Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law April 7, 2004
Additional
Protocols Between the United States of America and the
Republic of Bulgaria, the Republic of Estonia, the Czech
Republic, the Slovak Republic, the Republic of Latvia,
the Republic of Lithuania, and the Republic of Poland
to the Treaties For the Encouragement and Reciprocal Protection
of Investment (The Protocols were signed on different
dates, from September 2003-Janaury 2004, and were referred
to the Committee on Foreign Relations to be printed for
the use of the Senate on March 12, 2004)
The United States has entered
into several protocols as a "result of an understanding
the United States reached with the European Commission
and six countries that will join the European Union ("EU")
on May 1, 2004 (the Czech Republic, Estonia, Latvia, Lithuania,
Poland, and the Slovak Republic) as well as with Bulgaria
and Romania, which are expected to join the European Union
in 2007." According to the U.S. Secretary of State's
Letter of Submittal in all of the above-mentioned protocols,
"the agreement is designed to preserve [U.S]. bilateral
investment treaties ("BITs") with each of these
countries after their accession to the EU by establishing
a framework for avoiding or remedying present and future
incompatibilities" between U.S. BITs with these countries
and "their future obligations of EU membership."
It further provides that the understanding between the
United States and each of the above-mentioned BIT partners
is "that they will, through an exchange of notes,
interpret two BIT provisions: (1) the right of each BIT
Party to take measures necessary for the protection of
its own essential security interests, and (2) the BIT
prohibition of performance requirements."
Article I of the Additional Protocol
between the United States and Poland provides that Poland
may impose certain kinds of performance requirements in
the agricultural and audio-visual sectors. Article II
provides that the terms of the free trade area/customs
union exception shall apply to all obligations of a Party
by virtue of its membership in an economic integration
agreement that includes a free trade area or customs union
(e.g., the European Union), including obligations owed
to nationals or companies of any third country. Article
III provides that the BIT parties will consult promptly
whenever either party believes that steps are necessary
to preserve compatibility of the BIT with the EC Treaty.
Article IV states that in certain sectors, the EU member
country may take a reservation against national treatment
and most-favored-nation treatment obligations of the BIT,
provided that such reservation is necessary to meet the
country's obligations under EU law, and subject to the
following exception that, notwithstanding any such new
reservation, existing U.S. investments in the country
shall remain protected under the national treatment or
most-favored-nation treatment obligations of the BIT for
at least 10 years from the date of the relevant EU law
which made the reservation necessary. Finally, it provides
that the United States reserves the right to make or maintain
limited exceptions to national treatment obligations to
two new sectors or matters, fisheries and subsidies, and
to the most-favored-nation treatment in fisheries.
International
Court of Justice (ICJ): Case Concerning Avena and other
Mexican Nationals (Mexico/United States of America),
No. 128 (March 31, 2004)
The International Court of
Justice ("ICJ") or (the "Court") found
by fourteen votes to one that the United States breached
its obligations under Article 36, paragraph 1(b) of the
Vienna Convention on Consular Relations of April 24, 1963
(the "Convention"). It concluded, inter alia,
that the United States failed to inform without delay
51 Mexican nationals of their rights under the Convention
upon their detention.
The United States argued that
the ICJ was without jurisdiction to review the appropriateness
of sentences in criminal cases, and could not determine
guilt or innocence, for such matters could only be within
the jurisdiction of a criminal court of appeal. The Court
found that this contention concerned remedies and would
be a matter of merits and not jurisdiction. The United
States further contended that local remedies remain in
every case alleged by Mexico and that therefore the customary
requirement of exhaustion of local remedies had not been
met.
The ICJ found that "violations
of the right of the individual under Article 36 of the
Vienna Convention may result in a violation of the rights
of the sending State, and that violations of the rights
of the latter may entail a violation of the rights of
the individual. In these special circumstances of interdependence
of the rights of the State and of individual rights, Mexico
may, in submitting a claim in its own name, request the
Court to rule on the violation of rights which it claims
to have suffered both directly and through the violation
of individual rights conferred on Mexican nationals under
Article 36, paragraph 1(b)." The Court concluded
that the "the duty to exhaust local remedies does
not apply to such request."
In addressing the merits, the Court
examined the meaning of Article 36, paragraph 1(b), notably
the questions of (1) whether the United States had an
obligation under such article to individuals of dual Mexican/United
States nationality and (2) the meaning of the expression
"without delay".
The United States contended
that a substantial number of the 52 persons listed by
Mexico in paragraph 16 of the judgment were United States
nationals and therefore it had no obligation to such individuals
under Article 36, paragraph 1(b) of the Convention. The
United States also alleged that seven of those arrested
appeared to have affirmatively claimed that they were
United States citizens at the time of their arrest. The
Court found that the United States did not meet its burden
of proof to attempt to show that the persons arrested
were indeed United States nationals. Only in one case
(that of Mr. Salcido) did the court find that the United
States provided evidence showing that the individual arrested
claimed to be a U.S. national and there were no indications
that he was a Mexican national. In this case the Court
found that the United States was not in violation of the
Convention.
In terms of the meaning of
"without delay", the Court found that it is
not necessarily to be interpreted as "immediately"
upon arrest. The Court noted that it could not be interpreted
to mean "that the provision of such information necessarily
precede any interrogation." In this case, the Court
found that with one exception, consular notification information
was either given not at all or at periods significantly
removed from the time of arrest.
Also at issue was the question
of remedies. The United States argued that it acted in
conformity with the "review and consideration"
remedy set forth in the LaGrand judgment, for the
Court in LaGrand
granted the United States the choice of means for allowing
the review and reconsideration of the conviction.
Mexico contended that the United States' clemency procedures
were an inadequate means of carrying out the review and
reconsideration obligation under LaGrand.
The Court observed that "[t]he
rights guaranteed under the Vienna Convention are treaty
rights which the United States has undertaken to comply
with in relation to the individual concerned, irrespective
of the due process rights under United States constitutional
law." Further, the Court concluded that "...where
the breach of the individual rights of Mexican nationals
under Article 36, paragraph 1(b) of the Convention
has resulted, in the sequence of judicial proceedings
that has followed, in the individuals concerned being
subjected to prolonged detention or convicted and sentenced
to severe penalties, the legal consequences of this breach
have to be examined and taken into account in the course
of review and reconsideration. The Court considers that
it is the judicial process that is suited to this task."
President Shi and Vice-President Ranjeva appended declarations
to the Judgment of the Court; Judges Vereshchetin, Parra-Aranguren
and Tomka and Judge ad hoc Sepúlveda appended separate
opinions to the Judgment of the Court.
International
Criminal Tribunal for Former Yugoslavia (ICTY): The
Prosecutor v. Ranko Cešic Case No. IT-95-10/1-S
(March 11, 2004)
The Trial Chamber of the International
Tribunal for Former Yugoslavia ("ICTY") sentenced
Mr. Ranko Cešic ("Cešic") to imprisonment
for 18 years for the murder and rape of Muslim and Croat
men held in a detention camp from May to June 1992.
Cešic became a member
of the Bosnian Serb Territorial Defense in May 1992. He
then became a member of the intervention platoon of the
Bosnian-Serb Police Reserve Corps in Brcko and Bosnian-Serb
Territorial Defense group. In this capacity, one of his
tasks was to arrest specified non-Serbs and to bring them
to the Brcko police station and/or the Luka detention
facility for interrogation.
Cešic was arrested in
Belgrade by the authorities of the Federal Republic of
Yugoslavia on May 25, 2002. Cešic was charged under
Article 7(1) of the ICTY
Statute for 12 counts comprising six counts of crimes
against humanity, five for murder and one for rape, and
six counts of violations of the laws or customs of war,
five for murder and one for humiliating and degrading
treatment.
The indictment alleged, inter
alia, that Mr. Cešic took a Muslim policeman
outside the building where he was detained with others,
and after ordering him to say goodbye and shake hands
with other detainees, beat him to death. Further it is
alleged that Mr. Cešic intentionally forced, at gunpoint,
two Muslim brothers to engage in sexual acts in the presence
of others. Further the indictment alleged that he beat
to death a Muslim detainee using clubs.
Mr. Cešic pleaded guilty
to all twelve counts with which he was charged. He admitted
that he was aware that, during the time of the violations
charged against him, a state of armed conflict existed
and that he was required to abide by the laws or customs
of war, including the provisions of the Geneva Conventions
of 1949. He also acknowledged that all acts and omissions
charged were part of a widespread or systematic attack
directed against the Muslim and Croat civilian population
of Brcko and that he “had knowledge of the wider
context in which his conduct occurred.”
The Defense submitted that
Mr. Cešic acted pursuant to orders and would have
been killed if he had failed to execute them, and that
this circumstance should be considered as a mitigating
factor under Article 7(4) of the ICTY
Statute which provides that: "The fact that an
accused person acted pursuant to an order of a Government
or of a superior shall not relieve him of criminal responsibility,
but may be considered in mitigation of punishment if the
International Tribunal determines that justice so requires."
The Trial Chamber found that there was sufficient evidence
to show that in fact Mr. Cešic had some command over
other guards and that on the balance of the probabilities,
executing superior orders could not constitute a mitigating
circumstance.
The Trial Chamber found that
the guilty plea in the present case was an important mitigating
circumstance. It noted in this regard that when an accused
pleads guilty, he or she takes an important step in the
rehabilitation and reintegration processes.
The Trial Chamber further
decided that Mr. Cešic is entitled to credit for
657 days for time served up to and including the date
of this judgment.
Supreme
Court of Uganda: Onyango-Obbo and Mujuni Mwenda v.
Attorney General, Constitutional Appeal No. 2 of 2002
(February 11, 2004)
The Supreme Court of Uganda
applied the African Charter on Human
and Peoples' Rights and the International Covenant on
Civil and Political Rights in its conclusion that
"[m]eaningful participation of the governed in their
governance, which is the hallmark of democracy, is only
assured through optimal exercise of the freedom of expression."
It upheld the appellant's petition to the Constitutional
Court and concluded that section 50 of the Penal Code
Act was an unjustified limitation on the freedom of expression.
The appeal was brought against
a decision of the Constitutional Court in a petition seeking
to invoke constitutional protection of the freedom of
press. The appellants are journalists who were charged
with two counts of the criminal offense of "Publication
of False News" in violation of section 50 of the
Penal Code Act. The charges arose out of a story from
a foreign paper that the appellants used as an excerpt
for their story: "President Laurent Kabila of the
newly named Democratic Republic of the Congo (formerly
Zaire) has given a large consignment of gold to the Government
of Uganda as payment for "services rendered"
by the latter during the struggle against the former military
dictator, the late Mobutu Sese Seko." The other excerpt
from the alleged false news was the following: "the
Commander of Uganda Revenue's (URA) Anti Smuggling Unit
(ASU) Lt. Col. Andrew Lutava, played a key role in the
transfer of the gold consignment from the Democratic Republic
of Congo to Uganda."
On November 24th,
1997, the appellants sought relief through a joint petition
to the Ugandan Constitutional Court under Article 137
of the Constitution. The Constitutional Court postponed
judgment pending conclusion of the criminal case in the
magistrate's court. The trial court acquitted the appellants
of criminal charges. Thereafter, the Constitutional Court
considered the petition and decided unanimously that the
actions of the Director of Public Prosecutions ("DPP")
were constitutional and dismissed the appellant's petition.
Before the Supreme Court of
Uganda, the appellants argued that section 50 of the Penal
Code Act could not be upheld in a free and democratic
society within the meaning of Article 43 of the Constitution
and further challenged the vagueness of section 50. The
appellants acknowledged in their appeal that the freedom
of expression was not absolute, but nevertheless section
50 of the Penal Code was inconsistent with the Constitution
because it went beyond what was permitted as limits on
expression in Article 43 of the Constitution.
The Supreme Court observed
that section 50 is aimed to prevent "expressions
that amount to threatening or inciting violence. The danger
to the public interest in such circumstances is proximate
to the act of expression, and therefore the expression
"prejudices" the public interest. A tragic example
in recent history is the use of mass media to ignite genocide
in Rwanda." However the Supreme Court concluded that
section 50 "does not fit within the parameters of
clause (1) of Article 43 of the Constitution."
The Supreme Court cited Article
9 of the African Charter on Human and Peoples' Rights,
in addition to Article 10 of the International Covenant
on Civil and Political Rights in its conclusion that "[f]rom
the foregoing different definitions, it is evident that
the right to freedom of expression extends to holding,
receiving and imparting all forms of opinions, ideas and
information. It is not confined to categories, such as
correct opinions, sound ideas or truthful information."
The Supreme Court also cited
decisions of the European Court of Human Rights and the
Supreme Courts of India, Canada and Zimbabwe.
Tribunal
Supremo (Supreme Court) of Spain: Judgment in
the Case of General Hernán Julio Brady Roche, Judgment
No. 319/2004 (March 8, 2004)
The Supreme Court of Spain
upheld jurisdiction over claims for torture of Spanish
nationals allegedly committed by Chilean former Defense
Minister Hernan Julio Brady Roche.
The Audiencia Nacional having declined to exercise jurisdiction over
the claims, an appeal was brought by Laura González Vera,
the widow of the Spanish diplomat Don Carmelo Soria, in
addition to other individuals and a group called "Izquierda
Unida" ("United Left"). Don Carmelo Soria,
who was in Chile at the end of the 1936-1939 Spanish Civil
War, was kidnapped on July 14, 1976, and his body, showing
signs of torture, was later found in Santiago.
At issue
was the scope of jurisdiction under Article 23.4 of Spain’s
Ley Orgánica del Poder Judicial (Law on Judicial Power),
which provides that Spanish courts shall have jurisdiction
over international crimes including genocide and terrorism,
committed by Spanish or foreign citizens, outside of Spain.
The appellants claimed that by virtue of the above-mentioned
law, Spanish courts could exercise jurisdiction over their
claims for torture.
The Supreme Court noted the reasoning of the Guatemalan Genocide
Case (42 ILM 683) and upheld jurisdiction over
the claims connected to Spanish nationals.
