International Law In Brief
Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
June 20, 2007
©2007 American Society of International Law
(Educational copying is permitted with due acknowledgment)
| RESOLUTIONS, DECLARATIONS AND OTHER DOCUMENTS· | |
| | G8 Summit Declaration: Growth and Responsibility in the World Economy (7 June 2007) |
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TREATIES, AGREEMENTS AND RELATED DOCUMENTS
Council of Europe: Convention on Cybercrime (Entered into Force for the United States 1 January 2007)
Click here for document (Approximately 24 pages)
The Committee of Ministers of the Council of Europe adopted the Convention on Cybercrime (Convention) 8 November 2001 and opened it for signature on 23 November 2001 to member states of the Council of Europe and non-member states, including the United States, which participated in its deliberation. It is the first legally binding multilateral instrument that addresses crimes perpetrated through the Internet and other computer networks and includes computer-related fraud, violations of network security, copyright infringement, and child pornography. The United States Senate gave its advice and consent to the Convention 3 August 2006. As of 6 June 2007, twenty-two nations have signed the Convention and twenty-one have ratified it.
The Convention contains four chapters: (I) Use of terms; (II) Measures to be taken at the domestic level - substantive and procedural laws; (III) International co-operation; and (IV) Final clauses. The preamble enunciates the main purpose of the Convention, to pursue "a common criminal policy aimed at the protection of society against cybercrime." To attain this goal, the Convention requires states parties to adopt domestic legislation criminalizing the unauthorized access to, interception of, interference with, and misuse of, computer systems. States must proscribe computer hacking; spreading viruses or worms; computer-related forgery and fraud; child pornography made, produced or shared on computer systems; and copyright infringement. Likewise, states must criminalize the aiding or abetting of computer crimes, and attempted computer offenses.
In addition to substantive criminal law, the Convention also provides for the implementation of procedural law. Section 2 of Chapter II of the Convention requires Parties to adopt the necessary measures "to establish the powers and procedures" that allow for "specific criminal investigations or proceedings." Some of the procedural requirements include expedited preservation of stored computer and traffic data, production orders, search and seizure of stored computer data, and interception of content data. The procedural requirements are subject to conditions and safeguards to "provide for the adequate protection of human rights and liberties." Section 3 of Chapter II addresses the question of jurisdiction.
The Convention facilitates international cooperation in combating crimes through provisions to obtain and share electronic evidence. Some of the principles in Chapter III, which specifically addresses international cooperation, include those relating to extradition, mutual assistance, spontaneous information, confidentiality, and limitation on use.
An additional protocol to the Convention concerning the criminalization of acts of a racist and xenophobic nature committed through computer systems was opened for signature on 28 January 2003. The United States is not a Party to that protocol.
South Pacific Regional Fisheries Management Organisation: Interim Measures Adopted by Participants (4 May 2007)
Click here for document. (Approximately 5 pages).
South America, Australia, Chile, and New Zealand are establishing the South Pacific Regional Fisheries Management Organization (SPRFMO) to provide needed international conservation oversight of certain fisheries in part of the South Indian Ocean, the Pacific Ocean, and the Exclusive Economic Zones (EEZs). The most recent meeting to create a SPRFMO was held in February 2007 in Renaca, Chile. The SPRFMO will operate consistently with the United Nations Convention on the Law of the Sea, and the United Nations Agreement on Straddling Fish Stocks and High Migratory Fish Stocks (1995).
While the SPRFMO is still being negotiated, the parties have agreed to a series of interim measures that will be effective 30 September 2007 until the entry into force of the Agreement, unless specified otherwise. One of the most important of these interim measures addresses fishing on the sea bottom. The parties commit to limit "bottom fishing" to the average annual levels during the period 1 January 2002 to 31 December 2006. Beginning in 2010, before opening new sections of the South Pacific Ocean to bottom fishing, or increasing fishing levels, the parties will create conservation and management tools to "prevent significant adverse impacts on vulnerable marine ecosystems and the long-term sustainability of deep sea fish stocks from individual bottom fishing activities."
Luxembourg Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Railway Rolling Stock (23 February 2007)
Click here for document. (Approximately 21 pages).
Forty-two states and eleven international organizations participated in the diplomatic conference to adopt a Rail Protocol to the Convention on International Interests in Mobile Equipment. The Conference adopted the Luxembourg Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Railway Rolling Stock ("Railway Protocol"), which opened for signature on 23 February 2007. As of 12 June 2007, four countries (Italy, Ghana, Switzerland, and Luxembourg) had signed the protocol. By creating security interests in railway rolling stock and establishing a means of tracking these interests to ensure their protection, the Railway Protocol is anticipated to benefit many parties in the railway industry by improving access to private capital.
The railway industry is in need of capital to compete against other transport industries with more flexible financing models, such as the aviation industry. Certain features of the railway industry make raising capital difficult however. For example, railway operators are often state-owned and privatization may not be politically acceptable. Also, risk-averse financiers do not want their assets physically present in foreign jurisdictions and thereby exposed to foreign claims.
The Railway Protocol adapts the general principles of the Convention on International Interests in Mobile Equipment ("Convention") to the particular needs of the railway industry. The primary objective of the Railway Protocol is to provide efficient financing of railway rolling stock by 1) creating international security interests for railway rolling stock; and 2) establishing a global registry to track these interests.
Pursuant to Article V of the Railway Protocol, a written agreement identifies an international security interest when the agreement describes, by specified means, rolling stock with which the chargor, conditional seller, or lessor has power to dispose. Should the debtor default, the Railway Protocol provides additional remedies to those included in the Convention. For example, Article VII permits a creditor to procure the export and physical transfer of its rolling stock from the territory in which it is situated. A creditor should exercise this remedy with the prior consent of any registered interest ranking in priority to that of the creditor and after providing prior notice to other interested persons. Contracting States should also ensure expeditious cooperation with the creditor to the extent necessary to realize this remedy.
The Railway Protocol also creates a special insolvency regime governing creditor's rights in Article IX. A Contracting State may declare that it opts in to any or all of the regime's three alternatives. Alternative A, a rule-based approach, requires the debtor to give possession of the rolling stock to the creditor within a specified time period or to cure all defaults within that time period. Alternative B, a discretion-based approach, allows the debtor to notify the creditor at the creditor's request whether the debtor will cure all defaults or give the creditor the opportunity to take possession of the rolling stock. Alternative C, a debtor-focused approach, requires the debtor to cure all defaults or give the creditor the opportunity to take possession of the rolling stock, but also allows the debtor to apply to a court for an order suspending the debtor's obligation to allow the creditor to take possession of the rolling stock.
Along with creating security interests, Article XII of the Railway Protocol establishes a registry and supervisory authority to track identification numbers associated with an interest in items of railway rolling stock. Article XV makes the Registrar liable for financial loss caused by error, gross negligence, or intentional misconduct in tracking the interests in rolling stock.
JUDICIAL AND RELATED DOCUMENTS
United States: Al-Marri v. Wright, (June 11 4th Cir. 2007)
Click here for document. (Majority decision approximately 76 pages, dissent approximately 10).
The Fourth Circuit Court of Appeals held that the Military Commissions Act of 2006 (MCA) does not apply to Ali Saleh Kahlah al-Marri (al-Marri). It reversed the decision of the district court below it dismissing al-Marri's habeas corpus petition, and remanded the case with instructions for the district court to issue a writ of habeas corpus directing the Secretary of Defense to release al-Marri from military custody within a "reasonable period of time.?"The court stated "[t]he Government can transfer al-Marri to civilian authorities to face criminal charges, initiate deportation proceedings against him, hold him as a material witness in connection with grand jury proceedings, or detain him for a limited time pursuant to the Patriot Act. But Military detention of al-Marri must cease."
Al-Marri entered the U.S. with his family lawfully on September 10, 2001 to begin master's degree studies at Bradley University in Peoria, Illinois. FBI agents arrested him there on December 12, 2001, as a material witness to the September 11 attacks. The case has a convoluted procedural history. On June 23, 2003, President George W. Bush issued an order stating that he "determined" that al-Marri was an enemy combatant, closely allied with al-Qaeda, and engaged in conduct that constituted hostile and war-like acts, including international terrorism; and represented a continuing grave national security threat to the U.S. The President ordered al-Marri to be transferred to the Secretary of Defense for detention as an "enemy combatant." The military moved al-Marri to a Naval Brig in South Carolina where it held him for sixteen months without access to counsel or contact with his family.
In July 2004, al-Marri's counsel filed a habeas corpus petition on his behalf. In reply, the government cited the declaration of Jeffrey N. Rapp (Rapp declaration), Director of the Joint Intelligence Task Force for Combating Terrorism, stating that al-Marri was closely affiliated with al Qaeda and trained at an al Qaeda training camp and was preparing for international terrorism designed "to cause injury or adverse effects in the U.S." Al-Marri replied that he was not an enemy combatant and moved for summary judgment. A district court judge denied the motion and referred the case to a magistrate for consideration in light of Hamdi v. Rumsfeld, 542 U.S. 507 (2004). The magistrate held that the Rapp declaration provided al-Marri with sufficient notice of the grounds for his detention and ordered him to file rebuttal evidence. Al-Marri replied by denying the government's allegation. He did not submit rebuttal evidence however, because he claimed that the government bore the burden of showing that he was an enemy combatant and the Rapp declaration was insufficient to demonstrate this. The magistrate judge held, and the district court concurred, that al-Marri failed to rebut the allegations in the Rapp declaration, and dismissed al-Mari's habeas petition. Al Marri appealed to the Fourth circuit, which reversed.
In its analysis the Fourth Circuit concluded that the language and legislative history of the MCA make clear that Congress did not intend for people such as al-Marri, who the government captured and detained within the U.S., to fall within the ambit of the habeas stripping provisions of the MCA. Moreover, the court was not swayed by the government's argument that the Authorization for Use of Military Force (AUMF), Pub. L.107-40, 115 Stat. 224 (2001), permitted the President to order the military to seize and detain al-Marri as an enemy combatant. It examined Hamdi v. Rumseld, 542 U.S. 507 (200)(plurality); and Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005), and opined that neither case compelled the conclusion that the AUMF authorized the President to detain al-Marri as an enemy combatant. The Fourth Circuit also refuted the Government's argument that the President possesses "inherent constitutional authority" to order the military to seize and detain al-Marri. While the Patriot Act provides the President with broad authority to handle "terrorist aliens," §412 it permits only their short-term detention by civilian authorities. In addition, the court noted, al-Marri is a citizen of Qatar, a nation with which the U.S. is not at war, and he entered the U.S. legally.
World Trade Organization Appellate Body Report: Chile - Price Band System and Safeguard Measures Relating to Certain Agricultural Products: Recourse to Article 21.5 of the DSU by Argentina (7 May 2007) (adopted by the Dispute Settlement Body on 7 May 2007)
Click here for document (approximately 95 pages)
In a proceeding under Article 21.5 of the Dispute Settlement Understanding (DSU), a World Trade Organization (WTO) Appellate Body upheld the compliance panel's (the Panel) findings that (i) Chile's amended price band system, as applied to imports of wheat and wheat flower (the measure at issue), is a "border measure" similar to a "variable import levy" and to a "minimum import price" within the meaning of footnote 1 of Article 4.2 of the Agreement on Agriculture and (ii) by maintaining such a border measure, Chile is acting inconsistently with its obligations under Article 4.2 and has not implemented the recommendations and rulings of the Dispute Settlement Body (DSB). The Appellate Body recommended that the DBS request Chile to bring the measure at issue into conformity with its obligations under the Agreement on Agriculture.
The Panel found and the Appellate Body in the original proceeding upheld that by failing to convert its price band system into ordinary customs duties Chile acted inconsistently with the provision of Article 4.2 of the Agreement on Agriculture. The DSB adopted the original Panel and Appellate Body reports. In order to comply with the recommendations and rulings of the DSB, Chile made amendments to its price band system, adopting the measure at issue in this case. Argentina believed that Chile had failed to comply with the DSB recommendations and challenged the measure at issue in Article 21.5 proceedings. In the Article 21.5 proceedings, the Panel found that the measure at issue was a "border measure" similar to a "variable import duty" and to a "minimum import price", and that, by maintaining it, Chile was acting inconsistently with Article 4.2 and had thus failed to implement the recommendations and rulings of the DSB.
Chile filed a notice of appeal, alleging that the Panel had erred in (i) its allocation of the burden of proof; and (ii) its interpretation of Article 4.2 and footnote 1 in finding that the measure at issue is "similar" to a "variable import levy" and to a "minimum import price" and is inconsistent with Article 4.2. Chile further alleged that the Panel had failed to (i) conduct an objective assessment of the matter before it as required under Article 11 of the DSU, and (ii) set out a basic rationale for its findings as required under Article 12.7 of the DSU. Argentina requested that (i) the Appellate Body reject Chile's claims of error in its entirety and uphold the Panel's findings and conclusions, and (ii) in the event of a reversal, to find that the measure at issue is inconsistent with the second sentence of Article II:1(b) of the GATT 1994. As set forth above, the Appellate Body upheld the Panel's findings and did not therefore find it necessary to rule on Argentina's appeal. The Appellate Body found that the Panel (i) did not err in its allocation of the burden of proof, its interpretation of Article 4.2 and footnote 1, or its application of those provisions to the measure at issue, and (ii) did not fail to conduct an objective assessment of the matter before it as required by Article 11 of the DSU or to set out a basic rationale for its findings as required by Article 12.7 of the DSU.
International Centre for Settlement of Investment Disputes (ICSID): Waguih Elie George Siag and Clorinda Vecchi v. The Arab Republic of Egypt: Decision on Jurisdiction (11 April 2007)
Click here for document. (Approximately 69 pages).
Members of the Tribunal: Professor Michael Pryles (Arbitrator), Professor Francisco Orrego Vicuña (Arbitrator), Mr. David A. R. Williams Q.C. (President)
A split ICSID tribunal held that it had jurisdiction over a property dispute between Waguih Elie George Siag and Clorinda Vecchi ("Claimants") and the Arab Republic of Egypt ("Respondent"). The decision raised questions whether the tribunal had abandoned the strict treatment of individual nationality required by the ICSID Convention in favor of a more flexible treatment of individual nationality similar to the treatment of corporate nationality.
The Egyptian government sold property in Egypt to the Claimants to develop a tourist resort in 1989. Seven years later the Egyptian government confiscated the property. The Claimants brought the dispute before ICSID under the Italy-Egypt bilateral investment treaty ("BIT"). The BIT prohibits nationalization or expropriation and provides investors access to arbitration pursuant to the ICSID Convention. Article XXV of the ICSID Convention extends ICSID jurisdiction to disputes between a Contracting State and an individual when 1) the individual has the nationality of a Contracting State (a positive requirement), and 2) the individual does not have the nationality of the Contracting State that is party to the dispute (a negative requirement). Thus, the ICSID Convention does not allow Egyptian nationals to bring claims against Egypt, but the Convention would allow Italians to bring claims against Egypt. The Convention leaves the determination of nationality to national law with reference to international law as may be appropriate in the circumstances.
The Respondent argued that both Claimants were Egyptian nationals and therefore did not meet the negative nationality requirement. Not only did the Claimants have official documentation of their Egyptian nationality, but they also had never complied with Article X of the Egyptian nationality law requiring them to obtain permission or decree that they had given up their Egyptian nationality.
The Claimants responded that official documents were only prima facie evidence of nationality and that the ICSID tribunal should conduct its own analysis of Egyptian law. The claimants offered a literal interpretation of the nationality laws supported by the opinions of legal scholars. In their view, the claimants had lost their Egyptian nationality because they had not declared their intent to maintain their Egyptian nationality after having obtained another nationality.
Based on ICSID practice and an Egyptian Administrative Court decision, the ICSID tribunal agreed with the Claimants that official documents "have no legal value in providing Egyptian nationality." The tribunal also rejected the Respondent's interpretation of domestic law because there was no domestic case law on point and the "plain language" of the nationality law required the claimants to make a declaration of intent to retain Egyptian nationality after being granted another nationality. Both claimants met the negative nationality requirement because they failed to make a declaration after being granted nationality from other countries. Furthermore, the ICSID tribunal Champion Trading case established an Article XXV regime that did not leave room for the effective nationality test unless dual-nationality was at issue. Because dual-nationality was not an issue here, this case did not present a situation where international law principles could override the operation of domestic law.
In a partial dissent, arbitrator Orrego Vicuña called Mr. Siag's question of nationality "artificial" for the property dispute at hand. The investment was made by an Egyptian citizen who kept all links with Egypt, who benefited from that citizenship when making the investment, and who brought the claim under a BIT with Italy, a country with which he had few connections. The international law principle of effectiveness must intervene to prevent the use of a nationality that is more convenient to Mr. Siag from prevailing over the real and effective nationality.
United States Supreme Court: Permanent Mission of India to the United Nations v. New York (14 June 2007)
Click here for document. (Approximately 10 pages) Justice Thomas delivered the opinion of the Court in which Chief Justice Roberts, and Justices Scalia, Kennedy Souter, Ginsburg, and Alito, joined. Justice Stevens filed a dissenting opinion in which Justice Breyer joined.
The Supreme Court held that the Foreign Sovereign Immunities Act (FSIA) 28 U.S.C. §1602 et seq., does not immunize a foreign sovereign from suit to determine the legitimacy of tax liens on property it owns to house its employees.
The Permanent Mission of India to the United Nations (UN) contains diplomatic office space and approximately twenty floors of rent-free housing for employees and their families in New York City. Likewise, the Ministry for Foreign Affairs of the People's Republic of Mongolia is located in a six-story building in New York with a portion of the building providing housing for Ministry staff and their families. New York law exempts property from taxation if it is used "exclusively" for diplomatic offices or for the residence of ambassadors or plenipotentiaries to the United Nations. See N.Y. Real Prop. Tax Law Ann. §418. In other circumstances, only the portion of the property used for offices or ambassadorial residences will be considered to have tax-exempt status. India and Mongolia refused to pay taxes on the portions of its mission housing lower level employees. New York converted the unpaid taxes into tax liens worth about $16.4 million unpaid property taxes and interest for India, and $2.1 million for Mongolia. On April 2, 2003, New York brought suit in state court seeking declaratory judgments to establish the validity of the tax liens. India and Mongolia (the Petitioners) removed the case to federal court and contended that they were immune from suit pursuant to 28 U.S.C. §1604, FSIA's general immunity provision for foreign governments. The district court disagreed, holding that 28 U.S.C. §1605(a)(4), FSIA's "immovable property" exception, which pierces a foreign state's immunity where rights in immovable property located in the U.S. are at issue, applied to the case. A unanimous panel of the Court of Appeals for the Second Circuit affirmed, holding that the district court possessed jurisdiction to hear New York's case. The Supreme Court affirmed.
Petitioners argued that the immovable property exception in §1605(a)(4) limited suits to those involving property ownership or possession. By contrast, New York contended that the exception also applied to other rights including tax liens. In its reasoning the Supreme Court examined the plain language of the immovable property exception and noted that it is not specifically limited to cases involving title, ownership, or possession of property, but rather also includes "rights in" property. It next examined whether an action to declare the validity of a tax lien places rights in immovable property at issue. Reasoning that a tax lien restricts one of the fundamental rights of property ownership, the ability to convey, the Court held that a suit to establish the validity of a tax lien implicates "rights in immovable property."
In his dissent, Justice Stevens stated that because none of the seven exceptions to FSIA addresses suits to establish the tax liability of a foreign sovereign, in his view, the FSIA general rule of immunity should bar this suit. Moreover, he opined, it is very unlikely that the drafters of the FSIA meant to pierce the sovereign immunity to provide a remedy against delinquent taxpayers.
RESOLUTIONS, DECLARATIONS, AND OTHER DOCUMENTS
G8 Summit Declaration: Growth and Responsibility in the World Economy (7 June 2007)
Click here for document. (Approximately 38 pages).
Leaders of the "G8" largest industrialized nations, Canada, France, Germany, Italy, Japan, Russia, the United Kingdom, and the United States, met in Heilingendamm, Germany, 6-8 June 2007 for their annual summit. German Chancellor Angela Merkel, holding the rotating G8 presidency, hosted the event.
Their declaration, "Growth and Responsibility in the World Economy," includes broad language on a wide array of areas including: the state of the world economy; systemic stability and transparency of financial markets; freedom of investment and social responsibility; intellectual property protections and promoting innovation; promoting the fight against corruption; and climate change and energy efficiency.
To increase corporate social responsibility the G8 leaders urge private corporations to follow the principles in the OECD Guidelines for Multinational Enterprises. Cognizant of the threat piracy poses to innovation and to the health, safety, and security of consumers around the world, they call for increased protection of intellectual property rights, and applaud the work of WHO and the International Medicinal Products Anti-Counterfeit Taskforce (IMPACT). They dub "promoting the fight against corruption" as one of the most significant tasks of the G8 and support the ratification of the UN Convention Against Corruption, as well as the World Bank's Governance and Anti-Corruption Strategy to increase assistance to nations to diminish corruption.
The leaders of the G8 recognize the scientific findings concerning the possible long-term negative implications of climate change including those of the UN Intergovernmental Panel on Climate Change (IPCC). They urge all parties to participate in the UN Climate Change Conference in Indonesia in December 2007, with a goal of reaching a complete post 2012 (post-Kyoto) agreement to encompass all major emitters. They call for the development and use of sustainable climate-friendly technologies to produce and use energy. They express their determination to reduce emissions resulting from deforestation, particularly in developing nations. They urge the World Bank in cooperation with the G8, developing countries, the private sector, non-governmental organizations and others, to create a pilot project to reduce emissions from deforestation in developing nations. Welcoming the recent UN Forum on Forests non-legally binding outcome document on the sustainable management of forests, they urge the international community to strengthen cooperation and sharing of best practices. They also recognize the G8 Environmental Ministerial Meeting outcome document, the "Potsdam Initiative-Biological Diversity 2010" and commit to increase their work to protect and sustain biological diversity to meet their goal of significantly reducing the rate of loss of biodiversity by 2010.
International Law In Brief (ILIB) - Copyright 2007 - The American Society of International Law (ASIL)
Author: Susan A. Notar, Esq., with the assistance of Tina Hofman Esq., Rakhee Vemulapalli, and Kevin De Lisle Futch
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To comment on this publication, send an e-mail message to Susan Notar, ILM Managing Editor at snotar@asil.org