International Law In Brief
Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
February 15 , 2006
©2006 American Society of International Law
(Educational copying is permitted with due acknowledgment)
JUDICIAL AND SIMILAR PROCEEDINGS
International Court of Justice: Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda) Jurisdiction and Admissibility (February 3, 2006)
Click here for the decision.
The International Court of Justice (the "Court") held that it had no jurisdiction to entertain the case brought by the Democratic Republic of the Congo (the "DRC") against the Republic of Rwanda ("Rwanda").
The DRC requested the Court to declare that Rwanda had, inter alia, violated the Charter of the United Nations (Article 2, paragraphs 3 and 4), Articles 3 and 4 of the Charter of the Organization of African Unity; the International Bill of Human Rights; the Convention on the Elimination of Discrimination against Women; the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment; and the Convention on the Prevention and Punishment of the Crime of Genocide. The DRC further asked the Court to declare and adjudge that, "by killing, massacring, raping, throat-cutting, and crucifying, Rwanda is guilty of genocide against more than 3,500,000 Congolese" and that it "violated the sacred right to life provided for" in several "international legal instruments."
Rwanda asked the Court to declare the application inadmissible and to reject the case for lack of jurisdiction.
The DRC tried to establish jurisdiction by invoking several compromissory clauses of the above mentioned conventions, as well as Article 66 of the Vienna Convention on the Law of Treaties, which in its view "established the jurisdiction of the Court to settle disputes arising from the violation of peremptory norms (jus cogens) in the area of human rights, as those norms were reflected in a number of international instruments."
With regard to jurisdiction under the compromissory clause of the Genocide Convention, the DRC argued that the reservations submitted by Rwanda had been withdrawn by virtue of a domestic law and a statement of the Rwandan Minister of Justice at the Sixty-first Session of the United Nations Commission on Human Rights . The Court reiterated that a withdrawal of a reservation by a party to a multilateral treaty "takes effect in relation to the other contracting States only when they have received notification thereof." The Court then found that Rwanda had not notified the other states of the withdrawal of its reservation and that the publication of the domestic law was not sufficient to amount to such a notification. The statement of the Minister of Justice was also viewed as insufficient for such withdrawal.
The DRC then argued that Rwanda's initial reservation to the Genocide Convention was invalid, because the Genocide Convention had "the force of general law with respect to all States, including Rwanda, inasmuch as it contains norms of jus cogens." In this regard, the Court affirmed that the principles underlying the Convention are "principles which are recognized by civilized nations as binding on States, even without any conventional obligation" and that it therefore followed that "the rights and obligations enshrined by the Convention are rights and obligations erga omnes." However, the Court also reiterated that reservations are not prohibited under the Genocide Convention and that "the fact that a dispute relates to compliance with a norm having such a character" cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute."
Jurisdiction could therefore not be based on the Genocide Convention, and jurisdiction under the Convention on Racial Discrimination was also rejected on similar grounds.
As to jurisdiction under the Convention on Discrimination against Women, the Court found that the prerequisites of the compromissory clause calling for prior negotiations and an attempt to arbitrate had not been met.
Finally, the DRC's attempt to establish jurisdiction under Article 66 of the Vienna Convention on the Law of Treaties was rejected, inter alia, because the Conventions on Genocide and Racial Discrimination were concluded before the entry into force of the Vienna Convention on the Law of Treaties.
Eritrea-Ethiopia Claims Commission: Partial Award, Diplomatic Claims, Ethiopia's Claim 8 (December 19, 2005)
Click here for the award.
This claim centered on arguments about the application of the Vienna Convention on Diplomatic Relations when diplomatic ties have continued during a time of armed conflict. The Commission noted that this problem was uncommon because states typically sever diplomatic ties during times of conflict rather than attempting to maintain diplomatic relations as in the case of Eritrea and Ethiopia.
The Commission found that it lacked jurisdiction over several of the claims advanced by Ethiopia because they were not filed by December 12, 2001 as required by Article 5 of the Agreement between Ethiopia and Eritrea. The Commission also dismissed several claims because the events at the center of the claims occurred after December 2000 and as such were outside of the jurisdiction of the Commission.
A remaining claim centered on the arrest and detention of the Ethiopian Charge d'Affairs in September of 1998 and October of 1999. Eritrea was found to have violated Article 29 of the Vienna Convention on Diplomatic Relations for this incident. Another remaining claim was Eritrea's retention of a box of Ethiopian embassy documents, which included blank passports. Eritrea kept the box for five years prompting the Commission to find a violation of Articles 24 and 29 of the Vienna Convention on Diplomatic Relations.
Members of the Claims Commission:
Hans van Houtte, President
George H. Aldrich
John R. Crook
James C. N. Paul
Lucy Reed
Eritrea-Ethiopia Claims Commission: Pensions, Eritrea's Claims 15, 19, and 23 (December 19, 2005)
Click here for the award.
The Commission rejected Eritrea's claim 19 in its entirety, and claims 15, and 23 as they related to pensions.
After Eritrea gained independence in 1993, Ethiopia and Eritrea negotiated an agreement relating to pensions of former Ethiopian state employees, military personnel, and employees of nationalized state enterprises now residing in Eritrea. This agreement, the "Protocol Agreement on Labour, Social Affairs and Pensions" (the "Agreement"), which according to the Commission was intended to create international legal obligations, stipulated that the transitional government of Ethiopia would pay the eligible pensioners effectively and efficiently in Eritrea. The agreement was terminable by a year's notice by any party.
After hostilities broke out in 1998, Ethiopia ceased making payments under the agreement. Eritrea requested a lump sum payment "equal to the pension payments it had previously made to former Ethiopian public and state enterprise employees." In addition, Eritrea requested that Ethiopia pay sums covering future payments to eligible persons.
Eritrea based its claims on the bilateral agreement between itself and Ethiopia, and also contended that Ethiopia's actions violated international guarantees of property rights. Eritrea also asserted that customary international law regulating state succession obliged Ethiopia to "account to Eritrea in some appropriate way for past pension contributions related to persons now in Eritrea."
Ethiopia denied any continuing legal obligation. Ethiopia asserted that the obligations under the 1993 Agreement were terminated after the international armed conflict broke out in 1998, because international law allowed "a belligerent to terminate financial dealings with an opposing belligerent," and did not "require it to transfer funds to its enemy, even if this might have been required under pre-war agreements."
The Commission stated that the impact of the conflict on Ethiopia's international obligations implicated "two separate but related strands of customary international law." The first issue was the "nature and extent of belligerents" rights under customary international law to regulate or prohibit financial transactions with an opposing power during an international armed conflict." To this end, the Commission noted that there has been "extensive modern practice involving belligerents" assertions and exercises of expansive rights to regulate or prohibit economic dealings with opposing powers," and concluded that customary international law does not prevent belligerents from barring pension-related payments to an opposing belligerent. The Commission then turned to the second issue, which was the effect of the armed conflict on Ethiopia's treaty obligations under the Agreement. In this regard, the Commission held that the obligations between the parties were at least suspended for the time of the hostilities. It stated that it did not seem plausible that Ethiopia would have intended to make cash payments to an opposing belligerent. Noting its temporal jurisdiction, the Commission held that it did not need to decide whether the obligations were only suspended, or also terminated.
With respect to the takings claims, the Commission stated that no sufficient entitlements under Ethiopian law were established in order to justify a claim for the taking of property. Eritrea's claims based on customary international law relating to the law on state succession were also dismissed.
Members of the Claims Commission:
Hans van Houtte, President
George H. Aldrich
John R. Crook
James C. N. Paul
Lucy Reed
U.S. Court of Appeals for the Ninth Circuit: Yahoo! Inc. v. La Ligue Contre le Racisme et L'Antisemitisme and L?'Union des Etudiants Juifs de France (January 12, 2006)
The decision is available on Lexis.
An en banc panel of the 9th Circuit U.S. Court of Appeals reversed with directions to dismiss a District Court decision finding that a French Court's orders were not enforceable against a U.S. company.
Two French entities, La Ligue Contre le Racisme et L'Antisemitisme and L'Union des Etudiants Juifs de France ("LICRA" and "UEJF"), filed suit in the French Courts against Yahoo! and Yahoo! France for the sale of Nazi objects on Yahoo!'s websites, in violation of French law. The French Court issued an interim order requiring Yahoo! and Yahoo! France to remove these objects from the websites or alternatively to limit access of French citizens to the offensive material. The French order assessed penalties and damages for the display of the Nazi material on the websites. After the order was issued, Yahoo! removed some of the disputed content from its websites; however, Yahoo! claimed that it did so for its own reasons and not as a result of the French Court orders. Yahoo! subsequently filed suit in U.S. District Court seeking a declaratory judgment that the French judgments were unenforceable.
The en banc panel of the Appellate Court held that the district court had properly exercised personal jurisdiction over LICRA and UEJF because the two French entities had sufficient minimum contacts with California as a result of three actions on the part of LICRA, UEJF and the French government. These actions included: sending a cease and desist letter requesting the removal of the content to Yahoo!'s headquarters in California, serving process on Yahoo! in California and because the French Court's interim orders directed Yahoo! to act in California to remove the content.
Despite the presence of personal jurisdiction, the Court held that Yahoo!'s case was not ripe because the French Court stated that Yahoo! complied with the spirit of the Court orders and thus no further efforts would be undertaken to enforce the decision. Further, the Appellate Court declined to evaluate whether or not the French decision chilled Yahoo!'s First Amendment freedom of speech rights, stating that to do so would have the effect of extraterritorially applying the U.S. Constitution.
Federal Constitutional Court of Germany: Execution of El Motassadeq's arrest warrant to be reconsidered by the Higher Regional Court (February 1, 2006)
Click here for the Court's decision (in German).
The Federal Constitutional Court of Germany (the "Court") remanded the case of El Motassadeq regarding the immediate execution of the arrest warrant to the Higher Regional Court.
In February 2003, the Higher Regional Court of Hamburg ("Higher Regional Court") convicted El Motassadeq of aiding and abetting the murder of over 3,000 people, the victims of the September 11th 2001 attacks, and of "membership in a terrorist organization," (Al Quaeda) and sentenced El Motassadeq to 15 years" imprisonment. After the Federal Court of Justice struck down that judgment and remanded the case, the Higher Regional Court, on several conditions, halted the execution of the arrest warrant in April 2004 and released El Motassadeq from custody. In August 2005, the Higher Regional Court convicted El Motassadeq of membership in a terrorist organization only and accordingly reduced the sentence to seven years of imprisonment, while executing the arrest warrant immediately. El Motassadeq, who has appealed the judgment, also challenged the immediate execution of the warrant. The Federal Constitutional Court held that the reinstatement of the arrest warrant did not stand legal examination under the German Constitution, as it violated the accused's right to liberty and due process. The Court stipulated that the reinstatement of the arrest warrant during a pending appeal was not permissible, because the sentence pronounced by the Higher Regional Court in August 2005 did not significantly deviate from the expectation of the sentence at the time the warrant was suspended. For this reason, and because El Motassadeq abided by all the conditions imposed, the Court remanded the case, ordering the execution of the arrest warrant to be reconsidered by the Higher Regional Court according to the constitutional standards defined by the Court.
International Law In Brief (ILIB) - Copyright 2006 - The American Society of International Law (ASIL)
Authors: Teresa Bailey, Elena Papangelopoulou
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