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Australian Year Book of International Law |
Justin Hogan-Doran[∗] and Tim Stephens[∗∗]
Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory
[2004] ICJ
Rep 136
International Court of Justice
Advisory Opinion of 9 July 2004
In a resolution passed at its Tenth Emergency Special Session on 8 December 2003, the United Nations General Assembly requested that the International Court of Justice (ICJ) provide an advisory opinion as a matter of urgency on the following question:
What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?[1]
Since 1996, Israel had considered plans to construct a physical structure to prevent infiltration into Israel from the West Bank in the Occupied Palestinian Territory. The route of the wall was approved by the Israeli Cabinet in successive decisions from 2001 onwards. Much of its planned or completed route is in the Palestinian occupied territory, deviating from the ‘Green Line’ (the armistice demarcation line established following Israel’s proclamation of independence in 1948 and the outbreak of conflict between Israel and several Arab states) to encompass several Israeli settlements on the West Bank, and also encircling some Palestinian population centres. The construction of the wall has been accompanied by the establishment of an administrative regime which extends complete freedom to Israeli citizens to enter and move within the area of the West Bank between the wall and the Green Line. By contrast Palestinian residents in the area are required to hold a permit issued by Israeli authorities, and are only permitted to enter or leave the area through access gates that are opened only infrequently, and for short periods.
The Court delivered its Advisory Opinion on 9 July 2004. It found unanimously that it possessed jurisdiction, and by 14 votes to one that it should comply with the General Assembly’s request for the opinion. The Court went on to find by 14 votes to one that the construction of the wall by Israel violated international law, that Israel was under an obligation to cease the wall’s construction and make reparation for all damages its construction had caused. By 13 votes to two the Court also stated that all states are under an obligation not to recognise the illegal situation resulting from the construction of the wall, or to render aid or assistance in maintaining the situation created by such construction.
Several states in their written or oral submissions raised objections to the jurisdiction of the Court. Three main questions of jurisdiction were considered. The first of these was that given the active engagement of the Security Council with the Palestinian question the General Assembly had acted beyond its powers in requesting an opinion. In this regard the Court found that article 24 of the Charter confers primary, but not exclusive, competence upon the Security Council to maintain international peace and security. The Court noted that there has been an increasing tendency for both organs to deal in parallel with the same matters concerning the maintenance of international peace and security. This led the Court to the conclusion that in requesting the advisory opinion the General Assembly did not act contrary to article 12(1) of the Charter which provides that the General Assembly shall not make any ‘recommendation’ concerning a dispute or situation in relation to which the Security Council is exercising functions assigned to it by the Charter.
The second jurisdictional question involved whether the request for the advisory opinion conformed to the two conditions established by Resolution 377 A (V) (the ‘Uniting for Peace Resolution’), namely that the General Assembly may only take action in matters relating to international peace and security if the Security Council has failed to exercise its primary responsibility and the situation is one in which there appears to be a threat to the peace, breach of the peace, or an act of aggression. It was observed by the Court that the Security Council had failed to adopt several decisions on the occupied Palestinian territories as a result of the negative vote of a permanent member, including a draft resolution concerning the construction by Israel of the wall, and that the situation constituted a threat to international peace and security.
The third and final jurisdictional issue was whether the request for an advisory opinion constituted a ‘legal question’ within the meaning of article 96(1) of the Charter of the United Nations and article 65(1) of the Statute of the International Court of Justice. Several objections were raised in this respect, on the basis of interpretations of the request as formulated by the General Assembly, including that the question posed was imprecise and abstract. The Court held to the contrary that the question was indeed directed to legal issues, and was susceptible to a reply based on law. Moreover it was noted that lack of clarity in posing a question does not deprive the Court of jurisdiction; it is a matter for the Court to interpret the question to provide clarity. A further argument regarding the legal character of the question was that it was intrinsically political and not amenable to judicial determination. This objection was rejected, with the Court referring to its previous jurisprudence in which it has held that the mere fact that a legal question has political aspects does not mean that this deprives the Court of the competence to evaluate it.
The Court then turned to consider whether even if it was competent to respond to the General Assembly’s request that it should nonetheless decline to do so, as it would be improper and inconsistent with the Court’s judicial function. Australia was among a number of states that argued that the Court should refuse to exercise jurisdiction on these grounds. The Australian government submitted that an advisory opinion by the Court would have an adverse effect on the implementation of the so-called Road Map and the ongoing efforts of the international ‘Quartet’ ‘particularly in light of the selective and one-sided nature of the question on which the opinion of the Court is sought’.[2] It was contended that there existed three compelling reasons why the Court should decline to give the opinion requested:
First, the lack of consent by Israel renders the giving of an advisory opinion incompatible with the Court’s judicial character, particularly in light of the fact that the request is undoubtedly directed at the rights and responsibilities of Israel. Secondly, the request should be declined as any opinion rendered by the Court would be devoid of object or purpose, particularly in light of the actions and decisions of the General Assembly and the Security Council. Thirdly, the giving of an advisory opinion could have a harmful effect upon current initiatives aimed at achieving a settlement of the Israeli-Palestinian conflict.[3]
The Court did not respond to the Australian submission specifically, but observed in relation to arguments concerning judicial propriety more generally that as a matter of principle a request for an advisory opinion should not be refused, as its answer to such questions represents the Court’s participation in the activities of the United Nations. There must be compelling reasons for the Court to so refuse, and the Court has never in fact declined to give an advisory opinion in the exercise of its discretionary power. The first such compelling reason invoked here was that the present case effectively constituted a contentious matter between Israel and Palestine in respect of which the former state had not indicated its consent to the jurisdiction of the Court. It was held in response that although Israel and Palestine have radically divergent views on the legal consequences of Israel’s construction of the wall, the subject matter of the request cannot be regarded as only a bilateral matter between Israel and Palestine. Rather the question was an issue of acute concern to the United Nations, and located in a much broader frame of reference than a bilateral dispute. Hence to give an opinion would not involve an impermissible circumvention of the principle of consent to judicial settlement.
In response to the argument that the Court’s rendering of an opinion would interfere with a final negotiated solution to the Israeli-Palestinian conflict, the Court observed that it was not in fact clear what influence the Court’s opinion would have on the negotiations, and that any such influence could not be regarded as a compelling reason to decline jurisdiction. It was also argued that the Court should decline jurisdiction because it could only speculate on a number of facts crucial to any legal determination. Here the Court said that it had access to voluminous documentation submitted by the Secretary-General and by Israel and other states and therefore that it had sufficient information and evidence to provide the advisory opinion. Finally, on the issue as to whether the Court should decline to offer an opinion because it would not have any useful purpose, the Court noted that the purpose of advisory opinions are to furnish to the requesting organ the elements of law necessary for them in their activities. It was not for the Court to substitute its own assessment of the utility of an opinion requested for that of the organ that has sought it.
In her separate opinion Judge Higgins concurred with the Court’s findings regarding jurisdiction, but nonetheless expressed some doubts regarding the Court’s treatment of the question of judicial discretion and propriety. Among other things she observed that ‘[t]he law, history and politics of the Israel-Palestine dispute is immensely complex’ and that it is ‘inherently awkward for a court of law to be asked to pronounce upon one element within a multifaceted dispute, the other elements being excluded from its view.’[4] Judge Kooijmans also voiced some hesitation in relation to the entirety of the Court’s reasoning on this question, observing that the General Assembly’s request ‘is far from being “legally neutral”’ and that ‘[i]n order not to be precluded, from the viewpoint of judicial propriety, from rendering the opinion, the Court therefore is duty bound to reconsider the content of the request in order to uphold its judicial dignity.’[5] In his Declaration, Judge Buergenthal strongly criticised the decision of the Court not to exercise its discretion to decline to render the advisory opinion. He argued that the Court ‘did not have before it the requisite factual bases for its sweeping findings; it should therefore have declined to hear the case’.[6] Drawing a distinction between advisory and contentious proceedings, Judge Buergenthal argued that in the absence of information being provided by Israel on the construction of the wall it was not appropriate in advisory proceedings for the Court to draw ‘any adverse evidentiary conclusions from Israel’s failure to supply [the information] or to assume, without itself fully enquiring into the matter, that the information and evidence before it is sufficient to support each and every one of its sweeping legal conclusions’.[7]
Having found that it possessed jurisdiction, and that there was no compelling reason for the Court to decline to give an advisory opinion, the Court turned to the substantive legal questions raised by the General Assembly’s request. The first of these concerned principles of international law relating to the use of force and the acquisition of territory. While the Palestinian Liberation Organization argued that the wall constituted a de facto annexation of land that infringed the right of self-determination, and violated the principle prohibiting the acquisition of territory by the use of force, Israel contended that the wall was a temporary barrier and had the sole purpose of combating terrorist attacks launched from the West Bank. The Court noted that it was apparent from an examination of a map of the wall’s route that it was constructed in such a way as to include within the Closed Area the great majority of Israeli settlements in the occupied Palestinian territory. It noted that under the article 49(6) of the Fourth Geneva Convention,[8] occupying powers shall not deport or transfer parts of their own civilian population into territory that it occupies. On this basis it was concluded that the establishment of Israeli settlements in the Occupied Palestinian Territory was in breach of international law, and that ‘the construction of the wall and its associated regime create a “fait accompli” on the ground that could well become permanent, in which case … it would be tantamount to de facto annexation.’[9] Moreover by incorporating Israeli settlements, and encircling Palestinian communities, the wall interfered with the exercise by the Palestinian people of their right to self-determination.
In relation to issues of international humanitarian law the Court found that the construction of the wall had led to several breaches. The Court held that although Israel was not a party to the 1907 Hague Convention,[10] the Hague Regulations (annexed to the 1907 Hague Convention) formed part of customary international law. The Fourth Geneva Convention was also applicable, even though the occupied territories were not part of a recognised territory prior to the annexation by Jordan and Egypt. This was because the two conditions of the Fourth Geneva Convention were satisfied: there had been an armed conflict between contracting parties, and that led to territory being occupied by one of these parties. It was emphasised by the Court that an overriding purpose of the Fourth Geneva Convention was to protect civilians, notwithstanding the particular legal status of the territory in which they were found.
The Court went on to find that the construction of the wall had led to the destruction or requisition of properties under conditions which contravene articles 46 and 52 of the Hague Regulations of 1907 and article 53 of the Fourth Geneva Convention. The wall was also driving demographic changes in the Closed Area, buttressing Israeli settlements, and compelling a significant number of Palestinians to depart from certain areas. Accordingly it violated article 49 of the Fourth Geneva Convention. By impeding the liberty of movement of Palestinians the construction of the wall also contravened article 12(1) of the International Covenant on Civil and Political Rights. It also impeded the exercise of the right to work, to health, to education and to an adequate standard of living as protected by the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child. Moreover, military exigencies did not qualify the illegality of the construction under either international humanitarian law or human rights norms:
[T]he Court, from the material available to it, is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives. The wall, along the route chosen, and its associated regime gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel, and the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order. The construction of such a wall accordingly constitutes breaches by Israel of various of its obligations under the applicable international humanitarian law and human rights instruments.[11]
Similarly the Court concluded that Israel could not invoke the inherent right of self-defence under article 51 of the Charter of the United Nations to justify the construction of the wall. The Court held that the Charter recognises the existence of an inherent right of self-defence in the case of armed attack by one state against another state, however here Israel did not claim that the attacks were attributable to a foreign state, and in any event Israel exercised control in the occupied Palestinian territory. Judge Higgins found this reasoning unpersuasive, stating that she ‘fail[ed] to understand the Court’s view that an occupying Power loses the right to defend its own civilian citizens at home if the attacks emanate from the occupied territory’.[12] Nonetheless she agreed that article 51 was inapplicable on the grounds that non-forcible measures such as the construction of a wall do not fall within the provision, and that the necessity and proportionality of the measure had not been explained, having regard to the hardships for Palestinians uninvolved in attacks against Israel.
On a final question of a possible defence enjoyed by Israel for otherwise illegal acts, the Court found that Israel could also not rely on a state of necessity to preclude the wrongfulness of the wall’s construction as the Court was not convinced that the construction along the chosen route was the only means to safeguard the interests of Israel against the peril which it has invoked to justify the wall’s erection.
In relation to the consequences of the violations of international law by Israel, the Court found that Israel was bound to comply with its obligation to respect the right of the Palestinian people to self-determination and its obligations under international humanitarian law and international human rights law. It was therefore required to cease the construction of the works, and dismantle those parts of the structure situated within the Occupied Palestinian Territory. Furthermore Israel was required to make reparation to all persons concerned, including by returning land, orchards, olive groves and other immovable property seized or, where that was not possible, by providing compensation. As the obligations violated by Israel included certain obligations erga omnes, the Court held that all states assumed an obligation not to recognise the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem.
Craig Minogue v Australia
Communication No 954/2000
UN Doc CCPR/C/82/D/954/2000
Human Rights Committee
Decision on admissibility of 2 November 2004
The author was an Australian citizen serving a term of life imprisonment at Barwon Prison in Victoria. He claimed that he was the victim of violations by Australia of articles 2, 9, 10, 14, 26 and 50 of the International Covenant on Civil and Political Rights (ICCPR).[13]
The author had been convicted of murder in 1988, and sentenced to a minimum period of 30 years’ imprisonment. In the 1990s the author sought to pursue a review of his case and to that end attempted to prepare an appeal. However, he alleged that he was prevented by the prison authorities from accessing legal research materials, computers, and legal representatives. The author complained to the Human Rights and Equal Opportunity Commission (HREOC) that his efforts to prepare an appeal had been impeded. HREOC rejected the complaint on the grounds that it lacked jurisdiction. The Federal Court of Australia subsequently dismissed an appeal by the author against HREOC’s decision.
Before the Committee, Australia argued that the complaint was not admissible as the author had been transferred to Port Phillip Prison in 1999 where, according to the author, the matters initially complained of no longer applied. Accordingly, it was said that the author was no longer a victim as required by article 1 of the Optional Protocol.[14] The Committee concluded that the author was in fact a victim within the meaning of this provision, as the author’s complaints related to events occurring between 1996 and 1998, and that the author had recently been re-transferred to Barwon Prison where at least some of his original complaints were again valid. Nonetheless, the Committee went on to find that all of the author’s complaints were inadmissible. In relation to the specific claim made under article 10(1) concerning the author’s conditions of detention,[15] including the access provided to legal documents and legal representation, the Committee concluded that the author had not substantiated, for the purposes of admissibility, a claim that the provision had been violated.
Deborah Joy Laing, Jessica Joy Simpson and
Samuel Colin John Surgeon v Australia
Communication No 901/1999
UN Doc CCPR/C/81/D/901/1999
Human Rights Committee
Decision on admissibility of 9 July 2004
The author of the communication, Ms Laing, submitted this complaint on behalf of herself and her two children, Jessica Joy Surgeon and Samuel Surgeon. Ms Laing claimed that she was a victim of violations by Australia of articles 2 and 26 of the ICCPR, and that her children were victims of violations of articles 2 and 24.
Ms Laing had married Mr Lance Lynn Surgeon in 1991 and in 1993 Jessica was born in the United States. She acquired both Australian and United States citizenship. The marriage was subsequently dissolved and in 1995 the author and her daughter travelled to Australia without the knowledge of Mr Surgeon. Mr Surgeon filed an action for divorce in the Georgia Superior Court which ordered Jessica’s return to the State of Georgia. The court awarded Mr Surgeon sole permanent custody of Jessica under a further order. Mr Surgeon also filed an application under the Hague Convention on the Civil Aspects of Child Abduction[16] (the Hague Convention). This was communicated to the Australian Central Authority, which initiated proceedings in the Family Court of Australia seeking an order that Mr Surgeon be permitted to remove Jessica from Australia to the United States. A single judge of the Family Court of Australia granted the order requested, and an appeal by Ms Laing to the Full Court of the Family Court of Australia was unsuccessful. Ms Laing was subsequently successful in an application to the Family Court of Australia for a certificate permitting an appeal to the High Court of Australia against the order. However, the High Court dismissed the appeal.
Before the Committee Ms Laing argued that she had been a victim of violations of several provisions of the ICCPR including articles 2, 7 and 14. In relation to article 2 she argued that she was denied an effective remedy as the ICCPR is not incorporated directly into Australian law.[17] Ms Laing’s article 7 claim was based on her assertion that she was subject to cruel treatment through the forcible removal of her daughter Jessica.[18] In relation to article 14 Ms Laing argued that she had been denied a fair trial as the trial judge had applied the incorrect law.[19] Ms Laing made similar claims on behalf of her two children; however, the primary emphasis was upon article 7 of the ICCPR and the asserted psychological damage that would be caused to the children if Jessica were removed.
Australia argued that the communication was inadmissible. The Committee agreed. In relation to the author the Committee noted that the present situation ‘is a result of her own decision to abduct her daughter Jessica … from the United States to Australia and of her subsequent refusal to allow for the implementation of the Hague Convention for the purpose of letting the competent courts to [sic] decide about the parents’ custody and access rights in respect of Jessica.’[20] The author’s claims on behalf of her two children were also found inadmissible for want of substantiation. In relation to Jessica the Committee nonetheless noted that the ‘application of the Hague Convention in no way excludes the applicability of the [ICCPR]’.[21]
Mr Prafullachandra Natwarlal Bhagwati and Mr Walter Kälin provided dissenting opinion in which they observed that the Committee’s opinion appeared to rest on the assumption that the application of the Hague Convention was automatically compatible with the ICCPR as it is in the best interests of the child. While they agreed with this proposition in principle, they observed that this did not necessarily hold in this case. It was noted that Jessica was an infant when abducted, but had subsequently spent most of her life in Australia and was now almost 11 years old and opposed to any return to her father in the United States. On this basis it was suggested that serious questions were raised under the ICCPR, warranting an investigation of the merits.
Mr Martin Scheinin issued an individual opinion in which he concurred with the Committee’s decision.
Francesco Madafferi and Anna Maria Immacolata Madafferi v Australia
Communication No 1011/2001
UN Doc CCPR/C/81/D/1011/2001
Human Rights Committee
Views adopted on 26 July 2004
Francesco Madafferi, an Italian national, and his wife, Anna Maria Madafferi, an Australian national, submitted a complaint on their own behalf and on behalf of their four children, all of whom are Australian nationals. The complaint related to the decision of the Australian government to deport Mr Madafferi from Australia following a refusal to grant Mr Madafferi a permanent visa to remain in Australia on character grounds.
In 1989 Mr Madafferi had arrived in Australia from Italy on a tourist visa valid for six months. He remained in Australia beyond this period and became an unlawful non-citizen. However, he believed that through his marriage to an Australian national that he automatically acquired residence status. In 1996 Mr Madafferi sought a spouse visa to remain permanently in Australia, and in that application he disclosed past convictions and sentences for criminal offences committed in Italy. The Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) refused the application, considering Mr Madafferi to be of bad character. Although the decision by DIMIA was subsequently set aside by the Administrative Appeals Tribunal, in 2000 the Minister exercised his discretion under an independent statutory power to refuse the visa. Mr Madafferi unsuccessfully sought judicial review of this decision in the Federal Court. Prior to the Minister’s decision the Italian authorities extinguished part of several outstanding sentences that Mr Madafferi had been ordered to serve in Italy, and declared that the remainder would be extinguished in May 2002.
The authors claimed that as Ms Madafferi did not intend to accompany her husband to Italy on his deportation, her rights and those of the four Madafferi children would be violated. Claims were also made that the detention centre in which Mr Madafferi was held did not meet the required standards. The Committee found that the complaint was admissible. It dismissed the argument by Australia that domestic remedies had not been exhausted on the grounds that the authors had not submitted a complaint to HREOC. The Committee recalled its existing jurisprudence that as any decision handed down by the body would have only recommendatory and not binding effect, it cannot be described as an effective remedy within the meaning of article 5(2)(b) of the Optional Protocol.[22] However, the Committee went on to conclude that the authors failed to substantiate, for the purposes of admissibility, how any of their rights under articles 2, 3, 12(1), 12(2), 12(3), 14 and 16 were violated. These claims were therefore inadmissible. Also inadmissible was a claim relating to the conditions under which Mr Madafferi was being kept in home detention, including his obligation to pay for the security services to maintain this detention. The Committee considered that as the legality of this contract had not been challenged by Mr Madafferi, there had been a failure to exhaust domestic remedies.
The only admissible claims were under articles 9, 12(4), 10(1) and 10(7) in relation to Mr Madafferi only, and articles 17, 23 and 24 in relation to all the authors. In relation to the alleged violation of article 9 concerning the author’s detention,[23] the Committee recalled its jurisprudence that ‘although the detention of unauthorised arrivals is not per se arbitrary, remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case: the element of proportionality becomes relevant’.[24] In this case Mr Madafferi’s mental health had deteriorated significantly following his detention, however Mr Madafferi was then removed to home detention on medical advice. The Committee could not find that in these circumstances there was arbitrary detention within the meaning of article 9(1). However, Mr Madafferi was subsequently returned to an immigration detention centre where he was detailed until he was committed to a psychiatric hospital in 2003. The Committee noted that this form of detention was contrary to the advice of medical professionals, and found that ‘[a]gainst the backdrop of such advice and given the eventual involuntary admission of Mr Madafferi to a psychiatric hospital … the State party’s decision to return Mr Madafferri to [detention] and the manner in which that transfer was affected was not based on a proper assessment of circumstances of the case but was, as such, disproportionate.’[25] On this basis the Committee concluded that there had been a violation of article 10(1) of the ICCPR.[26]
As to Mr Madafferi’s claim to have been the victim of a violation of article 12(4) by being deprived of the right to enter his own country,[27] the Committee concluded that as Mr Madaferri had not acquired Australian nationality this provision could only be applicable in exceptional circumstances, such as where unreasonable impediments were placed on the acquisition of nationality. No such circumstances pertained in this case. Finally, in relation to article 17,[28] in conjunction with articles 23 and 24,[29] the Committee noted that the deportation of Mr Madaferri would impose considerable hardship on a family that had been in existence for 14 years, and that relocation of the family to Italy would cause serious difficulties. The removal of Mr Madafferi would therefore constitute arbitrary interference with the family contrary to article 17(1) in conjunction with article 23 in respect of all of the authors, and additionally a violation of article 24(1) in relation to the four children due to the failure to provide them with the necessary measures of protection as minors. The Committee accordingly found that Australia was under an obligation to provide the authors with an effective and appropriate remedy, including by refraining from deporting Mr Madafferi unless and until he had an opportunity to have his spouse visa application assessed ‘with due consideration given to the protection required by the children’s status as minors’.[30]
Professor Ruth Wedgwood appended an individual opinion in which she outlined the serious character of the aggravated extortion offences with which Mr Madafferi had been convicted and sentenced in Italy. Professor Wedgwood considered that ‘the state party’s ultimate decision in regard to Mr Madafferi is neither arbitrary nor unlawful. The human sympathy that may be felt for a visa applicant and his family does not create a license to disregard reasonable criteria for the grant or denial of visas. States are entitled to exclude persons who have a serious history of criminal conduct.’
Avon Lovell v Australia
Communication No 920/2000
UN Doc CCPR/C/80/D/920/2000
Human Rights Committee
Views adopted on 24 March 2004
The author, an Australian national, claimed to be a victim of a violation by Australia of articles 14[31] and 19 [32] of the ICCPR. The author had been an industrial advocate with the Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Workers’ Union of Australia (CEPU) that became involved in industrial action against a company, Hamersley Iron Pty Ltd, in 1992. Hamersley commenced proceedings in the Supreme Court of Western Australia against the trade union. In those proceedings Hamersley was required to make available for discovery by the union and its officials a number of documents. The author revealed the contents of five of these documents publicly in a radio interview and in other media. In 1998 the author and the CEPU were convicted on two accounts of contempt in the Full Court of the Supreme Court of Western Australia. A subsequent application for special leave to appeal to the High Court of Australia was refused.
Before the Committee the author claimed that his right to a fair trial under article 14(1) had been violated on the grounds that the participation of one of the judges of the Supreme Court of Western Australia raised an appearance of bias. It was also claimed that the right to appeal guaranteed under article 14(5) had been violated as an application for special leave to appeal to the High Court of Australia is not a full appeal. Finally, the author also claimed that the conviction for contempt prevented him from exercising his rights under article 19 of the ICCPR.
The Committee found that only the article 19 claim was admissible. In relation to the article 14(1) claim the author had not raised the allegation of bias in the course of domestic proceedings, and hence domestic remedies had not exhausted. As regards article 14(5) the Committee considered that the author had raised only certain specific questions of law in his special leave application, and did not seek a full review of his conviction for contempt. Turning to the merits of the article 19 claim, the Committee considered that by publishing documents that had been referred to in open court the author was exercising his right to impart information under article 19(2). However, the Committee went on to observe that restrictions of the freedom of expression were permissible under article 19 if the restriction cumulatively met three conditions: the restriction be provided for by law must address one of the aims set out in article 19(3)(a) and (b), and must be necessary to achieve a legitimate purpose. In this case the Committee noted that while subject to discovery, the five documents were not permitted to be adduced into evidence and did not form part of the public record of the proceedings. The Committee went on to observe that ‘the institution of contempt of court is an institution provided by law restricting freedom of expression for achieving the aim of protecting the right of confidentiality of a party to the litigation or the integrity of the court or public order’.[33] In these circumstances there was a restriction on the publication of these five documents, it was provided by the law of contempt of court, and was necessary for achieving the aim of protecting the rights of others or for the protection of public order. Therefore the Committee concluded that the author’s conviction was a permissible restriction of his freedom of expression in accordance with article 19(3).
Mr Hipolito Solari Yrigoyen appended an individual opinion dissenting from the Committee’s views regarding the availability to the author of rights of appeal from his conviction for contempt. He considered that the procedure for applications for special leave to the High Court of Australia did not involve a review of the merits of the case, and therefore did not meet the requirements of article 14(5) of the ICCPR.
David Michael Nicholas v Australia
Communication No 1080/2002
UN Doc CCPR/C/80/D/1080/2002
Human Rights Committee
19 March 2004
The author was serving a sentence of imprisonment in Port Phillip Prison in Victoria. He claimed to be a victim of a violation by Australia of article 15(1).[34] The author had been arrested in Australia in 1994 during an operation conducted by law enforcement authorities from Thailand and Australia. Thai and Australian police officers had conducted a controlled importation of a trafficable quantity of heroin from Bangkok, of which the author took delivery in Melbourne. The author was charged with state and federal offences, including the importation of narcotics contrary to the Customs Act 1901 (Cth). Relying on Ridgeway v Queen,[35] the author successfully sought a permanent stay of the proceedings on the grounds, which were uncontested, that the police officers had themselves committed unlawful conduct and therefore the resulting evidence of importation should be excluded. Subsequently the Crimes Amendment (Controlled Operations) Act 1996 (Cth) was passed in response to Ridgeway v Queen and it provided, in section 15X(3), that courts should disregard past illegal conduct by law enforcement authorities in connection with the importation of narcotics. The author unsuccessfully challenged the constitutionality of the legislation, with the High Court holding that the law was valid and that the stay on prosecuting the author could be lifted. The author was subsequently convicted in the County Court of Victoria and sentenced to imprisonment for 15 years, with the possibility of release on parole after ten years.
Before the Committee the author claimed that he was the victim of an impermissible application of a retroactive criminal law in violation of article 15(1) of the ICCPR. The Committee considered that this raised two issues. The first was whether the lifting of the stay resulting from the admission of formerly inadmissible evidence constituted a retroactive criminalisation of conduct not criminal at the time it was committed. The second was whether, even if there was no retroactivity in contravention of article 15(1), the author was convicted of a criminal offence the elements of which were not all present in the author’s case, and therefore in violation of the principle nullum crimen sine lege protected by article 15(1). In relation to the first question the Committee noted that the author was convicted of an offence against a provision of the Customs Act 1901 (Cth), which remained materially unchanged throughout the period from the time of the offending conduct through to trial and conviction. Hence there was no violation of the prohibition against retroactive criminal laws. As to the second issue, the Committee observed at the outset that article 15(1) requires that any act or omission for which an individual is convicted constitute a criminal offence. However, whether these requirements are met is not a question that can be determined in the abstract, but can only be answered after a trial pursuant to which evidence is adduced to demonstrate that the elements of the offence have been established. The Committee considered that ‘changes in rules of procedure and evidence after an alleged criminal act has been committed, may under certain circumstances be relevant for determining the applicability of [article 15(1)], especially if such changes affect the nature of the offence’.[36] However, there were no such circumstances here. Rather, the Committee continued, the amending legislation did not remove the illegality of the law enforcement officers’ conduct, but instead directed the courts to ignore that conduct for the purposes of admitting evidence. The Committee concluded that ‘all of the elements of the crime in question existed at the time the offence took place and each of these elements were proven by admissible evidence by the rules applicable at the time of the author’s conviction’.[37] Accordingly, the author was not the victim of a violation of the nullum crimen sine lege principle.
A K v Australia
Communication No 148/1999
UN Doc CAT/C/32/D/148/1999
Committee Against Torture
Views adopted on 5 May 2004
The complainant was a national of Sudan detained in immigration detention in Australia. He had arrived in Australia without valid travel documents and was detained pending resolution of his application for a protection visa. The visa was refused by the Department of Immigration and Multicultural Affairs on the basis that the complainant was not a citizen of Sudan, and that his claims lacked credibility. The complainant unsuccessfully sought review of the decision before the Refugee Review Tribunal and subsequently the Federal Court.
Before the Committee the complainant argued that forcible removal to Sudan would be a violation of article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment.[38] He contended that his religion and his prior political activities put him at real risk of being the subject of torture in Sudan. The Committee considered that the claim was admissible, but rejected it on its merits. The Committee began by observing that it was necessary to determine whether the complainant personally would risk torture in Sudan. Hence the existence of mass violations of human rights in Sudan was not itself sufficient to demonstrate that the complainant would risk being subject to torture if he returned. The Committee noted that there were substantial inconsistencies in the complainant’s evidence throughout proceedings in Australia. Referring to General Comment No 8, it observed that ‘questions about the credibility of a complainant, and the presence of relevant factual inconsistencies in his claim, are pertinent to the Committee’s deliberations as to whether the complainant would be in danger of being tortured’.[39] These several inconsistencies tended to confirm that the state party’s findings were not unreasonable or arbitrary, and hence the Committee concluded that the complainant had not provided a verifiable basis for believing that he would face a foreseeable, real and personal risk of being subjected to torture upon his return to Sudan.
United States: Continued Dumping and Subsidy Offset Act of 2000
(the Byrd Amendment) (WT/DS217 and WT/DS234)
Appellate Body report circulated 16 September 2002
adopted 27 January 2003
The United States Continued Dumping and Subsidy Offset Act 2000, known as the ‘Byrd Amendment’ (the Act) provided for distribution of amounts to domestic United States producers who were affected by dumping. These producers could be entitled to payments in respect of ‘qualifying expenditures’, being expenditures incurred to produce the relevant product after the entry of the relevant order.
The complaining states, including Australia, alleged that the Act violated the provisions of the Anti-Dumping Agreement (ADA) and the Agreement on Subsidies and Countervailing Measures (SCM Agreement) prohibiting ‘specific action against’ dumping or subsidies except in accordance with GATT as interpreted by those agreements.
The World Trade Organisation (WTO) Appellate Body found, for the purposes of article 18.1 of the ADA and article 32.1 of the SCM Agreement that the Act was a specific action against dumping and subsidies, since it provided disincentives for exporters to dump or receive subsidies.
While the offsets did not operate directly against dumping or subsidisation, the Panel had found that they operated indirectly against dumping or subsidisation both by providing subsidies to the domestic producers competing with the producer of the dumped or subsidised exports, and by providing a financial incentive for domestic producers to file or support applications for anti-dumping or countervailing duties. The Appellate Body agreed with the first but disagreed with the second.
As to article 5.4 ADA and article 11.4 SCM Agreement, the Panel had held that the object and purpose of the Act should be considered, and showing that there were specified levels of support, as the text of those articles indicate, was ‘irrelevant’. The Appellate Body rejected this approach. It looked at the ‘object and purpose’ of these provisions as involving merely the determination of domestic industry support, and recognised that the ‘object and purpose’ are relevant only to determining the meaning of the text, not to determining what is valid and what is not independent of it. The motives behind industry support were not relevant. The Panel’s alternative finding, that the United States had failed to act in ‘good faith’ under those articles, was challenged by the United States on the basis that there was no such substantive obligation. Having regard to articles 26 and 31(1) of the Vienna Convention on the Law of Treaties, the Appellate Body determined that the question whether a member state acted in good faith was a relevant consideration, but did not find that an independent duty of good faith existed. This had to be found in customary international law or in the treaty, but, in any event, there was insufficient evidence of lack of good faith.
Accordingly, the Appellate Body took a broad approach to interpreting article 18.1 ADA / 32.1 SCM Agreement as to when a measure is ‘against dumping’ or ‘against a subsidy’ so as to include indirect measures that generate adverse competitive effects for dumpers and those companies that receive or benefit from subsidies. The Appellate Body did not however take so broad a reading of the ADA or SCM Agreement that it could recognise in principle a substantive duty of good faith independent of the text of the treaty.
The arbitration award on the level of retaliation to be permitted against the United States by eight of the complainants (not including Australia) was issued on 31 August 2004. Australia, Thailand and Indonesia agreed to allow the United States until 27 December 2004 to comply with the Panel and Appellate Body rulings.
European Communities — Export Subsidies on Sugar
(WT/DS265, 266 and 283)
Panel report circulated 15 October 2004,
Appellate Body
report circulated 28 April 2005
adopted 19 May 2005
This dispute involved the balancing of the European Communities’ commitments to developing countries under the Africa-Caribbean-Pacific (ACP) Agreement with its Agreement on Agriculture (AoA) obligations to the complainants, Australia, Brazil and Thailand.
The dispute concerned the complaints by Australia, Brazil, and Thailand about export subsidies for sugar and sugar-containing products accorded under Council Regulation (EC) No 1260/2001 of 19 June 2001 (EC Regulation) and related instruments (EC sugar regime).
The EC Regulation was valid for the 2001/02 to 2005/06 marketing years, establishing quotas for sugar production, an intervention price for raw and white sugar, a basic price and a minimum price for beet for quota sugar production, import and export licensing requirements, producer levies, and preferential import arrangements for ACP countries. The EC sugar regime also provided ‘export refunds’ to its sugar exporters for certain ‘quota’ sugar. The refunds operated as direct export subsidies, covering the difference between EC internal market price and the prevailing world market price for sugar. Non-quota sugar had to be exported without ‘export refunds’.
The complainants claimed that the export subsidies were in excess of the EC’s reduction commitment levels as set out in section II, part IV of the European Communities’ Schedule, thus violating the AoA and the SCM Agreement governing export subsidies.
The Panel report was circulated on 15 October 2004. The Panel found in favour of the complainants, holding that the export subsidy schemes on sugar granted by the EC were in breach of the EC’s obligations for the reduction of such subsidies under the AoA. Total EC sugar exports were found to have exceeded its quantity commitment level, the EC was found to have been providing export subsidies within the meaning of article 9.1(a) of the AoA to exports of ‘ACP/India equivalent sugar’ and non-quota sugar since 1995.
The EC notified the Dispute Settlement Board (DSB) on 13 January 2005 of its decision to appeal. Australia notified its decision to cross-appeal on 25 January. Brazil and Thailand also cross-appealed on the same grounds.
The Appellate Body report was circulated on 28 April 2005. The Appellate Body upheld the Panel’s report. While upholding the principle in the cross-appeal as to the Panel’s failure to deal with certain aspects of the complaint, it held that it was not in a position to complete such work. It asked the DSB to request the EC to bring the EC Regulation and the EC sugar regime into line with its decision.
At its meeting of 19 May 2005, the DSB adopted the Appellate Body report and the Panel report, as modified by the Appellate Body report. An arbitration was held on the appropriate period for the EC to bring its rules into line with the adopted Reports. The award of Mr AV Ganesan of 28 October 2005 gave the EC until 22 May 2006.
European Communities – Protection of Trademarks and
Geographical
Indications for Agricultural Products and Foodstuffs (WT/DS174 and
290)
Panel report circulated 15 March 2005
adopted 20 April 2005
The United States and Australia complained to the WTO about the content, implementation and enforcement measures of EC Regulation 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs and related measures (EC Regulation). The EC Regulation protects goods such as Parma ham, Lübecker marzipan, Roquefort etc from competing products not produced in the region but using the same geographical indicator in their labelling or trademark.
The EC Regulation covers Protected Geographical Indications (sufficient if the product originates from the region and that ‘a specific quality, reputation or other characteristic attributable to that geographic origin, the production and/or processing and/or preparation of which takes place in the geographic area defined’) and Protected Designation of Origin, which concerns the name of a product, the quality or characteristics of which are essentially or exclusively due to a particular geographic environment (with its inherent natural and human factors) and the production and processing and preparation of which take place in the geographic area defined. It is analogous to intellectual property law in which there is a distinction between indications of source (‘indications de provenance’) and designations of origin (‘appelations d’origine’). However, the EC Regulation did not follow this terminology.
The Trade-Related Intellectual Property (TRIPS) Agreement uses yet another definition of geographical indications. Australia claimed that the EC measure was inconsistent with the TRIPS, GATT 1994, and other relevant treaties.
A panel was formed on 2 October 2003. On 15 March 2005, its report was circulated to Members. In its report the Panel agreed with the United States and Australia that the EC Regulation did not provide equal national treatment to other WTO Members’ right holders and products since it was conditional on the non-EC member adopting mirror regulation offering reciprocal protection and a conditional registration procedure was in place before potentially offending goods could be permitted in. The Panel agreed with the EC that the EC Regulation, as written, was sufficiently constrained to qualify as a ‘limited exception’ to trademark rights but the TRIPS agreement would not allow unqualified coexistence of geographical indicators with prior trademarks.
The DSB adopted the Panel report on 20 April 2005.
The EC indicated that it would implement the Panel’s report. At the DSB meeting on 21 April 2006, the EC said that they had fully implemented the recommendations and rulings by adopting a new regulation which entered into force on 31 March 2006. Australia and the United States at present disagree.
United States – Subsidies on Upland Cotton (WT/DS267)
Panel report circulated 8 September 2004
Appellate Body
report circulated 3 March 2005
adopted 21 March 2005
The dispute concerned agricultural export credits and whether they could be considered as prohibited export subsidies. The United States had refused to include such credits in the category of agricultural export subsidies during the Uruguay Round of negotiations of the present WTO agreement, which would have required it to commit to reduce them over time; the unintended effect has been to make them prohibited altogether under the Agreement on Agriculture (AoA). Article 10.1 of the AoA seemingly deferred the matter for later consideration and agreement.
Brazil challenged United States cotton export credits under the AoA, the Subsidies Agreement and GATT 1994. The Panel issued its final report to the parties on 8 September 2004, and found that the United States agricultural export credit guarantees were subject to WTO export subsidy disciplines and three of its export credit guarantee programs were prohibited export subsidies. These were in addition to several other prohibited subsidies in respect of cotton, causing serious prejudice to Brazil’s interests.
The Panel thus held that United States export credit guarantee programs are export subsidies under item (j) of the Illustrative List of Export Subsidies of the SCM Agreement, and so are prohibited by article 3.1(a) of the SCM Agreement. The Panel reasoned that article 10.2 did not in its express terms operate as an exception.
On 3 March 2005, the Appellate Body report was circulated to Members. Australia was a third participant in the appeal and lodged its Third Participant’s Submission on 16 November 2004.
The Appellate Body upheld the decision, although a rare anonymous dissent was recorded against the construction given to the relationship between article 10.2 and article 3.1(a) together with item (j) of the Illustrative List.
At its meeting on 21 March 2005, the DSB adopted the Appellate Body report and the Panel report, as modified by the Appellate Body report. In response to the WTO ruling, in July 2005 the United States Department of Agriculture announced a modification of three export credit guarantee programs. These appear to have been accepted by Brazil, at least for the agricultural export credits portion of the cotton ruling. A continuing dispute on the prohibited export subsidies appears also to have been resolved.
Mexico: Measures Affecting Telecommunications Services (WT/DS204)
Panel Report circulated 2 April 2004
adopted 1 June 2004
This dispute centred around Mexico’s commitments and obligations under the General Agreement on Trade in Services (GATS) with respect to basic and value-added telecommunications services. The complaints centred around the main Mexican telecommunications company, Teléfonos de México (Telmex) was alleged to have failed to:
• ensure that Telmex provides interconnection to United States cross-border basic telecom suppliers on reasonable rates, terms and conditions;
• ensure United States basic telecom suppliers reasonable and non-discriminatory access to and use of public telecom networks and services;
• provide equal national treatment to United States-owned commercial agencies; and
• not engage in anti-competitive practices.
The United States alleged that, since the entry into force of the GATS, Mexico has adopted or maintained anti-competitive and discriminatory regulatory measures, tolerated certain privately-established market access barriers, and failed to take needed regulatory action in Mexico’s basic and value-added telecommunications sectors. All these steps breached market access and national treatment rules, as well as additional commitments for service suppliers seeking to provide basic and value-added telecommunications services into and within Mexico.
On 23 April 2002, Australia joined as a third party. On 2 April 2004, the Panel report was circulated to members. The Panel ruled that Mexico violated its GATS obligations through failure to:
• ensure interconnection at cost-oriented rates for the cross-border supply of facilities-based basic telecom services, contrary to article 2.2(b) of its Reference Paper;
• maintain appropriate measures to prevent anti-competitive practices by firms that are a major telecom supplier, contrary to article 1.1 of its Reference Paper; and
• ensure reasonable and non-discriminatory access to and use of telecommunications networks, contrary to article 5(a) and (b) of the GATS Annex on Telecommunications.
On 1 June 2004, the DSB adopted the Panel report. In accordance with an agreement between Mexico and the United States, on 12 August 2005, Mexico published its new resale regulations allowing for the commercial resale of long distance and international long-distance services originating in Mexico.
[∗] Barrister, Sydney.
[∗∗] Sydney Centre for International and Global Law, Faculty of Law, University of Sydney.
[1] UNGA Res ES-10/14 (8 December 2003).
[2] Written Statement of the Government of Australia, available at http://www.icj-cij.org/ (1 February 2006) [3].
[3] Ibid [8].
[4] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] ICJ Rep 136, Separate Opinion of Judge Higgins [14].
[5] Ibid, Separate Opinion of Judge Koojimans [26].
[6] Ibid, Declaration of Judge Buergenthal [1].
[7] Ibid [10].
[8] Geneva Convention Relative to the Protection of Civilians in Time of War (12 August 1949) 75 UNTS 287.
[9] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, above n 9, [121].
[10] Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land (18 October 1907) 187 Consol. TS 227.
[11] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, above n 9, [137].
[12] Ibid, Separate Opinion of Judge Higgins [34].
[13] 16 December 1966, 999 UNTS 171.
[14] Optional Protocol to the International Covenant on Civil and Political Rights (16 December 1966) 999 UNTS 302.
[15] Art 10(1) provides that ‘[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.’
[16] (25 October 1980) 1343 UNTS 89.
[17] Art 2(3) provides that ‘Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.’
[18] Art 7 relevantly provides that ‘[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment …’
[19] Art 14(1) provides that ‘1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law …’
[20] UN Doc CCPR/C/81/D/901/1999 [7.4].
[21] Ibid [7.3].
[22] Art 5(2)(b) of the Optional Protocol provides ‘[t]he Committee shall not consider any communication from an individual unless it has ascertained that … [t]he individual has exhausted all available domestic remedies. This shall not be the rule where the application of the remedies is unreasonably prolonged.’
[23] Art 9(1) provides that ‘[e]veryone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention …’
[24] UN Doc CCPR/C/81/D/1011/2001, [9.2].
[25] Ibid [9.3].
[27] Art 12(4) provides that ‘[n]o one shall be arbitrarily deprived of the right to enter his own country.’
[28] Art 17 provides that ‘(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation; (2) Everyone has the right to the protection of the law against such interference or attacks.’
[29] Art 23 relevantly provides that ‘(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’ Art 24 relevantly provides that ‘(1) Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.’
[30] UN Doc CCPR/C/81/D/1011/2001 [11].
[31] In relation to Art 14(1) see above n 19. Art 14(5) provides that ‘[e]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.’
[32] Art 19 relevantly provides that ‘(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice; (3) The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For the respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.’
[33] UN Doc CCPR/C/80/D/920/2000 [9.4].
[34] Art 15 provides that ‘(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby; (2) Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.’
[36] UN Doc CCPR/C/80/D/1080/2002 [7.7].
[37] UN Doc CCPR/C/80/D/1080/2002 [7.7].
[38] (10 December 1984) 1465 UNTS 85. Art 3 provides that ‘(1) No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture; (2) For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.’
[39] UN Doc CAT/C/32/D/148/1999 [6.2].
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