International Law In Brief
Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
June 25, 2003
JUDICIAL AND SIMILAR PROCEEDINGS
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- International Court of Justice (ICJ): Certain Criminal Proceedings in France (Republic of the Congo v. France) (June 17, 2003)
- World Trade Organization (WTO): United States-Rules of Origin for Textiles and Apparel Products (WT/DS243/R) (June 20, 2003)
- United States (U.S.) District Court for the District of Columbia: Peterson et al. v. Islamic Republic of Iran, No. 01-2094 (May 30, 2003) and Boulos et al. v. Islamic Republic of Iran, No. 01-2684 (May 30, 2003)
DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS
TREATIES, AGREEMENTS AND RELATED DOCUMENTS
United Nations (U.N.): Agreement between the U.N. and Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea (June 6, 2003)
On June 6, 2003 the U.N. and Cambodia signed the Agreement concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea. Prior to the signature, the U.N. General Assembly approved the Draft Agreement in Resolution 57/228 B. Currently, the Agreement awaits ratification by Cambodia. According to its Article 32, the Agreement will enter into force ?the day after both parties have notified each other in writing that the legal requirements for entry into force have been complied with.?
According to its Article 1, the Agreement provides, inter alia, the legal basis and the principles and modalities for the cooperation between the U.N. and Cambodia ?in bringing to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979.?
The Agreement between the U.N. and Cambodia specifies that two Extraordinary Chambers (a Trial and a Supreme Court Chamber), which will be established within the existing Cambodian judicial system, will conduct the trials. Unlike Yugoslavia, Rwanda and Sierra Leone, where independent international tribunals were created, the Extraordinary Chambers will form part of Cambodia?s national court system. The Agreement recognizes that the Extraordinary Chambers have subject matter jurisdiction as set forth in the ?Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the period of Democratic Kampuchea as adopted and amended by the Cambodian Legislature under the Constitution of Cambodia.? The crimes that fall within that jurisdiction are the crime of genocide as defined in the 1948 Genocide Convention, crimes against humanity as defined in the 1998 Rome Statute of the International Criminal Court, grave breaches of the 1949 Geneva Conventions and certain violations of Cambodian law. The two Chambers will have personal jurisdiction over ?senior leaders of Democratic Kampuchea and those who were most responsible for the crimes referred to in Article 1.?
The Agreement provides that the Trial Chamber will be comprised of three Cambodian and two international judges and the Supreme Court Chamber of four Cambodian and three international judges. The international judges will be appointed by the Cambodian Supreme Council of Magistracy from a list of nominees provided by the Secretary General. The Agreement further provides that if the judges, in making a decision, do not reach unanimity, an affirmative vote of at least four judges is required in the Trial Chamber and an affirmative vote of five in the Supreme Court Chamber.
According to Article 5 of the Agreement there will be a Cambodian and an international investigating judge who shall co-operate as co-investigating judges. Furthermore, Article 6 provides that there will be a Cambodian and an international prosecutor who are responsible for conducting prosecutions as co-prosecutors. If the co-investigating judges or the co-prosecutors do not reach agreement on whether to proceed with the investigation or the prosecution, Article 7 provides for a procedure to settle the differences whereby a Pre-Trial Chamber, composed of three Cambodian and two international judges makes a decision and the co-investigating judges or co-prosecutors will proceed according to that decision. If the required majority for making such a decision, namely, an affirmative vote of at least four judges, cannot be reached, the investigation or prosecution has to proceed.
Article 12 provides that Cambodian procedural law will apply but reassures that jurisdiction is to be exercised ?in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the 1966 International Covenants on Civil and Political Rights.?
Article 17 enlists the financial and other assistance for which the United Nations are responsible for providing. Finally, Article 28 provides that ?should the Royal Government of Cambodia change the structure or organization of the Extraordinary Chambers or otherwise cause them to function in a manner that does not conform with the terms of the present Agreement, the United Nations reserves the right to cease to provide assistance, financial or otherwise, pursuant to the Agreement.?
Click here for the UN Agreement.
Click here for the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the period of Democratic Kampuchea.
JUDICIAL AND RELATED DOCUMENTS
International Court of Justice (ICJ): Certain Criminal Proceedings in France (Republic of the Congo v. France) (June 17, 2003)
On June 17, 2003 the ICJ rejected the Republic of Congo?s request for the indication of provisional measures, finding, by fourteen to one votes, that ?the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.?
The Court recalled that the purpose of provisional measures is to preserve the respective rights of the parties pending the decision of the Court and that a provisional measure is only justified if there is urgency. The Court observed that, according to the Congo?s application, two rights are at stake: first, the Congo?s right ?to require a State, in this case France, to abstain from exercising universal jurisdiction in criminal matters in a manner contrary to international law? and second, the Congo?s right ?to respect by France for the immunities conferred by international law on, in particular, the Congolese Head of State.? Thus, the first question the Court dealt with was ?whether the criminal proceedings currently pending in France entail a risk of irreparable prejudice to the right of the Congo to respect by France for the immunities of President Sassou Nguesso as Head of State, such as to require, as a matter of urgency, the indication of provisional measures.? The Court found that, according to the information before it, no such risk exists at the present time and added that, moreover, the existence of such a risk has not been established in regard to the Congo?s Minister of the Interior, General Oba. The second question for the Court to consider was whether such a risk of irreparable prejudice exists ?in relation to the claim of the Congo that the unilateral assumption by a State of universal jurisdiction in criminal matters constitutes a violation of a principle of international law.? The Court likewise found that the proceedings before the Tribunal de grande instance of Meaux did not constitute a risk of irreparable prejudice with respect to this second right invoked by the Congo.
Click here for the decision.
World Trade Organization (WTO): United States¾Rules of Origin for Textiles and Apparel Products
(WT/DS243/R) (June 20, 2003)
The dispute concerns India?s claim that the United States applied its rules of origin to textiles and apparel as a means of trade protectionism. The measures challenged concern new quantitative restrictions for fabric formation under section 334 of the Statement of Administrative Action accompanying the Uruguay Round Agreements Act of 1994 (?URAA?) and modified in section 405 of the Trade and Development Act, in addition to the implementing customs regulations.
On May 7, 2002, India requested the WTO Dispute Settlement Body (?DSB?) to establish a Panel in accordance with Article 6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (?DSU?) in order to address its allegations that the United States? rules of origin for textiles and apparel products were inconsistent with paragraphs (b), (c), (d) and (e) of Article 2 of the Agreement on Rules of Origin (?RO Agreement?), and that section 405 of the Trade and Development Act was a discriminatory measure in favor of European imports. In regard to section 405, India claimed that the products chosen for specific exemptions were products exported from the European Communities, resulting in a de facto advantage to these countries over India.
The United States argued that the rules of origin at issue were not inconsistent with Article 2 of the RO Agreement, rather, the rules were enacted to prevent circumvention of established quotas in addition to preventing transshipment. The United States further argued that the rules of origin in question were on a Most Favored Nation (MFN) basis in accordance with WTO Rules, and resulted in facilitating the flow of international trade.
Among the issues before the Panel was the interpretation of the operative clause of Article 2(b) of the RO Agreement, which provides that rules of origin shall not be used ?as instruments to pursue trade objectives directly or indirectly,? along with its preceding clause of ?notwithstanding the measure or instrument of commercial policy to which they are linked.? The Panel interpreted these phrases as meaning that a measure or instrument of commercial policy may have restrictive, distorting or disruptive effects in international trade, but ?rules of origin in and of themselves should not have such adverse effects.?
The Panel observed that ?protecting domestic industry against import competition? and of ?favoring imports from one Member over imports from another? may in principle be considered ?trade objectives,? for which rules of origin may not be used. The Panel found however, that the United States? use of sector-specific quotas rather than country-specific quotas was in accordance with the Agreement on Textiles and Clothing and therefore did not result in discriminatory, protectionist measures against India. In terms of section 405 of the Trade and Development Act, the Panel found that since it applied ?equally to all qualifying goods from all [WTO] Members,? it could not be said that section 405 was being employed as a means of favoring European Communities? imports over imports from other WTO Members.
In sum, the Panel rejected all of India?s arguments concerning the United States? application of rules of origin for textile and apparel products, and held, inter alia, that the rules of origin were not administered in a discriminatory manner, that they were not adopted in order to protect the U.S. textile industry from foreign competition, and that the U.S. rules of origin did not distort or restrict international trade.
India will have thirty (30) days to appeal the decision.
Click here for the decision.
United States (U.S.) District Court for the District of Columbia: Peterson et al. v. Islamic Republic of Iran, No. 01-2094 (May 30, 2003) and Boulos et al. v. Islamic Republic of Iran, No. 01-2684 (May 30, 2003)
The District Court entered a default judgment against the Islamic Republic of Iran and the Iranian Ministry of Information and Security, holding defendants ?jointly and severally liable to the plaintiffs for compensatory and punitive damages? because of their involvement in the marine barracks bombing in Beirut, Lebanon on October 23, 1983, which caused the death of 421 American servicemen.
The plaintiffs, who are family members of the deceased servicemen or survivors of the attack, had filed claims for wrongful death, battery, assault and intentional infliction of emotional distress with the District Court in October and December 2001.
The Court concluded that the U.S. military service members at issue were part of a peacekeeping mission operating under peacetime rules of engagement and that they therefore qualified for recovery. The Court held that it possessed subject matter and personal jurisdiction over the defendants because the action fell within 28 U.S.C. 1605(a)(7), the terrorism exception to the immunity of foreign states in U.S. Courts. According to 28 U.S.C. §1605(a)(7) ?a foreign state is liable for personal injury or death that was caused by an act of ... extrajudicial killing, ... or the provision of material support for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.? In addition, §1605(a)(7) requires that the foreign state be designated as a state sponsor of terrorism by the U.S. Department of State, that either the plaintiff or the victim must have been a United States national at the time the act was committed and that the act must be such, that it would be actionable if the United States, its agents, officials or employees within the United States engaged in similar conduct.
The Court found that ?the development and detonation of an explosive charge? in the marine barracks constituted an ?extrajudicial killing?, that the Iranian Ministry of Information and Security actively participated in that attack and did so within the scope of its agency and that United States officials engaging in this kind of activity would also be civilly liable. Since Iran has been continuously designated as a terrorist state for almost a decade and the victims were U.S. nationals, the Court found that all elements of §1605(a)(7) were ?established by clear and convincing evidence?.
The amount of compensatory and punitive damages will be determined by the Court on the basis of reports from Special Masters appointed by the Court.
Click here for the decision.
DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS
United Nations (U.N.) Security Council: Resolution 1487 (United Nations Peacekeeping), S/RES/1487 (June 12, 2003)
The U.N. Security Council, noting the importance of facilitating U.N. Member States? contributions to international peacekeeping missions, requested, pursuant to Chapter VII of the U.N. Charter, that any State which is not a party to the Rome Statute of the International Criminal Court (ICC) and which contributes to international peacekeeping operations be exempt from investigations or prosecutions by the ICC in accordance with Article 16 of the Rome Statute for a 12-month period beginning on July 1, 2003. The Security Council further expressed its intention to renew the exemption period each July 1st for further 12-month periods as long as may be necessary.
The U.N. Security Council observed that States not Party to the Rome Statute will continue to fulfill their responsibilities in their domestic jurisdictions in relation to international crimes.
Click here for the Resolution.
BRIEFLY NOTED
The European Convention (The Secretariat): Final Draft Constitution Treaty (June 12, 2003)
The delegates of the European Convention agreed on a final version of the Draft Constitution Treaty. The Presidium of the European Convention had previously issued a Preliminary Draft Constitutional Treaty in October 28, 2002 (see ILIB summary of November 11, 2002).
Part I of the final Draft contains nine Titles that address, inter alia, the European Union?s objectives, its institutional framework, its competence and finances. Part II of the Draft integrates the Charter of Fundamental Human Rights into the Constitution Treaty. Three Protocols are annexed to the Draft Constitution: The Protocol on the Role of the National Parliaments in the European Union, which provides for greater involvement of national parliaments in the activities of the European Union, the Protocol on the Application of the Principles of Subsidiarity and Proportionality, which establishes ?the conditions for the application of the principles of subsidiarity and proportionality, as enshrined in Article I-9 of the Constitution? and finally, the Protocol on the Representation of Citizens in the European Parliament and the Weighting of Votes in the Council.
Click here for the draft treaty.
Council of Europe (COE): Two Conventions to enter into force shortly
The European Convention on the Non-Applicability of Statutory Limitation to Crimes Against Humanity and War Crimes, which was opened for signature on January 25, 1974, will enter into force on June 27, 2003. The Convention provides that no statute of limitation shall apply to the prosecution of and the enforcement of punishments imposed for violations of the 1948 Genocide Convention and the four 1949 Geneva Conventions. Currently, three states have signed and ratified the Convention, namely Belgium, the Netherlands and Romania.
On July 1, 2003, Protocol No.13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Concerning the Abolition of the Death Penalty in all Circumstances will enter into force. Protocol No.13 was opened for signature on May 3, 2002. (See ILIB summary of March 19, 2002).
Click here for documents.
Council of Europe (COE): Protocol amending the European Convention on the Suppression of Terrorism (May 15, 2003)
The Protocol was opened for signature to all member states of the Council of Europe that are signatories to the Convention on May 15, 2003. According to its Article 18, the Protocol will enter into force after ratification by all parties to the Convention. The Protocol, inter alia, extends the Convention?s list of offenses, which shall not be regarded as political offenses for the purpose of extradition and provides for a simplified amendment procedure that allows for further additions to the list of offenses.
Click here for the document.
International Law In Brief (ILIB) - Copyright 2003 - The American Society of International Law (ASIL)
Editors: Elisabeth Handl, Ruth Teitelbaum, and Scott Smith