International Law in Brief

International Law In Brief

December 2-8, 2000
Developments in international law, prepared by the
Attorney-Editors of International Legal Materials
The American Society of International Law

Treaties, Agreements and Related Documents

ACP-Commonwealth:Memorandum of Understanding between the Secretariat of the African, Caribbean and Pacific Group of States and the Commonwealth Secretariat (October 31, 2000)

The Secretaries-General of the African, Caribbean and Pacific Group of States ("ACP") and the Commonwealth agreed to sign a Memorandum of Understanding ("Memorandum") to set out a framework for cooperation and collaboration in all areas in which their functions, programs and activities are complementary and mutually supportive. Para. 1.

The Parties shall cooperate in elaborating programs for increasing effective participation by ACP and Commonwealth developing countries in international trade and investment, particularly by: 1) strengthening and diversifying export supply capacities; and 2) enhancing efficiency and competitiveness. Paras. 3-4. The Parties shall also cooperate to support as appropriate sub-regional and regional ACP country integration to: 1) expand those countries' production and export capabilities; 2) diversify exports; and 3) increase their competitiveness. Paras. 3, 5.

The Parties shall collaborate as appropriate in assisting member countries in deriving greater benefit from: 1) market access and other commitments made in the Uruguay Round Agreements and WTO decisions; and 2) "special and differential measures" applied in their favor. Para. 6(a). The Parties shall also collaborate as appropriate in negotiations regarding inter alia: 1) further liberalization of services; and 2) new and emerging issues, particularly those arising in the context of WTO working groups. Para. 6(b). The Parties shall also collaborate in promoting measures that would result in ACP regions' increased attractiveness to foreign direct investment. Para. 8.

The Parties shall identify further areas for future cooperation, including inter alia: 1) support for democracy and good governance; 2) small states' special needs; and 3) gender equality. Para. 9.

The Parties may engage in joint activities, and shall agree on a collaboration program regarding the Memorandum's provisions. Paras. 10-11. The Parties shall also undertake a semi-annual review of the implementation of activities under the Memorandum. Para. 12.

The Memorandum may be amended by mutual consent and terminated by either Party with six months' written notice. Paras. 13-14. Such termination will not inhibit the completion of ongoing projects and cooperation programs. Para. 14. PH

http://www.oneworld.org/acpsec/gb/press/m-o-a_en.htm

Back to the top

EU: Charter of Fundamental Rights of the European Union (December 7, 2000)

European Union ("EU") leaders at their Nice summit signed the Charter of Fundamental Rights of the European Union ("Charter") to inter alia strengthen the protection of fundamental rights in light of "changes in society, social progress and scientific and technological developments" by increasing their visibility. Preamble. The Charter's provisions are addressed to EU institutions and bodies, and to EU Member States only in the implementation of EU law. Art. 51.1. The Charter does not establish any new power or task for inter alia the EU, nor does it modify any EU treaty power or task. Art. 51.2.

The Charter prohibits inter alia the death penalty, eugenics, human cloning, collective expulsions, and extradition to a state where there is a "serious risk" of the person being subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. Arts. 2.2, 3.2, 19.

The Charter recognizes the right to the protection of personal data, as well as freedom for the arts and scientific research. Arts. 8.1, 13. The Charter recognizes individual equality under the law, and prohibits discrimination on grounds of inter alia age and sexual orientation. Arts. 20-21. The Charter recognizes and respects the rights of: 1) the elderly to "lead a life of dignity and independence and to participate in social and cultural life," (Art. 25); and 2) the disabled to benefit from measures designed to ensure their independence, social and occupational integration and participation in community life. Art. 26.

The Charter notes that the principle of gender equality shall not prevent the maintenance or adoption of measures providing for "specific advantages" in favor of the "under-represented sex." Art. 23. The Charter moreover states that children "may express their views freely" and that such views shall be considered in matters concerning them "in accordance with their age and maturity." Art. 24.1. The Charter prohibits the employment of children below "minimum school-leaving age," subject to certain exceptions. Art. 32. The Charter further recognizes the right to protection from dismissal for reasons connected to maternity, the right to paid maternal leave, or parental leave following birth or adoption. Art. 33.2. The Charter does so to "reconcile family and professional life." Id.

The Charter recognizes the right of workers and employers to negotiate and conclude collective agreements or defend their interests by collective action, including strikes. Art. 28. The Charter notes that third-country nationals authorized to work in the EU are entitled to working conditions "equivalent to those" of EU citizens. Art. 15.3. The Charter also recognizes the rights of: 1) access to a free placement service; and 2) protection from unjustified dismissal. Arts. 29-30.

The Charter states that high-level environmental protection and environmental quality improvement must be ensured in accordance with the principle of sustainable development. Art. 37. The Charter also states that EU policies shall ensure a high level of consumer protection. Art. 38. PH

Editor's Note: The Charter's signed version was not available at the time of this ILIB issue's publication. This abstract used the text of the September 28, 2000 draft found on the EU website on the date of this issue's publication (and the day after the Charter's signing), in the absence of any indication made known to the ILIB Editors that substantive changes had been made to the draft. The September 28, 2000 draft version is available in PDF format at http://europa.eu.int/comm/justice_home/unit/charte/pdf/charter_en.pdf

Back to the top

 

Judicial and Other Decisions

ECHR: Former King of Greece v. Greece, No. 25701/94 (November 23, 2000)

Greece's Law no. 2215/1994 ("1994 Law") inter alia proclaimed the Greek State to be the owner of the movable and immovable property of the former king and royal family of Greece. Para. 41. The king and eight family members subsequently applied to the European Commission of Human Rights ("Commission"), alleging that the 1994 Law violated their rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms ("Convention"). Paras. 1-2.

The Commission declared the application partly admissible in regard to certain royal family members ("Applicants"), and unanimously opined that there had been a violation of Article 1 of Protocol No. 1 to the Convention ("Article") protecting the right to peaceful enjoyment of possessions. Para. 3. [See November 8-19, 1999 ILIB for abstract of Commission Report.] The case was thereafter referred to the European Court of Human Rights ("Court"). Paras. 1, 4.

The Court rejected Greece's argument that the contested estates were "inextricably linked" to the Head of State institution so as not to "fall under the notion of 'possessions'" protected by the Article. Paras. 51, 60-61, 66. The Court instead held that the contested properties were for the purpose of the Article "possessions" owned by the Applicants and their ancestors "as private persons" rather than in their capacity as royal family members. Paras. 63, 66. The Court took particularly into account the fact that Greece had prior to the 1994 Law treated the members of the royal family as private owners of the estates in question. Para. 62.

The Court considered that "in 1994 there was an interference" with the Applicants' right to peaceful enjoyment of their possessions amounting to a "deprivation" within the meaning of the Article. Para. 78. The Court further considered the 1994 Law to be the "sole legal basis" for the interference, but concluded it could not find the 1994 Law unconstitutional in light of the Greek Special Supreme Court's contrary finding. Para. 82. The Court determined the deprivation to be "provided for by law" as required by the Article. Id.

The Court opined that national authorities are "in principle better placed than the international judge" to appreciate what is in the public interest. Para. 87. The Court further stated that the "notion of 'public interest' is necessarily extensive." Para. 88. The Court held that while "some doubt" might arise from the nearly twenty-year gap between the constitutional transition from monarchy and the 1994 Law, such a fact could not deprive the 1994 Law's "overall objective" of its "legitimacy as being 'in the public interest'." Id.

The Court determined, however, that the Applicants had a " legitimate expectation" to be compensated for the taking of their estates, and found that Greece had failed to provide a "convincing explanation" as to why it had not compensated the Applicants. Para. 98. The Court opined that the lack of any compensation had upset "the fair balance" between the protection of property and public interest requirements. Para. 99. The Court accordingly found a violation of the Article. Id.

The Court reserved the question of "just satisfaction" under Convention Article 41, and invited Greece and the Applicants to submit within six months their observations on the question and to notify the Court of "any agreement" that they might reach. Paras. 104, 107; Holding, Para. 3.

In a partly dissenting opinion, Judge Koumantos, joined by Judge Zupancic, argued inter alia against the finding of an Article violation on the ground that the Article was intended to protect private property belonging to natural or legal persons rather than that "assigned to certain persons in connection with their public duties," even if such property were to retain "some features governed by private law." Koumantos Partly Dissenting Opinion. BM

Archived at http://www.echr.coe.int/eng/Judgments.htm

Back to the top

WTO Appellate Body: European Communities -- Measures Affecting Asbestos and Asbestos-Containing Products, Communication from the Appellate Body (regarding adopted additional procedure for dealing with written briefs received from persons other than parties or third parties to the dispute), WT/DS135/9 (November 8, 2000)

The World Trade Organization Appellate Body ("Appellate Body"), hearing the appeal in European Communities -- Measures Affecting Asbestos and Asbestos-Containing Products [see November 4-10, 2000 ILIB for abstract of WTO Panel Report], adopted pursuant to Rule 16(1) of the Working Procedures for Appellate Review, and for the purposes of the instant appeal only, an additional procedure to deal with any written briefs received by the Appellate Body from natural or legal persons other than a party or a third party to the dispute. Paras. 1-2. Such persons were to first apply to the Appellate Body for leave to file a brief by noon on November 16, 2000. Para. 2.

The additional procedure provides that the application for leave to file shall inter alia: 1) be in writing and no more than three typed pages long; 2) describe the applicant and specify the nature of the applicant's interest in the appeal; 3) identify the specific legal issues in the appeal which the applicant intends to address; 4) state why it would be desirable for the Appellate Body to grant leave to file; and 5) indicate the way in which the applicant would make a contribution to resolving the dispute so as not to likely be "repetitive of what has been already submitted by a party or third party to this dispute." Para. 3.

Any person granted leave to file was to have by noon on November 27, 2000: 1) filed a brief of no more than twenty typed pages with the Appellate Body Secretariat; and 2) served a copy of the brief on all the parties and third parties to the dispute. Paras. 6-8. The parties and third parties to the dispute shall be given a "full and adequate" opportunity by the Appellate Body to comment on and respond to any such brief. Para. 9. BM

Available in Word format at http://www.wto.org/wto/ddf/ep/E4/E4729e.doc

Back to the top

 

 

 

International Law In Brief - Copyright 2000 - The American Society of International Law
Editors:  Peter C. Hansen, Esq., Branislav A. Maric