International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Spring 2013 Issue

CASES of note

General Court of the European Union 
Poland v. Commission (March 7, 2013)

Click here for press release (approximately 2 pages); click here for judgment (approximately 25 pages)

The General Court of the European Union dismissed an action brought by Poland challenging the European Commission's decision concerning the allocation of free greenhouse gas emission allowances, set to begin this year.  The dispute stems from a 2003 EU Directive establishing a scheme for the trading within the EU of greenhouse gas emission allowances.  Under the Directive, the Commission must "take measures to implement the harmonised free allocation of emission allowances." In 2011, the Commission did so, issuing a decision allocating emission allowances free of charge to fixed industrial installations or factories, and setting emission benchmarks for each sector based on average performance from 2007 and 2008.  The decision went into effect in 2013, allocating allowances free of charge calculated on the basis of those benchmarks.

Poland argued that the Commission decision infringed the Treaty on the Functioning of the European Union (TFEU) and the 2003 Directive.  It claimed that the 2011 decision requirements were more restrictive than the 2003 Directive and that the Commission was not competent to adopt the contested decision. It also asserted that the Commission breached the principles of specificity and equal treatment by failing to take into consideration the different industrial and economic situations across the EU.

The General Court dismissed Poland's action in its entirety.  It found that the decision is a measure implementing the Directive, which was in turn adopted on the basis of the TFEU provisions on environmental policy.  Accordingly, it dismissed Poland's actions "in so far as [Poland] challenge[d] the legality of the decision under the TFEU rules on energy policy."  It also ruled that the decision does not conflict with the Directive because it "leaves the Member States a margin of manoeuvre to adopt financial measures" that favor some industry sectors, and to allocate free allowances to installations in those sectors. 

The General Court also held that the Commission did not breach the principle of equal treatment "when it decided to treat uniformly installations that are in different situations, due to the use of different fuels, when determining the benchmarks to calculate the number of emission allowances to be allocated."  The court reasoned that setting benchmarks according to the fuel used (e.g. natural gas or coal) would not cause industrial installations to seek to reduce their emissions.  Similarly, the decision's use of natural gas, which is low in CO2 emissions, to calculate the benchmark standards is permissible because the standards are intended to reduce the emission of greenhouse gasses.  Finally, the General Court found that the decision "gives appropriate consideration to the economic and social consequences of the measures to reduce CO2 emissions."  The Court noted that the rules will be phased in slowly, and coal-burning plants like those operated by Poland will initially obtain a greater number of free allowances.  At the same time, EU programs will support Member States with relatively low income per capita and relatively high growth prospects to reduce the carbon intensity of their economies by 2020.

Poland has two months to appeal points of law to the Court of Justice.

High Court of Australia finds International Arbitration Act constitutional (March 13, 2013)

Click here for press release (approximately 1 page); click here for judgment (approximately 30 pages).

The High Court of Australia has upheld the constitutionality of the International Arbitration Act of 1974, which implements the United Nations Commission on International Trade Law Model Law on International Commercial Arbitration in Australia.  In the case of TCL Air Conditioner (Zhongshan) Co LTD v. The Judges of the Federal Court of Australia & ANOR, the dispute arose out of a suit to enforce an arbitral award against TCL.  TCL instituted separate proceedings requesting an order restraining the Federal Court from enforcing the award, arguing that "the Model Law provided for an exercise of judicial power of the Commonwealth in a manner contrary to Ch III of the Constitution."  The High Court unanimously dismissed the application.   

Dutch Court sentenced Rwandan-born woman to prison for genocide (March 1, 2013)

Click here for news story (approximately 2 pages)

A Dutch court sentenced a Rwandan-born Dutch citizen to six years and eight months in jail for inciting genocide.  The court held that defendant Yvonne Besabya, the Hutu wife of a Rwandan lawmaker, "embraced and propagated this extreme racist ideology and used her influence to contribute to an atmosphere of violence" during the 1994 Rwandan genocide.  Besabya fled Rwanda in 1994 and settled in the Netherlands. The court acquitted her of other charges, including perpetrating genocide, murder, and war crimes.

International Criminal Tribunal for the former Yugoslavia terminates appellate proceedings in relation to Milan Gvero (March 8, 2013)

Click here for press release (approximately 1 page)

The International Criminal Tribunal for the former Yugoslavia reports that Milan Gvero died on February 17, 2013.  He was the Assistant Commander for Moral, Legal and Religious Affairs of the Bosnian Serb Army Main Staff, and one of six defense appellants in the Popovic et al. case. In 2010, the Trial Chamber found Gvero guilty of committing persecution and other inhumane acts as crimes against humanity in the Srebrenica and Zepa enclaves and sentenced him to five years' imprisonment.  Following Gvero's death, the Appeals Chamber terminated appellate proceedings related to him and pronounced the Trial Judgment findings and sentence against him final.

International Criminal Court
The Prosecutor v. Germain Katanga (March 27, 2013)

Click here for press release (approximately 2 pages); click here for judgment (approximately 51 pages)

The Appeals Chamber of the International Criminal Court dismissed the appeal of Germain Katanga to Trial Chamber II's "Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons" which gave notice of a "possible change in the legal characterization of the form of responsibility with which Mr Katanga is charged." The majority of the Chamber, with Judge Tarfusser dissenting, held that the change in the legal characterization of the facts is in conformity with regulation 55(2) of the Regulations of the Court and that it does not violate Katanga's right to a fair trial.

Katanga, a Congolese national, is charged with crimes against humanity and war crimes jointly through another person. These crimes were allegedly committed during the attack against the military camp and civilian population of the Bogoro village. In November 2012, the Trial Chamber gave notice to the parties of "a possible re-characterisation of the form of responsibility to . . . contributing in any other way to the commission of the crimes by a group of persons acting with a common purpose."

According to the Press Release, the Appeals Chamber emphasized that "considering the advanced stage of the proceedings, the Trial Chamber will need to be particularly vigilant in ensuring Mr Katanga's right to be tried without undue delay." The proceedings in the Trial Chamber will continue as outlined by that Chamber in its notice of the potential change in the legal characterization of the facts.

Special Court for Sierra Leone
Independent Counsel v. Bangura, Kargbo, Kanu and Kamara (Judgment in Contempt Proceedings) (March 21, 2013)

Click here for press release (approximately 2 pages); click here for judgment (approximately 26 pages)

The Appeals Chamber of the Special Court for Sierra Leone upheld the convictions and sentences of three former Armed Forces Revolutionary Council (AFRC) leaders. The three-judge panel rejected the appeals of contempt for interference with prosecution witnesses.

Ibrahim Bazzy Kamara and Santigie Borbor Kanu appealed their September 2012 convictions for "knowingly and willfully interfering with the administration of justice" by interfering with prosecution witnesses who had testified against them in their trial for war crimes and crimes against humanity. Samuel Kargbo, who entered into a plea agreement and resultantly pled guilty to the charges in July of 2011, "appealed what he alleged was the trial judge's failure to order protective measures for him."

According to the Court's Press Release, Kamara's appeal was dismissed as incompetent on the grounds that he failed "to stipulate 'the grounds on which the appeal was made'." Kanu's appeal was dismissed because "several, if not all, of his grounds of appeal suffer from . . . deficiencies." Finally, Kargbo's appeal was also dismissed as incompetent because "it was not an appeal either against conviction or against sentence, and thus did not fall with the appellate jurisdiction of Appeals Chamber." The Court thus affirmed the sentences imposed by the Trial Chamber.

International Criminal Tribunal for the former Yugoslavia
Prosecutor v. Mico Stanisic and Stojan Zupljanin (March 27, 2013)

Click here for press release (approximately 2 pages); click herehere, and here for the three-volume judgment (approximately 1474 pages in total)

The Trial Chamber of the International Criminal Tribunal for the former Yugoslavia sentenced Mico Stanisic and Stojan Zupljanin to twenty-two years imprisonment for crimes against humanity and war crimes committed in Bosnia and Herzegovina. The Chamber found that Stanisic and Zupljanin participated in a joint criminal enterprise to "permanently remove non-Serbs from the territory of a planned Serbian state and that many of the crimes committed in the municipalities were foreseeable to the Accused."

Mico Stanisic was the Minister of the Interior of the Republika Srpska. Stojan Zupljanin was the Chief of the Regional Security Services Centre of Banja Luka, and also a member of the Crisis Staff of the Autonomous Region of Krajina. Both had pled not guilty to all charges in 2008. The trial lasted from September 14, 2009 to June 1, 2012. During the course of the trial, the Trial Chamber heard 199 witnesses and entered 4,377 exhibits into evidence.

According to the Press Release, both were convicted of crimes against humanity, including: "persecution . . . through the underlying acts of killings; torture, cruel treatment, and inhumane acts; unlawful detention; establishment and perpetuation of inhumane living conditions; forcible transfer and deportation; plunder of property; wanton destruction of towns and villages, including destruction or wilful damage done to institutions dedicated to religion and other cultural buildings; and the imposition and maintenance of restrictive and discriminatory measures." They were also convicted of murder and torture as violations of the laws or customs of war. Stanisic was found not guilty of extermination as a crime against humanity.

The International Tribunal for the Law of the Sea Receives a Request for an Advisory Opinion from the Sub-Regional Fisheries Commission (March 28, 2013)

Click here for press release (approximately 2 pages)

The International Tribunal for the Law of the Sea received a request from the Sub-Regional Fisheries Commission (SRFC) to render an advisory opinion. The SRFC is located in Dakar, Senegal and comprises seven member states: Cape Verde, the Gambia, Guinea, Guinea-Bissau, Mauritania, Senegal and Sierra Leone. The request for an advisory opinion was made by resolution pursuant to article 33 of the 2012 Convention on the Determination of the Maritime Areas under Jurisdiction of the Member States of the Sub-Regional Fisheries Commission. 


The resolution requests an advisory opinion on the following four matters:

1. What are the obligations of the flag State in cases where illegal, unreported and unregulated (IUU) fishing activities are conducted within the Exclusive Economic Zone of third party States? 
2. To what extent shall the flag State be held liable for IUU fishing activities conducted by vessels sailing under its flag? 
3. Where a fishing license is issued to a vessel within the framework of an international agreement with the flag State or with an international agency, shall the State or international agency be held liable for the violation of the fisheries legislation of the coastal State by the vessel in question? 
4. What are the rights and obligations of the coastal State in ensuring the sustainable management of shared stocks and stocks of common interest, especially the small pelagic species and tuna?

The International Tribunal for the Law of the Sea has entered the Advisory Opinion as Case No. 21.

International Centre for Settlement of Investment Disputes
Arbitration Proceedings Between Mr. Franck Charles Arif and the Republic of Moldova (April 8, 2013)

Click here for award (approximately 170 pages)

The ICSID Arbitral Tribunal issued a Final Award in the dispute between Arif and the Republic of Moldova over investment in five duty free stores on the Romanian borders, and one at the international airport. The dispute was submitted to ICSID by Arif pursuant to the 1997 Agreement between the Republic of France and the Republic of Moldova concerning the Reciprocal Promotion and Protection of Investments (BIT). Arif alleged several breaches of the BIT and international law including: the expropriation of the claimant's investment "on the basis of the alleged misapplication of Moldovan laws"; breach of the "specific commitments" obligation; breach of fair and equitable treatment; breach of Moldova's obligations not to impose arbitrary, unreasonable, or discriminatory measures; and the denial of justice.

The Tribunal decided that it had jurisdiction over the claims, and it held that Moldova breached Article 3 of the France-Moldova BIT "in that it has failed to ensure fair and equitable treatment to [Arif]'s investment in the duty free store at Chisinau Airport." The Tribunal ordered Moldova to make proposals for restitution of the investment in the airport store within sixty days. Arif may either accept or reject the restitution offered, and if it is rejected, Moldova is ordered to pay damages of MDL 35,136,294, with interest. The Tribunal dismissed all other claims and requests for relief.

European Court of Human Rights
H. and B. v. the United Kingdom (April 9, 2013)

Click here for judgment (approximately 170 pages); click here for press release (approximately 4 pages)

The European Court of Human Rights held that there was no violation of Article 3 of the European Convention on Human Rights (the Convention), prohibiting inhuman and degrading treatment, when the United Kingdom ordered removed two failed asylum seekers to their native Afghanistan. The first applicant, Mr. H., applied for asylum in 2008 and claimed that he was at risk of harm from both the Taliban and the Hisb-i-Islam "due to his perceived connections with the Afghan Government and the United Nations." The second applicant, Mr. B., claimed asylum in 2011, alleging that he feared he was at risk of harm from the Taliban due to his work as an interpreter for the United States armed forces and the International Security Assistance Force.

According to the press release, the majority of the Court held that although an expulsion could give rise to an Article 3 claim, the burden was with the claimants "to provide evidence illustrating this and for the Court to examine the foreseeable consequences of sending them to Afghanistan, bearing in mind the general situation and their personal circumstances." The Court went on to find that given the current situation in Afghanistan, "there would not be a real risk of ill-treatment if an individual was simply returned there." The Court also examined each claimant's particular personal situation, and found no violation of the Convention. Although Judge Kalaydjieva filed a dissenting opinion, the Court decided unanimously to "continue its indication to the United Kingdom Government . . . that the applicants should not be removed until this judgment became final or until a request by one or both of the parties to refer the case to the Grand Chamber was accepted."

United States Supreme Court
Kiobel v. Royal Dutch Petroleum Co. (April 17, 2013)

Click here for judgment (approximately 35 pages); click here for ASIL Insight

The United States Supreme Court held in Kiobel v. Royal Dutch Petroleum Co that claims in U.S. courts will generally not be allowed under the Alien Tort Statute (ATS) if they concern conduct that took place in the territory of a foreign sovereign. Nigerian nationals residing in the United States brought suit under the ATS against Dutch, British and Nigerian Corporations, alleging that the corporations "aided and abetted the Nigerian Government in committing violations of the law of nations in Nigeria." The District Court dismissed several of the petitioner's claims, but the Second Circuit, on interlocutory appeal, dismissed the entire appeal, "reasoning that the law of nations does not recognize corporate liability." The Supreme Court granted certiorari and following a first hearing in 2012, ordered reargument of "whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States."    

Although all nine Justices agreed with the outcome, the majority opinion of the Court was delivered by Chief Justice Roberts with Justices Scalia, Kennedy, Thomas and Alito joining. Justice Breyer filed a concurring opinion, which Justices Ginsburg, Sotomayor, and Kagan joined. Justice Kennedy filed a separate concurring opinion, as did Justice Alito, with Justice Thomas joining. 

The majority opinion reasoned that the presumption against extraterritoriality applies to claims under the ATS, and found that nothing in the statute rebuts that presumption.  Justice Breyer's concurrence agreed with the majority's dismissal of the case, but argued that the ATS should provide "jurisdiction where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant's conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind."  Justice Kennedy wrote in his one-paragraph concurrence that "[t]he opinion for the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute. In my view that is a proper disposition."  Finally, Justice Alito with Justice Thomas joining found that "a putative ATS cause of action will fall within the scope of the presumption against extraterritoriality – and will therefore be barred – unless the domestic conduct is sufficient to violate an international norm that satisfies Sosa's requirements of definiteness and acceptance among civilized nations."

International Court of Justice
Frontier Dispute (Burkina Faso/Niger) (April 16, 2013)

Click here for judgment (approximately 51 pages); click here for press release (approximately 10 pages)

The International Court of Justice issued a final decision in the case between Burkina Faso and Niger regarding their border dispute.  The Court unanimously resolved the dispute, providing guidance on the shape the frontier between the parties should take. Per the agreement of the parties, the Court looked to "the principle of the intangibility of boundaries inherited from colonization," and in particular to the 1987 Agreement that the Arrêté of August 31, 1927, "is the instrument to be applied for the delimitation of the boundary."  Other relevant instruments included the Agreement of March 28, 1978, and the 1960 edition of the 1:200,000-scale map of the Institut géographique national de France.

According to the press release, the Court specifically found that: the border between the Tong-Tong and the Tao astronomic marker should take a straight line, "since the colonial administration officials interpreted the Arrêté in that manner"; between the Tao astronomic marker and the River Sirba at Bossébangou, the boundary follows the line that appears on the 1960 map; in the area of Bossébangou, the boundary must depart from the 1960 map so that it cuts the River Sirba at the Say parallel, per the Arrêté; and the course of the southern part of the frontier should follow the precise Arrêté direction.

The Court also decided that it will nominate, by means of an Order at a later date, the experts requested by the Parties to assist them in the demarcation of their frontier in the area in dispute.

Court of Justice of the European Union
Commission v. Spain (April 25, 2013)

Click here for judgment in French (approximately 5 pages); click here for press release (approximately 2 pages).

The Court of Justice of the European Union (ECJ) ruled in Commission v. Spain that the freedom of establishment does not preclude the taxation of unrealized capital gains, but does preclude a requirement of immediate payment thereof.

According to the press release, under current Spanish corporate taxation law, "unrealised capital gains form part of the basis of assessment for the tax year, where the place of residence or the assets of a company established in Spain are transferred to another Member State, or where a permanent establishment ceases to operate in Spain." The European Commission determined that "since those capital gains do not have any immediate consequences in terms of taxation if those operations are carried out within Spanish territory, such legislation constitutes a discriminatory measure and an obstacle to the freedom of establishment in that it puts the companies which have exercised that freedom at a cash-flow disadvantage." As a result, the Commission brought an action in the ECJ for failure to fulfill obligations against Spain.

The ECJ held that "the taxation of unrealised capital gains on assets assigned to a permanent establishment which ceases to operate in Spain does not amount to a restriction on the freedom of establishment," however, under EU law, "the immediate taxation of unrealised capital gains on the transfer of the place of residence or of the assets of a company established in Spain to another Member State amounts to a restriction on the freedom of establishment."

ASIl & International Judicial AcademyInternational Judicial Monitor
© 2013 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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