International Law In Brief

Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
January 25, 2008

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

RESOLUTIONS, DECLARATIONS, AND OTHER DOCUMENTS
	United Nations Security Council Resolution 1798 (Eritrea-Ethiopia)(January 30, 2008)

JUDICIAL AND SIMILAR PROCEEDINGS·
	Bismullah v. Gates (Bismullah III)(D.C. Cir. February 1, 2008)
	European Court of Human Rights: Ramanauskas v. Lithuania (February 5, 2008)
	World Trade Organization: United States - Measures Affecting the Supply of Gambling and Betting Services (Award) (WT/DS285/ARB) (December 21, 2007)
	International Centre for the Settlement of Investment Disputes (ICSID): Tokios Tokeles and Ukraine (Award) (July 26, 2007)
	Auster v. Ghana Airways (D.C. Cir. February 1, 2008)

 

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RESOLUTIONS, DECLARATIONS, AND OTHER DOCUMENTS

United Nations Security Council Resolution 1798 (Eritrea-Ethiopia)(January 30, 2008)

Click here for document. (Approximately 3 pages)

In Resolution 1798 the United Nations Security Council calls upon Eritrea and Ethiopia to exercise the greatest possible self control and avoid any threat or use of force or provocative action against the other. It emphasizes that Eritrea and Ethiopia bear the greatest responsibility for reaching a full and lasting settlement of the border dispute. It demands that both nations take tangible steps at once to finalize the peace process that was begun December 12, 2000. It extends the mandate of the United Nations Mission in Ethiopia and Eritrea (UNMEE) for an additional six months, to July 31, 2008, and reiterates its call for Eritrea to pull its troops out of the Temporary Security Zone (TSZ) immediately, and for Ethiopia to lower the number of its troops in the region next to the TSZ. It further calls for Eritrea to supply UNMEE with resources and security that it needs for it to perform its duties and to either provide UNMEE with fuel or allow it to import fuel without restrictions so that it may continue its operations.

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JUDICIAL AND SIMILAR PROCEEDINGS

Bismullah v. Gates (Bismullah III)(D.C. Cir. February 1, 2008)

Click here for document. (Approximately 35 pages).

In a per curiam decision the Court of Appeals (Court) for the D.C. Circuit denied the Government's petition for a rehearing en banc, and dismissed the motion to expedite as moot. It granted the Government's motion for leave to file ex parte/in camera top secret declarations for the judges' review only.

The suit involves eight detainees at Guantanamo Bay, Cuba who sought review of the Combatant Status Review Tribunal's (CSRT) determinations that they are "enemy combatants." The suit combines two joined petitions, brought forth by Haji Bismullah captured in Afghanistan in 2003, and Huzaifa Parhat and six other Uighurs captured in Pakistan in December 2001. In Bismullah v. Gates (Bismullah I), 501 F.3d 178, 185-186 (2007); (Bismullah II), 503 F.3d 137, 138-139 (2007);the Court held that it must have access to all of the information available to a CSRT to be able to conduct a meaningful review of a CSRT determination that an alien detained at Guantanamo Bay, Cuba is an "enemy combatant." The Department of Defense (DoD) Regulations define this as being "reasonably available information in the possession of the U.S. Government bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant." The Government may nonetheless withhold, subject to an in camera judicial review, information from the detainees' counsel that is highly sensitive.

Writing separately, Chief Judge Douglas Ginsburg noted that while he does not usually draft individual opinions for a denial of a rehearing en banc, he does so here to respond to Judge Randolph's statement that the Bismullah panel's decision was "not only erroneous but also dangerous." Judges Rogers, Tatel, and Griffith joined Ginsburg's opinion. Judge Ginsburg notes that it is only because the DoD regulations govern the CSRTs that the procedural rights of the detainees can be circumscribed as they are in contrast to court martials, military commissions or hearings by federal agencies. The Detainee Treatment Act of 2005 (DTA)(Pub. L. 109-148) required the Court to examine whether the CSRT's conclusion that the detainees were enemy combatants was supported by a preponderance of the evidence and whether the CSRT reached its decision consistent with the standards and procedures that the Secretary of Defense prescribed. Judge Ginsburg opined that the Court could not ascertain whether a preponderance of the evidence justifies the CSRT's status determinations without seeing all of the evidence available to the Government.

Judge Garland, writing separately and concurring in the denial of the rehearing en banc, noted that when the United States Supreme Court granted certiorari in Boumedienne v. Bush¸ 476 F.3d 981 (D.C. Cir. 2007), it stated that it would be of "material assistance to consult" any decision in Bismullah v. Gates, and that supplemental briefing would be scheduled upon the release of a decision in Bismullah. Judge Garland thus opines that, were the Court to grant the motion for a rehearing en banc, it would delay not only its decision, but also that of the Supreme Court as well, and would thus be contrary to the interest of the parties as well as the public.

Judge Henderson, in a dissent from the denial of the rehearing en banc, with which Judges Sentelle, Randolph, and Kavanaugh joined, asserted that the fact that the DTA gave the Court exclusive jurisdiction to determine the validity of final decisions of CSRTs underscored the importance of permitting the entire court to weigh in. Judge Henderson analogizes the Court's review of a CSRT determination with that of a probable cause hearing in a criminal suit. She queries why if the court is able to make a determination in the latter type case without reviewing all of the evidence that the prosecutor holds it cannot do so in the context of CSRTs as well.

Judge Randolph, in a separate opinion that Judges Sentelle, Henderson, and Kavanaugh joined, also dissented from the denial of the rehearing en banc citing national security concerns in affidavits that the C.I.A., F.B.I., NSA, and Director of National Intelligence filed.

Judge Brown also dissented from the denial of the rehearing en banc. She points out that the four separate opinions written in the case perhaps demonstrate that the Court has not reached the "right paradigm" for the release of information and is continuing to struggle with whether too much or little is being released.

European Court of Human Rights Grand Chamber: Ramanauskas v. Lithuania (February 5, 2008)

Click here for document. (Approximately 15 pages).

The European Court of Human Rights Grand Chamber (ECtHR) held that there was a violation of Article 6§1 (right to a fair trial) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention). The Court ordered Lithuania to pay the applicant 30,000 Euros converted to Lithuanian litai for damages.

Mr. Kestas Ramanauskas (the applicant) worked as a prosecutor in the Kaisiadorys region of Lithuania. After being approached several times by "AZ" who offered to pay him a bribe in exchange for an acquittal of a third party and refusing initially, he eventually accepted it. Subsequently, AZ, who was actually an officer of an anti-corruption unit of the Ministry of Interior, requested and obtained approval from the Deputy Prosecutor General to approach the applicant with further bribes as part of a criminal conduct simulation model. AZ offered and the applicant accepted additional bribes totaling $2,500 US in January and February 1999. The Prosecutor General began criminal corruption proceedings against the applicant February 11, 1999, and in March fired him from his prosecutor post on grounds of corruption. At trial before the Kaunas regional court the applicant pled guilty but alleged that AZ had placed undue pressure on him to accept the bribe. The regional court convicted him of accepting a bribe in violation of Article 282 of the Criminal Code on August 29, 2000 and sentenced him to a prison term of 19 months and six days. The Court of Appeal upheld the conviction on October 26, 2000 holding that the authorities did not place undue pressure on the applicant or incite him to commit a crime. The Supreme Court likewise dismissed his appeal February 27, 2001. The applicant served a prison term from March 27, 2001 until January 29, 2002. The applicant brought suit in the ECtHR August 17, 2001 contesting the evidence used against him. He alleged that AZ had incited him to commit a criminal offense in violation of his right to a fair trial in Article 6§1 of the Convention. The Government refuted his incitement claim, claiming that the applicant already intended to commit the crime. They argued further that in any event, AZ approached the applicant first without having obtained approval from the authorities.

The ECtHR recognized the difficulty inherent in police work and the need of law enforcement officials to rely upon undercover agents. It nonetheless noted that it is against the public interest for evidence to be used that was gathered from police incitement because this would remove the opportunity for an accused to have a fair trial from the start. It rejected the Government's argument that there was no incitement, emphasizing in particular AZ's actions before he obtained approval or used any legal or judicial framework. Further, the ECtHR found no evidence that the applicant had committed any corruption-related offenses before, or evidence that he would have committed this one without the role of AZ. For these reasons the ECtHR found a violation of Article 6§1 of the Convention.

World Trade Organization: United States - Measures Affecting the Supply of Gambling and Betting Services (Award) (WT/DS285/ARB) (December 21, 2007)

The Arbitral Panel was composed of: Mr Lars Anell (Chairperson), Mr Mathias Francke (Member), Mr Virachai Plasai (Member)

Click here for document. (Approximately 98 pages).

Pursuant to Article 22.5 of the Dispute Settlement Understanding (DSU), a World Trade Organization (WTO) arbitration panel (the Arbitrator) decided the United States - Measures Affecting the Supply of Gambling and Betting Services dispute December 21, 2007. The Arbitrator decided that Antigua and Barbuda's (Antigua) action was in conformity with the principles and procedures of Article 22.3 of the DSU and granted Antigua the right to suspend WTO concessions and related obligations to the United States under the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) and the General Agreement on Trade in Services (GATS Agreement). The Arbitrator concluded that that the level of nullification or impairment of benefits that accrued to Antigua was $21 million per annum as a result of the United States failure to bring its WTO-inconsistent measures into compliance. The holding is in conformity with the previous finding that the United States' has acted inconsistently with Article XV: 1 of the GATS-Schedule concerning its commitment to grant full market access in gambling and betting services to Antigua.

The award was significantly less than the $ 3.44 billion that Antigua sought based on the amount of damage that the US practice allegedly caused to the Antiguan economy. Antigua relied on a counterfactual model to assess the annual amount of trade Antigua would have gained, if the United States had complied with the previous Dispute Resolutions Body's recommendations and rulings in a reasonable period of time (see Report of the Panel, November 10, 2004).

Even though the Arbitrators did not agree with the level of impairment of WTO impairment benefits accruing to Antigua, the Panel agreed with Antigua's argument that given the effect of the United States' actions on Antigua's economy, it was not practicable or effective for Antigua to suspend concessions or other obligations under the GATS only. Thus Antigua was allowed to suspend concessions and other obligations under TRIPS concerning the protection of intellectual property rights as well, despite of the United States' challenge to the choice of agreement in which Antigua proposed to carry out the suspension. This constituted a rare form of compensation.

International Centre for the Settlement of Investment Disputes (ICSID): Tokios Tokeles and Ukraine (Award) (July 26, 2007)

The Arbitral Tribunal was composed of: Lord Mustill, President, Professor Piero Bernardini, Arbitrator, and Mr. Daniel M. Price, Arbitrator.

Click here for document. (Approximately 80 pages).

The Arbitral Tribunal dismissed all of the investor's claims alleging the breach of the 1994 Bilateral Investment Treaty (BIT) for the Promotion and Reciprocal Protection of Investments between the Republic of Lithuania and Ukraine. The claimant asserted that the Ukrainian government's actions amounted to a wrongful "expropriation" of his propriety rights and breached Ukraine's obligation to accord fair and equitable treatment to his investment. Furthermore, in support of the Treaty-based claims, these violations were claimed to have constituted a breach of Ukrainian law by "failing to protect the Claimant's business investments' and interfering in his activities. The Tribunal disagreed finding no violation of the BIT or Ukrainian law. Instead it ordered that each side should bear its own costs and expenses and contribute one half of the Costs of Proceedings.

The Claimant Tokios Tokeles, a Lithuanian corporation owed by Ukrainian nationals, sought damages of nearly USD 65 million for alleged interference with the business of its subsidiary "Taki spravy" (TS). Tokios Tokeles established TS in the Ukraine as a publishing enterprise. The Claimant alleged that TS became the target of a series of measures taken against its management and personnel by state agencies, such as the Kiev tax administration, which interference with TS' business activities in breach of the Lithuania-Ukraine BIT. The Claimant further contended that these interferences, pursued under the guise of tax investigations, were in reality politically motivated and taken as retaliation for TS's publication of campaign materials supporting the political opposition. The respondent government of Ukraine maintained that its actions were part of a number of legitimate investigations of fictitious enterprises that allegedly had breached Ukraine economic laws and with which TS had been associated with in the past.

In its majority opinion, the Tribunal decided that Ukraine had not violated the BIT. It further dismissed the respondent's repeated challenge to its jurisdiction. The Claimant revived this challenge partly in reliance on new facts, which he failed to disclose at an earlier stage of the proceedings. (see "the Decision on Jurisdiction").

The Tribunal held that the Claimant did not satisfy the burden of proof to establish a breach of Article 5 of the Treaty prohibiting expropriation without compensation. The Claimant had argued that the subsidiary had been deprived of a "reasonably to-be-expected economic benefit" and thus of a "substantial part of the value of its investment" which would constitute de-facto expropriation. Principally, the Claimant failed to show that the state agencies impaired the claimant's subsidiary's ability to function. In addition, he was not able to demonstrate that the state agencies damaged the subsidiary's reputation to such an extent that its customer relationships were affected. The majority also dismissed the claims alleging breach of Articles 2 and 3 of the Treaty because the Tribunal was not able to infer a denial of "fair and equitable treatment" or "full protection and security" based on the facts presented by the Claimant.

The Tribunal acknowledged Ukraine's contention that the investigation of other allegedly fictitious enterprises led the tax authorities to extend the investigation to TS. It also expressed skepticism about the claimant's assertion that the investigations were the sole result of a political vendetta and had no "credible alternative explanation other than a concerted, malicious and politically inspired campaign". The Tribunal doubted, however, Ukraine s explanation of the repeated initiations and closings of criminal proceedings against the investors in the course of only a few months' dealings between the two parties. It also found the amount of time and resources the government had devoted solely to the claimant's subsidiary for allegedly being engaged in "middle-rank tax fraud" questionable, especially in light of the fact that the investigations had coincided with the publication of documents hostile to the current government.

In his dissent, Daniel Price held that based on the ample amount of evidence that the Claimant submitted, Ukraine had indeed violated Article 3 of the BIT by not affording Tokios Tokeles' investment "fair and equitable" treatment.

Auster v. Ghana Airways (D.C. Cir. February 1, 2008)

Click here for document. (Approximately 10 pages).

The Court of Appeals upheld the District Court's determination that Article 17 of the Warsaw Convention for the Unification of Certain Rules Relating to International Transportation by Air, which makes an air carrier liable for injury or death that happens in international transit on its planes, (Warsaw Convention) did not apply. The Court held however, that because the defendants had sovereign immunity, the District Court should have dismissed the case for lack of subject matter jurisdiction, rather than granting the defendants summary judgment. For that reason, the Court vacated the District Court's orders and remanded with instructions to dismiss the suit for lack of subject matter jurisdiction.

The case concerns the crash on June 5, 2000 of Airlink Flight 200 en route from Tamale, Ghana to Accra, Ghana which resulted in the death of Kenneth Rosen and injuries to Megan Auster-Rosen and Siddartha Prakash. Gail Auster, on behalf of Rosen's estate, Auster-Rosen, and Prakash brought suit against Ghana Airways, Ltd. Airlink and the Republic of Ghana pursuant to Article 17 of the Warsaw Convention. Both the U.S. and Ghana are signatories to the Warsaw Convention. Article 1(3) of the Convention permits a domestic flight to be considered part of international itinerary if the passengers and the air carrier view it as a "single operation." Airlink is the commercial part of the Ghana Air Force and Ghana owns Ghana Airways. Rosen and Auster-Rosen bought roundtrip tickets from New York to Accra, Ghana in February and April 2000. Prakash's employer bought him a one-way ticket from Accra to Ouagadougou, Burkina Faso before May 15, 2000. All of the parties subsequently bought Airlink tickets to travel between Tamale to Accra. These tickets did not refer to the international component of their trips. The Court did not concur with the plaintiffs' that because Ghana Airways operated their Airlink Flight it should be considered international transportation, because there was no proof that Airlink intended to provide anything to them but a domestic flight ticket.

The Court noted that because the defendants were "foreign states" within the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §1602-1611, they were immune from suit unless one of the exceptions to FSIA applied. The plaintiffs contended that two such exceptions should apply here: 1) the treaty exception in 28 U.S.C. §1604; and 2) the waiver of immunity in 28 U.S.C. §1605. The plaintiffs claimed that because the U.S. was a party to the Warsaw Convention when FSIA became law, the latter did not preclude their suit and by joining the Convention, the defendants waived their immunity. The Court did not find either argument persuasive because of the lack of evidence that the flight between Tamale and Accra was meant to be anything other than a domestic one.

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