Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law November 13, 2003
European Court of Human Rights (ECHR): Ezeh and Connors v. The United
Kingdom (October 9, 2003)
The European Court of Human
Rights (the Court) found, with a majority of votes (11
votes to 6), that there was a violation of the applicant’s
right to legal representation, as required in Article
6 § 3 (c) of the Convention.
Mr. Ezeh was imprisoned for
rape, possession of an imitation firearm and attempted
murder. On October 14, 1996, he attended a meeting with
his probation officer for the preparation of his parol
assessment report. During the meeting he threatened to
kill her if she did not write down what he said. He was
charged with an offense contrary to Rule 47(17) of the
1964 Prison Rules. He was “put on report”
and had a hearing before the prison governor on October
15, 1996. Mr. Ezeh requested legal representation in a
form submitted to the prison governor dated October 15,
1996 and also during the hearing on that day before the
prison governor.
Mr. Connors was convicted
on two counts of rape and of robbery and was sentenced
to four concurrent terms of imprisonment, the longest
being 18 years. In 1997 a prison officer alleged that
Mr. Connors ran into him and collided with him deliberately.
Mr. Connors was charged with the offence of assault, contrary
to Rule 47(1) of the Prison Rules. The adjudication hearing
was reconvened on April 11, 1997. The prison governor
rejected Mr. Connor’s application for legal representation.
The applicants invoked Article
6 § 3(c) of the Convention on the grounds that they were
denied legal representation and alternatively legal aid.
The United Kingdom maintained
that the dividing line between criminal and disciplinary
proceedings had been fixed in a manner consistent with
Article 6 of the Convention. The Chamber, in applying
the Engel criteria, Engel and Others v. the Netherlands
judgment (of June 8, 1976, Series A no. 22, §§ 82-83),
had not taken sufficient account of the need to maintain
an effective prison disciplinary regime, a factor which
justified a wider disciplinary sphere in a prison context.
The United Kingdom submitted in this respect that there
was a unique need to effectively enforce discipline in
prison.
In terms of Mr. Ezeh and Mr.
Connor’s claims, the Court decided (by 11 votes
to 6) that the Convention applies to the proceedings against
the applicants. The Court concluded that the nature of
the charges, together with the nature and severity of
the penalties, were such that the charges against the
applicants constituted criminal charges within the meaning
of Article 6 of the Convention, which applied to their
adjudications hearings. The Court also decided (by 11
votes to 6) that there had been a violation of Article
6 § 3(c) of the Convention. Further the Court held unanimously
that the finding of a violation constitutes in itself
sufficient just satisfaction for any non-pecuniary damage.
The Court decided that the United Kingdom must pay applicant’s
legal costs and expenses, inclusive of any value-added
tax that may be chargeable.
In accordance with Article
45 § 2 of the Convention and Rule 74 § 2 of the Rules
of Court, the following separate opinions were annexed
to this judgment:
(a) dissenting opinion of
Judge Pellonpää, joined by Judges Wildhaber, Palm and
Caflish;
(b) joint dissenting opinion
of Judges Zupanic and Maruste.
International Court of Justice (ICJ):
Islamic Republic of Iran v. United States of America
(November 6, 2003)
The International Court of
Justice (the Court) found, by 14 votes to 2, that the
action of the United States of America against Iranian
oil platforms on October 19, 1987 and April 18, 1988 could
not be justified as measures necessary to protect the
essential security interests of the United States of America.
However, the Court held that those actions did not constitute
a violation of the Treaty of Amity, Economic Relations
and Consular Rights between the United States and Iran
(the Treaty) (Tehran August 15, 1955).
On November 2, 1992, the Government
of the Islamic Republic of Iran (Iran) submitted an Application
against the Government of the United States of America
(the United States). Iran claimed that the above-mentioned
acts were a “fundamental breach” of various
provisions of the Treaty.
On October 19, 1987 and April
18, 1988 the United States attacked three offshore oil
production complexes owned and operated for commercial
purposes by the National Iranian Oil Company.
Iran claimed, inter alia,
that the attack on the oil platforms was a violation
of the United States’ obligations to the Islamic
Republic under Article I and X (1) of the Treaty and international
law. Further Iran requested the Court to adjudge and declare
that the United States is under an obligation to make
reparations to Iran for the violation of its international
legal obligations in an amount to be determined by the
Court as a subsequent stage of the proceedings. Iran also
challenged that the United States’ counter-claim
was in any event inadmissible.
The United States argued,
inter alia, that it did not breach its obligations
to the Islamic Republic of Iran under Article X, paragraph
1, of the 1955 Treaty. It requested that the Court adjudge
and declare that the claims of Iran are accordingly dismissed.
The United States, in its counter-claim, requested that
the Court adjudge and declare that in attacking vessels
in the Gulf with mines and missiles and otherwise engaging
in military actions that were dangerous and detrimental
to maritime commerce, Iran breached its obligations to
the United States under Article X of the Treaty. The United
States claimed that Iran was under an obligation to make
full reparation for its breach of the 1955 Treaty in a
form and amount to be determined by the Court at a subsequent
stage of the proceeding.
In terms of the claims of Iran, the
Court decided (by 14 votes to 2) that the actions of the
United States against Iranian oil platforms on October
19, 1987 and April 18, 1988 could not be justified as
measures necessary to protect essential security interests
of the United States under Article XX, paragraph 1 (d)
of the Treaty, as interpreted in light of international
law on the use of force. The Court concluded that the
United States was only entitled to have recourse to force
under the provision in question if it was acting in self-defense.
Self-defense could be exercised only if the United States
had been the victim of an armed attack by Iran, and any
measures of self-defense would have to have been necessary
and proportional to the attack. Further the Court found
that it could not uphold Iran’s submission that
those actions constituted a breach of the obligations
of the United States under Article X, paragraph 1 of the
Treaty, regarding freedom of commerce between the territories
of the parties, because at that time there was no trade
in crude oil from those platforms between Iran and the
United States.
The Court found (by 15 votes
to 1) that the counter-claim of the United States concerning
the breach of the obligations of Iran under Article X,
paragraph 1, of the Treaty regarding freedom of commerce
and navigation between the territories of the parties,
could not be upheld; and accordingly, that the counter-claim
of the United States for reparations could not be upheld
either.
United States (U.S.) Court of Appeals
Fifth Circuit: Bridas et al. v. Government of Turkmenistan
et al. (September 9, 2003)
The Fifth Circuit U.S. Court
of Appeals held that the Government of Turkmenistan (Turkmenistan)
was not subject to the jurisdiction of an International
Chamber of Commerce Tribunal (ICC) and vacated and remanded
in part a portion of an order of a Texas federal court.
(Bridas SAPIC v. Government of Turkmenistan, et al.,
No, 02-20929, 5th Cir.)
The facts concern a joint venture
agreement entered into between Turkmenneft, a Turkmenistan
state-owned concern, and Bridas, an Argentinian corporation,
for the purpose of conducting hydrocarbon operations in
an area in Keimir, Turkmenistan. Bridas claimed that in
November 1995, Turkmenistan ordered the suspension of
works in Keimir and prohibited Bridas from making imports
and exports in or from Turkmenistan. In April 1996, Bridas
initiated an arbitration proceeding against Turkmenistan
with the ICC. The ICC Tribunal held that although Turkmenistan
did not sign the joint venture agreement, it was bound
to arbitrate the dispute with Bridas because (1) the Government
had not taken any steps to extricate itself from the proceedings
and (2) its evaluation of the evidence revealed at least
22 commitments in the joint venture agreement "that
only the Government could give or fulfill." The ICC
Tribunal, in its final award, granted a total of $495,000,000
in damages to Bridas.
Bridas filed the present lawsuit
in July 1999 when it filed its application for confirmation
of the final award. Turkmenistan and Turkmenneft
filed a motion to dismiss the application for confirmation
and to vacate and refuse confirmation of the final award.
The district court denied the motions to vacate.
Turkmenistan and Turkmenneft appealed the district court's
judgment.
Bridas asserted that Turkmenistan
waived its right to contest the ICC Tribunal's jurisdiction
given that (1) it failed to challenge order No. 5 of the
Tribunal and (2) it voluntarily took part in the arbitration
through Turkmenneft. The Fifth Circuit found both of these
grounds to be without merit. It observed that the ICC
Order number 5 stated "[w]e have not yet decided
whether the Government is bound by the commitment to arbitrate."
Therefore, the Fifth Circuit concluded that such order
did not address whether the Tribunal had jurisdiction
over Turkmenistan. The Fifth Circuit noted further that
neither the fact that Turkmenistan allowed the proceeding
to continue over its objection, nor its virtual representation
at the arbitration by Turkmenneft waived its right to
dispute the Tribunal's jurisdiction in court.
In regard to the joint venture
agreement, the Fifth Circuit held that it was apparent
"from the four corners of the agreement" that
such agreement did not bind Turkmenistan to arbitration
of the dispute. The Fifth Circuit noted that Turkmenneft
was entitled to a "presumption of independent status"
and that Bridas failed to satisfy the burden of proving
that Turkmenneft signed the joint venture agreement on
behalf of Turkmenistan. The Fifth Circuit also concluded
that while equitable estoppel prevents a signatory to
an arbitration agreement from avoiding arbitration with
a nonsignatory when the issues between them are intertwined,
the reverse is not true: "a signatory may not estop
a nonsignatory from avoiding arbitration regardless of
how closely affiliated that nonsigntory is with another
signing party."
World Trade
Organization (WTO) Appellate Body Report: United States
– Definitive Safeguard Measures in Imports of Certain
Steel Products (November 10, 2003)
The WTO Appellate Body generally
upheld the WTO Panel's findings that the U.S. tariffs
in the form of safeguard measures on steel imports were
inconsistent with the GATT 1994 and
the Agreement
on Safeguards. (For a summary of the Panel Report,
seeILIB summary of July 25, 2003) The WTO
Panel concluded that because Article XIX of the GATT 1994
requires a demonstration that unforeseen developments
have resulted in increased imports, the report
of the United States' investigating authorities must "contain
specific factual demonstrations of unforeseen developments
identified to have resulted in increased imports
causing or threatening to cause serious injury to the
relevant domestic producers for each safeguard
measure at issue." In this case the Panel found that
the U.S. safeguard measures on steel imports did not meet
the test as measures applied in "emergency actions"
as a result of unforeseen developments.
On appeal, the United States
maintained, inter alia, that contrary to the Panel's
conclusions, there was no basis in the Agreement on Safeguards
for finding that "timing" and/or "extent"
are relevant for making an unforseen circumstances determination.
Rather, it argued that the key consideration for such
determination was whether the U.S. authorities presented
a logical basis for their conclusion, based on reasoned
conclusions on all pertinent issues of fact and law, in
accordance with Article 3.1 of the Agreement on Safeguards.
The United States contended that with regard to the requirement
that the increase in imports be "sudden", the
Panel read into Article XIX of the GATT 1994 a requirement
that it does not contain, thereby violating customary
rules of treaty interpretation. The United States
also argued that the Panel acted inconsistently with Article
12.7 of the Understanding of Rules
and Procedures Governing the Settlement of Disputes
(DSU) by failing to undertake the requisite analysis,
and for failing to cite evidence that contradicted the
findings of the U.S. International Trade Commission.
The Appellate Body, citing
Argentina–Footwear
(EC), noted that "there was an inseparable
relationship between Article XIX of the GATT 1994 and
the Agreement on Safeguards, thereby rejecting the United
States' contention that a different and separate standard
of review was required for Article XIX of GATT. In conclusion,
the Appellate Body upheld the Panel's conclusions that
the U.S. application of all safeguard measures at issue
in this dispute was inconsistent with Article XIX:1(a)
of the GATT 1994 and Article 3.1 of the Agreement on Safeguards
because the United States failed to provide a reasoned
and adequate explanation demonstrating that "unforeseen
developments" had resulted in increased imports causing
serious injury to the relevant domestic producers. It
reversed the Panel's conclusions based on the Panel's
reasoning that the United States failed to provide a reasoned
and adequate explanation of how the facts supported its
determination of a "causal link" for tin mill
products and stainless steel wire, since the explanation
given by the United States consisted of alternative explanations
partly departing from each other. Nevertheless, the Appellate
Body found it unnecessary to decide whether the determination
with respect to a "causal link" for tin mill
products and stainless steel wire was consistent with
the Agreement on Safeguards. The Appellate Body further
rejected the United States claim that the Panel failed
to set forth a basic rationale behind its findings as
required by Article 12.7 of the DSU.
Bangladesh:
The Arbitration Act 2001 (April 10, 2001)
Bangladesh has repealed both
the Arbitration (Protocol and Convention) Act of 1937
and the Arbitration Act of 1940, and has enacted a new
arbitration law, "The Arbitration Act, 2001,"
(the Act) principally based on the UNCITRAL Model
Law in International Commercial Arbitration (1985).
The new arbitration law consolidates the domestic and
international arbitration regime in Bangladesh.
The Act provides that an arbitral
tribunal may rule on its own jurisdiction, unless otherwise
agreed by the parties in terms of the following questions:
(a) whether there is a valid arbitration agreement; (b)
whether the arbitral tribunal is properly constituted;
(c) whether the arbitration agreement is against public
policy; (d) whether the arbitration agreement is capable
of being performed, and (e) what matters have been submitted
to arbitration in accordance with the arbitration agreement.
Chapter VI, entitled "Conduct
of the Proceedings," provides in Article 24 that
the arbitral tribunal shall not be bound by the Code of
Civil procedure and the Evidence Act of Bangladesh, and
that the arbitral tribunal shall follow the procedure
to be agreed on by the parties. In terms of setting aside
arbitration awards, Chapter VIII of the Act, entitled
"Recourse against arbitral awards" is similar
to Chapter VII, Article 34 of the UNCITRAL Model Rules.
It also provides that Bangladesh courts may set aside
awards if they are satisfied that (i) the subject matter
of the dispute is not capable of settlement by the arbitration
under the law for the time being in force in Bangladesh;
(ii) if the arbitral award is prima facie opposed
to the law for the time being in force in Bangladesh;
(iii) the arbitral award is in conflict with the public
policy of Bangladesh or (iv) the arbitral award is induced
or affected by fraud or corruption.
United Nations (U.N.) Security Council:
Progress Report of the Secretary-General on Ethiopia and
Eritrea (September 4, 2003)
The U.N. Secretary-General's
report, submitted pursuant to paragraph 12 of Security
Council Resolution 1320 (2000), extends the mandate of
the United Nations Mission in Ethiopia and Eritrea (UNMEE)
until March 15, 2004. The report provides an update on
developments in the peace process since the
last report of June 23, 2003.
The Secretary-General observed
that the UNMEE serves to deter human rights violations
and to promote and monitor the implementation of the international
norms and standards for the protection of the rights and
well-being of civilians, including children. However,
the report noted several problems, including the denial
of access for UNMEE to visit refugee camps in areas adjacent
to the Temporary Security Zone. The Office of the United
Nations High Commissioner for Refugees is currently holding
discussions with the Eritrean and Ethiopian authorities
on this matter. In addition, the report noted that both
Eritrea and Ethiopia continue to impose restrictions on
the UNMEE's freedom of movement in the Temporary Security
Zone and adjacent areas.
The Secretary-General observed
that, as indicated by the Security Council in its presidential
statement of July 27, 2003 (SPRST/2003/10), the delays
in the demarcation process are a source of concern in
view of the operational cost of UNMEE and in view of the
growing demands on U.N. peacekeeping in Africa and elsewhere.
The Secretary-General noted that UNMEE was created for
limited purposes and was never meant to be a permanent
arrangement. The Secretary-General calls on the parties'
"closest friends" and allies to take a more
active role in fulfilling "the spirit of the Algiers
Agreements and concluding the process without further
delay."
Canada ratifies
the Law of the Sea Convention (November 6, 2003):
Canada's minister signed ratification documents to become
a full member of the United
Nations Convention on the Law of the Sea (UNCLOS).
Canada is the 144th
nation to ratify the convention.
International Law In Brief (ILIB) - Copyright 2003
- The American Society
of International Law (ASIL) Editors: Ruth Teitelbaum, Scott Smith, Jaroslaw
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