International Law In Brief
Developments in international law, prepared by the
Attorney Editor of International Legal Materials
The American Society of International Law
August 14, 2008
©2008 American Society of International Law
(Educational copying is permitted with due acknowledgment)
RESOLUTIONS, DECLARATIONS AND OTHER DOCUMENTS
United Nations Security Council Resolution 1827 Terminates Mandate of United Nations Mission in Ethiopia and Eritrea (July 30, 2008)
Click here for document. (Approximately 2 pages).
The Security Council unanimously voted to terminate the eight-year mandate of the U.N. Mission in Ethiopia and Eritrea (UNMEE). This action will also eliminate the security zone currently separating Ethiopia and Eritrea.
The decision to end the mission came after numerous attempts at a diplomatic resolution to the long-standing border dispute between the two countries failed. After the independent Eritrea-Ethiopia Boundary Commission (EEBC) terminated its efforts in November of 2007, and the parties failed to implement the resulting Algiers Agreement, which delimitated and demarcated the disputed border, the Council decided to cease its efforts.
There is uncertainty regarding the region and the strained relations between the two countries make future conflict very likely. Some argue that the only solution to the disagreement would come in the form of new political leadership in both Ethiopia and Eritrea. However, since national elections have been postponed since 2001, even this alternative seems unlikely. Foreseeing potential disagreement, the Council expressly demanded in the Resolution that both sides fully comply "with their obligations under the Algiers Agreements, to show maximum restraint and refrain from any threat or use of force against each other, and to avoid provocative military activities." Finally, the Council requested that the Secretary-General explore other types of U.N. presence in Ethiopia and Eritrea "in the context of the maintenance of international peace and security."
United Nations Security Council Resolution 1828 Renews the Mandate of the African Union-United Nations Hybrid Operation in Darfur (July 31, 2008)
Click here for document. (Approximately 4 pages).
The Security Council voted in favor of extending the mandate of the African Union-United Nations Hybrid Operation in Darfur (UNAMID), with 14 votes in favor and the United States abstaining.
According to U.N. News Center, there was much discussion during the Security Council session regarding the International Criminal Court (ICC) arrest warrant against the Sudanese President, Omar al-Bashir, on charges of genocide, war crimes and crimes against humanity (see ILIB July 18 issue). The article describes some of the strongest objections articulated during the meeting. Several countries, most notably Russia, expressed concern that the Prosecutor's request will have a negative impact on the peacekeeping mission in Darfur. Some representatives, in contrast, wanted the Security Council to take a firmer stance regarding the important work done by the ICC in prosecuting criminals. The United States, who shared this sentiment, abstained from casting its vote because the Resolution was too weak regarding the prosecution of al-Bashir. Others, like China, supported the request by the African Union and other Council members to suspend the indictment, worrying that the indictment would halt Sudanese cooperation and thus obstruct progress in Darfur. China's representative declared that the decision to indict the Sudanese leader was "an inappropriate decision made at an inappropriate time" and will lead to mistrust between Sudan and the United Nations, harming the unstable security condition in Darfur.
In the Resolution, the Security Council deplored the "deterioration in the security and humanitarian situation in Darfur" and stressed "the need to enhance the safety and security" of its personnel. It also added that perpetrators of crimes against the civilian population and humanitarian workers had to be brought to justice. Finally, because the situation in Darfur "continues to constitute a threat to international peace and security" the Council agreed to extend the mandate until further notice.
United Nations Security Council Resolution 1829 Establishes the United Nations Integrated Peacebuilding Office in Sierra Leone (August 4, 2008)
Click here for document. (Approximately 3 pages).
The Security Council authorized the establishment of the United Nations Integrated Peacebuilding Office in Sierra Leone (UNIPSIL), after such action was recommended by the Secretary-General's report. The mission will last for 12 months, beginning on October 1, 2008.
The primary focus of the mission is to offer political assistance to both local and national efforts aimed at identifying and solving tensions and conflicts. The mission will also monitor and safeguard human rights, democratic institutions and the rule of law and fight corrupt practices. Although the U.N. will closely oversee the operations and give assistance, it is the government of Sierra Leone that will bear the "primary responsibility for peacebuidling, security and long-term development."
The Council also stressed the "important role of women in the prevention and resolution of conflicts and in peacebuilding" and encouraged the parties to take the "gender perspective" into consideration when implementing the mandate.
International Atomic Energy Agency Board Approves India-Safeguards Agreement (August 1, 2008)
Click here for document. (Approximately 25 pages).
The International Atomic Energy Agency is an independent body that, pursuant to an agreement, works closely with the United Nations. Its general function is to oversee cooperation among the member states in the nuclear field, by "promot[ing] safe, secure and peaceful nuclear technologies." In order to achieve this objective, the IAEA reports annually to the UN General Assembly and, in case of non-compliance by States with their safeguards obligations, to the Security Council.
Article III of the IAEA Statute authorizes the IAEA to "establish and administer safeguards designed to ensure that special fissionable and other materials, services, equipment, facilities, and information made available by the Agency or at its request or under its supervision or control are not used in such a way as to further any military purpose; and to apply safeguards, at the request of the parties, to any bilateral or multilateral arrangement, or at the request of a State, to any of that State's activities in the field of atomic energy."
The IAEA approved an agreement to extend nuclear safeguards over India's civilian nuclear reactors. According to the agency's own news release, "IAEA would begin to implement the new Safeguards Agreement in 2009, with the aim of bringing a total of 14 Indian reactors under Agency safeguards by 2014." The approval is a key step to an India - U.S. nuclear deal. BBC news reported that under the agreement "India would get access to US civilian nuclear technology and fuel. In return, Delhi would open its civilian nuclear facilities to inspection - but its nuclear weapons sites would remain off-limits." The IAEA approval is the first major hurdle overcome by the two powers. The next big obstacle to the bilateral agreement is an approval by the 45-member Nuclear Supplier Group (NSG), a "group of nuclear supplier countries which seeks to contribute to the non-proliferation of nuclear weapons through the implementation of Guidelines for nuclear exports and nuclear related exports." Because India is not a Nuclear Non-Proliferation Treaty country (NPT), India has expressed hopes that NSG will exempt it from requirements generally imposed on member governments.
JUDICIAL AND SIMILAR PROCEEDINGS
Barzilay v. Barzilay (8th Cir. June 9, 2008)
Click here for document. (Approximately 13 pages).
The appellant, Sagi Barzilay, invokes the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) (T.I.A.S. No. 11670, Oct 25, 1980), seeking the return to Israel of his children living with his former wife Tamar Barzilay in the U.S. Both Sagi and Tamar are Israeli citizens, who at the time of their marriage resided in Israel. Although all of the couple's children are Israeli citizens, none has resided in Israel for an extended period of time. The family moved to Missouri in 2001 where Tamara and the children have lived ever since. In 2005, the couple divorced and a Missouri state court entered a divorce decree establishing joint custody for the children. The decree also required that upon the repatriation of one parent to Israel, the other parent would also return to Israel with the minor children. In 2005 Sagi repatriated to Israel but Tamara and the children remained in the U.S.
After returning from a visit in Israel, where the parties entered into an interim international agreement pending Tamara's repatriation, Tamar petitioned a Missouri state court to modify the custody provisions in the Missouri divorce decree to restrict Sagi's visitation rights. Sagi moved to dismiss the action on the grounds that the state court lacked jurisdiction because of the Israeli consent decree. Thereafter, Sagi initiated this federal action under the Hague Convention's implementing statute, the International Child Abduction Remedies Act (ICARA). Tamar moved to dismiss the federal action for failure to state a claim. The district court, relying on the Younger doctrine (Younger v. Harris, 401 U.S. 37 (1971)), abstained from hearing the case, holding that abstention in this case was appropriate in order to avoid interference with the pending state court proceedings.
On appeal, appellant Sagi argued that because there was no Hague petition pending before the state court, the Younger abstention doctrine was improperly applied. The mere mentioning of the term "habitual presence" in the state court proceeding was not enough to preclude the bringing of the petition under the ICARA. The Court of Appeals agreed, holding that because neither parent filed a Hague petition in state court, the Hague Convention issues were not properly and fully raised in the state proceeding. Mere "statement[s] by the state court touching on an issue under the Hague Convention inquiry is not controlling."
The case reaffirms the right of petitioners to file an international petition for child repatriation in either a federal or state court. In addition, federal courts cannot dismiss an action unless Hague Convention issues are properly or fully raised in a state proceeding. Every petitioner must be given "adequate opportunity to litigate ICARA issues." The court stressed the "principle objectives" of the Convention, including "the prompt return of children wrongfully removed or retained in any Contracting State" and the respect for "rights of custody and access under the law" between the Contracting States (Art. 1).
Ameziane v. U.S. (Inter-Am. C.H.R. August 6, 2008)
Click here for document. (Approximately 108 pages).
Djamel Ameziane, a Guantánamo Bay detainee from Algeria, filed a complaint with the Inter-American Commission on Human Rights (IACHR) against the U.S., alleging violations of several substantive rights enshrined in the American Declaration of the Rights and Duties of Man (American Declaration), including the right: "[1] not to be arbitrarily deprived of his liberty; [2] to freedom from torture and cruel, inhumane and degrading treatment; [3] to health; [4] to religious freedom and worship; [5] to private and family life; and [6] to protection of his personal reputation - in addition to the procedural rights protected by articles XVIII and XXVI of the Declaration." According to the petition, Ameziane has been held prisoner at Guantánamo "without charge or judicial review of his detention, for six and a half years." While imprisoned, petitioner alleges that he has also been "physically and psychologically tortured, denied medical care for health conditions resulting from his confinement, prevented from practicing his religion without interference and insult, and deprived of developing his private and family life."
Before the Commission can reach a favorable admissibility finding and proceed with the merits of the case, the petitioner must establish that the Commission has jurisdiction ratione personae, ratione materiae, ratione temporis, and ratione loci. According to the complaint, because "Mr. Ameziane is a natural person subject to complete jurisdiction and control of the United States and whose rights have been protected under the American Declaration," the Commission has jurisdiction ratione personae. Finally, because violations alleged are protected under the American Declaration, the U.S. has ratified the OAS Charter and the creation of the Commission, and the acts took place when petitioner was within the U.S. jurisdiction, Ameziane argues that the remaining procedural requirements have also been met.
In addition to overcoming the jurisdictional hurdles, the applicant must, pursuant to Article 31 of the IACHR Rules of Procedure, show that he has exhausted all domestic remedies unless "such remedies are unavailable as a matter of law or fact." Article 31(2) provides an exception to the exhaustion requirement -where: (a) the domestic legislation of the State concerned does not afford due process of law; (b) the party alleging violation of his or her rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or (c) there has been unwarranted delay." Mr. Ameziane argues that he has for years been "denied access to the appropriate domestic remedies [...] by a combination of de jure and de facto prohibitions and unwarranted delays," and thus must be considered exempt from the exhaustion requirement.
Because of the continued violations by the U.S., Ameziane petitions the Commission to expedite the proceedings. He also asks that the Commission to order the U.S. not to transfer him to Algeria where he will be at risk of harm, to cease all abusive interrogations and other mistreatment, and to ensure him humane conditions of confinement, adequate medical treatment, and regular communication with his family.
This is the first complaint brought by a Guantánamo detainee and the Commission's determination on whether to pursue the claim may establish a new venue for individuals similarly situated. Although it has been in place since WWII, the Inter-American system is not commonly used to seek relief for human rights violations by the U.S. One of the strongest criticisms regarding the IACHR is its lack of enforcement authority. The Commission's ability to put pressure on governments by exposing government violations at least allows the victims to have their voices heard. A public outcry can also lead to political pressure and result in positive action by the government.
E.T.I. Euro Telecom International N.V. v. Republic of Bolivia and Empresa Nacional de Telecommunicaciones ENTEL S.A. (S.D.N.Y. July 30, 2008)
Click here for document. (Approximately 9 pages).
Plaintiff ETI, a Dutch corporation, entered into a series of agreements with Defendant Entel, a privatized Bolivian telecommunications company, whereby ETI acquired 50% ownership of Entel's shares, with Bolivia obtaining the remaining 47.5% shares (the remaining shares are held by domestic shareholders and Entel employees). Entel later distributed about $400 million in capital to its shareholders without incurring any tax liability. In 2006, the presidency in Bolivia changed, prompting the new government to impose a $26 million tax liability and a $30 million penalty and interest payment on Entel for the capital distribution.
Bolivia and the Netherlands are signatories to a bilateral investment treaty (BIT), which provides for "equitable treatment" of investments by Dutch nationals in Bolivia, and also includes a dispute resolution mechanism, requiring the parties to submit any investment disputes to the International Center for Settlement of Investment Disputes ("ICSID"). ETI began arbitration proceedings against Bolivia, which objected to ICSID's jurisdiction. The arbitration is still pending.
In May 2008, a decree was issued by the current president nationalizing ETI's interest in Entel. This resulted in a dispute regarding the ownership of shares, where ETI claims continued ownership of 50%, while Bolivia claims an increased ownership of 97.5% of Entel shares. Some of Entel's assets are located in New York. These funds are not earmarked and "have been used for various purposes," including the payment of taxes and dividends. After the presidential decree, ETI sought to attach Entel's and Bolivia's property "in aid of arbitration." While the judge denied attachment of Bolivia's property, he granted the motion to attach Entel's property, including the bank accounts. Plaintiff ETI now asks the court to confirm the ex parte order of attachment. Defendants Bolivia and Entel ask the court to deny the motion and vacate the attachment.
The court ruled that ETI had no authority to attach either Bolivia's or Entel's assets while the arbitration was still pending. Furthermore, ETI failed to show how the assets owned by Entel and located in New York "constitute an attachable debt obligation of Entel to Bolivia." In fact, "ETI has brought an arbitration action against Bolivia, not Entel, and the attached bank accounts in New York undisputedly belong to Entel, not Bolivia."
This case affirms the claim made by Bolivia and Entel that investors cannot attach company property for purposes of satisfying any future arbitral award without identifying a "valid basis for the attachment" in respect to the original parties to the arbitration. Furthermore, a link between the company's assets and any alleged debt must be obvious and accounts must be "earmarked, pursuant to any agreement or law."
ETI brought an identical action in United Kingdom (ETI Euro Telecom International NV v. Republic of Bolivia and Empresa Nacional de Telecomunicaciones Entel S.A., [2008] EWCA Civ 880) because $50 million of Entel's assets were deposited with the Deutsche Bank in London. Initially, the English court made an order "against Bolivia and Entel to prevent the deposits at Deutsche Bank being removed from England and Wales or being dealt with or diminished in value" in order to ensure that the pending arbitral award was not "rendered ineffectual." However, both Entel and Bolivia challenged the order. At the heart of this case was section 25 Civil Jurisdiction and Judgments Act (Judgments Act) which "enables the English court to grant interim relief in connection with certain types of proceedings pending outside England."
On appeal, the court had to determine whether the New York proceedings (initial order by New York court to freeze Entel's New York assets) were substantive proceedings connected to the English interim relief sought, warranting the application of the section. According to the court, "the English proceedings are not in aid of, or related to, any substantive proceedings in New York" and therefore ETI's appeal fails. Furthermore, "arbitral proceedings are not 'proceedings' for the purposes" of the Judgments Act. The main objective of the law was "to give the English court jurisdiction to order provisional or protective measures where the courts of another Brussels Convention Contracting State had jurisdiction as to the substance of the matter," and to grant interim relief "where proceedings were pending abroad in non-Convention cases, or where there were arbitration proceedings." However, the foreign proceedings that Section 25 and the Judgment Act referred to are "proceedings on the substance of the matter" and do not encompass the ICSID arbitration.
Metock and Others v. Minister of Justice, Equality and Law Reform (E.C.J. July 25, 2008)
Click here for document. (Approximately 19 pages).
Directive 2004/38/EC guarantees the free movement of EU citizens by affirming the right of all citizens to move and live in the territory of other Member States as workers, students or others not considered a burden on the social assistance system (insurance and sufficient funds requirement). The right of free movement extends to family members of EU citizens.
The present cases deal with the interpretation of the Directive, principally with respect to the validity of an Irish law. The Irish law requires a national of a third-country, who is a family member of the EU citizen to prove lawful resident status in another Member State in order to lawfully reside or join that citizen in Ireland. All parties are asylum seekers whose asylum applications were denied and who in the meantime married EU citizens residing in Ireland. Upon marriage, each applied for a residency card but because of the lawful residency condition all applications were rejected.
The European Court of Justice held for the asylum seekers. The court reasoned that the Directive is silent on any residency requirement. Furthermore, the definition of "family member" in the Directive does not distinguish between those family members who are lawful residents of a Member State, and others who are not. The imposition of a residency requirement would also seriously obstruct the right to free movement of EU citizens whose family members could not reside with them. Finally, a law that resulted in the separation of the family would harm the "normal family life." The Court added that all Member States are parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms, and as such have agreed to protect and respect private and family life.
Several Member States expressed their concern that this broad interpretation would lead to serious consequences by increasing the number of individuals who will benefit from a right of residence in the Community. The Court dismissed this concern stating that the number of those able to benefit will be limited to family members of EU citizens. In addition, the Court held that Member States are not deprived of the "possibility of controlling the entry into their territory." Chapter VI of the Directive authorizes Member States to "refuse entry and residence on grounds of public policy, public security or public health" where justified.
Briefly Noted: United States: Libyan Claims Resolution Act (August 4, 2008)
Click here for document. (Approximately 4 pages).
This Act, signed by President Bush on August 4, 2008, is an effort to restore "normal U.S. - Libya relations" by providing "fair compensation" to "all U.S. nationals who have terrorism-related claims against Libya." In addition, the Act grants Libya immunity from terror-related lawsuits.
Briefly Noted: United Nations Security Council Resolution 1826 Renews the Mandate for United Nations Operation in Cote D'Ivoire (July 29, 2008)
Click here for document. (Approximately 4 pages).
The Security Council decided to renew the mandates of the United Nations and French peacekeepers in Côte d'Ivoire through 31 January 2009 in order to "support the organization in Côte d'Ivoire of free, open, fair and transparent elections" scheduled for November.
The Security Council emphasized the significant part the United Nations and the international community play in "strengthening the capacity of the Government of Côte d'Ivoire and of the electoral bodies to organize the electoral process." It also encouraged the Defense and Security Forces of Côte d'Ivoire and Forces nouvelles "to jointly develop a comprehensive plan" in cooperation with the U.N. aimed at securing safe elections.
Briefly Noted: Republic of Philippines Supreme Court: Signing of Regional Peace Agreement Blocked (August 4, 2008)
Click here for document. (Approximately 6 pages).
The Supreme Court of the Philippines issued a temporary restraining order, effective August 4, 2008, "commanding and directing public respondents and their agents to CEASE and DESIST from formally signing the GRP-MILF Peace Panel Memorandum of Agreement on Ancestral Domain." This decision was issued a few days after a boundary agreement between the government of the Philippines and the rebels of the Moro Islamic Liberation Front was reached. According to Reuters, "[t]he territorial deal [...] was meant to expand an existing six-province homeland for Muslims in the south and give them broad economic and political powers," a decision Catholics in the south protested.
Reuters also reported that the territorial conflict, which began in "the late 1960s has killed more than 120,000 people, displaced 2 million and left the most resource-rich region in the country, with large deposits of copper, nickel and gold, dirt poor."
Briefly Noted: United States Department of Defense: Salim Ahmed Hamdan Sentence (August 7, 2008)
Click here for document. (Approximately 1 page).
According to a United States Department of Defense official news release, "[a]military panel has sentenced Salim Ahmed Hamdan of Yemen to 66 months of confinement for providing material support to terrorism by a military commission under the Military Commissions Act of 2006." Hamdan's confinement of 61 months and eight days will be credited and he "will serve his sentence to confinement separate from the other detainees at Naval Station Guantánamo Bay, Cuba."
Hamdan, who was Usama Bin Laden's personal driver, was charged for providing material support for terrorism (10 U.S.C. §950v(b)(25)) and conspiracy (10 U.S.C. §950v(b)(28)). Hamdan petitioned the US District Court for the District of Columbia to issue a "preliminary injunction to stop his trial by military commission pending federal court review of the Military Commission's determination that he is an unlawful enemy combatant and of his claims that the trial will violate the Constitution and the Geneva Conventions." The District Court judge denied the motion, holding that "Hamdan's jurisdictional arguments can be addressed, if necessary, following final judgment."
International Law In Brief (ILIB) - Copyright 2008 - The American Society of International Law (ASIL)
Author: Djurdja Lazic
ILIB is a free-of-charge electronic resource. To sign up for ILIB or ASIL Insights, click here.
To comment on this publication, send an e-mail message to Djurdja Lazic, ILM Managing Editor at dlazic@asil.org