Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law September 30, 2003
Inter-American
Tropical Tuna Commission: Convention for the Strengthening
of the Inter-American Tropical Tuna Convention ("Antigua
Convention") (June 27, 2003)
The parties to the Inter-American
Tropical Tuna Commission ("The Commission"),
pursuant to their commitment to the long-term conservation
and sustainable use of fish stocks, revised the provisions
of the 1949
Convention between the United States and the Republic
of Costa Rica by adopting the Antigua Convention at
the Commission's 70th meeting on June 27, 2003.
The Antigua Convention ("the
Convention") provides that its objective "is
to ensure the long-term conservation and sustainable use
of the fish stocks covered by [the] Convention, in accordance
with the relevant rules of international law." (Article
II) It provides that the members of the Commission "shall
apply the precautionary approach, as described in the
relevant provisions of the Code of Conduct and/or the
1995 U.N. Fish Stocks Agreement...." (Article
IV)
The Convention notes that
although the members of the Commission are to be more
cautious when information is uncertain, unreliable or
inadequate, the absence of adequate scientific information
may not be used as a reason for delaying or for failing
to take conservation or management measures. It also provides
in Article V that nothing in the Convention "shall
prejudice or undermine the sovereignty or sovereign rights
of coastal States related to the exploration and exploitation,
conservation and management of the living marine resources
within areas under their sovereignty or national jurisdiction
as provided for in UNCLOS, or the right of all States
for their nationals to engage in fishing on the high seas
in accordance with UNCLOS."
In terms of the functions
of the Commission, Article VII of the Convention provides,
inter alia, that it shall carry out scientific
research concerning fish stocks, adopt standards for collection,
verification and timely exchange of data, and adopt measures
based on the best scientific evidence available to ensure
the long-term conservation and sustainable use of the
fish stocks covered by the Convention.
Article XVI, entitled "Transparency"
provides that the Commission shall promote transparency
in the implementation of the Convention through, inter
alia, public dissemination of pertinent con-confidential
information, in addition to consultation with non-governmental
organizations, representatives of the fishing fleet and
other interested parties.
Click
here
for an unofficial version of the Convention (this version
will be updated in the next month and may contain errors).
United States (U.S.) Court
of Appeals for the Second Circuit: Flores et al. v.
Southern Peru Copper Corporation (August 29, 2003)
The U.S. Court of Appeals
for the Second Circuit dismissed the plaintiffs' complaint
for lack of jurisdiction and for failure to state a claim
under the Alien Tort Claims Act ("ATCA"), 28
U.S.C. §1350, thereby affirming the judgment of the
District Court.
A group of Peruvian plaintiffs
brought personal injury claims under the ATCA against
Southern Peru Copper Corporation ("SPCC"), a
U.S. company, in which they alleged that SPCC's emission
of large quantities of sulfur dioxide and fine particles
of heavy metals violated customary international law by
infringing upon their "right to life," "right
to health" and "right to sustainable development."
At issue was whether environmental
torts could violate principles of customary international
law. On appeal, the plaintiffs argued that the District
Court erred in concluding that rights to life and health
were not sufficiently determinate to constitute "well-established,
universally recognized norms of international law."
In this regard the plaintiffs relied on, inter alia,
the provision stating that "Everyone has the right
to a standard of living adequate for the health and well-being
of himself and of his family...." in the Universal
Declaration of Human Rights, Art. 25, G.A. Res. 217A
(III), U.N. GAOR, 3d Sess., U.N. Doc. A/810, at 71 (1948).
In addition, the plaintiffs argued that the following
provision in the International Covenant on
Economic, Social, and Cultural Rights was evidence
of customary international law: "The States parties
to the present Covenant recognize the right of everyone
to the enjoyment of the highest attainable standard of
physical and mental health." (Art. 12, opened for
signature Dec. 19, 1966, 993 U.N.T.S. 3, 6 ILM 360) The
plaintiffs also cited principles in the Rio
Declaration on Environment and Development ("Rio
Declaration") 31 ILM 874.
The U.S. Court of Appeals for the
Second Circuit held that the instruments relied upon by
the plaintiffs contained vague standards and "no
limitation as to how or by whom these rights may be violated."
It concluded that the plaintiffs failed to establish the
existence of a customary international law "right
to life" or "right to health." The Second
Circuit noted that the only treaty relied on by plaintiffs
that the United States has ratified is the non-self-executing
International
Covenant on Civil and Political Rights ("ICCPR"),
opened for signature Dec. 19, 1966, 999 U.N.T.S. 171,
6 ILM 368. However, the Second Circuit found that
the ICCPR's provision that "[e]very human being has
the inherent right to life" was insufficiently definite
to give rise to a rule of customary international law.
The Second Circuit noted that
its position was consistent with Filartiga v. Pena-Irala,
630 F. 2d 876 (1980), and that unlike the claims for torture
alleged in Filartiga, the present claims did not
rise to the level of violations that were universally
condemned under customary international law.
European Court of Human Rights (ECHR):
Case of Sophia Gudrún Hansen v. Turkey (Application
no. 36141/97)(September 23, 2003)
The ECHR concluded that Turkish
authorities failed to make adequate and effective efforts
to enforce the applicant's access rights to her children
and thereby violated her right to respect for her family
life, as guaranteed by Article 8 of the Convention for the
Protection of Human Rights and Fundamental Freedoms
("the Convention").
The application was originally
brought pursuant to Article 25 of the Convention by an
Icelandic national, Ms. Gudrun Hansen for violations of
Articles 8 and 14 of the Convention. The applicant
was living in Iceland with Mr. Halil Al, a Turkish citizen,
and they had two daughters born out of wedlock in 1981
and 1982. The couple then married in Iceland in 1984,
and Halil Al obtained Icelandic citizenship three years
later. The applicant and her husband separated in November
1989. In June 1990, Halil Al went to Turkey and took his
daughters there on holiday with the applicant's consent.
In August 1990 the applicant received a telephone call
from Halil Al, who told her that her daughters would not
be returning to Iceland, and from that point on Halil
Al refused to communicate with the applicant. In the next
months, the applicant received no further information
regarding the whereabouts of her children.
The applicant applied for
a divorce decree and custody decree before Icelandic authorities.
In January 1991, the Icelandic Ministry of Justice issued
a separation license and provisionally granted custody
of the children to the applicant. In April 1992, the Icelandic
Ministry of Justice granted the applicant full custody
of her children in addition to a divorce decree. The Ministry
of Justice held that the children were to have access
to their father under arrangements to be determined by
mutual agreement of the parents. In October 1991 the applicant
also brought an action before a civil court in Istanbul
in which she sought a divorce and a grant of custody over
her daughters. At the divorce hearing, her daughters stated
that they did not wish to see their mother anymore. In
1992 the Turkish civil court granted the divorce and granted
custody of the daughters to their father. The applicant
appealed, and after further proceedings, the civil court
granted custody to the father and granted the applicant
visiting rights every July and August for sixty days.
In November 1996, the court of Cassation of Turkey upheld
the decision. The applicant then brought civil proceedings
against Halil Al claiming that he had abused his authority
as the children's guardian (velayetin nezi davasi).
The civil court provisionally granted the applicant access
to her children two days per month. However, the applicant
was only able to see her children on two occasions, and
her subsequent attempts were unsuccessful. From 1992-1996,
the applicant was not able to see her children. The applicant
brought complaints before a criminal court of first instance
for her ex-husband's failure to comply with court orders.
The court imposed monetary fines on Halil Al. The applicant
met her daughters in July 1998 for four days however,
Halil Al did not allow his daughters to see their mother
for any longer period, and the applicant returned to Iceland.
The applicant's rights of access to her daughters became
unenforceable when her daughters reached the age of 18
in 1999 and 2000.
The Court observed that the
essential purpose of Article 8 of the Convention for the
Protection of Human Rights and Fundamental Freedoms was
to protect the individual against arbitrary action by
public authorities, to respect family life, and includes
a right for parents to have measures taken that will permit
them to be reunited with their children and an obligation
on the national authorities to take such measures.
In this regard the Court noted that the applicant brought
her request for divorce and custody of her children in
Turkey in October 1991, and that the proceedings were
concluded six years and five months later in March 1997.
In the meantime, in March 1992 she was provisionally granted
access two days a month, but was only able to see her
children on two occasions between March and November of
1992. The Court further noted that between March 1992
and August 1998, the applicant was able to see her children
on only four occasions, although enforcement officers
and the applicant made more than fifty visits to the children's
home. The Court found that given that the husband arranged
to be absent on all of these occasions, the Turkish authorities
did not take any steps to locate the children in order
to facilitate contact with the applicant. In particular
the Court found that the fines imposed on the applicant's
former husband were neither effective nor accurate. The
Court also observed that the Turkish authorities failed
to seek the assistance of social services to facilitate
a more cooperative atmosphere, and that moreover, the
children were never given an opportunity to develop a
relationship with their mother in a calm environment where
they could express themselves without outside pressure.
The Court did not find that
Turkey was in breach of Article 14 of the Convention.
The applicant alleged that she had been deprived of her
right to see her children as a result of discrimination,
in particular on the ground that she was Catholic and
of Icelandic nationality. The court found that the applicant's
complaints in this regard were unsubstantiated. The Court
awarded the applicant pecuniary damages for Turkey's breach
of Article 8, damages which covered the applicant's travel
costs of USD 243,355.25 and for additional expenses incurred
during her stay in Istanbul and for the expenses she incurred
for the project she established in Iceland, minus funds
of USD 165,526.57 that she raised in Iceland. The Court
also awarded her non-pecuniary damages for emotional distress
of EUR 15,000.
United
Nations Human Rights Committee (UNHRC): Casafranca
v. Peru, Views of the Human Rights Committee under
the Optional Protocol to the International Covenant on
Civil and Political Rights, (Communication No. 981/2001)
(September 19, 2003)
The United Nations Human Rights
Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on
Civil and Political Rights held that Peru was in violation
of articles 7, 9, paragraphs 1 and 3; 14 and 15 of the
Covenant.
The communication was brought
before the U.N. Human Rights Committee by a Peruvian citizen,
Teófila Casafranca de Gómez, ("the author" of
the communication) on behalf of her son, Ricardo Ernesto
Gómez Casafranca, also a Peruvian citizen, who is currently
imprisoned in Peru after having been sentenced to 25 years'
imprisonment for terrorism.
According to the author, in
1996 her son was arrested near his home without a warrant.
He was wrongfully accused of, inter alia, working
as a military militia commander of a terrorist cell of
Sendero Luminosa, carrying out dynamite attacks
and fire bombings and seeking to destroy police units.
Following his arrest he was subjected to cruel and inhumane
physical and mental torture. In September 2001, he reported
the acts of torture to the National Police Department
of Human Rights, which issued a finding that Mr. Casafranca
failed to submit his complaint in a timely manner.
Mr. Casafranca was charged with homicide, bodily injury
and terrorist acts. The author claimed that her son always
maintained his innocence and did not know the other accused
persons who, perhaps because they too were being tortured,
had implicated him in the offense. After a series of proceedings
in which Mr. Casafranca was accused of forming part of
the Sendero Luminoso terrorist cell, he was acquitted
in 1988 by the Lima Seventh Correctional Court. In April
1997 the Supreme Court of Peru held that the facts had
not been properly determined nor the evidence properly
verified in order to give rise to a conviction. In September
1997, the Peruvian police arrested Mr. Casafranca at his
home and in January 1998 he was sentenced to 25 years'
imprisonment by the Special Criminal Counter-Terrorism
Division. This sentence was confirmed by the Supreme Court
in September 1998.
The communication claimed
violations of the right of Mr. Casafranca to protection
of person, to physical, psychological and mental integrity,
of the right not to be subjected to torture and the right
not to be detained arbitrarily. In addition, the communication
alleges that Peru, pursuant to its counter-insurgency
policy, has violated judicial guarantees of due process
and protection of the courts.
Peru maintained that the police
acted in accordance with the law on the investigation
of terrorist offences and in the context of the 1979 Constitution
then in force, and in particular, in accordance with the
preventive detention provision in article 9 of Legislative
Decree No. 46, adopted on March 10, 1981. In regard
to the claims of torture, Peru maintained that the file
contained a copy of medical certificates corroborating
the absence of any physical ill treatment of Mr. Casafranca.
Peru further claimed that the norms of due process provided
for in article 14 of the Covenant had been observed, that
Mr. Casafranca was heard in public hearings, in which
he was able to exercise his right to defend himself, both
in person and by counsel of his choosing.
The U.N. Human Rights Committee,
having ascertained that the same matter was not being
examined under another procedure of international investigation
or settlement for the purposes of article 5, paragraph
2(a) of the Optional Protocol, and having found that Mr.
Casafranca had exhausted domestic remedies, declared the
claim admissible. As to the merits, the Committee noted
that the records of the oral proceedings of January 30,
1998 revealed Mr. Casabranca's detailed testimony before
the judge describing acts of torture to which he had been
subjected. The Committee found that since Peru had not
provided any additional information in this regard or
nor had it initiated an official investigation of the
acts of torture alleged by Mr. Casafranca during trial,
such omissions violated article 7 of the Covenant. In
addition, the Committee found that Peru failed to provide
a reason for arresting Mr. Casafranca without a warrant.
Accordingly, the Committee found Peru to be in violation
of Article 9, paragraphs 1 and 3 of the Covenant. The
Committee further found that in the circumstances of the
case, there was a violation of the right to a fair trial
under article 14 of the Covenant. The Committee held that
although acts of terrorism at the time of the events were
already offenses under Legislative Decree No. 46 of March
1981, it was also true that Act No. 24651 of 1987 amended
the penalties by imposing higher minimum sentences and
by therefore subjecting Mr. Casafranca to a sentence of
more than double than that under the law in force at the
time he was arrested for the acts. Accordingly, the Committee
found that there was a violation by Peru of the principle
of non-retroactivity under article 15 of the Covenant.
The Committee held that in accordance
with article 2, paragraph 3(a) of the Covenant, Peru was
under an obligation to release Mr. Casafranca and to pay
him appropriate compensation. It found that Peru was under
an obligation to ensure that similar violations do not
occur in the future, and requested Peru to publish the
Committee' views as provided in the Covenant.
United
Nations Human Rights Committee (UNHRC): Young v. Australia,
Views of the Human Rights Committee under the Optional
Protocol to the International Covenant on Civil and Political
Rights, Communication No. 941/2000 (August 6, 2003)
The United Nations Human Rights
Committee, acting under article 5, paragraph 4 of the
Optional Protocol to the International Covenant on
Civil and Political Rights, ("the Covenant")
found that the Government of Australia discriminated against
a homosexual man by denying him pension benefits following
the death of his male partner. Under Australian law, only
heterosexual married couples or heterosexual couples who
were de facto married were entitled to receive
pension benefits. The Committee found that Australia had
not demonstrated how a distinction between same-sex partners,
excluded from pension benefits, and unmarried heterosexual
partners, who were granted such benefits, could be reasonable
and objective.
Mr. Edward Young ("the
author" of the communication) was in a same-sex relationship
with a Mr. C for 38 years. Mr. C was a war veteran, and
Mr. Young cared for him in the last years of his life.
Mr. C died in December 1998. In March 1999, Mr. Young
applied for a pension under section 13 of the Veteran's
Entitlement Act ("VEA") as a veteran's dependent.
The Repatriation Commission denied his application on
the grounds that he was not a dependent as defined by
the act. Section 5E of the VEA provides that a person
is a "member of a couple" for the purposes of
the VEA if all of the following conditions are met: (1)
the person is living with a person of the opposite sex
(in this paragraph called the partner); (2) the person
is not legally married to the partner; (3) the person
and the partner are, in the Commission's opinion (...),
in a marriage-like relationship; (4) the person and the
partner are not within a prohibited relationship for the
purposed of Section 23 B of the Marriage Act 1961."
The Repatriation Commission
found that due to the unambiguous language of the VEA,
it could not regard the applicant as a veteran's dependant.
The applicant's claim was further denied by the Veterans’
Review Board. The Human Rights and Equal Opportunity Commission
held that it had no jurisdiction to intervene.
Mr. Young argued that Australia's
refusal to provide him with a pension benefit on the basis
of his sexual orientation violated his right to equal
treatment before the law and was contrary to Article 26
of the Covenant.
Australia challenged the admissibility
of the communication on the ground that Mr. Young was
not a victim since, regardless of the decisions of the
veterans' affairs authorities, he could not establish
a prima facie entitlement to a pension and therefore
his sexual orientation was not determinative of the issue.
The Committee observed that
the Australian domestic authorities refused Mr. Young
a pension on the grounds that he did not meet the definition
of being a "member of a couple" under the VEA,
by not having lived with a "person of the opposite
sex." The Committee found that it was "clear
that at least those domestic authorities seized of the
case found that the author's sexual orientation [was]
determinative."
Observing that Article 26
of the Covenant comprised sexual orientation discrimination,
the Committee found that Australia had provided no arguments
as to how the distinction between same-sex partners and
unmarried heterosexual partners was reasonable and advanced
no evidence as to the factors that would be used to justify
such a distinction. Pursuant to article 2, paragraph 3(a)
of the Covenant, the Committee concluded that Mr. Young
was entitled to an effective remedy, including the reconsideration
of his pension without discrimination based on his sexual
orientation. The Committee further held that Australia
was obliged to ensure that such violations do not occur
in the future and in addition requested Australia to publish
the Committee's views.
United Nations (U.N.) Security Council: Resolution
(S/RES/1506) (September 12, 2003)
The U.N. Security Council
welcomed the August 15, 2003 letter by the Chargé d'affaires
of the Permanent Mission of the Libyan Arab Jamahiriya
addressed to the President of the Security Council, in
which the Libyan Government set forth the steps it has
taken to comply with resolutions 731 (1992) of January
21, 1992, 748 (1992) of March 21, 1992, 883 (1993) of
November 11, 1993 and 1192 (1998) of August 27, 1998,
concerning the destruction of Pan Am flight 103 over Lockerbie,
Scotland, and the destruction of Union de transports aeriens
flight 772 over Niger. These steps included the
acceptance of responsibility for the actions of Libyan
officials, payment of appropriate compensation, renunciation
of terrorism, and a commitment to cooperating with any
further requests for information in connection with the
investigation.
The Security Council also
welcomed the letter by the Permanent Representatives of
the United Kingdom and the United States of America to
the President of the Security Council concerning Libya's
responsibility for the destruction of the above-mentioned
flights.
Acting under Chapter VII of
the Charter of the United Nations, the Security Council
decided to lift, with immediate effect, the measures set
forth in paragraphs 4, 5 and 6 of its resolution 748
(1992) and paragraphs 3, 4, 5, 6 and 7 of its resolution 883 (1993).
In addition, the Security Council decided to dissolve
the Committee established by paragraph 9 of resolution
748 (1992). These measures included denying permission
to any aircraft to take off from, land or fly over Libyan
territory, unless the particular flight had been approved
on the grounds of significant humanitarian need as set
forth by the Security Council; prohibiting the supply
of any aircraft or aircraft components to Libya; prohibiting
any provision of arms or any sale or transfer of weapons
and other military equipment; reducing the number of diplomatic
staff in Libya; preventing the operation of Libyan Arab
Airlines offices; taking all appropriate steps to deny
entry or to expel Libyan nationals who have been denied
entry to or expelled from other States because of their
involvement in terrorist activities (resolution 748);
in addition to freezing all funds owned or controlled
by Government or public authorities of Libya or any Libyan
undertaking (resolution 883).
United
Nations (U.N.) Security Council: Resolution (S/RES/1507)
(September 12, 2003)
The U.N. Security Council,
reaffirming its previous resolutions regarding the situation
between Ethiopia and Eritrea and its support for the peace
process, extended the mandate of the United Nations Mission
in Ethiopia and Eritrea (UNMEE). It urged Eritrea
and Ethiopia to allow UNMEE full freedom of movement and
to remove all restrictions on its staff and their work.
The Security Council expressed its concern over delays
in the demarcation process, urged Ethiopia and Eritrea
to cooperate fully and promptly with the Boundary Commission
and called for demarcation to begin as scheduled by the
Boundary Commission. The Security Council also noted its
concern over the continuing humanitarian crisis in Ethiopia
and Eritrea, and called on Member States to continue to
provide prompt and generous support for humanitarian operations
in Ethiopia and Eritrea by means of contributions to the
Trust Fund for the Delimitation and Demarcation of the
Border.
Katsina,
Nigeria Court of appeals: Case of Amina Lawal
(September 25, 2003)
The court of appeals in Katsina
State, Nigeria, acquitted Amina Lawal, a 32-year-old woman
who had been sentenced to death by stoning by a lower
Islamic court last year for giving birth to a child 10
months after she was divorced. Ms. Lawal's sentence had
been issued in accordance with Shariah law, a law that
has been introduced in 12 northern Nigerian states over
the last three years. The court of appeals found that
the lower court in Katsina had erred by failing to give
the accused ample opportunity to defend herself. It also
criticized the lower court for accepting testimony from
Yahaya Mohammed, (the man who was the purported father)
who swore his innocence by the Koran, rather than by Allah.
The court of appeals also held that the police prosecutors
failed to produce four witnesses, as is required under
Shariah law in such matters.
For more information see
IRIN news.org of the UN Office for the Coordination
of Humanitarian Affairs.
Burundi's National Assembly
approved a law that would provide temporary immunity from
criminal prosecution to political leaders who have returned
from exile. The immunity period covers crimes committed
with a political motive from July 1,1962 (the date of
Burundi's independence) to the date of the law's promulgation.
During this period of immunity, no political leader who
has returned from exile may be charged or arrested for
crimes against humanity, war crimes and genocide.
For more information see
IRIN news.org of the UN Office for the Coordination
of Humanitarian Affairs.
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