Supreme Court Limits
Holding in Bond, Not Reaching Constitutional Treaty Implementation Authority
The Use of Unmanned
Aerial Vehicles (Drones) in United Nations Peacekeeping: The Case of the
Democratic Republic of Congo
Sealing the Deal: The
WTO’s Appellate Body Report in EC – Seal Products
The MV Salamis and the
State of Disembarkation at International Law: The Undefinable Goal
WTO Law and the Right to
Regulate: China – Rare Earths
Australia v. Japan: ICJ
Halts Antarctic Whaling
Reviewing the
AgudasChasidei Chabad v. Russian Federation, et al. Dispute
United States v. Windsor
and its Progeny: Implications for U.S. Bilateral and Multilateral Engagement
The Timor Sea Treaty
Arbitration: Timor-Leste Challenges Australian Espionage and Seizure of
Documents
Substantive New
Normative Provisions on Women and Armed Conflict Concurrently Adopted by the
United Nations Security Council and the CEDAW Committee
The EU-Faroe Islands
Herring Stock Dispute at the WTO: the Environmental Justification
International Court of
Justice Defines Maritime Boundary Between Peru and Chile
Animal Welfare, Public
Morals and Trade: the WTO Panel Report in EC – Seal Products
ILIB
U.S. Ambassador Asserts National Self-Defense
Under International Law in Benghazi Suspect Case (June 17, 2014)
On June 17, 2014, the U.S. Ambassador, Samantha
Power, wrote a letter to the U.N. Security
Council stating that the U.S. raid that seized the suspected leader of the 2012
attack on the American Consulate in Benghazi, Libya is
legal under international law. According to a news article, Abu Khattalah was
captured in Libya “without the knowledge or permission of the Libyan
government.” The letter stated that, in accordance with Article 51 of the
Charter of the United Nations, the measures were “necessary to prevent such
armed attacks, and were taken in accordance with the United States’ inherent
right of self-defense.”
Court of Justice of the European Union Rules
that Women Not Working Due to Pregnancy Remain “Workers” (June 19, 2014)
On
June 19, 2014, the Court of Justice of the European Union (the Court) issued
its decisionin Jessy Saint Prix
v. Secretary of State for Work and Pensions, holding that “a woman who
gives up work or seeking work, because of the physical constraints of the late
stages of pregnancy and the aftermath of childbirth can retain the status of
‘worker’” within the meaning of Article 45 of the Treaty on the
Functioning of the European Union and Article 7 of Directive 2004/38 on the right of free
movement and residence of Union citizens. According to the press release, the Court found that
“the fact that [a woman] was not actually available on the employment market of
the host Member State for a few months does not mean that she has ceased to
belong to that market during that period, provided she returns to work or finds
another job within a reasonable period after confinement.” The case is now
remitted to the domestic court following the Court’s preliminary ruling.
European
Court of Human Rights Denies Journalist Source Protection to Perpetrator of
Bomb Attacks (June 19, 2014)
On
June 19, 2014, a Chamber of the European Court of Human Rights (Third Section)
(the Court) declared inadmissible the application in StichtingOstade
Blade v. the Netherlands, holding that the perpetrator of a series of bomb
attacks in Arnhem, who wrote to a magazine claiming responsibility for the
attacks (the Letter), was not a journalistic source attracting protection under
Article 10 (freedom of expression) of the European Convention on Human Rights.
The magazine claimed a violation of its rights to protect its journalistic
sources when, after the magazine announced that it had received the Letter,
police searched its premises. According to the press release, the Court found that
“source protection” was not in issue because the informant was not a
journalistic source and that the search, which constituted an interference with
the magazine’s Article 10 rights, was “justified as ‘necessary in a democratic
society’ for the prevention of crime.”
ICC
Office of the Prosecutor Concludes No Basis for Further Investigations into
Republic of Korea (June 23, 2014)
On
June 23, 2014, the Office of the Prosecutor (OTP) of the International Criminal
Court published its Report following
the conclusion of the preliminary examination into the situation in the
Republic of Korea. According to the press release, the Prosecutor
“determined that, at this stage, the Rome Statute requirements to seek
authorization to initiate an investigation have not been satisfied.” The OTP
concluded, in relation to the sinking of a South Korean warship in March 2010,
that “the alleged attack was directed at a lawful military target,” and, in
relation to the shelling of South Korea’s Yeonpyeong Island in November 2010,
that “the information available on this incident does not provide a reasonable
basis to believe that the attack was intentionally directed against civilian
objects or that the civilian impact was expected to be clearly excessive in
relation to the anticipated military advantage.”
Reports Highlight Success of Mine Ban Treaty
(June 23, 2014)
On June 23, 2014, the International Campaign to
Ban Landmines released a series of reports coinciding with the Third Review Conference of the Convention on the
Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel
Mines and on Their Destruction. The Treaty prohibits States Parties from
using, developing, producing, acquiring, stockpiling, retaining or transferring
antipersonnel mines. According to the reports, “[o]ne of the most significant
achievements of the treaty has been the degree to which any use of
antipersonnel mines by any actor has been stigmatized throughout the world.”
Since its entry into force, the total number of new casualties has decreased,
and “87 States parties have completed the destruction of their stockpiled
antipersonnel mines, destroying more than 47 million mines.”
Arbitral Tribunal Denies
Jurisdiction in Achmea B.V. v. The Slovak Republic (May 20, 2014)
On May 20, 2014, an arbitral
tribunal (the Tribunal) convened under the terms of a bilateral investment
treaty between the Kingdom of the Netherlands and the Czech and Slovak Republic
(the Treaty), and operating under UNCITRAL Rules, found that
it did not have jurisdiction over a claim brought by Achmea B.V. against the
Slovak Republic because Achmea B.V. had failed to state a prima facie case. Notwithstanding this, the Tribunal held that there was a “dispute,” which
was also a requirement for jurisdiction to exist, because “it suffices if it is
established that there is a conflict of legal views between the Parties.”
International Labour Organization Adopts Legally
Binding Protocol to Eliminate Forced Labor (June, 11, 2014)
On June 11, 2014, the International Labour
Organization adopted a legally binding Protocol that seeks to
strengthen efforts to combat forced labor. According to a press release, “[t]he new Protocol
brings the existing ILO Convention 29
Concerning Forced Labour, adopted in 1930, into the modern era to address practices
such as human trafficking.” As such, “[t]he Protocol strengthens the international legal framework by creating
new obligations to prevent forced labour, to protect victims and to provide
access to remedy, such as compensation for material and physical harm.” The
Protocol was adopted at the International Labour Conference with 437 votes for,
twenty-seven abstentions, and eight against.
International
Protocol Launched Aimed to End Sexual Violence in Conflict (June, 11, 2014)
On June 11, 2014,
an International
Protocol on the Documentation and Investigation of Sexual Violence in Conflict was published at the Global
Summit to End Sexual Violence in Conflict. According
to a news
article, the Protocol’s main purposes “is to promote
accountability for crimes of sexual violence under international law.” Its
contents include “a template for personal data to be collected from survivors
and witnesses, tips on carrying out interviews and gathering testimonies, and
guidance on photographing, filming and sketching crime scenes, and on the
collection of physical evidence.” The Protocol was compiled by around
twenty-five experts who then field tested it in several countries, including
the Democratic Republic of the Congo and Uganda, before publication.
Pre-Trial
Chamber I of the ICC Commits Former President of Côte d’Ivoire, to Trial (June
12, 2014)
On
June 12, 2014, Pre-Trial Chamber I of the International Criminal Court confirmed, by majority, the
charges against Laurent Gbagbo, the former President of Côte d’Ivoire.
According to the press release, Gbagbo will face four
charges of crimes against humanity, namely murder, rape, persecution, other inhumane acts or—in the
alternative—attempted murder. The crimes are alleged to have been committed in
Abidjan, Côte d’Ivoire “between 16 and 19
December 2010 during and after a pro-Ouattara march . . . on 3 March 2011 at a
women’s demonstration in Abobo, on 17 March 2011 by shelling a densely
populated area in Abobo, and on or around 12 April 2011 in Yopougon.” Judge
Christine Van den Wyngaert dissented, reasoning that the
“evidence is still insufficient.”
European Court of Human Rights Decides Martínez v Spain (June 12, 2014)
On
June 12, 2014, the Grand Chamber of the European Court of Human Rights (the
Court) decided FernándezMartínez v.
Spain,
finding—by a majority of 9 to 8—that there was no violation of Article 8 (right
to respect for private and family life) of the European Convention on
Human Rights when Mr. Martínez’s contract to teach religion in a State school was not
renewed. According to the press release, Mr. Martínez, a former
Catholic priest with a Papal dispensation from celibacy, appeared in a
newspaper article “indicating [his] disagreement with the Church’s position on
abortion, divorce, sexuality and contraception.” The Court found that “[i]n
choosing to accept a publication about his family circumstances and his
association with a protest-oriented meeting, MrFernándezMartínez had severed
the bond of trust that was necessary for the fulfillment of his professional duties.”The
Court further held that “by signing his successive employment contracts, [Mr.
Martínez] had knowingly and voluntarily accepted a special duty of loyalty
towards the Catholic Church, which limited the scope of his right to respect
for his private and family life to a certain degree.” Finding that the domestic
courts had “taken into account all the relevant factors and had weighed up the
interests at stake in detail and in depth, within the limits imposed on them by
the necessary respect for the autonomy of the Catholic Church,” the Court
concluded that the interference with private and family life was not
disproportionate.
U.N. Secretary-General Urges Adoption of Laws
and Strategies to Address Human Rights of the Elderly (June 15, 2014)
On June 15, 2014, World Elder Abuse Awareness
Day, U.N. Secretary-General, Ban Ki-Moon called on “Member States to enact and enforce stronger laws and
strategies to address all aspects of this under-acknowledged social, public
health and human rights issue.” According to a press
release, “between four and six percent of older
persons worldwide have suffered from some forms of abuse.” The
Secretary-General underlined that “all human beings are all born with the right
to age with dignity, without being victim of any violence, nor abuse.”
U.N. General Assembly Adopts Resolution
Recognizing Right of Internally Displaced Refuges from Georgia’s Abkhazia,
Tskhinvali Regions to Return Home (June 5, 2014)
On June 5, 2014, the General Assembly adopted
Resolution 68/274 (draft only), which
“[r]ecognizes the right of return of all internally displaced persons and
refugees and their descendants, regardless of ethnicity, to their homes
throughout Georgia, including in Abkhazia and the Tskhinvali region/South
Ossetia.” According to a press release, the resolution was
adopted out of concern “about forced demographic
changes, as well as the humanitarian situation resulting from armed conflict in
Georgia.” The resolution was passed by recorded vote of 69 in favor, 13
against, and 79 abstentions.
Prosecutor of the ICC Publishes Policy Paper on Sexual and
Gender-Based Crimes (June 5, 2014)
On
June 5, 2014, the Prosecutor of the
International Criminal Court, FatouBensouda, published a Policy Paper on Sexual and Gender-Based Crimes. According to the press
release, the comprehensive policy paper will “guide
the Office of the Prosecutor in its work in fighting against impunity for
sexual and gender-based crimes, and promote transparency and clarity, as well
as predictability in the application of the legal framework of the Rome Statute
to such crimes.” The Policy Paper was promulgated following “a process of
extensive consultations, gathering input from staff in the Office, the
Prosecutor’s Special Gender Advisor, as well as a wide-range of other sources,
including States Parties, international organisations, civil society, academia
and individual experts.”
Pre-Trial Chamber II of the ICC Commits Bosco Ntaganda to Trial
(June 9, 2014)
On June 9, 2014, Pre-Trial Chamber II of the International
Criminal Court (the Court) unanimously confirmed the
charges against Bosco Ntaganda, the former alleged deputy chief of the staff of
the Forces Patriotiques pour la Libération du Congo(FPLC), and committed
him for trial before a Trial Chamber. Ntaganda is charged with eighteen counts
of war crimes and crimes against humanity, relating to the activities in Ituri
Province, Democratic Republic of the Congo, between August 2002 and December
2003.According to the press release, the
Court found that “as part of the widespread and systematic attack against the
non-Hema civilian population and in the context of the non-international armed
conflict, the crimes with which Bosco Ntaganda is charged were committed during
two specific attacks, in addition to war crimes committed by the UPC [Union des
PatriotesCongolais]/FPLC throughout the conflict.” The Chamber further found
that Ntaganda “bears individual criminal responsibility” pursuant to different
modes of liability under the Rome Statute,
including direct perpetration, indirect co-perpetration, and ordering.
Appeals
Chamber of the Mechanism for International Criminal Tribunals Denies Radovan
Stanković’s Appeal (May 21, 2014)
On May 21,
2014, the Appeals Chamber of the Mechanism for
International Criminal Tribunals (the Chamber) denied the
appeal of Radovan Stanković against the decision of the Referral Bench of
the International Criminal Tribunal for the Former Yugoslavia (ICTY) to dismiss
his request to return his case to the ICTY. Stanković, a former member of
the Miljevina battalion, was indicted by the ICTY in 1996 and faced charges of
crimes against humanity and violations of the laws or customs of war. The ICTY transferred his case to the Court of Bosnia
and Herzegovina (BiH) in 2005, the Appellate Panel of which sentenced him to 20
years' imprisonment. According to the press briefing, the Chamber “concluded that the
Referral Bench correctly considered it would be contrary to the Rule 11bis of
the Tribunal’s Rules of Procedure and
Evidence to revoke a referral order after the legal proceedings in the
State concerned have been completed.”
Russia,
Belarus, and Kazakhstan Sign Eurasian Economic Union Treaty (May 29, 2014)
On May 29,
2014, Russia, Belarus, and Kazakhstan signed the Eurasian Economic Union Treaty,
formally creating the Eurasian Economic Union. According to a press release, the treaty creates “a common
space where goods, services, capital and work force can move freely” and in
which “[t]he three states will follow a coordinated policy in such key branches
of the economy as energy, industry, agriculture and transport.” The treaty
will enter into force January 1, 2015.
U.N. Security Council
Considers Draft Resolution Authorizing Cross-Border Aid to Syria Without
Government Approval (May 29, 2014)
On May 29, 2014,
diplomats stated that the U.N. Security Council is considering a draft
resolution that would provide immediate cross-border aid in Syria without
government approval. The draft resolution comes shortly after the February passage
of Security Council Resolution
2139, which demanded “that all parties, in particular
the Syrian authorities, promptly allow rapid, safe and unhindered humanitarian
access . . . across conflict lines and across borders.” According to a news article, the draft resolution,
under Chapter 7, “would authorize
deliveries into Syria at specific points from Turkey, Iraq and Jordan to reach
millions of Syrians in opposition-held areas.”
U.S. Supreme Court Rules in Bond v. United
States (June 2, 2014)
On June 2, 2014, the U.S. Supreme Court ruled in Bond v. United
States that the Chemical Weapons
Convention Implementation Act of 1998 (the Act), which implements the Convention on the
Prohibition of the Development, Production, Stockpiling and Use of Chemical
Weapons and on their Destruction and makes a federal crime the use or possession
of a chemical weapon, did not apply to a “purely local” assault involving the use
of chemicals in Pennsylvania. Petitioner Carol Anne Bond, a microbiologist,
had spread toxic chemicals on the property of her husband’s mistress and
subsequently pled guilty to, inter alia, two counts of possessing and
using a chemical weapon in violation of § 229 of the Act. The Court ruled that
the Act, which contains no clear indication that it should intrude on State
responsibility over local criminal activity, “does not cover the unremarkable
local offense at issue.”
ICC Appeals Chamber Confirms Admissibility of
Case AgainstSaif Al-Islam Gaddafi (May 21, 2014)
On May 21, 2014, the Appeals Chamber of the International Criminal
Court (ICC) confirmed the decision of Pre-Trial Chamber I, declaring admissible the case against Saif
Al-Islam Gaddafi. According to the press release, “the
Appeals Chamber was of the view that the Pre-Trial Chamber did not err in
either fact or law when it concluded that Libya had fallen short of
substantiating, by means of evidence of a sufficient degree of specificity and
probative value, that Libya's investigation covers the same case that is before
the Court.” President Song wrote a separate opinion and Judge
Ušacka appended a dissenting opinion to the
judgment.
Senate in the Dominican Republic Unanimously Passes Bill For
Migrants’ Children (May 22, 2014)
On
May 22, 2014, the Senate in the Dominican Republic unanimously passed a bill
granting citizenship to Dominican-born children of immigrants. According to a news article, President Danilo Medina
proposed the bill due to international outcry over a September 2013 ruling (Spanish language only)
by the Constitutional Court of the Dominican Republic that denied citizenship
to Dominicans of Haitian descent. According to a news article, “[t]hose born between 1929 and 1997 with
proper documentation will be granted full citizenship; those born between 1997
and 2010 will need to apply for citizenship; and those born 2010 or later, or
those who have no legal documents, will be given the opportunity to apply for
naturalization after 10 years.” Given that the lower house has already
approved the bill, the law will enter into force when the bill is officially
published.
U.N.
Human Rights Experts Urge Governments to Adopt Legally Binding Treaty Against
Forced Labor (May 23, 2014)
On
May 23, 2014, independent United Nations human rights experts dealing with
issues of slavery, migrants, and trafficking called on governments to adopt a
legally binding treaty to address forced labor. According to a news article, the experts stressed
that “[a] legally binding protocol
is essential to fight forced labour and represents a crucial opportunity for
more coherent international action to advance the eradication of slavery-like
practices around the world.” According to new data released this week by a
U.N. International Labour Office report , nearly 21 million people are victims of forced labor today.
UK Court of Appeal Rules Wikileaks Cables Admissible in Chagos
Islands case (May 23, 2014)
On May 23, 2014, the UK Court of Appeal (the Court) delivered
the latest ruling in the
case brought by the Chagos Islanders, Bancoult v. Secretary of State for
Foreign and Commonwealth Affairs. The Court held that a “cable” sent by the
US Embassy in London to departments of the US Federal Government, the US
Embassy in Mauritius and to the US military, which was published on Wikileaks,
was admissible. The Court held, inter alia, that the provision of the Vienna Convention on
Diplomatic Relations, which renders certain diplomatic communications “inviolable,”
would not be breached by admitting the cable in evidence “since it had already
been disclosed to the world by a third party.”
ICC Trial Chamber Sentences Germain Katanga to
Twelve Years’ Imprisonment (May 23, 2014)
On May 23, 2014, Trial Chamber II of the International Criminal
Court (ICC) sentenced (French only) Germain Katanga to a total of twelve years’ imprisonment.
He was found
guilty (French only) in March 2014, as an accessory,
of one count of crimes against humanity and four counts or war crimes during
the attack on the village of Bogoro, in the Ituri district of the Democratic
Republic of the Congo. According to the press
release, “the Chamber stressed that the crimes
committed . . . in Bogoro were committed with particular cruelty” and that Mr.
Katanga “had made a significant contribution to the commission of the crimes.”
It also took account of Mr. Katanga’s “conduct after the events and, in
particular, his active participation in the demobilisation process implemented
in Ituri for the benefit of the child soldiers and, to a certain extent, of his
personal situation.”
Court of Justice of the European Union Restricts
Application of Ne Bis in Idem principle in Schengen Area (May 27, 2014)
On May 27, 2014, the Grand Chamber of the Court of Justice of
the European Union (the Court) decided (not yet available in English) the Zoran Spasic case, holding
that the rule found in Title III, Chapter
3, of the Convention
Implementing the Schengen Agreement (CISA), which
restricts the application of the nebis in idem principle to cases in
which the penalty imposed in a Member State has been enforced or is actually in
the process of being enforced, is not contrary to the Charter
of Fundamental Rights of the European Union. According to the press
release, the Court considered that “[t]he enforcement
condition laid down in the CISA does not call into question the nebis in
idem principle as such, since its only purpose is to avoid a situation in
which persons finally convicted in a Member State go unpunished.”
Grand Chamber of the European Court of Human Rights Upholds
Croatian Prosecution of War Crimes (May 27, 2014)
On May 27, 2014, the Grand Chamber of the European Court of
Human Rights (the Court) decided the case
of Marguš v. Croatia, declaring inadmissible the claim that that there
had been a violation of Article 4 of Protocol No, 7 (the right not to be tried
or punished twice) of the European Convention on
Human Rights (the ECHR) when Croatia convicted Marguš, a former commander of
the Croatian army,of war crimes in 2007, having granted him an amnesty in 1997
pursuant to the General Amnesty Act (unofficial translation). According to the press release, the
Court underlined that “where a State official was charged with crimes involving
torture or ill-treatment, it was of key importance that criminal proceedings
and sentencing were not time-barred and that the granting of an amnesty or
pardon should not be permissible.” The Court “concluded that “by bringing a
fresh indictment against MrMarguš . . . the Croatian authorities had acted in
compliance with the requirements of Articles 2 and 3 of the Convention and in a
manner consistent with the requirements and recommendations of . . .
international mechanisms and instruments.”
The Court also found that there had been no violation of Article
6 of the ECHR (the right to a fair trial) by virtue of the participation of the
same judge in both sets of proceedings and by the fact that Marguš was denied
the opportunity to make a closing argument.
IACHR Welcomes Military Justice Reforms in
Mexico (May 9, 2014)
On May 9, 2014, the Inter-American Commission on Human Rights (IACHR)
welcomed reforms to the Mexican Code of Military Justice that restrict the
scope of military jurisdiction over human rights cases. According to a press
release, “cases involving human rights violations
committed by members of the military against civilians will be tried
exclusively by the civilian justice system and not by military courts.” Mexico
has instituted these reforms in the wake of past recommendations issued by the
IACHR in its 1998
country report and four judgments previously issued by the
Inter-American Court of Human Rights.
Trial Chamber of Special Tribunal for the Lebanon Sets Date for
Resumption of Ayyash Trial(May 14, 2014)
On May 14, 2014, the Trial Chamber of the Special Tribunal for
the Lebanon (the Tribunal) issued an oral ruling setting June 18, 2014, as the
date for the resumption of the trial in the Prosecutor v Ayyash et al. case. The case
was adjourned on
February 25, 2014, following joinder of the Prosecutor
v. Merhicase to the Ayyash
et al. case. According to the press release, any
interlocutory appeal against the decision to resume must be filed within seven
days.
UK Supreme Court Decides Meaning of “Right to Custody” in Hague
Convention Case (May 15, 2014)
On May 15, 2014, the UK Supreme Court (the Court) held in the case of In the
Matter of K (A child) (Northern Ireland) that, under the terms of the Hague Convention on the
Civil Aspects of International Child Abduction (the
Convention) and the Brussels II Revised
Regulation, K’s mother had been wrong to remove K from Lithuania because
K’s grandparents enjoyed “rights of custody.” According to the press release, the
Court held that the phrase “rights of custody” in Article 3 of the Convention
should includeinformal, or “inchoate,” rights, “provided that the important
distinction between rights of custody and rights of access was maintained.”
Prosecutor v. MladićDefense
Case Commences at ICTY (May 19, 2014)
On May 19, 2014, Trial Chamber I of the U.N. International
Criminal Tribunal for the former Yugoslavia began hearing the defense case in Prosecutor
v. Ratko Mladić. According to news reports, the first
witness called by Ratko Mladić was Mile Sladoje, a former assistant
commander of a Serb battalion in Sarajevo, who “denie[d] ever being ordered by
Mr Mladic to target civilians in a sniping campaign during the three-year siege
of the city in which approximately 10,000 people were killed - most of them
Muslims.” Mr. Mladić is the former Commander of the Army of
RepublikaSrspka Main Staff and is charged with genocide and other crimes
committed in Bosnia and Herzegovina from May 1992 to late 1995.
IACHR Welcomes Recent Developments by Member
States to Protect and Promote Rights of Lesbian, Gay, Bisexual, Trans, and
Intersex Persons (May 20, 2014)
On May 20, 2014, the Inter-American Commission
on Human Rights (IACHR) welcomed the efforts of the Organization of American
States Member States in the past six months aimed at protecting and promoting
the rights of Lesbian, Gay, Bisexual, Trans and Intersex Persons (LGBTI).
According to a press release, recent developments
include reform relating to the police, the justice and penitentiary systems,
and political participation. The IACHR noted that such reforms occurred
“[n]otwithstanding the persistence of high levels of discrimination and
violence experienced by [LGBTI] persons
in the Americas.”
Intergovernmental World Nature Organization
(WNO) Treaty Enters into Force (May 1, 2014)
On May 1, 2014, the Intergovernmental World Nature Organization (WNO) treaty entered into force. The
treaty establishes the World Nature Organization, an intergovernmental
organization with the core objective of “promot[ing] sustainable development,
information and knowledge transfer among states, organizations and the economic
sector, as regards preserving the natural environment, environmentally-friendly
technologies, green economies, renewable energies, protection of resources,
protection of water, forest, air, oceans and climate.” According to a press release, the WNO founding
countries hope “to create a permanent, global and effective negotiation
platform.”
U.N. Issues Report Documenting International
Legal Crimes in South Sudan War (May 8, 2014)
On May 8, 2014, the United Nations Mission in
the Republic of South Sudan (UNMISS) issued a report, entitled “Conflict in
Southern Sudan: A Human Rights Report,” documenting international legal crimes
committed by both sides during the country’s civil war. The report, drawing on
more than 900 interviews with victims and witnesses, states that there are
reasonable grounds to believe that “gross violations of human rights and
serious violations of humanitarian law . . . have been perpetrated in the
context of the on-going conflict” in South Sudan. Such crimes may include
“extrajudicial killings, enforced disappearances, rape and other acts of sexual
violence, arbitrary arrests and detention, targeted attacks against civilians
not taking part in hostilities, violence aimed at spreading terror among the
civilian population, and attacks on hospitals as well as personnel and objects
involved in a peacekeeping mission.”
Caribbean
Court of Justice Grants Leave to Bring Challenge to Immigration Legislation
Prohibiting Entry of Homosexuals into Belize and Trinidad & Tobago (May 8,
2014)
On
May 8, 2014, the Caribbean Court of Justice (the Court) granted special leave to
commence proceedings pursuant to Article 222of the Revised Treaty of
Chaguaramas in the case of Tomlinson v. Belize and Trinidad & Tobago. According
to the press release, the application
“challenges the provisions of the Immigration Acts of Belize and Trinidad &
Tobago which prohibit the entry of homosexuals into the jurisdiction.” In
holding that Mr. Tomlinson, a Jamaican national, satisfied the requirement of
establishing prejudice under Article 222(b), the Court found, according to the executive summary, that “there is an
arguable case that the mere existence of the legislative provisions in question
amounts to prejudice, as demonstrated by the jurisprudence of the European
Court of Human Rights and the UN Human Rights Committee.”
Caribbean
Court of Justice Declares Guyana Customs Act Invalid (May 8, 2014)
On
May 8, 2014, the Caribbean Court of Justice (the Court) delivered its judgment in Rudisa Beverages
v. Guyana, declaring certain provisions of the Customs Act of Guyana inconsistent with the
free movement provisions in the Revised Treaty of
Chaguarmas (RTC). According to the press release, the Court held that
“Article 87 of the RTC imposed an absolute prohibition on import duties on
goods of Community origin” and thus precluded the provisions of the Customs Act
of Guyana that impose an environmental tax on all imported non-returnable
beverage containers but not on those made by Guyanese producers. According to
the executive summary, the Court rejected
Guyana’s reliance on its “inability to pass the necessary legislative
amendments,” holding that the “State was indivisible for the purposes of
liability and had an overarching responsibility to honour treaty obligations.”
European
Court of Human Rights Orders Turkey to Pay Cyprus €90,000,000 (May 12,
2014)
On May 12, 2014, the Grand Chamber of the
European Court of Human Rights (the Court) in Cyprus v. Turkeyordered Turkey to pay Cyprus
€90,000,000 (approximately $123,400,000) in relation to breaches of the
European Convention on Human Rights (ECHR). According to the press release, Turkey committed such
violations in the context of “military operations it had conducted in northern
Cyprus in July and August 1974, the continuing division of the territory of
Cyprus and the activities of the ‘Turkish Republic of Northern Cyprus.’”
Although the Court identified those breaches in its judgment of May 10, 2001, the
Court held that Cyprus’s claim for just satisfaction was not time-barred in
light of the fact that “no time-limits had been fixed for the parties to submit
their just satisfaction claims.”In relation to the applicability of Article 41
of the ECHR (just satisfaction) to an inter-State claim, the Court held that
“the overall logic of Article 41 of the Convention was not substantially
different from the logic of reparations in public international law” and thus
just satisfaction could be awarded “for the benefit of individual victims.”
Accordingly, the awarded amounts were “to be distributed by the Cypriot
Government to the individual victims under the supervision of the Committee of
Ministers.
Court
of Justice of the European Union Upholds “Right to be Forgotten” in Google Case
(May 13, 2014)
On May 13,
2014, the Grand Chamber of the Court of Justice of the European Union (the
Court) held in Google Inc. and
Google Spain v. González that the operators of search engines can be
obliged to erase, upon request, search results in the form of links that appear
when the requesting person’s name is searched. According to the press release, the Court held that “if
it is found, following a request by the data subject, that the inclusion of
those links in the list is, at this point in time, incompatible with [Directive 95/46/EC of the European
Parliament and of the Council of 24 October 1995], the links and information in
the list of results must be erased.” Directive 95/46/EC protects individuals
“with regard to the processing of personal data and on the free movement of
such data.” The Court held that inclusion would be incompatible with the
Directive “where, having regard to all the circumstances of the case, the data
appear to be inadequate, irrelevant or no longer relevant, or excessive in
relation to the purposes for which they were processed and in the light of the
time that has elapsed.”
Tunisia Withdraws Declaration and Reservations
to Convention on the Elimination of All Forms of Discrimination against Women(April
23, 2014)
On April 23, 2014, the U.N. Secretary-General
confirmed receipt of Tunisia’s
notification of withdrawal of its declaration and reservations with regard to
the Convention on the
Elimination of All Forms of Discrimination against Women. The Tunisian
government stipulated in the letter “that it shall not take any organizational
or legislative decision in conformity with the requirements of this Convention
where such a decision would conflict with the provisions of chapter I of the
Tunisian Constitution.” Tunisia ratified the Convention on
September 20, 1985.
EU Signs Marrakesh Treaty (April 30, 2014)
On April 30, 2014, the European Union signed the Marrakesh Treaty. According to the press release, the treaty
“facilitates access to published works for persons who are blind, visually
impaired, or otherwise print disabled.” Since the treaty was negotiated in June 2013, fifty-one states,
including four EU member states, have signed the Treaty.
ICC Dismisses Communication Seeking to Accept
Court’s Jurisdiction Over Egypt (May 1, 2014)
On May 1, 2014, the International Criminal Court
(ICC) dismissed a communication seeking jurisdiction with respect to alleged
crimes committed on Egyptian territory since June 1, 2013. According to the press release from the Office of the
Prosecutor, the communication was lodged by “lawyers acting on behalf of,
amongst others, the Freedom and Justice Party” on December 13, 2013 and
“purported to be signed on behalf of the Government of Egypt.” The Prosecutor
“determined that the purported declaration . . . was not submitted, as a matter
of international law, by any person with the requisite authority or bearing
‘full powers’ to represent the State of Egypt for the purpose of expressing the
consent of that State to the exercise of jurisdiction by the Court.”The
decision was communicated to the applicants by the Registrar, who also issued
a press release on the issue.
Constitutional Court of Colombia Finds That
Implementation of ICJ Decision Requires Treaty (May 2, 2014)
On May 2, 2014, the Constitutional Court of
Colombia ruled (Spanish only) that the Territorial and Maritime Dispute (Nicaragua v. Colombia)judgment by the International
Court of Justice (ICJ) could not take effect without a treaty between Colombia
and Nicaragua. According to a news article, in the judgment,
rendered in November 2012, the ICJ “reduced the area of ocean that belonged to
Colombia around its cluster of Caribbean islands, determining that a section of
their maritime shelf belonged to Nicaragua.” According to the article, the
Constitutional Court’s ruling “upholds the position taken by Colombian
President Juan Manuel Santos, who said the Hague-based ICJ’s decision was not applicable
according to Colombia’s constitution without such a treaty.”
UK High Court Rules that Detention Beyond
Ninety-Six Hours in Afghanistan was Illegal (May 2, 2014)
On May 2, 2014, the UK High Court issued its decision in Serdar Mohammed
v. Ministry of Defence, holding that the detention beyond ninety-six hours
of Serdar Mohammed (SM), who was captured by UK armed forces in Afghanistan in
2010, was unlawful and that, under Article 5 of the European Convention on
Human Rights (the Convention), the UK Government is liable to compensate him.
The Court reasoned that, although the original arrest and ninety-six-hour
detention of SM was lawful under authorizations given to the International
Security Assistance Force (ISAF) by United Nations Security Council
Resolutions, there was no legal basis for detaining beyond ninety-six hours
under either Afghan or international law. The Court concluded that
“[a]ccordingly, SM’s extended detention for a total of 106 days beyond the 96
hours permitted by ISAF policy was not authorised by the UN mandate under which
UK forces are present in Afghanistan and was contrary to Article 5 of the
Convention.” Further, the UK was not able to rely on an “act of state” defense
in relation to a claim brought under the Convention, Article 5(5) of which
“gives SM an ‘enforceable right to Compensation’ which the courts are required
to enforce.”
Palestine Accedes to Five Human Rights Treaties
(May 4, 2014)
On May 4, 2014, according to a U.N. press release, Palestine acceded to
five human rights treaties: The Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
The International Convention on the Elimination of All Forms of Racial
Discrimination; The Convention on the Elimination of All Forms of
Discrimination against Women; The Convention on the Rights of Persons with
Disabilities; and The Convention on the Rights of the Child. In
addition, Palestine will become party to The Convention on the Rights of the Child on May 7 and will join
both the International Covenant on
Economic, Social, and Cultural Rights and the International Covenant on Civil
and Political Rights on July 2. Palestine has acceded to all of the treaties without
reservations.
Vatican Appears Before U.N. Committee Against
Torture (May 6, 2014)
On May 6, 2014, according to a news article, the Vatican appeared
for the second day before the U.N. Committee Against Torture in Geneva. During
the hearings, the Vatican disclosed to the Committee that it had dismissed 848
priests in the past decade for sexual abuse of children and compensated victims
billions of dollars. Final committee observations are due on May 23, 2014.
U.S., U.K., France, China, and Russia Sign
Protocol to the Central Asian Nuclear-Weapon-Free-Zone Treaty (May 6, 2014)
On May 6, 2014, the United States, United
Kingdom, France, China, and Russia signed the Protocol to the Central Asian Nuclear-Weapon-Free
Zone (CANWFZ) Treaty.
According to a press release, “[t]he Protocol
provides legally-binding assurances not to use or threaten to use nuclear
weapons against CANWFZ treaty parties.” Five Central Asian states—Kazakhstan, Kyrgyzstan, Tajikistan,
Turkmenistan, and Uzbekistan—are party to the treaty, which prohibits
the states from “stationing of nuclear weapons within their territories.” The
U.S. is not eligible to become a party to the treaty itself, but as a Treaty on the Non-Proliferation of Nuclear
Weapons member state, it is eligible to join the Protocol.
U.N. Security Council Resolution Calls for
Recommitment to Fight Against Genocide (April 16, 2014)
On April 16, 2014, the U.N. Security Council
unanimously adopted Resolution 2150, which calls on States
“to recommit to prevent and fight against genocide, and other serious crimes
under international law.” The resolution “underscores the importance of taking
into account lessons learned from the 1994 Genocide against the Tutsi in Rwanda,
during which Hutu and others who opposed the genocide were also killed.” It
also “condemns without reservation any denial of this Genocide.”
ICC
Trial Chamber Summonses Witnesses and Requests Kenyan Cooperation in Ruto and
Sang Case (April 17, 2014)
On April
17, 2014, Trial Chamber V(A) of the International Criminal Court (the Court) granted, by majority, the
Prosecutor’s request to subpoena eight Kenyan witnesses to give evidence in the Prosecutor v. Samoei William Ruto and Joshua Arap Sang trial. According
to the press release, the Court considered
that States Parties to the Rome Statute “must be presumed to have created a
court with every necessary competence, power, ability and capability to
exercise its functions and fulfil its mandate in an effective way,” and so the
court must have the power to subpoena witnesses. Further, the Chamber also
reasoned that “the Government of Kenya has an obligation to cooperate fully
with the Court: by serving the subpoenas to the witnesses and by assisting in
compelling their attendance before the Chamber, by the use of compulsory
measures as necessary.” Judge Carbucciadissented, accepting that the
Trial Chamber has the power to issue summonses, but disagreeing with the
majority that the Government of Kenya has the legal obligation to enforce such
a summons.
Special
Tribunal for Lebanon Lifts Confidentiality On Decision to Charge Journalists
and Media Organizations with Contempt (April 24, 2014)
On
April 24, 2014, the Special Tribunal for Lebanon (the Tribunal) issued an order lifting
confidentiality on a decision of January 31, 2014
which directed that two journalists and two media organizations be charged with
contempt of court and obstruction of justice in relation to the Prosecutor
v. Ayyash et al. case under Rule 60 bis (A) of the Tribunal’s Rules
of Procedure and Evidence. According to the press release, “[t]he charges follow
an investigation into three events by an amicus curiae . . . who was
appointed by the Registrar on the request of the Contempt
Judge.” The charges relate to “publishing information on purported confidential
witnesses” which “may amount to interference with the administration of
justice, because it reduces the confidence of both actual witnesses and the public,
in the ability and the will of the Tribunal to protect its witnesses.” In the
same order, the Tribunal also lifted confidentiality on two summonses to appear. The accused are
scheduled to appear before the Tribunal for their initial appearances on May
13, 2014.
ICC
Prosecutor Opens Preliminary Examination in Ukraine After Acceptance of
Jurisdiction (April 25, 2014)
On
April 25, 2014, the Prosecutor of the International Criminal Court (the Court),
FatouBensouda, opened a preliminary examination of the situation in Ukraine.
According to the press release, on April 17, 2014,
Ukraine lodged a declaration under Article 12(3) of
the Rome Statute accepting the Court’s jurisdiction over alleged crimes
committed on its territory from November 21, 2013, to February 22, 2014. The
Prosecutor opened the preliminary examination as a “matter of policy” following receipt of
Ukraine’s declaration. The Prosecutor must now consider “whether the Rome
Statute criteria for opening an investigation are met,” including, under
Article 53(1) of the Rome Statute, “issues of jurisdiction, admissibility and
the interests of justice.”
Trial
Chamber of the Extraordinary Chambers in the Courts of Cambodia FindsKhieuSamphan
and NuonChea Fit to Stand Trial (April 25, 2014)
On
April 25, 2014, the Trial Chamber of the Extraordinary Chambers in the Courts
of Cambodia (ECCC) found, in two separate decisions, that KhieuSamphan and NuonChea are fit to stand trial
in Case 002/02. According to the press release, the ECCC “concluded that it was
satisfied that neither of the two accused is suffering from any mental or
physical impairment which would make them unable to participate meaningfully in
the proceedings of Case 002/02.” KhieuSamphan and NuonChea, both former Khmer Rouge leaders, are charged with
crimes against humanity, grave breaches of the Geneva Conventions and genocide.
OPCW-U.N. Joint Mission Urges Syria to Complete
Chemical Weapons Removal (April 27, 2014)
On April 27, 2014, the Joint Mission of the
Organization for the Prohibition of Chemical Weapons and the United Nations
(Joint Mission) called on the removal of
remaining chemical weapons in Syria. According to a U.N. news report, as the June 30, 2014
deadline approaches, almost “eight percent of Syria’s declared chemical weapons
material remains on its territory.” The Joint Mission stated that the remaining
material should be “removed in the shortest possible timeframe, despite the
difficult security situation.”
International Lawyers and Legal Experts Write
Open Letter to the United Nations on Humanitarian Aid in Syria (April 28, 2014)
On April 28, 2014, thirty-five international
lawyers and legal experts signed an open letter to the U.N. on
humanitarian aid to Syria. The letter states “that there is no legal barrier to
the UN directly undertaking cross-border humanitarian operations and supporting
NGOs to undertake them as well.” The letter also maintains that, despite
Security Council Resolution 2139 (2014), demanding humanitarian
access across conflict lines and borders, Syria’s government has refused
consent to cross-border aid, “causing millions to suffer.” According to a news article, on April 29, 2014, the
U.N. “rejected calls for it to deliver humanitarian aid across borders into
Syria without the approval of the government in Damascus, saying such
operations would be possible only under a stronger U.N. Security Council
Resolution.”