Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law March 14, 2003
European Court of Human
Rights (ECHR): Case of Ocalan v. Turkey, Application
no. 46221/99 (March 12, 2003)
The facts involve the capture
and arrest of Mr. Abdullah Ocalan, a former leader of
the Kurdish Workers Party (PKK) by Turkish officials in
Kenya. Mr. Ocalan was subsequently prosecuted for
carrying out activities for the purpose of bringing about
the secession of part of Turkish national territory, resulting
in a death sentence under Article 125 of the Turkish Criminal
Code. In February 1999, Mr. Ocalan lodged an application
before the ECHR under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms
(the “Convention”) On December 14, 2000, the
ECHR declared Mr. Ocalan’s application partially
admissible. (For a summary of the ECHR decision on admissibility,
see January 13-19, 2001 ILIB) In October
2001, Article 38 of the Turkish Constitution was amended
so that the death penalty could no longer be implemented
except in times of war, imminent threat of war, or for
acts of terrorism. By a judgment of October 3, 2002, the
Ankara State Security Court commuted the applicant’s
death sentence to life imprisonment.
The Court held that the cooperation
of Kenya with Turkey for handing over Mr. Ocalan, in the
absence of an extradition treaty, did not result in a
violation of Article 5 §1 of the Convention, nor did the
arrest by Turkish officials in Kenya interfere with Kenya’s
territorial sovereignty under international law.
The Court further held, however, that Turkey violated
the applicant’s right to be brought promptly before
a judge under Article 5 §3 of the Convention.
The Court rejected Turkey’s
argument that Mr. Ocalan failed to exhaust domestic remedies.
The Court noted that the special circumstances of the
case, in particular Mr. Ocalan’s isolation, and
the fact that the Turkish police obstructed his access
to lawyers, made it impossible for the applicant to have
effective recourse to a domestic remedy under Turkish
law. Moreover, the Court found that detention in the present
case, while lawful under Turkish law, resulted in a violation
of Article 5 §4 of the Convention, which provides for
the right to have the lawfulness of detention decided
speedily by a court.
The Court held unanimously that Turkey
violated the right of the applicant to a fair trial, to
adequate time and facilities for preparation of his defense,
and the right to legal assistance under Article 6 of the
Convention. The Court noted that the last-minute replacement
of a military judge with a civilian judge did not adequately
cure the defect of the lack of impartiality of the court
under Article 6 §1 of the Convention. The Court concluded
therefore that Turkey’s imposition of the death
penalty following an unfair trial resulted in inhuman
treatment contrary to Article 3 of the Convention.
United Kingdom
(U.K.) Supreme Court of Judicature — Court of Appeal
(Civil Division): Abbasi & Anor. v. Secretary of
State for Foreign and Commonwealth Affairs, Case No.
C/2002/0617A; 0617B (November 6, 2002)
The Court of Appeal (Civil
Division) of the U.K. Supreme Court of Judicature ("Court")
rejected the request by Mr. Abbasi, a U.K. national held
in U.S. custody at Guantanamo Bay in Cuba, to compel the
U.K. Foreign Office to make representations on his behalf
to the U.S. Government. Alternatively, Mr. Abassi
had requested the Court to compel the Foreign Office to
take other "appropriate action or at least to give
an explanation as to why this has not been done."
Mr. Abbasi is one of several
British citizens captured by U.S. forces in Afghanistan.
As soon as she learned about his detention, Mr. Abbasi's
mother requested the Foreign Office to, inter alia,
obtain a clarification from the U.S. authorities as to
her son's status and his future. A Foreign Office
representative submitted that the U.K. Government has
been in "close contact" with the U.S. authorities
over the situation and treatment of British detainees
at Guantanamo Bay. It was further submitted that
Mr. Abassi and all other British prisoners "were
being well treated and appeared in good physical health."
However, the Foreign Office concluded that, in case of
a request for assistance, "[a]ssessments of when
and how to press another State require very fine judgments
to be made," which become increasingly complex in
the context of international terrorism.
The Court noted that Mr. Abbasi
has been detained pursuant to the November 13, 2001 U.S.
Military Order relating to Detention Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism (see
November 20, 2001 ILIB for the summary of the
Military Order), holding that relevant precedents demonstrate
that English courts "will not sit in judgment on
the sovereign acts of a foreign government or state."
The Court also held that the U.K. Government had no direct
responsibility for Mr. Abbasi's detention, as well as
no "enforceable right, or even standing, before any
domestic or international tribunal to represent [his]
rights ..., or compel access to a court."
The Court acknowledged that
Mr. Abbasi "is at present arbitrarily detained in
a ''legal black-hole'," but opined that this was
not to say that his detention as an alleged "enemy
combatant" could not be justified under international
law. The Court held that customary international
law and the international treaties "expressly reserve
the power of a state in time of war or similar public
emergency to detain aliens on grounds of national security"
although it would not necessarily detain its own nationals
on the same grounds. The Court also held that another
reason for which Mr. Abbasi was not entitled to relief
was the fact that the position of Guantanamo Bay detainees
has not been finally adjudicated by U.S. courts, which
"have the same respect for human rights" as
those in the United Kingdom.
United States
(U.S.) Court of Appeals for the Second Circuit: Dardana
Limited v. A.O. Yuganskneftegaz, No. 01-9177 (January
15, 2003)
On appeal was an order from
the U.S. District Court for the Southern District of New
York (“district court”) dismissing an action
to confirm and enforce an arbitration award for lack of
personal jurisdiction. The facts concern Dardana, a Cayman
Islands corporation and assignee of a contract between
PetroAlliance, a Cypriot subsidiary of a Houston corporation,
and A.O. Yuganskneftegaz (“YNG”), a Russian
corporation. Another Russian corporation, Yukos Oil Company
(Yukos), the parent company of YNG, was later considered
to have assumed YNG’s obligations under the contract
even though it was not a signatory to the agreement. The
contract contained an arbitration clause providing for
arbitration at the Stockholm Chamber of Commerce, and
stated that judgment on an award could be entered in any
court having appropriate jurisdiction. The arbitration
clause also provided that the contract would be governed
by the laws of Sweden in the event of a dispute, and that
the parties waived any defense of sovereign immunity or
similar defense.
Dardana succeeded to PetroAlliance’s
interest in the arbitration awards arising out of a dispute
between the original parties to the contract, and sought
to confirm them in the district court. The district
court held that although the U.N.
Convention on the Recognition and Enforcement of Foreign
Arbitral Awards(the “New York
Convention”)conferred an independent
basis for federal subject matter jurisdiction over Dardana’s
petition to confirm the arbitral awards, it did not mean
that the defendant as a person was properly within the
court’s power.The district court
noted that Yukos maintained no offices, real property
or business licenses in New York, and that its contacts
with financial services groups in New York were insufficient
to constitute a basis for personal jurisdiction under
New York law. The district court dismissed the action
against YNG, sua sponte, following YNG’s
failure to appear.
On appeal, Dardana alleged
several grounds for asserting jurisdiction over the respondents,
claiming that (1) the respondents consented to jurisdiction
by means of the agreement to arbitrate, and (2) the respondents’
nationwide contacts, grouped together, were sufficient
to confer general jurisdiction under the Federal Rules
of Civil Procedure 4(k)(2). In addition, Dardana
challenged the applicability of traditional minimum contacts
analysis within the context of an action to enforce an
arbitral award under the New York Convention and insisted
that the presence of the respondents’ property alone
was a sufficient jurisdictional basis. Dardana
claimed that in the context of an international commercial
contract designating Sweden as the place of arbitration,
the phrase “any court having appropriate jurisdiction”
meant “any court having subject matter jurisdiction
to enforce the New York Convention.”In addition, Dardana argued that the waiver of
sovereign immunity or any other similar defense included
a waiver of the defense of lack of personal jurisdiction.
The Second Circuit declined
to express its view on the merits, vacating the order
and remanding the case to the district court to allow
the parties to supplement the record regarding the parties’
intent and the applicable law. The
Second Circuit found that the district court’s analysis
was incomplete and that on remand it should consider,
inter alia, the merits of Dardana’s claim
that the respondents contractually consented to jurisdiction,
as well as the claim that their nationwide contacts were
a sufficient basis for jurisdiction.
World Trade Organization (WTO) Appellate
Body Report: United States — Countervailing Measures
Concerning Certain Products from the European Communities,
WT/DS212/AB/R (December 9, 2002)
The United States appealed
a decision by the WTO Panel finding the U.S. in violation
of the Agreement on Subsidies
and Countervailing Measures (“SCM Agreement”)
and the Marrakesh Agreement
Establishing the World Trade Organization (the “WTO
Agreement”). The Appellate Body upheld the
portion of the Panel Report which found the U.S. administrative
practice of “same person” analysis to be in
violation of Articles 10, 14, 19, 21 and 32 of the SCM
Agreement and Article XVI:4 of the WTO Agreement.
The Appellate Body reversed the Panel’s findings
as to the per se inconsistency of 19 U.S.C. § 1677(5)(F)
(Tariff Act of 1930, as amended) with the SCM and WTO
Agreements.
The facts concern countervailing
duties imposed by the U.S. on certain steel products originating
in various European Community member states. At
issue was the method used by the U.S. Department of Commerce
(“USDOC”) for finding the existence of a “benefit”
of a subsidy under Article 1.1 of the SCM Agreement.
The USDOC had determined that subsequent to privatization
of certain European state-owned enterprises at arm’s
length and for fair market value, the newly privatized
companies continued to benefit from previously granted
subsidies. The USDOC analyzed the existence of a
benefit under the SCM Agreement by applying 19 U.S.C.
§ 1677(5)(F), in addition to a “same person”
method. Section 1677(5)(F) provides in part that
a change in ownership of all or part of a foreign enterprise
or the productive assets of a foreign enterprise does
not by itself extinguish the countervailability of a prior
subsidy, even if the change in ownership is accomplished
through an arm’s length transaction. The “same
person” method provides that if the USDOC determines
that no new legal person was created as a result of the
privatization, a prior subsidy is automatically found
to exist, by examining the following criteria: (i) continuity
of general business operations; (ii) continuity of production
facilities; (iii) continuity of assets and liabilities;
and (iv) retention of personnel. The WTO Panel
held that both 19 U.S.C. § 1677(5)(F) and the “same
person” method were inconsistent with the SCM and
WTO Agreements, based on its finding that a prior subsidy
cannot be considered as a continuing benefit following
a privatization taken place at arm’s length and
for fair market value.
The Appellate Body held that
a privatization at arm’s length and for fair market
value “may result in extinguishing the benefit,”
thereby finding “a rebuttable presumption that a
benefit ceases to exist after such a privatization,”
with the burden falling on the countervailing duty investigating
authority to identify evidence of a continuing benefit.
It further found that 19 U.S.C. § 1677(5)(F) was not per
se inconsistent with the SCM and WTO Agreements, since
it did not mandate the “same person” methodology.
The Appellate Body upheld the Panel’s determination
that the “same person” methodology violated
the U.S. obligations under Article 21.2 of the SCM Agreement,
for it allowed the USDOC to presume the continuation of
a benefit in disregard of “positive information
substantiating the need for a review.” It
further held that the U.S. had nullified or impaired benefits
accruing to the European Communities as a result of the
application of the “same person” methodology
and recommended to the Dispute Settlement Body that it
require the U.S. to bring its measures and administrative
practices in conformity with its obligations under the
SCM and WTO Agreements.
World Trade
Organization (WTO) Decision by the Arbitrator: Canada
— Export Credits and Loan Guarantees for Regional
Aircraft (Recourse to Arbitration by Canada under Article
22.6 of the DSU and Article 4.11 of the SCM Agreement),
WT/DS222/ARB (February 17, 2003)
At issue was the appropriate
level of countermeasures to be applied as a result of
Canada’s failure to abide by the recommendations
of the WTO Dispute Settlement Body (“DSB”)
following the WTO Panel Report. The Panel had found
Canada in violation of Article 3.1(a) of the Agreement on Subsidies
and Countervailing Measures (“SCM” Agreement)
by virtue of its grant of prohibited export subsidies
to aircraft carriers.
Brazil requested the DSB to
authorize it to take appropriate countermeasures in the
amount of US$3.36 billion pursuant to Article 4.10 of
the SCM Agreement and Article 22.2 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes
(DSU). Canada objected to the recourse sought by
Brazil and requested that the matter be referred to arbitration
under Article 22.6 of the DSU and Article 4.11 of the
SCM Agreement.
Before the Arbitrator, Brazil
contended that the appropriate level of countermeasures
should be calculated by adding together the value of all
the contracts won by Canada’s Bombardier aircraft
as a result of the subsidies granted by the Canadian Government,
along with the amount of harm caused to Brazil’s
Embraer aircraft in the form of lost business opportunities.
Such calculation, according to Brazil, was appropriate
in view of the competitive market for regional jets, where
even a limited difference in interest rates could have
a disproportionate impact compared with the amount of
the subsidy.
Canada argued that although
Brazil was entitled to impose countermeasures, such countermeasures
had to be calculated according to the amount of the subsidy
itself rather than the amount of alleged harm or alleged
loss of contracts. Canada claimed that given the
similarity of the dispute to that of Brazil
— Export Financing Programme for Aircraft (Recourse
to Arbitration by Brazil under Article 22.6 of the DSU
and Article 4.11 of the SCM Agreement) (WT/DS46/ARB)
where the amount of the subsidy was used as a basis for
calculation, so should the calculation be made in the
present case.
The Arbitrator found that
the methodologyproposed by Brazil was based
on unsustainable assumptions, resulting in an inappropriate
level of countermeasures in terms of Article 4 of the
SCM Agreement. The Arbitrator disagreed with Canada’s
contention, however, that the countermeasures sought by
Brazil should be cut in half since Canada’s subsidization
occurred as a response to Brazil’s subsidization.
The Arbitrator further held that, in view of Canada’s
statement that it did not intend to withdraw the subsidy
at issue, a higher level of countermeasures than that
proposed by Canada would be appropriate. In light of Article
14(b) of the SCM Agreement, the Arbitrator began its calculation
with the average sales price of the model of Bombardier
aircraft for which sales to Air Wisconsin were still subsidized
after May 20, 2002, then calculated the net present value
of the subsidy per aircraft model by calculating the difference
between the subsidized financing rate and the estimated
commercial financing rate, and finally, by multiplying
the total number of aircraft still to be delivered to
Air Wisconsin after May 20, 2002 (including all conditional
orders but not options) by the net present value of the
subsidy per model. It then increased this amount by 20%
in order to induce compliance on the part of Canada, thereby
determining that US$247,797,000 would constitute appropriate
countermeasures under Article 4.10 of the SCM Agreement.
International
Criminal Court (ICC): On March 11, 2003, 18 individuals
elected to be judges by the ICC States Parties in February
took the following oath: “I solemnly undertake that
I will perform my duties and exercise my powers as a judge
of the International Criminal Court honourably, faithfully,
impartially and conscientiously, and that I will respect
the confidentiality of investigations and prosecutions
and the secrecy of deliberations.” The oath
was taken in public, and the ceremony was presided by
the President of the Assembly of the States Parties, Prince
Zeid Ra’ad Zeid Al-Hussein.
International Court of Justice (ICJ): Oil
Platforms (Islamic Republic of Iran v. United States of
America): The public hearings in the case concerning
Oil Platforms concluded on March 7, 2003. The full
transcripts of the hearings of February 17, 2003 to March
7, 2003, will be available on the ICJ website: www.icj-cij.org.
World Health Organization (WHO): On March
1, 2003, 171 Member States of the WHO agreed to transmit
the text for a WHO Framework on Tobacco Control (FCTC)
for adoption by the WHO Assembly. The treaty
aims to control tobacco supply and consumption as part
of a global strategy to reduce tobacco disease and deaths
around the world. Some key elements of the final
text include taxes, financing, labeling and advertising
as means of implementing public health objectives, in
addition to encouraging legislation holding tobacco industries
liable for costs related to tobacco use.
International Law In Brief (ILIB) - Copyright 2003
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