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

Spring 2014 Issue


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


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.” 

ASIl & International Judicial AcademyInternational Judicial Monitor
© 2014 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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