International Law In Brief
Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
June 5, 2007
©2007 American Society of International Law
(Educational copying is permitted with due acknowledgment)
JUDICIAL AND RELATED DOCUMENTS
International Court of Justice: Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) (24 May 2007)
Click here for document. (Approximately 34 pages).
The International Court of Justice (ICJ) held that the Government of the Republic of Guinea (Guinea) has standing to bring suit on grounds of diplomatic protection against the Democratic Republic of the Congo (DRC) on behalf of Mr. Diallo as an individual and as majority shareholder of two Congolese corporations. It did not allow Guinea standing to bring suit "by substitution" on behalf of two private limited liability companies created under Congolese law.
Ahmadou Sadio Diallo, a Guinean citizen, moved to Zaire (after 1997 called the Democratic Republic of the Congo (DRC)) in 1974 and founded Africom-Zaire, a société privé à reponsabilité limitée (private limited liability company) (SPRL), eventually becoming the majority shareholder and manager of another SPRL, Africontainers-Zaire. On 31 October 1995 the Prime Minister of Zaire issued an expulsion order for Diallo, ostensibly because his presence breached the public order. Zaire then deported Diallo to Guinea 31 January 1996
Guinea and the DRC disagreed regarding a number of other facts concerning the case. Guinea maintained that Zaire detained Diallo for a year in 1988 after Diallo tried unsuccessfully to recover business debts that Zaire owed him; and detained him again without juridical process beginning 5 November 1995 for seventy-five days. Guinea claimed that during this second detention Diallo was mistreated and denied the benefit of the 1963 Vienna Convention on Consular Relations. The DRC refuted Guinea's characterization of the facts and instead alleged that Zaire detained Diallo in accordance with domestic law and for no longer than the statutory maximum of eight days. The DRC asserted further that it had good reason to expel Diallo because of his groundless and exaggerated financial claims against both public and private enterprises in Zaire, including his claim that Zaire owed him 36 billion US dollars, which the DRC noted, is almost three times the total amount of the DRC's foreign debt.
In December 1998 Guinea applied to the ICJ alleging that the DRC detained Diallo secretly and without judicial review; denied Diallo his rights under the Vienna Convention on Consular Relations; seized his investments, businesses, bank accounts, and other property, and expelled him. Guinea sought to exercise its diplomatic protection over Diallo in his capacity as an individual, as majority shareholder or "associé" of Africom-Zaire and Africontainers-Zaire, and also on behalf of the companies "by substitution." Guinea requested the ICJ to order the authorities of the DRC to make an official apology to Guinea for the wrongs the DRC perpetrated against its citizen Mr. Diallo, as well as to order the DRC to pay Guinea US $31,334,685,888.45 and Z14,207,082, 872.7 on behalf of Mr. Diallo for his financial losses. Guinea asked the court to order the DRC to pay Guinea damages equal to 15 percent of the principal award.
The DRC requested the ICJ to declare the application of Guinea inadmissible on the grounds that Guinea lacked standing both because the rights which it sought to protect belonged to Congolese companies, not to Mr. Diallo, and because neither Mr. Diallo nor Guinea had exhausted local remedies in the DRC. The ICJ held that Guinea possessed standing to bring suit on behalf of Mr. Diallo as a national of Guinea and a majority shareholder of two companies the DRC purportedly injured by its unlawful acts. The ICJ rejected the DRC's exhaustion of remedies argument noting that the DRC was unable to show the existence of available and effective remedies that Diallo could have used to challenge his expulsion. It likewise refused to grant Guinea standing to bring suit asserting diplomatic protection "by substitution" on behalf of the two SPRLs. The ICJ cited its decision in the Barcelona Traction Case that the right of diplomatic protection of a company belongs to the state in which it is created. In modern international law, the rules governing the rights of companies are generally set forth in bilateral or multilateral agreements and by contracts between states and foreign investors. It is only in the absence of such treaties, or where they have proved inoperative, that the theory of protection by substitution could be raised. This theory is that the foreign shareholders of a company cannot rely on an international treaty and no other remedy is available because the state in which the company was created has committed the unlawful acts. The ICJ rejected Guinea's argument that there is an exception in customary international law allowing for protection by substitution.
European Court of Human Rights: Beharani v. France and Saramati v. France (31 May 2007)
Click here for document. (Approximately 30 pages).
In a suit involving two joined cases, the European Court of Human Rights (ECHR) held that it lacks the competence under the European Convention on Human Rights (the Convention) to examine states' contributions in Kosovo in fulfillment of their duties pursuant to a United Nations (UN) Security Council Resolution. By a majority, the court therefore held the applications to it inadmissible.
After the NATO-led bombing of Kosovo in 1999, the United Nations Security Council issued resolution 1244, which established "KFOR" to control and administer Kosovo and deployed an interim administration (UNMIK) to work in close collaboration with KFOR. Particular nations led KFOR multinational brigades (MNBs) in different sectors of Kosovo. France chaired the MNB Northeast in Mitrovica, and Germany led MNB Southeast in Prizren.
In the first case, a group of boys including brothers Gadaf and Bekim Behrani were playing in the hills near Mitrovica in March 2000 and discovered undetonated cluster bomb units (CBUs) remaining from the NATO bombing. The CBUs detonated and killed Gadaf and blinded Bekim. Their father, Agim Behrami, complained to the Kosovo Claims Office (KCO) that France failed to respect resolution 1244 by failing to clear the CBUs. KCO forwarded the complaint to the French Contributing Nation Claims Office (FCNCO) which rejected it on the ground that 1244 required KFOR to supervise mine clearing operations only until UNMIK could assume responsibility for mine clearing operations.
In the second case, UNMIK police arrested and an investigating judge charged Mr. Saramati with attempted murder on 25 April 2001 and ordered Saramati to be held in pre-trial detention. A district court extended his detention until July 2001 when he was released. After UNMIK police instructed Saramati to report to the police station in Prizren to obtain his money and belongings in July 2001, a Norwegian officer acting pursuant to KFOR orders arrested Saramati and detained him again. A KFOR legal adviser issued a letter explaining that he was being detained pursuant to Security Council Resolution 1244, which authorized KFOR troops to detain individuals in order to "maintain a safe and secure environment," and to protect the safety of KFOR troops. In January 2002 Saramati was convicted of murder and was sent to UNMIK detention in Pristina, where he was held until the Supreme Court of Kosovo quashed his conviction and ordered his re-trial and release. The re-trial has not yet occurred.
Agim Behami (father of the two boys in the first case) sued France in the European Court of Human Rights under Article 2 (right to life) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) on behalf of himself and his sons. He blamed the accident upon French KFOR troops' failure to mark and/or defuse the CBUs. Saramati brought suit against France, Germany, and Norway, pursuant to Articles 5 (right to liberty and security?) 6 (right to a fair trial) and 13 (right to an effective remedy) for KFOR's extra-judicial detention of him. In November 2006 Saramati requested the court to drop his complaint against Germany because he could not produce evidence of German involvement in his arrest.
The court examined whether it possessed the competence to review the states' contribution to the civil and security presences in Kosovo and the relationship between the Convention and the UN acting pursuant to Chapter VII. The court held that it does not possess the competence to review states' actions taken pursuant to UN Security Council Resolutions. To do so would "interfere with the fulfillment of the UN's key mission' of peace and security as well as impose requirements upon the fulfillment of a UN Security Council Resolution that are not included in its text.
World Trade Organization Panel Report: U.S. - Measures Affecting the Cross-Border Supply of Gambling and Betting Services: Recourse to Article 21.5 of the DSU by Antigua and Barbuda (30 March 2007) (adopted by the Dispute Settlement Body on 22 May 2007)
Click here for document (Approximately 41 pages).
In a proceeding under Article 21.5 of the Dispute Settlement Understanding (DSU), a World Trade Organization (WTO) Compliance Panel concluded that the U.S. has not taken measures to comply with the recommendations and rulings of the Dispute Settlement Body (DSB) in the dispute regarding U.S. - Measures Affecting the Cross-Border Supply of Gambling and Betting Services (adopted on 20 April 2005) and has therefore failed to comply with those recommendations and rulings.
The original Panel found that the U.S. had failed to demonstrate that the Travel Act and the Illegal Gambling Business Act (IGBA) are applied consistently with the requirements of the chapeau of Article XIV of the General Agreement on Trade and Services (GATS). By maintaining these measures the U.S. was acting inconsistently with its obligations under Article XVI:1 and subparagraphs (a) and (c) of Article XVI:2 of GATS. The DSB requested that the U.S. bring its measures into conformity with such obligations.
The parties disagreed on the effect of this recommendation. Antigua argued that the U.S. had not taken any action to comply with the DSB recommendations and rulings; and the Wire Act, the Travel Act and IGBA violate U.S. obligations under GATS. By contrast, the U. S. contended that these measures were consistent with its GATS obligations; but that the U.S. had failed to meet its burden of proof in the original proceeding. According to the U.S., new evidence and arguments made during the compliance proceeding met the burden of showing that the measures at issue are in compliance with its GATS obligations.
The Compliance Panel found that there had been no change in the measures since the original proceeding and rejected the U.S. position that the same measures at issue in the original proceeding constitute "measures to comply". According to the Compliance Panel, under Article 17.14 of the DSU all conclusions of an Appellate Body report adopted by the DSB must be unconditionally accepted by the parties and are the final resolution of the dispute in question. The Compliance Panel concluded that under the circumstances it cannot agree with the U.S. request to reach a conclusion different from that reached by the original Panel as upheld by the Appellate Body and adopted by the DSB, without any change in the measures at issue.
Briefly Noted: International Criminal Court: Prosecutor Opens Investigation in Central African Republic (22 May 2007)
Click here for more information.
Luis Moreno-Ocampo, Prosecutor of the International Criminal Court (Prosecutor), announced the decision to open an investigation into alleged crimes in the Central African Republic (CAR). The decision was made based on the gravity of the alleged crimes, which include "killings and large-scale sexual crimes." The investigation-the Court's fourth-was opened in accordance with Article 53 of the Rome Statute of the International Criminal Court.
The CAR Government referred the situation to the Office of the Prosecutor (OTP) on 22 December 2004. The Central African authorities provided information regarding proceedings held by the national judiciary and allegations of crimes, which were also reported by NGOs and international organizations. The OTP also conducted its own mission to Bangui in November 2005. Based on the information available, the Prosecutor concluded that the jurisdiction, admissibility, and interests of justice requirements of the Rome Statute were satisfied such that an investigation is appropriate.
The Prosecutor's investigation will focus on the most serious crimes, including killing, looting and rape, which mainly occurred "during a peak of violence in 2002-03." The numerous allegations of rape and other acts of sexual violence are particularly notable and, according to the Prosecutor's statement, these alleged crimes will be a focus of the investigation.
The Prosecutor's investigation will cover crimes committed after July 1, 2002, when the ICC Statute entered into force. Additionally, the Prosecutor will focus on "individuals bearing the greatest responsibility for the most serious crimes." Currently, "the investigation is not directed at a particular suspect." The OTP will also continue to closely monitor allegations of crimes committed since the end of 2005 when violence again erupted in parts of CAR's territory.
United States: Cisneros v. Aragon (21 May 2007 10th Cir.)
Click here for document. (Approximately 14 pages).
The Tenth Circuit Court of Appeals affirmed a district court's dismissal of an Alien Tort Statute suit holding that the crime of statutory rape did not constitute a violation of the law of nations as defined by the United States Supreme Court case of Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).
Carmen Cisneros, a Mexican citizen, married Michael Aragon in Wyoming in 1987 when she was fifteen years old. Their marriage dissolved thirteen years later. Ms. Cisneros subsequently sued Mr. Aragon under both the Alien Tort Statute, 28 U.S.C. §1350 (ATS); and 18 U.S.C. §2255(a), which allows minor victims of federal statutory sex crimes to bring suit in federal district court for damages. The district court granted Mr. Aragon's motion for summary judgment on the ground that it lacked subject matter jurisdiction. It held that the sexual crimes did not constitute torts in "violation of the law of nations" as necessary to establish a case under the ATS; and that Ms. Cisneros did not offer sufficient evidence that the alleged crimes occurred in the special maritime or territorial jurisdiction of the United States as required by the federal criminal statute.
The ATS provides district courts with original jurisdiction to hear civil actions brought by aliens for torts committed in violation of the law of nations or of a treaty of the United States. (See 28 U.S.C. §1350). Ms. Cisneros alleged that the statutory rape violated the law of nations. The Tenth Circuit examined the Supreme Court decision of Sosa for guidance whether the alleged tort would constitute a violation of the law of nations. While the Supreme Court in Sosa concluded that there may be additional causes of action that would rise to the level of a "norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th century paradigms" (of piracy, violation of safe conducts, and infringement on the rights of ambassadors); it urged federal courts to exercise caution in doing so. The Supreme Court required that the tort be defined with specificity and that it be the sort of violation that could have a substantial impact upon international affairs. The Tenth Circuit rejected Ms. Cisneros's argument that the federal criminal statutes provided a basis for asserting that the "law of nations" was violated because a U.S. statute may or may not express a norm of international law. The court also rejected Ms. Cisneros's contention that it could take judicial notice of Articles 16 and 34 of the United Nations Convention on the Rights of the Child and legislation on sexual offenses against children from Interpol member states to meet the law of nations requirement. The Tenth Circuit emphasized that neither provided norms of international law that meet the Sosa test.
United Nations Security Council Resolution 1757 Special Tribunal for Lebanon (30 May 2007)
Click here for document. (Approximately 20 pages).
Acting pursuant to Chapter VII of the United Nations Charter, the Security Council decided that the provisions of a document appended to the resolution, the Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon (the Agreement), would enter into force 10 June 2007 unless Lebanon notifies the Security Council before that date. If the Secretary-General determines that Lebanese contributions are insufficient to fund the tribunal as described in Article 5(b) of the Agreement, the Security Council authorized the Secretary-General to accept and/or use voluntary contributions from states to cover the shortfall. The Secretary-General, in consultation with the government of Lebanon, and taking into consideration the work of the International Investigation Commission, will establish the date that the Special Tribunal will begin operating pursuant to Article 19(2) of the Agreement.
The Agreement establishes a Special Tribunal to prosecute those responsible for the 14 February 2005 assassination of former Lebanese Prime Minister Rafiq Hariri and the death and/or injury of other individuals. If the tribunal discovers that there were other attacks in Lebanon between 1 October 2004 and 12 December 2005, or a later date, that the parties set and to which the Security Council consents, the Tribunal will also possess jurisdiction over those attacks. Article 8 of the Agreement sets the headquarters of the Special Tribunal outside Lebanon with the exact location to be determined "having due regard to considerations of justice and fairness as well as security and administrative efficiency, including the rights of victims and access to witnesses" and subject to a headquarters agreement between the United Nations and the state hosting the tribunal. Pursuant to Article 21, the Agreement will remain in force for three years from the date that the Special Tribunal begins its operations. The Statute of the Special Tribunal for Lebanon is appended to the Agreement.
United Nations Security Council Resolution 1756 Democratic Republic of the Congo (15 May 2007)
Click here for document (Approximately 7 pages).
Acting pursuant to Chapter VII of the United Nations (UN) Charter, the Security Council extended the deployment of the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) to 31 December 2007, and authorized the continued deployment of 17,030 military personnel, 760 military observers, 391 police trainers and 750 personnel of formed police units. The Security Council specified that MONUC's mandate will include helping the Democratic Republic of the Congo (DRC) to protect civilians and humanitarian personnel under "imminent" threat of violence; improving the security situation in which humanitarian assistance is provided; assisting in the voluntary return of refugees and internally displaced persons; and ensuring the security and freedom of movement of United Nations and related staff. MONUC will also conduct inspections of aircraft and cargo in North and South Kivu and Ituri and is permitted to seize any arms or related material that violates the arms embargo imposed in Security Council Resolutions 1493 and 1596. The Security Council instructed MONUC to help the DRC with security sector reform and to train the Armed Forces of the Democratic Republic of the Congo (FARDC) on human rights, international humanitarian law, child protection and prevention of gender-based violence. MONUC must help the FARDC to disarm "recalcitrant" local armed groups and foreign armed groups, and prevent illegal armed groups from obtaining support. The Security Council "demands" that the militias and armed groups in the east of the DRC lay down their arms. The Security Council authorized MONUC to "use all necessary means" to carry out the work specified in the resolution.
The Security Council urges all of the governments in the region, and particularly Burundi, the DRC, Rwanda, and Uganda, to remedy their security problems and prevent the use of their territories by armed militias in violation of the arms embargoes imposed by Security Council Resolutions 1493 and 1596. It calls for the signatories of the Security, Stability, and Development Pact for the Great Lakes Region (see 46 ILM 173) to ratify the Pact and implement it as soon as possible. It further encourages all states in the region to end the illegal trade in natural resources.
MONUC has a budget of over one billion dollars and is the largest and most expensive peacekeeping mission in the United Nations Division of Peacekeeping Operations. (For additional information about MONUC click here).
C40 Summit Communique (16 May 2007)
Click here for document. (Approximately 1 page)
The Mayors or Governors from 40 of the larges cities in the world met in New York 14 May to 17 May 2007 for the second C40 Large Cities Climate Summit. Participants included: Mayor Bloomberg, New York, Governor Apirak Kosayodhin, Bagkok, Mayor Luis Eduardo Garzon, Bogota, Mayor Marcelo Ebrard Casaubon, Mexico City, Mayor Shubha Umesh Raul, Mumbai, Mayor Gilberto Kassab, Sao Paulo, Governor Shintaro Ishihara, Tokyo, Mayor Ken Livingston, London, Mayor Laus Wowereit, Berlin, Mayor Amos Masondo, Johannesburg, and Mayor Oh se-hoon, Seoul. The first summit was held in London, England in 2005.
Its purpose was to create long-term partnerships to reduce carbon emissions and encourage cities to collaborate with businesses and government to expedite action on climate change. At the conclusion of the 2005 summit, the C40 Large Cities Climate Leadership Group was formed.
Because cities account for 75% of global carbon emissions, in the communiqué leaders and representatives of large city governments recognize the responsibility that cities must shoulder to reduce greenhouse gas emissions. They indicate that "the fight against climate change will therefore be won or lost in cities." They agree to collaborate to expedite work to reduce greenhouse gas emissions and respond to climate change. They take note of the most recent findings of the United Nation's Intergovernmental Panel on Climate Change (IPCC) and the urgency of the need to address climate change. They call on G8 leaders to take the IPCC findings and those of the Stern review into account in their discussions at the G8 Summit. They also urge the Parties to the UN Framework Convention on Climate Change to start negotiations for a post 2012 framework when they meet in Bali in November.
International Law In Brief (ILIB) - Copyright 2007 - The American Society of International Law (ASIL)
Author: Susan A. Notar, Esq., with the assistance of Tina Hofmann and Rakhee Vemulapalli
ILIB is a free-of-charge electronic resource. To sign up for ILIB or ASIL Insights, click here.
To comment on this publication, send an e-mail message to Susan Notar, ILM Managing Editor at snotar@asil.org