International Law in Brief

International Law In Brief

March 22 - April 2, 1999
Developments in international law, prepared by the
Attorney-Editors of
International Legal Materials
The American Society of International Law


Treaties and Other International Agreements

Summit of Central African Heads of State on the Conservation and Sustainable Management of Tropical Forests: The Yaounde Declaration (Mar. 17, 1999)

The Heads of State from Cameroon, Republic of the Congo, Gabon, Equatorial Guinea, Central African Republic, and Chad signed a declaration on matters relating to the conservation and sustainable management of forest ecosystems.  The document calls upon the heads of state to move faster on setting up protected transborder zones, and to adopt harmonized forestry policies.  The parties agreed, inter alia, to work to eliminate large-scale poaching and other non-sustainable exploitation of forest resources, to promote forums to exchange information and experience on sustainable forest management, and to create networks to connect forest research and development institutions in the region.  Finally, the parties agreed to revive the Organization for Wildlife Conservation in Central Africa to aid in the implementation of these programs. EF
http://www.panda.org/forestsummit/declaration.html

 

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Judicial Decisions

U.K. House of Lords: Regina v. Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet (Mar. 24, 1999)

A seven-member panel of the House of Lords considered two questions in the case surrounding Spain's request for the extradition of Senator Augusto Pinochet; first, whether the extradition request included any charges that amount to extradition crimes under British law; and, second, if there were any extradition crimes charged, whether Pinochet would have immunity for those crimes.

The principle of double criminality with respect to extradition requires that "the conduct complained of must constitute a crime under the law both of [the requesting state] and of the United Kingdom."  An examination of the legislative history of the Extradition Act 1989 and its predecessor led Lord Browne-Wilkinson to hold that crimes were extradition crimes only if the acts were criminal under UK law at the time the acts were committed.  Section 134 of the Criminal Justice Act 1988 (in effect as of September 29, 1988) implemented the provisions of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention) and made acts of torture committed by a "public official or other person acting in an official capacity" unlawful.

Lord Hope of Craighead examined the offenses with which Pinochet was charged and found that most of the charges listed in the request concerned events that happened before the Criminal Justice Act was in effect.  Of the 32 draft charges, Lord Hope held that only those acts committed on or after September 29, 1988 could be extradition charges.  In addition, charge 3 (conspiracy to take hostages) could not be an extradition crime because it did not satisfy the conditions of the UK Taking of Hostages Act.  After this analysis, the only charges remaining to be considered on the immunity question were the parts of charges 2 and 4 on conspiracy to torture during the period beginning September 29, 1988, and charge 30 (torture committed on June 24, 1989), as well as charge 9 (conspiracy to murder in Spain) and the parts of charge 4 dealing with conspiracies in Spain to murder in Spain and conspiracy in Spain to commit acts of torture in Spain.  Lord Hope of Craighead noted, however, that:

"it is important not to lose sight of the fact that the case which is being made against Senator Pinochet by the Spanish judicial authorities is that each act of torture has to be seen in the context of a conspiracy to commit torture.  As a whole, the picture which is presented is of a conspiracy to commit widespread and systemic torture and murder in order to obtain control of the government and, having done so, to maintain control of government by those means for as long as might be necessary."

Lord Browne-Wilkinson examined the law of torture and its development following World War II and the Nuremberg Tribunal, as it became an international crime.  Citing Prosecutor v. Furundzija, [ICTY No. 17-95-17/1-T (1988), 38 I.L.M. 317 (1999), abstract at ILIB, January 1999, at 2], Browne-Wilkinson recognized the "jus cogens nature of the international crime of torture."  The Torture Convention created an international regime in which "continued immunity for ex-heads of state is inconsistent with its provisions."  No state was to provide a haven for those who had committed torture.  On the question of immunity, the Panel found that while there was no express waivers of state immunity in the Torture Convention, the international law of torture, particularly through the Torture Convention, had developed to the point that a universal jurisdiction was in place.  Because the Convention applies to state officials, no claim of immunity can result for a head of state.  Furthermore, Lord Hope of Craighead found that Pinochet lost immunity ratione materiae as of the dates that the UK and Chile ratified the Torture Convention because "it was no longer open to any state which was a signatory to the Convention to invoke the immunity ratione materiae in the event of allegations of systemic or widespread torture committed after that date being made in the courts against its officials or any other person acting in an official capacity."

Therefore, the Panel held that while Pinochet did have immunity ratione materiae for the acts in charge 9 and parts of charge 4 dealing with conspiracy in Spain to murder and to torture in Spain, he had no immunity for the extradition crimes listed in charge 30, and those parts of charges 2 and 4 on conspiracy to torture during the period beginning September 29, 1988.  The Panel noted that the change in the charges would require the UK Secretary of State to reconsider his decision to proceed with the extradition.

Lord Goff of Chieveley agreed with the analysis of the Panel as to the determination of which charges survived the application of the double criminality principle, but disagreed with the finding on immunity.  Lord Goff would have found that Pinochet did have immunity ratione materiae as a former head of state because the Torture Convention lacked an express waiver of immunity and because the application of the double criminality principle eliminated the other charges that would have led to a finding of systemic or widespread  torture.  EF
http://www.parliament.the-stationery-office.co.uk/pa/ld199697/ldjudgmt/ldjudgmt.htm

U.S. District Court, S.D. Florida: Alejandre v. Republic of Cuba, No. 96-10126-CIV (S.D. Fla. Mar. 18, 1999)

Following the decision of the District Court which awarded plaintiffs $187,627,911 in compensatory and punitive damages arising from the downing of two Brothers to the Rescue airplanes by the Cuban airforce, the plaintiffs sought to enforce the award though garnishment of amounts payable to the Cuban long distance carrier by AT&T et al for long distance telephone charges between the U.S. and Cuba.

In 1998, Congress amended the Foreign Sovereign Immunities Act (FSIA) through section 117 of the Omnibus Appropriations Bill. Section 117, which includes a presidential waiver clause, provides for the attachment or execution of property, including blocked assets, following a judicial determination of liability in which a state has lost its immunity pursuant to the sect. 1605(a)(7) of the  FSIA as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA).  President Clinton signed the appropriations legislation but waived section 117 in its entirety, in the interest of national security.

The District Court upheld plaintiff's contention that the presidential waiver was not authorized by the legislation, stated that section 117 and the AEDPA were enacted "to provide an executable judicial remedy to the nationals of the United States attacked by a terrorist foreign state. Had Congress intended to give the President the authority single-handedly to impede the achievement of this goal, it would have done so more clearly...."  The court rejected arguments that the President had inherent constitutional authority absent a waiver provision on the basis of presidential power to receive "Ambassadors and other public Ministers" noting that there was no diplomatic property at issue, and similarly declined to consider the potential effect of the decision on the US treaty obligations pursuant to the Vienna Conventions on Diplomatic and Consular Relations, noting that not only was no diplomatic property at issue, but that Congress "expressly decided to put diplomatic property at risk of attachment or execution by passing section 117.... By opening the door to the United States' potential violation of its treaty obligations, Congress intentionally sent a the [sic] message to foreign terrorist states that U.S. victims of violations of international law will be compensated, even if it must be from diplomatic property."  The court further held that the Cuban telecom company ETESCA was an instrumentality of the Cuban government for the purposes of attachment or execution of the judgment and that the deposit of the funds in a Canadian bank account did not defeat U.S. jurisdiction over the property.

In dicta, Judge King criticized the position of the Administration in the litigation:  "The Court notes with great concern that the very President who in 1996 decried this terrorist action by the Government of Cuba now sends the Department of Justice to argue before this Court that Cuba's blocked assets ought not be used to compensate the families of the U.S. nationals murdered by Cuba.  The Executive branch's approach to this situation has been inconsistent at best.  It now apparently believes that shielding a terrorist foreign state's assets are more important than compensating for the loss of American lives." fn. 16.  DL

U.S. Supreme Court: Minnesota v. Mille Lacs Band of Chippewa Indians, No. 97-1337 (Mar. 24, 1999)

In 1837, several Bands of Chippewa entered into a treaty with the United States which ceded Chippewa land to the federal government while the Chippewa retained certain hunting, fishing, and gathering rights on the land (the right of usufruct) "during the pleasure of the President of the United States."  President Zachary Taylor issued an Executive Order in 1850 revoking the retained rights and requiring the removal of Chippewa to unceded lands.  The District Court and the Eighth Circuit held that the Mille Lacs Band of Chippewa retained rights of usufruct under the 1837 Treaty and that President Taylor did not have constitutional authority to issue the removal order attempting to abrogate the Chippewa's usufructory rights.

The Supreme Court affirmed, holding that the Executive Order was unconstitutional in that the removal order was outside the authority of the President and that the unconstitutional removal portions could not be severed from the parts of the Order attempting to abrogate the retained hunting, fishing, and gathering rights.  The majority of the Court disagreed with Chief Justice Rehnquist's assertion that the President had "inherent power" to order the removal of the Chippewa, and noted that "[t]he Chippewa were on the land long before the United States acquired title to it."  The Court further held that a subsequent 1885 Treaty with the Chippewa did not abrogate their rights of usufruct in that the latter document was a land purchase treaty and did not unambiguously terminate rights retained under the 1837 Treaty.  The Court rejected Minnesota's contention that the Chippewa's usufructory rights were extinguished by virtue of Minnesota's admission to the Union on an "equal footing" with all other States.  "[B]ecause treaty rights are reconcilable with state sovereignty over natural resources, statehood by itself is insufficient to extinguish Indian treaty rights to hunt, fish, and gather on land within state boundaries."

In dissent, Rehnquist asserted that the Executive Order was constitutional in that (1) the Order was pursuant to a treaty ratified by advice and consent of the Senate, therefore the exercise of presidential authority was "impliedly authorized" by Congress; (2) the plain meaning of the text of the Order deals with the extinguishment of rights upon the land rather than being a "removal order"; (3) removal was lawful because once the President terminated the right to fish, hunt, and gather on the land, the Chippewa had no legal right to remain on the ceded land; and (4) the Executive Order should enjoy a presumption of severability leaving the extinguishment of usufructory rights even if the removal order was unlawful.

Justice Thomas' dissent emphasized that the question of whether the Chippewa retain the privilege to hunt, fish, and gather does not require consideration of the extent to which the exercise of that privilege is subject to state regulation.  DL
http://laws.findlaw.com/US/000/97-1337.html

ICTR: Prosecutor v. Bernard Ntuyahaga, ICTR 98-40-T (Mar. 18, 1999)

Bernard Ntuyahaga was charged with a single count of crimes against humanity.  The indictment alleged that Ntuyahaga was criminally responsible for the murder of Ms. Agathe Uwilingiyimana, then-Prime Minister of Rwanda, and ten Belgian soldiers of the United Nations Assistance Mission for Rwanda.  The Tribunal granted the Prosecutor's motion to withdraw the indictment.

The Prosecutor argued that withdrawal of the indictment would promote concurrent jurisdiction under Art. 8(1) of the Statute of the Tribunal by allowing national courts to prosecute the accused.  Belgium instituted proceedings against persons implicated in the murder of its soldiers in its national court.  The Tribunal recognized the complementary relationship of the Tribunal and national courts, but noted that Art. 8(1) must be read in conjunction with Art. 8(2) giving the Tribunal primacy over domestic courts.  The Tribunal also stated that Art. 9, in accordance with the non bis in idem principle, provides that no person shall be tried in a national court for acts tried by the Tribunal, however the Tribunal may try a person who has previously been tried for the same acts in a national court.  Further, the States may defer cases to the Tribunal but the Tribunal may not defer investigations and proceedings to the national courts.  The Tribunal held that where, as in this case, an indictment has been confirmed and the initial appearance has taken place, concurrent jurisdiction cannot be invoked by the Prosecutor in support of a request for withdrawal of an indictment.

The Tribunal affirmed that the Prosecutor has "sole responsibility" for the prosecutions, including decisions whether or not to proceed with a matter, and granted the motion to withdraw the indictment.  The Tribunal held, however, that withdrawal of an indictment "is tantamount to a termination of the proceedings", and that it "d[id] not have jurisdiction to order the release of a person who is no longer under indictment into the custody of any given State, including the Host State, the United Republic of Tanzania."  The Tribunal therefore ordered the "immediate release" of Ntuyahaga from the Tribunal's detention facilities. TT
http://www.ictr.org/english/decisions/withdraw.htm

 

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News and Notes

On April 1, 1999, the new Canadian territory of Nunavut came into existence following the passing of the Nunavut Land Claims Act and the Nunavut Act in 1993 by the Parliament of Canada.  The new territory encompasses two million square kilometers, one-fifth of Canada's land mass, and is to have a representative government that will incorporate the Inuit culture and traditions.  The text of the Acts creating the territory can be found at http://www.inac.gc.ca/nunavut/index1.html

Judge Dionysios Kondylis of Greece, newly-appointed to the International Criminal Tribunal for Rwanda, resigned from the Tribunal in a letter dated March 22, 1999.  http://www.ictr.org/english/pressrel/172.htm
 

The U.S. Department of Defense (DoD) is seeking applications for the position of Deputy General Counsel (International Affairs).  Among the substantive issues within the responsibility of International Affairs are arms control treaty negotiation and compliance reviews, humanitarian law, law of armed conflict, war powers, law of outer space, and law of the sea, inter alia.   For further information, visit the DoD Web site, http://personnel.persec.osd.mil/epd/99-11.txt

 

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International Law In Brief - Copyright 2000 - The American Society of International Law
Editors:  Elizabeth J. Fabrizio, David A. Levy
Interns:  Alice Epler, Fredrick Mudenda, Teresa Taylor