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 23, 2004

JUDICIAL AND SIMILAR PROCEEDINGS

DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS

JUDICIAL AND RELATED DOCUMENTS

World Trade Organization (WTO) Appellate Body Report: European Communities?Conditions for the Granting of Tariff Preferences to Developing Countries AB-2004-1 (April 7, 2004)

The WTO Appellate Body ("the Appellate Body") concluded that WTO members may grant additional preferences to developing countries with particular needs, as long as such additional preferences are not inconsistent with other provisions of the WTO Agreement and the Decision on Differential and More Favorable Treatment, Reciprocity, and Fuller Participation of Developing Countries, GATT Document L/4903, 28 November 1979, BISD/203 ("the Enabling Clause").

The dispute concerned the conditions under which the EC accords tariff preferences to developing countries under the schema of generalized tariff preferences formulated under Council Regulation (EC) No.2501/2001. The EC provided lower tariff rates than the Most Favored Nation (?MFN?) tariff rates to 12 beneficiary countries on certain products. The 12 beneficiary countries were granted duty-free access to the European Communities? market, while all other developing countries had to pay the full duties. The issue was whether the Drug Arrangements as set out in the current Regulation establish ?non-discriminatory preferences beneficial to developing countries? within the meaning of paragraph 2(a) of the Enabling Clause.

At issue, inter alia, was the interpretation of the Enabling Clause, which the Appellate Body noted as "an integral part of the GATT 1994." The Enabling Clause makes an exception to the MFN Treatment provision of Article I:1 of the GATT 1994. It provides: ?Notwithstanding the provisions of Article I of the General Agreement, contracting parties may accord differential and more favourable treatment to developing countries, without according such treatment to other contracting parties.?(footnote omitted)

The Appellate Body observed that the Enabling Clause authorizes developed-country Members to grant enhanced market access to products from developing countries beyond that granted to products from developed countries. Such enhanced market access is intended to provide developing countries with increasing returns from their growing exports. The Enabling Clause thus plays a vital role in promoting trade as a means of stimulating economic growth and development. In this respect, the Enabling Clause is not a typical 'exception', or 'defence', in the style of Article XX of the GATT 1994, or of other exception provisions identified by the Appellate Body in previous cases."

The Appellate Body observed that, in accordance with Article 3.2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes, (the "DSU ") Members' rights under the Enabling clause are not curtailed by requiring preference-granting countries to establish in dispute settlement the consistency of their preferential measures with the conditions of the Enabling Clause."

The Appellate Body upheld the Panel's finding that the Enabling Clause applies concurrently with Article I:1 of the GATT 1994, and therefore "does not exclude the applicability of GATT 1994."

The Appellate Body reversed the Panel's finding that the WTO rules required WTO members to provide identical GSP tariff preferences to all developing countries. The Appellate Body concluded nonetheless that the EU acted inconsistently with WTO rules by failing to set out clear criteria for determining which countries could be included as beneficiaries under its drug eradication program. It noted that although the EC claims that the Drug Arrangements are available to all developing countries that are "similarly affected by a drug problem", in fact, the Regulation does not define the criteria or standards that a developing country must meet in order to qualify for the Drug Arrangements preferences. Therefore, according to the Appellate Body, "there is no basis to determine whether those criteria or standards are discriminatory or not." Accordingly, the Appellate Body upheld part of the Panel's conclusion that the EC "failed to demonstrate that the Drug Arrangements are justified under paragraph 2(a) of the Enabling Clause."

Click here for a link to WTO dispute settlement decisions.

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European Court of Human Rights (ECHR): Assanidze v. Georgia, Application No. 71503/01 (April 8, 2004)

The ECHR Grand Chamber held unanimously that there had been a violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights (?the Convention?) on account of the applicant?s detention since January 29, 2001. A majority of the court held that there had been a violation of Article 6 § 1 (right to a fair hearing) of the Convention on account of the failure to comply with a judgment acquitting the applicant.

The applicant, Mr. Tengiz Assanidze, is currently in custody in Batumi, the capital of the Ajarian Autonomous Republic in Georgia (?the Ajarian Republic?). On November 28, 1994, the applicant was sentenced to eight years imprisonment for illegal financial dealings and for unlawfully possessing and handling firearms. The Supreme Court of Georgia upheld the applicant?s conviction for illegal financial dealings. On October 1, 1999, the President of the Ajarian Republic granted the applicant a pardon for the illegal financial dealings; the applicant was not, however, subsequently released by the local Ajarian authorities. While in custody, further charges were brought against the applicant on December 11, 1999 in connection with a separate case of kidnapping. The applicant was then sentenced to 12 years imprisonment by the Ajarian High Court; this judgment was later reversed by the Supreme Court of Georgia on January 29, 2001. Nonetheless, the applicant still remains in the custody of the Ajarian authorities.

With regard to jurisdiction, the ECHR observed that Georgia had ratified the Convention for the whole of its territory without making any specific reservations with regard to the Ajarian Republic or to difficulties in exercising its jurisdiction over that territory. Therefore, the Ajarian Republic is indisputably an integral part pf the territory of Georgia and subject to the competence and control of Georgia. The ECHR further noted that the Ajarian Republic has no separatist aspirations and no other State exercises effective control over this territory. The Court noted that, although States encounter difficulties in securing compliance with rights in the Convention, activities directly imputable to local authorities of the Ajarian Republic are still within the jurisdiction of the Georgian state. Consequently, the ECHR found that, for the purposes of Article 1 of the Convention, the actual facts out of which the allegation of violations arose were within the jurisdiction of the Georgian state.

The applicant further complained that he had been the victim of a violation of Article 5 § 1 of the Convention following his pardon by the President on October 1, 1999 and thus submitted that his detention since his acquittal on January 29, 2001 was arbitrary. As regards the period from October 1, 1999 (presidential pardon) to December 11, 1999 (when the applicant was charged), the ECHR noted that the complaint was out of time. As to the period from December 11, 1999 (when the applicant was charged) to January 29, 2001, the ECHR found that the complaint was outside the scope of the case referred to the Grand Chamber for examination.

The ECHR noted that on January 29, 2001 the Supreme Court of Georgia ordered the applicant?s release. However, the applicant has remained in custody since then despite the fact that his case had not been reopened and no further order had been made authorizing his detention. The ECHR held that there was no statutory basis for the applicant?s deprivation of liberty and, therefore, the applicant was arbitrarily detained since January 29, 2001 in breach of Article 5 § 1 of the Convention.

Click here for the ECHR website with recent decisions.

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European Court of Human Rights (ECHR): Tashin Acar v. Turkey, Application No. 26307/95 (April 8, 2004)

The ECHR held unanimously that there had been a procedural violation of Article 2 (right to life) of the European Convention on Human Rights (?the Convention?), but found no substantive violations of Articles 2 (right to life) nor 3 (prohibition of torture and inhuman and degrading treatment). The ECHR did, however, find that there had been a failure to comply with Article 38 (examination of the case) of the Convention.

The applicant, Tashin Acar, is a Turkish national who complained of the unlawfulness and excessive length of the detention of his brother, Mehmet Salim Acar, as well as the ill-treatment and acts of torture to which his brother had been subjected while deprived of his liberty, and the failure of the Turkish state to provide his brother with the necessary medical treatment during that time. The applicant contends that his brother was abducted on August 20, 1994 by two unidentified people, allegedly plain-clothes police officers. The parties had previously failed to reach a friendly settlement which would have led to a striking out of the case. In addition, the ECHR later ruled in 2003 that Turkey?s unilateral declaration (with a view to resolving issues by the applicant) did not offer a sufficient basis to strike this disappearance case out of the court?s list of cases, in accordance with Article 37 of the Convention.

The Acar family lodged a series of complaints about Mehmet Salim Acar?s disappearance with the authorities in order to find out why he was being detained. In July 1995, the applicant provided the Bismil public prosecutor with the names of two gendarmes and a village guard whom he suspected were responsible for his brother?s abduction. The public prosecutor found no basis for jurisdiction and referred the investigation to the Diyarbakir Administrative Council for further proceedings under the Prosecution of Civil Servant?s Act. Subsequently, in January 1997, the Administrative Council held that it could not prosecute the individuals concerned owing to insufficient evidence; the Supreme Administrative Court upheld this decision in January 2000.

In February 2000, Mehmet Salim Acar?s mother, wife and sister all maintained that they had seen the abducted on a television news broadcast during which a newsreader had announced that a man of that name had been arrested. The family of the abducted subsequently informed the authorities, although the Diyarbakir public prosecutor decided not to open an investigation into the matter.

As regards Article 2 of the Convention and the disappearance of the applicant?s brother, the ECHR noted that repeated and consistent statements of two eyewitnesses contradicted the alleged involvement of the gendarmerie officers; no other evidence corroborated the allegations. The ECHR found that the allegations that the applicant?s brother had been abducted by the state were based on speculation rather than on reliable evidence. Therefore the Turkish government?s involvement could not be established beyond reasonable doubt for the purposes of a substantive violation of Article 2.

However, the ECHR did find that the manner in which the Bismil public prosecutor opened the investigation (after the applicant had informed the authorities of his suspicions against the two gendarmes) was neither complete nor satisfactory. The Bismil public prosecutor did not take evidence of those suspected in the abduction until September and October 1995, nor did he investigate a quarrel the wife of the abducted had had with an alleged suspect. The ECHR also noted its surprise that the Dayarbakir public prosecutor made no attempt to procure a video recording of the alleged television broadcast, which was a relevant and important piece of evidence for the investigation. Thus, the ECHR found that there was a procedural violation of Article 2.

The ECHR found no violation of Article 3 of the Convention. It had not been established beyond a reasonable doubt that the applicant?s brother had been abducted and detained in the circumstances alleged. Nor was there a sufficient evidentiary basis for concluding that the applicant?s brother had been subjected to ill-treatment or torture by persons for whose acts the State was liable for the purposes of Article 3. The ECHR noted that special factors, other than anguish or mental suffering, will constitute a violation of Article 3.

Finally, the ECHR concluded that the Turkish government?s failure to act with due diligence in complying with requests by the Commission and the ECHR to make evidence considered necessary for the examination of the application was incompatible with the Government?s obligations under Article 38 § 1 (a) of the Convention (examination of the case.)

Click here for the ECHR website with recent decisions.

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DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS

United Nations (U.N.) Security Council: Resolution 1538 (The Situation Between Iraq and Kuwait), S/RES/1538 (April 21, 2004)

The Security Council expressed its wish "to see a full and fair investigation of efforts by the former Government of Iraq, including through bribery, kickbacks, surcharges on oil sales, and illicit payments in regard to purchases of humanitarian goods, to evade the provision of resolution 661 (1990) of 6 August 1990 and subsequent relevant resolutions..." (Click here for 1990 Security Council Resolutions)

The Security Council noted its concern over the alleged mismanagement of the Oil-for-Food Program, and welcomed the decision of the U.N. Secretary-General to create an independent high-level inquiry to investigate the matter. It called upon the "Coalition Provisional Authority, Iraq, and all other Member States, including their national regulatory authorities, to cooperate fully by all appropriate means with the inquiry."

Click here for the2004 Security Council Resolutions.

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Report of the U.S. Senate Committee on Foreign Relations on the United Nations Law of the Sea Convention (March 11, 2004):

The U.S. Senate Foreign Relations Committee recommended that the U.S. Senate give its advice and consent to accession to the Convention and ratification of the Implementing Agreement to the United Nations Law of the Sea Convention. (?the Convention?)

It noted that the Convention ?advances U.S. national security interests by preserving the rights of navigation and overflight across the world? s oceans, on which our military relies to protect U.S. interests around the world, and it enhances the protection of these rights by providing binding mechanisms to enforce them. It advances U.S. economic interests by enshrining the right of the United States to explore and exploit the vast natural resources of the oceans out to 200 miles from our coastline, and of our continental shelf beyond 200 miles, and by protecting freedom of navigation on the oceans over which more than 28 percent of all U.S. exports and 48 percent of all U.S. imports are transported. It advances U.S. interests in the protection of the environment by creating obligations binding on all States to protect and preserve the marine environment from pollution from a variety of sources, and by establishing a framework for further international action to combat pollution.? [ ?]

Article 310 of the Convention allows a State to make declarations or statements, with a view, inter alia, to harmonize its laws and regulations with the Convention, as long as such declarations or statements do not purport to modify the effect of the Convention in their application to that State. The U.S. Senate has included a number of declarations, understandings and conditions in its Resolution of Advice and Consent to Ratification. Among them is a declaration excluding certain categories of disputes from the dispute settlement procedures of Annex VII, or arbitration under Annex VIII. The declaration in this regard provides that the United States elects to exclude disputes concerning military activities and certain law enforcement activities, and disputes in respect of which the U.N. Security Council is exercising its functions under the U.N. Charter.

The Convention will become open for amendment for the first time in November 2004.

Document provided to the ILM Office.

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Coalition Provisional Authority (CAP): Order Number 54-Trade Liberalization Policy 2004 (February 24, 2004)

The Administrator of the Coalition Provisional Authority (CPA) promulgated Order Number 54, a Trade Liberalization Policy, pursuant to the "laws and usages of war" and "consistent with relevant U.N. Security Council resolutions, including Resolutions 1483 and 1511 (2003)" (Click here for link to 2003 Security Council Resolutions)

Section one of the Order provides that "[a]ll customs tariffs, duties, import taxes (not including the Reconstruction Levy imposed by CPA Order Number 38), and similar surcharges for goods entering or leaving Iraq are suspended until the sovereign transitional Iraqi administration imposes such charges following the CPA's transfer of full governance authority to that administration."

The Order states that it does not apply to the importation and exportation of crude oil and other oil products, which may only be imported or exported pursuant to the authorization of the State Oil Marketing Organization. It provides, however, that importation of petroleum products intended for use by the Coalition Provisional Authority, Coalition Forces, and forces of nations working in coordination with Coalition Forces shall not require authorization of the State Oil Marketing Organization.

Click here for the CAP website.

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Coalition Provisional Authority (CAP): Memorandum Number 10-Rewards Program for Information Leading to the Recovery of Iraqi State and Former Regime Assets (April 4, 2004)

The Coalition Provisional Authority (CAP) issued a memorandum providing "conditions for the payment of rewards for information leading to the recovery of Iraqi state or regime-owned assets." The memorandum states that it is consistent with "the laws and usages of war, and consistent with relevant UN Security Council resolutions, including Resolutions 1483 and 1511 (2003)? (Click here for 2003 Security Council Resolutions).

The memorandum provides that the Administrator of the Coalition Provisional Authority may authorize financial awards to those who provide the Coalition with information leading to the recovery of Iraqi assets or former regime-owned assets. It further states that the receipt of a reward pursuant to this program does not result in immunity from prosecution for offenses unrelated to the possession or concealment of the Iraqi-state or former regime-owned assets for which a reward was paid.

The memorandum, noting that Saddam Hussein, his family and other members of the former regime engaged in illegal transfer of Iraqi assets at the expense of the Iraqi people, observed that the CPA is under an obligation "to recover the maximum amount of these assets so they may be used for the benefit of the Iraqi people."

Click here for the document.

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The ILM Office wishes to welcome Ms. Oonagh Sands who is taking part in an internship at ASIL this summer. Ms. Sands graduated from the Queen?s University of Belfast in Common & Civil Law with French. She holds a post- graduate Diploma in EC Competition Law from King?s College, London and an LLM from Georgetown University Law Center, where she was a fellow with the Institute of International Economic Law. She is currently a consultant at the Center for Strategic and International Studies in Washington DC.