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
ILIB
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 here, here,
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."