Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law February 14, 2003
International
Court of Justice (ICJ): Case Concerning Application
of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia),
Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina)
– Application for Revision of the Judgment of 11
July 1996, No. 122 (February 3, 2003)
The ICJ rejected Yugoslavia's
application for revision of the 1996 Judgment on the preliminary
objections in the case that Bosnia and Herzegovina had
brought against Yugoslavia in 1993 concerning the application
of the 1948 Genocide Convention.
Yugoslavia filed its application
for revision under Article 61 of the ICJ Statute, which
provides that such an application may be made "only
when it is based upon the discovery of some fact of such
a nature as to be a decisive factor, which fact was, when
the judgment was given, unknown to the Court and also
to the party claiming revision, ...." The fact
Yugoslavia relied upon was its admission into the U.N.
membership on November 1, 2000, which, in Yugoslavia's
view, represented an "unequivocal fact" that
it did not continue the personality of the Socialist Federal
Republic of Yugoslavia (SFRY), which had broken up in
the early 1990s. More importantly, Yugoslavia argued
in its application, this proved that the country "was
not a Member of the United Nations before 1 November 2000,
was not a State party to the Statute, and was not a State
party to the Genocide Convention." Yugoslavia
concluded that this fact had a direct impact on the Court's
jurisdiction ratione personae over Yugoslavia in
the current case.
The Court noted that on April
27, 1992, and after four other former Yugoslav republics
had proclaimed their independence, Serbia and Montenegro
communicated to the U.N. their decision to "continue
to live together in Yugoslavia," which was transformed
into the Federal Republic of Yugoslavia (FRY) and which
was supposed to continue the legal personality of the
former SFRY. The Court further noted that the U.N.
Security Council and the U.N. General Assembly subsequently
concluded that the FRY could not "continue automatically
the membership of the former [SFRY] in the [U. N.],"
and that it could not participate in the work of the U.N.
General Assembly until after it applies for the U.N. membership.
The Court also noted the September 29, 1992 letter by
the U.N. Under-Secretary-General and Legal Counsel that
interpreted the said U.N. Security Council and General
Assembly decisions to neither terminate nor suspend Yugoslavia's
membership in the U.N., stating that their "only
practical consequence" was that the FRY could not
participate in the work of the U.N. General Assembly.
The Court ruled that Yugoslavia's
admission to the U.N. membership, which took place more
than four years after the Court had issued the Judgment
Yugoslavia sought to revise, "cannot have changed
retroactively the sui generis position which the
FRY found itself in vis-à-vis the United Nations over
the period 1992 to 2000." The Court also observed
that "the difficulties" which arose regarding
the FRY's status in that eight-year period "resulted
from the fact that, although the FRY's claim to continue
the international legal personality of the Former Yugoslavia
was not 'generally accepted' [...], the precise consequences
of this situation were determined on a case-by-case basis."
The Court concluded that Yugoslavia based its application
for revision on the "legal consequences which it
seeks to draw from facts subsequent to" the 1996
Judgment, holding that such consequences, even if they
were to be established, could not be regarded as facts
within the meaning of Article 61.
International
Court of Justice (ICJ): Case Concerning Avena and other
Mexican Nationals (Mexico/United States of America),
Request for the Indication of Provisional Measures (February
5, 2003)
The Court unanimously granted
Mexico’s request for the indication of provisional
measures, thereby ordering theU.S.to “take
all measuresnecessary” to prevent the execution
of three of Mexico’s nationals, pending final judgment
as to the U.S.’ alleged violation of Article 36
of the Vienna Convention on Consular Relations (“Vienna
Convention”). Mexico instituted proceedings
against the U.S. on January 8, 2003, alleging that 54
of its nationals were “arrested, detained, tried,
convicted and sentenced to death” by authorities
in the U.S. who failed to inform them of their right to
contact their Consulate in accordance with the Vienna
Convention.
In its request for the indication
of provisional measures, Mexico invoked the Optional Protocol of the
Vienna Convention on Consular Relations (“Optional
Protocol”) as a basis for jurisdiction. Pursuant
to the Optional Protocol, both Mexico and the U.S. accept
the compulsory jurisdiction of the ICJ in disputes involving
the interpretation or application of the Vienna Convention.Mexico insisted thatthe Vienna Conventionrequired the U.S. to restore the status quo ante
of its nationals, namely their situation as it existed
prior to their detention, convictions and sentences.
Mexico further argued that the U.S. must establish a meaningful
remedy within its municipal law for breaches of Article
36 of the Vienna Convention.
The U.S. argued that in accordance
with the LaGrand decision (see March
1, 1999 ILIB for the summary of the decision) its
obligation under Article 36 of the Vienna Convention was
limited to ensuring that there was review and reconsideration
of the conviction and death penalty sentence in every
case. The U.S. maintained that subsequent to the
LaGrand case, competent authorities in the U.S.
have instituted measures providing for effective review
and reconsideration in all such cases. In
addition, the U.S. argued that Mexico’s request
would amount to a “sweeping prohibition on capital
punishment for Mexican nationals in the U.S.,” thereby
transforming the ICJ into a “general criminal court
of appeal.”
The Court held that the resolution
of an international legal dispute under the Vienna Convention
was properly within its jurisdiction, and disagreed with
the argument that such exercise of jurisdiction interfered
with the sovereign rights of the U.S. or transformed the
ICJ into a “general criminal court of appeal.”
The Court limited the scope of its Order, however, to
those Mexican “individuals identified as being victims
of a violation of the Convention” and accordingly
held that the Court could not, as requested by Mexico,
order the U.S. to suspend the execution of other Mexican
nationals who have not alleged violations of the Vienna
Convention.
North American
Free Trade Agreement (NAFTA) Arbitral Tribunal: Methanex
Corporation v. United States (Preliminary Award on Jurisdiction),
(August 7, 2002)
The Tribunal held that Methanex
must file an amended pleading and accompanying evidentiary
materials before it can make a “definitive ruling
on jurisdiction.”
Methanex, a Canadian corporation
which produces and markets methanol, a component of methyl
tertiary-butyl ether (“MTBE”), challenged
the measures of the State of California, which, by means
of an Executive Order, called for the future removal of
MTBE from gasoline in California and further required
that all gasoline currently containing MTBE bear a particular
label.
Methanex invoked Article 1117 of
NAFTA as a basis for jurisdiction, and alleged that
the California restrictions were arbitrary, sham environmental
regulations put into place in order to benefit and protect
the California and the U.S. ethanol industry, a direct
competitor of the methanol industry. Methanex further
alleged that the California regulations were motivated
by campaign contributions made to Governor Davis by Archer
Daniels Midland, a major U.S. producer of ethanol.
The U.S. raised several challenges
to jurisdiction, most of which the Tribunal considered
to be so intertwined with factual inquiries as to be more
appropriately considered at a later stage. The Tribunal
addressed at length the U.S. challenge to jurisdiction
based on Article 1101(1).
The Tribunal held that the phrase “relating to”
in Article 1101(1) of NAFTA signifies “something
more than the mere effect of a measure on an investor
or an investment and that it requires a legally significant
connection between them, as the USA contends.”
The Tribunal stated that it
was unclear at this point whether the California measures
intended to discriminate against foreign producers, or
whether the measures in question were directed or in any
way related to Methanex or its investments. According
to the Tribunal, “[...]decrees and regulations may
be the product of compromises and the balancing of competing
interests by a variety of political actors. As a
result, it may be difficult to identify a single or predominant
purpose underlying a particular measure. Where a
single governmental actor is motivated by an improper
purpose, it does not necessarily follow that the motive
can be attributed to the entire government. Much if not
all will depend on the evidential materials adduced in
the particular case.”
The Tribunal stated that it
was “doubtful that the essential requirement of
Article 1101(1) is met,” and that although Methanex’s
pleadings at present could not withstand the U.S. jurisdictional
challenge based on Article 1101, a new pleading from Methanex
might be able to survive such challenge. The Tribunal
applied Articles 21(4) and 32(1) of the UNCITRAL Arbitration
Rules, thereby deciding to proceed with the arbitration
and rule on jurisdiction in a subsequent award. Methanex
submitted an amended statement
of claim on November 5, 2002.
United States
(U.S.) Court of Appeals for the Ninth Circuit: Coalition
of Clergy, Lawyers and Professors v. Bush, No. 02-55367,
D.C. No. CV-02-00570-AHM (November 18, 2002)
The Ninth Circuit upheld the
district court’s decision as to standing (see May
9, 2002 ILIB for the summary of the decision) and
held that a coalition of clergy, lawyers, and law professors
(“The Coalition”) lacked next-friend and third
party standing to bring a habeas petition on behalf of
detainees captured in Afghanistan and currently being
held at Guantanamo Naval Base in Cuba. The Ninth
Circuit vacated part of the district court’s decision
that purported to adjudicate the rights of the detainees,
or persons on their behalf, to petition before other United
States courts. In this regard, the Ninth Circuit
held that the district court was without jurisdiction
to hold that the constitutionally embedded right of habeas
corpus was suspended for all Guantanamo Bay detainees,
whether they petitioned individually or through a next
friend on their behalf.
The Coalition’s petition
alleged that the U.S. is in violation of the Third Geneva
Convention and the U.S. Constitution by depriving the
detainees of their liberty without due process of law,
by failing to inform them of the nature and cause of the
accusations against them, and by not affording them assistance
of counsel.
The Coalition did not assert
direct standing, but instead requested that the Court
grant the Coalition next-friend standing under the federal
habeas statute 28 U.S.C.§ 2242 as
was granted in the Fourth Circuit case of Hamdi v.
Rumsfeld, 296 F.3d 278, 281 (4th Circ.
2002) (granting next-friend standing to father on behalf
of son) (see January
10, 2003 ILIB for the summary of the decision).
The Ninth Circuit examined
the Coalition’s petition for next-friend standing
under the two-prong test of the Supreme Court Case of
Whitmore
v. Arkansas, 495 U.S. 149, 161-64 (1990), providing
that “the putative next friend must show (1) that
the petitioner is unable to litigate his own cause due
to mental incapacity, lack of access to court, or other
similar disability; and (2) the next friend has some significant
relationship with, and is truly dedicated to the best
interests of, the petitioner.”
The Ninth Circuit held that
under the first prong of the Whitmore test, the
detainees are not being held incommunicado and
are therefore not incapable of litigating their own case,
in view of the visits by the Red Cross and diplomats from
their home countries. It also noted that some of
the detainees’ family members have already filed
habeas corpus writs on their behalf. The court conceded,
however, that some detainees were being held in isolation,
and in fact prevented from any access to a lawyer.
The court went on to say that it “need not delineate
the contours of the access requirement in these circumstances,
however, in light of the Coalition’s lack of a relationship
with the detainees.” In this respect, the
Ninth Circuit found that the Coalition did not meet the
“significant relationship” test under the
second prong of Whitmore, for the Coalition had
failed to demonstrate any relationship with the detainees,
“either generally or individually.”
As for third party standing, the court found that the
Coalition could not demonstrate either an injury-in-fact
or a close relationship with the detainees.
United States
(U.S.) Court of Appeals for the District of Columbia Circuit:
Nemariam, et al., v. Ethiopia, No. 01-7142 (January
24, 2003)
The U.S. Court of Appeals
for the D.C. Circuit reversed the U.S. District Court
for the District of Columbia's dismissal of a suit that
sought recovery for property damages suffered during the
conflict between Ethiopia and Eritrea.
In 2000, Ethiopia and Eritrea
signed a Peace Agreement (see December
9, 2000 ILIB for the summary of the Peace Agreement)
that ended more than two years of armed conflict between
the two states. The Peace Agreement created, inter
alia, the Ethiopia-Eritrea Claims Commission, which
is to serve as an arbitral forum for settlement of all
claims for loss, damage or injury between the governments
of the two states, as well as those by nationals of one
of the states against the government of the other state
or entities owned or controlled by the same state.
The latter group of claimants does not have independent
standing before the Claims Commission, and their governments
would have to bring any such claim on their behalf.
Ms. Nemariam filed her complaint
against Ethiopia and the Commercial Bank of Ethiopia under
the international undertakings provision contained in
§ 1605(a)(3) of the Foreign Sovereign Immunities Act.
Ethiopia moved to dismiss the case pursuant to the forum
non conveniens doctrine. The district court
granted the motion, holding that the Claims Commission
represented an adequate alternative forum. In addition,
the district court found that, although Ms. Nemariam could
not bring the claim herself, Eritrea could do this on
her behalf, thus exercising its sovereign right under
the Peace Agreement.
The D.C. Circuit held that
the Claims Commission is an inadequate forum, due to its
"inability to make an award directly to Nemariam,
and Eritrea's ability to set off Nemariam's claim, or
an award to Eritrea based upon her claim, against claims
made by or an award in favor of Ethiopia."
The D.C. Circuit observed that Ethiopia was asking both
Nemariam and the court to rely upon the "goodwill
of Eritrea," holding that an alternative forum in
which the plaintiff can fail to recover anything for a
valid claim could not be deemed adequate.
Russia,
Germany and France: Joint Declaration on Iraq (February
10, 2003)
Russia, Germany and France
("Parties") agreed that the potential contained
in the framework of the U.N. Security Council Resolution
1441 "has not yet been fully exploited," and
noted that the ongoing arms inspections in Iraq "have
already produced results." The Parties declared
that they are in favor of the continuation of the arms
inspections and a "substantial reinforcement of their
human and technical capacities through all possible means
and in liaison with the inspectors." The Parties
stressed that the debate on how Iraq should be disarmed
must continue "in the spirit of friendship and respect
that characterises our relations with the United States
and other countries." The Parties concluded
that there was still an alternative to war and that the
use of force "can only be considered as a last resort."
On February
6, 2003, Judge Shi Jiuyong (China) was elected President
of the International Court of Justice, while Judge
Raymond Ranjeva (Madagascar) was elected Vice-President
of the Court. Both judges will serve a three-year
term in their new capacities. Click here
for the related press release.
On the same day, the ICJ judges
elected the members of the Court's Chamber of Summary
Procedure and Chamber for Environmental Matters, as well
as the members of four Committees (i.e., Budgetary and
Administrative Committee, Rules Committee, Relations Committee,
and Library Committee). Click here
for the related press release.
International Law In Brief (ILIB) - Copyright 2003
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