Members are obliged to protect trade
names under the TRIPS Agreement.
The Appellate Body noted that its ruling was not a judgment
on confiscation as the term was defined in Section 211.
The Appellate Body also underlined that it did not express
any view on whether a WTO Member should, or should not,
recognize in its own territory trademarks, trade names,
or any other rights relating to any intellectual or other
property rights that might have been expropriated or otherwise
confiscated in other territories. The Appellate
Body concluded, however, that "where a WTO member
chooses not to recognize intellectual property rights
in its own territory relating to a confiscation of rights
in another territory, a measure resulting from and implementing
that choice must, if it affects other WTO Members, comply
with the [TRIPS Agreement], by which all WTO Members are
voluntarily bound."
International Atomic
Energy Agency (IAEA) Board of Governors: Nuclear Verification
and Security Materials (Physical Protection Objectives
and Fundamental Principles), GOV/2001/41 (August 15, 2001)
The IAEA Board of Governors
submitted to the IAEA General Conference a set of Physical
Protection Objectives and Fundamental Principles intended
for nuclear material in use and storage, and during transport,
and for nuclear facilities using or storing such materials.
The Board noted that the need for international cooperation
in the protection of nuclear materials and facilities
was "particularly evident" in situations where
the effectiveness of physical protection in one state
depended on other states taking. The Board stressed
that physical protection played an important part in supporting
nuclear non-proliferation objectives and in protecting
public health and safety and the environment.
The Objectives are supposed
to: (1) protect against unauthorized removal of nuclear
material; (2) ensure the implementation of rapid and comprehensive
measures by states to locate and recover missing or stolen
nuclear material; (3) protect against sabotage of nuclear
facilities and materials; and (4) mitigate or minimize
the radiological consequences of sabotage. The twelve
proposed Principles (i.e., A through L), inter
alia, provide that states will be exclusively responsible
for the establishment, implementation and maintenance
of their physical protection regime, as well as for the
establishment and maintenance of a legislative and regulatory
framework governing physical protection. Furthermore,
the Principles require that each state party should establish
or designate a competent authority that is responsible
for the implementation of the legislative and regulatory
framework. Additionally, the Principles provide
that states' physical protection should be based on their
"current evaluation of the threat."
Click here
for the text of Objectives and Principles.
International
Atomic Energy Agency (IAEA) General Conference: Resolution
on Measures to Improve the Security of Nuclear Materials
and other Radioactive Materials, GC(45)/RES/14 (September
21, 2002)
The IAEA General Conference recognized
the importance of promotion of an effective security culture
in the field of physical protection of nuclear material
and facilities. The General Conference welcomed
the Board of Governors' endorsement of the Physical Protection
Objectives and Fundamental Principles. The General
Conference encouraged states to apply the Fundamental
Principles in "designing, implementing and regulating"
their national systems for the physical protection of
nuclear material and facilities used for peaceful purposes.
United Nations
(U.N.), Inter-American Commission on Human Rights (IACHR),
and African Commission on Human and Peoples' Rights (ACHPR):
Joint Declaration of the Special Rapporteurs on Women's
Rights (March 1, 2002)
The Joint Declaration was
issued by the U.N. Special Rapporteur on Violence Against
Women, its Causes and Consequences, and the IACHR and
ACHPR Special Rapporteurs on women's rights at their February
28-March 1, 2002 meeting in Montreal, Canada. The
Declaration underlined that international standards of
human rights protected women from violence and discrimination
by private non-state actors, and that states had a duty
to take "all appropriate measures" to eliminate
discrimination against women by any person, organization
or enterprise.
The Declaration stressed that
violence against women and girls was perpetrated in every
country in the world, in the times of peace or conflict,
and that the state agents and private actors responsible
were "not held to account." The Declaration
urged states to take "immediate action" to end
such impunity and to bring perpetrators to justice.
The Declaration provided that three Rapporteurs would
coordinate efforts to achieve greater effectiveness in
their work through, inter alia, exchange of information,
sharing of ideas and strategies on how to approach emerging
issues and the violation of women's rights, and communication
with regional and international NGOs, women's organizations
and other representatives of civil society that advocate
the promotion and protection of women's human rights.
United Nations
(U.N.) Security Council: Resolution 1397 (On the Situation
in the Middle East, Including the Palestinian Question),
S/RES/1397 (March 12, 2002)
Affirming a "vision of
a region where two States, Israel and Palestine, live
side by side within secure and recognized borders,"
the U.N. Security Council demanded immediate cessation
of all acts of violence, including acts of "terror,
provocation, incitement and destruction." The
Security Council welcomed the diplomatic efforts of special
envoys from the United States, Russia, the European Union,
and the U.N. Special Coordinator to bring about a comprehensive,
just and lasting peace in the Middle East. The Security
Council also welcomed the contribution of Saudi Prince
Abdullah, and called upon the Israeli and Palestinian
sides and their leaders to cooperate in the implementation
of the "Tenet work plan and Mitchell Report"
recommendations with the aim of resuming negotiations
on a political settlement.
The WTO released the Appellate Body report in India
– Measures Affecting the Automotive Sector
case, noting that India had withdrawn its appeal against
the panel’s findings. Click here for the
related press release and the Appellate Body report.
International Law In Brief (ILIB) - Copyright 2001
- The American Society
of International Law (ASIL) Editors: Branislav A. Maric, Scott Smith
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