Digest

Digest

EU-Israel Free Trade & the Occupied Territories

In Case C-386/08, (1) Advocate General(2) Bot delivered his advisory opinion to the European Court of Justice (ECJ). Bot argues that the ECJ should not extend full faith and credit (3) to the Israeli customs authorities as to the authenticity of documents of origin of goods from the occupied territories. As a consequence, Bot would impose no legal duty to accept as presumptively true(4) statements of the Israeli customs authorities regarding goods originating in the Israeli settlements in the occupied territories of the West Bank.(5) Israel asserts that goods originating in the occupied territories are Israeli and entitled to the benefits of the customs union agreement between Israel and the E.U. Though the E.U. has a customs union agreement with both Israel(6) and the P.L.O.,(7) the benefits of those agreements cannot extend to goods originating in the occupied territories unless certified by the P.L.O. Essentially, the Israeli settlements in the occupied territories fall outside of Israel-EU agreements coverage – and within the Israel-PLO agreement’s coverage. Had the certificate of origin issued from the relevant Palestinian authority the goods would almost certainly have enjoyed the exemption from custom’s duties.(8)

The case arose out of a preliminary reference to the ECJ from the German tax court (Finanzgericht) for Hamburg. Brita GmBH, a German company, contested the customs duties imposed by Germany on imported goods from settlements in the occupied territories.(9) The German court specifically asked whether the goods could be granted the benefit of the the EC-Israel or the EC-PLO agreement when certified as of Israeli origin by Israel.(10) The referring court believes that the goods, whether originating in Israel or Palestine, should be subject to the exoneration of customs duties.(11) The advocate general disagrees first, on the terms of the treaty,(12) and second because to do so would not respect the sovereignty of the relevant Palestinian authorities. The Advocate General analogizes this case to early E.C. caselaw(13) (Cyprus(14)) where a result similar to the one he advocates was found.

The Opinion, which seems persuasive, will likely influence the ECJ’s impending final decision. It is not without implications for regional stability. Free trade makes war less likely by encouraging prosperity and interdependence, by breaking down isolation. To that end, the E.U. established a partnership with the countries of the Mediterranean basin to create free trade and encourage democracy and human rights’ protection(15) via bilateral agreements following a uniform model providing for free trade.(16) For the ECJ to grant the exemption of customs duties based on Israeli rather than Palestinian authority would be an act of de facto recognition of the legitimacy of the Israeli occupation as well as ignoring the plain meaning of the treaty. Hopefully the Israeli and Palestinian authorities will coordinate and resolve their differences, somehow.

Notes

(1)Brita, GmbH v Hauptzollamt Hamburg Hafen, 29/Oct./2009 Available at: http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-386/08 (Opinion) (Hereafter: Brita, A.G.)

(2)The Advocate General is a post which has no real parallel in U.S. law. The Advocate General writes advisory opinions which can be analogized to an “amicus curiae” brief. The ECJ may or may not take the Advocate General’s opinion into account and may or may not use in reaching its final verdict. The Advocate General’s opinion has no binding authority.

(3) Brita, A.G., para. 75-77. The decision does not however use the U.S. term “full faith and credit” however the conceptual shorthand analogy holds.

(4) Brita, A.G., Para. 83-84.

(5) A similar analysis would apply to goods originating in the Gaza strip.

(6) OJ 2000 L 147, p. 3, the ‘EC-Israel Agreement’.

(7) OJ 1997 L 187, p. 3, the ‘EC-PLO Agreement’. Article 73 of the agreement states that it is to apply to the territories of the West Bank and the Gaza Strip.

(8) Brita, A.G., para. 134.

(9) Brita, A.G., para. 2.

(10) Brita, A.G., para. 5.

(11) Brita, A.G., para. 106.

(12) Brita, A.G., para 108, citing Article 83 of the EC-Israel Agreement.

(13) Anastasiou, Case C 432/92 [1994] ECR I 3087.

(14) Agreement annexed to Council Regulation (EEC) N° 1246/73 of 14 May
1973 (OJ 1973 L 133, p. 1, the ‘EEC-Cyprus Agreement’).

(15) Brita, A.G., para. 9, 10.

(16) Article 8 of the EC-Israel Agreement provides that ‘customs duties on imports and exports, and any charges having equivalent effect, shall be prohibited between the Community and Israel. This shall also apply to customs duties of a fiscal nature’.

Digest

Turkey Liable before ECtHR

Turkey is having a bad day at the European Court of Human Rights (ECtHR). The Court ruled in one decision that Turkey was liable for wrongful death of a Cypriot who in uniform but unarmed crossed the U.N. Buffer zone. Likewise, the Court ruled that Turkish censorship of Turkish newspapers was too restrictive.

In Kallis and Androulla Panayi v. Turkey (1) the Court ruled that Turkey violated Art. 2 of the European Convention on Human Rights (ECHR). The court rejected Turkey’s defences that the plaintiff ought to have first exhausted local remedies(2) as local remedies would have been ineffective(3) awarding monetary damages to plaintiffs under Art. 41 ECHR.

In Ürper and Others v. Turkey(4) the Turkish government had suspended publication of several newspapers which it regarded as publishing propaganda for the Communist party of Kurdistan (PKK), a group it regards as terrorist. The Court used the familiar general principle of proportionality (legitimate purpose, rational means, least restrictive means) test to determine whether the invasion of the fundamental right to freedom of press was legitimate. The court determined that the ban on publication was an interference in the fundamental right(5) prescribed by law,(6) that the end sought by Turkey was a legitimate aim of preventing disorder and crime,(7) but that the means used to that end were not necessary interferences.(8) That is, using the more familiar general principle of proportionality terms, the invasion of the fundamental right was not the least restrictive one possible.

As well as representing the sorts of steps which Turkey must consider taking as it seeks accession to the E.U. the case is relevant as an example of the globalization of fundamental rights as legitimators of the state and as the objective of the international legal system. Further, the Ürper case is one more example of the rise of proportionality as the method to adjudicate constitutionalized fundamental rights. The cases can thus be seen as examples of contemporary trends in the globalization of legal consciousness, the convergence of norms to a global ius commune and as of political interest too.

(1) Application no. 45388/99 (27/Oct. 2009).

(2) Kallis at para. 28.

(3) Kallis at para. 35.

(4) Applications nos. 14526/07, 14747/07, 15022/07, 15737/07, 36137/07, 47245/07, 50371/07, 50372/07 and 54637/07.

(5) Ürper, para. 24.

(6) Ürper, para. 28.

(7) Ürper, para. 32.

(8) Ürper, para. 44.

Digest

Obama Publishes ‘Torture’ Memos, Immunizes CIA Staff

The Obama Justice Department has released four memos detailing the harsh techniques used on some detainees during the Bush administration.  The memos – three written in 2005 and another in 2002 – give legal support for various coercive techniques and conclude that the CIA’s methods were not “cruel, inhuman or degrading” under international law.

However, the memos give specific authorization for such questionable tactics pushing detainees against a wall, facial slaps, cramped confinement, stress positions and sleep deprivation.

President Obama assured CIA agents that those who used harsh interrogation techniques on terrorism suspects “relying in good faith upon legal advice from the Department of Justice” during the Bush era will not be prosecuted.

For further information, please click here and here.

Digest

Spanish AG: No Torture Investigation of US Officials

Spanish Attorney General Candido Conde-Pumpido has declined to open an investigation in Spain’s National Court into whether six top Bush Administration officials sanctioned torture at Guantanamo Bay. While Spain’s courts do have jurisdiction in the case of war crimes and torture under the doctrine of “universal justice.”  Conde-Pumpido declared that the most proper forum for such an investigation would be in United States’ court system, not Spain’s.

The “Bush Six”, as they have come to known, have been accused of using legal opinions to advise the Bush Administration that it would be acceptable to ignore the Geneva Conventions and narrowly defining which interrogation techniques constituted torture. They are named in a complaint filed by several human rights lawyers.

Spanish Judge Baltasar Garzon, who is presiding over the case, is most well-known for indicting Chilean ruler Augusto Pinochet over the objections of prosecutors. However, Conde-Pumpido is Spain’s top law-enforcement official and would have the final say. A formal announcement is expected April 17.

For more information, click here.

Digest

Americas' Leaders Vow to Fight Cartels

President Obama recently met as many as 34 leaders of democratically elected nations of the Western Hemisphere to consider and discuss an array of issues that directly affect them.  These issues include the current economic crisis, energy issues, climate change, and personal security. This meeting was held at the Summit of the Americas from April 17–19 in the port of Spain, in Trinidad and Tobago.  Recently, the frequency of violent activities along the US- Mexican border has drastically increased, forcing the various Central American nations and the US to spend as much as $1.4 billion in order to enhance law-enforcement training and military equipment, as well as to improve intelligence cooperation.

President Obama also announced that he will seek US senate ratification of an inter-American arms trafficking treaty designed to stop the flow of illegal firearms and ammunition to drug cartels and other destructive groups in the Western Hemisphere. The leaders believe that by taking these drastic steps, the illicit transnational arms market that fuels the violence associated with drug trafficking, terrorism, and international organized crime will diminish. In order to further assist this effort, Homeland Security Secretary Janet Napolitano announced the appointment of Alan Bersin, a former federal prosecutor, to coordinate efforts to reduce drug-related crime along the US-Mexican border.

For more information, please click here.

Digest

French Parliament Rejects Internet Piracy Bill

On Thursday April 9, the French National Assembly rejected an Internet piracy bill that punished repeat illegal downloaders. The bill won preliminary parliamentary approval but was eventually defeated by a vote of 21-15. Under the bill, a first time offense of downloading illegal material would be punished by a warning and a second time offense would be punished by up to a one-year ban. The bill was supported by the International Federation of the Phonographic Industry, which represents the recording industry and opposed by the UFC-Que Choisir, a French consumer interest group.

Other nations in Europe have been struggling with balancing the protection of copyright materials and privacy concerns. In January 2008, the European Court of Justice found that telecommunication companies in Spain did not have to share the identities of Internet users suspected of illegal file sharing. A Belgium court in June 2007, on the other hand, ordered a file sharing website to filter users found sharing copyrighted material.

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