Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
Feburary 22, 2008

©2008 American Society of International Law
(Educational copying is permitted with due acknowledgment)

JUDICIAL AND SIMILAR PROCEEDINGS·
	NAFTA/UNCITRAL Canadian Cattlemen for Fair Trade v. United States: Award on Jurisdiction (January 28, 2008)
	European Court of Human Rights Grand Chamber: Advisory Opinion on certain legal questions concerning the lists of candidates submitted with a view to the election of judges to the European Court of Human Rights (February 12, 2008)
	United States Court of Appeals: Belhas v. Ya'alon (February 15, 2008, D.C. Cir.)
	European Court of Human Rights Grand Chamber: Kafkaris v. Cyprus (February 12, 2008)
	United States Court of Appeals: Pielage v. McConnell (11th Cir. February 15, 2008)

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JUDICIAL AND SIMILAR PROCEEDINGS

NAFTA/UNCITRAL Canadian Cattlemen for Fair Trade v. United States: Award on Jurisdiction (January 28, 2008)

Click here for document. (Approximately 100 pages).

Arbitral Tribunal Composed of Professor Dr. Böckstiegel, Chairman, Mr. James Bacchus, Ms. Lucinda A. Low

The Arbitral Tribunal held that it lacks jurisdiction to consider claims under the North American Free Trade Agreement (NAFTA) Article 1116 (Claims by an Investor of a Party on its Own Behalf) for an alleged breach of Article 1102(1)(National Treatment) where all of the Canadian Claimants' investments are located in Canada and the Claimants have not made and do not plan to make any investment in the U.S. The Tribunal ordered the parties to each pay 50% of the costs of arbitration.

The Canadian Cattlemen for Fair Trade (Claimants), a group of Canadian nationals working in the beef and cattle business, alleged that the United States (Respondent) engaged in a number of practices that unfairly discriminated against them in favor of their U.S. counterparts. Specifically, they alleged that the total U.S. ban on the import of live cattle from Canada into the United States from May 20, 2003 to July 14, 2005 under the Animal Health Protection Act (AHPA) was unnecessary and unreasonable and lacking scientific evidence demonstrating a threat of bovine spongiform encephalopathy (BSE). By contrast, the Respondents asserted that they had no duty under NAFTA with regard to the Claimants' investments in Canada, either to provide national treatment or to arbitrate claims regarding the investments. The Respondents contended that the scope of NAFTA Article Eleven covers only investments made in the territory of the Respondent state, here, the U.S. The Claimants contended that applying the plain meaning treaty interpretation rules of Article 31 of the Vienna Convention on the Law of Treaties (VCLT) to Article 1102(1) of NAFTA, the Claimants should be provided most-favorable treatment that the U.S. provides its corporations.

The Tribunal articulated the issue before it as being whether it holds jurisdiction to consider claims under NAFTA Article 1116 for a purported breach of Article 1102(1)(National Treatment) where the Claimants' investments are located in Canada and they have not invested, or sought to invest, in the U.S. The parties agreed that if the Tribunal determined that it did not possess jurisdiction, all of their claims would be disposed of in their entirety.

Article 1101 of NAFTA sets forth the scope of Chapter Eleven as applying to "measures adopted or maintained by a Party relating to (a) investors of another Party; (b) investments of investors of another Party in the territory of the Party." The Tribunal emphasized that while the Claimants' argument was not frivolous the Tribunal nonetheless concurred with the Respondents' position that only actual or prospective foreign investors, rather than domestic ones, could avail themselves of NAFTA's Chapter Eleven protections. It applied the VCLT Article 31 rules regarding treaty analysis to Chapter Eleven requiring that the terms of a treaty be interpreted in good faith, according to ordinary meaning, in context, and in light of the treaty's object and purpose. The Tribunal noted that had the drafters of Chapter Eleven meant it to apply to domestic investors, the language of its subsections such as 1102 and 1139 would have had to be written much differently, with greater specificity; and the fact that this was not done provides the Tribunal with additional proof that it was meant to apply to only foreign investment and investors.

While the Tribunal held that it lacked jurisdiction to hear the Claimant's claims under the investor-state dispute resolution mechanisms of NAFTA, it nonetheless noted that the Claimants were not left without a remedy because the government of Canada could pursue a state-to-state action under Article 20 of NAFTA against the U.S. instead.

European Court of Human Rights Grand Chamber: Advisory Opinion on certain legal questions concerning the lists of candidates submitted with a view to the election of judges to the European Court of Human Rights (February 12, 2008)

Click here for document. (Approximately 20 pages).

The European Court of Human Rights Grand Chamber (Court) issued its first advisory opinion on the merits February 12, 2008. Acting pursuant to Article 47 (advisory opinions) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention), the Court addressed the question whether a list of candidates to serve on the Court which otherwise satisfies the requirements of Article 21 of the Convention (criteria for office) may nonetheless be rejected because it does not include female candidates. The Court held that while guaranteeing a "certain mix in the composition of the candidates" for the Court is valid, some exceptions must nevertheless be permitted to ensure that contracting states are able to select national candidates who are able to meet the other requirements of Article 21. Because these exceptions have not yet been defined, the Court called for them to be defined as soon as possible.

The request for the advisory opinion arose out of an exchange between René van der Linden, Parliamentary Assembly (PA) President, and Malta. Van der Linden notified Malta in January 2007 that its failure to include women on its July 2006 slate of Court candidates contravened PA Resolution 1366 (2004), as modified in Resolution 1426 (2005). Malta responded that it complied with the Article 21 Convention requirements for judicial candidates when it submitted its list, and in any case the Convention does not specify that gender is one of the selection criteria.

The Chair of the Ministers' Deputies of the Council of Europe requested the Court to provide an advisory opinion on two issues: 1) whether the PA may reject a list of candidates for the Court despite meeting the requirements of Article 21 because it does not include female candidates; and 2) whether resolutions 1366 and 1426 are in breach of the PA duty to examine candidates based upon the criteria in Article 21 of the Convention.

In its analysis the Court examined PA Resolutions 1366 and 1426 which specify that the PA will not consider lists of candidates which do not include at least one candidate of each sex. It analyzed the UN Convention on the Elimination of Discrimination against Women (CEDAW) Articles 4, 7, and 8 providing that states parties must take measures to eliminate discrimination against women and ensure their participation in the work of international organizations. It reviewed Council of Europe Regulations Article 12 (staff), and Article 22 (appointments) specifying that where candidates for the Court are of equal merit, preference should be given to the candidate of the sex which is underrepresented. It also examined the practice of other international tribunals such as the International Court of Justice and the International Tribunal for the Law of the Sea and found that only the International Criminal Court and African Court on Human and People's Right possess non-binding rules attempting to balance gender in court composition.

Article 21 §1 requires judicial candidates for the Court to be of high moral character and hold the qualifications for appointment to high judicial office or be "juriconsults of recognized significance." The Court stated that while Contracting Parties may go beyond the requirements of Article 21§1 in developing a list of candidates, they have nonetheless decided not to include additional qualifications in Article 21. The Court thus held that the PA cannot reject lists of candidates where Contracting Parties have complied with the requirements of Article 21. The Court held that it was unnecessary for it to answer the second question put to it.

United States Court of Appeals: Belhas v. Ya'alon (February 15, 2008, D.C. Cir.)

Click here for document. (Approximately 27 pages).

The Court of Appeals affirmed the District Court's dismissal of the plaintiffs' suit for lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA). The Court also concurred with the District Court's denial of plaintiffs' motion for discovery holding that their allegations were not substantial enough to "abrogate the immunity that Congress conferred upon foreign states."

Plaintiffs had brought a class action suit against General Moshe Ya'alon, former Head of Army Intelligence for the Israel Defense Forces (IDF) from 1995-1998, under the Alien Tort Statute (ATS), 28 U.S.C. § 1350, and the Torture Victim Protection Act of 1991 (TVPA), 28 U.S.C. § 1350 note, for his alleged involvement in the shelling of a United Nations (UN) compound in Qana, Lebanon in April 1996 leading to the death or injury of the plaintiffs' relatives and families.

The plaintiffs argued that General Moshe Ya'alon should be held liable under theories of direct responsibility, aiding and abetting, and command responsibility for the intentional and indiscriminate attack of the civilians who took shelter at the UN compound as a result of the ongoing fighting between Israeli forces and the Hezbollah. The complaint alleged that General Ya'alon participated in the IDF's decision to attack the UN compound using highly explosive artillery shells designed to maximize injury on the ground and killing over 100 Lebanese civilians in the process. In consequence, the plaintiffs sought damages for war crimes, extrajudicial killing, crimes against humanity, and cruel, inhumane or degrading treatment or punishment. The Plaintiffs argued that General Ya'alon, "acting under the actual or apparent authority and/or color of law of the State of Israel" during the attack, should not be entitled to immunity under FSIA. He acted outside the scope of his lawful authority in participating in the decision to shell the UN compound.

In December 2006, the District Court dismissed the plaintiffs' case relying on a submission of the Israeli Ambassador to the U.S. State Department stating that Ya'alon was acting in his official capacity in the IDF and requesting that he should be granted immunity status. The Court held that as an "agent or instrumentality" of the state he should be granted immunity from suit under the FSIA. The Court rejected the plaintiffs' argument that to grant immunity to individuals under the FSIA would in effect nullify the TVPA. It also disagreed with the claim that because the acts in question were contrary to international jus cogens norms, they could never be authorized by a foreign state and therefore could not constitute "official acts" as defined in the FSIA.

Plaintiffs appealed in January 2007. The Court of Appeal, however, concurred with the District Courts finding that General Ya'alon was entitled to immunity because the FSIA was designed to govern actions against officers serving in the army executing the will of the state. Moreover, the Court did not agree that by granting immunity to General Ya'alon for claims brought under the TVPA, it would defeat the very object and purpose of the Act. Congress intended the TVPA to be subject to the provisions of the FSIA and did not intend it to carve out another exception that would overcome the jurisdictional bar to suit under the FSIA.

The Court also took notice of the submissions of the Israeli Ambassador in effect ratifying the acts at issue to determine the whether General Ya'alon acted within the scope of his official capacity. Consistent with the District Court's reasoning the Court of Appeals did not permit the plaintiffs to conduct discovery. It held that an inquiry into the General's duties and responsibilities to disprove Israel's assertion that he acted within the scope of his military duties to protect Israel and its citizens from terrorist attacks was unnecessary to determine whether he was acting within his scope of authority and therefore in his official capacity.

European Court of Human Rights Grand Chamber: Kafkaris v. Cyprus (February 12, 2008)

Click here for document. (Approximately 84 pages).

The European Court of Human Rights Grand Chamber (ECtHR) dismissed the majority of Mr. Kafkaris' claims pursuant to the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention) finding that there had been no violation of Article 3 (prohibition of torture), Article 5 § 1 (right to liberty and security), Article 7 (no punishment without law in respect to the retrospective imposition of a heavier penalty), or Article 14 (prohibition of discrimination). Nevertheless, by a vote of 15 to two it held that there was a violation of Article 7 concerning the quality of law applicable at the time Mr. Kafkaris committed the offence. The Court held unanimously under Article 41 (just satisfaction) that a finding of a violation amounted to sufficient satisfaction for the non-pecuniary damage sustained by Mr. Kafkaris and awarded him 13,465 Euros for costs and expenses.

The Limassol Assize Court found Mr. Kafkaris, a Cypriot national, guilty of three counts of premeditated murder under section 203(2) of the Criminal Code in March 1989 and sentenced him to life in prison. The Supreme Court dismissed and denied his appeal contesting the sentence of mandatory life imprisonment in March 1990. Subsequent changes in the prison regulations and relevant legislative provisions which were applied to his case retrospectively led to his continued detention beyond the date originally set for his release. While the Supreme Court had declared the relevant regulations unconstitutional and ultra vires in October 1992 which led to their repeal in May 1996, Mr. Kafkaris was not released on his pre-determined release date (November 2002). Consequently, Mr. Kafkaris submitted a habeas corpus application to the Supreme Court challenging the lawfulness of his mandatory life imprisonment and his continued detention in January 2004. The application was dismissed and he appealed unsuccessfully.

Subsequently, Mr. Kafkaris argued before European Court of Human Rights Grand Chamber that his unforeseen prolonged prison sentence from the definite 20 year period to the indeterminate period of time for the remainder of his life was in violation of the Convention. Mr. Kafkaris also contended that because of the changes in the law, he would be precluded from the possibility of a reduced sentence. While other inmates serving life sentences had the opportunity to have their case reviewed and some had been subsequently released, he was forced to remain incarcerated indefinitely.

The ECtHR was sympathetic to Mr Kafkaris' concerns about the legislative amendments governing prisoners sentenced to life imprisonment. It did not agree, however, that his current detention without a minimum term and the lack of prospect of release under the current system amounted to inhumane and degrading treatment in violation of Article 3, but rather held that these feelings were inherent in the nature of the sentence imposed. The Court decided further that the conditional release date given by the prison authorities did not affect the imposition of a life sentence by the Assize court. Therefore his detention past November 2002 conformed to the original mandatory life sentence imposed upon him and was thus lawful. Consequently, there was no violation of notice of Article 5 § 1.

The Court analyzed Cypriot criminal law governing Mr. Kafkaris' sentence of life imprisonment. When he committed the crime prison regulations based on the Prison Discipline Law that had subsequently been repealed, allowed prisoners to apply for a reduction of their sentence based upon good conduct. These regulations at times effectively translated the standard penalty for life imprisonment into a period of 20 years of incarceration. The Court held, however, that because the relevant Cypriot law was not defined with enough precision at the time Mr. Kafkaris committed his offence, he was unable to reasonably discern the scope or manner of execution of the penalty of life imprisonment. Accordingly, it held that the part of Article 7 concerning the quality of law applicable at the material time had been violated.

Even though the Court acknowledged that the relevant changes in prison legislation impacted the conditions of release and rendered Mr. Kafkaris' imprisonment de facto longer, the Court held that "those changes could not be construed as imposing a heavier penalty than that imposed by the trial court". Also, despite the ambiguous nature of the law, the relevant provisions of the Criminal Code concerning the penalty of life imprisonment could not with all certainty be understood to amount to 20 years of imprisonment. The Court was furthermore of the opinion that any issues relating to the implementation of and the underlying reasons behind release policies were inherently domestic in nature and thus should be determined at a national level. As a result, the Court found no violation of Article 7 concerning the retrospective imposition of a heavier penalty.

Because the reduction of sentences of all prisoners are part of the wide prerogative and discretionary powers of the President of the Republic under Article 53(4) of the Constitution, the Court held that the exercise of that discretion does not give rise to an argument under Article 14 and furthermore dismissed Mr. Kafkaris' claim of discriminatory treatment vis-à-vis other life prisoners and other prisoners released since 1993.

United States Court of Appeals: Pielage v. McConnell (11th Cir. February 15, 2008)

Click here for document. (Approximately 16 pages).

In a case interpreting the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), the Federal Circuit Court of Appeals for the Eleventh Circuit (Court) affirmed the District Court's dismissal of the suit pursuant to Federal Rule of Civil Procedure 12(b)(6) because it held that there was no "retention" or "wrongful retention" pursuant to Article 3 of the Convention.

Mariette Pielage of the Netherlands and James Vincent McConnell III of the United States met and became engaged in Alabama in the spring of 2004. In December 2004 Pielage became pregnant with McConnell's child. She returned to the Netherlands in May 2005 to renew a visitor's visa. While she was there, McConnell began dating another woman in Alabama and he instructed Pielage to remain in the Netherlands, cancelled her return plane ticket, and called off the engagement. Pielage gave birth to the baby Josha in the United States in September 2005. McConnell then applied for a paternity test and an order to establish custody, visitation, and child support. A DNA test proved McConnell to be the father. In September 2006 an Alabama Circuit Court granted McConnell's ne exeat motion, which prohibited Pielage from taking the baby out of the court's jurisdiction until the child custody issue was resolved.

In December 2006 Pielage brought suit in the District Court for the Southern District of Alabama alleging that the ne exeat order comprised an "unlawful retention" (the convention uses the terminology "wrongful removal or retention") and violated the Hague Convention as implemented by the International Child Abduction Remedies Act (ICARA) 42 U.S.C. §11601-11 because it interfered with her custodial right to return the child to his habitual residence in the Netherlands. The District Court assumed that the Netherlands was Josha's habitual residence but held in favor of McConnell that the ne exeat order did not constitute a wrongful removal or retention under the ICARA because Pielage had custody of Josha since his birth and after the order was entered.

Both the U.S. and the Netherlands are parties to the Hague Convention. Article 3 of the Convention defines what constitutes "wrongful" removal or retention. The Eleventh Circuit noted that this was an unusual Hague Convention and ICARA case because it does not involve the typical scenario of a non-custodial parent removing the child from a custodial parent or failing to return the child after visitation. Like the District Court, it assumed that the Netherlands is the child's habitual residence.

In its analysis, the Court examined first, whether there had been any removal or retention; and if so, whether the removal or retention was unlawful. It opined that not every retention can be viewed as violative of a parent's custody right because otherwise the term "wrongful" in the Convention would be surplusage. The Court examined the Explanatory Report on the 1980 Hague Child Abduction Convention which indicated that that the Convention is meant to address those situations where the child is removed from the family and social environments in which he has developed. Here, from the time of his birth until the District Court entered the ne exeat order, a period of about a year, Josha spent ten months in Alabama and only two in the Netherlands. The Court thus held that because there had been no "retention" there was likewise no "wrongful retention" either.

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