Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law July 19, 2002
African Union (AU):
The Durban Declaration in Tribute to the Organization
of African Unity on the Occasion of Launching of the
African Union (July 11, 2002)
The Declaration, issued by the Heads of
State and Government of the Assembly of the African
Union (AU), notes that the main objectives for establishing
the Organization of African Unity (OAU) thirty-nine
years ago were to, inter alia, "rid the
continent of the remaining vestiges of colonisation
and apartheid," and stresses that Africa is today
fully decolonized and apartheid "consigned to the
ignominy of history." Furthermore, the Declaration
states that the OAU was on the vanguard in the promotion
of the observance of human and people's rights, and
that Africa is today firmly on the road to democratization.
The Heads of State and Government of the AU Assembly
honored and paid tribute to the OAU founding leaders
for their "tenacity, resilience and commitment
to African Unity."
The Heads of State and Government of the
AU Assembly reiterated their continuing commitment to
the AU objectives as well as to the objectives of the
New Partnership of Africa's Development (NEPAD), which
is an AU program for strengthening of inter-African
cooperation and integration, overcoming the poverty,
and striving for better quality of life in Africa.
The Heads of State and Government of the AU Assembly
also committed themselves to urgently establish all
institutional structures to advance the AU agenda, reaffirming
the "pivotal role of women" in all levels
of African society and recognizing that the AU objectives
cannot be achieved without the "full involvement
and participation" of women at all levels and structures
of the AU.
European
Court of Human Rights (ECHR): Case of Christine Goodwin
v. The United Kingdom, Application No. 28957/95
(July 11, 2002)
The ECHR held that the United Kingdom's
decision not to legally recognize a gender re-assignment
of a British transsexual was in violation of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms ("the Convention").
Ms. Goodwin underwent gender re-assignment
surgery, and is a "post-operative male to female
transsexual." Ms. Goodwin's request for a
new "National Insurance (NI)" number was rejected
by the U.K. Department of Social Security ("DSS"),
whose records continue to state her sex as male.
Furthermore, the DSS ruled that Ms. Goodwin was ineligible
for a State pension at the age of 60, which is the age
of entitlement for women in the United Kingdom, and
that she would have to continue to contribute towards
her retirement until she reached the age of 65, being
the age of entitlement for men. Ms. Goodwin complained
to the ECHR arguing, inter alia, violations of
the Convention Articles 8 and 12, which guarantee the
right to respect for private and family life and right
to marry.
The ECHR held that it was not "formally
bound" by its previous decisions involving the
position of transsexuals in the United Kingdom, in which
it found that there was no positive obligation on behalf
of the Government to alter their existing system for
the registration of births by establishing a new system
that would reflect the current civil status. The
ECHR noted that it is of "crucial importance"
that the Convention is interpreted and applied in a
manner which "renders its rights practical and
effective, not theoretical and illusory."
The ECHR was "struck" by the
fact that the U.K. authorities did not provide for full
legal recognition of Ms. Goodwin's new civil status,
although the U.K.'s national health service covered
the costs of Ms. Goodwin's re-assignment surgery, after
recognizing her condition as "gender dysphoria."
The ECHR concluded that it was "illogical"
to refuse to recognize the legal implications of the
result to which the treatment have led. The ECHR
cited an "emerging consensus" among the Contracting
States, as well as "uncontested evidence of a continuing
international trend," on providing full legal recognition
of the new sexual identity of post-operative transsexuals.
The ECHR held that the situation in which post-operative
transsexuals live in an "intermediary zone"
as not quite one gender or the other is "unsatisfactory"
and "no longer sustainable" in the twenty
first century. Consequently, the ECHR ruled that
the United Kingdom's failure to accord full legal recognition
of Ms. Goodwin's gender re-assignment amounted to a
failure to respect her right to private life guaranteed
under Article 8.
The ECHR observed that Article 12 of the
Convention does not condition the right to marry on
a man and woman's ability to conceive and parent a child.
The ECHR also noted that there have been "major
social changes in the institution of marriage since
the adoption of the Convention, as well as dramatic
changes brought about by developments in medicine and
science in the field of transsexuality."
The ECHR further noted that the recently adopted Charter
of Fundamental Rights of the European Union (click here for the ILIB summary of the Charter or read
the full text of the Charter in 40 ILM 266 (2001)) deliberately
departed from Article 12 language, removing any reference
to men and women in its acknowledgment of the right
to marry and right to found the family. For all
these reasons, the ECHR held that there was no justification
for barring a transsexual from enjoying the right to
marry under "any circumstances."
United States (U.S.)
Court of Appeals for the Ninth Circuit: Dazo v. Globe
Airport Security Services, No. 00-15058 (July 1,
2002)
The U.S. Court of Appeals for the Ninth
Circuit ("the Ninth Circuit") reversed a district
court's finding that the Convention for the Unification
of Certain Rules Relating to International Transportation
("the Warsaw Convention") applies to an airport
security company providing services to both international
and domestic passengers.
The case originated from an application
by Ms. Ester Dazo whose carry-on baggage, containing
valuable jewelry, was stolen while she was passing through
a security checkpoint managed by Globe Airport Security
Services ("Globe"). Ms. Dazo was bound
for Toronto, Canada, and the incident took place at
the San Jose International Airport. The district
court dismissed Ms. Dazo's subsequent claims for negligence
and breach of the implied contract of bailment, holding
that they were preempted by the Warsaw Convention because
the theft occurred while Ms. Dazo was in the process
of embarking.
The Ninth Circuit noted that Globe was
conducting security check required under federal law,
"regardless of whether the flight being boarded
is a domestic or international flight, or whether the
person being screened is boarding any flight at all,"
as well as that the Warsaw Convention does not require
security screenings. The Ninth Circuit opined
that the Globe's services were thus not in furtherance
of the contract of carriage of an international flight,
and that Globe could not be accorded carrier status
under the Warsaw Convention. In addition, the
Ninth Circuit noted that the post-September 11 federalization
of the passenger-screening function reinforced the point
that the latter are a "national program wholly
independent of the Warsaw Convention." The
Ninth Circuit concluded that Globe could not be protected
by the limitation of liability provided under the Warsaw
Convention.
United States (U.S.)
Court of Appeals for the District of Columbia Circuit:
USA v. Vasquez-Martinez N., No. 01-5220 (July
12, 2002)
The U.S. Court of Appeals for the District
of Columbia Circuit ("the D.C. Circuit") affirmed
a district court's decision to grant a civil forfeiture
action over a bank deposit in a foreign country.
The U.S. Government brought the action
against $4.6 million on deposit at a Spanish bank.
The money originated from criminal operations of Juan
Ramon Matta, the leader and organizer of a crime ring
that smuggled major quantities of cocaine into the United
States in the 1980s and who is currently imprisoned
in a U.S. federal penitentiary. Matta's wife,
Mrs Vasquez, intervened and argued that the court had
no jurisdiction because, inter alia, the funds
were outside the court's territorial jurisdiction.
Both parties agreed, however, that the origins of the
funds are illegal, and that they must be forfeit, provided
that a U.S. court can order its forfeiture.
The D.C. Circuit noted that forfeiture
is an ancient penalty, which can be traced back to Biblical
times, and that 1992 Congressional amendments provided
U.S. district courts with in rem jurisdiction
over property and assets located in a foreign country.
The D.C. Circuit held that although "[i]t may well
be" that a forfeiture order of a U.S. court will
not have its full effect until the property in question
is brought within the U.S. territory, a foreign country's
compliance and cooperation determines "only the
effectiveness of the forfeiture orders of the [U.S.]
district courts, not their jurisdiction to issue those
orders."
United Nations (U.N.)
Security Council: Resolution 1422 (On United Nations
Peacekeeping), S/RES/1422 (July 12, 2002)
The U.N. Security Council, acting under
Chapter VII of the U.N. Charter and consistent with
Article 16 of the Rome Statute of the International
Criminal Court (ICC), requested the ICC not to commence
or proceed for a period of twelve months, starting from
July 1, 2002, with an investigation or prosecution of
any case involving "current or former officials
or personnel from a contributing State not a Party to
the Rome Statute over acts or omissions relating to
a [U.N.] established or authorized operation."
The Security Council expressed the "intention"
to renew this request under the same conditions each
July 1 for further twelve-month periods "for as
long as may be necessary." In support of
its decision, the Security Council noted that it was
in the interest of international peace and security
to "facilitate Member States' ability" to
contribute to the U.N. Security Council authorized operations.
United Nations (U.N.)
Security Council: Resolution 1423 (On the Situation
in Bosnia and Herzegovina), S/RES/1423 (July 12, 2002)
Acting under Chapter VII of the U.N. Charter,
the U.N. Security Council reaffirmed its support for
the peace process in Bosnia and Herzegovina, reiterating
that the "primary responsibility" for the
further successful implementation of the 1995 Peace
Agreement lies within the authorities in Bosnia and
Herzegovina. The Security Council also stressed
that the compliance and active participation by all
Bosnia and Herzegovina’s authorities in rebuilding
a civil society and, in particular, in "full cooperation"
with the International Tribunal for the Former Yugoslavia,
is a precondition for the "continued willingness"
of the international community and major donors to assume
the "political, military and economic burden of
implementation and reconstruction efforts."
The Security Council decided, inter alia, to
extend until December 31, 2002, the mandate of the U.N.
Mission in Bosnia and Herzegovina (UNMIBH), which includes
the International Police Task Force (IPTF).
International Law In Brief (ILIB) - Copyright 2002
- The American Society
of International Law (ASIL) Editors: Branislav A. Maric, Scott Smith
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