Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law July 23, 2004
London
Court of International Arbitration, Final Award in the
Matter of an UNCITRAL Arbitration: Occidental
Exploration and Production Company v. The Republic of
Ecuador (Case No. UN 3467) (July 1, 2004)
Occidental Exploration and
Production Company (“OEPC”), a U.S. company
registered in California, entered into a participation
contract in 1999 with Petroecuador, a state-owned Ecuadorian
corporation, to explore for and produce oil in the Republic
of Ecuador (“Ecuador”). OPEC applied regularly
to the “Servicio de Rentas Internas” (“SRI”)
for reimbursement of Value Added-Tax (“VAT”)
paid by OEPC on purchases necessary for its exploration
and production activities under the contract with Petroecuador.
In 2001, SRI concluded that VAT reimbursement had already
been accounted for in the participation formula under
the contract with Petroecuador, and therefore denied all
further applications by means of Resolutions to OEPC and
other companies in the oil sector. It further required
the return of the amounts previously reimbursed. As a
result of these measures, OEPC filed lawsuits in Ecuadorian
tax courts claiming that SRI’s Resolutions denying
them VAT reimbursement were in contravention of Ecuadorian
legislation.
OEPC also contended that the
measures adopted by SRI were in violation of the Bilateral
Investment Treaty between the United States of America
and the Republic of Ecuador (hereinafter the “BIT”). It therefore
initiated international arbitration proceedings under
the UNCITRAL Arbitration Rules.
In terms of jurisdiction,
Ecuador contended, inter alia, that the “fork
in the road” provision of the BIT precluded OEPC
from commencing arbitration under the BIT, for it had
already chosen its forum by resorting to domestic courts
to resolve the same claim. The Tribunal disagreed, noting
that OEPC had submitted to domestic courts a request for
the interpretation of Ecuadorian tax legislation, and
had not claimed rights under the BIT before those courts.
The Tribunal further noted that as in Azurix v. Argentina and SGS v. Pakistan,
the Claimant’s characterization alone is sufficient
to establish the Tribunal’s jurisdiction prima
facie over a dispute arising under a BIT.
On the merits before the arbitral
Tribunal, OEPC contended that Ecuador committed four violations
of the BIT and of international law:
(1) Ecuador failed to accord its investment fair and equitable
treatment and treatment no less favorable than that required
by international law; (2) Ecuador failed to treat its
investment on a basis no less favorable than that accorded
to investments of its own nationals or of nationals of
third countries; (3) Ecuador impaired its use of its investment
through arbitrary and discriminatory measures; and (4)
Ecuador expropriated, directly or indirectly, all or part
of its investment without a public purpose; in a discriminatory
manner; without payment of prompt, adequate and effective
compensation and without due process of law.
The Tribunal first dismissed
OEPC’s claim for expropriation, finding that “...
there has been no deprivation of the use or reasonably
expected economic benefit of the investment, let alone
measures affecting a significant part of the investment.
The criterion of ‘substantial deprivation’
under international law identified in Pope
& Talbot [41 ILM 1347] is not present in the
instant case. If narrower definitions of expropriation
under international law are examined, the finding of expropriation
would lie still farther away.”
In regard to OEPCs claim that
its investment was impaired by means of arbitrary and
discriminatory measures, the Tribunal found that the decisions
taken by the Ecuadorian tax authorities were not based
on prejudice, but rather a result of confusion and lack
of clarity on their part. The Tribunal did not find that
the Claimant suffered impairment of its investment.
OEPC’s claimed violations
of the national treatment provision under Article II (1)
of the BIT
given that a number of other exporters are entitled to
receive VAT refunds. Ecuador contended that the qualifying
phrase “in like situations” contained in the
national treatment provisions only allowed OEPC to bring
such claims based on comparison with other oil exporters,
which in this case, were also denied VAT reimbursement.
The Tribunal disagreed with Ecuador, noting that the phrase
in like situations “cannot be interpreted
in the narrow sense advanced by Ecuador as the purpose
of national treatment is to protect investors as compared
to local producers, and this cannot be done by addressing
exclusively the sector in which that particular activity
is undertaken.” In this regard the Tribunal distinguished
the meaning of national treatment for purposes of the
BIT from that of the GATT/WTO, and concluded that Ecuador
was in breach of the national treatment provision.
In terms of OEPC’s claims
for violations of the fair and equitable treatment provisions
of Article II(3)(a) of the BIT, the Tribunal noted that
“the tax law was changed without providing clarity
about its meaning and extent and the practice and regulations
were also inconsistent with such changes.” Citing
the Metalcladcase
in which the Tribunal concluded that “[t]he totality
of these circumstances demonstrate a lack of orderly process
and timely disposition in relation to an investor of a
Party acting in the expectation that it would be treated
fairly and justly...”, the Tribunal concluded that
Ecuador was in breach of the fair and equitable treatment
provisions of the BIT.
Finally, the Tribunal turned
to the question of whether the fair and equitable treaty
standard under the Ecuador-U.S. BIT was a more “demanding
standard than that prescribed by customary international
law.” The Tribunal concluded that in this case the
BIT standard was not different from the minimum standard
required under customary international law.
In terms of remedies, the
Tribunal found that the VAT refund was not included in
the oil production contract as argued by Ecuador, and
therefore found that OEPC was entitled to have the VAT
refund under both Ecuadorian law and Andean
Community Law. It also held that Ecuador shall pay
to PEPC $71,533,649, plus interest. It further ordered
that OEPC cease any local court actions or other administrative
proceedings and that it may not benefit from any additional
recovery.
Members of the Tribunal:
Professor Francisco Orrego
Vicuņa, President
The Honorable Charles Brower
Doctor Patrick Barrera Sweeney
*Please note that although
not indicated on the front page of the award, counsel
for the Claimant included Ms. Laura Abrahamson, Assistant
General Counsel and Mr. Gregory Romero, Senior Counsel
at Occidental Exploration and Production Company.
The applicants, Ilie Ilascu,
Alexandru Lesco, Andrei Ivantoc and Tudor Petrov-Popa,
were detained by the “Moldovian Republic of Transdniestria”
(“the MRT”), a region of Moldova which declared
its independence in 1991. They were accused of anti-Soviet
activities and illegally combating the legitimate government
of the State of Transdniestria, under the direction of
the Moldovan Popular Front and Romania. They were also
charged with different offenses including two murders.
On December 9, 1993, the “Supreme Court of the MRT”
sentenced Mr. Ilascu and the other applicants to 12-15
years’ imprisonment and ordered their property to
be confiscated. The applicants experienced extremely harsh
conditions of detention such as deprivation of food, unheated
cells and no medical treatment. Mr. Ilascu and Mr. Lesco
were released in May 2001 and June 2004 respectively.
The Court concluded that under
Article 1 of the Convention, the applicants came within
the jurisdiction of Moldova and Russia. The Court found
that the applicants could engage the responsibility of
Moldova for the acts which had occurred after May 2001
since the Moldovan authorities could have taken measures
to secure the applicants’ rights under the Convention.
The Court concluded that Russia had a continuous and uninterrupted
responsibility for the applicant’s fate because
its agents brought about the situation and Russia did
not attempt to put an end to the alleged violations.
The Court held that Moldova
violated Article 3 on account of the ill-treatment inflicted
on Alexandru Lesco, Andrei Ivantoc and Tudor Petrov-Popa
and that Russia violated Article 3 on account of the ill-treatment
inflicted on all of the applicants. The Court examined
the conditions of detention of the applicants and concluded
that they had been particularly serious and cruel and
had to be considered as acts of torture within the meaning
of Article 3. The only reason the Court did not hold that
Moldova violated Article 3 for Mr. Ilascu’s detention
is that Moldova’s responsibility could not be engaged
for acts that occurred before May 2001.
The Court further held that
Moldova and Russia violated Article 5 because none of
the applicants had been convicted by a “court”
and that their detention was not lawfully ordered in accordance
with a procedure prescribed by law.
The Court noted that the alleged
violations of Articles 2 (right to life) and 8 (right
to respect for private and family life) had to be examined
under Article 3 (prohibition of torture).
The Court also held that Moldova
and Russia had failed to discharge their obligations under
Article 34 of the Convention (individual
applications). The Court observed that the prison authorities
threatened the applicants and their conditions of detention
deteriorated after they filed the complaint. In addition,
it appeared that the Russian authorities asked the Moldovan
authorities to withdraw observations submitted to the
Court implying the responsibility of Russia.
Special
Court for Sierra Leone (Appeals Chamber): Decision
on Preliminary Motion Based on Lack of Jurisdiction (Child
Recruitment), Prosecutor v. Sam Hinga Norman, SCSL-2004-14-AR72
(E) (May 31, 2004)
The Appeals Chamber of the
Special Court for Sierra Leone held that the recruitment
of child soldiers is a crime and a violation of
international law.
The Defense argued, inter
alia, that the Special Court for Sierra Leone (“the
Court”) had no jurisdiction to try the accused for
crimes under Article 4(c) of the Statute
prohibiting the recruitment of child soldiers under age
15 “into armed forces or groups or using them to
participate actively in hostilities” due to the
fact that the crime of child recruitment was not part
of customary international law at the times relevant to
the indictment of the accused. It further argued that
while Protocol
II Additional to the Geneva Convention of 1977
and the Convention
of the Rights of the Child of 1990 may have created
an obligation on the part of States to refrain from recruiting
child soldiers, such legal instruments did not render
the recruitment of child soldiers a crime. Finally, the
Defense submitted that although the 1998 Rome Statute of
the International Criminal Court (ICC) criminalizes the
recruitment of child soldiers, the Rome Statute does not
codify customary international law.
The Prosecution argued, inter
alia, that the crime of recruiting child soldiers
was a part of customary international law at the time
relevant to the indictment, that the Rome Statute of the
ICC did codify customary international law. The Prosecutor
further cited the Prosecution’s response in the
Tadic
case of the ICTY, noting that “in any case, individual
criminal responsibility can exist notwithstanding lack
of treaty provisions specifically referring to criminal
liability in accordance with the Tadif case.” The
Prosecution also argued that international criminal liability
for child recruitment resulted from various factors accumulated
over time, and that unlike a national legal system, international
law is without a Parliament with legislative power, and
therefore there cannot be a statute that declares certain
activity as criminal under customary international law.
In the alternative, the Prosecution argued that the Cape Town Principles, adopted
by the Symposium on the Prevention of Children into Armed
Forces and Demobilisation and Social Reintegration of
Child Soldiers in Africa established individual criminal
responsibility by April 30, 1997. The Prosecution made
further arguments in the alternative, submitting (1) that
individual criminal responsibility for child recruitment
had been established by June 29, 1998 at which time the
President of the United Nations Security Council condemned
the recruitment of child soldiers and called on the parties
to act in accordance with their obligations under international
law and to prosecute those responsible for grave breaches
of international humanitarian law; and (2) individual
criminal responsibility for child recruitment was established
by July 17, 1998, following the adoption of the Rome Statute
of the ICC.
The Appeals Chamber observed
that prior to November 1996, the prohibition on child
recruitment had become customary international law. The
Court noted that Sierra Leone ratified the Geneva
Convention (IV) Relative to the Protection of Civilian
Persons in Time of War and that Articles 14 and 24
provided that the Contracting Parties shall protect children
under fifteen from the effects of war. The Court further
noted that Sierra Leone ratified the Protocol Additional
to the Geneva Conventions of 12 August 1949, and Relating
to the Protection of Victims of International Armed Conflicts,
(“Additional Protocol I”) and the Protocol
Additional to the Geneva Conventions of 12 August 1949,
and Relating to the Protection of Victims of Non-International
Armed Conflicts. These protocols, the Court observed,
also prohibit the recruitment of child soldiers.
In terms of state practice
as an element of customary international law, the Court
noted that “the list of states having legislation
concerning recruitment or voluntary enlistment clearly
shows that almost all states prohibit (and have done so
for a long time) the recruitment of children under the
age of 15. Since 185 states, including Sierra Leone, were
parties to the Geneva Conventions prior to 1996, it follows
that the provisions of those conventions were widely recognised
as customary international law.”
The Court further noted that
all but six states had ratified the Convention on the Rights of
the Child by 1996. In regard to the Convention on
the Rights of the Child, the Court noted that, “[t]he
widespread recognition and acceptance of the norm prohibiting
child recruitment in Additional Protocol II and the [Convention
on the Rights of the Child] provides compelling evidence
that the conventional norm entered customary international
law well before 1996. The fact that there was not a single
reservation to lower the legal obligation under Article
38 is one of the very few conventional provisions which
can claim universal acceptance.”
Having found that “[c]hild
recruitment was criminalized before it was explicitly
set out as a criminal prohibition in a treaty law and
certainly by November 1996, the starting point of the
time frame relevant to the indictments,” the Court
dismissed the Preliminary Motion Based on Lack of Jurisdiction.
In a dissenting opinion, Justice
Geoffrey Robertson argued that the recruitment of child
soldiers was not a crime under international criminal
until the creation of the Rome Statute in 1998 establishing
the International Criminal Court.
Click here
for the decision. (The first decision listed on the
second page, after clicking on “More”)
United
States (U.S.) Supreme Court: Sosa v. Alvarez-Machain
et al.(Nos. 03-339 and 03-485) (June 29, 2004)
The Supreme Court reversed the Ninth Circuit’s
decision both in terms of the Federal Tort Claims Act
and the Alien Tort Statute. At issue before the Supreme
Court was whether Alvarez-Machain's claim that U.S. Drug
Enforcement officials instigated his unlawful abduction
from Mexico gives rise to a claim against the U.S. government
under the Federal Tort Claims Act ("FTCA"),
28
U.S.C. §1346, and under the Alien Tort Statute ("ATS"),
28
U.S.C. §1350.
The Ninth Circuit, in an en banc decision, previously
held 6-5 that “the unilateral, nonconsensual extraterritorial
arrest and detention of Alvarez were arbitrary and in
violation of the law of nations under the [the Alien Tort
Claims Statute].” The court held that Alvarez could
seek a remedy in federal courts pursuant to the Alien
Tory Claims Statute and the Federal Tort Claims Act for
violations of the law of nations.
The Supreme Court concluded
that Alvarez's arrest, was "tortious only because,
and only to the extent that, it took place and endured
in Mexico." The Supreme Court cautioned that the
Ninth Circuit's "headquarters theory", namely
that the tort arose from a decision in an U.S. government
office, could give rise to legal malpractice claims, medical
negligence claims and even slip-and fall claims, all "repackaged
as headquarters claims based on a failure to train, a
failure to warn, the offering of bad advice, or the adoption
of a negligent policy." The Supreme Court further
noted that "[t]he headquarters doctrine threatens
to swallow the foreign country exception whole..."
In regard to Alvarez-Machain's
claim under the Alien Tort Claims Statute, the Supreme
Court also reversed, finding that "[a]lthough we
agree the statute is in terms only jurisdictional, we
think that at the time of enactment the jurisdiction enabled
federal courts to hear claims in a very limited category
defined by the law of nations and recognized at common
law. We do not believe, however, that the limited, implicit
sanction to entertain the handful of international law
cum common law claims understood in 1789 should
be taken as authority to recognize the right of action
asserted by Alvarez here."
Alvarez-Machain contended
that the Alien Tort Claims Statute was not just a jurisdictional
provision for torts in violation of international law,
but as authority for the creation of new causes of action
for torts in violation of international law. The Supreme
Court noted that "the fact that the [Alien Tort Claims
Statute] was placed in §9 of the Judiciary Act, a statute
otherwise exclusively concerned with federal-court jurisdiction,
is itself support for its strictly jurisdictional nature."
The Supreme Court, in reviewing
the limited amount of legislative history available concerning
the Alien Tort Statute, noted that "Congress intended
the [Alien Tort Statute] to furnish jurisdiction for a
relatively modest set of actions alleging violations of
the law of nations. Uppermost in the legislative mind
appears to have been offenses against ambassadors,...violations
of safe conduct were probably understood to be actionable,
... and individual actions arising out of prize captures
and piracy may well have also been contemplated."
It further quoted Blackstone's commentaries noting that
"offences against this law [of nations] are principally
incident to whole states or nations" and did not
apply to individuals seeking relief in court.
The Supreme Court also observed
that a high bar to new private causes of action based
on violations of international law should also be raised
in light of "the collateral consequences" of
"impinging on the discretion of the Legislative and
Executive Branches in managing foreign affairs."
On November 27, 1991, the applicant, Mrs Thi-Nho Vo,
went to the Lyons General Hospital for a medical examination
during the sixth month of her pregnancy. The doctor who
examined the applicant thought she was another woman sharing
the same last name who was due to have a coil removed
the same day. The doctor mistakenly pierced the applicant’s
amniotic sac, thus making a therapeutic abortion necessary.
On June 3, 1996, the Lyons criminal court acquitted the
doctor charged with unintentional homicide. On March 13,
1997 Lyons Court of Appeals overturned the first judgment
and imposed a six-months suspended sentence and a fine
of 10, 000 French Francs. On June 30, 1999, the Court
of Cassation reversed the Court of Appeal’s decision,
refusing to consider the foetus as a human being protected
by the criminal law.
The applicant challenged the
French Court’s refusal to punish the unintentional
killing of her unborn child as an unintentional homicide
and argued that France had the obligation to legislate
and make such acts a criminal offense.
The Court noted that the issue
of when the right to life begins under Article 2 of the
Convention on Human Rights had not been determined. The
Court considered that this issue was to be decided at
the national level and not by the ECHR because there was
no European Consensus on the definition of the beginning
of life and the issue remained undecided in the majority
of States Party to the Convention , including
France.
The Court refused to consider
whether this case fell within the scope of Article 2 because
the Court concluded that, even if that provision was applicable,
France did not fail to comply with the requirements related
to the preservation of life in the public-health sphere.
The Court noted that the unborn child’s lack of
clear legal status did not deprive it of all protection
under French law. The Court observed that the life of
the foetus was connected with that of the mother and thus
was protected through her.
The Court further concluded
that “...if the infringement of the right to life
or to physical integrity is not caused intentionally,
the positive obligation imposed by Article 2 to set up
an effective judicial system does not necessarily require
the provision of a criminal law remedy in every case.”
The Court, however, concluded
that the applicant could still have an effective remedy
in the administrative courts.
United States (U.S.) Supreme Court:
Department of Transportation et al. v. Public Citizen
et al. (No. 03-358) (June 7, 2004)
The U.S. Supreme Court unanimously
found that the Federal Motor Carrier Safety Administration
(FMSCA) did not violate the National Environmental
Policy Act of 1969 (“NEPA”) or the Council
of Environmental Quality (CEQ) regulations when it failed
to consider the environmental effect of the increase in
cross-border operations of Mexican motor carriers in its
Environmental Assessment.
In 1982 Congress authorized
the U.S. President to lift, extend or modify the moratorium
on new grants of operating authority for Mexican and Canadian
trucks in the United States. Although the moratorium on
Canadian trucks was lifted, the moratorium on Mexican
trucks remained. Following NAFTA’s
effective date on January 1, 1994, the U.S. President
lifted the moratorium on the licensing of some Mexican
bus services, but did not lift the moratorium on Mexican
trucks due to concerns over Mexico’s regulation
of motor carrier safety.
Mexico challenged the U.S.
moratorium on Mexican trucks under Chapter Twenty of the
North American Free Trade Agreement (NAFTA). At issue
before the Panel was whether the United States was in
breach of NAFTA Article
1202 (national treatment for cross border services)
and/or 1203
(most favored nation treatment for cross-border services)
for failing to phase out the moratorium on the processing
of Mexican-owned carrier applications for operating cross-border
trucking services beyond restricted border zones in the
United States. (United
States—In the Matter of Cross-Border Trucking Services)
The NAFTA Panel found that
“the deprivation of the right to obtain operating
authority to U.S. companies owned or controlled by Mexican
nationals and the prohibition on allowing Mexican investors
to acquire U.S. companies that already have operating
authority, on its face, violates the straightforward provisions
of NAFTA Articles 1102 and 1103.”
In 2001, following the above-mentioned
NAFTA Panel decision, the U.S. President made his intention
clear to lift the moratorium following the release of
new regulations concerning the grant of operating authority
to Mexican motor carriers.
These regulations were later
issued by the FMSCA, along with an Environmental Assessment.
This Environmental Assessment was then challenged by Public
Citizen et al. before the Ninth Circuit. The Ninth
Circuit held that the FMSCA acted arbitrarily and capriciously
for failing to provide a full Environmental Impact Statement
under the NEPA and the Clean Air Act. Although the Ninth
Circuit did not draw conclusions as to the validity of
the NAFTA, it stated that “[a]lthough we agree with
the importance of the United States’ compliance
with its treaty obligations with its southern neighbor,
Mexico, such compliance cannot come at the cost of violating
United States law.” It also noted that the NAFTA,
as enacted into U.S. law, provides under 19
U.S.C. §§3312(a)(1) that: “No provision of the
Agreement ... which is inconsistent with any law of the
United States shall have effect.”
The Ninth Circuit granted
the petitions for review of three regulations promulgated
by the U.S. Department of Transportation, thereby enjoining
the entry of Mexico-domiciled trucks beyond the border
zones pending the release of a full environmental impact
statement.
The Supreme Court reversed,
noting that “in these circumstances...the causal
connection between the FMSCA’s issuance of the proposed
regulations and the entry of the Mexican trucks is insufficient
to make FMSCA responsible under NEPA to consider the environmental
effects of entry.” It further observed that “[b]ecause
the President, not FMCA, could authorize (or not authorize)
cross-border operations from Mexican motor carriers, and
because FMCSA has no discretion to prevent the entry of
Mexican trucks, its [Environmental Assessment] did not
need to consider the environmental effects arising from
the entry.
Oklahoma Court of Criminal Appeals:
Osbaldo Torres v. the State of Oklahoma (No. PCD-04-442)(May 13, 2004)
The Oklahoma Court of Criminal
Appeals (“the Court”), after consideration
of Torres’s latest application for post-conviction
relief and other pleadings, ordered his execution date
to be stayed pending further order of the Court. The Court
granted Torres’s request for an evidentiary hearing
and remanded to the District Court of Oklahoma County
for such a hearing on the following issues: “(a)
whether Torres was prejudiced by the State’s violation
of his Vienna Convention rights
in failing to inform Torres, after he was detained, that
he had the right to contact the Mexican consulate; and
(b) ineffective assistance of counsel.”
Judge Chapel, in a “specially
concurring” opinion, observed that both Mexico and
the United States are signatories to the Vienna Convention,
“a multinational treaty respecting consular relations,
which provides that law enforcement authorities shall
inform detained foreign nationals of their right to contact
consular officials for assistance.” He noted that
in accordance with the U.S. Constitution Article VI, clause
2 [the Supremacy Clause] “all Treaties made, or
which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land” and
that “the federal government’s power to make
treaties is independent of and superior to the power of
states.” Judge Chapel further commented that “[a]s
this Court is bound by the treaty itself, we are bound
to give full faith and credit to the Avena decision.
I am not suggesting that the International Court of Justice
has jurisdiction over this Court– far from it. However,
in these unusual circumstances the issue of whether this
Court must abide by the court’s opinion in Torres’s
case is not ours to determine. The United States Senate
and the President have made that decision for us. The
Optional Protocol, an integral part of the treaty, provides
that the International Court of Justice is the forum for
resolution of disputes under the Vienna Convention. The
negotiation and administration of treaties is reserved
to the Executive Branch, with Senate ratification. Therefore,
when interpreting a treaty, we give great weight to the
opinion and practice of the government department primarily
responsible for it. The State Department has consistently
taken the position that the only remedies under the Vienna
Convention are diplomatic, political, or exist between
states under international law. ...the State Department
has also consistently turned to the International Court
of Justice to provide a binding resolution of disputes
under the Vienna Convention, and has relied on the binding
nature of International Court of Justice decisions to
enforce United States rights under the Convention.
The Avena decision mandates a remedy for a particular
violation of Torres’s, and Mexico’s rights
under the Vienna Convention.”
Turning to the Avenadecision
itself, Judge Chapel noted that “Avena directs
the Unites States to review and reconsider Torres’s
conviction and sentence in light of the consequences of
the treaty violation. That review and reconsideration
falls to this Court. This is the first state pleading
in which Torres has raised his Vienna Convention claim,
and normally ths Court would consider it procedurally
barred. However, while leaving the particular method of
review and reconsideration up to the United States, Avena
states that a complete application of procedural bar
will not fulfill the mandate to review and reconsider
the conviction, if procedural bar prevents the Vienna
Convention claim from being heard. In order to give full
effect to Avena, we are bound by its holding to review
Torres’s conviction and sentence in light of the
Vienna Convention violation, without recourse to procedural
bar. ... Torres’s Vienna Convention claim was generated
by the State of Oklahoma’s initial failure to comply
with a treaty. I believe we cannot fulfill the goal of
a fair and just review of Torres’s case if we refuse
to look at his Vienna Convention claims on the merits.”
Judge Lumpkin, joined by Judge
Lile in a dissenting opinion, observed that the U.S. Supreme
Court denied certiori in Torres’s case on March
24, 2003. Judge Lumpkin found that the legal issues raised
by Torres’s application for post-conviction relief
were barred by res judicata and waiver. He observed
that “the Avena
decision cannot revive a stale claim” and that “[a]t
most Avena asked us to review the case to ensure
Appellant received the benefit of the process that was
due him, and which would have assured him if he had been
advised of his consular rights.” He further concluded
that “without a doubt Appellant has been afforded
his rights under Avena. He has been represented
by competent lawyers at each stage of these proceedings
and afforded all the rights guaranteed to citizens of
the United States.”
United
Nations Economic Commission for Europe (UNECE): The Protocol
on Civil Liability and Compensation for Damage Caused
by the Transboundary Effects of Industrial Accidents on
Transboundary Waters was adopted at the Ministerial Conference
“Environment for Europe” (May 21, 2003)
On May 21, 2003, The Protocol
on Civil Liability and Compensation for Damage Caused
by the Transboundary Effects of Industrial Accidents on
Transboundary Waters (“the Protocol”) was
formally adopted and signed by 22 countries at the Ministerial
Conference “Environment for Europe” in Kiev,
Ukraine. Two additional countries have signed the Protocol
since that date. The Protocol will enter into force after
ratification by sixteen countries.
The Protocol’s objective
is “to provide for a comprehensive regime for civil
liability and for adequate and prompt compensation for
damage caused by the transboundary effects of industrial
accidents on transboundary waters.” Compensation
for damage resulting from the transboundary movement of
hazardous wastes, other wastes and their disposal including
incidents occurring because of illegal traffic in those
wastes is covered by the Basel Protocol on Liability and
Compensation for Damage resulting from Transboundary Movements
of Hazardous wastes and their Disposal adopted by the
United Nations Environment Programme (UNEP) on December
10, 1999.
The Protocol contains strict
liability and fault-based liability measures in Articles
4 and 5. It provides victims of industrial accidents with
remedies for damage including loss of life or personal
injury, loss of or damage to property, loss of income
or cost of reinstatement and response measures. Article
8 ensures the non-discrimination of victims based on nationality,
domicile or residence.
Articles 9 and 10 establish
financial and time limits on liability. The financial
limits are set depending on the risk of the activity,
i.e. the quantity of the hazardous substances that may
be present and their toxicity or the risk they pose to
the environment. Under Article 11, companies have to establish
financial securities, such as insurance or other guarantees,
to cover this liability.
Under Article 13, claims for
compensation must be brought in the courts of a Party
where the damage was suffered, the industrial accident
occurred or where the defendant resides or has its principal
place of business, statutory seat or central administration
if the defendant is a legal person. Article 14 provides
that the parties can agree to submit the dispute to final
and binding arbitration.
European Community (EC): EC joins
the Madrid Protocol (June 21, 2004)
On June 21, 2004, the EC submitted
to the World Intellectual Property organization (WIPO)
in Geneva its instruments of accession to the Madrid Protocol
on the international registration of trademarks. On October
27, 2003, the Council of the European Union decided to
accede to a WIPO treaty for the first time. All the necessary
legislative measures to join the treaty have been adopted
and the accession will enter into force on October 1,
2004.
The accession of the EC to
the Madrid Protocol will establish a link between the
Madrid Protocol System administered by WIPO and the Community
Trademark System administered by the Office of Harmonisation
in the Internal Market (OHIM). The Madrid Protocol System
simplifies the management of trademarks because the trademark
owner has the possibility to have the trademark protected
in over sixty countries, including Russia, China and the
United States by filing only one application with a single
office, in one language with one set of fees in one currency.
The Community Trademark System provides applicants with
the protection of their trademarks with unitary effect
for the whole territory of the EC through the filing of
a single application.
With the accession of the
EC to the Madrid Protocol, Community Trademark applicants
and holders will be able to apply for international protection
of their trademarks by filing an international application
under the Madrid protocol. The OHIM will transmit to the
WIPO Community Trademark holders’ request to extend
the protection. Holders of international registration
under the Madrid Protocol will be able to apply for protection
of their trademarks under the Community Trademark System.
The WIPO will notify the OHIM of international registration
applications and they will be examined in the same way
as direct Community Trademark applications.
