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
March 15, 2004

JUDICIAL AND SIMILAR PROCEEDINGS

DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS

BRIEFLY NOTED

JUDICIAL AND RELATED DOCUMENTS

England and Wales Court of Appeal (Civil Division) Krotov v. The Secretary of State for the Home Department, EWCA Civ 69 (February 2, 2004)

The England and Wales Court of Appeal ("EWCA") held that refugee status could be available to a person who refused compulsory military service when such military service would require him to violate basic rules of human conduct as defined by international law, without having to show that the military action had been condemned by the international community.

 

The appellant, Krotov, appealed from a decision of the Immigration Appeal Tribunal (IAT) refusing his claim for asylum in the United Kingdom. He applied for asylum following his desertion from the Russian army and refusal to fight in the Chechen war. Krotov's application was refused by the Secretary of State on the ground that his claim did not meet the standard of the 1951 U.N. Convention relating to the Status of Refugees. His claim was refused again on appeal by a special adjudicator, who held that Krotov did not qualify for refugee status due to his lack of a genuine conscientious objection to military action and further that there would not be a breach of any relevant articles of the Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11 ("ECHR Convention") if Krotov were returned to Russia. The adjudicator commented that if the war had been condemned by the international community, Krotov might qualify for asylum.

Before the IAT was the question of the meaning of "international condemnation." In this instance Krotov relied on the Court of Appeal decision in Sepet and Bulbul v. Secretary of State for the Home Department (2001) EWCA Civ 681 and Foughali v. Secretary of State for the Home Department (June 2000 unreported) to support his argument that international condemnation was not required and that the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status ('the Handbook') indicated the need only for evidence of the abhorrent nature of the military action. The IAT rejected Krotov's case, finding that such condemnation as there was for the Chechen conflict fell short of the international condemnation required.

The EWCA held that refugee status might be available to a person who refused military service where the service would involve him in acts which were contrary to basic rules of human conduct as defined by international law. The EWCA further found that if a court or tribunal were satisfied that (a) the level and nature of a conflict and the attitude of the relevant governmental authority towards it had reached a position where combatants were or might be required to act in breach of the basic rules of human conduct, (b) that they would be punished for refusing to do so, or (c) the fear of such punishment was the genuine reason motivating the refusal of the asylum seeker to serve, then it should find that the applicant has established grounds for a claim under the ECHR Convention. 

Finally, the ECWA held that the case should be remitted to the Tribunal for reconsideration of all the relevant material.

Decision available at lawtel.

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United Nations Compensation Commission (UNCC): Report and Recommendations Made by the Panel of Commissioners Concerning the Third Installment of "F4" Claims (December 18, 2003)

The United Nations Compensation Commission (UNCC) Panel found Iraq liable for environmental damage both in Kuwait and Saudi Arabia, including, inter alia, for contamination of the Raudhatain and Umm Al-Aish aquifers directly resulting from Iraq's invasion and occupation of Kuwait, and for environmental damage from oil contamination to the shoreline of Saudia Arabia. 

The claims in the third "F4" installment, brought by Kuwait and Saudi Arabia, were for expenses resulting from measures already taken or to be undertaken in the future to clean and restore environment damage alleged to have directly resulted from Iraq's invasion and occupation of Kuwait. These measures included: oil released from damaged oil wells in Kuwait, pollutants released from oil well fires and firefighting activities in Kuwait, oil spills into the Persian Gulf from pipelines, offshore terminals and tankers, laying and clearance of mines, movements of military vehicles and personnel and construction of military fortifications.

The Panel noted that Article 31 of the UNCC Rules sets forth the applicable law, namely Security Council resolution 687 (1991) and other relevant Security Council resolutions. In addition, the Panel noted that the Commissioners "shall apply other relevant rules of international law." Paragraph 16 of Security Council resolution 687 (1991) provides that Iraq is "liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq's unlawful invasion and occupation of Kuwait."

The Panel noted that in its view, the key issues for determination regarding the "F4" claims were: (a) whether the environmental damage for which compensation is sought resulted directly from Iraq's invasion of Kuwait; (b) whether measures already taken by a claimant to remediate environmental damage were "reasonable"; and (c) whether measures proposed to be undertaken by a claimant qualify as "future measures which can be documented as reasonably necessary to clean and restore the environment."

According to Iraq, damage resulting from the invasion and occupation of Kuwait was not compensable unless it reached the "threshold" that is generally accepted in international law for compensation in cases of state responsibility for transboundary environmental damage. Iraq argued that the environment in the claimant countries was not in "pristine condition" prior to the invasion and occupation, pointing to oil exploration, refineries and petrochemical industries, and large number of oil tankers operating in the Persian Gulf as sources of environmental damage both before and after the invasion and occupation.

The Panel observed that "the appropriate objective of remediation is to restore the damages environment or resource to the condition in which it would have been if Iraq's invasion had not occurred." It found that contamination of the Raudahatain and Umm Al-Aish aquifers by oil from damaged oil wells and by sea water used to fight the oil well fires constituted environmental damage directly resulting from Iraq's invasion and occupation of Kuwait. It found that, considering the urgent need for quick action to extinguish the oil well fires and to control the release of oil from damaged oil wells, Kuwait was neither unreasonable nor negligent in constructing the oil recovery pits close to where the firefighting and oil recovery activities were being undertaken.

In terms of Saudi Arabia's claim, Iraq contended that damage to Saudi Arabia's shoreline could not be attributed solely to Iraq's 1991 invasion, noting that the region "is constantly exposed both to accidental spills and routine ongoing pollution." It further contended that it could not be held liable for any damage caused by oil releases resulting from the Allied Coalition Forces' bombings of Iraqi tankers.

The Panel found that the evidence indicated that damage from oil contamination to the shoreline between the Kuwait border and Abu Ali constituted environmental damage directly resulting from Iraq's invasion and occupation of Kuwait, and a program to remediate the damage would constitute reasonable measures to clean and restore the environment.

The Panel noted that it has not considered the issue of compensation for loss of use of terrestrial resources, and that this issue will be considered in the fifth installment of "F4" claims as part of claim No. 5000460.

Click here for the decision.

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International Centre for Settlement of Investment Disputes (ICSID) (Award on Jurisdiction): Enron Corporation and Ponderosa Assets, L.P. v. The Argentine Republic (Case No. ARB/01/3) (January 14, 2004)

The Tribunal upheld jurisdiction over the investors' claim, finding that the investors had demonstrated prima facie that they had been adversely affected by Argentina's tax measures, and that the Tribunal had jurisdiction to consider the matter under the provisions of the Argentina-United States Bilateral Investment Treaty (?the BIT").

Enron Corporation and Ponderosa Assets, L.P. ("the claimants") participated in the privatization of Transportadora de Gas del Sur ("TGS"), one of the major networks for gas distribution and transportation in the southern provinces of Argentina. They claimed that certain tax assessments amounting to AR$800 million, imposed by some Argentine provinces, were illegal under Argentine law and resulted in acts tantamount to expropriation and violations of the Argentina-United States BIT. 

A provisional stay for the collection of the taxes was granted by the Argentine Supreme Court.

Argentina argued, inter alia, that the taxes assessed were within the range of 1%-2% of the contracts value, and therefore were not confiscatory, and further maintained that the additional amounts owed by the claimants were the results of penalties and interests not attributable to Argentina. Argentina claimed that because the taxes were assessed by the Argentine provinces, responsibility and liability of the Argentine Republic could not be engaged. Argentina further argued that the claimants' petitions, if accepted, would disrupt the conditions of competition within the Argentine market as foreign investors would be exempt from taxes assessed on other business entities.

The Tribunal observed that it would not judge the general tax policies pursued by the Argentine Republic or the Provinces, nor the arrangements the provinces have with the Federal Government of the Argentine Republic, a matter exclusively appurtenant to the sovereignty of the Argentine Republic. It noted, however, that it had the obligation to establish whether such assessments violated the rights accorded to foreign investors under the BIT.

The Tribunal noted that Article XII of the BIT, governing tax matters, provides that the Parties "strive to accord fairness and equity in the treatment of investment of nationals and companies of the other Party." It found that the claimants satisfied the requirement of having a present interest to bring the action under the BIT, for having alleged that the tax assessments resulted in the violation of specific provisions and standards of treatment in the BIT.

Members of the Tribunal:

Francisco Orrego Vicuña, President of the Tribunal

Héctor Gros Espiell, Arbitrator

Pierre-Yves Tchanz, Arbitrator

Click here for the decision.

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European Court of Human Rights (ECHR): Jahn and Others v. Germany (Application Nos. 46720/99, 72203/01 and 72552/01) (January 22, 2004)

The European Court of Human Rights ("ECHR" or "the Court") held that Germany breached Art.1 of Protocol No. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11 Convention. ("ECHR Convention")

The case involves applicants who inherited land allocated to their families following the 1945 agrarian reform in the German Democratic Republic (GDR). On March 16, 1990, the Modrow law was passed, giving them full ownership rights. After the reunification of Germany, the Federal Republic of Germany passed legislation on July 14, 1992 which required that certain individuals who had inherited land resulting from the agrarian reform transfer this land to the tax authorities of the Federal Republic of Germany without compensation. The applicants were among these individuals required to transfer land to the tax authorities.

The applicants contended that the reassignment of their property without compensation infringed their right to the peaceful enjoyment of their possessions, contrary to Article 1 and Protocol 1 of the ECHR Convention.

Germany submitted that the applicant's title to the property was merely a formal one which was uncertain and entirely illegitimate. Moreover, it argued that the interference complained of had to be examined in light of the first paragraph of Article 1 of the Protocol which provides: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

The Court found that the Modrow law had lifted all restrictions on the land thereby granting ownership to the applicants. It further observed that following the reunification of Germany, property subsequently became an integral part of the Federal Republic of Germany's law, and therefore fell within the scope of the ECHR Convention. As to whether the interference with the applicant's property could be deemed necessary for the general interest of the State, the Court found that although it was in "the public interest" it nevertheless did not outweigh the obligation to protect individual property rights under the Convention. Overall, the Court found that despite the exceptional circumstances of the German reunification, the lack of compensation upset the fair balance under which Germany was obliged to honor between the protection of property and the general interests of the State.

Click here for the decision.

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DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS

United Nations (U.N.) Security Council: Resolution 1529 (The question concerning Haiti), S/RES/1529 (February 29, 2004)

The U.N. Security Council expressed its concerned over the deterioration of the political, security and humanitarian situation in Haiti and deplored the loss of life that has already occurred. It stressed the need to create a secure environment in Haiti that enables respect for human rights. The U.N. Security Council took note of the resignation of Jean Bertrand Aristide as President of Haiti and the swearing-in of President Boniface Alexandre as the acting President of Haiti in accordance with the Constitution of Haiti. It acknowledged "the appeal of the new President of Haiti for the urgent support of the international community to assist in restoring peace and security in Haiti and to further the constitutional political process now under way."

Acting under Chapter VII of the Charter of the United Nations, the U.N. Security Council called on Member States "to support the constitutional succession and political process now under way in Haiti and the promotion of a peaceful and lasting solution to the current crisis." It also authorized the immediate deployment of a Multinational Interim Force for a period of not more than three months from the adoption of this resolution. The tasks of the Multinational Interim Force are, inter alia, to contribute to a stable environment in the Haitian capital and elsewhere in the country, to facilitate the provision of humanitarian assistance to the Haitian people in need, to assist the Haitian police and the Haitian Coast Guard in order to establish public safety and law and order, to coordinate and support efforts from international organizations such as the OAS Special Mission and with the U.N. Special Adviser for Haiti.

In paragraph seven of the U.N.  Security Council Resolution, the Security Council demands that all the parties to the conflict end the violence and respect international law, and further provides that "there will be individual accountability and no impunity for violators."

Click here for the Resolution.        

For more background and analysis of this Security Council Resolution, see ASIL insights.

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BRIEFLY NOTED

Brazil and Argentina: Economic Agreement to set common Rules For IMF Negotiations (March 15, 2004)

Brazilian President Luiz Inacio Lula da Silva and Argentine President Nestor Kirchner have scheduled for tomorrow the signing of a political and economic agreement that includes adopting a common position from which Argentina and Brazil will negotiate their debts with the International Monetary Fund (IMF).

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Gabon/Equitorial Guinea: Maritime delimitation

The Foreign Ministers of Gabon and Equatorial Guinea have agreed to resolve their dispute over sovereignty of three oil-rich islands in the Corisco Bay through U.N. mediation.

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International Law In Brief (ILIB) - Copyright 2004