International Law In BriefDevelopments in international law, prepared by the TREATIES, AGREEMENTS AND RELATED DOCUMENTS JUDICIAL AND SIMILAR PROCEEDINGS
DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS
TREATIES, AGREEMENTS AND RELATED DOCUMENTS European Union-Egypt Association Agreement (June 1, 2004) On June 1, 2004, the Euro-Mediterranean Agreement (?the Agreement?) establishing an association between the European Communities (?EU?) and the Arab republic of Egypt (?Egypt?) entered into force. The Agreement was signed on June 25, 2001 and the trade and trade related provisions of the Agreement entered into force provisionally on January 1, 2004. This is the sixth Euro-Mediterranean Association Agreement designed to build the Free Trade Area under the Barcelona Process. Article 3 of Title I establishes a political dialogue and cooperation between the EU and Egypt. Article 4 provides that the dialogue will ?...cover all subjects of common interest and, in particular, peace, security, democracy and regional developments.? Article 6 of Title II lays down the objective of creating a free trade area over the next twelve years. Article 9 provides schedules by group of industrial products to achieve a complete dismantling of customs duties and other charges. Under Article 11 Egypt may take exceptional measures limited in time to increase or re-introduce customs duties in order to protect some industries or sectors. Agriculture is also affected by this progressive general liberalization in Article 13. Article 17 abolishes all quantitative restrictions on imports and exports between the EU and Egypt. Title V establishes an economic co-operation between the EU and Egypt, which aims at promoting balanced economic relations between the parties and at supporting Egypt?s economic and social development. The co-operation provisions encompass a broad range of sectors such as education, technology, environment, industry, agriculture, energy, or fight against terrorism. Furthermore, the Agreement establishes a dialogue and co-operation on social matters, illegal immigration and cultural and information matters in Title VI. Financial co-operation is also established in Title VII. Pursuant to Title VIII, an Association Council consisting of the members of the Council of the European Union, Commission of the European Communities and of the Government of Egypt meets once a year, or when circumstances require, and examines issues arising out of the Agreement or other issues of mutual interest. Click here for the Agreement. JUDICIAL AND RELATED DOCUMENTS Supreme Court of Israel Sitting as the High Court of Justice: Na?aleh, Association for the Settlement of Israel Aircraft Industries Employees in Samaria et al v. The Civil Administration of Judea and Samaria, Highest Planning Committee for Mining and Quarries (Petition of Order Nisi and Interim Order) (June 14, 2004) At issue, inter alia, was the legality under international law of a quarry that was to be established under the jurisdiction of Mateh-Benyameent Regional Council in Judea and Samaria ("Regional Council"). The petitioners in this case were Israeli settlers who were living near the place where the quarry was to be built. They argued, inter alia, that the quarry permit is contrary to the international law of belligerent occupation. They claimed that the establishment of the quarry in a territory under belligerent occupation is contrary to the Hague Regulations of 1907. In addition, the petitioners argued that the establishment of the quarry and its operation would harm the quality of life of the population living near the quarry. The petitioners based their argument on Article 55 of the Hague Regulations concerning the Laws and Customs of War on Land of 1907. Article 55 provides the following: ?The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.? The Court noted that since the nature of a quarry is to waste the resource, it could not be regarded as administering or using and enjoying the fruits and profits of the resource. Nevertheless, the Court held that Article 55 does not apply when the exploitation is to benefit the local community or to satisfy local needs. It noted, for example, that such prohibition does not apply when the action is to pave new roads in the territory under belligerent occupation, and cited earlier decisions in which it has ruled that Israeli settlers in the Occupied Territories are part of the local community. Furthermore, the Court held that the customary rules of Occupatio Bellica were formed during short periods of occupation, and therefore international law should recognize the right of the occupant to take actions that may alter the territory held in Occupatio Bellica. Document and translation provided to the ILM Office by Nidal Sliman, JSD Candidate, Center for Civil & Human Rights, Notre Dame University Law School. United States (U.S.) Supreme Court: Republic of Austria et al. v Altmann, Docket No. 03-13 (June 7, 2004) The U.S. Supreme Court concluded that the Foreign Sovereign Immunities Act applies to conduct that occurred prior to the Act's 1976 enactment and prior to the United States' adoption of the "restrictive theory" of sovereign immunity. The Respondent, Maria Altmann, filed an action in a United Stated District Court (?District Court?) to recover six of her uncle?s Gustav Klimt paintings that had been seized by the Nazis, or had been expropriated by Austria and its instrumentality, the Austrian Gallery, after World War II. Altmann asserted jurisdiction under § 2 of the Foreign Sovereign Immunities Act (?FSIA?), 28 U.S.C. § 1330(a). She further asserted that the petitioners, Austria and the Austrian Gallery, were not entitled to immunity under the FSIA?s ?expropriation exception,? § 1605(a)(3), which expressly exempts immunity from certain cases involving ?rights in property taken in violation of international law.? The District Court determined that the expropriation exception covered the case and the United States Court of Appeals (?Court of Appeals?) affirmed the finding. The Supreme Court upheld the decision of the lower courts, though on more limited grounds. The FSIA authorizes federal civil suits against foreign states ?as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity? under either another section of the FSIA or under ?any applicable international agreement.? Therefore, the FSIA grants federal courts jurisdiction over civil actions against foreign states and carves out the expropriation exception, among others, to the general grant of immunity. The Supreme Court reiterated its observations in the case, Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, which held that ?the FSIA is not simply a jurisdictional statute, but a codification of ?the standards governing foreign sovereign immunity as an aspect of substantive federal law.? ? In addition, the Supreme Court held that this case was not controlled by the general presumption against retroactive application of a statute, which had been articulated in the case Landgraf v. USI Film Products, 511 U.S. 244. At issue was the FSIA?s preamble, which falls short of expressly stating that it applies to pre-enactment conduct, and whether the FSIA could affect substantive rights, or only matters of procedure. Justice Stevens, delivering the opinion of the court, reasoned that, at first, the FSIA does not appear to operate retroactively: ?Prior to 1976, foreign states had a justifiable expectation that, as a matter of comity, United States courts would grant them immunity for their public acts (provided the State Department did not provide otherwise), but they had no ?right? to such immunity. Moreover, the FSIA merely reopens United States courts to plaintiffs with pre-existing claims against foreign states; the Act neither ?increase[s those states?] liability for past conduct? nor ?impose[s] new duties with respect to transactions already completed.? ? However, the Supreme Court then had to reconcile this with their observation in Verlinden that the FSIA was not simply a jurisdictional statute. Justice Stevens stated that statutes such as the FSIA, even though phrased in jurisdictional terms, were very much subject to a presumption against retroactivity. However, he continued: ?[t]he principal purpose of foreign sovereign immunity has never been to permit foreign states and their instrumentalities to shape their conduct in reliance on the promise of future immunity from suit in United States courts.? Quoting Verlinden, Justice Stevens stated that, in a sui generis context, it was more appropriate, absent contraindications, to defer to the most recent political decision?namely, the FSIA?than to presume that decision inapplicable merely because it postdates the conduct in question. Therefore, the Supreme Court concluded that the FSIA applied to conduct which had occurred prior to its enactment, and even prior to the United States? 1952 adoption of the so-called ?restrictive theory? of sovereign immunity. Under the restrictive theory of immunity, immunity is recognized with regard to a foreign state?s sovereign or public acts, but not its private acts. Justice Stevens observed: ?This Court has long deferred to Executive Branch sovereign immunity decisions.? However, he then stated that, because, at one stage, sovereign immunity decisions were being made by the executive and judicial branch, in 1976 Congress had thus sought to remedy these problems by enacting the FSIA." Justice Stevens concluded that ?Congress intended courts to resolve all such claims ?in conformity with [FSIA] principles? regardless of when the underlying conduct occurred.? Furthermore, the Supreme Court could find nothing in the FSIA or in the circumstances surrounding its enactment to suggest that it should not be applied to Austria?s 1948 actions. In addition, the Supreme Court found clear evidence in the FSIA?s preamble that Congress desired the FSIA to apply to pre-enactment conduct. Although the Supreme Court acknowledged the preamble language was not ?express,? it did state that the language was ?unambiguous? and that Congress intended to resolve ?all? claims arising from the FSIA. Turning to the exceptions to immunity carved out by the FSIA, including the expropriation exception, Justice Stevens explained that the Supreme Court?s opinion was confined to the FSIA?s general applicability to conduct that occurred prior to its enactment in 1976 and, more specifically, to the State Department?s 1952 adoption of the restrictive theory of sovereign immunity. Finally, the Supreme Court responded to Austria?s claim that the ?act of state? doctrine applied to this case because foreign expropriations are public acts for which, prior to the enactment of the FSIA, sovereigns expected immunity. Under the act of state doctrine, the courts of one state will not question the validity of public acts performed by other sovereign nations within their own borders, even when such courts have jurisdiction over a controversy in which one of the litigants has standing to challenge those acts. Dismissing this assertion, the Supreme Court reasoned that, because the FSIA in no way affected the application of the act of state doctrine, the determination that the FSIA applied to this case in no way affected any argument that Austria may have had that the doctrine shielded their alleged wrongdoing. Therefore, the Court refused to further comment on the act of state doctrine. The Supreme Court affirmed the decision of the Court of Appeals. (Click here for a summary and link to Ninth Circuit decision in ILIB). Click here for the decision. International Centre for Settlement of Investment Disputes (ICSID) (Decision on Jurisdiction): Tokios Tokelés v. Ukraine (ICSID CASE No. ARB/02/18)(April 29, 2004) The Tribunal held by a majority of its members that the dispute was within its jurisdiction. The Claimant, Tokios Tokelés ("Tokelés") is an advertising and publishing company incorporated in Lithuania. In 1994, it created a wholly owned subsidiary, Taki spravi, an advertising company established under the laws of Ukraine. Tokelés claimed that, following its publication of a book favorable to a leading Ukrainian government opposition leader, Ukrainian government authorities: (1) conducted numerous invasive investigations falsely disguised as tax investigations; (2) initiated frivolous actions in Ukrainian domestic courts, including actions to invalidate contracts entered into by Tokelés's subsidiary; (3) placed the subsidiary's assets under administrative arrest; (4) unreasonably seized financial and other documents and (5) falsely accused its subsidiary of engaging in illegal activities. Tokelés argued that such actions amounted to violations of the Agreement between the Government of Ukraine and the Government of the Republic of Lithuania for the Promotion and Reciprocal Protection of Investments of February 1994 ("Bilateral Investment Treaty between Ukraine and Lithuania" or "Ukraine-Lithuania BIT"). Ukraine asked the Tribunal to "pierce the corporate veil" of Tokelés's subsidiary and "to determine its nationality according to the nationality of its predominant shareholders and managers" rather than its state of incorporation. It argued that piercing the corporate veil would result in finding that Tokelés is a Ukrainian entity and therefore unable to qualify as a national of another country under the Article 25 of the ICSID Convention. The Tribunal disagreed, noting that although investment agreements such as the Ukraine-Lithuania BIT "are capable of excluding from the scope of the agreement entities of the other party that are controlled by nationals of third countries or by nationals of the host country", "[t]he Ukraine-Lithuania BIT, by contrast, includes no such 'denial of benefits' provision with respect to entities controlled by third-country nationals or by nationals of the denying party." The Tribunal further noted that "...it is not for tribunals to impose limits on the scope of BITs not found in the text, much less limits nowhere evident from the negotiating history." Ukraine also argued, inter alia, that the requirement of consent pursuant to Article 8 of the BIT had not been met since negotiations occurred between Tokelés's Ukrainian subsidiary, Taki spravy, rather than between the Claimant and the Respondent themselves. The majority of the Tribunal dismissed this objection to jurisdiction, noting that Tokelés provided sufficient evidence of its negotiations with Ukrainian government officials. Even if, as Ukraine argued, such negotiations were not authorized by the President of Ukraine, the Tribunal observed that "[a] state cannot plead the principles of municipal law, including its constitution, in answer to an international claim." The President of the Tribunal, Professor Prosper Weil, dissented. In his dissent, he noted the Report of the Executive Directors on the [ICSID] Convention and observed that the purpose of the ICSID Convention was to facilitate foreign investment. In this regard, he argued that to disregard the origin of capital behind Tokelés's investment in the Ukraine was contrary to the purpose of the ICSID Convention. Given that there was no dispute in this case that ninety-nine percent of the shares of Tokelés were owned by Ukrainian nationals, Professor Weil argued that this dispute could not qualify as one between a foreign investor and Ukraine. Members of the Tribunal Professor Prosper Weil, President Professor Piero Bernardini Mr. Daniel Price Click here for the decision. Click here for the dissenting opinion. International Criminal Tribunal for Rwanda (ICTR), Trial Chamber III: The Prosecutor v. Sylvestre Gacumbitsi (June 17, 2004) The ICTR unanimously found Sylvestre Gacumbitsi guilty of (1) genocide, and (2) extermination and rape as crimes of against humanity. The Court rejected the alternative crime of complicity in genocide, which was asserted as an alternative crime as well as the charge of murder as a crime against humanity. Consequently, Mr. Gacumbitsi was sentenced to thirty years? imprisonment. Sylvestre Gacumbitsi was the former mayor for the Rusomo Commune in Rwanda from 1983 until April 1994. He was a member of the ruling party in Rwanda prior to the genocide, the Mouvement Républicain National Pour le Développement et la Démocratie (MRND.) In determining the sentence, the Trial Chamber took aggravating circumstances into account with regard to both the gravity of crimes committed and the role of Mr. Gacumbitsi as mayor. Mr. Gacumbitsi?s crimes related to his participation in the genocide of Tutsi civilians in the commune of Rusomo in Rwanda. The Trial Chamber found that Sylvestre Gacumbitsi had planned the genocide at a local level in April 1994 by participating in meetings with military leaders, ensuring the distribution of weapons to military groups and organizing meetings during which he incited the population to kill Tutsis. The Court found that his actions and speeches clearly manifested a genocidal intention and outlined two incidents, in particular. The Trial Chamber also declared Sylvestre Gacumbitsi responsible for having ?planned, incited, and ordered? the local police officers in Rusomo to participate in the attacks. It also found he ?perpetrated, aided and encouraged the execution and murder of Tutsi civilians? within the overall context of the crime of genocide. The Court examined the charges of crimes against humanity for the crimes of extermination, rape and murder. The Trial Chamber found Mr. Gacumbitsi guilty of extermination as a crime against humanity. It concluded that he had planned and orchestrated certain operations during April 1994 and was thus aware of the existence of the systematic and widespread attacks against the civilian population of Rusomo. The Trial Chamber rejected an allegation of rape committed by Mr. Gacumbitsi because of procedural failures in the indictment. However, the Court chose to refine the test of rape as a crime against humanity: ?any penetration of the sexual organs of the victim by that of an aggressor, or by an object used to the same ends? constitutes rape. Nonetheless, the Trial Chamber held that the previous elements of rape were not exclusive and, using witness testimony, found Mr. Gacumbitsi criminally responsible for having incited rape, and thus guilty of rape as a crime against humanity. Finally, the Trial Chamber rejected the charge against Sylvestre Gacumbitsi of murder as a crime against humanity. Thus, he was acquitted on this count of the indictment, due to a lack of proof. Click here for the decision. European Court of Human Rights (ECHR): Gusinski v. Russia, Application No. 70276/01 (May 19, 2004) The ECHR unanimously held that Russia violated Articles 5 (right to liberty and security) and 18 (limitation on use of restriction on rights) in conjunction with Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (?the Convention?). The court also held that the finding of a violation was sufficient to grant the applicant the non-pecuniary damage he sustained. The applicant, Vladimir Aleksandrovich Gusinski, is the former chairman of the Board and majority shareholder of ZAO Media Most, a private media company. On June 13, 2000, the Russian authorities arrested the applicant. He was suspected of committing a large-scale fraud by transferring broadcasting functions from Russian Video, a State-owned company, to OOO Russian Video, a private company, depriving Russian video of a 10 million US dollar TV channel. The applicant was released on June 16, 2000 on the condition that he not leave Russia. While the applicant was in custody, the Acting Minister for Press and Mass communication offered to drop the charges against the applicant if he sold Media Most to Gazprom, a natural gas monopoly controlled by the State, at the price determined by Gazprom. The parties signed the agreement on July 20, 2000. Media Most then claimed that the agreement had been entered into under duress and refused to honor it. While in Spain the defendant was charged with other criminal charges concerning fraudulent obtaining of loans by Media Most. The applicant was confined to house arrest in Spain. The Spanish courts declined the extradition request of the Russian authorities. On September 26, 2002 the Tverskoy District Court found that the June 13, 2000 arrest was lawful. The ECHR found that the applicant?s detention violated Article 5 of the Convention. First, it observed that in order not to violate Article 5 the authorities must have a reasonable suspicion that the applicant was guilty of the alleged crime. The Court found that the evidence in this case ?...could ?satisfy an objective observer ? that the applicant might have committed the offence.? Second, the Court noted that the detention must be lawful, i.e. the domestic procedure must have been observed. Article 90 of Russia?s Code of Criminal Procedure (CCrP) requires ?exceptional circumstances? to justify the detention. Article 5 also requires a certain quality of the law, which implies that when a national law authorizes deprivation of liberty it must be sufficiently accessible and precise in order to avoid arbitrariness. The Court acknowledged that national authorities are the first to interpret and apply domestic law but the ECHR has the power to review the lawfulness of these national decisions. The Court concluded that Article 90 did not meet the quality requirement of Article 5. Furthermore, the authorities knew before June 13, 2000 that the applicant had been awarded the protection of the Amnesty Act and therefore could not continue the criminal proceedings against him without breaching national law. The ECHR also found that the applicant?s detention violated Article 18 of the Convention in conjunction with Article 5. The Court found that the detention of the applicant authorized by Article 5 was not only applied to bring him before the competent authorities on reasonable suspicion of having committed an offense, it was also intended to serve other purposes and therefore constituted an abuse of power violating Article 18 of the Convention. The ECHR finally found that the applicant was entitled to the non-pecuniary damages he sustained because the Russian authorities violated the Convention. Click here for the decision. European Court of Human Rights (ECHR): R.L. and M.-J.D. v. France, Application No. 44568/98 (May 19, 2004) The ECHR held that France violated Articles 3 (prohibition of inhuman or degrading treatment), 5 § 1(c) (right to liberty and security), 5 § 1(e) and 5 § 5 of the European Convention on Human Rights (?the Convention?) when French police used force against the applicants to arrest them and detained one of them in a psychiatric infirmary for an unnecessary period of time. The applicants, Mr R.L. and Mrs M.-J.D., are French nationals and owners of a restaurant in Paris. For two years they had been in dispute with their neighbors about the use of an emergency exit. On August 2, 1993, the first applicant fixed a menu to the door of the exit at issue using an electric drill. The neighbors called the police and complained about the noise. The parties did not agree about the events inside the applicants? restaurant when the police arrived. The French Government submitted that the police officers asked the first applicant to follow them outside but he refused and insulted them. The police forces had to use force to bring him under control. The second applicant tried to take pictures of the scene and to get away but was brought back inside the restaurant by a police officer. The applicants asserted that the police officers came inside the restaurant through the emergency door, repeatedly struck the first applicant and dragged the second applicant to the counter. The first applicant was taken to the police station of the 5th district and then to the psychiatric infirmary of the Paris police service (?the IPPP?). A psychiatric intern concluded he had no mental condition requiring hospitalization but that she had no authority to release him. He was released the next day around noon. The doctors who examined the applicants concluded the applicants suffered from many large bruises and prescribed a few days rest from work. The investigating judge discontinued the proceedings brought by the applicants as civil parties. The Indictment Division and the Cour de Cassation upheld the discontinuation order. The ECHR held by four votes to three that France violated Article 3 of the Convention because the force used against the applicants had not been proportionate. The Court noted that it was proven beyond a reasonable doubt that the bruises had been caused by the police officers. The ECHR also concluded by four votes to three that France violated Article 5 § 1(c) of the Convention because the first applicant had not been prosecuted for insulting a police officer, which would have been the only charge under national law justifying his arrest. The Court explained that his arrest could not be justified by the noise complaint because such an offense is only punishable by fine. The ECHR further held unanimously that France violated Article 5 § 1(e) of the Convention because the first applicant?s detention at the IPPP was not justified. The Court found that he was kept at the IPPP for administrative reasons only because the psychiatric intern had no authority to release him. However, there was no legitimate medical reason to deprive him of his liberty for more than a few hours. The Court found unanimously that France violated Article 5 § 5 of the Convention. The Court noted that the first applicant had used a remedy available to him without obtaining satisfaction because, in violation of Article 5 § 1(c) and (e), the criminal prosecution had been discontinued. Pursuant to Article 41 of the Convention (just satisfaction) the Court awarded EUR 35,000 to the first applicant, EUR 10,000 to the second applicant for physical injury and non-pecuniary damage and EUR 10,000 jointly to the applicants for costs and expenses. Click here for the decision. (Decision in French) International Criminal Tribunal for the Former Yugoslavia (ICTY) (Trial Chamber III): Prosecutor v. Milo?evi?: Decision on Motion for Judgment of Acquittal (Case no. CT/P.I.S./858-e) (June 16, 2004) The ICTY issued its Decision on Motion of Acquittal in the Slobodan Milo?evi? case in response to the Amici Curie Motion for Judgment of Acquittal Pursuant to Rule 98 bis of the ICTY?s Rules of Procedure and Evidence. The Trial Chamber found sufficient evidence to support each count challenged in the three indictments, but held that there was insufficient evidence to support certain allegations relevant to some charges in the indictments. The three indictments related to events occurring in Kosovo, Croatia and Bosnia. First, the Trial Chamber dismissed the motion with regard to Kosovo. The motion alleged that there was no evidence of an armed conflict in Kosovo in the former Republic of Yugoslavia prior to March 24, 1999 (the commencement of the NATO bombing), and there was insufficient evidence for each of the challenges relating to the Kosovo indictment. Second, the Trial Chamber also dismissed the motion with respect to Croatia. The motion contended that the Croatian indictment should be quashed because Croatia only became a state some time between January 15 and May 22, 1992, and consequently the conflict in Croatia could not have been international before this time and therefore all grave breaches counts relating to alleged crimes committed before these dates should be dismissed. However, the Court did uphold the motion with regard to specific challenges in the indictment that related to sufficiency of evidence in paragraphs 64(b), 64(f), 64(h), 64(p) and 71 of the indictment. Third, with respect to the Amici Curiae submissions concerning genocide in Bosnia, the Trial Chamber dismissed the motion. Consequently, the Trial Chamber held: (1) there was sufficient evidence of a joint criminal enterprise, which included members of the Bosnian Serb leadership, the aim and intention of which was to destroy a part of the Bosnian Muslims as a group; (2) Slobodan Milosevic was a participant in that joint criminal enterprise; (3) Slobodan Milosevic was a participant in a joint criminal enterprise, which included members of the Bosnian Serb leadership, to commit crimes other than genocide and it was reasonably foreseeable to him that, as a consequence of the commission of those crimes, genocide would be committed by other participants in the joint criminal enterprise, and it was committed; (4) Slobodan Milosevic aided and abetted or was complicit in the commission of the crime of genocide in that he had knowledge of the joint criminal enterprise, and that he gave its participants substantial assistance, being aware that its aim was the destruction of a part of the Bosnian Muslims as a group; and (5) Slobodan Milosevic was a superior to certain persons whom he knew or had reason to know were about to commit or had committed genocide of a part of the Bosnian Muslims as a group, and he failed to take the necessary measures to prevent the commission of genocide, or punish the perpetrators thereof. Click here for the decision. European Union (?EU?): the Competitiveness Council of the European Union (?the Council?) approved a Regulation of the European Parliament and of the Council on cooperation between national authorities responsible for the enforcement of the consumer protection law (?the Regulation on consumer protection cooperation?) (May 18, 2004) On May 18, 2004 the Council approved a regulation to protect consumers residing in the EU from intra-Community infringements with the creation of a mutual assistance network between competent authorities in the Member States under the supervision of the Commission. The Commission of the European Communities (?the Commission?) proposed the Regulation on consumer protection cooperation on July 25, 2003 to answer the need for a cooperation of public enforcement authorities throughout the internal market. The European Parliament adopted the amended proposal on April 20, 2004. The Council indicated that the necessary procedures to allow the final adoption of the text as soon as possible are underway. Article 23 of the Regulation provides that the mutual assistance network will start working in 2006. Article 3 defines intra-Community infringement as any act or omission in violation of the consumer protection laws that harms or is likely to harm the interest of consumers not residing in the same Member State as the one ?...where the act or omission took place, or where the seller or supplier is established, or where evidence or assets pertaining to the act can be found. Domestic infringement laws and bilateral or multilateral agreements are not affected by the Regulation on consumer protection cooperation.? Each Member State will have to designate the competent authorities that will acquire the rights and obligations established in the Regulation. The competent authorities in each Member State will have to provide each other with any requested information relevant to inquire whether an intra-Community infringement has occurred or is likely to occur under the mutual assistance obligation in Article 6. In addition, under Article 7 a competent authority which knows or reasonably suspects that an infringement has occurred or will occur will have to fully inform other Member States and the Commission without any prior request. Mutual assistance rights and obligations are also established in the enforcement process. Under article 8, a Member State can be required to take measures to stop the intra-Community infringement. Article 9 requires competent authorities to ?...co-ordinate their market surveillance and enforcement activities.? Article 18 provides that the Community will cooperate with third countries and international organizations to enhance the protection of consumers in the areas covered by the Regulation on consumer protection cooperation. Article 19 establishes a Standing Committee on Consumer Protection Cooperation. (?the Committee?) to assist the Commission. The Committee will examine how the cooperation network is working and receive reports from Member State about the state of consumer protection in the EU. Click here for the document. DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS United Nations (U.N.) Security Council: Resolution 1549 (The Situation in Liberia) (2004) (June 17, 2004) The Security Council took note of the views expressed by the Chairman of the National Transitional Government of Liberia (?NTGL?) in the Security Council on June 3, 2004, appealing for the lifting of the current sanctions on Liberia?s timber and diamonds, and the request that the Council visit Liberia within the next 90 days to assess the performance of the NTGL in fulfilling the conditions for the lifting of the sanctions. The Security Council decided to re-establish the Panel of Experts (?the Panel?) appointed pursuant to paragraph 22 of resolution 1521 (2003) for a further period to undertake several tasks. The tasks outlined include conducting a report on the implementation, and any violations, particularly ongoing violations, of the measures referred to in resolution 1531 (2003) including any violations involving rebel movements and neighboring countries; monitoring the implementation and enforcement of the measures imposed by paragraph 1 of resolution 1532 (2004), particularly in Liberia and any other neighboring states; and assessing the socio-economic and humanitarian impact of the measures imposed by resolutions 1521 (2003) and 1532 (2004.) In addition, the Security Council encouraged the NTGL to take urgent steps to establish an effective Certificate of Origin regime for trade in Liberian rough diamonds that is transparent and internationally verifiable, and also urged the NTGL to establish its full authority and control over the timber producing areas, and to take all necessary steps to ensure that government revenues from Liberian timber industry are not used to fuel conflict or otherwise in violation of the Council?s resolutions but are rather used for legitimate purposes for the benefit of the Liberian people, including development. Click here for recent Security Council Resolutions. Organization of American States (OAS): Declaration of Quito on Social Development and Democracy, and the Impact of Corruption (June 8, 2004) The OAS Foreign Affairs Ministers and Heads of Delegations declared their commitment to fight corruption. The Ministers emphasized the negative impact of corruption on democracy and development and the need to cooperate on a transnational scale to strengthen transparency and efficiency. The Ministers recognized that the Inter-American Convention against Corruption (?the Convention?) is the major instrument to combat corruption and committed themselves to strengthen the Follow-up Mechanism for Implementation of the Inter-American Convention against Corruption (MESICIC) adopted by the First Conference of the State Parties on April 1 and 2, 2004. The Ministers underscored the importance of rules to ensure the transparency of the management of national and transnational enterprises, public affairs and public property, and political party finances. The Ministers observed that political pluralism and equality before the law are some of the essential elements of democracy. The Ministers further declared that the media, the various actors in civil society and access to public information must contribute to enhance transparency and democracy. The Ministers considered the United Nations Convention Against Corruption as an effective instrument to fight corruption but also emphasized the importance of the Conference of the States Parties to the Convention to be held in Nicaragua on July 8 and 9, 2004 and the need to adopt additional measures to promote transparency and democracy. Click here for the document. BRIEFLY NOTEDComplaint filed before the African Commission on Human and Peoples? Rights (June 22, 2004) Freedom FM, an independent radio station in Douala, Cameroon, filed a complaint before the African Commission on Human and Peoples? Rights alleging that its radio station was arbitrarily denied a broadcasting license. Police seized the radio station in May 2003. The claimant argues that Cameroon?s licensing laws and practices violate international broadcasting standards. Click here for the website of the African Commission of Human and Peoples? Rights. ASIL Briefing: The Legal Framework for Abu Ghraib: Friday, June 18, 2004Speakers: Ruth Wedgwood, Edward B. Burling Professor of International Law and Diplomacy; Director of the International Law and Organization Program, Paul H. Nitze School of Advanced International Studies, Johns Hopkins University; Jeffrey K. Walker, Senior Fellow, Institute for International Law and Politics, Georgetown University; Judge Advocate, Lieutenant Colonel, U.S. Air Force (Ret.) The following questions were addressed: (1) what are the laws applicable to the acts under scrutiny resulting from the recent Abu Ghraib prison scandal; (2) what is the legal status of the persons involved in the scandal. In regard to the international and U.S. laws at issue, it was observed that the Geneva Conventions, and in particular, Article III common to the Geneva Conventions would be relevant. It was noted that Geneva Convention IV could apply to the treatment of Iraqi civilians, assuming that the United States is considered to be occupying Iraq. Geneva Convention III could apply to those Iraqis considered to be prisoners of war. The potential relevance of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (?Torture Convention?) and the U.S. federal statute criminalizing torture outside the territorial jurisdiction of the United States (United States Code sections 2340 and 2340A), was also discussed. It was noted that the Torture Convention is non-derogable during times of war.
For further analysis of the legal framework for prosecuting those responsible at Abu Ghraib, please see ASIL Insights. Click here for the New York Times? links to recently released memos by U.S. government officials regarding the applicability of the Geneva Conventions. News of the 2004 Annual Meeting: A Note from ASIL?s Executive Director: ASIL?s 2004 Annual Meeting in Washington, DC, was a phenomenal success this year. Registrations were up by 20%, with people from 43 countries in attendance. A large and enthusiastic audience greeted keynote speaker Justice Antonin Scalia, who spoke on the role of foreign rulings in U.S. court decisions. The program also featured Abdullahi An Na?im, Amy L. Chua, seven former Legal Advisers to the U.S. Department of State, and other prominent members of the legal community discussing and debating an array of timely subjects, such as the conflict in Iraq, collective response to human rights violations, and WTO jurisdiction over non-trade issues. If you missed any, or all, of this meeting?s exciting program, you can still find out what happened: -Read articles on Justice Scalia?s keynote address on The Washington Post and Slate Web sites. -Watch the C-Span video of The Bush Administration Preemption Doctrine and the Future of World Order, one of the most popular panels at the meeting. Order your copy directly from C-Span by calling 877.662.7726 and asking for ?Use of Preemptive Military Force,? ID number 181253. -Listen to audiotapes of panels and lectures from International Video Corporation (IVC). Order a single tape or a complete set by filling out the order form (in .PDF format) and sending it directly to IVC at the address or fax number shown. -Read the lectures, panel presentations, and Justice Scalia?s address in the ASIL?s Proceedings of the 98th Annual Meeting this fall. Subscribe in advance at www.asil.org/Proceed.htm. The next Annual Meeting will be March 30-April 2, 2005, in Washington, DC. Be sure to mark your calendar today and visit www.asil.org for the latest information! Best regards, Charlotte Ku Executive Director International Law In Brief (ILIB) - Copyright 2004 |