International Law in Brief

International Law In Brief

Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
June 4, 2002

TREATIES, AGREEMENTS AND RELATED DOCUMENTS

JUDICIAL AND SIMILAR PROCEEDINGS

REPORTS AND OTHER DOCUMENTS

BRIEFLY NOTED

TREATIES, AGREEMENTS AND RELATED DOCUMENTS

North Atlantic Treaty Organization (NATO)-Russia: Declaration by Heads of State and Government of NATO Member States and the Russian Federation (NATO-Russia Relations: A New Quality) (May 28, 2002)

The NATO Member States and the Russian Federation established the NATO-Russia Council ("Council"), replacing the NATO-Russia Permanent Joint Council, in which they plan to work as "equal partners in areas of common interest." The Council will provide a mechanism for consultations, consensus-building, cooperation, joint decision, and joint action on "wide spectrum of security issues in the Euro-Atlantic region." The Council will operate on the principle of consensus, as well as the basis of a continuous political dialogue on security issues for the purpose of early identification of emerging problems. The NATO Secretary General will chair the Council, which will meet at least once a month, with four ministerial level meetings a year.

The NATO and Russia agreed to continue to intensify their cooperation in areas including the "struggle against terrorism," crisis management, non-proliferation, arms control and confidence-building measures, theater missile defense, search and rescue at sea, military-to-military cooperation, and civil emergencies. As to the struggle against terrorism, the NATO and Russia agreed to "strengthen cooperation through a multi-faceted approach," which will include joint assessments of the terrorist threat to the NATO and Russian forces, civilian aircraft or critical infrastructure. As an initial step, the Council will prepare a joint assessment of the "terrorist threat to NATO, Russia and Partner peacekeeping forces in the Balkans."

Click here for the text of the agreement.

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United States-Russia: Treaty between the United States of America and the Russian Federation on Strategic Offensive Reductions (Moscow Treaty) (May 24, 2002)

The United States and Russia ("Parties") noted that the Treaty on Strategic Offensive Reductions ("Treaty") would help to establish "more favourable conditions for actively promoting security and cooperation, and enhancing international stability." The Parties agreed to reduce and limit strategic nuclear warheads so that by December 31, 2012 the aggregate number of such warheads "does not exceed 1700-2200 for each party." The Treaty provides that each Party shall determine for itself the composition and structure of its strategic offensive arms. The Parties agreed to form a Bilateral Implementation Commission that will meet at least twice a year to discuss the Treaty's implementation. The Treaty allows either Party to withdraw from the Treaty upon three months written notice to the other Party.

Click here for the text of the agreement.

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JUDICIAL AND RELATED DOCUMENTS

United Kingdom (U.K.) House of Lords: In Re Al-Fawwaz, et al. (Application for a Writ of Habeas Corpus; on Appeal from a Divisional Court of The Queen's Bench Division), [2001] UKHL 69 (December 17, 2001)

The U.K. House of Lords ruled that Mr. Al-Fawwaz, a Saudi businessman, and two Egyptians ("Appellants") should be extradited to the United States, which sought their extradition for, inter alia, conspiracy to murder, bomb and kill the U.S. citizens and diplomats in the U.S. embassy bombings in Nairobi, Kenya, and in Dar es Salam, Tanzania. The United States alleged that the Appellants conspired with Osama bin Laden and other Al Qaeda members to commit the acts they were accused of. The Appellants opposed the extradition arguing that an extradition crime must be "committed within the territory of the requesting state," while the alleged crimes had taken place outside the United States.

The House of Lords noted that a precondition for extradition was that the offence for which extradition may be ordered "should be within the criminal jurisdiction of both the requesting and the requested state," holding that the question in the current case was whether this extended to the situation where a state has an extraterritorial jurisdiction. Transposing the case's facts, the House of Lords opined that the charges against the Appellants must be considered as if they alleged a conspiracy entered into abroad to kill British citizens, which would constitute a criminal offence within the U.K.'s extraterritorial jurisdiction. The House of Lords held that the United States had an extraterritorial jurisdiction over the alleged crimes, and concluded that the extradition procedures would not be given proper effect if, in "the modern world of international terrorism and crime," the extradition could be avoided on the basis that the offence was committed extraterritorially.

Click here for the text of the decision.

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United States (U.S.) Court of Appeals for the Ninth Circuit: Papa v. United States, No. 00-55051 (February 25, 2002)

The U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit") ruled that the family of a deceased Brazilian national could proceed with their claims under the Alien Tort Claims Act ("ATCA"). Previously, the district court dismissed the ATCA claims as statutorily barred, and held that the ATCA created federal jurisdiction, but did not provide a cause of action. In early 1990s, Mr. Papa was killed by another detainee while in custody of the U.S. Immigration and Naturalization Service ("INS"), and his wife and six children subsequently filed claims alleging violations of federal, state and international law by the United States, the INS, and "100 John Does."

The Ninth Circuit noted that, since the ATCA did not specify any statute of limitations, courts need to apply the "limitations period provided by the jurisdiction in which they sit unless 'a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes' ...." The court decided that the Torture Victim Protection Act of 1991, which provides for a ten-year statute of limitations, was the closest "federal analogy" because both statutes help "carry out obligations of the United States under the [U.N.] Charter and other international agreements pertaining to the protection of human rights." As to the district court's dismissal for the lack of cause of action, the Ninth Circuit noted that plaintiffs must allege a violation of "specific, universal, and obligatory" international norms as part of an ATCA claim, but that they do not need to "cite" a portion of a specific treaty or another U.S. statute in order to establish a cause of action.

Click here for the text of the decision.

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United States (U.S.) Court of Criminal Appeals of Oklahoma: Valdez v. Oklahoma, Case No. PCD-2001-1011 (May 1, 2002)

The U.S. Court of Criminal Appeals of Oklahoma ("court") rejected Mr. Valdez's claim for violation of the notification requirement under Article 36 of the Vienna Convention on Consular Relations ("Convention"), but granted Mr. Valdez's application for the post-conviction relief on the basis of his medical problems that had not been known at the time of his conviction and sentencing. Mr. Valdez is a Mexican citizen who was sentenced to death following a murder conviction, and who had not been notified of his Convention right to communicate with his consulate at the time of his arrest and subsequent detention.

The court affirmed that the LaGrand case, which was decided by the International Court of Justice ("ICJ") in 2001, provided that it was not necessary to show that the Convention violation had a prejudicial effect on the jury's determination of guilt and sentence. The court held, however, that Mr. Valdez did not advance a "reasonable explanation" for his failure to assert the Convention violation earlier in the case. The court noted that the U.S. Supreme Court in Breard (see 40 ILM 1069 (2001)) "specifically rejected" contention that the doctrine of procedural default was not applicable to the Convention provisions. The court, therefore, concluded that for it to decide that the ICJ ruling overrules a binding decision of the U.S. Supreme Court and affords a judicial remedy to an individual for a violation of the Convention "would interfere with the nation's foreign affairs and run afoul of the U.S. Constitution."

As to Mr. Valdez's medical problems, the court held that these had not been discovered previously due to trial counsel's "inexperience and ineffectiveness." Consequently, the court concluded that it could not have confidence in the jury's sentencing determination, if the latter had not been presented with "very significant and important evidence bearing upon Petitioner's mental status and psyche at the time of the crime."

Document available on Lexis-Nexis.

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REPORTS AND OTHER DOCUMENTS

United Nations (U.N.) General Assembly (Emergency Special Session): Resolution ES-10/10 (Illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory), A/RES/ES-10/10 (May 14, 2002)

The U.N. General Assembly condemned the attacks by "the Israeli occupying forces" against the Palestinian people in several Palestinian cities, particularly in the Jenin refugee camp, and noted that it was gravely concerned at the reports of "grave breaches of international humanitarian law" committed thereto. The General Assembly condemned Israel's refusal to cooperate with the Secretary-General's fact-finding team to the Jenin refugee camp, "in disregard of the Security Council Resolution 1402 (2002)," noting that the Security Council was "yet to take" the necessary measures in response to this refusal. The Resolution also deplored the destruction of holy sites in the "Occupied Palestinian Territory," including mosques and churches, and demanded that Israel cease "all hindrances and obstacles" to the work of humanitarian organizations and the U.N. agencies in the region.

Document available in electronic format from the ILM office.

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United States: Response of the United States to Request for Precautionary Measures ? Detainees in Guantanamo Bay, Cuba (April 12, 2002)

The United States responded to the Inter-American Commission on Human Rights' ("Commission") decision, of March 12, 2002, on precautionary measures regarding the Guantanamo Bay detainees (see March 19, 2002 ILIB for the summary of the decision), claiming that the Commission acted without basis "in fact or law" in requesting precautionary measures in the case. The United States also argued that the Commission did not have the requisite jurisdictional competence to apply international humanitarian law. Alternatively, the United States claimed that the precautionary measures were neither necessary nor appropriate in the current case.

The United States contends that it is humanitarian law, and not human rights law, that governs the capture and detention of enemy combatants in armed conflict. The United States, therefore, argues that the Commission, "whose mission ... is to interpret human rights under the [American Declaration of the Rights and Duties of Man]," lacks the jurisdictional competence to interpret and apply humanitarian law. Alternatively, the United States pointed out that it is not a member to either American Convention on Human Rights or any other convention giving competence to the Commission to consider the application of international humanitarian law.

The United States argued that the precautionary measures were unnecessary, inter alia, because the legal status of the detainees was clear. It was the matter of public record, the United States suggested, that the Guantanamo detainees are not prisoners of war ("POWs") because they "do not meet the criteria applicable to lawful combatants." The United States further argued that, pursuant to international humanitarian law, states engaged in armed conflict have a right to capture and detain enemy combatants, "whether or not" they are POWs. Alternatively, the United States claimed that Guantanamo detainees are treated humanely and that they are not facing any "peril or irreparable harm," which would have been a precondition for imposition of provisional measures pursuant to Article 19(c) of the Commission's Statute.

Document was provided to the ILM Office in print form.

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BRIEFLY NOTED

On May 28, 2002, the Democratic Republic of the Congo (DRC) initiated proceedings against Rwanda before the International Court of Justice, accusing Rwanda of the armed aggression that resulted in "massive, serious and flagrant violations of human rights and of international humanitarian law." The DRC also requested the indication of provisional measures, pending the decision on the merits. The hearings on provisional measures are scheduled for June 13, 2002. Click here for the related press release.

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Erratum - We are very sorry to report a mistake in the summary of the Eritrea-Ethiopia Boundary Commission's Decision on Delimitation, which was published in the previous issue of the Brief (May 22, 2002). In the second sentence of the second paragraph of the summary, the second half of the sentence should read "... common boundary of Ethiopia and Eritrea, which was a colony at the time" instead of "... common boundary of Ethiopia and Eritrea, which were colonies at the time." The corrected version of the Brief is available on our website. We regret any inconvenience that this mistake may have caused.

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International Law In Brief (ILIB) - Copyright 2002 - The American Society of International Law (ASIL)
Editors: Branislav A. Maric, Scott Smith