Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law May 21, 2003
United
States (U.S.) Court of Appeals for the Second Circuit:
United States v. Yousefet al., Nos. 98-1041,
98-1197, 98-1355, 98-1544, 98-1554 (April 4, 2003)
The facts of the case concern
the 1993 bombing of the World Trade Center in New York
City and a subsequent conspiracy to bomb U.S. airlines
in Southeast Asia. In 1995, Ramzi Yousef (“Yousef”)
was captured in Pakistan, Eyad Ismoil (“Ismoil”)
was arrested in Jordan, and Abdul Hakin Murad (“Murad”)
and others were arrested in the Philippines. The defendants
were returned to the United States to answer various charges
filed by a grand jury in the Southern District of New
York in 1996 concerning their alleged involvement in the
two incidents. Following trial, the defendants Yousef
and Ismoil were sentenced to a total of 240 years of imprisonment,
and Murad was sentenced to life imprisonment plus two
30 year sentences.
The defendants raised several
issues on appeal, including a challenge to the extraterritorial
jurisdiction asserted for charges related to the aircraft
bombing conspiracy in Southeast Asia by defendant, Yousef.
Yousef asserted that several of his charges should be
dismissed because 18
U.S.C.§32 could not be applied to conduct outside
the United States, and further argued that he could not
be convicted under one of his conspiracy charges because
he was not “found” within the United States
as required by 18 U.S.C. §32(b). In addition, Yousef contended
that his prosecution violated customary international
law which limited a nation’s ability to regulate
conduct outside its borders.
The Second Circuit held that
the language of 18 U.S.C. §32 clearly provided for the
enforcement of U.S. laws beyond its borders, and observed
that 18 U.S.C. §32 was adopted pursuant to the United
States’ obligations under the Montreal Convention
for the Suppression of Unlawful Acts Against the Safety
of Civil Aviation, (“The Montreal Convention”)
Moreover, the Second Circuit found that the purpose of
the Montreal Convention was “to ensure that individuals
who attack airlines cannot take refuge in a country because
its courts lack jurisdiction over someone who committed
such an act against a foreign-flag airline in another
nation. ... Accordingly, the Convention requires States
parties to adopt legislation to assert jurisdiction over
such an offender whenever an offender is “present
in” the State and the State does not extradite the
offender to another State party.” The Second
Circuit rejected Yousef’s argument that the plain
meaning of “found” in 18 U.S.C. §32 prevented
the United States from asserting jurisdiction over someone
brought to the United States against his will. The Second
Circuit held that if someone arrested and brought to the
United States could not fit the definition of “found
in the United States” under 18 U.S.C. §32(b), the
result would defeat the purpose of the statute and its
implementation of the Montreal Convention.
In regard to the defendants’
challenge based on customary international law, the Second
Circuit affirmed the substance of the District Court ruling,
but found that the District Court erred in basing the
exercise of jurisdiction on the universality principle
of customary international law. The Second Circuit
observed that there was no universality-based principle
of jurisdiction under customary international law over
terrorist acts. The Second Circuit nonetheless found that
the absence of a customary principle of universal jurisdiction
over terrorist acts did not preclude prosecution of the
defendants under U.S. law that was adopted pursuant to
obligations under the Montreal Convention.
United States
(U.S.) Supreme Court: Dole Food Co. et al. v. Patrickson
et al., No. 01-593 (April 22, 2003)
The Supreme Court denied the
petitioners’ writ of certiori, holding that “a
foreign state must itself own a majority of a corporation’s
shares if the corporation is to be deemed an instrumentality
under the [Foreign Sovereign Immunities Act], and that
instrumentality status is determined at the time the suit
is filed.
In 1997by a group
of farm workers from Latin America brought an action in
state court in Hawaii against Dole Food company and others
(“Dole”) claiming injury from exposure to
dibromochloropropane (“DBCP”), a chemical
used as agricultural pesticide in their home countries
in Latin America. Dole impleaded Dead Sea Bromine Co.,
Ltd,(“Dead Sea Companies”), alleged
by the plaintiffs to have manufactured some of the DBCP
used in their home countries. In addition, Dole
removed to federal court on claiming as a basis for federal
question jurisdiction derived the federal common law of
foreign relations. The Dead Sea Companies sought removal
based on their argument that they were instrumentalities
of a foreign state as defined by the Foreign Sovereign
Immunities Act.(“FSIA”) The District Court
dismissed Dole’s removal petition on forum non
conveniens grounds. As for the Dead Sea Companies,
it held that they were not instrumentalities of a foreign
state as defined by the FSIA, and were not entitled to
removal on that basis.
The Court of Appeals held
that Dole’s removal could not rest on the federal
common law of foreign relations and dismissed Dole’s
appeal. As for the Dead Sea Companies, the Court
of Appeals held that they were not instrumentalities of
Israel, and declined to answer the question of whether
status of an instrumentality was to be determined at the
time of the alleged wrongdoing or at the time of filing
of a suit. The Supreme Court dismissed Dole’s writ
of certiori (No. 01-593).
The issues before the Supreme
Court therefore concerned the Dead Sea Companies, namely
1) whether the Dead Sea Companies could claim instrumentality
status even though they were only subsidiaries of a parent
company owned by Israel and 2) whether, for the purposes
of protection under the FSIA, instrumentality status is
determined as of the time the alleged tort occurred, or
at the initiation of the lawsuit.
The Supreme Court noted that
Israel did not have direct ownership of shares in either
of the Dead Sea Companies, since the companies were separated
by one or more intermediate corporate tiers.Itdisagreedwith the Dead Sea Companies’
argument that the exercise of control could be substituted
for ownership, and observed that section
1603 of the FSIA clearly indicated observance of corporate
formalities, and in particular, refers to ownership of
shares.
As to the second issue, the
Dead Sea Companies argued that the FSIA, like other status-based
immunities provided immunity based on the status of the
officer at the time of the conduct giving rise to the
suit. The Supreme Court disagreed with this comparison,
noting that unlike immunity for government officers, “foreign
sovereign immunity, by contrast, is not meant to avoid
chilling foreign states or their instrumentalitiesin the conduct of their business but to give foreign
states and their instrumentalities some protection from
the inconvenience of a suit as a gesture of comity between
the United States and their sovereigns.” The Supreme
Court further held that any relationship between the Dead
Sea Companies and Israel had ended prior to the initiation
of the lawsuit, and that the Dead Sea Companies could
not claim instrumentality status under the FSIA.
NAFTA Arbitral
Tribunal (ICSID Additional Facility Rules): Feldman
v. Mexico (Award), Case No. ARB(AF)/99/1 (December
16, 2002)
The Tribunal held that Mexico
was in violation of the national treatment provisions
of NAFTA Article 1102, but found that its actions
were not measures tantamount to expropriation in violation
of NAFTA Article 1110.
The facts of the case involve
a dispute regarding Mexico’s taxation on the export
of tobacco products by “CEMSA” a company organized
under the laws of Mexico and owned and controlled by the
Claimant, Mr. Marvin Roy Feldman Karpa, a U.S. national.
(“the Claimant”). CEMSA began exporting cigarettes
in 1990, and received rebates on cigarette exports until
1991, when Mexico passed legislation (the “IEPS”)
which limited rebates on exports to producers and bottlers.
The IEPS was amended in 1992 to allow rebates to all cigarette
exporters, including CEMSA, however in 1993, Mexican authorities
denied CEMSA’s rebates once again due to its inability
to meet invoice requirements under the amended IEPS law.
In 1993, Mexico’s Supreme Court of Justice ruled
in favor of CEMSA and held that “measures allowing
IEPS rebates only to producers and their distributors
violated principles of tax equity and non-discrimination.”
In December 1997, the IEPS law was amended again, limiting
rebates to the “first sale” of cigarettes
in Mexico, thereby barring rebates to cigarette sellers
such as CEMSA. CEMSA was also refused registration as
an authorized exporter of cigarettes and alcoholic beverages.
TheClaimant argued,
inter alia, that Mexico’s refusal to allow
CEMSA to obtain rebates on taxes was tantamount to expropriation
and constituted a denial of justice in violation of international
law and in violation of NAFTA Article 1110. The
Claimant also asserted that Mexican firms engaged in similar
resale of cigarettes were nonetheless allowed to obtain
rebates on taxes, notwithstanding their similar inability
to produce the invoices required under the IEPS. According
to the Claimant, such a discrepancy resulted in a breach
of Mexico’s obligations under Article 1102 to the
extent that Mexico treated the Claimant less favorably
than Mexican cigarette exporters in similar circumstances.
The Tribunal looked to customary
international law and previous NAFTA Chapter Eleven decisions
in resolving the question of whether Mexico’s acts
resulted in measures tantamount to expropriation under
international law. The Tribunal listed four factors which,
“taken together, tip the expropriation/regulation
balance away from finding expropriation” namely:
“(1) As Azininan
suggests, not every businessproblem experienced
by a foreign investor is an expropriation under Article
1110; (2) NAFTA and principles of customary international
law do not require a state to permit “gray
market” exports of cigarettes; (3) at no relevant
time has the IEPS law, as written, afforded Mexican cigarette
resellers such as CEMSA a “right” to export
cigarettes (due primarily to technical/legal requirements
for invoices stating tax amounts separately and to their
status as non-taxpayers); and (4) the Claimant’s
“investment”, the exporting business known
as CEMSA, as far as this Tribunal can determine, remains
under the complete controlof the Claimant,
in business with the apparent right to engage in the exportation
of [...]–any product that it can purchase upon receipt
of invoices stating the tax amounts—and to receive
rebates of any applicable taxes under the IEPS law.”
The Tribunal again cited the
Azinian decision with regard tothe denial
of justice claim, noting that like Azinian, the
Claimanthere contended that the denial of justice
resulted from actions of administrative authorities rather
than Mexican courts.The Tribunal held that
the Claimant’s allegations did not meet the test
for denial of justice, since the Mexican courts and administrative
procedures were always available to the Claimant. The
Tribunal further observed that in view of the fact that
the Claimant won in the 1993 Amparo decision,it did not appear that there was a denial of due process
or denial of justice giving rise to a violation of international
law.
In regard to the alleged violation
of national treatment under Article 1102, the Tribunal
found evidence of discrimination both in regard to registration
and export privileges. In particular, the Tribunal
found that since the IEPS invoice requirement was waived
for domestic cigarette resale/exporters, but not for CEMSA,
this de facto discrepancy in treatment was sufficient
to establish a denial of national treatment under Article
1102. The Tribunal noted that it had assumed that the
differential treatment was based on the Claimant’
nationality, in the absence of any evidence to the contrary
presented by Mexico.
The Tribunal ordered Mexico
to pay the sum of $9,464,627.50 Mexican pesos in principal
to the Claimant, plus interest generated at the time of
the signature of the award.
Trial Chamber III of the ICTR
convicted Laurent Semanza of complicity to commit genocide
and of extermination, torture and murder as crimes against
humanity. Semanza was sentenced to 25 years of imprisonment.
Semanza was found, inter alia, to have committed
torture and murder as crimes against humanity by means
of his incitement of a crowd in Giroko in April 1994 to
rape Tutsi women prior to killing them. Semanza was also
found guilty of the torture and murder of a Tutsi man
during the Musha Church massacre. The Trial Chamber acquitted
Semanza of genocide, direct and public incitement to commit
genocide, in addition to serious violations of Article
3 of the Geneva Conventions and the Additional Protocols.
Eliézer Niyitegeka, central
Africa’s country information minister during the
1994 genocide and member of the Mouvement Démocratique
Républicain (MDR) in Rwanda from 1991 to 1994, was convicted
by Trial Chambre I of genocide and crimes against humanity
related to the massacre of Tutsi civilians in Kibuye.
The Trial Chamber found Niyitegeka guilty of, inter
alia, procuring gendarmes for an attack on Tutsi seeking
refuge in Mubuga Church, for having led armed attackers
against Tutsi refugees at Muyira Hill, and for having
incited others to exterminate the Tutsi population.
The Trial Chamber acquitted Niyitegeka of complicity to
commit genocide, of rape as a crime against humanity,
in addition to acquitting him of serious violations of
Article 3 of the Geneva Conventions and the Additional
Protocols.
International
Criminal Tribunal for the Former Yugoslavia (Trial Chamber):
Prosecutor v. Milutinovic et al. (Decision on
Motion Challenging Jurisdiction), Case No. IT-99-37-PT
(May 6, 2003)
The ICTY Trial Chamber dismissed
the Defense Motion Challenging Jurisdiction that had been
filed by Mr. Dragoljub Ojdanic, a former Chief of the
General Staff of the Yugoslav Army, who has been one of
the three co-defendants in the Milutinovic et al.
case. The case concerns the crimes allegedly committed
by Mr. Ojdanic, Mr. Milan Milutinovic, the former President
of the Republic of Serbia, and Mr. Nikola Sainovic, the
former Deputy Prime Minister of the Federal Republic of
Yugoslavia (FRY, now Serbia and Montenegro) in the course
of the 1999 armed conflict in the Serbian autonomous province
of Kosovo, which is now under interim civilian administration
led by the United Nations.
Mr. Ojdanic argued that the
ICTY does not have jurisdiction over crimes committed
in the territory of Kosovo for the reason: (1) that the
FRY was not a U.N. member state at the time of the adoption
of the ICTY Statute in 1993 and at the time of the events
that took place in Kosovo in 1999, and that the U.N. Security
Council therefore lacked the power to impose Chapter VII
measures on the FRY; and (2) that the doctrine of universal
jurisdiction is not part of customary international law
and, "in any event, in contradistinction to the applicability
of such jurisdiction by a State, 'universal jurisdiction'
cannot justify the jurisdiction of an international court."
The Trial Chamber noted that
it concurs with the September 1992 letter by the U.N.
Under-Secretary-General for Legal Affairs regarding the
FRY's status in the United Nations. The letter stated
that the FRY's membership in the United Nations was neither
suspended nor terminated, despite the adoption of the
General Assembly resolution 47/1 that had prohibited the
FRY from participating in the work of the General Assembly,
its subsidiary organs, or conferences and meetings convened
by it. The Trial Chamber held that the resolution
47/1 "left untouched the relationship of the FRY
to the Security Council, and consequently, the application
of the regime of Security Council resolutions to it,"
including the resolution establishing the ICTY Statute.
The Trial Chamber thus concluded that the FRY was "in
fact" a U.N. member at the time of the adoption of
the ICTY Statute in 1993 and at the time of the commission
of the alleged offences in 1999. In addition, the
Trial Chamber held that the formal admission of the FRY
to the U.N. membership in 2000 "does not invalidate
its conclusion that the FRY retained sufficient indicia
of membership in the period between 1992 and 2000."
In the alternative, the Trial
Chamber considered the effect on the outcome of the defense
motion if it was to be decided that the FRY was not a
U.N. member state at the relevant time. The Trial
Chamber held that the outcome would be the same since
the ICTY's jurisdiction "covers the commission of
the crimes by any person in a State that was part of the
territory of the former [Yugoslavia]," including
those committed in Kosovo as a part of the FRY, which
was also a part of the former Yugoslavia. The Trial
Chamber also observed that "nothing stands in the
way of a reading of Chapter VII, as enabling the Council
to adopt measures under Article 41 of the Charter in relation
to a conflict that it has determined to be a threat to
international peace and security, and which started in
a member State of the United Nations, but which at the
time of the measures taken was no longer a United Nations
member."
As to the second ground argued
in the defense motion and involving the question of universal
jurisdiction, the Trial Chamber acknowledged that this
"may be relevant to the issues raised by the Motion,"
but that it did not consider it necessary to make a determinations
on these issues in the light of its conclusions regarding
the first ground raised in the motion.
Belgian Legislature:Amendment to the 1993 Law Concerning Grave Breaches
of International Humanitarian Law and to Article 144(ter)
of the Judicial Code(May 7, 2003)
Amendments to the Belgian
law concerning the punishment of grave breaches of international
humanitarian law (dating from 1993 and previously amended
in 1999), were adopted by the Belgian Senate in April,
and entered into force on May 7, 2003, following publication
of the amendments in the Belgisch Staatsblad (Belgium’s
official gazette).
Regarding the scope of Belgium’s
jurisdiction over grave breaches of international humanitarian
law, the amendment provides:
Art.7-§1 Except
in the event of a decision of abstention from jurisdiction
in the event of one of the situations set forth in the
following paragraphs, Belgian tribunals have competence
over the violations provided by the present law, independently
of where they have been committed and even if the alleged
offender is not located within Belgium.
The public action will
nonetheless be initiated only upon requisition of the
federal prosecutor if:
1) the violation was not
committed on Belgian territory
2) the alleged offender
is not Belgian
3) the alleged offender
is not located within Belgian territory
4) the victim is not Belgian
or has not resided in Belgium for at least three years
Once seized with an application
under paragraph 2, the federal prosecutor will seek instruction
from the judge that he investigate the complaint unless:
1) the complaint is manifestly
unfounded; or
2) the facts presented
do not correspond to a qualification under the present
law; or
3) a public action cannot
be admitted under this application; or
4) in the concrete circumstances
of the matter, it results that, in the interest of administration
of justice and in respect of Belgium’s international
obligations, this matter should be brought either before
international tribunals, or before a tribunal in the place
where the acts were committed, or before the tribunals
of a State in which the offender is a national or where
he may be found, and as long as this tribunal is competent,
independent, impartial and fair.
(...)
The amendments add to and
modify some of the crimes listed as crimes of genocide,
war crimes and crimes against humanity. In addition, they
provide a clause stating that “international
immunity derived from a person’s official capacity
does not prevent the application of the present law except
under those limits established under international law.”
International
Criminal Court (ICC): Assembly of State Parties, First
Session (second resumption) (April 21-23, 2003)
The Assembly of States Parties
to the Rome Statute of the ICC held the second resumption
of its first session. On April 21, 2003, Mr. Luis Moreno
Ocampo (Argentina) was elected Prosecutor of the ICC.
United States-Albania Article
98 Agreement (May 2, 2003)
The United States and Albania
signed an Agreement on the cooperation modalities between
the two countries and the International Criminal Court
(ICC).Albania is the 32nd country to
enter into such an agreement, known as “Article
98" side agreements. Article 98 of the Rome Statute
of the ICC provides that “1. The Court may not
proceed with a request for surrender or assistance which
would require the requested State to act inconsistently
with its obligations under international law with respect
to the State or diplomatic immunity of a person or property
of a third State, unless the Court can first obtain the
cooperation of that third State for the waiver of the
immunity. (2) The Court may not proceed with a request
for surrender which would require the requested State
to act inconsistently with its obligations under international
agreements pursuant to which the consent of a sending
State is required to surrender a person of that State
to the Court, unless the Court can first obtain the cooperation
of the sending State for the giving of consent for the
surrender.”
The Agreement signed by Albania
and the United States exempts U.S. nationals from prosecution
by Albania pursuant to the ICC.
United States
(U.S.) Court of Appeals for the Ninth Circuit: Altmann
v. Republic of Austria, Nos. 01-56003, 01-56398
(April 30, 2003)
The Ninth Circuit denied Austria’s
petition for a rehearing en banc of its December 12, 2002
decision in which it exercised jurisdiction over against
Austria and the Austrian Gallery for the alleged wrongful
appropriation of six Gustav Klimt paintings in violation
of international law and upheld the district court's retroactive
application of the Foreign Sovereign Immunities Act (“FSIA”).
(See ILIB of January 10, 2003 for a summary of the
decision. The text of the December 12th decision
is published in 42 ILM 216 (2003)).
United States
(U.S.) Supreme Court: Coalition of Clergy, Lawyers
& Professors, et al., v. Bush, et al. (May 19,
2003)
The U.S. Supreme Court denied
the petitioners’ writ of certiori. The petitioners
sought next friend standing pursuant to the U.S. federal
habeas statute 28 U.S.C.§ 2242 in
order to bring an action on behalf of detainees captured
in Afghanistan and currently held at Guantanamo Naval
Base in Cuba (“the detainees”). The Ninth
Circuit found that the Coalition lacked the relationship
necessary to bring a habeas petition on behalf of the
detainees as a next-friend. (See ILIB of February 14, 2003) The Coalition’s
petition alleged that the U.S. has been violating 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.
United Nations
(U.N.): Cambodia Tribunal Agreement (May 13, 2003) The
General Assembly of the U.N. approved an agreement with
Cambodia establishing an international tribunal for prosecuting
Khmer Rouge leaders for genocide, war crimes and crimes
against humanity. The tribunal’s trial and appeals
chambers will have a majority of Cambodian judges, however
in accordance with the UN agreement, at least one international
judge will join in all judgments.
Svea Court
of Appeals (Sweden): CME Czech Republic B.V. v. The
Czech Republic (May 15, 2003) The Svea Court of
Appeals rejected the Czech Republic’s request for
setting aside an arbitral award issued by an ad hoc tribunal
in Stockholm. The arbitration tribunal, established pursuant
to the Bilateral Investment Treaty (BIT) between the Czech
Republic and the Netherlands, had concluded that the Czech
Republic was required to pay to CME US$269.814.000 in
damages for breaches of the BIT. (See ILIB summary of April 22, 2003))
World
Health Organization (WHO) Intergovernmental Negotiating
Body on the WHO Framework Convention on Tobacco Control:
Adoption of WHO Framework Convention on Tobacco Control,
A/FCTC/INB6/5 (May 21, 2003)
The 192 Member States of the
WHO unanimously adopted the Framework Convention on Tobacco
Control (“the Convention”) aimed at curbing
tobacco-related illness and deaths. The Convention requires
States parties to implement tax, price policies advertising
and other controls on tobacco products that facilitate
the reduction of tobacco consumption, and prohibit or
restrict tobacco smuggling. For a summary and link
to the Draft Framework Convention, seeILIB of March 31, 2003.
Please note that the American Society of International
Law has just unveiled an interactive events calendar on
www.asil.org. You can directly submit programs
of interest to those who practice, teach and study international
law and relations. The events will be posted, after approval,
on the ASIL website which is visited by over 60,000 users
a month.
To submit an event to the international law calendar,
go to http://asil.intracommunities.org/calendar
and choose to “Add a record”. First
time users will need to register their names and email
addresses, and to create passwords for themselves.
Then just follow the onscreen instructions to add the
event.
The ASIL has published its
calendar of international events for many years both in
print and online. We hope it continues to be a useful
means to communicate activities in the international legal
community.
International Law In Brief (ILIB) - Copyright 2003
- The American Society
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