International Law In Brief
Developments in international law, prepared by the
Editor of International Legal Materials
The American Society of International Law May 21, 2007
©2007 American Society of International Law
(Educational copying is permitted with due acknowledgment)
TREATIES, AGREEMENTS AND RELATED DOCUMENTS
The Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary (5 July 2006)
Click here for document. (Approximately 11 pages).
The Hague Conference on Private International Law met for the first time in 1893 upon the impetus of T.M.C. Asser. Its statute entered into force in 1955, making it a permanent inter-governmental organization. Its mission is to work for the "progressive unification" of private international law rules.
The Hague Convention on the law applicable to certain rights in respect of securities held with an intermediary (the Convention) is designed to provide legal certainty and predictability to financial markets with respect to the law governing securities held in clearing and settlement systems and other intermediaries, as well as to reduce risk and costs associated with transactions across borders. It defines "intermediary" as a person "in relation to securities which are credited to securities accounts which it maintains in the capacity of a central securities depository or which are otherwise transferable by book entry across securities accounts which it maintains."
The Convention defines whether someone's interest in securities held with an intermediary ends or takes precedence over another party's interest. It determines the law applicable to any duties that an intermediary has to someone other than an account holder who claims an interest either with the account holder or someone else with an interest in the securities that the intermediary holds. The scope of the Convention does not include contractual or other personal rights and duties of parties regarding a disposition of securities that an intermediary holds or the rights and duties that may spring from the credit of securities to an account if those rights and duties are purely contractual or purely personal.
The Convention applies "in all cases involving a choice between the laws of different States.?"The applicable law for all of the areas covered by the scope of the Convention in Article 2(1) is the law in force in the state whose law governs the account agreement, or, if the account agreement so indicates, another state's law. Article 4 of the Convention applies when, at the time of the agreement, an intermediary has an office in a state which "effects or monitors entries to securities accounts; administers payments or corporate actions relating to securities held with the intermediary; or is otherwise engaged in a business or other regular activity or maintaining securities accounts; or is identified by an account number, bank code, or other specific means of identification as maintaining securities accounts in that state."
At the time a "multi-unit" state signs, ratifies, accepts, approves, or accedes to the Convention, pursuant to Article 20, it may declare that the Convention extends to all or only a certain number of its territorial units. Article 21 prohibits states from taking reservations.
European Union and United States Summit: Framework Agreement (30 April 2007)
Click here for document. (Approximately 11 pages).
Leaders of the European Union (EU) and United States (U.S.) met 30 April 2007 in Washington, D.C. and concluded a framework agreement (the Agreement). In it, the EU and U.S. express their belief that greater transatlantic economic integration and growth will help citizens and the competitiveness of their economies and will persuade other nations to implement the "transatlantic economic model of respect for property rights, openness to investment, transparency and predictability in regulation, and the value of free markets." They reaffirmed their dedication to the 2005 EU-U.S. Summit Declaration on improving economic integration and growth, and pledges made in the June 2006 Summit to reduce transatlantic trade barriers.
The framework Agreement includes a number of understandings. The EU and U.S. created a Transatlantic Economic Council (TEC) to monitor progress toward attaining the goals of the framework; including setting strategic targets. The TEC will be chaired by a U.S. cabinet-level official in the Executive Office of the President, currently Allan Hubbard, and by a representative of the European Commission working in tandem with the EU Presidency, currently Vice President Guenter Verheugen.
The EU and the U.S. agreed to take a number of steps to foster cooperation and reduce regulatory burdens including: fostering further collaboration in the areas of agriculture, sanitary and phyto-sanitary measures and food safety; working together to reduce animal testing for cosmetics and seeking other testing methods; seeking administrative simplification in the regulation of medicinal products; expanding cooperation on OECD initiatives on risk assessment, good laboratory practices; and the Globally Harmonized System of Classification and Labeling of Chemicals, and the risks of manufactured nanomaterials. They agreed to take a number of steps to protect intellectual property rights including creating rules regarding the exchange of information relating to suspected infringements, and the development of joint technical assistance to improve the harmonization of patent regimes. In the areas of "innovation and technology" they agreed that they will hold a high-level conference on innovations in health-related industries and a workshop on "best practices in innovation policies." They will create a work plan to promote the interoperability of electronic health record systems; and a science-based work plan to cooperate on "eco-efficient biobased products."
JUDICIAL AND RELATED DOCUMENTS
High Court of Malawi: Kafantayeni v. Attorney General (27 April 2007)
Click here for document (Approximately 11 pages).
In a unanimous decision, the High Court of Malawi held that the mandatory death penalty for murder is unconstitutional and amounts to inhuman treatment; and the imposition of the mandatory death penalty denies an accused the right to have his sentence reviewed by a higher court and thus violates the right to a fair trial.
Francis Kafantayeni was tried and convicted on August 11, 2002, of killing his two-year old stepson by tying him up and setting him on fire. Kafantayeni admitted that he committed the act, but claimed that he had been rendered temporarily insane by smoking hemp. The court sentenced him to death pursuant to section 210 of the Malawi Penal Code, which requires the imposition of the death penalty for murder convictions. In September 2005 Kafantayeni brought suit seeking to have the High Court of Malawi declare the mandatory death penalty for murder unconstitutional. In 2006, several others sentenced pursuant to the mandatory death penalty for murder joined his suit ("the plaintiffs"). During the hearing 30 October 2006, the state declined to advocate any position but "took a neutral stance." The plaintiffs argued that the mandatory death penalty was unconstitutional for four reasons: 1) it violates section 16 of the Constitution on the right to life and is arbitrary because it is imposed without consideration of the circumstances of the crime; 2) it violates section 19(3) of the Constitution prohibiting torture or cruel, inhuman and degrading treatment; 3) it violates section 42(2)(f) of the Constitution on the right to a fair trial because it prohibits judicial discretion in sentencing; and 4) it violates the Constitutional principle of separation of powers.
In its analysis, the High Court emphasized that the issue before it concerned only the mandatory imposition of the death penalty for murder, and not the death penalty generally. The court cited the case of Reyes v. The Queen [2002], a Belizean case, as the leading authority on the issue of the constitutionality of the mandatory death penalty. The court noted that the constitutional language at issue in Reyes was similar to that in Article 19 of the Malawi Constitution. The court reached a unanimous decision on two of the grounds articulated by the plaintiffs: 1) right of every person not to be subjected to inhuman and degrading treatment in section 19; and 2) the right to a fair trial pursuant to section 42(2). The court did not address the other two grounds that plaintiffs urged it to consider. The court highlighted the importance of proportionality in sentencing in considering whether a sentence is inhuman. With respect to the plaintiffs' argument that the mandatory sentencing violated the Constitutional guarantee of a fair trial, the court noted that such notions of fairness also apply to the sentencing phase of a trial. Malawi is a state party to the International Covenant on Civil and Political Rights (ICCPR), which provides the right to a fair trial in Article 14(5). The court stated that Malawi courts must "have regard" to the provisions of the ICCPR in interpreting the Malawi Constitution. The court set aside the death sentences imposed upon each of the plaintiffs and ordered that they be brought before the High Court for a judge to impose a sentence without the mandatory sentencing rule.
International Criminal Court: Pre Trial Chamber I Decision on Prosecution's Application and Arrest Warrants for Ahmad Harun and Ali Kushayb (27 April 2007)
Click here for documents. (Decision on prosecution's application approximately 58 pages, arrest warrants approximately 34 pages total).
Pre-Trial Chamber I of the International Criminal Court (ICC) ordered arrest warrants to be issued for Ahmad Harun, former Minister of State for the Interior, and Ali Kushayb, a militia and Janjaweed leader, for crimes against humanity and war crimes. It ordered the court's registry to create two documents asking Sudanese authorities to help in the arrest and surrender of the two men.
Before determining whether it could issue summonses to appear or arrest warrants, the court examined whether it possessed jurisdiction to hear the case. It noted that while Sudan is not a party to the Rome statute (the statute), this is not required when the Security Council, acting pursuant to Chapter VII of the Charter, refers a case to the court, which the Security Council did on 31 March 2005. The case falls within the temporal jurisdiction of the court as well because the prosecutor's application concerns events occurring in 2003 and 2004. The court emphasized that it is a sina qua non condition for its exercise of jurisdiction that no domestic prosecution be pending regarding the same person(s) and events before the court; and this condition has also been met as no case is pending in Sudan against these individuals. Finding that it had jurisdiction, the court proceeded to determine whether it could issue summonses to appear or arrest warrants. Article 58 of the statute contains two requirements for an arrest warrant or a summons to appear to be issued: 1) the Chamber must ensure that there are "reasonable grounds" to believe that an individual has committed a crime within the jurisdiction of the court; and 2) for an arrest warrant , the arrest must be needed because of one of the bases in article 58(1) of the statute; or 3) for a summons, the Chamber must be satisfied that the summons to appear is sufficient to guarantee the presence of the accused. In determining what constitutes "reasonable grounds to believe," that an individual has committed a crime within the jurisdiction of the court, article 21(3) of the statute requires the Court to follow international human rights standards. It concluded that there were reasonable grounds to believe that war crimes and crimes against humanity have been committed in a conflict not of an international character (see articles 7 (1), (2)(a), 8(2)(c), (e), (f)). The court also found that there was reasonable grounds to believe that Ahmad Harun and Ali Kushayb are criminally responsible for the crimes of which they are accused. The court decided not to issue summonses to appear because article 58(7) of the statute limits the use of such summons to cases where an individual will appear voluntarily before the court without the need for a request for arrest and surrender. Here, the court was not satisfied that Harun and Kushayb would appear voluntarily before the court. Instead, the court decided to issue warrants of arrest pursuant to article 58(1) of the statute.
RESOLUTIONS, DECLARATIONS, AND OTHER DOCUMENTS
Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (March 2007)
Click here for document. (Approximately 40 pages).
A group of human rights experts including Mary Robinson, former President of Ireland and former United Nations High Commissioner on Human Rights, Manfred Nowak, UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment, Philip Alston, UN Special Rapporteur on extrajudicial, summary and arbitrary executions, and Edwin Cameron, Justice, South Africa Supreme Court of Appeal, developed the Yogyakarta principles (the "principles") on the application of international human rights law with respect to sexual orientation and gender identity. The principles were launched at a gathering that the International Commission of Jurists and International Service for Human Rights convened in Geneva during the March 2007 United Nations Human Rights Council session. The principles emphasize that "sexual orientation and gender identity are integral to every person's dignity and humanity and must not be the basis for discrimination or abuse." They recognize that while there have been advances in guaranteeing that persons of all sexual orientation and gender identities can live with basic dignity and respect, there remain grievous examples of human rights violations directed at people because of their actual or perceived sexual orientation or gender identity including: extra-judicial killings, torture, sexual assault, rape, and discrimination. The principles are designed to provide a consistent framework of international human rights law and its application to issues of sexual orientation and gender identity that has until now, been lacking in the often piecemeal and contradictory response from the international community.
The principles cover a wide array of areas including the human rights to security of the person, to work, to privacy, adequate housing, education, protection from exploitation and trafficking, and guarantee of a fair trial. Each principle is followed by suggestions to states how to improve their human rights response. For example, after stating the principle of security of the person regardless of sexual orientation or gender identity, the principles recommend states to implement needed policing and other measures to "prevent and provide protection from all forms of violence and harassment related to sexual orientation and gender identity."
United Nations Forum on Forests Seventh Session Outcome Document (27 April 2007)
Click here for document. (Approximately 7 pages).
The United Nations Economic and Social Council (ECSOC) created the United Nations Forum on Forests (UNFF) in 2000 to support the "management, conservation, and sustainable development of all types of forests and to strengthen political commitment to this end." Representatives of all UN member states as well as UN specialized agencies comprise the UNFF. The UNFF convened for a seventh session in April 2007 and adopted a non-legally binding instrument (NLBI) and draft resolution for ECOSOC.
The NLBI reaffirms UNFF's commitment to the Rio Declaration on Environment and Development and the principle that states have the sovereign right to exploit their resources pursuant to domestic environmental policies but that in doing so they must ensure that they do not harm the environment of other states. It expresses concern about ongoing deforestation and slow rate of forest recovery with the resulting negative effect upon both the environment and the livelihoods of at least a billion people. It recognizes the consequences of changing climates upon forests and forest management.
The NLBI has three principal goals: 1) to increase political will for and apply sustainable forest management; 2) to increase the input of forests to reaching international development goals, including the Millennium Development Goals; with a particular emphasis upon eradicating poverty and sustaining the environment; and 3) to create a structure for national action and international collaboration. The NLBI applies to all types of forests. The NBLI urges member states to take a number of steps to realize its goals including: create and as needed renew plans of action for sustainable forest management and form policies that lead to the sustainable management of forests and help to alleviate poverty; encourage private sector investment in sustainable forest management, and create financial plans that enunciate the long and short-term plans to reach sustainable forest management. Member states are encouraged to submit "national forest progress reports" as part of their standard reporting to UNFF.
U.S. Joint Letter from John Bellinger III, Legal Adviser, U.S. Department of State, and William J. Haynes, General Counsel, U.S. Department of Defense to Dr. Jakob Kellenberger, President, International Committee of the Red Cross, Regarding Customary International Law Study (3 November 2006).
Click here for document (Approximately 22 pages).
The International Committee of the Red Cross (ICRC) published a study in 2005 entitled Customary International Humanitarian Law, by Jean-Marie Haenckerts and Louise Doswald-Beck (Cambridge 2005) ("the Study"). The text is a two-volume study of the customary rules on international humanitarian law and those principles which the authors contend are binding upon all parties to armed conflict.
In their letter to Dr. Kellenberger, Mr. Bellinger and Mr. Haynes express their appreciation for the work of the ICRC, and that of the authors in gathering and examining a voluminous amount of material. They concur that an understanding of the rules of customary international law is useful to "all parties associated with armed conflict, including governments, those bearing arms, international organizations, and the ICRC." They note that because of the extensive nature of the Study, they have not yet completed a comprehensive analysis of its findings, and they plan to conduct a further examination of it and provide additional comment to the ICRC and the international community. They indicate that while the Study uses the term "international humanitarian law," they favor using the terms "law of war" or the "laws and customs of war" instead. Based upon their analysis, they are concerned about the methodology the authors have employed to ascertain what constitutes customary rules and whether the authors have provided sufficient facts and evidence to support those rules." For that reason, the U.S. cannot accept without additional analysis the Study's conclusions. They emphasize in this regard that they do not mean that their methodological concerns apply to all of the rules articulated in the Study. They have provided an attachment to their correspondence outlining in technical terms a given rule, the evidence the authors provide to support it, and why they question it.
Mr. Bellinger and Mr Haynes note that there is general consensus that customary international law develops out of the consistent and widespread practice of states acting out of a sense of legal obligation, or opinio juris. The Study falls short in their view, because the state practice cited is "insufficiently dense" to rise to the "extensive and virtually uniform" rule that is needed to evidence for a customary rule. They further note that the Study appears to rely too heavily upon written materials such as military manuals, non-binding resolutions of the United Nations General Assembly, as well as statements by non-governmental organizations and the ICRC, rather than actual state practice. While the Study recognizes negative practice in theory, they opine that it accords inadequate weight to it; and that the Study views as equivalent the practice of states with relatively little experience in armed conflict. They note that they are concerned about the Study's merging in some instances of the practice and opinio juris elements of customary international law into one element. Further, the Study has a tendency to oversimplify complex and nuanced rules.
United States President George W. Bush Statement on the Law of the Sea and Enhanced Protection of Papahanaumokuakea Marine National Monument (15 May 2007)
Click here for document. (Approximately 1 page).
United States (U.S.) President George W. Bush called for the Senate to give its advice and consent to ratification of United Nations Convention on the Law of the Sea (LOS). He noted that acceding to the LOS will promote the national security interests of the U.S., particularly the mobility of our armed forces; assist the U.S. in safeguarding the environmental protection of the oceans; and offer the U.S. a "seat at the table" to discuss areas of great concern to U.S. national interests.
As of 18 May 2007 153 nations were parties to the LOS Convention (click here for more information).
In his statement, President Bush also indicated that he has directed the U.S. delegation to International Maritime Organization (IMO), to submit a proposal for enhanced international protection of the Papahanaumokuakea Marine National Monument, a 1,200 mile expanse of coral islands, banks, and shoals in which 7,000 marine specifies live.
International Law In Brief (ILIB) - Copyright 2007 - The American Society of International Law (ASIL)
Author: Susan A. Notar, Esq.
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To comment on this publication, send an e-mail message to Susan A. Notar, ILM Managing Editor at: snotar@asil.org