Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law May 22, 2002
European Court of Human Rights (ECHR):
Pretty v. The United Kingdom, Application No. 2346/02
(April 25, 2002)
The ECHR rejected Mrs. Pretty's allegation that the Convention
for the Protection of Human Rights and Fundamental Freedoms
("Convention") allowed for a person to be assisted
in committing suicide. Mrs. Pretty, a U.K. citizen,
was terminally ill with the motor neuron disease, which
is an incurable, degenerative illness affecting muscles.
As the result of her illness, Mrs. Pretty was paralyzed
from the neck downwards, with her ability to speak seriously
impaired. Mrs. Pretty had, however, unimpaired intellect
and decision making capacity, and she wanted to commit
suicide. Due to her condition, she was not able
to perform this act alone, and she sought a guarantee
from the U.K. Director of Public Prosecutions that her
husband would not be prosecuted, if he assisted her to
end her life.
Mrs. Pretty's request to the U.K. Director of Public
Prosecutions was rejected, pursuant to the provisions
of English law prohibiting any assistance in committing
suicide. The U.K. House of Lords had confirmed this
finding, and Mrs. Pretty subsequently appealed to the
ECHR, alleging violations of Articles 2 ("Right to
Life"), 3 ("Prohibition of Torture"), 8
("Right to Respect for Private and Family Life"),
9 ("Freedom of Thought, Conscience and Religion")
and 14 ("Prohibition of Discrimination") of
the Convention.
The ECHR, although accepting Mrs. Pretty's application
as admissible, held that the "right to life"
could not be interpreted to include the "right to
die," whether at the "hands of a third person
or with the assistance of a public authority." The
ECHR held that Article 3 did not provide for any positive
obligation requiring the Respondent either to guarantee
not to prosecute Mrs. Pretty's husband if he assisted
her to commit suicide or to provide for any other form
of assisted suicide. Additionally, the ECHR noted
that it could not be "sympathetic to the applicant's
apprehension that without the possibility of ending her
life she faces the prospect of a distressing death."
The ECHR noted that the more serious the harm involved
"the more heavily would weigh in the balance"
considerations of public health and safety against the
"countervailing" principle of personal authority.
The ECHR emphasized that there were "clear risks
of abuse," if the general prohibition on assisted
suicides were to be relaxed or if exceptions were to be
created, notwithstanding arguments as to the possibility
of safeguards and protective procedures.
Note: Mrs. Diane Pretty died of natural causes on
May 12, 2002 in a hospice near her home.
Eritrea-Ethiopia Boundary Commission
(EEBC): Decision Regarding Delimitation of the Border
between the State of Eritrea and the Federal Democratic
Republic of Ethiopia (April 13, 2002)
The EEBC completed the delimitation of the common border
between Eritrea and Ethiopia, and it will address the
border demarcation issues in the next phase of its work.
The EEBC was established pursuant to Article 4 of the
Agreement between the Government of the State of Eritrea
and the Government of the Federal Democratic Republic
of Ethiopia ("Agreement"), which was concluded
between the two states on December 12, 2000 (see
40 ILM 260 (2001); see alsoDecember 9-15, 2001 ILIB for the summary of
the Agreement).
Article 4 of the Agreement provides that the EEBC's mandate
is to "delimit and demarcate the colonial treaty
border based on pertinent colonial treaties (1900, 1902
and 1908) and applicable international law."
The pertinent treaties were concluded between Ethiopia
and Italy, and together they addressed the entire common
boundary of Ethiopia and Eritrea, which was a colony at
the time. However, boundaries addressed in these
treaties were not demarcated, and just partially delimited.
For the purpose of the boundary delimitation, the EEBC
relied primarily on the meaning of the three colonial
treaties, which cover three different sectors of the Parties'
common boundary. In interpreting the treaties, the
EEBC applied the "general rule that a treaty is to
be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their
context and in the light of its object and purpose."
Additionally, the EEBC applied the doctrine of "contemporaneity,"
according to which a treaty should be interpreted by reference
to the "circumstances prevailing when the treaty
was concluded."
The EEBC rejected, however, Ethiopia's contention that
the boundary should be determined "exclusively"
on the basis of the three colonial treaties as interpreted
in accordance with the rules of international law governing
treaty interpretation. The EEBC held that, pursuant
to its mandate prescribed by Article 4 of the Agreement,
it was required also to apply those rules of international
law applicable generally to the determination of disputed
borders including, "in particular, the rules relating
to the effect of conduct of the parties." The
EEBC noted that the latter included maps, activity on
the ground "tending to show the exercise of sovereign
authority" by the Parties, and a range of diplomatic
and other similar exchanges and records.
The Appeal Court of the High Court
of Justiciary: Al Megrahi v. Her Majesty's Advocate
(Appeal Against Conviction), Appeal No. C104/01 (March
14, 2002)
The Appeal Court of the High Court of Justiciary ("Appeal
Court") refused all the grounds of the appeal against
conviction submitted by Mr. Al Megrahi, a Libyan citizen
who had been convicted for the 1998 bombing of Pan Am
flight 103 over Lockerbie, Scotland. On January
31, 2001, the Scottish High Court of Justiciary ("trial
court") convicted Mr. Al Megrahi in a specially arranged
trial that took place at Camp Zeist, the Netherlands.
The trial also involved another Libyan citizen, Mr. Fhimah,
who was acquitted pursuant to the same judgment (seeJanuary 27-February 2, 2001 ILIB for more information
on these proceedings and its findings). Mr. Al Megrahi's
appeal was primarily concerned with the trial court's
"treatment of the evidence and defense submissions,"
alleging the "miscarriage of justice."
One ground of appeal, however, sought the introduction
of additional evidence.
The Appeal Court granted the request for introduction
of additional evidence, which suggested that the bomb
had been infiltrated at Heathrow airport as a result of
a forced entry into the airport's "baggage build-up
area," and not at Malta's Luqa airport as the trial
court had established it. The Appeal Court assessed
the significance of the additional evidence in the light
of the overall circumstantial evidence laid before the
trial court, and concluded that the former could not be
regarded as possessing such importance "as to have
been likely to have had a material bearing on the trial
court's determination of [this] critical issue."
The Appeal Court consequently held that the trial court's
"ignorance" of the additional evidence could
not have been regarded as a miscarriage of justice.
As to remaining grounds of appeal, the Appeal Court concluded
that none of them "[was] well founded" to prove
the allegation of the miscarriage of justice by the trial
court.
Inter-American Court of Human Rights
(IACHR): The Case of the Mayagna (Sumo) Awas Tingni
Community v. Nicaragua (August 31, 2001)
The IACHR held that Nicaragua violated the right to private
property and judicial protection, guaranteed under the
American Convention on Human Rights. The case originated
from an application launched by the Awas Tingni representative
before the Inter-American Commission on Human Rights.
The Commission found, inter alia, that Nicaragua
had not demarcated the communal lands of the Awas Tingni
Community. Awas Tingni is one of the indigenous
communities that have inhabited the Nicaragua's Northern
Atlantic Autonomous Region.
The IACHR noted that relations to the land, for indigenous
communities, were not "merely a matter of possession
and production but a material and spiritual element which
they must fully enjoy [in order] to preserve their cultural
legacy and transmit it to future generations."
The IACHR found that Nicaraguan law, although containing
norms recognizing and protecting indigenous communal property,
did not contain an effective procedure for delimitation,
demarcation and titling of the same property. The
IACHR, therefore, ordered Nicaragua to adopt necessary
legislative, administrative, or other measures to create
an effective mechanism for delimitation and titling of
the Awas Tingni's property that would be in accordance
with "the customary law, values, customs and mores
of that Community."
Document available in electronic format from the ILM
Office.
Supreme Court of Canada: Suresh
v. Canada (Minister of Citizenship and Immigration),
2002 SCC 1 (January 11, 2002)
The Supreme Court of Canada ("Court") ruled
that Mr. Suresh, a Sri Lankan refugee, was not provided
with the necessary procedural safeguards to protect his
right not to be expelled to a risk of torture, and that
he was consequently entitled to a new deportation hearing.
In the course of the preceding deportation proceedings,
the Canadian Minister of Citizenship and Immigration ("Minister")
decided that Mr. Suresh represented danger to Canadian
security. However, Mr. Suresh had not been presented
with a copy of an opinion submitted by an immigration
officer nor was he allowed to respond to it. The
deportation proceedings were prompted by Canadian Security
Intelligence Service's opinion that Mr. Suresh was a member
and fundraiser of the Liberation Tigers of Tamil Eelam,
which was alleged to be engaged in terrorist activity
in Sri Lanka.
The Court interpreted international law to reject deportation
to torture, "even where national security interests
are at stake," concluding that the Minister should
"generally decline" to deport refugees in case
it had been proven that there is a substantial risk of
torture. The Court, nevertheless, pointed out that
terrorism is a "world-wide phenomenon," and
that year 2001 proved that terrorism in one country could
implicate other countries. The Court thus declined to
"exclude the possibility" that it would be justified
for Canadian authorities to order deportation in "exceptional
circumstances," despite the prospect of torture.
As to the new deportation hearing, the Court opined that
Mr. Suresh could be ordered for deportation, provided
that the Minister "certifies" him as a substantial
danger to Canada and "provided that he is found to
be engaged in terrorism or a member of a terrorist organization."
United Nations (U.N.) Security Council:
Resolution 1410 (On the Situation in East Timor), S/RES/1410
(May 17, 2002)
The U.N. Security Council commended the people of East
Timor for establishing independence by peaceful and democratic
means and applauded the work of the U.N. Transitional
Administration in East Timor (UNTAET). Noting, however,
the fragility of East Timor's newly won independence and
the Secretary-General's assessment of difficulties that
had a negative effect on the effectiveness of East Timor's
judicial system, the Security Council decided to establish
the U.N. Mission of Support in East Timor (UNMISET), as
a successor mission to the UNTAET. The UNMISET will
assist core administrative structures critical to the
"viability and political stability of East Timor,"
including providing interim law enforcement and public
security.
United Nations (U.N.)
Security Council: Resolution 1411 (On International Criminal
Tribunal for the Former Yugoslavia and International Criminal
Tribunal for Rwanda), S/RES/1411 (May 17, 2002)
The U.N. Security Council, recognizing that people who
are nominated, elected or appointed as judges of the International
Criminal Tribunal for the Former Yugoslavia (ICTY) or
of the International Criminal Tribunal for Rwanda (ICTR)
might be nationals of two or more states, decided that
such persons should be regarded as bearing solely the
nationality of the State in which they "ordinarily
exercise civil and political rights." The Resolution
amends Articles 12 and 11 respectively of the ICTY and
ICTR Statutes.
On May 13, the United States announced
that it reached an agreement with the Russia on a new
nuclear arms reduction treaty, which is due to be signed
during the upcoming U.S.-Russia Presidential summit in
Moscow.
NATO and Russia agreed to create a NATO-Russia Council
that will set joint policy on a number of issues, including
counterterrorism, proliferation of nuclear, chemical
and biological weapons, missile defense, peacekeeping
and management of regional crisis. The official
adoption and signing of the agreement will take place
on May 28, in Rome, Italy.
International Law In Brief (ILIB) - Copyright 2002
- The American Society
of International Law (ASIL) Editors: Branislav A. Maric, Scott Smith
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