International Law In Brief
Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
August 25, 2005
©2005 American Society of International Law
(Educational copying is permitted with due acknowledgment)
| BRIEFLY NOTED | |
| | United Nations Convention against Corruption to enter into force |
| | October 19th: Methanex Corporation v. U.S.: The Aftermath |
JUDICIAL AND RELATED DOCUMENTS
Supreme Court of Israel: Mara?abe v. The Prime Minister of Israel (September 15, 2005)
Click here for a link containing the Israeli Supreme Court decisions
The Supreme Court of Israel (?the Court?), sitting as a High Court of Justice, unanimously issued an order absolute, which requires the state to reconsider ?the various alternatives for the separation fence route at Alfei Menashe, while examining security alternatives which injure the fabric of life of the residents of the villages of the enclave to a lesser extent.?
This judgment concerns the legality of the wall or barrier* in the area of Alfei Menashe, an Israeli settlement in the West Bank, located 4 km from the Green Line. According to Israel, the separation fence, which surrounds five Palestinian villages, was built to prevent terrorist infiltration into the State of Israel. The villagers received permanent resident cards, which allow them to enter the enclave. Palestinians who are not residents of the villages have to obtain permits in order to enter the area. The petitioners, who are residents of the villages within the enclave, challenge the legality of the wall, arguing that the military commander is not authorized to order the construction of such a barrier. The petitioners base their claim on the Advisory Opinion: Legal Consequences Of The Construction Of A Wall In The Occupied Palestinian Territory (?the Advisory Opinion?) rendered by the International Court of Justice (?the ICJ?). The petitioners also challenged the validity of the wall under The Beit Sourik Case rendered by the Supreme Court of Israel, because it does not meet the proportionality test established in that case. The Respondents contend that ?the military commander is authorized to erect a separation fence, as ruled in The Beit Sourik Case,? and that the ICJ Advisory Opinion is not of relevance because it was decided on facts other than those established in The Beit Sourik Case.
The Court reiterated its findings in The Beit Sourik Case, in which it held that a ?military commander is not authorized to order the construction of the separation fence if his reasons are political.? The Court further stated that in order to erect such a wall, taking possession of land belonging to Palestinians is necessary. According to the Regulations Concerning the Laws and Customs of War on Land (?the Hague Regulations?) and the Geneva (IV) Convention Relative to the Protection of Civilian Persons in Time of War 1949, the taking of possession must be for ?needs of the army of occupation?, and is only allowed if it is ?absolutely necessary by military operation.? The Court concluded that the military commander?s authority entails actions taken in order to ensure public order and security, and also comprises actions aimed at protection of Israeli settlers.
In its Advisory Opinion, the ICJ held that the right to self-defense under Article 51 of the Charter of the United Nations did not have any relevance to the case, because the attacks did not derive from another State. The ICJ also noted that the attacks originated within the territory occupied by Israel, where it exercises control. The Court found the ICJ ruling ?hard to come to terms with,? and stated that it did not need to ?thoroughly examine? the issue, as it held that ?regulation 43 of the Hague Regulations authorizes the military commander to take all necessary action to preserve security.?
The Court then compared the Advisory Opinion to The Beit Sourik Case, and concluded that the ICJ, too, had held that the ?harm to the Palestinian residents would not violate international law if the harm was caused as a result of military necessity, national security requirements, or public order.? According to the Court, the difference in result ?stems from the difference in the factual basis laid before the court. The security-military necessity is mentioned only most minimally in the sources upon which the ICJ based its opinion.? Moreover, the Court stated that the ICJ considered the ?entire route? of the wall, whereas The Beit Sourik decision only pertained to a part of it.
The Court then came to the question of what effect the Advisory Opinion would have ?on the future approach of the Supreme Court on the question of the legality of the separation fence according to international law as determined in The Beit Sourik Case?? It answered this question as follows: [T]he Supreme Court of Israel shall give the full appropriate weight to the norms of international law, as developed and interpreted by the ICJ in its Advisory Opinion. However, the ICJ's conclusion, based upon a factual basis different than the one before us, is not res judicata, and does not obligate the Supreme Court of Israel to rule that each and every segment of the fence violates international law. The Israeli Court shall continue to examine each of the segments of the fence, as they are brought for its decision and according to its customary model of proceedings; it shall ask itself, regarding each and every segment, whether it represents a proportional balance between the security-military need and the rights of the local population.?
With respect to the existing route of the wall around Alfei Menashe, the Court found that the military commander had the authority to erect the wall, since the building of the wall was merely motivated by a ?security consideration?, and not by political reasons. The petitioners? request that the wall be built on the Green Line was rejected due to the security-military considerations laid out by the Respondents. The Court stated: ?[A]ny route of the fence must take into account the need to provide security for the?residents of Alfei Menashe.?
The Court then had to decide whether the military commander had exercised his authority proportionately. With respect to the existing route of the wall the Court determined that ?the details of an alternative route have not been examined, in order to ensure security with a lesser injury to the residents of the village.? For this reason, the route of the fence did not meet the proportionality test, and the Respondent must reconsider the existing route.
Click here for the ILIB on The Beit Sourik Case.
Click here for the ILIB on the Advisory Opinion.
*The barrier in question has been described as a ?wall? by the U.N. General Assembly and International Court of Justice, and as a ?separation fence? by the Israeli courts.
United States Court of Appeals for the Fourth Circuit: Jose Padilla v. C.T. Hanft, et al. (September 9, 2005)
Click here for the decision.
The Court reversed the judgment of the district court, which held that the President lacks the authority to detain Padilla and that Padilla should therefore be either criminally charged or released.
Jose Padilla, a US citizen, was arrested in May 2002 at the Chicago airport when he was returning from Pakistan. After Padilla left the battlefield in Afghanistan, where he had been fighting against the US forces, he was recruited by al Qaeda members in Pakistan in order to come to the United States and commit terrorist attacks within the country. Subsequent to the President?s determination of Padilla as an ?enemy combatant?, Padilla was taken into military custody, where he has remained since.
Padilla filed this petition for a writ of habeas corpus, and the district court found that the President lacks the authority to detain Padilla, and that his detention violates the Constitution and laws of the United States. The district court held that Padilla should either be criminally charged or released. The issue before the Court was ?whether the President of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with al Qaeda, an entity with which the United States is at war; who took up arms on behalf of that enemy and against our country in a foreign combat zone of that war; and who thereafter traveled to the United States for the avowed purpose of further prosecuting that war on American soil, against American citizens and targets.? The Court affirmed this authority of the President pursuant to the Congress? Authorization for Use of Military Force Joint Resolution (?the AUMF?), which states ?[t]hat the President is authorized to use all necessary and appropriate force?in order to prevent any future acts of international terrorism.? The Court cited Hamdi v. Rumsfeld, in which the Supreme Court (?the SC?) upheld the authority of the Executive to militarily detain citizens who qualify as ?enemy combatants?. The Court concluded that, like Hamdi, Padilla was an enemy combatant, and that his military detention was therefore justified under the AUMF. Padilla claimed that his situation was different from Hamdi?s in that he was seized on US soil, and that he therefore did not fall within the narrow scope of the SC?s opinion. The Court mentioned that the SC decision did not refer to the site of the seizure and that Hamdi v. Rumsfeld permitted the detention of a person who was engaged in ?supporting forces hostile to the United States? and who was ?engaged in armed conflict against the United States?. Moreover, the Court held, that the distinction by way of locus of seizure was not compatible with the reasoning of the Court, which allowed the military detention because ?detention to prevent a combatant?s return to the battlefield is a fundamental incident of waging war.? The Court found that this necessity was the same in Padilla?s therefore rejected the argument. Padilla further asserted that his military detention is not ?necessary and appropriate?, because he is ?amenable to criminal prosecution.? The Court again noted that in this respect, his situation did not differ from Hamdi?s, and that if ?the mere availability of criminal prosecution rendered detention unnecessary within the meaning of the AUMF, then Hamdi?s detention would have been unnecessary and therefore unauthorized.? Moreover, the Court was convinced ?that the availability of criminal process cannot be determinative of the power to detain, if for no other reason than that criminal prosecution may well not achieve the very purpose for which detention is authorized in the first place - - the prevention of return to the field of the battle.?
Permanent Court of Arbitration (PCA): Case Concerning Land Reclamation By Singapore in and around the Straits of Johor (Malaysia v. Singapore) (September 1, 2005)
Click here for the award
The tribunal held that it had jurisdiction to render the award. It also acceded to the joint request by the parties to deliver a final, binding award in accordance with the terms set forth in the parties? settlement agreement, which is annexed to the award.
On July 4, 2003, Malaysia transmitted to Singapore a notification for the institution of arbitral proceeding as set forth in Annex VII to the United Nations Convention on the Law of the Sea (UNCLOS) for a dispute concerning land reclamation by Singapore in and around the Straits of Johor, and a request for provisional measures pending the constitution of an arbitral tribunal in accordance with Annex VII to UNCLOS. On September 5, 2003, Malaysia transmitted to the International Tribunal for the Law of the Sea (ITLOS) a request for provisional measures in accordance with article 290 of UNCLOS. Malaysia appointed Dr. Kamal Hossein and Singapore appointed Professor Bernard H. Oxman to sit as judges ad hoc in this instance at ITLOS, and they were admitted to sit as ad hoc judges on September 24, 2003. This ad hoc tribunal prescribed provisional measures which provided, inter alia, that Malaysia and Singapore establish promptly a group of independent experts to determine the effects of Singapore?s land reclamation and to propose, as appropriate, measures to deal with any adverse effects of such land reclamation and to avoid any action incompatible with the effective implementation of this order. The provisional measures also directed Singapore not to conduct its land reclamation in ways that could cause irreparable prejudice to Malaysia?s rights or serious harm to the marine environment.
On October 10, 2003, the President of ITLOS appointed three additional members to serve on an ad hoc arbitral tribunal to resolve the dispute in accordance with UNCLOS: Mr. Christopher Pinto (President), Professor Ivan Shearer and Sir Arthur Watts, KCMG QC. This tribunal designated the Permanent Court of Arbitration as its registry for the arbitration. On April 26, 2005, the parties signed a settlement agreement. The settlement agreement is in full and definitive settlement of the dispute in regard to the land reclamation and related issues. The parties agreed that the maritime boundaries issues would be resolved through amicable negotiations, without prejudice to the existing rights of the parties under international law to resort to dispute settlement. The settlement agreement provides, inter alia, that Singapore shall modify the final design of the shoreline of its land reclamation in a certain area at Pulau Tekong, that Singapore shall carry out maintenance drudging as is necessary to ensure a limit on the depth of a certain dredged area, and that Singapore shall pay a lump sum of 374,400 Malaysian Ringgit to compensate Malaysian fishermen for losses as a result of the reclamation works.
See EISIL for more resources on dispute settlement concerning the Law of the Sea.
United States Court of Appeals for the Second Circuit: Alvero Belgium Insurance (formerly Royal and Sun Alliance Insurance) v. American Airlines, Inc. et al. (September 7, 2005)
Decision available on Lexis.
The U.S. Court of Appeals for the Second Circuit (?the Court?) held that the United States did not consent to be bound by the 1955 Hague Protocol by virtue of its ratification of Montreal Protocol No. 4, and it reversed and remanded the decision of the district court.
The appeal arose in the context of an attempt by a shipper to recover from an air carrier for loss of goods transported by international air freight. At issue before the Court was which version of the treaty governing air transportation was in effect between the United States and Belgium in March 9, 2001, the date on which the air carrier?s waybill in this case was issued, and specifically, whether the United States was a party to The Hague Protocol of 1955 that amended the Warsaw Convention of 1929.
On March 9, 2001, American Airlines, Inc. (?AA? or ?the defendant?) issued an air waybill to ASCO Industries (?Asco?) for the carriage of five crates from Brussels, Belgium to Tulsa, Oklahoma, USA, however only one out of the five crates arrived. In August 2002, Asco?s subrogated underwriter, Royal & Sun Alliance Insurance (?the plaintiff?), brought an action for damages for the loss of the remaining crates. In district court, the defendant claimed that its liability for the lost crates was limited to $20 per kilogram by Article 22(2) of the Original Warsaw Convention. The plaintiff contended that the defendant could not avail itself of the limitation on liability set forth in Article 22(2) of the Original Warsaw Convention because the defendant had failed to comply with the requirements of Articles 9 and 8(c) of the Convention, both of which had to be fulfilled in order to trigger Article 22(2)?s limitation of liability. Article 9 provides that ?if the air waybill does not contain all the particulars set out in article 8(a) to (i)?, the carrier shall not be entitled to avail itself of the provisions of this convention which exclude or limit his liability.? Article 8(c) requires that ?the air waybill shall contain ? the agreed stopping places.?
The defendant argued that in 2001, the United States and Belgium both adhered to the amended version of the Warsaw Convention adopted by The Hague Protocol of 1955 rather than the original Warsaw Convention, and that The Hague Protocol deleted most of the air consignment note requirements of the original Warsaw Convention.
The Court noted that two factors are to be considered in determining whether an international agreement constitutes binding treaty law in the United States: (1) whether the United States has consented to be bound by that agreement, and (2) whether that agreement, by its terms, has entered into force as of the date in question. The Court referred to its earlier decision in Flores v. Southern Peru Copper Corp. in which it recognized that a ?State only becomes bound by-that is, becomes a party to a treaty when it ratifies the treaty.? It also noted that Article 28 of the Vienna Convention on the Law of Treaties confirms that, ?unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.?
The Court concluded that although the United States signed The Hague Protocol in 1956, as of March 9, 2001, the date on which the defendant issued the air waybill to Asco, the Senate had not given its advice and consent to its ratification. The Court noted that following the events related to this lawsuit, the Department of State acknowledged the difficulty in determining whether the United States, by reason of its adherence to Montreal Protocol No. 4, had also become a party to The Hague Protocol. Later, U.S. President George W. Bush re-transmitted The Hague Protocol to the Senate for advice and consent. The Senate approved The Hague Protocol on July 31, 2003, and it was ratified by President Bush effective December 14, 2003.
For more resources concerning air transport, see EISIL.
United Nations (U.N.) Convention against Corruption to enter into force
The United Nations Convention against Corruption will enter into force on December 14, 2005, ninety days after the 30th ratification. It seems however noteworthy, that this global Convention has only been ratified by two EU member countries and has not been ratified by the United States.
For the January, 2004 International Law in Brief on the contents of the Convention, click here.
Click here for the text of the Convention.
Click here to see the signatory states.
Methanex Corporation v. U.S.: The Aftermath
Wednesday, October 19 2005 12:30 pm - 2:00 pm
Washington, DC - United States
Co-Sponsored by the District of Columbia Bar International Law Section and ASIL
To learn more and register, click here
In a long-awaited ruling, a three-member arbitral tribunal under NAFTA Chapter 11 has rejected a controversial claim by the Canadian chemical company Methanex Corp. against the United States Government, awarding the government $4 million in fees. Methanex had sought nearly $1 billion in damages allegedly arising out of California?s ban on the gasoline additive ?MTBE,? a source of groundwater contamination. This case was closely watched by NGOs concerned with the use of NAFTA Chapter 11 to challenge environmental regulations. Was the case correctly decided? Will it discourage similar claims in the future? What kind of precedent has been set by the panel?s rulings on expropriation, national treatment, jurisdiction, admissibility of evidence and amicus participation? Please join us along with our co-sponsors, the American Society of International Law, for this informative discussion. Lead counsel for both parties, as well as the leader of an NGO (and amicus curiae) will dissect the decision and explore its ramifications for the future of investor-state arbitration.
Speakers:
Andrea J. Menaker, Chief, NAFTA Arbitration Division, Office of International Claims and Investment Disputes, Office of the Legal Adviser, U.S. Department of State
Christopher F. Dugan, Partner, Paul, Hastings, Janofsky & Walker LLP
Daniel B. Magraw, Jr, President, Center for International Environmental Law
International Law In Brief (ILIB) - Copyright 2005 - The American Society of International Law (ASIL)
Authors: Elena Papangelopoulou, Ruth Teitelbaum
ILIB is a free-of-charge electronic resource. To sign up for ILIB or ASIL Insights, click here.
To comment on this publication, send an e-mail message to Ruth Teitelbaum, ILM Managing Editor at rteitelbaum@asil.org