Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law January 8, 2004
United Nations (U.N.): Convention against Corruption
(December 9, 2003)
The U.N. Convention
against Corruption (“Convention”) was open
to signature during the three-day conference in Merida,
Mexico from December 9 to 11, 2003. The Convention is
the result of a three-year effort by 129 countries to
take global action against corruption.
The Convention
provides a comprehensive set of standards and measures
to promote international co-operation and domestic efforts
in the fight to prevent corruption. The Convention includes
provisions applying to the public sector such as criteria
for public procurement, rules for recruitment and hiring
of civil servants in the public administration as well
as rules applying to the private sector. The Convention
binds ratifying countries to criminalize corrupt practices,
develop institutions to prevent corrupt practices and
prosecute offenders.
Article 3 of
the Convention provides the scope of application of
the Convention. The Convention is applicable “to
the prevention, investigation and prosecution of corruption
and to the freezing, seizure, confiscation and return
of the proceeds of offences established in accordance
with this Convention.”
Chapter II
concerns the measures to prevent corruption. It requires
each State Party to develop and implement or maintain
effective, coordinated anti-corruption policies that
promote the participation of society and reflect
the principals of the rule of law. It also requires
the State Parties to collaborate with each other and
with relevant international and regional organizations
in promoting and developing the preventive measures.
Article 6 of the Convention notes the importance of
appropriate bodies to prevent corruption.
Criminalization
and law enforcement are regulated by provisions set
forth in Chapter III. The Convention requires State
Parties to establish criminal offences to cover a wide
range of acts of corruption. The Convention criminalizes
forms of corruption such as bribery and the embezzlement
of public funds as well as trading in influence, concealment
and laundering proceeds of corruption. Article 31 of
the Convention includes measures that may be necessary
to enable confiscation, freezing or seizure of items
that are proceeds of crime. The Convention also deals
with the problematic areas of private-sector corruption.
The Convention
contains some provisions concerning international cooperation.
According to Article 43 of the Convention concerning
international cooperation in criminal matters, States
shall consider assisting each other in investigations
of and proceedings in civil and administrative matters
relating to corruption.
Chapter V of
the Convention contains provisions concerning asset-recovery
which is stated as “a fundamental principle of
this Convention...”. The States Parties shall
afford the widest measure of cooperation and assistance
in this regard. The provisions in this chapter specify
how cooperation and assistance will be rendered.
Article 68
of the Convention provides that the Convention shall
enter into force on the ninetieth day after the date
of ratification by the thirtieth country. So far 97 countries
have signed the Convention. Kenya has so far been the
only country to ratify it. The Islamic Republic of Iran
and Vietnam have made reservations to the Convention.
Vietnam for example, states the following: “The
Government of the Socialist Republic of Vietnam does
not consider itself bound by the provisions of Article
66, paragraph 2, of this Convention.”
Chile-Santiago Court of Appeals: Sentencing of
Fernando Laureani Maturana and Miguel Krassnoff Marchenko
(January 5, 2004)
The
Santiago Court of Appeals ("Court of Appeals")
denied amnesty to members of the Chilean Directorate
of National Intelligence (DINA), for the kidnapping,
detention and torture of victims at Villa Grimaldi during
Pinochet's dictatorship.
The
defendants contended that they were entitled to protection
under Chile's 1978 amnesty law (Decreto ley 2.121)
since the crimes of which they are accused took place
and ended between the period of September 11, 1973 and
March 10, 1978.
The
Court of Appeals referred to international human rights
law, to the Inter-American Court of Human Rights and
to recent jurisprudence of the Criminal Division of
the Chilean Supreme Court and found that Chile's sovereignty
is limited by the obligations of international treaties
which protect fundamental human rights, in accordance
with section, 2, Article 5 of the 1980 Constitution,
amended in 1989.
By
a majority vote of two-to-one, the Court of Appeals
held that amnesty could not apply to kidnapping when
the kidnapped victim remains missing, for this becomes
a continuous crime and therefore exceeds the limit of
the amnesty between September 11, 1973 and March 10,
1978. The Court of Appeals noted that until this day
the whereabouts of one of the missing victims, Miguel
Angel Sandoval Rodríguez, are unknown, without any news
of his death or discovery of his body. The Court of
Appeals referred to the Inter-American Convention
on the Forced Disappearance of Persons signed by
Chile, noting that forced disappearance through agents
of the State is a grave crime that has a continuous
or permanent nature.
This
is the first decision of a Chilean court that applies
the jurisprudence of international law human rights
law to prosecute those responsible for "the disappeared"
during the Pinochet dictatorship. The decision awaits
confirmation by the Supreme Court of Chile.
German Federal Constitutional Court: In the Proceedings
on the Constitutional Complaint of Mr. Al-M., and His
Motion for a Temporary Injunction(2 BVR
1506/03) (November 5, 2003)
The German
Federal Constitutional Court rejected Mr. Al-M's challenge
of his extradition to the United States. Mr. Al-M ("the
petitioner"), an adviser of the Yemeni Minister
for Religious Foundations, was arrested in Frankfurt
am Main ("Frankfurt") on January 10, 2003,
based on an arrest warrant of January 5, 2003 issued
by the U.S. District Court for the Eastern District
of New York. The U.S. prosecution authorities charged
the petitioner with providing money, weapons and communications
equipment to terrorist groups, in particular Al-Qaeda
and Hamas, and for recruiting new members for these
groups, between October 1997 and his arrest. The petitioner
traveled to Germany following a conversation he had
in Yemen with a Yemeni citizen who was working undercover
for the United States investigation and prosecution
authorities. In this conversation the undercover informant
convinced the petitioner that he could place him in
contact with another person in Germany who was willing
to make a major financial contribution. The purposes
for which such money was to be donated have been disputed
by the petitioner. On January 24, 2003, the United States
Embassy sent a request for the petitioner's extradition
to the United States for criminal prosecution. The request
was based on the German-U.S. extradition treaty of June
20, 1978. Additional extradition documents were
submitted to the Frankfurt am Main Higher Regional Court,
including an affidavit by an FBI investigator that set
forth the specific acts with which the complainant was
charged. The Frankfurt am Main Higher Regional
Court ("the Frankfurt court") held that the
petitioner was charged with membership in a terrorist
organization. Under German Law, the activities with
which he was charged justified charging him with offenses
under §129, §129a and §129b.1 of the German Criminal
Code (Strafgesetzbuch).
The Embassy
of the Republic of Yemen sent several diplomatic notes
to the German foreign office stating that the petitioner
had been abducted from Yemen to Germany contrary to
international law, and in circumvention of the Yemeni
constitution's ban on the extradition of Yemeni citizens,
and requesting his repatriation to Yemen. In a note
verbale of May 22, 2003, the U.S. Embassy assured that
the petitioner would not be prosecuted by a military
tribunal pursuant to the Presidential Military Order
of November 13, 2001 (U.S. Federal register of November
16, 2001, Vol. 66 No. 222, pp. 57831 et seq.)
or by any extraordinary court. Such assurance was given
preserving the United States' legal opinion that the
military commissions provided in the above-mentioned
Presidential Military Order are not extraordinary courts
within the meaning of Article 13 of the extradition
treaty between Germany and the United States.
The petitioner
argued, inter alia, that he had been induced
to travel to Germany contrary to international law in
order to circumvent Yemeni law on extradition. He relied
on a 1982 decision of the Swiss Federal Court which
denied the extradition of a Belgian citizen to Germany
finding that because the prosecuted person had been
lured to Switzerland by German authorities, extradition
would infringe Belgian sovereignty. (Europäische
Grundrechtzeitung July 15, 1982). The petitioner
also maintained that all facts attributable to statements
of the confidential informant should not be used in
the court's determination as to whether to extradite
him. He argued that, contrary to Article 14.3(2) of
the extradition treaty between Germany and the United
States and contrary to §10.2 of the Law on International
Judicial Assistance in Criminal Matters, the Frankfurt
court failed to examine the evidence for the charge.
He also maintained that he could not be extradited to
the United States because the offenses for which he
was charged had not been committed in the area of applicability
of the Basic Law, as is required by the relevant provisions
in German criminal law. He argued that the extradition
documents did not contain sufficient details concerning
the offense, and moreover, the ordering of surveillance
measures in Frankfurt by German investigating authorities
in the framework of legal assistance had been illegal
so that such information could not be used.
By order of
July 18, 2003, the Frankfurt court upheld the extradition
and ordered that he remain in custody, finding that
the offenses with which he was charged were punishable
and extraditable in accordance with both German and
U.S. law. It stated that the use of confidential informants
was not to be regarded as an obstacle precluding extradition
proceedings. It further found that no review of the
lawfulness of the acts of German judicial assistance
was required, in particular, it held that no special
circumstances within the meaning of §10.2 of the Law
on International Judicial Assistance in Criminal Matters
existed that required an examination of the evidence
for the charge.
The Federal
Constitutional Court confirmed the Frankfurt court's
finding that the extradition treaty between Germany
and the United States did not require German courts
to examine whether there was sufficient evidence for
the charge.
Also before
the Federal Constitutional Court was the question of
whether there was a general rule of international law
prohibiting extradition based on evidence obtained by
an undercover agent. The Federal Constitution Court
noted that in accordance with Article 16 of the International
Law Commission's Draft Convention on State Responsibility,
a codification of customary international law, Germany
could be responsible for a breach of international law
vis-a-vis Yemen as a result of its support of
a United States action if it were established that the
U.S. undercover activity and extradition of the petitioner
were in violation of international law.
The Federal
Constitutional Court found that an examination of state
practice showed that there was no rule of international
law that would preclude the extradition of the petitioner
in these circumstances. It found that the above-mentioned
Swiss Federal Court decision upon which the petitioner
relied was not sufficiently widespread as to be regarded
as consolidated practice giving rise to customary international
law. It also distinguished the facts of this case
from the 1992 U.S. Supreme Court decision of Alvarez-Machain
504 U.S. 655, noting that in this case the petitioner's
decision to go to Frankfurt was voluntary, and was not
made due to force or threats. The Federal Constitutional
Court also noted other decisions in which national and
international courts have allowed for the extradition
of persons who have been lured out of a state, including
decisions of the International Criminal Tribunal for
the Former Yugoslavia.
Canada-Ontario Superior Court of Justice: In the
Matter of Arbitration Pursuant to Chapter Eleven of
the North American Free Trade Agreement ("NAFTA")
between Marvin Roy Feldman ("Feldman") Karpa
and the United Mexican States ("Mexico") ICSID
Additional Facility Case (AF)/99/1(December
3, 2003)
A request for annulment was brought by Mexico before the
Ontario Superior Court ("the Court"), the
parties to the NAFTA arbitration having designated Ontario,
Canada as the place of arbitration. Mexico disputed
an award in which the Tribunal held that Mexico was
in violation of the national treatment provisions of
NAFTA Article 1102 and ordered Mexico to pay the sum
of $9,464,627.50.
The facts of
the case involve a dispute regarding Mexico’s
taxation on the export of tobacco products by claimant's
company, “CEMSA.” The Tribunal
found that the waiver of invoice requirements for domestic
cigarette resale/exporter and not for foreign exporters
was sufficient to establish a denial of national treatment
under Article 1102.
Mexico requested
an annulment of the award pursuant to Article 34 of
the International Commercial Arbitration Act R.S.O.
1990 ("ICCA"), in force in Canada through
a Model Law. In its application for annulment of the
award before the Court, Mexico argued that it was unable
to present its case, in violation of section 34(2)(a)(ii)
of the Model Law. In this regard it contended that although
the Tribunal stated that it would only draw adverse
inferences in the event of a Party's failure to comply
with its orders, in fact the Tribunal drew impermissible
inferences based on Mexico's failure to disclose confidential
information of its taxpayers pursuant to its obligations
under Mexican law. Mexico claimed that the Tribunal's
inferences violated the arbitration agreement of the
parties, particularly NAFTA Article 2105
which provides:
"Nothing
in this Agreement shall be construed to require a Party
to furnish or allow access to information the disclosure
of which would impede law enforcement or would be contrary
to the Party's law protecting personal privacy or the
financial affairs and accounts of individual customers
of financial institutions."
The Attorney-General
of Canada also intervened in support of Mexico's contention
that the award violated NAFTA Article 2105 and failed
to abide by governing law, thereby exceeding the Tribunal's
jurisdiction.
Mexico further
argued that the arbitration award is repugnant and conflicts
with public policy in violation of Article 34(2)(b)
of the Model Law, given that the Tribunal required Mexico
to pay tax rebates to which it had previously found
the Claimant not legally entitled. In support of its
argument, Mexico pointed to the dissenting opinion of
arbitrator Covarrubias who stated: "If in actual
fact, the Claimant is not entitled to IEPS rebates,
it is repugnant to grant him a somewhat equivalent amount
of compensation for damages only because he alleges
that there is another investor– a Mexican investor
in like circumstances– who has been granted the
IEPS rebates without being entitled to them either."
The Court found
it improper for Mexico to raise Article 2105 as a basis
for annulment given that it never raised it during the
arbitral proceedings, and therefore refused to consider
annulment on this ground. The Court further noted
that Mexico could have provided the information in question
without violating the domestic law on confidential tax
documents. Further, the Court found that the award of
damages to Feldman for discrimination as a foreign investor
in no way offended the public policy of Canada. The
Court observed that "judicial deference should
be accorded to arbitral awards generally and to international
commercial arbitrations particularly."
United
States (U.S.) Supreme Court: Torres v. Mullin,
Warden, 124 S. Ct. 562 (November 17, 2003)
The Supreme
Court rejected Mr. Torres’ application to review
the Court of Appeal’s determination concerning
his right to diplomatic protection by consular notification
under Article 36(1)(b) of the Vienna Convention on Consular
Relations.
In July 1993,
the District Attorney for Oklahoma County, Oklahoma
charged Mr. Torres, a Mexican national, with murder.
An Oklahoma court convicted him and sentenced him to
death.
In 1999,
Mr. Torres filed a petition for habeas corpus in federal
district court. He claimed, inter alia, that
the arresting authorities had failed to notify him of
his Vienna Convention rights and similarly had failed
to notify the Mexican consular officials of his arrest.
The federal district court rejected this claim on the
ground that (1) Torres had not raised this claim in
his state court proceedings, thereby procedurally defaulting
the claim under state law, and (2) Torres did not show
that the Convention violation had prejudiced him. The
district court and the Court of Appeals for the Tenth
Circuit refused to issue a certificate of appealability.
Mr. Torres applied for certiorari to the Supreme Court
of the United States to review the Court of Appeal’s
determination.
Mr. Torres
argued that the Tenth Circuit’s determination
conflicts with International Court of Justice (“ICJ”)
decisions that authoritatively interpret the Convention.
Mexico filed an amicus curiae brief at the Supreme
Court supporting Torres’s request, pointing out
that it has brought a case against the United States
before the ICJ which claims, inter alia, that
this court must apply the Vienna Convention to domestic
law in Torres’s case. Mexico further asked the
Supreme Court to defer consideration of Torre’s
case until the ICJ issues a decision. Further Mr. Torres
and Mexico argued (1) that, in light of the Convention’s
Optional Protocol Concerning the Compulsory Settlement
of Disputes, the ICJ’s interpretation of the Convention
is authoritative, including its determination that the
Convention creates “individual rights”;
(2) that, since the Convention is self-executing, the
ICJ’s interpretation is part of the law of the
United States; and (3) that, given the ICJ’s holdings
in the LaGrand decision,
Torres can enforce his Vienna Convention rights by demanding
an appropriate remedy, state law procedural bars or
lack of prejudice notwithstanding.
The Supreme
Court rejected Mr. Torres’ application for certiori.
However Justice Breyer and Justice Stevens dissented
from denial of certiorari. Justice Breyer stated in
his dissent that Article 36 of the Vienna Convention
on Consular Relations requires United States authorities
(1) to tell an arrested foreign national, without delay,
that he may have his nation’s consul informed
of the arrest, and (2) to tell the consul about the
arrest. Further Justice Breyer said that “this
case raises important questions concerning the relation
between, on the one hand, the domestic law of the United
States, and, on the other, decisions of the International
Court of Justice interpreting the Convention.”
He also stated that “Depending on how the ICJ
decides Mexico’s related case against the United
States, and subject to further briefing in light of
the decision, I may well vote to grant (review) in this
case. Consequently I would defer consideration of this
petition.”
Click here
for the dissent of Justice Breyer. Both Justice Breyer
and Justice Steven’s dissents are available on
Lexis.
International Criminal Tribunal for Rwanda (ICTR),
Trial Chamber II: The Prosecutor v. Juvénal Kajelijeli
(December 1, 2003)
The International
Criminal Tribunal for Rwanda (ICTR), found Juvénal Kajelijeli
guilty on three counts: genocide (count 2), direct and
public incitement to commit genocide (count 4) and extermination
as a crime against humanity (count 6).
Mr. Kajelijeli
served as a bourgmestre (mayor) of Mukingo commune,
Ruhengeri prefecture from 1988 to 1993 and was re-appointed
bourgmestre of the commune in June 1994 and remained
so until mid July 1994.
The indictment
charged Mr. Kajelijeli with 11 counts of crimes comprising
genocide, crimes against humanity and violations of
Article 3 common to the Geneva Conventions and Additional
Protocol II. The crimes took place between January 1
and December 31, 1994 in the Mukingo commune and the
neighboring area within Ruhengeri prefecture. Further
the indictment alleges that from April to July 1994,
Mr. Kajelijeli, the founder and leader of Interahawe,
the youth-wing of the National Revolutionary Movement
for Development (“MRND”) commanded, organized,
supervised and directly participated in attacks against
Tutsi within the Mukingo commune and neighboring areas
and that he ordered and witnessed the rape and other
sexual assaults on Tutsi females. It also alleged that
Mr. Kajelijeli intended to destroy the Tutsi as a racial
or ethnic group.
The defense
argued, inter alia, that it would have been physically
impossible for Mr. Kajelijeli to participate in the
acts or to be at the sites as alleged in the indictment.
The defense submitted that the movements of civilians
and others were restricted and controlled at roadblocks.
Further, the defense alleged that Mr. Kajelikeli was
arrested illegally and that thereafter the prosecution
sought to find evidence to support this illegal arrest.
The defense also challenged the credibility of the prosecution
witnesses and the sufficiency of the evidence supporting
the prosecution’s case with respect to some counts
in the indictment.
The Chamber took judicial
notice of the fact that: between January 1, 1994 and
July 17, 1994, Rwanda was a State Party to the Genocide
Convention on the Prevention and Punishment of the Crime
of Genocide (1948) having acceded to it on February
12, 1975; and between January 1, 1994 and July 17, 1994,
Rwanda was a Contracting Party to the Geneva Conventions
of August 12, 1949 and their Additional Protocol II
of June 8, 1977 having acceded to Protocols Additional
thereto of June 8, 1977 on November 19, 1984.
The Tribunal
found that Mr. Kajelijeli was a leader of Interahamwe,
with control over the Interahamwe in Mukingo
commune, and that he also had influence over the Interahamwe
of Nkuli commune from January 1, 1994 to July 1994.
It also found that from April 6, 1994 to April 14, 1994,
he had and maintained effective control over Interahamwe
in the Mukingo and Nkuli communes. The Tribunal
considered the elements of the individual criminal responsibility
of the accused under Article 6(1) of the
Statute and his responsibility as a superior under
Article 6(3) of the Statute in relation with each count
of the indictment.
Having found
Mr. Kajelijeli guilty on three counts, the Tribunal
convicted Mr. Kajelijeli and sentenced him to life in
prison. Further, the Tribunal dismissed three of the
counts: complicity in genocide (count 3), murder as
a crime against humanity (count 5) and the count of
persecution as a crime against humanity (count 8). The
Tribunal found Mr. Kajelijeli not guilty on the following
three counts: conspiracy to commit genocide (count 1),
rape as a crime against humanity (count 7) and other
inhuman acts as a crime against humanity (count 9).
For count 7 the Tribunal decided by majority with the
dissenting opinion by Judge Ramaroson. In all other
counts the Tribunal decided unanimously.
International Court of Justice (ICJ): Application
for Revision of the Judgment of 11 September 1992 in
the Case Concerning the Land, Island and Maritime Frontier
Dispute (December 18, 2003)
The ICJ Chamber
("the Chamber") dismissed El Salvador's application
for revision of the 1992 decision in the Case concerning
the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras
with Nicaragua intervening).
The Chamber
noted that in accordance with Article 61 of the ICJ
Statute, the following conditions are necessary
in order for a request for a revision to be admissible:
(a) the application
should be based upon a "discovery" of a "fact";
(b) the fact
the discovery of which is relied on must be "of
such a nature as to be a decisive factor";
(c) the fact
should have been "unknown" to the Court and
to the party claiming revision when he judgment was
given;
(d) ignorance
of this fact must not be "due to negligence";
and
(e) the application
for revision must be "made at latest within six
months of the discovery of the new fact" and before
ten years have elapsed from the date of the judgment.
El Salvador
requested the Chamber to revise its 1992 judgment and
to fix a new boundary line between El Salvador and Honduras.
El Salvador contended that it had scientific, technical
and historical evidence showing that, contrary to the
1992 decision, the Goascorán river did change its bed,
and that such change was abrupt, most likely due to
a cyclone on 1762. Such evidence included the discovery
in a library of Chicago another copy of the Carta
Esférica and a further copy of a report of the El
Activo expedition. El Salvador claimed that the
fact that there are several versions of the Carta
Esférica and the expedition report, that there are
differences among them and the anachronisms they share,
"compromises the evidentiary value that the Chamber
attached to the documents that Honduras presented, essential
in the judgment [of 1992]." El Salvador contended
that such evidence contained "new facts" for
the purposes of Article 61 of the ICJ Statute. The ICJ
disagreed, finding that such facts were not "new"
within the meaning of Article 61, and further that the
documents presented by El Salvador would result in the
same conclusions reached by the Chamber in 1992.
World Trade Organization (WTO) Dispute Settlement
Body: European Communities - Conditions for the Granting
of Tariff Preferences to Developing Countries, WT/DS246/R
(October 28, 2003)
The Panel decided
that the European Communities’ Drug Arrangements
are inconsistent with Article I:1 of GATT 1994. The
Panel further held that the European Communities failed
to demonstrate that the Drug Arrangements are justified
under paragraph 2(a) of the Enabling Clause and it failed
to demonstrate that they are justified under Article
XX(b) of GATT 1994.
On December
6, 2002 India requested the Dispute Settlement Body
(“DSB”) to establish a panel pursuant to
Article 4.7 and 6 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes (“DSU”)
and Article XXII:2 of General Agreement on Tariffs and
Trade 1994 (“GATT 1994"). On January 27,
2003 the DSB established the Panel. The complaint was
brought under the Decision on Differential and More
Favorable Treatment, Reciprocity and Fuller Participation
of the Developing Countries (“Enabling Clauses”).
India made clear that it reserved its right to bring
separate new complaints on the environmental and labor
special incentive tariff arrangements. Besides India,
18 countries reserved their respective right to participate
in the panel proceedings as third parties.
The Enabling
Clause is a part of GATT 1994. It provides special and
more favorable treatment for developing countries. The
Enabling Clause allows developed country Members to
accord preferential tariff treatment to products originating
in developing countries.
The dispute
concerned the conditions under which the European Communities
accords tariff preferences to developing countries under
the schema of generalized tariff preferences formulated
under Council Regulation (EC) No.2501/2001. At
issue were the special arrangements to combat drug production
and trafficking as provided in the above-mentioned Council
Regulation, applying a schema of generalized tariff
preferences for the period from January 1, 2002 to December
31, 2004, as well as the implementation of the Drug
Agreements. The Drug Arrangements are set forth in Article
10 of the Council Regulation. They provide lower tariff
rates than the Most Favored Nation (“MFN”)
tariff rates on certain products and apply to 12 beneficiary
countries. The 12 beneficiary countries are granted
duty-free access to the European Communities’
market, while all other developing countries must pay
the full duties. The issue was whether the Drug Arrangements
as set out in the current Regulation establish “non-discriminatory
preferences beneficial to developing countries”
within the meaning of paragraph 2(a) of the Enabling
Clause.
India claimed,
inter alia, that the Drug Arrangements of the
European Communities are inconsistent with Article I:1
of GATT 1994 and are not justified by the Enabling Clause.
The purpose of Article I:1 is to ensure unconditional
MFN treatment. Further, India claimed that the European
Communities failed to demonstrate that the Drug Arrangements
are “non-discriminatory” within the meaning
of paragraph 2(a) of the Enabling Clause. India also
claimed that the European Communities did not demonstrate
that the Drug Arrangements are justifiable under Article
XX(b) of GATT 1994.
The European
Communities claimed that the Drug Arrangements fall
within the scope of paragraph 2(a) of the Enabling Clause
and that the Enabling Clause excludes the MFN treatment
(Article I:1 of GATT 1994). The European Communities
stated that it is for India to demonstrate that the
Drug Arrangements are not consistent with paragraph
2(a) of the Enabling Clause. The European Communities
requested that in case that the Panel finds that Article
I:1 applies, and that Drug Arrangements are inconsistent
with the provision, the European Communities requests
the Panel to find that the Drug Arrangements are justified
under Article XX(b).
The Panel found
that the EU’s special tariff preferences for the
12 developing countries under its Drug Arrangements
were in violation of trade rules because they discriminated
against other developing countries. Therefore it recommended
that the DSB request the European Communities to bring
its measure into conformity with its obligations under
GATT 1994.
United Nations (U.N.) General Assembly: Request for
an ICJ Advisory Opinion (December 8, 2003)
The General
Assembly of the United Nations requested the International
Court of Justice ("ICJ") to urgently render
an advisory opinion in accordance with Article 95 of
the ICJ
Statute on the following question:
“What
are the legal consequences arising from the construction
of the wall being built by Israel, the occupying Power,
in the Occupied Palestinian Territory, including in
and around East Jerusalem, as described in the report
of the Secretary-General, considering the rules and
principles of international law, including the Fourth
Geneva Convention of 1949, and relevant Security Council
and General
Assembly
resolutions?”
The request
for an advisory opinion was made in accordance with
Article 96, paragraph 1 of the Charter
of the United Nations and by resolution A/RES/ES-10/14
(A/ES-10/L.16) and transmitted to the Court by the U.N.
Secretary-General.
Memorandum of Understanding: The National Anti-Mafia
Bureau of Italy and The Ministry of Justice of the Federal
Republic of Nigeria (November 11, 2003)
On November
11, 2003 Italy’s Chief Prosecutor and the Ministry
of Justice of the Federal Republic of Nigeria signed
in Abuja, Nigeria a “Memorandum of Understanding”
(“Memorandum”). The Memorandum shall promote
cooperation and the exchange of information regarding
human trafficking between these two countries. The Memorandum
was signed within the framework of the “Program
against Trafficking in Minors and Young Women from Nigeria
into Italy for Sexual Exploitation Purposes”,
that the U.N. Interregional Crime and Justice Research
Institute is currently finalizing. The Memorandum does
not establish, however, any new international and interstate
legal obligations for the States and does not affect
any of their present obligations.
German Court (Landesgericht Bonn): Case No. 1
O 361/02 (December 10, 2003)
A German court
(“Landesgericht Bonn”) dismissed the compensation
claim for approximately one million euros brought by
35 Serbian families against the German government as
a representative of NATO for the bombing of a bridge
at Varvarin in May 1999 during the war in Kosovo. During
the attack 10 civilians were killed and 17 seriously
injured. The decision is not final and it may be appealed
to a higher court.
United Kingdom: Ratification of the Optional Protocol
to the United Nations (U.N.) Convention Against Torture
(December 10, 2003)
The United
Kingdom has ratified the Optional Protocol to the U.N.
Convention Against Torture, an instrument aimed at preventing
torture and other forms of inhuman treatment and setting
forth a system of monitoring of places of detention
by independent international and national bodies.
Investigation of Mercedes-BenzArgentina:
A team of investigators in Stuttgart, Germany found
no evidence that the car manufacturer Mercedes-Benz
caused the disappearance of ten company workers at its
plant in Argentina during Argentina's "dirty war."
Last year, Mercedes commissioned an outside investigation
regarding accusations that the managers of Mercedes-Benz
Argentina used torture and other fear tactics to intimidate
its workers. The report, issued days after prosecutors
in the southern city of Nuremberg withdrew charges against
a retired head of the Buenos Aires Mercedes factory,
stated that "[t]here is no evidence to support
the thesis that the 10 workers who disappeared during
the military dictatorship in 1967 and 1977 were kidnapped
and murdered by the state security apparatus at the
behest of the company's management." Professor
Christian Tomuschat of Berlin, who served on a commission
that examined human rights violations and killings in
Guatemala's 36-year civil war, headed a three member
team which interviewed witnesses and reviewed statements
given by victims and others to Argentine investigators.
The Bundesverfassungsgericht (German Federal Constitutional
Court) (September 24, 2003): The German Federal
Constitutional Court confirmed the right of a female
Muslim teacher to wear a headscarf. The Court held that
it was not a violation of German legislation on freedom
of religion and states neutrality on religion. The Court
held that the Baden-Württenberg state did not have a
sufficient legal basis that would forbid religious symbols
in the classroom.
CAFTA (December 17, 2003): The United States
and four Central American Countries concluded a comprehensive
free trade agreement (CAFTA) with the aim of eliminating
trade barriers, opening markets, promoting investment,
and economic growth. El Salvador, Guatemala, Honduras
and Nicaragua entered into the agreement; Costa Rica
declined to join the agreement prior to undertaking
further consultations, due to its concerns over, inter
alia, privatization of its telecommunications and
insurance industries.
United States (U.S.) Supreme Court: United
States v. Alvarez-Machain 72 U.S.L.W. 3370 (December
1, 2003)
The U.S. Supreme Court granted the petition for writ of
certiorari to the United States Court of Appeals for
the Ninth Circuit. For a summary of the Ninth
Circuit and previous U.S. Supreme Court decision, see
June 2003 ILIB.
