Author's note: once every two weeks the American Society on International Law (ASIL) sends out a list of cases and briefs concerning the development of international law. The following information was prepared by the Editorial Staff of International Legal Materials.
TREATIES, AGREEMENTS AND RELATED DOCUMENTS
Protocol on Explosive Remnants of War (Protocol V to the 1980 Convention).
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The Protocol on Explosive Remnants of War takes effect on 12 November 2006. It requires all parties to an armed conflict to clear all unexploded munitions that threaten civilians, peacekeepers, and other humanitarian workers once fighting is over. The United States is not currently a party to the protocol, but it has been forwarded to the United States Senate for action. The Protocol developed out of an expert meeting held in Nyon, Switzerland in September 2000 where the International Red Cross called upon states to create a more robust legal framework in this area.
States parties adopted the Protocol on Explosive Remnants of War on November 28, 2003. It is the first multilateral agreement to treat the thorny issue of how to dispose of unexploded ordnance after a conflict.
The Protocol applies to both the land territory and the internal waters of its parties. Falling within its aegis are explosive ordnance that has been primed, fused, armed, or otherwise prepared for use and used in an armed conflict. Ordnance may have been fired, dropped, launched or projected, and should have exploded but failed to do so. Where a user of explosive ordnance does not exercise control over the territory, after the end of fighting the user must provide technical, financial, material, and other assistance, either bilaterally or through a mutually agreed third party such as the United Nations, help to remove, and destroy these remnants of war. The Protocol also requires parties to it and to armed conflicts, to the greatest extent practicable, maintain information on the use of unexploded or abandoned ordance, to facilitiate its destruction after the cessation of hostilities. Parties are also to make available, subject to "legitimate security interests," information to the party in control of the relevant area, either bilaterally or though a mutually agreed upon third party such as the United Nations or other relevant organizations. Parties must provide risk education, and mark, clear, and destroy of the remnants.
JUDICIAL AND RELATED DOCUMENTS
European Court of Human Rights: Case of Klein v. Slovakia, (October 31, 2006).
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The European Court of Human Rights (EHCR) held that Slovakia’s interference with Martin Klein’s right to freedom of expression violated Article 10 of the Convention as it was not justified by either a pressing social need or a legitimate aim pursued, and was not “necessary in a democratic society.” The court awarded Klein 6,000 Euros in non-pecuniary damages and 5,210 Euros in cost and expenses.
Martin Klein, a Slovakian journalist and film critic, brought suit in June 2001 against the Slovak Republic pursuant to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). Klein alleged that his right to freedom of expression under Article 10 of the Convention had been violated because of his conviction for publication of a satirical article entitled “The falcon is sitting in the maple tree, Larry Flynt and seven slaps to the hypocrite,” in the weekly publication Domino Efekt. In it, Klein criticized the televised remarks of Archbishop Jan Sokol calling for the Slovakian government to ban publicity posters for the Milos Forman film “The People v. Larry Flynt,” as well as not to allow the showing of the film. Klein questioned why Slovakian Catholics did not withdraw from the organization headed by “such an ogre,” and emphasized the Archbishop’s cooperation with the secret police of the former communist regime. The posters depicted the principal protagonist in the film with the American flag around his hips as he was crucified in the pubic area of a woman who was dressed in a bikini. Two associations complained that the religious sentiments of their members were offended by the article, and criminal proceedings were brought against Klein under Article 198(1)(b) of the Slovakian Criminal Code. This article prohibits public defamation of a nation, language, race, or group for their political belief or faith, and allows imprisonment for up to one year and a financial penalty. A District Court held that Klein had defamed the highest representative of the Catholic Church in Slovakia and offended members of the church in violation of Article 198(1)(b), and fined him 15,000 Slovakian korunas (about 395 Euros), to be converted into a month in prison if he did not pay. Klein and the associations appealed the District Court’s holding. A Regional Court upheld the sentence of the District Court, and the company VMV paid Klein’s fine.
The ECHR examined Article 10 of the Convention, which provides for the right of freedom of expression, subject to restrictions “[a]s are prescribed by law and are necessary in a democratic society, in the interests of national security, . . .for the protection of the reputation or rights of others.” It noted that Klein’s conviction for the publication of the article did interfere with his freedom of expression guaranteed in Article 10 of the Convention. It emphasized that the freedoms enunciated in Article 10 apply to ideas that may offend or shock sectors of society. It opined that the test whether the interference was “necessary in a democratic society” required it to ascertain whether the interference constituted a “pressing social need,” whether it was proportionate to the legitimate aim pursued, and whether the government’s rationale for imposing the interference was relevant and sufficient. The ECHR did not concur with the Slovakian courts. It accepted Klein’s argument that his article did not unduly interfere with the rights of catholic believers to express and exercise their religion, and did not justify the penalty imposed upon him.
European Court of Human Rights: Case of Ledyayeva v. Russia (October 26, 2006).
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The European Court of Human Rights (ECHR) held that the Russian Federation violated the applicants’ rights pursuant to Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention). Article 8 provides for the right to obtain respect for private and family life and prohibits public authorities from interfering with this right except in the interests of “[p]ublic safety or the economic well-being of the country, for the protection of health, or the protection of the rights and freedoms of others.” Pursuant to Article 41 of the Convention, the ECHR awarded the applicants a total of 24,500 in non-pecuniary damages, and required Russia to take appropriate measures to remedy the applicant’s varied living situations.
The applicants brought suit against the Russian Federation in 1999 arguing that the operation of a steel plant near their homes endangered their health and well-being in violation of Article 8 of the Convention. The ECHR emphasized that the central question in the cases was how the state protected the applicants’ rights under the Convention by regulating private industry.
The Cherepovets steel plant was built in the 1950s. It is the biggest iron smelter in Russia, and accounts for 95-96 per cent of industrial emissions into the air of the town of Cherepovets. A Russian government report indicated that in 2003 the overall emissions from “stationary sources of atmospheric pollution” were 97 thousand tons for Moscow, with 10 million people, and 349 thousand tons for Cherepovets, with less than 350,000 residents, meaning that the concentration of dangerous substances exceeded the safety levels set by domestic law. In an attempt to prevent the townspeople of Cherepovets from living in the most polluted areas, Russian authorities created a “sanitary security zone” in which residents were not supposed to live. In practice however, thousands of people, including the applicants’ families, resided there. Data showed that the levels of dust, carbon disulphide and formaldehyde in the air regularly exceeded healthy levels set by Russian legislation. In 1993 the steel plant was privatized and Severstal, PLC began its operations. The town of Cherepovets acquired the apartment buildings located around the plant.
All of the applicants brought suit against Severstal seeking to be resettled away from the “sanitary security zone.” The Cherepovets Town Court, and upon appeal the Regional Court, both held that the company had no responsibility to resettle them, relying in part upon the fact that the steel plant had been privatized in 1993. While the courts generally accepted the applicant’s plea that domestic law provided them the right to be resettled away from the plant, the courts did not issue resettlement orders, and three of the four applicants were instead placed on a waiting list for new apartments.
The ECHR noted its findings in the 2005 case of Fadeyeva v. Russia, in which it found that the levels of a number of toxic substances in the air near Ms. Fadeyeva’s residence exceeded the safe levels determined by Russian legislation, and that such pollution rendered her more susceptible to a number of diseases. The court also emphasized that on a number of occasions various official bodies verified that the applicants lived in the sanitary security zone where there were unacceptably high levels of toxic substances and were therefore uninhabitable. One of the four applicants obtained a flat outside of the zone in 2000, while none of the other three obtained compensation or resettlement. In finding that Russia failed to take adequate steps to protect the applicants’ right to respect for their homes and private lives against serious environmental nuisances, the ECHR noted that the government had neither resettled three of the applicants nor provided them with compensation to allow them to move to a safe location. Further, Russia failed to develop and implement a public environmental policy to encourage the steel plant to reduce its emissions in a timely manner.
RESOLUTIONS, DECLARATIONS, AND OTHER DOCUMENTS
United Nations Security Council Resolution 1721 (November 1, 2006).
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In Security Council Resolution 1721, the Security Council reaffirmed its support of the sovereignty, independence, territorial integrity, and unity of Cote d'Ivoire. It emphasized the Security Council's previous endorsement (S/2003/399) of a number of accords regarding Cote d'Ivoire including the Linas-Marcoussis Agreement (January 25,26, 2003), the Accra III Agreement (July 30, 2004), and the Pretoria Agreement (April 6, 2005). It took note of the Peace and Security Council of the African Union adopted October 17, 2006 in Addis Ababa), and reaffirmed its commitment to the United Nations Operation in Cote d'Ivoire (UNOCI).
Determining that the situation in the Cote d'Ivoire poses a continuing threat to international peace and security in the region, and acting pursuant to Chapter VII of the UN Charter, it endorsed the decision of the Peace and Security Council. It took note of the impossiblity of organizing presidential and parliamentary elections by the scheduled date, October 31, 2006. With the aim of fully implementing the peace process in Cote d'Ivoire and organizing free, open, fair, and transparent elections by October 31, 2007, it affirmed the continuation of a number of provisions until a newly elected President assumes his duties and a National Assembly is elected. The Security Council endorsed the decision of the Peace and Security Council for President Laurent Gbagbo to remain Head of State from November 1, 2006 for a transition period not to exceed 12 months. It supported the Peace and Security Council's decision to renew the term of Prime Charles Konan Banny for 12 months, but to prevent him from standing for the presidential elections. Using extremely strong language, the Security Council made a number of demands. First, that all Ivorian parties participate in good faith in the efforts of the quadripartite commission responsible for supervising the disarmament, demobilization and reintegration program. Second, that the program to disarm and dismantle the militias resume immediately, and it emphasized that this program is a key component of the peace process. Third, that all Ivorian parties end incitement to hatrred and violence through any form of media, and encouraged the Prime Minister to create a code of conduct for the media. Fourth, that all parties in Cote d'Ivoire refrain from any use of force against both foreigners and civilians, not resort to street protests, ensure the security and freedom of movement of all Ivorian nationals throughout Cote d'Ivoire, and cooperate fully with the UNOCI and French forces, as well as UN agencies and associated personnel. It emphasized that it was willing to impose targeted measures upon those serving as obstacles to the peace process. Finally, it decided to remain actively seized of the matter.
United Nations Security Council Resolution 1720 (October 31, 2006).
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In this resolution the Security Council recalled its previous resolutions on Western Sahara, including S.C. Res. 1495 (July 31, 2003), S.C. Res. 1541 ( April 29, 2004), and S.C. Res. 1675 (April 28, 2006). It reaffirmed its commitment to the parties to achieve a just, lasting, and mutually agreeable political solution that provides for the self-determination for the people of the Western Sahara and is consistent with the United Nations Charter. It noted that it has digested the Secretary General's report on the situation (S/2006/817), and reiterates the need to respect the military agreements regarding the ceasefire. It called upon member states to consider awarding voluntary contributions to support confidence-building measures permitting greater contact among family members, particularly family unification units. It asked for the Secretary-General to provide a report on the situation in the Western Sahara before the end of the mandate period, which it extended to April 30, 2007. It requested the Secretary-General to take needed steps to ensure full compliance in the United Nations Mission for the Referendum in Western Sahara (MINURSO) with the United Nations zero-tolerance policy on sexual exploitation and abuse. It further encouraged troop-contributing nations to take relevant pre-deployment actions including training, to ensure that troops comply with the zero-tolerance of sexual exploitation policy.
United States: Final Rule: Issuance of Certifications in Hague Convention Adoption Cases (November 2, 2006).
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The United States Department of State issued a Final Rule that will take effect December 4, 2006, to implement the certification and declaration provisions of the 1993 Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (the Convention) and the Intercountry Adoption Act of 2000 (IAA). The final rule applies to the application process for Hague Adoption Certificates and Hague Custody Declarations. It also creates a certification process that adoptions in the U.S. after a grant of custody in a Convention country of origin was made pursuant to the terms of the Convention.
The Convention was developed under the support of the Hague Conference on Private International Law. It is a multilateral treaty designed to provide a structure for the adoption of children “habitually resident” in one country party to the Convention by individuals “habitually resident” in another country party to the Convention. The U.S. signed the Convention March 31, 1994, and the Senate gave its advice and consent to it September 20, 2000. Congress enacted the implementing legislation in the IAA.
The final rule creates procedures for issuing certifications in adoptions in “outgoing cases” where children are leaving the U.S., as well as “incoming” ones. It responds to comments on the Notice of Proposed Rulemaking published in June 2006.
Government's Supplemental Brief Addressing the Military Commissions Act.
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The government argues that the Military Commissions Act (“the Act”) eliminates district court jurisdiction in the cases before the court because of the language in § 7(b) the act which specifies that it applies to all cases, without exception, pending on or after the date of enactment of the Act “which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.” The government further contends that the plain language of the statute as well as its context and legislative history indicate that it eliminates habeas corpus review to cases pending in the United States District Court for the District of Columbia.
The government then proceeds to contend that the petitioner’s constitutional claims are also without merit. First, because petitioners are aliens and outside the United States, they lack constitutional rights to assert habeas, and therefore, the government opines, the elimination of their statutory right to assert habeas does not implicate the Suspension clause of the United States Constitution. Second, the government argues that even if the petitioners had constitutional rights, there is no suspension clause violation because Congress provided an adequate substitute in the Combatant Status Review Tribunals.
The government next asserts that, because §5(a) of the Act explicitly states that the Geneva Conventions are not judicially enforceable the Act itself supports the dismissal of the petitioners’ treaty claims.
United States: Amicus Brief of Former Federal Judges on Military Commissions Act (November 1, 2006).
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On November 1, 2006, 7 former federal judges including the Honorable Patricia W. Wald, and the Honorable Abner J. Mikva, filed an amicus brief in support of petitioners’, Khaled A.F. Al Odah, and Lakdar Boumediene, supplemental briefs regarding the Military Commissions Act of 2006. In their brief, the amici present the issue: whether the court may sanction life-long detention in the face of credible allegations that the evidence upon which the detention is based was derived from torture. The amici answer this question in the negative, noting that “[a]s former federal judges, we believe that compelling this Court to sanction Executive detentions based on evidence that has been condemned in the American legal system since our Nation’s founding erodes the vital role of the judiciary in safeguarding the Rule of Law.” The amici opine that the Military Commissions Act (MCA) of 2006, and the Detainee Treatment Act of 2005 (DTA) preclude the judiciary’s ability to guarantee that Executive detentions are not based upon torture, cruel, inhuman, or degrading treatment. Further, they contend that because no habeas corpus court would allow detentions based upon evidence obtained through torture, the statutory scheme is an inadequate surrogate for habeas review and therefore does not pass constitutional muster. The amici emphasized that evidence gathered through torture is “inherently unreliable,” and permitting detentions based on this evidence taints the judicial process. The amici note that they do not read the MCA/DTA to have suspended the writ of habeas corpus, so that their constitutional analysis turns to whether the allegations of torture under the MCA and DTA are treated in an equivalent way to that pursuant to the common law or the Constitution.
United States: Khaled A.F. Al Odah v. U.S., Guantanamo Bay Detainees’ Supplemental Brief Addressing the Military Commissions Act of 2006 (November 1, 2006).
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In a supplemental brief, Counsel for Mr. Al Odah contend that the Military Commissions Act of 2006 (MCA) does not strip the court of jurisdiction over applications for habeas corpus that were pending during the enactment of the statute. Rather, they opine, that the MCA differentiates between two types of cases, first, applications for habeas corpus, and second, other actions relating to the detention, transfer, treatment, trial or conditions of confinement, and it is only the latter category to which the habeas stripping provisions apply. Another reading, they argue, would render the MCA unconstitutional. They cite Swain v. Pressley, 430 U.S. 372, 381, 384 (1977), for the proposition, that while Congress may substitute another remedy for habeas, it must be “commensurate” in scope with habeas, and may be neither “inadequate nor ineffective” to counter the legitimacy of someone’s detention. They specify that the procedure enumerated by the MCA, review in the Federal District Court for the District of Columbia of decisions that the Combatant Status Review Tribunals (CSRTs) properly held the detainees as enemy combatants, does not meet the type of in-depth habeas inquiry required by common law. Because the MCA does not provide a sufficient replacement for habeas, they argue, the MCA violates the Suspension Clause of the United States Constitution, art. I, § 9, cl. 2, which allows Congress to suspend the writ only in times of “rebellion” or “invasion.”
United States: Lakhdar Boumediene v. Bush, Supplemental Brief of Petitioners Boumediene, et al. Regarding the Military Commissions Act of 2006 (November 1, 2006).
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Counsel for Lakhdar Boumedienne et al., argue that the Military Commission Act of 2006 (MCA) does not effect their appeal with respect to either jurisdiction or merits because the MCA lacks the necessary clarity to repeal jurisdiction in pending habeas cases pursuant to the ruling in INS v. St. Cyr, 533 U.S. 289, 299 (2001). Counsel further contend that it would violate the Suspension Clause of the U.S. Constitution for the MCA to repeal habeas, because the only surrogate for habeas would be District court review of combatant status review tribunal decisions (CSRTs) pursuant to §1005(e)(2) of the Detainee Treatment Act of 2005, and this process is insufficient when contrasted to the habeas protections available in 1789. Finally, Counsel opine that the government does not possess the power to hold the petitioners indefinitely, and the MCA does not provide for such authority. As does Counsel in the supplemental brief on behalf of petitioner Al Odah, Counsel argue that there is neither an adequate nor effective substitute remedy available to the petitioners if habeas is foreclosed to them, and cite to Swain v. Presley, 430 U.S. 372, 381 (1977).
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