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
April 7, 2004


TREATIES, AGREEMENTS AND RELATED DOCUMENTS

JUDICIAL AND SIMILAR PROCEEDINGS

TREATIES, AGREEMENTS AND RELATED DOCUMENTS

Additional Protocols Between the United States of America and the Republic of Bulgaria, the Republic of Estonia, the Czech Republic, the Slovak Republic, the Republic of Latvia, the Republic of Lithuania, and the Republic of Poland to the Treaties For the Encouragement and Reciprocal Protection of Investment (The Protocols were signed on different dates, from September 2003-Janaury 2004, and were referred to the Committee on Foreign Relations to be printed for the use of the Senate on March 12, 2004)

The United States has entered into several protocols as a "result of an understanding the United States reached with the European Commission and six countries that will join the European Union ("EU") on May 1, 2004 (the Czech Republic, Estonia, Latvia, Lithuania, Poland, and the Slovak Republic) as well as with Bulgaria and Romania, which are expected to join the European Union in 2007." According to the U.S. Secretary of State's Letter of Submittal in all of the above-mentioned protocols, "the agreement is designed to preserve [U.S]. bilateral investment treaties ("BITs") with each of these countries after their accession to the EU by establishing a framework for avoiding or remedying present and future incompatibilities" between U.S. BITs with these countries and "their future obligations of EU membership." It further provides that the understanding between the United States and each of the above-mentioned BIT partners is "that they will, through an exchange of notes, interpret two BIT provisions: (1) the right of each BIT Party to take measures necessary for the protection of its own essential security interests, and (2) the BIT prohibition of performance requirements."

Article I of the Additional Protocol between the United States and Poland provides that Poland may impose certain kinds of performance requirements in the agricultural and audio-visual sectors. Article II provides that the terms of the free trade area/customs union exception shall apply to all obligations of a Party by virtue of its membership in an economic integration agreement that includes a free trade area or customs union (e.g., the European Union), including obligations owed to nationals or companies of any third country. Article III provides that the BIT parties will consult promptly whenever either party believes that steps are necessary to preserve compatibility of the BIT with the EC Treaty. Article IV states that in certain sectors, the EU member country may take a reservation against national treatment and most-favored-nation treatment obligations of the BIT, provided that such reservation is necessary to meet the country's obligations under EU law, and subject to the following exception that, notwithstanding any such new reservation, existing U.S. investments in the country shall remain protected under the national treatment or most-favored-nation treatment obligations of the BIT for at least 10 years from the date of the relevant EU law which made the reservation necessary. Finally, it provides that the United States reserves the right to make or maintain limited exceptions to national treatment obligations to two new sectors or matters, fisheries and subsidies, and to the most-favored-nation treatment in  fisheries.

Documents provided to the ILM office.

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JUDICIAL AND RELATED DOCUMENTS

International Court of Justice (ICJ): Case Concerning Avena and other Mexican Nationals (Mexico/United States of America), No. 128 (March 31, 2004) 

The International Court of Justice ("ICJ") or (the "Court") found by fourteen votes to one that the United States breached its obligations under Article 36, paragraph 1(b) of the Vienna Convention on Consular Relations of April 24, 1963 (the "Convention"). It concluded, inter alia, that the United States failed to inform without delay 51 Mexican nationals of their rights under the Convention upon their detention.

The United States argued that the ICJ was without jurisdiction to review the appropriateness of sentences in criminal cases, and could not determine guilt or innocence, for such matters could only be within the jurisdiction of a criminal court of appeal. The Court found that this contention concerned remedies and would be a matter of merits and not jurisdiction. The United States further contended that local remedies remain in every case alleged by Mexico and that therefore the customary requirement of exhaustion of local remedies had not been met.

The ICJ found that "violations of the right of the individual under Article 36 of the Vienna Convention may result in a violation of the rights of the sending State, and that violations of the rights of the latter may entail a violation of the rights of the individual. In these special circumstances of interdependence of the rights of the State and of individual rights, Mexico may, in submitting a claim in its own name, request the Court to rule on the violation of rights which it claims to have suffered both directly and through the violation of individual rights conferred on Mexican nationals under Article 36, paragraph 1(b)." The Court concluded that the "the duty to exhaust local remedies does not apply to such request."

In addressing the merits, the Court examined the meaning of Article 36, paragraph 1(b), notably the questions of (1) whether the United States had an obligation under such article to individuals of dual Mexican/United States nationality and (2) the meaning of the expression "without delay".

The United States contended that a substantial number of the 52 persons listed by Mexico in paragraph 16 of the judgment were United States nationals and therefore it had no obligation to such individuals under Article 36, paragraph 1(b) of the Convention. The United States also alleged that seven of those arrested appeared to have affirmatively claimed that they were United States citizens at the time of their arrest. The Court found that the United States did not meet its burden of proof to attempt to show that the persons arrested were indeed United States nationals. Only in one case (that of Mr. Salcido) did the court find that the United States provided evidence showing that the individual arrested claimed to be a U.S. national and there were no indications that he was a Mexican national. In this case the Court found that the United States was not in violation of the Convention.

In terms of the meaning of "without delay", the Court found that it is not necessarily to be interpreted as "immediately" upon arrest. The Court noted that it could not be interpreted to mean "that the provision of such information necessarily precede any interrogation." In this case, the Court found that with one exception, consular notification information was either given not at all or at periods significantly removed from the time of arrest.

Also at issue was the question of remedies. The United States argued that it acted in conformity with the "review and consideration" remedy set forth in the LaGrand judgment, for the Court in LaGrand granted the United States the choice of means for allowing the review and reconsideration of the conviction.  Mexico contended that the United States' clemency procedures were an inadequate means of carrying out the review and reconsideration obligation under LaGrand.

The Court observed that "[t]he rights guaranteed under the Vienna Convention are treaty rights which the United States has undertaken to comply with in relation to the individual concerned, irrespective of the due process rights under United States constitutional law." Further, the Court concluded that "...where the breach of the individual rights of Mexican nationals under Article 36, paragraph 1(b) of the Convention has resulted, in the sequence of judicial proceedings that has followed, in the individuals concerned being subjected to prolonged detention or convicted and sentenced to severe penalties, the legal consequences of this breach have to be examined and taken into account in the course of review and reconsideration. The Court considers that it is the judicial process that is suited to this task."

Click here for the decision. 

President Shi and Vice-President Ranjeva appended declarations to the Judgment of the Court; Judges Vereshchetin, Parra-Aranguren and Tomka and Judge ad hoc Sepúlveda appended separate opinions to the Judgment of the Court.

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International Criminal Tribunal for Former Yugoslavia (ICTY): The Prosecutor v. Ranko Ce?ic Case No. IT-95-10/1-S (March 11, 2004)

The Trial Chamber of the International Tribunal for Former Yugoslavia ("ICTY") sentenced Mr. Ranko Ce?ic ("Ce?ic") to imprisonment for 18 years for the murder and rape of Muslim and Croat men held in a detention camp from May to June 1992.

Ce?ic became a member of the Bosnian Serb Territorial Defense in May 1992. He then became a member of the intervention platoon of the Bosnian-Serb Police Reserve Corps in Brcko and Bosnian-Serb Territorial Defense group. In this capacity, one of his tasks was to arrest specified non-Serbs and to bring them to the Brcko police station and/or the Luka detention facility for interrogation.

Ce?ic was arrested in Belgrade by the authorities of the Federal Republic of Yugoslavia on May 25, 2002. Ce?ic was charged under Article 7(1) of the ICTY Statute for 12 counts comprising six counts of crimes against humanity, five for murder and one for rape, and six counts of violations of the laws or customs of war, five for murder and one for humiliating and degrading treatment.

The indictment alleged, inter alia, that Mr. Ce?ic took a Muslim policeman outside the building where he was detained with others, and after ordering him to say goodbye and shake hands with other detainees, beat him to death. Further it is alleged that Mr. Ce?ic intentionally forced, at gunpoint, two Muslim brothers to engage in sexual acts in the presence of others. Further the indictment alleged that he beat to death a Muslim detainee using clubs.

Mr. Ce?ic pleaded guilty to all twelve counts with which he was charged. He admitted that he was aware that, during the time of the violations charged against him, a state of armed conflict existed and that he was required to abide by the laws or customs of war, including the provisions of the Geneva Conventions of 1949. He also acknowledged that all acts and omissions charged were part of a widespread or systematic attack directed against the Muslim and Croat civilian population of Brcko and that he ?had knowledge of the wider context in which his conduct occurred.?

The Defense submitted that Mr. Ce?ic acted pursuant to orders and would have been killed if he had failed to execute them, and that this circumstance should be considered as a mitigating factor under Article 7(4) of the ICTY Statute which provides that: "The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires." The Trial Chamber found that there was sufficient evidence to show that in fact Mr. Ce?ic had some command over other guards and that on the balance of the probabilities, executing superior orders could not constitute a mitigating circumstance.

The Trial Chamber found that the guilty plea in the present case was an important mitigating circumstance. It noted in this regard that when an accused pleads guilty, he or she takes an important step in the rehabilitation and reintegration processes.

The Trial Chamber further decided that Mr. Ce?ic is entitled to credit for 657 days for time served up to and including the date of this judgment.

Click here for the decision.

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Supreme Court of Uganda: Onyango-Obbo and Mujuni Mwenda v. Attorney General, Constitutional Appeal No. 2 of 2002 (February 11, 2004)

The Supreme Court of Uganda applied the African Charter on Human and Peoples' Rights and the International Covenant on Civil and Political Rights in its conclusion that "[m]eaningful participation of the governed in their governance, which is the hallmark of democracy, is only assured through optimal exercise of the freedom of expression." It upheld the appellant's petition to the Constitutional Court and concluded that section 50 of the Penal Code Act was an unjustified limitation on the freedom of expression.

The appeal was brought against a decision of the Constitutional Court in a petition seeking to invoke constitutional protection of the freedom of press. The appellants are journalists who were charged with two counts of the criminal offense of "Publication of False News" in violation of section 50 of the Penal Code Act. The charges arose out of a story from a foreign paper that the appellants used as an excerpt for their story: "President Laurent Kabila of the newly named Democratic Republic of the Congo (formerly Zaire) has given a large consignment of gold to the Government of Uganda as payment for "services rendered" by the latter during the struggle against the former military dictator, the late Mobutu Sese Seko." The other excerpt from the alleged false news was the following: "the Commander of Uganda Revenue's (URA) Anti Smuggling Unit (ASU) Lt. Col. Andrew Lutava, played a key role in the transfer of the gold consignment from the Democratic Republic of Congo to Uganda."

On November 24th, 1997, the appellants sought relief through a joint petition to the Ugandan Constitutional Court under Article 137 of the Constitution. The Constitutional Court postponed judgment pending conclusion of the criminal case in the magistrate's court. The trial court acquitted the appellants of criminal charges. Thereafter, the Constitutional Court considered the petition and decided unanimously that the actions of the Director of Public Prosecutions ("DPP") were constitutional and dismissed the appellant's petition.

Before the Supreme Court of Uganda, the appellants argued that section 50 of the Penal Code Act could not be upheld in a free and democratic society within the meaning of Article 43 of the Constitution and further challenged the vagueness of section 50. The appellants acknowledged in their appeal that the freedom of expression was not absolute, but nevertheless section 50 of the Penal Code was inconsistent with the Constitution because it went beyond what was permitted as limits on expression in Article 43 of the Constitution.

The Supreme Court observed that section 50 is aimed to prevent "expressions that amount to threatening or inciting violence. The danger to the public interest in such circumstances is proximate to the act of expression, and therefore the expression "prejudices" the public interest. A tragic example in recent history is the use of mass media to ignite genocide in Rwanda." However the Supreme Court concluded that section 50 "does not fit within the parameters of clause (1) of Article 43 of the Constitution."

The Supreme Court cited Article 9 of the African Charter on Human and Peoples' Rights, in addition to Article 10 of the International Covenant on Civil and Political Rights in its conclusion that "[f]rom the foregoing different definitions, it is evident that the right to freedom of expression extends to holding, receiving and imparting all forms of opinions, ideas and information. It is not confined to categories, such as correct opinions, sound ideas or truthful information."

The Supreme Court also cited decisions of the European Court of Human Rights and the Supreme Courts of India, Canada and Zimbabwe.

Document provided to the ILM Office.

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Tribunal Supremo (Supreme Court) of  Spain: Judgment in the Case of General Hernán Julio Brady Roche, Judgment No. 319/2004 (March 8, 2004)

The Supreme Court of Spain upheld jurisdiction over claims for torture of Spanish nationals allegedly committed by Chilean former Defense Minister Hernan Julio Brady Roche. 

The Audiencia Nacional having declined to exercise jurisdiction over the claims, an appeal was brought by Laura González Vera, the widow of the Spanish diplomat Don Carmelo Soria, in addition to other individuals and a group called "Izquierda Unida" ("United Left"). Don Carmelo Soria, who was in Chile at the end of the 1936-1939 Spanish Civil War, was kidnapped on July 14, 1976, and his body, showing signs of torture, was later found in Santiago.

At issue was the scope of jurisdiction under Article 23.4 of Spain?s Ley Orgánica del Poder Judicial (Law on Judicial Power), which provides that Spanish courts shall have jurisdiction over international crimes including genocide and terrorism, committed by Spanish or foreign citizens, outside of Spain. The appellants claimed that by virtue of the above-mentioned law, Spanish courts could exercise jurisdiction over their claims for torture.

The Supreme Court noted the reasoning of the Guatemalan Genocide Case (42 ILM 683) and upheld jurisdiction over the claims connected to Spanish nationals.

Click here for the decision (in Spanish)

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International Law In Brief (ILIB) - Copyright 2004