Expulsion to Face Torture? Non-refoulement in International Law

Non-refoulement is a principle of international law that precludesstates from returning a person to a place where he or she mightbe tortured or face persecution. The principle, codified inArticle 33 of the 1951 Refugee Convention, is subject to a numberof exceptions. This article examines the status of non-refoulementin international law in respect to three key areas: refugeelaw, human rights law and international customary law. The findingssuggest that while a prohibition on refoulement is part of internationalhuman rights law and international customary law, the evidencethat non-refoulement has acquired the status of a jus cogensnorm is less than convincing.     

我国司法实践对国际商事仲裁“公共政策”的理解与适用

《纽约公约》虽明确将违反公共政策作为执行国法院拒绝承认和执行国际商事仲裁裁决的理由之一,但并未对公共政策的含义、范围以及具体的内容作出统一解释,致使其在国际商事仲裁中的适用具有极大的不确定性。本文结合国际立法及其在我国司法实践中的应用,对公共政策的内涵进行必要的阐述。     

International Law and Detention of US Asylum Seekers: Contrasting Matter of D-J- with the United Nations Refugee Convention

US refugee law reflects an ever-increasing conception that theapplication of international standards would constitute an unacceptablerisk to national security. CSR Article 31(2)’s requirementthat refugees ‘shall not’ be detained unless ‘necessary’appears among the chief casualties of such suspicions. US jurisprudenceremains strikingly devoid of reference to Article 31, and 2003’sMatter of D-J- is a prime example. D-J- was an administrativedecision in which the US Attorney General held that nationalsecurity required all US asylum seekers who successfully arrivevia boat must be subject to mandatory detention throughout thecourse of removal proceedings. Despite US accession to the Protocol,Article 31(2) was not mentioned. This article explores what might have happened to D-J- if theRefugee Convention had indeed been applied to his case. Utilizingthe international methodology for treaty interpretation, itapplies Article 31(2) to various aspects of the Attorney General'sdecision. Part 2 argues that under the Supreme Court's CharmingBetsy rule, statutory discretion to detain must be interpretedconsistently with US international obligations. Part 3 concludesthat Article 31(2) of the Refugee Convention grants asylum seekersa right to release whenever their detention is not ‘necessary’.Part 4 proposes a three-part ‘pyramid’ approachto explain the elemental phases of the decision to detain anasylum seeker and examines necessity at each stage. Finally,Part 5 discusses Article 31(2)’s implications regardingevidence and proportion. The premise throughout is that, hadit been applied, the Refugee Convention could have protectedthe interests of both D-J- and ‘national security’.     

Chinese Practice in Public International Law: 2006 (III)

Continued from Part II published last year, this part of theSurvey covers materials reflecting Chinese practice in 2006relating to: XI. Outer Space Law (Definition and Delimitationof Outer Space; Draft Protocol on Matters Specific to SpaceAssets to the Convention on International Interests in MobileEquipment; The Status and Application of Five UN Treaties onOuter Space; Practice of States and International Organizationsin Registering Space Objects; The Establishment of the DisasterManagement International Space Coordination Organization; ThePolicy of Peaceful Use of Outer Space; The Cooperative Approachto the Peaceful Use of Outer Space; The Convention of Asia-PacificSpace Cooperation Organization); XII. International Law on Diplomaticand Consular Relation (Preconditions for the Establishment ofDiplomatic Relation; Vienna Convention on the Consular Relations;Diplomatic Protection and Consular Assistance); XIII. InternationalCriminal Law (Universal Jurisdiction in Absentia; Treaty andJudicial Practice on Extradition and Criminal Judicial Assistance;The "East Turkistan" Terrorists in Guantanamo Bay; The LAI CheongSing (LAI Changxing) Case in Canada; The Position Towards TokyoTrial; Illegal Migrants; Trafficking of Persons; Anti-Corruption);XIV. International Law on Environment (Environment and Development;Climate Change; Dam-building on International Rivers; SonghuajiangRiver Pollution Accident; Tropical Rain Forest in SoutheastAsia; Animal Fur Trade; Auction of Dinosaur Egg); XV. InternationalOrganization (United Nations; World Health Organization; ShanghaiCooperation Organization); XVI. International Economic Law (InternationalTrade Law; International Protection of Intellectual PropertyRights; International Financial Law); XVII. International Lawon Energy (Energy and Development; Energy Policy); XVIII. InternationalLaw on Natural Disaster (Tsunami Warning System; InternationalHumanitarian Donation and Assistance); XIX. International Lawon Health (The Issue of SARS; the Issue of Avian and Human PandemicInfluenza).     

Comments on Guyana v. Suriname

Guyana v. Suriname is a case where the international tribunalhas an opportunity to deal with the state responsibility issuein a maritime delimitation dispute. This paper examines thejurisdiction of the arbitral tribunal over Guyanese submissionthat Suriname was internationally responsible for violatingits obligations under the LOS Convention, the Charter of theUnited Nations and general international law to settle disputesby peaceful means. And the arbitral tribunal made great contributionsto the clarification of the obligations under Articles 74(3)and 83(3) of the LOS Convention to make every effort to enterinto provisional arrangements and not to jeopardize or hamperthe reaching of a final delimitation agreement.     

Damaska and the Faces of International Criminal Justice

Mirjan Damaka 's scholarly publications provide important insightsfor the analysis of systems of criminal justice at the internationallevel. This is particularly true for his major book: The Facesof Justice and State Authority – A Comparative Approachto the Legal Process. The book develops ideal types, or models,of the structure and the function of government. As far as thestructure of government, the ideal types of hierarchical andcoordinate officialdom are contrasted with one another. Withregard to the function of government in society, two other mutuallyexclusive ideal types are developed: the ideal type of the purelyreactive state and that of the purely activist state. In thepurely reactive state all state activities are essentially aform of dispute resolution between individual citizens. Consequently,all proceedings take the shape of a contest between two parties.In the reactive state, on the other hand, all law is an expressionof state policies. This entails that all proceedings are essentiallyan official inquiry enabling the state to implement its policies.The four ideal types call for several observations, one of thembeing that, at the international level, there is no authoritythat can be compared to a state. Setting up international criminal courts requires choices withregard to the structure and function of authority. Internationalhuman rights instruments provide no guidance as to the natureof the choices to be made. In particular, they do not indicatewhether the legal process should be structured as a contestbetween two parties or as an official inquiry. The same is truefor empirical evidence. An analysis of the structures of authority in internationalcriminal courts reveal that they represent hybrids of the hierarchicaland the coordinate ideal types of officialdom. The fact thatthese courts are unitary courts has a profound effect on evidentiaryarrangements. The most important issue raised by the exposition of ideal typesof The Faces of Justice concerns the relationship between thegoals of international criminal justice and the appropriatelegal process to serve their realization. Goals of a conflict-solvingnature are best served by a legal process structured as a contestbetween two parties and goals related to the implementationof policies by a legal process structured as an official inquiry.It is therefore essential to determine what goals are beingpursed by international criminal courts. One may distinguishhere between goals that international systems of justice mayor may not have in common with national systems of criminaljustice. The pursuit of the traditional goals of criminal justicecommon to international and national systems of justice doesnot provide compelling reasons to prefer either a contest modelor an inquest model of the legal process. This is different,however, for the idiosyncratic goals of international criminaljustice that set apart international systems of criminal justicefrom national systems. The pursuit of these goals makes it desirablethat historical facts are established as accurately as is possiblein the given circumstances. They are, therefore, best servedby a legal process that takes the shape of an official inquiry.In the hybrid type of procedure adopted by the ICTY there isinsufficient clarity about the procedural status of the peculiargoals of international criminal justice as well as about theuse of procedural means to pursue them. This entails that itis not really possible to determine whether this hybrid representsa success. Hybrid types of procedure cannot truly exist withoutadopting a view with regard to the impartiality of judges thatis inspired by standards enshrined in international human rightsinstrument rather than those that are characteristic for thelegal process shaped as a contest between two parties.     

On the Sources of International Criminal Law

In their efforts to establish a quite original system of proceduraland material rules of international criminal law, by means ofthe so-called "judge-made law", the two ad hoc Tribunals forthe Former Yugoslavia and Rwanda hold a peculiar approach tothe sources of that law. The most controversial of all is theirconcept of "customary law". This paper is an attempt to clarifythe meaning and scope of these sources mainly from some aspectsof the respective rules adopted in the 1998 Rome Statute. Itis also a continuance in this author's research on the sourcesof public international law.     

The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ

This article aims to extract from the jurisprudence of the InternationalCourt of Justice a basic theory of legal effects of unilateralinstruments of international organizations in public internationallaw. These effects can be divided into three categories. Thefirst is substantive effects. These include binding, authorizingand (dis)empowering effects. The second category is causativeeffects, whereby determinations of fact or of law bring substantiveeffects into existence. The third category is modal effects– how and when the substantive effects come into existence(e.g. immediate or deferred, retroactive or non-retroactive,reversible or irreversible effect). Each of these categoriesof legal effects behaves differently according to whether theeffects are intrinsic or extrinsic. Intrinsic effects are basedon the special treaty powers of the United Nations SecurityCouncil and General Assembly. In this hypothesis, all threecategories of effects exist to the full extent that the explicitand implicit powers of the adopting body allow for them. Extrinsiceffects are directly based on general international law, inparticular on the rules of formation of customary internationallaw. Here, there are no causative effects. Substantive effectsdo not strictly speaking exist; only pre-substantive ones do.And modal effects are always immediate, non-retroactive andreversible.     

国际商事仲裁裁决承认和执行中的公共政策问题

在国际商事仲裁裁决的承认和执行中,公共政策是一个极不确定的因素,一国为保护本国当事人的利益,可能会以此为由拒绝承认和执行外国仲裁裁决.国际法协会国际商事仲裁委员会认为,在国际商事仲裁裁决的承认和执行方面,应采纳国际公共政策的概念,以避免因各国对公共政策的理解不同而影响国际商事仲裁裁决在世界范围内的承认和执行.该委员会还认为,一国的国际公共政策包括该国所希望保护的与道德和公正相关的基本原则、该国的强行法规范以及该国应承担的国际义务,并对其具体适用提出了针对性的建议.     

A Clash of Cultures? The UNESCO Diversity Convention and International Trade Law

The adoption, on 20 October 2005, of the Convention on the Protectionand Promotion of the Diversity of Cultural Expressions (DiversityConvention) has returned the limelight to the suitability ofWorld Trade Organization (WTO) rules for cultural products.This article shows that the Diversity Convention, while an importantstep towards the recognition of cultural diversity as an internationallyrecognized public choice of states, does not affect the rightsand obligations of WTO Members as such. The original purposeof the Convention was to create a safe haven for cultural policiesand protect them from WTO disciplines. However, the centraloperative provision for bringing about the desired shieldingeffect for domestic policies safeguarding national culturalindustries against foreign competition, its now-article 20,while making a general claim to non-subordination in paragraph1, modifies this broad statement in paragraph 2 so as to onlyapply to treaties concluded at the same time or later. The articleexplores how to avoid or minimize an undesirable incongruencebetween liberal trade rules and the right of states to protectshelf-space for domestically produced cultural products.     

从《纽约公约》在亚洲国家的实施看国际商事仲裁中的公共秩序

《纽约公约》第5条第2款的规定为各国法院适用公共秩序拒绝适用国际商事仲裁裁决提供了依据,然而公共秩序存在着多种解释,自公约实施以来,参加公约的亚洲各国法院提出了各种主张并在实践中有了各种做法,本文对中国、新加坡、日本、印度尼西亚等国的理论与实践进行了分析,对各国法院的做法进行了总结。     

The Doha Round's Public Health Legacy: Strategies for the Production and Diffusion of Patented Medicines under the Amended TRIPS Provisions

The entry into force of the World Trade Organization (WTO) TRIPSAgreement in 1995 transformed the international intellectualproperty system. The harmonization of basic intellectual propertystandards has operated to protect investment in innovation,limiting risks from unjustified ‘free riding’. Yetthese same harmonized IP standards sharply curtailed the traditionalcapacity of suppliers of public goods, such as health care andnutrition, to address priority needs of less affluent membersof society, particularly in (but not limited to) developingcountries. In the Doha Declaration, the Waiver Decision of 30August 2003 and the Article 31bis Protocol of Amendment, stakeholdersconcerned with re-opening policy space for the supply of newerpharmaceutical products pushed back against restrictive elementsof the TRIPS Agreement. Governments around the world are in the process of decidingwhether to ratify and accept the Article 31bis Amendment. Basedon their Study for the International Trade Committee of theEuropean Parliament, the authors argue that acceptance of theAmendment will provide a ‘net benefit’ for countriesseeking to improve access to medicines. At the insistence ofWTO delegations acting on behalf of the originator pharmaceuticalindustry lobby, Article 31bis regrettably is saddled with unnecessaryadministrative hurdles. Nonetheless, through skillful lawyering,political determination and coordinated planning, the systemcan be made to work. Among other options, expeditious back-to-backcompulsory licensing linked with pooled procurement strategiesmay effectively achieve economies of scale in production anddistribution of medicines. The authors doubt that the international political environmentwould support renegotiation of an ‘improved’ solution.They express concern that failure to bring the Amendment intoforce will open the door to a campaign to undermine the WaiverDecision. Recent events in Brazil and Thailand illustrate boththe opportunities and risks associated with implementing TRIPSexception mechanisms, and help to inform views on the negotiatingenvironment. Specific proposals for regional cooperation inimplementing the Amendment are laid out, and the authors emphasizethe importance of pursuing concrete transfer of technology measuresin support of developing country pharmaceutical manufacturing.Over-reliance on private market mechanisms for the supply ofpublic health goods leaves the international community withan unresolved collective action problem on a large scale.     

Public Services and the GATS

The status of public services is one of the most hotly debatedissues surrounding the General Agreement on Trade in Services(GATS). In principle, there are two approaches to define suchservices: an institutional approach focusing on the conditionsgoverning supply (e.g. ownership status and market organization)and a functional approach based on the policy objectives thatmay be involved (e.g. quality-related objectives and conceptsof universal access). Given the diversity of existing arrangementsamong WTO Members, with significant variations over time, theformer approach does not appear appropriate. The services providedby government-owned facilities, whose costs are covered directlyby the State, may well be indistinguishable, for all practicalpurposes, from the services provided by private commercial operatorsunder appropriate regulations or incentive mechanisms. Thisarticle discusses the relevance of the GATS for different arrangementsthat governments may use to meet typical public service objectives.All conceivable arrangements, whether based on public monopolies,or regulated or subsidized private supplies, or combinationsthereof, are compatible per se with the Agreement. Recent regulatoryand technical developments have broadened the scope for –possibly more efficient – market-based solutions, whosecredibility may be enhanced by the assumption of commitmentsunder the GATS. There is no common template, however. It isat the end for each WTO Member to decide, sector-by-sector,on the appropriate policy approach and the pros and cons ofbinding access conditions under the Agreement.     

Guidelines on International Protection: The application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to victims of trafficking and persons at risk of being trafficked

UNHCR issues these Guidelines pursuant to its mandate, as containedin the 1950 Statute of the Office of the United Nations HighCommissioner for Refugees in conjunction with Article 35 ofthe 1951 Convention relating to the Status of Refugees and ArticleII of its 1967 Protocol. These Guidelines complement the UNHCRHandbook on Procedures and Criteria for Determining RefugeeStatus under the 1951 Convention and the 1967 Protocol relatingto the Status of Refugees (1979, re-edited, Geneva, January1992). They should additionally be read in conjunction withUNHCR's Guidelines on International Protection on gender-relatedpersecution within the context of Article 1A(2) of the 1951Convention and/or 1967 Protocol relating to the Status of Refugees(HCR/GIP/02/01) and on "membership of a particular social group"within the context of Article 1A(2) of the 1951 Convention and/orits 1967 Protocol relating to the Status of Refugees (HCR/GIP/02/02),both of 7 May 2002. These Guidelines are intended to provide interpretative legalguidance for governments, legal practitioners, decision-makersand the judiciary, as well as for UNHCR staff carrying out refugeestatus determination in the field.     

Treaty Interpretation and the WTO Appellate Body Report in US - Gambling: A Critique

‘Before the game begins players should agree on a dictionaryto use in case of a challenge.’ (from the Official Rulesof SCRABBLE®)

Treaty interpretation in WTO law continues to represent a topicof highly theoretical and practical importance. The Panel’sand the Appellate Body’s reports in the recent US –Gambling dispute have critically turned on ascertaining themeaning of the United States’ GATS Schedule and ArticleXVI GATS on the basis of the public international law rulesof treaty interpretation as codified in the Vienna Conventionon the Law of Treaties. The paper’s principal aim is toreview the interpretative approach followed in particular bythe Appellate Body in reaching its decision in US – Gambling.Its main argument is that, although the Appellate Body appearsto be trying to emancipate itself from a rigorous textual approach,it has not yet embraced a holistic approach to treaty interpretation,one in which the treaty interpreter looks thoroughly at allthe relevant elements of the general rule on treaty interpretationpursuant to Article 31(1) of the Vienna Convention.     

Influence of WTO decisions on international intellectual property

Legal context: The task of harmonization in the IP framework is currently atrisk. This conclusion is shown by the way EU Member States have recentlyenacted Directive 2001/29 on the harmonization of certain aspectsof copyright and related rights on the information society.Particularly, no Member State seems to have considered the interpretationof the three-step test of the Berne Convention given in 2000by the WTO panel, notwithstanding its importance. Moreover, three recent opinions of the French Cour de Cassation,the French Conseil Constitutionnel, and the German Federal Courtof Justice appear not to have endorsed the WTO's interpretationof the three-step test. This scenario confirms the impressionthat the international framework is devoid of any degree ofharmonization. Key points: Although the aims of certainty and predictability in the internationaltrading system are among its main tasks, the World Trade Organizationhas not yet tackled the plight of harmonization, preferringa political approach to smooth conflicts and disputes. Yet,the World Trade Organization has recently taken important stepsthat seem to herald a new attitude. In United States—Sections301-310 of the Trade Act of 1974, the World Trade Organizationdismissed the traditional deference towards national legislations.In addition, at international and national levels, the AlleghenyLudlum and Softwood Lumber cases aligned their interpretationsto that of the World Trade Organization.     

Accountability in Governance: The Challenge of Implementing the Aarhus Convention in Eastern Europe and Central Asia

The signing of the 1998 UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) radically extended international law on transparency and accountability in environmental governance. For the countries of Eastern Europe, Caucasus and Central Asia (EECCA) that have now ratified, the Convention could prompt profound democratic changes. This article, based on the authors' experiences, analyses changing cultures of governance in EECCA countries. The first so-called pillar of access to information sets in place rights that directly contradict the fundamental secrecy of the former Soviet Union countries. Some officials' reluctance to share environmental information may also be linked to the economic duress of the current transition period, where information may be an official's only asset. The second pillar of public participation also poses difficulties for officials for whom the highest praise is to be considered a professional. In their belief that no one knows better than they do, they are reluctant to spend time and resources to make decision-making transparent and to involve the public. The third pillar of access to justice breaks new ground for post-socialist countries still developing their judicial systems. Though several highly sophisticated NGOs have been successful in using courts, it remains difficult for an ordinary EECCA citizen to bring an environment-related legal action. Changing these attitudes and practices will be a long and troublesome process. The Aarhus Convention will not be truly implemented until openness, transparency and accountability in environmental decision-making become everyday habits.     

Genocide, Complicity in Genocide and International v. Domestic Jurisdiction: Reflections on the van Anraat Case

When adjudicating international crimes, domestic courts arefaced with a choice between the application of internationallaw or national law. In the recent van Anraat judgment, a DutchDistrict Court explicitly opted for the former alternative.This approach led to the accused's acquittal of complicity ingenocide. In the Court's opinion, there was no proof beyonda reasonable doubt that van Anraat had actual knowledge of SaddamHussein's special intent to destroy part of the Kurdish population.According to the Court, such proof is required under internationallaw. This article argues that the Court's preference for internationallaw was not prescribed, either by international law or by domesticlaw, although in principle such preference may prove advisable,whenever international rules are clear and exhaustive. Aftertracing the intricate legal discussions on mens rea requirementsfor genocide and complicity in genocide, the author concludesthat the issue has not yet been completely elucidated in internationalcase law and legal literature. In situations of ambiguity whereinternational case law offers insufficient guidance, domesticcourts would better resort to their own criminal law. As Dutchcriminal law extends the mens rea of the accomplice beyond ‘knowledge’so as to cover dolus eventualis as well, application of domesticlaw might have affected the outcome of the case.     

Multilevel Judicial Governance of International Trade Requires a Common Conception of Rule of Law and Justice

Since the establishment of the Permanent Court of InternationalJustice in 1922, governments have consented to, and activelyused, an ever larger number of international and transnationalcourts, quasi-judicial dispute settlement bodies and ad hocarbitral tribunals for the settlement of disputes over the interpretationand application of rules of international law. Such judicialclarification of disputed interpretations of incomplete, intergovernmentalagreements reduces not only the negotiation costs of governmentsby delegating the clarification of contested facts and legalclaims to independent third-party adjudication. Judicial decision-makingat intergovernmental, transnational, national and private levelsalso supplements rule-making and offers citizens judicial remediesfor defending their rights and interests. Modern internationaleconomic law increasingly complements intergovernmental, legislative,and administrative governance by multilevel ‘judicialgovernance’ so as to protect rule of law more effectivelyfor the benefit of citizens (Section I). This contribution criticizesthe one-sidedly power-oriented perceptions of WTO law as ‘internationallaw among states’ (Section II) and the related perceptionsof international judges as dependent agents of states (Section III).Civil society, parliaments and democratic governments shouldencourage national and international judges to cooperate intheir legal task of interpreting citizen-oriented internationaleconomic law ‘in conformity with principles of justiceand international law’, as explicitly prescribed in theVienna Convention on the Law of Treaties (VCLT). The legal coherenceof multilevel judicial governance depends on protecting principlesof procedural as well as substantive justice and a common conceptionof ‘rule of law’ not only in intergovernmental relationsamong states, but also vis-à-vis their citizens engagedin, and benefiting from, international trade (Sections IV–VIII).     

Shadows in Paradise - Exploring Non-Refoulement as an Open Concept

The principle of non-refoulement contains a paradox. While stateshave committed to respecting the principle by joining the 1951Refugee Convention and key human rights conventions, its contentis not established in international law. In other words, stateshave committed to a principle the content of which is indeterminate.Since no common definition exists, in practice, national andinternational bodies have extensive powers of discretion togive content to the terms ‘persecution’, ‘torture’,‘degrading’ or ‘cruel’ treatment. Thepurpose of this article is to explore non-refoulement as anopen and ambiguous concept. Acknowledgement of the indeterminacyis important, as open concepts never remain such in practicebut are always issued with content or interpreted. This approachcalls for a further question: how do interpretations come aboutand what kind of factors influence them? The conclusion of thearticle is that different national and international actorspromote their own ‘correct’ interpretations of thiskeystone of refugee protection.