International Law In Brief
Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
May 20, 2004
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TREATIES, AGREEMENTS AND RELATED DOCUMENTS
JUDICIAL AND SIMILAR PROCEEDINGS
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- International Centre for Settlement of Investment Disputes (ICSID) (Additional Facility): Waste Management, Inc. v. United Mexican States (ICSID Case No. ARB(AF)/00/3) Award (April 30, 2004)
- United Kingdom (U.K.) House of Lords: Regina v. Secretary of State for the Home Department (Appellant) ex parte Mullen (Respondent); on Appeal from a Divisional Court of The Queen's Bench Division), [2004] UKHL 18 (April 29, 2004)
DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS
TREATIES, AGREEMENTS AND RELATED DOCUMENTS
Agreement between the Government of Ukraine and the Government of the State of Israel on the Settlement of Claims Arising from the Aerial Catastrophe of 4 October 2001 (November 20, 2003)
The Agreement between the Government of Ukraine and the Government of the State of Israel on the Settlement of Claims Arising from the Aerial Catastrophe of 4 October 2001(the "Settlement Agreement") arose from the accidental shooting of a Russian passenger jet of Siberia airlines flying over the Black Sea on its way to Russia from Tel Aviv. Following an investigation by the Cabinet of Ministers of Ukraine, it was found that a stray surface-to-air missile was accidentally launched by Ukrainian Air Defense Forces. The accidental shooting resulted in the death of 78 persons of Israeli and Russian nationality.
The Preamble to the Settlement Agreement notes that "Ukraine recognizes the Aerial Catastrophe as a terrible human tragedy and expressed deep regret over the loss of lives caused by the Aerial Catastrophe" and that "Ukraine has not acknowledged any legal liability or responsibility with regard to the Aerial Catastrophe." Article I of the Settlement Agreement provides that it will be in "full and final settlement and discharge" of all disputes relating to the aerial catastrophe against Ukraine, its organs, nationals, juridical persons and affiliates. It also states that Ukraine shall pay Israel, on an ex gratia basis, a single lump sum amount of 7,590,933.34 US dollars for the benefit of the heirs, legatees and dependents of the victims of the aerial catastrophe. The settlement amount is to be paid by the Ukrainian government to the Israeli government in an account established at the Bank of Israel. It also provides that distribution of the settlement amount "falls within the exclusive competence and sole discretion" of Israel and in accordance with Israeli law. (Article II)
Article III sets forth immunity of Ukraine and its officials, agencies, juridical persons, etc. from any claims before the State of Israel concerning the aerial catastrophe. It also seeks to protect Ukraine from third-party liability.
Article VII provides that the Settlement Agreement "shall not constitute an admission of any kind by Ukraine" nor shall it constitute a legal precedent and may not be used "except for the purpose of giving effect to its terms." It further states that "[n]othing in this Agreement shall be construed as constituting or implying a waiver by Ukraine and the State of Israel of immunity."
Click here for the Settlement Agreement.
JUDICIAL AND RELATED DOCUMENTS
International Centre for Settlement of Investment Disputes (ICSID) (Additional Facility): Waste Management, Inc. v. United Mexican States (ICSID Case No. ARB(AF)/00/3) Award (April 30, 2004)
The Tribunal dismissed the investor's claims, concluding that "it is not the function of the international law of expropriation as reflected in Article 1110 [of the North American Free Trade Agreement] to eliminate the normal commercial risks of a foreign investor..."
This dispute, brought under Chapter 11 of the North American Free Trade Agreement ("NAFTA"), arose from a concession for waste disposal services in Acapulco, Mexico. Waste Management, a U.S. company, entered into a concession agreement with the City of Acapulco through its Mexican subsidiary, Acaverde. Under this agreement, Acaverde was to provide on an exclusive basis municipal waste disposal and street cleaning services in a specified area of Acapulco. In August 1995, Acaverde began providing services under the concession agreement, however the exclusivity arrangements were not honored, and there was resistance from various Acapulco residents who did not want to pay for waste disposal services. Acaverde also complained that the City of Acapulco failed to provide it with land to be used as a landfill contrary to its promise under the agreement. Waste Management argued that its rights under the concession were effectively expropriated through, inter alia, a combination of the City's refusal to enforce the above-mentioned exclusivity provisions and its frustration of the construction and operation of a landfill. Waste Management claimed that these difficulties among others amounted to arbitrary and discriminatory treatment by Mexico.
Waste Management commenced its first NAFTA Chapter 11 arbitration while legal proceedings between Acaverde and the City of Acapulco were still pending in Mexico. The first ICSID Tribunal dismissed Waste Management's claim because it had failed to waive those domestic proceedings in Mexico. After Acaverde's claims in Mexican courts had been dismissed, Waste Management re-submitted its NAFTA claims before ICSID under the Additional Facility Rules.
The Tribunal observed that NAFTA Chapter 11-"unlike many bilateral and regional investment treaties" does not provide "jurisdiction in respect of breaches of investment contracts such as the Concession Agreement. Nor does it contain an "umbrella clause" committing the host State to comply with its contractual commitments." In terms of Article 1105 of NAFTA, the Tribunal noted that Waste Management failed to show that the particular conduct of the City of Acalpulco amounted to a breach of Article 1105 which prescribes the minimum standard of treatment and provides that "[e]ach Party shall accord to investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security." According to the Tribunal, "Showing that it was a breach of contract is not enough."
Members of the Tribunal:
Professor James Crawford, President
Mr. Benjamin Civiletti
Mr. Eduardo Magallón Gómez
Click here for a link to the decision.
United Kingdom (U.K.) House of Lords: Regina v. Secretary of State for the Home Department (Appellant) ex parte Mullen (Respondent); on Appeal from a Divisional Court of The Queen's Bench Division), [2004] UKHL 18 (April 29, 2004)
On December 20, 2002, the Court of Appeal of England and Wales (?Court of Appeal?) reversed a decision of the Queen?s Bench Divisional Court (?Divisional Court?) that the Secretary of State was legally bound to pay compensation to Mr. Mullen, the claimant. The Secretary of State challenged the Court of Appeal?s ruling before the House of Lords. All five members of the House of Lords Appellate Committee allowed the Secretary of State?s appeal, but on a more narrow grounds than the Divisional Court.
Lord Steyn outlined the facts of the case: In the early hours of December 21, 1988, a shooting incident took place in Battersea, London, and the police searched a flat in the nearby area, which was, in effect, a bomb factory for an IRA active service unit. Shortly before the incident, Mr. Mullen and his girlfriend and daughter flew to Zimbabwe. Mr. Mullen was brought back to the UK and charged with a number of offenses in connection with the incident.
In 1990, a jury convicted Mr. Mullen of conspiracy to cause explosions. The judge sentenced him to thirty years? imprisonment. After Mr. Mullen had been in prison for nearly ten years, the Court of Appeal quashed his conviction on the ground that his deportation from Zimbabwe to the UK involved an abuse of process, and was contrary to the law of Zimbabwe and to international law. In particular the Court of Appeal found that the British authorities had acted in breach of international law and had been guilty of ?a blatant and extremely serious failure to adhere to the rule of law with regard to the production of the defendant for prosecution in the English courts.? Mr. Mullen applied to the Secretary of State for compensation under section 133 of the Criminal Justice Act 1998 (CJA) which implemented the International Covenant on Civil and Political Rights 1966 (?ICCPR?) or, alternatively, under the ex gratia scheme, as set out in ministerial policy statements, on the basis that his conviction had been reversed on the grounds that there was a miscarriage of justice.
Contrary to the Divisional Court, the Court of Appeal held that Mr. Mullen was entitled to compensation under § 133 CJA and, crucially, did not consider the alternative claim under the discretionary ex gratia compensation scheme. In quashing Mr. Mullen?s conviction, the Court of Appeal condemned the abuse of executive power which had led to his apprehension and abduction. But, it identified no failure in the trial process.
Lord Bingham stated: ?It is for failures of the trial process that the Secretary of State is bound, by section 133 and 14(6), to pay compensation.? The central submission of the Secretary of State was that § 133 CJA, reflecting Article 14(6) ICCPR, only obliged him to pay compensation when a defendant, finally acquitted in circumstances satisfying the statutory conditions, is shown beyond reasonable doubt to be innocent of the crime of which he has been convicted.
Lord Bingham referred to the previous decision of R v Secretary of State, Ex p McFarland [2004] UKHL 17. In this decision Lord Bingham referred to statements made by previous Secretaries of State, Mr. Roy Jenkins and Douglas Hurd. Mr. Hurd, in particular, had stated that he undertook to observe Article 14(6) ICCPR, which the UK has signed and ratified, to ensure that defendants shall receive a fair trial. The only change in § 133 CJA was to replace the word ?conclusively? in Article 14(6) of the ICCPR by the expression ?beyond reasonable doubt?, familiar in British domestic criminal law. It was noted that despite differences in wording and substance, Article 14(6) ICCPR matches Article 6 of the European Convention of Human Rights and Fundamental Freedoms (?ECHR.?) Lord Bingham stated that Mr. Mullen could have, but did not, make a strong claim in conspiracy or misfeasance in public office and challenged the legality of his detention under Article 5(5) ECHR, reflected in Article 9(5) ICCPR. Rather, Mr. Mullen chose to claim compensation under Article 14(6) ICCPR, the fair trial guarantee, but could not show any defect in his trial or the investigation leading up to it. The Court noted that Mr. Mullen only appealed his sentence, and made no challenge to the conduct of the trial itself.
In quashing Mr. Mullen?s conviction, the Court of Appeal (Criminal Division) condemned the abuse of power which had led to Mr. Mullen?s apprehension and abduction, but identified no ?failure? in the trial process under which the Secretary of State, by § 133 CJA and Article 14(6) ICCPR, was bound to pay compensation.
Lord Bingham noted that, although ?miscarriage of justice? in § 133 CJA is drawn directly from the English language text of Article 14(6) of the ICCPR and its content should be the same in all states party to it, ?miscarriage of justice? is nonetheless an expression which is not a legal term of art and has no settled meaning. He also referred to the lack of consensus on the meaning of this expression in the travaux preparatoires of the negotiations to the ICCPR. He remarked that little assistance was given in the jurisprudence of the UN Human Rights Committee.
Furthermore, Lord Bingham noted that Article 3 of Protocol 7 to the ECHR Convention (?the Protocol?) was much the same as Article 14(6), ICCPR. He highlighted that Article 14(6) and Article 3 of the Protocol refer not to innocence but to ?une erreur judiciare? (in Spanish, ?un error judicial.?) He said: ?These expressions can be understood as equivalent to ?miscarriage of justice? in its broad sense, but are not obviously apt to denote proof of innocence.? However, the Law Lords differed as to the scope of the words ?miscarriage of justice? in § 133 of the CJA. As stated, Lord Bingham gave a wider meaning to cover ?failures in the trial process,? whereas Lord Steyn felt they only extended to an acknowledgment that the person was clearly innocent.
In conclusion, it was held that: (1) serious though the default in the case was, and right though the Court of Appeal was to quash the conviction, the default did not effect the fairness of the trial or throw doubt upon the majority verdict of the jury; (2) the Secretary of State was entitled to view this as an exceptional case; (3) Mr. Mullen could have obtained redress through payment discretionary ex gratia compensation; and (4) the Secretary of State must enjoy considerable latitude in the administration of an ex gratia scheme, so long as he acts fairly, rationally, consistently and in a manner that does not defeat substantive legitimate expectations explained above.
The House of Lords held that the Secretary of State?s decision did not offend any of these rules and the appeal should be allowed, on more limited grounds.
Click here for the decision.
LEGISLATION AND REGULATION
Belgium: Legislation on European Arrest Warrant (December 19, 2003)
On December 19, 2003, Belgium published its law on the European Arrest Warrant (?EAW?), implementing the Council of the European Union (?The Council?) Framework Decision (2002/584/JAI) of June 13, 2002. The Council decision lists a program of measures designed to implement the principle of mutual recognition of criminal decisions. Belgium?s law came into effect on January 1, 2004 and replaces Belgium?s existing laws governing its relationships with Member States of the European Union (?EU?).
Article 1 of the Belgian Law refers to Article 77 of the Belgian Constitution, which addresses arrest warrants.
Articles 2 and 3, refer to the manner and principles of the EAW. The EAW represents a change in European wide judicial cooperation. It is a common arrest and surrender warrant designed to provide efficient and effective justice within the EU. The EAW applies to all offenses which carry a maximum penalty of at least 12 months in the issuing state or, in cases of those already convicted, where the sentence is at least four months. Article 2 sets out in detail the information contained in an arrest warrant. In particular, Article 2 § 6 states that the EAW must be translated into either Dutch, French or German. Article 3 refers to the conditions under which an EAW may be issued.
Article 4 lists the conditions relating to execution of a EAW and the manner in which it can be refused. For example, the violation forming the basis of the arrest may already be covered by a Belgian amnesty law, assuming proceedings have been brought in Belgium, pursuant to Belgian law. Article 5 states that executing a EAW may also be refused if the underlying offense does not violate Belgian law. However, Article 5 § 2 lists 32 exceptions to this rule, such as organized crime, terrorism, inhumane treatment, sexual exploitation, and drugs and arms trafficking. Article 6 sets out more conditions for refusal including a territoriality clause. This clause states that execution of a EAW will be refused when the arrest warrant is based on violations which have been committed in whole, or in part, on Belgian territory or land forming part of its territory. It also refuses to comply with another EU Member State?s request if the EAW was based on violations committed outside that Member State and Belgian law does not sanction legal proceedings on the basis of these acts outside Belgian territory.
Article 8 refers to the conditions which Belgium may impose in complying with a request from an EU Member State. Article 8 says that the transfer of a Belgian national or person residing in Belgium, subject to legal proceedings under a EAW, can be on the condition that, after their trial, they serve the sentence handed down by the requesting country back in Belgium.
Article 30 § 1 states that, where a EAW conflicts with an extradition request from a third country, the State Prosecutor shall inform the Federal Prosecutor and the Government, in communication with the examining Magistrate, so that the Government decides which arrest warrant should be given priority.
Article 35 refers to privileges and immunities from prosecution. It states that, when a requested person benefits from a privilege or some other immunity from prosecution in the Member State which issued the EAW, and this privilege comes from a State authority, other than that of the country which issued the EAW or from an international organization, the Belgian State Prosecutor shall inform the Minister of Justice so that Belgium can address the issue with the appropriate authorities.
Article 44 § 1 para. 1 states that extradition requests submitted to the Belgian authorities prior to January 1, 2004 are regulated by pre-existing extradition instruments. Article 44 §2 states that Belgium will continue to apply its previous extradition system, applicable before January 1, 2004, to deal with requests relating to acts committed in France before November 1, 1993 or in Austria and Italy before August 7, 2002. This exception was made possible under Article 32 of the Council Framework Decision. Finally, Article 44 §3 declares that Belgium?s Law of the March 15, 1874, will continue to apply in those areas not affected by the Council Framework Decision.
Click here for a link to the document (in French).
DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS
Coalition Provisional Authority (CPA): Order Number 13 (Revised) (Amended) - The Central Criminal Court of Iraq (?CCCI?) (April 22, 2004)
The Administrator of the CPA promulgated Order Number 13, 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 a link to Security Council Resolutions.)
Section one of the Order provides for the establishment of a CCCI, which shall sit in Baghdad and in such sessions in other locations as provided by Order Number 13. The CCCI shall have national jurisdiction and shall consist of two chambers: (a) an Investigative Court, and (2) a Felony Court.
The Order states that the CCCI shall apply Iraqi law as modified by applicable CPA orders. Prior to the assumption of the functions of government on July 1, 2004, the judges of the CCCI shall be appointed by the Administrator. The Order also rules that, inter alia, ?Judges of the CCCI shall perform their duties independently and impartially, and in accordance with the applicable laws of Iraq.
Section 18 outlines that ?The CCCI shall have nationwide discretionary and trial jurisdiction over any and all criminal violations, regardless of where these offenses occurred. Its jurisdiction shall extend to all matters that could be heard by any local felony, or misdemeanor court.? It also provides that ?Any criminal defendant may request the CCCI to review his or her case if the defendant asserts that his case will not be fairly heard in a local criminal court? and ?Any felony, misdemeanor or investigative court in Iraq may refer a case to the court.?
Section 19 says that ?Prior to July 1, 2004, the Administrator retains the authority to refer cases to the CCCI.? This section also allows for the CCCI to accept cases on its own authority, without need for a referral from the Administrator. Finally, Section 20 covers the issuing of warrants and ancillary orders. It states that, inter alia, ?Any judge on the court has the authority to issue an arrest warrant, a search or order other investigative measures allowed under Iraqi law whether or not the case has been selected under Section 19.?
Click here for the document.
BRIEFLY NOTED
World Trade Organization (WTO) Committee on Government Procurement: Modification of European Union (?EU?) Schedules to Extend Coverage of the Government Procurement Agreement (April 23, 2004)
On April 23, 2004 the WTO Committee on Government Procurement Agreement (?GPA) approved the necessary modifications to EU Schedules extending covering of the GPA to the 10 new member states of the European Union: the Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic and Slovenia. Under the recent decision of the Committee on Government Procurement Agreement, the covered entities of the new EU Member States have been included into the Appendix of the European Communities as the WTO member representing the group of 25 EU member states.
Click here for more information.
International Law In Brief (ILIB) - Copyright 2004