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

Summer 2013 Issue


The Security Council and the Intervention Brigade: Some Legal Issues

Tribunal Establishes Initial Procedures for Review of Mass Bondholder Claims against Argentina 

Plurilateral Trade Negotiations: Supplanting or Supplementing the Multilateral Trading System?

Tunisia at a Crossroads: Drafting a New Constitution

Sustainable Fisheries and the Obligations of Flag and Coastal States: The Request by the Sub-Regional Fisheries Commission for an ITLOS Advisory Opinion 

The Climate and Clean Air Coalition to Reduce Short-Lived Climate Pollutants (CCAC)

Legality of Intervention in Syria in Response to Chemical Weapon Attacks

Energy Subsidies and the World Trade Organization


International Tribunal for the Law of the Sea
The M/V "Louisa" Case (Saint Vincent and the Grenadines v. Kingdom of Spain) (May 28, 2013)

Click here for judgment (approximately 47 pages); click here for press release (approximately 4 pages)

The International Tribunal for the Law of the Sea found in the M/V "Louisa" Case that it did not have jurisdiction to entertain the Application filed by Saint Vincent and the Grenadines.  The dispute arose out of the boarding, search and detention of the "Louisa," a vessel flying the flag of Saint Vincent and the Grenadines, by Spanish authorities in 2006. Saint Vincent and the Grenadines alleged that Spain had violated several articles of the Convention, including article 73 (Enforcement of laws and regulations of the coastal State), article 87 (Freedom of the high seas), article 226 (Investigation of foreign vessels), article 227 (Non-discrimination with respect to foreign vessels), and article 303 (Archaeological and historical objects found at sea). It also challenged the treatment of the crew members detained during the incident.  The Tribunal concluded "that no dispute concerning the interpretation or application of the Convention existed between the Parties at the time of the filing of the application and that, therefore, it has no jurisdiction rationemateriae to entertain the case before it."

International Criminal Tribunal for the former Yugoslavia
The Prosecutor v. JadrankoPrlic, Bruno Stojic, Slobodan Praljak, MilivojPetkovic, ValentinCoric and BerislavPusic (May 29, 2013)

Click here for press release (approximately 2 pages); click here for judgment summary (approximately 17 pages)

The International Tribunal for the former Yugoslavia convicted six former high-ranking officials from the wartime Croat entity of Herceg-Bosna for crimes against humanity, violations of the laws or customs of war, and grave breaches of the Geneva Conventions.  They were found guilty for their participation in a joint criminal enterprise "with the objective to remove the Muslim population from the territories on which the Bosnian Croat leadership with the leadership of Croatia wanted to establish Croat domination." The sentences imposed by the Tribunal ranged from ten to twenty-five years.  The Tribunal found that in addition to the six accused, a number of persons joined in and contributed to the joint criminal enterprise. According to the press release, the trial "has been one of the Tribunal's largest and most intricate cases," having heard evidence from over 500 witnesses and resulting in a judgment of over 2,600 pages.

President Obama Lifts Ban on the Transfer for Guantanamo Detainees to Yemen (May 23, 2013)

Click here for transcript (approximately 8 pages); Click here for news story (approximately 1 page)

In a speech on U.S. Counterterrorism strategy at the National Defense University on May 23, 2013, President Obama announced that he would lift the ban on transferring Guantanamo detainees to Yemen, and take other steps to close the Guantanamo facility.  He said: "Today, I once again call on Congress to lift the restrictions on detainee transfers from GTMO.  I have asked the Department of Defense to designate a site in the United States where we can hold military commissions.  I'm appointing a new senior envoy at the State Department and Defense Department whose sole responsibility will be to achieve the transfer of detainees to third countries. I am lifting the moratorium on detainee transfers to Yemen so we can review them on a case-by-case basis.  To the greatest extent possible, we will transfer detainees who have been cleared to go to other countries."

DC Circuit Affirms Denial of Habeas Corpus Petition in Al Warafi Case (May 24, 2013)

Click here for judgment (approximately 11 pages)

The DC Circuit affirmed the judgment of the district court denying Mukhtar Al Warafi's petition for a writ of habeas corpus.  A Guantanamo detainee, Al Warafi argued that the district court erred in not affording him the protection due to medical personnel under the First Geneva Convention and Army Regulation 190-8 and that he was therefore entitled to release. The DC Circuit found that the district court properly held that Al Warafi had not established that he was medical personnel, and accordingly affirmed the judgment below.

Final Report of the Truth, Justice and Reconciliation Commission of Kenya (May 3, 2013)

Click here for document (approximately 2210 pages in 4 volumes); click here for press release (approximately 1 page)

The Truth, Justice and Reconciliation Commission of Kenya (Commission) issued its final report.  The Commission's broad mandate was "to inquire into gross violation of human rights and historical injustices that occurred in Kenya from 12 December 1963 when Kenya became independent to 28 February 2008 when the Coalition Agreement was signed." The Commission found generally that Northern Kenya was the "epicenter of gross violations of human rights by state security agencies," that "historical grievances over land constitute the single most important driver of conflicts and ethnic tensions in Kenya," and that women and minority groups suffered state-sanctioned discrimination during the mandate period.

Examining the three presidential administrations during the mandate period, the Commission found gross violations of human rights in each period.  Between 1963 and 1978, President Jomo Kenyatta's government was responsible for gross violations of human rights including killings, torture, collective punishment and denial of basic needs, political assassinations, arbitrary detention of political opponents and activists, and illegal and irregular acquisition of land. During the period of 1978 to 2002, President Daniel ArapMoi's government was responsible for gross violations of human rights including massacres, unlawful detentions, systematic and widespread torture of political and human rights activists, assassinations, illegal allocations of land, economic crimes, and grand corruption. Finally, from 2002 to 2008, President MwaiKibaki's government was responsible for gross violations of human rights including unlawful detentions, torture and ill-treatment, assassinations and extra judicial killings, economic crimes, and grand corruption. 

Resolution on Provisional Measures with Respect to El Salvador in the Case of Beatriz (Inter-American Court of Human Rights) (May 29, 2013) 

Click here for document in Spanish (approximately 15 pages); click here for press release in Spanish (approximately 1 page); click here for news story in English (approximately 1 page).

The Inter-American Court of Human Rights issued a resolution stating that El Salvador must guarantee that a pregnant woman (using the name "Beatriz" to protect her identity) who had been diagnosed with lupus and who was carrying a baby with anencephaly receive the medical treatment necessary to save her life. Abortion is banned in El Salvador, and the resolution was issued after the Supreme Court of El Salvador rejected the woman's appeal to abort in this case. The substantive portion of the resolution reads: "[the Court resolves to] [r]equire the State of El Salvador to adopt and guarantee, in an urgent manner, all measures that are necessary and effective so that the medical team attending to Ms. B can adopt, without any interference, the medical measures that are considered opportune and convenient to ensure the proper protection of the rights enshrined in Articles 4 and 5 of the American Convention and, in this way, to avoid harm that could become irreparable to the rights to life and personal integrity and to the health of Ms. B." According to news sources, the woman was eventually given a premature Caesarean section and the infant died shortly after birth.

Versailles Court of Appeal (France)
AFPS and OLP v. Alstom and Veolia (March 22, 2013)

Click here for judgment in French (approximately 32 pages)

The Versailles Court of Appeal determined that two French companies engaging in the construction of a light rail system in the occupied West Bank in Israel did not violate international law. Two pro-Palestinian groups filed suit alleging that the contract's object or purpose was illicit because the State of Israel's motivation in the construction project was the continuance of illegal occupation in the West Bank, in violation of various international law provisions. The Court found that the international law norms could not create private rights of action in French courts, and because the Hague and Geneva Conventions only apply to State parties, they cannot apply directly to private companies. Some commentators have called this case a "European sister" to the American Kiobelcase.

Botswana and Germany Ratify Amendments on the Crime of Aggression and Article 8 (June 10, 2013)

Click here for press release (approximately 1 page)

Botswana and Germany have ratified amendments to the Rome Statute on the crime of aggression and on article 8 on war crimes. The amendments, adopted at the 2010 Review Conference of the Statute in Kampala, "define the crime of aggression and provide for the conditions for the exercise of jurisdiction over this crime." With Botswana and Germany, seven States have now ratified the amendments; thirty ratifications are required for the International Criminal Court to exercise jurisdiction over the crime of aggression.  Of note, Botswana is the first African state to ratify the amendments.

ICC Prosecutor receives referral by the Union of the Comoros on the vessel "Mavi Marmara" (May 14, 2013)

Click here for press release (approximately 1 page); click here for referral (approximately 18 pages)

The Union of the Comoros, a State Party to the International Criminal Court (ICC) since 2006, "transmitted a referral . . . with respect to the 31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for Gaza Strip," and requested the ICC Prosecutor, pursuant to Articles 12, 13, and 14 of the Rome Statute to "'investigate the crimes committed within the Court's jurisdiction, arising from this raid.'" In the statement released by the Court, the ICC Prosecutor, FatouBensouda, indicated that: "[i]n accordance with the requirements of the Rome Statute my office will be conducting a preliminary examination in order to establish whether the criteria for opening an investigation are met. After careful analysis of all available information, I shall make a determination that will be made public in due course."

Declaration of the 1st Ministerial Meeting of the Latin American States Affected by Transnational Interests (April 22, 2013)

Click here for document (approximately 3 pages); click here for news story

A ministerial meeting of twelve Latin American countries held in Guayaquil, Ecuador resulted in a new coalition "to coordinate actions to face the growing number of international legal suits being taken against governments by transnational companies."  Seven countries, including Ecuador, Bolivia, Cuba, Nicaragua, the Dominican Republic, St. Vincent and Grenadine, and Venezuela, adopted a declaration to form a conference of states affected by transnational interests.  Five other countries (Argentina, Guatemala, El Salvador, Honduras, and Mexico) attended the meeting and "will convey the results to their governments."

The signatories to the declaration agreed "[t]o support the constitution and implementation of regional organisms for settling investment disputes, to ensure fair and balanced rules when settling disputes between corporations and States." They also agreed to produce a proposal within three months to create an "International Observatory" to be mandated, among other things, to monitor international litigation on investment in regional and global instances, to study and seek reform of international arbitration, and to promote the creation of "mechanisms for coordination and mutual consultation between the judicial systems of Latin American States, to ensure the enforcement of domestic judicial decisions on disputes between States and transnational corporations." The signatories also agreed "[t]o establish the Executive Committee of the Ministerial Conference of Latin American States Affected by International Interests, whose role will be designing and implementing mutually supportive actions in the political and legal areas." The Committee will hold its next meeting within four weeks in Caracas, Venezuela.

Caribbean Court of Justice
British Caribbean Bank Ltd. v. The Attorney General of Belize (June 26, 2013)

Click here for press release (approximately 1 page); click here for judgment (approximately 28 pages)

The Caribbean Court of Justice (CCJ) overturned the Belize Court of Appeal and held that the British Caribbean Bank (BCB) had the right to proceed with arbitration in its dispute with the Government of Belize.  The case arose out of a dispute over the nationalization of Belize Telemedia Ltd., which owed the BCB $24 million USD in loans and mortgages. The BCB had attempted to use international arbitration to resolve the dispute, but "Belize requested and was granted by the domestic courts an injunction to halt the arbitration proceedings."  After an unsuccessful appeal to the Belize Court of Appeal, the BCB appealed to the CCJ "on the grounds that the courts erred in granting the injunction as BCB and the Government of Belize were both party to a clause that specifically provides for arbitration in the event of a dispute."

Mechanism for International Criminal Tribunals (MICT) to Begin Work in The Hague (June 21, 2013)

Click here for press release (approximately 1 page)

On July 1, 2013, a ceremony will be held at the seat of the International Criminal Tribunal for the former Yugoslavia to launch the Hague Branch of the Mechanism for International Criminal Tribunals (MICT). MICT is "mandated to carry out a number of essential functions of the International Criminal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) after the completion of their respective mandates."  The Arusha Branch of the MICT, which handles functions handed down from the ICTR, began functioning in July of 2012.

International Criminal Tribunal for the former Yugoslavia
Prosecutor v. Radovan Karadzic (July 11, 2013)

Click here for press release (approximately 2 pages); click here for judgment (approximately 57 pages)

The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia unanimously reversed Radovan Karadzic's acquittal for genocide in Bosnia and Herzegovina. Karadzic is the former President of RepublikaSrpska, head of the Serb Democratic Party, and Supreme Commander of the Bosnian Serb Army. He was charged with genocide, crimes against humanity, and violations of the laws or customs of war. 

In June of 2012, Trial Chamber III "upheld most of the charges against Karadzic but entered a judgment of acquittal in relation to Count 1 of the Indictment, which alleges that Karadzic was responsible for genocide through his participation in a joint criminal enterprise." The Trial Chamber applied Rule 98 bis of the Rules of Procedure and Evidence of the Tribunal and found that there was "'no evidence, even taken at its highest, which could be capable of supporting a conviction for genocide in the municipalities as charged under Article 4(3) of the Statute'."

The Appeals Chamber did not assess the credibility of the evidence against Karadzic, but rather considered the Trial Chamber's application of Rule 98 bis. It reviewed evidence of the infliction and types of bodily injuries suffered, and the living conditions imposed upon Bosnian Muslims and/or Bosnian Croats, as well as the statements of Karadzic that might point to genocidal intent.  The Appeals Chamber held that the Trial Chamber "erred by finding that evidence adduced by the Prosecution was incapable of proving certain types of genocidal acts" or that "Karadzic possessed relevant genocidal intent."  The case was thus remanded to the Trial Chamber.

Apotex Inc. v. United States of America (June 14, 2013) 
NAFTA Arbitration Tribunal

Click here for judgment (approximately 120 pages); Click here for State Department summary (approximately 1 page)

An Arbitral Tribunal, convened under Chapter 11 of the North American Free Trade Agreement and the Arbitration Rules of the United Nations Commission on International Trade Law, has issued an Award on Jurisdiction and Admissibility in the case between Apotex Inc. and the United States, dismissing all of the claims against the United States.

Apotex is a Canadian company that develops and manufactures generic drugs.  In order to market and sell its drug products in the United States, it must prepare and file applications with the U.S. Food and Drug Administration. Both claims in the arbitration proceeding "relate to the treatment said to have been accorded it by the USA, its agencies and Federal Courts, in the course of its efforts to bring new generic drugs to market in the United States."

Apotex alleged that the United States "committed errors in interpreting federal law," thus breaching its obligations under NAFTA including Article 1102 (national treatment) and Article 1105 (minimum standard of treatment). Apotex also claimed that "the challenged U.S. court and agency decisions expropriated Apotex's investments under NAFTA Article 1110."  The United States objected to the claims on the basis that Apotex did not qualify as an "investor" who made an "investment" within the scope of NAFTA Articles 1116 and 1139, that Apotex did not pursue available remedies within the U.S. court system rendering the judicial acts complained of not "final," and that the NAFTA time bar of Article 1116(2) applies.

The Tribunal found that Apotex's "activities with respect to the contemplated sales of its  . . . products in the United States are those of an exporter, not an investor." Further, "like any company that intends to export generic drug products to the United States," Apotex sought approval from the FDA, but "this process cannot change the nature of the underlying activity, or constitute an 'investment' in and of itself, within the meaning and scope of NAFTA Article 1139." Thus, the Tribunal found that it lacked jurisdiction over Apotex's claims, and dismissed them in their entirety.  It went on to hold that even if Apotex qualified as an investor who made an investment, the Tribunal lacks jurisdictionrationemateriae because Apotex failed to exhaust all local judicial remedies, and that the Tribunal had no jurisdiction rationetemporis because of the NAFTA time bar.

UN War Crimes Commission's Archive in ICC Legal Tools Database (July 4, 2013)

Click here for press release (approximately 1 page); click here for database

The ICC Legal Tools Database now makes available "virtually all" of the unrestricted records of the United Nations War Crimes Commission (UNWCC).  The archive, which includes 2,240 searchable documents, "shed[s] light on the historical origins of international criminal law." The UNWCC, active from 1943 to 1948, "played an important role in preparing the ground for war crimes trials in Nuremberg, Tokyo, and other locations following World War II."

UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (July 11, 2013) 

Click here for document (approximately 7 pages); click here for press release (approximately 2 pages)

Following nearly three years of negotiations in the United Nations Commission on International Trade Law (UNCITRAL) Working Group on Arbitration, UNCITRAL adopted the Rules on Transparency in Treaty-based Investor-State Arbitration. The Transparency Rules "will make arbitrations involving a state, initiated under an investment treaty, accessible to the public." The rules will come into effect on April 1, 2014, and "future treaties referring disputes arising thereunder to the UNCITRAL Arbitration Rules will be subject to the Rules on Transparency, unless the parties to the treaty agree otherwise." To ensure a clear link between the UNCITRAL Arbitration Rules and the Transparency Rules, a new paragraph has been added to the UNCITRAL Arbitration Rules which will also come into force on April 1, 2014. The new Transparency Rules are not limited to UNCITRAL Arbitration Rules proceedings, and are available for use in investor-State arbitrations under other rules or in ad hoc proceedings.  The amendment to the UNCITRAL Arbitration Rules will not apply to commercial arbitrations.

According to the press release, the new rules "represent a fundamental change from the status quo of arbitrations conducted outside the public spotlight. . . [and] provide a level of transparency and accessibility to the public of these disputes that is to date unprecedented."  The rules are "also innovative in their approach to balancing the public interest in an arbitration involving a State, and the interest of the disputing parties in a fair and efficient resolution of their dispute."

African Court on Human and People's Rights 
Tanganyika Law Society, The Legal and Human Rights Centre & Reverend Christopher Mtikila v. The United Republic of Tanzania (June 14, 2013)

Click here for judgment (approximately 58 pages); click here for separate opinions (approximately 24 pages in total)

On June 14, 2013, the African Court on Human and Peoples' Rights, in its first judgment on the merits of a case, decided The Tanganyika Law Society, The Legal and Human Rights Centre & Reverend Christopher Mtikila v. The United Republic of Tanzania. The Applicants claimed that Tanzania, through certain Constitutional amendments, had "violated its citizens' right of freedom of association, the right to participate in public/governmental affairs and the right against discrimination by prohibiting independent candidates to contest Presidential, Parliamentary and Local Government elections." They also alleged that Tanzania "violated the rule of law by initiating a constitutional review process to settle an issue pending before the courts in Tanzania."

The Court found that the Tanzanian Constitutional requirement that any electoral candidate must be affiliated with a political party violates the African Charter's provisions on non-discrimination, freedom of association, and the right to participate in public affairs. The Court rejected the Applicants' argument on the rule of law issue, however, holding that the Applicants failed to show a violated right. The Court ordered the Government of Tanzania to make the appropriate constitutional adjustments and to report back to the Court. It also gave the Applicants thirty days to make submissions on the harm suffered by the violations so that it could make a separate ruling on reparation. 

United States District Court for the District of Columbia
National Association of Manufacturers et al. v. Securities and Exchange Commission (July 23, 2013)

Click here for judgment (approximately 62 pages)

The United States District Court for the District of Columbia upheld a Securities and Exchange Commission (SEC) rule that requires companies to disclose whether any "conflict minerals" are used in their products. 

The SEC promulgated the rule pursuant to Section 13(p) of the Securities and Exchange Act of 1934, which was added by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.  According to the decision, quoting the statute and Congressional Record, Congress passed the relevant provisions of the Dodd-Frank Act because "'the exploitation and trade of conflict minerals originating in the [Democratic Republic of the Congo (DRC)] is helping to finance conflict characterized by extreme levels of violence in the eastern [DRC], particularly sexual and gender-based violence, and contributing to an emergency humanitarian situation.'" Congress determined that "requiring companies 'to make public and to disclose annually to the [SEC] if the minerals in their products originated or may have originated in Congo' will help 'to ensure activities involving such minerals did not finance or benefit armed groups.'"

As described in the decision, the challenged SEC Conflict Minerals Rule requires "reporting companies" to "conduct a 'reasonable country of origin inquiry' regarding their conflict minerals." If a possible link to the DRC or an adjoining country (including Angola, Burundi, Central African Republic, the Republic of the Congo, Rwanda, South Sudan, Tanzania, Uganda, and Zambia) is discovered, it mandates that companies must "exercise 'due diligence' in an effort to more definitively determine 'the source and chain of custody' of their conflict minerals." Under the rule, these findings must be reported to the SEC and published on the company's website.

The Plaintiffs, the National Association of Manufacturers, the Chamber of Commerce, and Business Roundtable, challenged the SEC rule as arbitrary and capricious under the Administrative Procedure Act, and argued that the requirement to publish conflict mineral disclosures on their own websites is compelled speech that violates the First Amendment of the U.S. Constitution.  The District Court found "no problems with the SEC's rulemaking" and disagreed that "the 'conflict minerals' disclosure scheme transgresses the First Amendment." As such, the District Court denied the Plaintiffs' motion for summary judgment and granted the Commission's (and intervening Amnesty International's) cross-motions for summary judgment.

American Bar Association House of Delegates Resolutions (August 13, 2013)

Click herehere, and here for documents (approximately 3 pages); click here for press release (approximately 2 pages)

The American Bar Association (ABA) House of Delegates, at its 2013 Annual Meeting in San Francisco, adopted three resolutions proposed by the Section on International Law. The first, 107A, "urges all countries, consistent with international law, not to apply statutes of limitation with respect to (1) genocide, (2) crimes against humanity, and (3) serious war crimes." The second, 107B, encourages "the establishment of a network" made up of federal and state judges to foster education and "permissible communication among judges regarding the interpretation and application of the 1980 Hague Convention on the Civil Aspects of International Child Abduction." The third resolution, 107C, "affirms that the U.S. common law doctrine of forum non conveniens is not an appropriate basis for refusing to confirm or enforce arbitral awards," if they are subject to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards or the Inter-American Convention on International Commercial Arbitration. The resolution also states that refusing to recognize awards based on forum non conveniens "is not consistent with U.S. treaty obligations under these Conventions and U.S. implementing legislation."

United States District Court for the Western District of Oklahoma
Awad v. Ziriax (August 15, 2013)

Click here for judgment (approximately 14 pages)

The United States District Court for the Western District of Oklahoma held that an Oklahoma state constitutional amendment that would have prohibited state court judges from considering international law or Sharia law when deciding cases is unconstitutional.

The proposed amendment, Oklahoma State Question 755 (SQ 755), was approved by 70.08% of Oklahomans in November, 2010. The Plaintiffs challenged the constitutionality of SQ 755, alleging that it violated the Establishment Clause and the Free Exercise Clause of the First Amendment to the United States Constitution. The Plaintiffs sought to enjoin the certification of the election results, and the District Court granted a preliminary injunction in 2010. The Defendants appealed to the Tenth Circuit, which affirmed the District Court's grant of a preliminary injunction on January 10, 2012. The Plaintiffs filed a complaint in the District Court on July 29, 2012, and the parties then "cross-moved for summary judgment on the sole issue in [the] case -- whether defendants should be permanently enjoined from certifying the election results for SQ 755."

The District Court held in favor of the plaintiffs on the merits. Because the defendants "failed to assert a compelling state interest," and thus did not satisfy strict scrutiny, the Court found "that the proposed amendment's references to Sharia law violate the Establishment Clause." Further, the Court found that "the unconstitutional Sharia law provisions are not severable from the remainder of the proposed amendment and the whole amendment must fall." Accordingly, the District Court permanently enjoined the defendants from certifying the election results for SQ 755.

ICTR Prosecutor Hands Over Last Case File to Rwanda (July 24, 2013)

Click here for press release (approximately 1 page)

Officials acting on behalf of The Prosecutor of the ICTR, Hassan B. Jallow, handed over the case file of Bernard Munyagishari to the Rwandan Prosecutor General's Office. The transfer follows the Appeals Chamber Decision of May 3, 2013, "to uphold a referral decision of the Trial Chamber which allowed for the transfer of the case to Rwanda following a successful application by the Prosecutor under Rule 11bis of the ICTR Rules of Procedure and Evidence." According to the press release, the transfer "marked the last of such transfers from the Office of the Prosecutor of the ICTR." Seven other cases have already been turned over to the Rwandan Prosecutor General. This transfer also "concluded a significant phase in the Tribunal's Completion Strategy."

New Under-Secretary-General for Legal Affairs and United Nations Legal Counsel Appointed (August 7, 2013)

Click here for news story (approximately 1 page)

United Nations Secretary-General Ban Ki-moon appointed Miguel de SerpaSoaresasUnder-Secretary-General for Legal Affairs and United Nations Legal Counsel. Mr. SerpaSoares, of Portugal, will replace Patricia O'Brien of Ireland. Among other posts, Mr. SerpaSoares has served as the Director General of the Department of Legal Affairs of the Ministry of Foreign Affairs of Portugal, as a member of the Permanent Court of Arbitration in The Hague, and as Legal Advisor to the Permanent Representation of Portugal to the European Union.

The Seventh Chautauqua Declaration (August 27, 2013)

Click here for document (approximately 2 pages)

The 7th Annual International Humanitarian Law Dialogs were held from August 25 to August 27, 2013, at the Chautauqua Institution in upstate New York. Organized under a theme of "The Long Hot Summer After the Arab Spring," the purpose of the 7th Annual Dialogs was to "consider, discuss, and reflect on the Arab Spring and the concerns related to accountability and the rule of law stemming from the conflicts that have caused thousands of deaths and millions displaced." The meetings culminated with the release of the Seventh Chautauqua Declaration, mutually signed by prosecutors FatouBensouda of the International Criminal Court, David M. Crane, formerly of the Special Court for Sierra Leone, Hassan Jallow of the International Criminal Tribunal for Rwanda, Serge Brammertz of the International Criminal Tribunal for the former Yugoslavia, and Brenda J. Hollis of the Special Court for Sierra Leone. Together, they call upon states and the international community to: first, prevent and condemn the use of weapons of mass destruction, including chemical weapons, and to ensure accountability for those that use them; second, to ensure accountability for the perpetrators of all crimes and to recognize victims, in particular those most vulnerable such as women and children; third, to provide sufficient resources to international criminal courts, tribunals, and residual mechanisms; and finally, to fulfill their obligations to locate, arrest and transfer all fugitives from international justice.

Inter-American Commission on Human Rights Precautionary Measure 259/13 - Detainees in the US Military Base in Guantanamo Extension (July 23, 2013)

Click here for document (approximately 1 page)

Acting on its own initiative, the Inter-American Commission on Human Rights (IACHR), on July 23, 2013, extended the scope of the precautionary measures it issued in favor of the detainees at Guantanamo. Precautionary measures have been in force since 2002, and given reports of the "persistence of situations of prolonged and indefinite detention, and allegations of widespread abuse and mistreatment," the IACHR requested specific information from the U.S. government on April 19, 2013. Although the U.S. government responded with submissions on July 11, 2013, the IACHR found that it failed "to provide detailed information in response to the specific questions posed." As such, taking into account the human rights obligations of the United States as a member State of the Organization of American States and the ongoing risk of irreparable harm to the detainees, the IACHR "has decided to . . . require the Government of the United States to proceed to immediately close the detention facilities at the Naval Station at Guantanamo Bay." The Extension also requires the United States to transfer detainees to their home or third countries, to release those who have already been cleared for transfer, and "to house in appropriate conditions and accord applicable due process rights to any detainees subject to trial."

Court of Justice of the European Union - Grand Chamber
Commission, Council, United Kingdom v. Yassin Abdullah Kadi (July 18, 2013)

Click here for press release (approximately 3 pages); click here for judgment (approximately 19 pages)

A Grand Chamber of the Court of Justice of the European Union has upheld the General Court's 2010 judgment invalidating an E.U. regulation implementing U.N. counter-terrorism measures against Yassin Abdullah Kadi.  

Colloquially referred to as "Kadi II," this is the second Court of Justice decision in response to Mr. Kadi's decade-long challenge to sanctions against him.  Its 2008 "Kadi I" decision invalidated the sanctions measures as violating Kadi's fundamental rights, since none of the information or evidence underlying the imposition of sanctions against him had been disclosed to him.  Following the Kadi I decision, the European Commission disclosed to Mr. Kadi the summary of reasons for imposition of sanctions provided to it by the U.N. Sanctions Committee and provided him an opportunity to respond, before re-imposing the sanctions.  

Mr. Kadi challenged the sanctions again, and in 2010, the General Court annulled the re-imposed sanctions against Mr. Kadi, concluding that, based on the Court of Justice's 2008 Kadi I judgment, it must ensure a full and rigorous review of the sanction measure and that the summary provided by the U.N. Sanctions Committee and in turn the European Commission was too vague to afford Mr. Kadi his rights of defense and judicial review.

On appeal, the Court of Justice departed from the General Court, concluding that the majority of the reasons relied on against MrKadi were sufficiently detailed and specific to allow effective exercise of the rights of the defense and judicial review of the sanctions.  Turning to the merits of those sanctions, however, the Court held that "since no information or evidence has been produced to substantiate the allegations, roundly refuted by Mr. Kadi, of his being  involved in activities linked to international terrorism, those allegations are not such as to justify the adoption, at European Union level, of restrictive measures against him."  The sanctions against Mr. Kadi had already been lifted in October 2012, following his delisting by the UN Sanctions Committee pursuant to a review by the Ombudsperson established to review the Sanctions List.  The judgment is nonetheless important as signaling that the Court will closely scrutinize sanctions imposed pursuant to the UN process and the standard of review that it will use in doing so.

Permanent Court of Arbitration 
The Republic of the Philippines v. The People's Republic of China (August 27, 2013)

Click here for press release (approximately 1 page)

The Arbitral Tribunal in the case brought by the Philippines against China issued its first Procedural Order on August 27, 2013. In the Order, the Tribunal adopted the Rules of Procedure and set a March 30, 2014 deadline for the Philippines to submit its Memorial. The arbitration concerns a dispute between the Philippines and China over the maritime jurisdiction of the Philippines in the West Philippine Sea. On February 19, 2013, China "presented the Philippines with a diplomatic note in which it described 'the Position of China on the South China Sea issues,' and rejected and returned the Philippines' Notification." In response to the Tribunal's invitation to comment on the draft Rules of Procedure to govern the arbitration, "China addressed a Note Verbale to the Permanent Court of Arbitration in which it reiterated its position that 'it does not accept the arbitration initiated by the Philippines' and stated that it was not participating in the proceedings."

Government Appeals Bangladesh Life Sentence for GhulamAzam (August 12, 2013)

Click here for news story (approximately 2 pages)

According to the Daily Star, the Government of Bangladesh appealed the life sentence given to Islamist GhulamAzam by the International Crimes Tribunal Bangladesh. On July 15, 2013, he was convicted of murder, conspiracy, and incitement and complicity to genocide for his role in collaborating with the Pakistani authorities during the 1971 war. During his sentencing, the tribunal reportedly "concluded that a death sentence would have been appropriate for the charges" but he was given a prison term due to his advanced age. The appeal seeks the imposition of the death penalty in the case,arguing that the tribunal "had acted beyond the law by not awarding the death penalty to GhulamAzam even though all the charges brought against him were proved beyond doubt."

International Court of Justice
Certain Activities carried out by Nicaragua in the Border Area (Costa Rica/Nicaragua) and Construction of a Road in Costa Rica along the San Juan River(Nicaragua/Costa Rica) (July 16, 2013)

Click here for order (approximately 13 pages); click here for dissenting opinion of Judge CançadoTrindade  (approximately 20 pages); click here for dissenting opinion of Judgead hoc Dugard  (approximately 4 pages); click here for press release (approximately 12 pages)

The International Court of Justice issued an order in the case between Nicaragua and Costa Rica regarding their joined disputes over certain activities allegedly carried out by Nicaragua in a border area and construction of a road in Costa Rica along the San Juan River.  The Court found, by fifteen votes to two, that "the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power to modify the measures indicated in the Order of 8 March 2011." In its March 8, 2011, Order (the Order) in the Certain Activities carried out by Nicaragua in the Border Area case (Certain Activities case), the Court had ordered, inter alia, that each Party "refrain from sending to, or maintaining in the disputed territory, including the caño, any personnel, whether civilian, police or security," and that "Costa Rica may dispatch civilian personnel charged with the protection of the environment to the disputed territory, including thecaño, but only in so far as it is necessary to avoid irreparable prejudice being caused to the part of the wetland where that territory is situated." The Court reaffirmed those measures, particularly "the requirement that the Parties 'shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.'" 

According to the press release, both parties requested modification of the Order.  Costa Rica requested further provisional measures, arguing that Nicaragua was sending a large number of people to the disputed area who were affecting the territory and its ecology.  The Court denied Costa Rica's request on the ground that, though a change had occurred in the situation, the conditions for modification of the measure of the Order had not been fulfilled.  Nicaragua requested modification of the Order because of the construction of a 160-km long road along the San Juan River, and because the Court had joined the proceedings in the case concerning the Construction of a Road in Costa Rica along the San Juan River.  The Court denied Nicaragua's request on the grounds that the Court had already determined that provisional measures were unnecessary in the San Juan River case, the construction of the road had no bearing on the Certain Activities case, and the joinder of the two proceedings had not brought about a change in the situation.

In his dissent, Judge CançadoTrindade argued that new provisional measures were necessary and that the majority suffered from an "ineluctable congruence," namely, that it recognized a change in the situation but saw no consequences for this change given that the conditions for modification of the Order had not been fulfilled.  He reasoned that the "changing circumstances" in the present cases warranted the Court's "exercise of its powers to indicate new provisional measures in order to face the new situation, which is one of urgency and of probability of irreparable harm, in the form of bodily injury or death of the persons staying in the disputed area."  In his separate dissent, Judge ad hocDugard wrote that "the Court should have acceded to Costa Rica's request for modification of the Order of 2011 to make it clear that the presence of [the NicaraguanGuardabarranco Environment Movement] or similar bodies, belonging to either Nicaragua or Costa Rica, is contrary to the Order of 8 March 2011."

The Supreme Court of the Netherlands
The State of the Netherlands v. HasanNuhanovic and The State of the Netherlands v. MehidaMustafic-Mujic et al. (Sept. 6, 2013)

Click here for The State of the Netherlands v. HasanNuhanovic judgment (approximately 37 pages); Click here for The State of the Netherlands v. MehidaMustafic-Mujic et al. judgement (approximately 35 pages); click here for press release (approximately 2 pages)

The Supreme Court of the Netherlands (the Court) has issued two judgments upholding separate judgments of the Hague Court of Appeal finding the Dutch State (the State) responsible for the death of certain Muslims from Srebrenica.  According to the press release, both cases concern the actions of the Dutch battalion (Dutchbat), part of the United Nations Protection Force, immediately after the fall of the Srebrenica enclave on July 11, 1995.  In the first case, HasanNuhanovic, a United Nations employee in the Dutchbat compound in Potocari, was on the list of local personnel who could be evacuated with Dutchbat.  Though his father, mother, and brother had also sought refuge in the compound, they were forced to leave because they were not on the list. They were ultimately murdered by the Bosnian-Serb army or related paramilitary groups. In the second case, RizoMustafic, an electrician working under Dutchbat authority in the Potocari compound, along with his wife and children was forced to leave the compound because the family was not on the list.  Mustafic was subsequently murdered by the Bosnian-Serb army or related paramilitary groups.

Both HasanNuhanovic and the family of RizoMustafic brought separate suits against the State, arguing that Dutchbat had acted wrongfully in sending their family members away from the compound.  Though the District Court rejected both plaintiffs' applications for relief on the ground that Dutchbat's conduct was exclusively attributable to the United Nations, the Court of Appeal set aside the lower court judgments on the ground that the State was responsible for the wrongful conduct of Dutchbat.  The Court found that public international law allowed conduct to be attributed to the State because it had effective control over Dutchbat's conduct, and further that such conduct was wrongful.  According to the press release, the Court also rejected the State's argument in favor of judicial restraint, reasoning that "there would be virtually no scope for the courts to assess the conduct of a troop contingent in the context of a peace mission. According to the Supreme Court, this is unacceptable. However, a court that assesses the conduct of a troop contingent in retrospect must make allowance for the fact that the decisions in question were taken under great pressure in a war situation."

U.S. District Court for the Southern District of New York 
Corporación Mexicana de Mantenimiento Integral v. Pemex-Exploración y Producción (August 27, 2013)

Click here for judgment (approximately 32 pages)

The U.S. District Court for the Southern District of New York confirmed an arbitral award done in Mexico, despite the fact that the award had been nullified by a Mexican Court. The arbitration between the subsidiary of a Texan company and an instrumentality of Mexico was conducted in Mexico City according to the rules of the International Chamber of Commerce. The award, worth nearly four hundred million U.S. dollars, was confirmed in the U.S. District Court for the Southern District of New York. The respondent instrumentality of Mexico appealed to the Second Circuit Court of Appeals and filed proceedings in the Mexican Eleventh Collegiate Court on Civil Matters to nullify the award.

In September 2011, the Eleventh Collegiate Circuit nullified the award, holding "that arbitrators are not competent to hear and decide cases brought against the sovereign, or an instrumentality of the sovereign, and that proper recourse of an aggrieved commercial party is in the Mexican district court for administrative matters." Resultantly, the Second Circuit Court of Appeals remanded the case to the District Court to address the effect that the nullification should have on the judgment confirming the award.

The District Court declined to defer to the Mexican court's ruling, and held that "the Eleventh Collegiate Circuit decision violated basic notions of justice in that it applied a law that was not in existence at the time the parties' contract was formed." The U.S. District Court therefore reconfirmed the award.

Venezuelan Denunciation of the American Convention on Human Rights Takes Effect(September 10, 2013)

Click here for press release (approximately 2 pages)

On September 10, 2012, the Secretary General of the Organization of American States received a formal notice of denunciation of the American Convention on Human Rights on behalf of the government of Venezuela.  The denunciation took effect on September 10, 2013 pursuant to Article 78(1) of the American Convention. In a statement issued by the Inter-American Commission on Human Rights, "[t]he Commission reiterates its deep concern over the consequences of the denunciation's entry into force, namely that any human rights violations that take place in Venezuela after September 10, 2013, may not be analyzed by the Inter-American Court of Human Rights." The Commission "calls on Venezuela to reconsider this decision."

International Criminal Tribunal for the former Yugoslavia
Prosecutor v. Vojislav Šešelj (September 3, 2013)

Click here for decision (approximately 10 pages); click here for press release (approximately 1 page)

A special Chamber convened by order of the Vice-President of the International Criminal Tribunal for the former Yugoslavia (ICTY) has, by two to one, upheld a defense motion for disqualification of Judge FrederikHarhoff from the Prosecutor v. Vojislav Šešelj case. The disqualification is based on a letter that Harhoff wrote dated June 6, 2013, which the special Chamber found demonstrated an unacceptable appearance of bias in favor of conviction.  In the letter, which became publicly available through the media and the Internet, Judge Harhoff criticized a number of recent ICTY Appeals Chamber and Trial Chamber Judgments, and claimed that the President of the Tribunal was exerting pressure on his colleagues in deliberations. In his dissent, Judge Liu noted that the letter was "undoubtedly improper" but considered that he was "not persuaded in the present circumstances that a reasonable, informed observer would reasonably apprehend bias on the part of Judge Harhoff in favour of conviction based on the [l]etter."

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

Editor: James G. Apple.
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