Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law December 16, 2003
International Centre for Settlement of Investment Disputes
(ICSID): Azurix Corp v. the Argentine Republic(Case No. ARB/01/12)(December 8, 2003)
The Tribunal granted jurisdiction,
finding that Azurix Corporation has a prima facie
claim against Argentina for breach of obligations under
the 1991 Treaty Concerning the Reciprocal Encouragement
and Protection of Investment between the Argentine Republic
and the United States of America (the Argentine-U.S. Bilateral
Investment Treaty or "BIT").
Azurix Corp ("Azurix"),
a U.S. company incorporated in Delaware, brought a claim
concerning its investment in a utility that distributes
drinking water and treats sewage in the province of Buenos
Aires, Argentina. Azurix's subsidiary, Azurix AGOSBA S.R.L.
("AAS"), incorporated Azurix Buenos Aires ("ABA")
in Argentina to act as its concessionaire and to enter
into a concession agreement for the distribution of potable
water in the province of Buenos Aires. Azurix claimed
that Argentina breached the BIT through measures tantamount
to expropriation, by failing to accord it fair and equitable
treatment, full protection and security and treatment
required by international law, by failing to observe obligations
Argentina entered into with regard to Azurix's investment
and by failing to provide transparency concerning the
regulations, administrative practices, procedures and
adjudicatory decisions that affect Azurix's investment.
Azurix requested an order for the payment of damages and
reserved its right to request provisional measures pursuant
to Article 47 of the ICSID Convention.
The parties disputed the scope
of Azurix's investment in Argentina. Argentina claimed
that the dispute was a contractual dispute related to
the concession agreement, and that such agreement was
neither an investment agreement, an agreement for economic
development, nor an international contract. The Tribunal
found that Azurix's investment, its 90% ownership of the
shareholding in ABA, its indirect control of ABA, and
the fact that ABA is a party to the concession agreement
satisfied the requirement of an investment covered by
the terms of the BIT. Citing the recent ICSID award in
CMS v. Argentina, the Tribunal held that
"Whether the protected investor is in addition a
party to a concession agreement or a license agreement
with the host State is immaterial for the purpose of finding
jurisdiction under those treaty provisions, since there
is a direct right of action of shareholders."
Argentina argued that the
ICSID Tribunal's jurisdiction was excluded because Azurix
had already submitted the dispute to Argentine courts
and thus exercised its jurisdictional option under Article
VII of the BIT (the "fork in the road" choice).
Argentina argued that the existence of a waiver in the
concession agreement (addition to the forum selection
clause) distinguished this case from other ICSID cases
where tribunals have held that a forum selection clause
did not preclude jurisdiction of an ICSID Tribunal. (SeeVivendi annulment decision 41 ILM 1135). Moreover,
Argentina submitted that the waiver provision was added
to the contract in light of ICSID decisions in Lanco
and Aguas del Aconquija or (SeeLanco
v. Argentina, 40 ILM 457; Aguas del Aconquiija
v. Argentina, 40 ILM 426) The Tribunal held that neither
waivers nor forum selection clauses in contract documents
excluded ICSID jurisdiction where the claim is for violations
of the BIT.
The Tribunal noted that its
role was limited to deciding whether Argentina has breached
its obligations under the BIT, and the extent to which
it must analyze the scope of the claims brought before
the administrative tribunals of Argentina was not to be
resolved until the merits stage. It therefore held that
the dispute was within its jurisdiction under the BIT
and the ICSID Convention.
International
Criminal Tribunal for the Former Yugoslavia (ICTY) (Trial
Chamber I): Prosecutor v. Galic (Case no. IT-98-29-T)
(December 5, 2003)
Trial Chamber I of the ICTY
found General Stanislav Galic ("Galic") guilty
of violations of the laws or customs of war for acts of
violence with the primary purpose of spreading terror
among the civilian population, in violation of Article
51 of the Additional Protocol I to the Geneva
Conventions of 1949 and under Article 3 of the ICTY Statute. He was also
found guilty of crimes against humanity (murder) under
Article 5(a) of the ICTY Statute, in addition to crimes
against humanity (inhumane acts - other than murder) under
Article 5(i) of the ICTY Statute.
Galic was accused of conducting
a campaign of sniping and shelling attacks on the civilian
population of Sarajevo, causing death and injury to civilians,
with the primary purpose of spreading terror among the
civilian population between September 1992 and August
1994. Galic was the commander of a branch of the Army
of Republika Srpsja known as the Sarajevo Romanija Corps,
or the SRK, from September 1992 to August 1994.
The ICTY
Prosecutor brought charges against Galic under Article
3 of the ICTY Statute as violations of the laws or customs
of war, alleging that Galic's involvement in the campaign
of sniping and shelling attacks on civilians in the parts
of Sarajevo resulted in a violation international humanitarian
law. The Prosecution based this argument on the principle
of international humanitarian law, which requires military
commanders to distinguish between military objectives
and civilians, and to refrain from attacking civilians
under any circumstances, by virtue of Article 51 of the
Additional Protocol I to the Geneva Conventions of 1949.
The Prosecutor alleged that Galic ordered the campaign of attacks on
civilians, or otherwise failed to prevent or punish the
crimes of his subordinates, and charged him with war crimes
and crimes against humanity. The Prosecutor also charged
Galic with the crime of terror, and alleged that terror
was the primary purpose of the campaign of attacks.
The Defense argued that the
Prosecutor was not able to establish that civilian casualties
were caused by deliberate or indiscriminate shelling or
sniping by the SRK. It claimed that the civilian casualties
were collateral to legitimate military activity. It noted
casualties resulted as well from targeting errors and
stray bullets, and that moreover, some casualties may
have been the result of ABiH forces firing upon their
own civilians.
The Trial
Chamber heard testimony from local witnesses who had experienced
multiple attacks in their neighborhoods, including attacks
while attending funerals, while in ambulances, trams,
and buses, and while cycling. The witnesses further testified
that children were targeted while playing or walking in
the streets. The Trial Chamber found that the evidence
demonstrated beyond reasonable doubt that Sarajevo civilians
were made the object of deliberate attack by SRK forces.
The Trial Chamber observed that the attacks were mostly
carried out in daylight, were not in response to any military
threat, and the attackers could usually determine that
their victims were engaging in everyday civilian activities.
The Trial
Chamber noted one particular incident in February 1994,
when a mortar shell exploded in the Markale market in
downtown Sarajevo, killing some 60 people and injuring
more than a hundred. It examined the contemporary investigations
conducted by United Nations personnel and by local investigators,
as well as the analyses of experts called by the parties
in this case. The Trial Chamber concluded that the mortar
shell which caused the explosion was fired from territory
controlled by the SRK, and was a devastating attack against
a civilian target.
The Trial Chamber concluded that the
SRK’s widespread attacks against the civilian population
of Sarajevo were intended by the corps’ commander.
It found it clear that Galic, through his orders as a
general, and by other means of facilitation and encouragement,
conducted the campaign of attacks. The Trial Chamber also
found that Galic did so with the primary aim to spread
terror among the civilian population of Sarajevo. The
Trial Chamber sentenced Galic to a single sentence of
20 years' imprisonment.
International
Criminal Tribunal for the Former Yugoslavia (ICTY) (Trial
Chamber II): Prosecutor v. Blagoje Simic, Mirolsav
Tadic and Simo Zadic (October 17, 2003)
The Trial Chamber sentenced
Blagoje Simic to 17 years' imprisonment, for crimes against
humanity, for persecutions, based upon unlawful arrest
and detention of Bosnian Muslim and Bosnian Croat civilians,
cruel and inhumane treatment including beatings, torture,
forced labor assignments and confinement under inhumane
conditions, and deportation and forced transfer. The Trial
Chamber sentenced Miroslav Tadic to 8 years for crimes
against humanity, for persecutions, based upon deportation
and forcible transfer. It sentenced Simo Zaric to 6 years'
imprisonment, for crimes against humanity, for persecutions,
based upon cruel and inhumane treatment including beatings,
torture, and confinement under inhumane conditions.
Blagoje Simic, Miroslav Tadic
and Simo Zaric were jointly charged under the Fifth Amended
Indictment of May 30, 2002, with individual criminal responsibility
pursuant to Article 7(1) of the Statute of the Tribunal,
for two counts of crimes against humanity under Article
5 of the Statute, namely persecutions and deportation,
and one count of a grave breach of the Geneva Conventions
of 1949 under Article 2 of the ICTY Statute, on the grounds
of unlawful deportation and transfer.
The events at issue occurred
in the municipalities of Bosanski Samac and Odzak and
elsewhere in the territory of Bosnia and Herzegovina.
The Trial Chamber found that the events which took place
in the Municipalities of Bosanski Samac and Odzak between
April 17, 1992 and December 31, 1993 constituted a widespread
and systematic attack on the civilian population. The
attack included the forced takeover by members of the
paramilitaries and Serb police and the subsequent acts
of persecution and deportation against non-Serb civilians.
At this time the accused held the following positions:
Dr. Blagoje Simic, a medical doctor, was president of
the Municipal Board of the Serbian Democratic Party and
the President of the Serb Crisis Staff in the municipality
of Bosanski Samac. He continued as president when the
crisis staff was renamed the war presidency, and was the
highest ranking civilian official in the municipality
of Bosanski Samac. Simo Zaric was Assistant Commander
for Intelligence, Reconnaissance, Morale and Information
in the 4th Detachment, Chief of National Security
in Bosanski Samac from April 29, 192 to May 19, 1992,
and Deputy to the President of the Civilian Council in
Odzak.
In terms of individual responsibility
and the theory of joint criminal enterprise under Article
7(1) of the Statute, the Trial Chamber found that the
members of the crisis staff, including Simic as president
of the crisis staff, were participants in a basic form
of joint criminal enterprise, each one sharing the intent
to execute a common plan to persecute non-Serb civilians
in the Bosanski Samac municipality. The Trial Chamber
found that there was sufficient evidence to conclude that
participants in the joint criminal enterprise acted jointly
in order to forcibly take over the town of Bosanski Samac,
taking over vital town facilities and institutions and
persecuting non-Serb civilians, including acts of unlawful
arrest and detention, cruel and inhumane treatment through
beatings, torture and forced labor assignments, in addition
to confinement under inhumane conditions, deportations
and forcible transfer. The Trial Chamber found that Simic,
as president of the municipal assembly and the crisis
staff was at the head of the joint criminal enterprise
at the municipal level, knowing that his role and authority
were essential for the accomplishment if the common goal
of persecution. The Trial Chamber found however, that
there was no evidence that Tadic and Zaric were participants
in this joint criminal enterprise.
World Trade Organization (WTO) (Appellate
Body): United States-Sunset Review of Anti-Dumping
Duties on Corrosive-Resistant Carbon Steel Flat products
from Japan (WT/DS244/AB/R) (December 15, 2003 )
The WTO
Appellate Body affirmed a Panel Report
dismissing Japan’s challenge of the U.S. “Sunset
Regulations” (section 751(c)(1) and (2) of the Tariff
Act of 1930 and Commerce Department regulation 19 C.F.R.
§351.218(a) and (c)(1)) and upheld the consistency of
the Sunset Regulations and their application with the
GATT 1994 Anti-dumping
Agreement, and the WTO
Agreement. The decision allows the United States
to maintain duties of 36 percent on corrosion-resistant
steel from Japan.
Under the sunset review provisions
of the Uruguay Round Agreements Act, as incorporated in
the U.S. statute (Uruguay Round Agreements Act, Public
Law 103-465, 108 Stat. 4809) the U.S. Commerce Department
must revoke dumping orders after five years, unless such
revocation would result in the recurrence of dumping and
of material injury to the U.S. industry within a reasonably
foreseeable time. The Sunset Policy Bulletin, challenged
by Japan, sets forth policies regarding the conduct of
five-year sunset reviews.
The dispute with Japan arose
following a decision of the U.S. Commerce Department to
leave in place a dumping order on Japanese steel flat
products. Japan initiated a WTO complaint against the
United States in January 2002, arguing that the U.S. Commerce
Department's findings were erroneous and based on "deficient
rulings, procedures and provisions" pertaining to
the 1930 Tariff Act.
At issue, inter alia,
was whether the Sunset Policy Bulletin could be considered
a mandatory legal instrument and therefore a measure that
is "challengeable" as such under the Anti-Dumping
Agreement or the WTO Agreement. The Appellate Body upheld
Japan's challenge in this regard, and held that a Sunset
Policy Bulletin can be a measure subject to challenge
in a WTO dispute settlement proceeding.
Nonetheless, the Appellate
Body upheld the Panel's overall decision finding that
the United States had not violated its obligations under
the Anti-Dumping and the WTO Agreement.
World Trade Organization (WTO) General
Council: Decision of the General Council to Implement
Paragraph 6 of the Doha Declaration on the TRIPS Agreement
and Public health (August 30, 2003)
Noting that exceptional circumstances
exist justifying waivers from the obligations set out
in the TRIPS Agreement with respect to pharmaceutical
products, the Decision of the General Council of the WTO
sets forth the conditions under which an exporting Member
can waive its obligations concerning compulsory licenses
for producing pharmaceutical products, and under which
importing members may qualify to import pharmaceutical
products under this agreement.
Eligible importing Members
must notify the Council for TRIPS of the names and expected
quantities of the product needed, it must confirm that
it is an eligible importing Member in question, other
than a least developed country member, and it must establish
that it has insufficient or no manufacturing capacities
in the pharmaceutical sector for the products in question.
As for the requirements for granting compulsory licenses,
only the amount necessary to meet the needs of the eligible
importing Member may be manufactured under the license
and the entirety of this production shall be exported
to the Members which have notified the TRIPS Council of
its needs. Products under the license must be clearly
identified as being produced under this system, either
by labeling or marketing.
The decision
also provides that Members shall ensure the availability
of effective legal means to prevent the importation into,
and sale in, their territories of products produced under
the system set out in this Decision and diverted to their
markets inconsistently with its provisions, using the
means already required to be available under the TRIPS
Agreement. If any Member considers that such measures
are insufficient for this purpose, the matter may be reviewed
in the Council for TRIPS at the request of that Member.
European
Court of Justice (ECJ): Eran Abatay and Others and
Nadi Sahin v. Bundesanstalt für Arbeit (October 21,
2003)
At issue
was the interpretation of Articles 41(1) of the Additional
Protocol and of Article 13 of the Decision No 1/80 (“standstill
clauses”). These documents are supplements to the
Association Agreement signed between the European Community
and Turkey in 1963. The aim of the Association Agreement
is to promote the continuous and balanced strengthening
of trade and economic relations between the contracting
parties, including in the labor sector, by progressively
securing freedom of movement for workers and by abolishing
restrictions on freedom of establishment and on freedom
to provide services in order to improve the standard of
living of the Turkish people.
The ECJ held that as a general
rule, Articles 41(1) and Article 13 prohibit the introduction
of new national restrictions on the right of establishment
and the freedom to provide services and freedom of movement
for workers. It also held that Turkish nationals could
rely on Article 41(1) and Article 13 as a basis for their
claim that they were denied the right of establishment
and freedom to provide services and freedom of movement.
It further held that Article 41(1) is applicable to international
road haulage of goods originating in Turkey, where those
services are carried out in the territory of a Member
State.
Mr. Abatay and others are
Turkish nationals residing in Turkey and working as drivers
in international haulage. They are employed by a Turkish
company that has a registered office in Stuttgart, Germany.
The company transported the goods from Turkey to Germany
in lorries registered in Germany and driven by, among
others, Mr. Abatay and Others. Mr. Sahin was originally
a Turkish citizen. In 1991 he acquired German nationality.
Mr. Sahin runs the transport undertaking Sahi Internationale
Transporte, established in Göppingen, Germany as well
as a subsidiary undertaking Anadoul Dis Ticaret AS, which
has its registered office in Istanbul, Turkey. Sahin International
Transporte owns several lorries registered in Germany.
Mr. Sahin used as drivers of the lorries registered in
Germany 17 Turkish nationals who lived in Turkey and had
concluded their contracts of employment with Anadolu Dis
Ticaret AS.
The German Federal Social
Court (“Bundessozialgericht”) referred to
the ECJ for a preliminary ruling under Article 234 EC
(European Community treaty) several questions on the interpretation
of Article 41(1) of the Additional Protocol and of Article
13 of Decision No 1/80.
The above-mentioned questions
were raised in two sets of proceedings brought by Mr.
Abatay and others and Mr. Nadi Sahin against the Federal
Labor Office (“Bundesanstalt für Arbeit”).
The main issue was whether the Turkish workers, who did
not intend to become employed in Germany, can rely on
that provision for the protection of the freedom to provide
services as the basis for the rights they claim. The Federal
Labor Office issued an employment permit, however after
1995/1996 it refused to issue further permits. The employment
of Mr. Abatay and others had originally been legal
within the meaning of Article 13 in respect of German
sections of journeys since, under the German regulation,
as traveling personnel engaged in the international carriage
of passengers and goods, they did not need work permits.
The new version of that provision, placed a significant
restriction on access to the employment market in Germany
for the Turkish drivers in question, in breach of Article
13 of Decision No 1/80.
The ECJ held that some of
the “standstill clauses” may be relied on
by Turkish nationals in the Member State concerned to
enforce their rights under the Association Agreement and
Additional Protocol. Further the ECJ stated that it was
for the German national court to determine whether the
national legislation applied to Turkish nationals such
as the applicants in the main proceedings is less favorable
than that applicable at the time of the entry into force
of the Additional Protocol.
United
States (U.S.) Court of Appeals for the Ninth Circuit:
Cheema and Kaur v. Immigration and Naturalization Service,
No. 02-71311 (December 1, 2003)
The U.S. Court of Appeals
for the Ninth Circuit (the "Court") found that
no evidence supported the Board of Immigration Appeals'
decision that the petitioners posed dangers to the national
security of the United States, thereby granting their
petitions for withholding of deportation, and remanding
their petitions for political asylum to the Board of Immigration
Appeals (the "Board"). However, the Court found
that the petitioners' acts within the United States could
be qualified as terrorist activity and therefore upheld
the Board's decision to deny mandatory relief on the basis
of the Convention
Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment.
Harpal Singh Cheema ("Cheema"),
a national of India, organized a rally to protest the
Indian government's decision to divert water from the
Punjab in 1987. After this event, he was arrested and
tortured by Indian police. In 1990, Cheema fled to Canada
and entered the United States, where his wife, Rajwinder
Kaur ("Kaur"), joined him later. In the United
States, he and his wife raised money to be sent to individual
Sikh families. In particular, Cheema sent money to Sikh
families and acted as a liaison between Sikhs and a man
named Bittu, who was a resident of Pakistan and was wanted
in India for bank robbery and assassinations. The U.S.
State Department had identified the Sikh Student Federation
Faction (SSF), headed by Bittu, as a "terrorist Sikh
organization." In the United States, Cheema also
took calls from individuals in India and connected them
to Bittu in Pakistan so as to avoid the Indian authorities.
The Ninth Circuit accepted
the Board's findings that Cheema and his wife had engaged
in terrorist activity, and noted that as a result of this
activity, full relief was not available to them under
the Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment ("CAT").
Section 241(a)4(B) of the Immigration
and Naturalization Act ("INA") renders deportable
"[a]ny alien who has engaged, is engaged, or at any
time after entry engages in terrorist activity."
The Ninth
Circuit observed that notwithstanding a determination
of terrorist activity, an alien may be eligible for withholding
of deportation or asylum if the Attorney General determines
that the alien's life or freedom would be threatened in
such country on account of race, religion, nationality,
membership in a particular social group, or political
opinion. However, withholding will not be applied if "there
are reasonable grounds for regarding the alien as a danger
to the security of the United States."
At issue was whether substantial
evidence supported the Board's conclusion that there were
"reasonable grounds" for regarding Cheema and
Kaur as dangers to U.S. national security. The Ninth Circuit
generally found a lack of a link between Cheema and Kaur's
donations and a specific terrorist organization.
Whereas the Board concluded that "It is clear that
those who engage in terrorism within the United States,
even when the terrorism is not directly aimed at the United
States, necessarily endanger the lives, property, and
welfare of United States citizens and compromises our
national defense," the Ninth Circuit disagreed, finding
that "one country's terrorist can often be another
country's freedom fighter" citing, inter alia,
the United States' support for the Contras, who used terrorist
tactics in Nicaragua, as an example. The Court held that
"[i]t is by no means self-evident that a person engaged
in extra-territorial or resistance activities– even
militant activities–is necessarily a threat to the
security of the United States." The Ninth Circuit
thus remanded the asylum applications to the Board with
the instructions that, although the determination is to
be made by the Board in the exercise of its discretion
that the INA has conferred on the Attorney-General, "the
Board may not use its discretion to issue a decision that
is "arbitrary, irrational, or contrary to law."
International Law In Brief (ILIB) - Copyright 2003
- The American Society
of International Law (ASIL) Editors: Ruth Teitelbaum, Jaroslaw Czernek, Scott
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