International Law In BriefDevelopments in international law, prepared by the ©2006 American Society of International Law
JUDICIAL AND SIMILAR PROCEEDINGS International Court of Justice: Pulp Mills on the River Uruguay (Argentina v. Uruguay) (Rejection of request for provisional measures) (July 13, 2006)
The document is available on the Court's website.
The International Court of Justice (the "Court") rejected Argentina's request for provisional measures. Argentina's case against Uruguay relates to the authorization and construction of two pulp mills on the River Uruguay (the "River") which borders both states. A treaty signed by the two countries in 1975, which provides for disputes under it to be resolved by the Court, establishes a joint regime for the use of the River.
Argentina requested the Court to issue provisional measures in order to have the authorization and construction of the mills suspended. Second Argentina sought to compel Uruguay to cooperate with it to protect the aquatic environment around the River. Argentina contended that Uruguay had acted unilaterally in granting authorization for the construction of the mills in violation of the treaty.
In terms of the construction of the mills, the Court noted that Argentina did not submit evidence proving that irreparable damage would be caused by the construction of the mills. Subsequent to Uruguay's offer to have the facilities monitored jointly, the Court also rejected the second part of the request.
The decision was issued by 14 votes to 1.
Court of Justice of the European Communities: European Parliament v. Council of the European Union and European Parliament v. Commission of the European Communities (May 30, 2006)
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The European Court of Justice (the"Court") annulled the Council decision relating to the conclusion of an agreement between the European Community and the United States of America on the processing and transfer of personal data, and also annulled the Commission decision on the adequate protection of those data.
After the terrorist attacks of September 11, 2001, the United States passed legislation according to which air carriers operating flights to, from or across United States territory have to provide the United States authorities with electronic access to the data contained in their reservation and departure control systems. Subsequent to negotiations of the Commission with the United States, the Commission adopted a decision according to which the United States Bureau of Customs and Border Protection (USCBP) ensured adequate data protection. The Council then adopted a decision approving the conclusion of an agreement between the European Community and the United States on the processing and transfer of data by air carriers to the USCBP. The agreement with the United States was signed on May 28, 2004.
The European Parliament, submitting that the decision of the Council was ultra vires, challenged that decision before the Court. The European Parliament also challenged the decision in which the Commission decided on the adequacy of protection, because there was no legal basis for the decision approving the conclusion of the agreement.
The Court held that the transfer of data related to public security, which was not covered by the Directive 95/46 EC. Processing of personal data in the course of an activity that falls outside the scope of Community law and processing operations concerning public security, defense, and State security are not covered by that Directive. The Court concluded that the Council decision concerned data processing relating to safeguarding public security and law-enforcement and therefore annulled the decision.
For the same reasons, the Court annulled the Council decision, which approved the conclusion of the agreement. The agreement provides that it can be terminated by either party through notification, which will take effect after a 90 day period.
Court of First Instance of the European Communities: Chafiq Ayadi v. Council of the European Union Faraj Hassan v. Council of the European Union and Commission of the European Communities (July 12, 2006)
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Before and after the attacks of September 11, 2001, the United Nations Security Council adopted a number of resolutions which called upon all member states to freeze funds belonging to persons associated with the Taliban, Usama bin Laden and the Al-Qaeda network and also established a Sanctions Committee to identify the persons concerned. The Security Council resolutions were put into effect within the Community by Council regulations which ordered the funds of the respective individuals to be frozen. A derogation for humanitarian reasons can be granted by the States, if the Sanctions Committee consents. A request to be removed from the list can only be made to the Sanctions Committee by the State of residence or nationality of the affected individual. Individuals are not entitled to be heard in person by the Sanctions Committee.
The applicants were put on the list of the Community and are seeking annulment of the regulation in so far as they concern them.
In support of their claim, the applicants alleged that the Council was not competent to adopt the contested regulation and also argued a breach of the fundamental principles of subsidiarity, proportionality and respect for human rights and finally also alleged an infringement of an essential procedural requirement.
Referring to its judgment in Kadi and Yusuf, which also dealt with these issues, the Court confirmed that the European Community has competence to order the freezing of individual's funds. The Court then added that as the Sanctions Committee interpreted the Security Council resolutions "as conferring on interested persons the right to present a request for review of their case to the government of the country in which they reside or of which they are nationals". the contested regulation, which gives effect to those resolutions within the Community, must be interpreted and applied in the same way. That right must accordingly be classed as a right guaranteed not only by those Guidelines (hyperlink added) but also by the Community legal order." In examining such a request and in the context of the consultations between States and other actions, Member States are bound to observe the fundamental rights of the persons concerned. They must "ensure, so far as is possible, that interested persons are put in a position to put their point of view before the competent national authorities when they present a request for their case to be reviewed. Furthermore, the margin of assessment that those authorities enjoy in this respect must be exercised in such a way as to take due account of the difficulties that the persons concerned may encounter in ensuring the effective protection of their rights, having regard to the specific context and nature of the measures affecting them." Furthermore, the Court explained that "Member States would not be justified in refusing to initiate the review procedure provided for by the Guidelines solely because the persons concerned could not provide precise and relevant information in support of their request, owing to their having been unable to ascertain the precise reasons for which they were included in the list in question or the evidence supporting those reasons, on account of the confidential nature of those reasons or that evidence."
In view of the fact that individuals are not entitled to be heard in person by the Sanctions Committee, and as a result, are dependent on the diplomatic protection afforded by States to their nationals, the Member States "are required to act promptly to ensure that such persons' cases are presented without delay and fairly and impartially to the Committee, with a view to their re-examination, if that appears to be justified in the light of the relevant information supplied."
Finally, the Court added that an affected individual can bring an action "for judicial review based on the domestic law of the State of the petitioned government, indeed even relying directly on the contested regulation and the relevant resolutions of the Security Council " against any wrongful refusal by the competent national authority to submit their cases to the Sanctions Committee for re-examination and, more generally, against any infringement by that national authority of the right of the persons involved to request the review of their case.?
The Court therefore held that the applicants had to make use of the judicial remedy of the national courts and therefore dismissed the actions.
European Court of Human Rights (ECHR) (Grand Chamber): Jalloh v. Germany (July 11, 2006)
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The Grand Chamber of the European Court of Human Rights held by ten votes to seven that there had been a violation of Article 3 (inhuman and degrading treatment) of the European Convention on Human Rights and by eleven votes to six that there had been a violation of Article 6 (right to a fair trial).
Abu Bakah Jalloh (the "applicant"), a national of Sierra Leone, was arrested in Germany when police officers observed him taking two tiny plastic bags out of his mouth in order to exchange them for money. During his arrest, the applicant swallowed another tiny plastic bag. Pursuant to the prosecutor's order, the applicant was administered an emetic which would cause him to regurgitate the plastic bag. As the applicant refused to take the drug, it was forcibly induced through the nose. As a result, the applicant regurgitated the tiny bag, which contained 0.2182 grams of cocaine. He was convicted of drug trafficking and sentenced to a one year suspended prison sentence. On appeal, his sentence was diminished to six months. Otherwise his appeal against the conviction was unsuccessful.
The applicant submitted that the administration of the substances that induced the vomiting as well as the evidence used against him in the court proceedings violated his rights under the Convention, Articles 3, 6, and 8 in particular.
The Court reiterated that, although not prohibited, forcible medical interventions had to pass a strict scrutiny. The Court found that the German authorities had subjected the applicant to a grave interference with his physical and mental integrity against his will. They had forced him to regurgitate in order to retrieve evidence they could equally have obtained by less intrusive methods. Also, the measure had been "liable to arouse in the applicant feelings of fear, anguish and inferiority that were capable of humiliating and debasing him." Moreover, the Court found that "the measure was implemented in a way which had caused the applicant both physical pain and mental suffering." The applicant had therefore been subjected to inhuman and degrading treatment contrary to Article 3.
The Court then considered whether the applicant's right to a fair trial had also been violated by the use of the evidence in trial obtained in violation of Article 3 of the Convention. According to the Court, the issue of whether admission of evidence obtained in violation of Article 3 but short of torture would also automatically result in a violation of Article 3 could be left open in this case, because "the public interest in securing the applicant's conviction cannot be considered to have been of such weight as to warrant allowing that evidence to be used at the trial." In that respect, the Court noted that the "measure targeted a street dealer selling drugs on a relatively small scale who was finally given a six months" suspended prison sentence and probation." In view of the above, the Court concluded that the applicant's rights under Article 6 of the Convention were violated. Furthermore, the Court found that the principle against self-incrimination was also violated.
Supreme Court of the United States: Moises Sanchez-Llamas, Petitioner v. Oregon; Mario A. Bustillo, Petitioner V. Gene M. Johnson, Director, Virginia (June 28, 2006)
The document is available on Lexis.
The Supreme Court of the United States of America (the "Court") held that the Vienna Convention on Consular Relations (the "Convention") did not require the evidence obtained against the petitioners to be suppressed subsequent to the failure of the state officials to notify the consular authorities of the petitioners during interrogation.
Sanchez-Llamas, a Mexican national, was arrested after an exchange of gunfire with the police. During the interrogation, he made incriminating statements. Bustillo, a Honduran national, was arrested and charged with murder. In both cases the police did not inform the consular authorities of the detention. Both petitioners were sentenced to prison.
The Court held that, even assuming that the Convention created judicially enforceable rights (an issue it did not decide), the suppression of evidence is not a proper remedy for a violation.
In March 2005 the United States withdrew from the Optional Protocol concerning the Compulsory Settlement of Disputes, which provides for disputes to be settled by the International Court of Justice.
See the related ASIL Insight on this case for a more detailed analysis.
RESOLUTIONS, DECLARATIONS, AND DOCUMENTS
World Health Assembly: Voluntary Application of the International Health Regulations (May 26, 2006)
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The World Health Assembly approved a resolution urging all member states to immediately implement on a voluntary basis relevant parts of the revised International Health Regulations (2005) which will enter into force in 2007. Among other things, the resolution requires that member states fulfill requirements of notification and collaboration in cases of avian influenza. Furthermore, member states shall follow certain mechanisms and procedures specified by the World Health Organization for a disease that may cause a public health emergency of international concern.
United Nations Security Council: Statement by the President of the Security Council (June 22, 2006)
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In connection with the Council's consideration of the item entitled "Strengthening international law: rule of law and maintenance of international peace and security," the President of the Security Council issued a statement on behalf of the Council, according to which the Council underscores its "conviction that international law plays a critical role in fostering stability and order in international relations." Moreover, the Council considers "enhancement of the rule of law activities as crucial in the peacebuilding strategies in post-conflict societies." Moreover, the Council proposed the idea of establishing a rule of law assistance unit within the Secretariat. Finally, the statement stipulates that the Security Council considers sanctions an important tool in the maintenance and restoration of international peace and security.
International Law In Brief (ILIB) - Copyright 2006 - The American Society of International Law (ASIL) Author: Elena Papangelopoulou ILIB is a free-of-charge electronic resource. To sign up for ILIB or ASIL Insights, click here.
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