The Arctic Sunrise and
NGOs in International Judicial Proceedings<
U.S. Implementation of Adverse WTO Rulings: A Closer Look at the Tuna-Dolphin, COOL, and Clove Cigarettes Cases
Legality of Intervention in Syria in Response to Chemical Weapon Attacks
Sustainable Fisheries and the Obligations of Flag and Coastal States: The Request by the Sub-Regional Fisheries Commission for an ITLOS Advisory Opinion
Tunisia at a Crossroads: Drafting a New Constitution
Tribunal Establishes Initial Procedures for Review of Mass Bondholder
Claims against Argentina
ILIB
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 Kiobel case.
United States Court of
Appeals for the Armed Forces
United States v.
Hutchins (June 26, 2013)
Click
here for judgment (approximately 41 pages); Click
here for news story (approximately 1 page)
The Court of Appeals for the Armed Forces
set aside the findings and sentence of Sgt. Lawrence Hutchins III and held that
the military judge erred in denying a defense motion to suppress Hutchins’s
statements made to the Naval Criminal Investigative Service (NCIS) when, in
violation of his Fifth Amendment rights, the NCIS reinitiated communication
with him notwithstanding his prior request for assistance of counsel. Hutchins
had been convicted of making a false official statement, unpremeditated murder,
larceny, conspiracy to commit larceny, false official statements, murder, and
obstruction of justice, and he was sentenced to an eleven-year sentence in
connection with the death of a retired Iraqi policeman. The record in his case
“is returned to the Judge Advocate General of the Navy for referral to an
appropriate convening authority who may authorize a rehearing.”
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 ratione materiae to entertain the case before it.”
International Criminal
Tribunal for the former Yugoslavia
The Prosecutor v.
Jadranko Prlić, Bruno Stojić, Slobodan Praljak, Milivoj Petković,
Valentin Čorić and Berislav Pušić (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.
International Criminal
Tribunal for the former Yugoslavia
Prosecutor v. Radovan
Karadžić (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
Karadžić’s acquittal for genocide in Bosnia and Herzegovina. Karadžić
is the former President of Republika Srpska, 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 Karadžić but entered a judgment of
acquittal in relation to Count 1 of the Indictment, which alleges that Karadžić
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 Karadžić, 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 Karadžić 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
“Karadžić possessed relevant genocidal intent.” The case was thus
remanded to the Trial Chamber.
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.”
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 delivered its first
judgment on the merits in the case of 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,
holding that the applicant 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 30 days to make
submissions on the harm suffered by the violations so that it could make a
separate ruling on reparation. This case has implications for numerous African
countries where independent candidates for election are not allowed.
NAFTA Arbitration
Tribunal
Apotex Inc. v. United
States of America (June 14, 2013)
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 jurisdiction ratione
materiae because Apotex failed to exhaust all local judicial remedies, and
that the Tribunal had no jurisdiction ratione temporis because of the
NAFTA time bar.
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.
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.
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.
Supreme
Court of the United States
Agency for International Development et al. v. Alliance for Open Society
International (June
20, 2013)
Click here for
judgment (approximately 25 pages)
In Agency for International
Development et al. v. Alliance for Open Society International, Inc., et al., the Supreme Court ruled, by seven to two, that a portion of the United States
Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 violated the
First Amendment because it required that no federal funds may be used by an
organization “that does not have a policy explicitly opposing prostitution and
sex trafficking” (the requirement). The majority held that the requirement
“compel[led] as a condition of federal funding the affirmation of a belief that
by its nature cannot be confined within the scope of the Government program.”
The majority reasoned that the requirement would effectively force
organizations into the position of advocating for a certain belief, “then turn
around and assert a contrary belief, or claim neutrality, when participating in
activities on its own time and dime.” In his dissenting opinion, Justice
Scalia, joined by Justice Thomas, argued that the requirement did not violate
the First Amendment because it was it was “nothing more than a means of
selecting suitable agents to implement the Government’s chosen strategy to
eradicate HIV/AIDS.”
The respondents in this case were “a
group of domestic organizations engaged in combating HIV/AIDS overseas.” They
feared that adopting a policy explicitly opposing prostitution would alienate
them with certain foreign governments and diminish the effectiveness of their
work with prostitutes in the fight against HIV/AIDS.
The Supreme Court of the
Netherlands
The State of the
Netherlands v. Hasan Nuhanović and The State of the Netherlands v.
Mehida Mustafić-Mujić et al. (Sept. 6, 2013)
Click here for The State of the
Netherlands v. Hasan Nuhanović judgment (approximately 37 pages);
Click here for The State of the
Netherlands v. Mehida Mustafić-Mujić 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, Hasan Nuhanović, a United Nations
employee in the Dutchbat compound in Potočari, 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, Rizo
Mustafić, an electrician working under Dutchbat authority in the Potočari
compound, along with his wife and children was forced to leave the compound
because the family was not on the list. Mustafić was subsequently
murdered by the Bosnian-Serb army or related paramilitary groups.
Both Hasan Nuhanović and the family
of Rizo Mustafić 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.”
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 Cançado Trindade (approximately 20 pages); click here for dissenting opinion
of Judge ad 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 the caño, 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 Cançado Trindade
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 hoc Dugard
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
Nicaraguan Guardabarranco Environment Movement] or similar bodies,
belonging to either Nicaragua or Costa Rica, is contrary to the Order of 8
March 2011.”
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 Mr Kadi
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."
U.S. Court of Appeals
for the Second Circuit
Blue Ridge Investments
v. Republic of Argentina (August 19, 2013)
Click here for opinion
(approximately 19 pages)
The U.S. Court of Appeals for the Second
Circuit affirmed a District Court ruling that Argentina had waived its immunity
under the implied waiver and arbitral award exceptions to the Foreign Sovereign
Immunities Act (FSIA). Blue Ridge Investments, L.L.C. had filed to confirm a
2005 arbitration award that an International Centre for Settlement of
Investment Disputes (ICSID) tribunal had entered in the amount of $133.2
million plus interest. The District Court denied Argentina's motion to dismiss
on, inter alia, the ground of foreign sovereign immunity.
After finding that it had jurisdiction to
consider the District Court's FSIA decision, the Court of Appeals found that
Argentina implicitly waived immunity by ratifying the Convention on the
Settlement of Investment Disputes between States and Nationals of Other States
(ICSID Convention) because Article 54 of the Convention requires a Contracting
State to recognize and enforce an arbitration award. The Court also held that
the arbitral award exception applied to awards under the ICSID Convention
because the ICSID Convention satisfies the treaty requirements of the
exception, and because the United States and Argentina are both parties to the
ICSID Convention. The Court of Appeals remanded the case to the District Court
for further proceedings consistent with its opinion.
U.S. Court of Appeals
for the Second Circuit
Balintulo et al. v.
Daimler AG et al. (August 21, 2013)
Click here for opinion
(approximately 26 pages)
The Second Circuit held that the U.S.
Supreme Court's June 2013 decision in Kiobel v. Royal Dutch Petroleum bars the Alien Tort Statute claims against Ford, Daimler, and IBM for allegedly
aiding and abetting the apartheid regime in South Africa. The plaintiffs had
claimed that defendants "sold cars and computers to the South African
government, thus making the defendants, their parent companies, liable for the
apartheid regime's innumerable race-based depredations and injustices,
including rape, torture, and extrajudicial killings." Reasoning that
"the Kiobel decision, combined with the opportunity to move for
dismissal in the District Court, provides an adequate ground for dismissing all
remaining claims," the Court denied defendants' petition for a writ of
mandamus and vacated the stay it had placed on proceedings in the District
Court.
Constitutional Court of
the Dominican Republic
Judgment
TC/0168/13 (September 23, 2013)
Inter-American
Commission on Human Rights -- Denunciation (October 8, 2013)
Click here for judgment
(approximately 147 pages in Spanish); Click here for IACHR statement
(approximately 2 pages)
The Inter-American Commission on Human
Rights expressed deep concern over a recent ruling of the Constitutional
Court of the Dominican Republic which upheld a 2010 constitutional amendment
excluding the Dominican-born children of undocumented Haitian migrants from
Dominican citizenship. According to a news report, the Constitutional
Court additionally ordered retroactive application of the amendment,
instructing authorities to commence an audit of all birth records dating back
to June 1929 so as to determine who, under the amendment, is not entitled to
Dominican citizenship. According to the press release, the IACHR reiterated
its appeal to the Dominican Republic to respect the “the right to the
nationality of the state in whose territory he was born if he does not have the
right to any other nationality” as provided for in the American Convention on
Human Rights.
Court of Justice of the
European Union
Leyla Ecem Demirkan v.
Bundesrepublik Deutschland (September 24, 2013)
Click here for Judgment
(approximately 7 pages); click here for press release
(approximately 2 pages)
The Court of Justice of the European
Union has ruled that, according to the press release, "Turkish nationals
do not have the right to enter the territory of an EU Member State without a
visa in order to obtain services." Leyla Ecem Demirkan, a Turkish
national whose application for a German visa had been denied, argued that the visa
requirement violated the "standstill" clause of 1970 Additional
Protocol (Protocol) to the 1963 European Economic Community-Turkey Association
Agreement (Agreement). The aim of the Agreement was to, inter alia,
"promote the continuous and balanced strengthening of trade and economic
relations between the contracting parties," and the "standstill"
clause in the Protocol "prohibit[ed] the contracting parties from
introducing new restrictions on freedom to provide services with effect from
the date of its entry into force." The case was appealed to the
Oberverwaltungsgericht (Higher Administrative Court) Berlin-Brandenburg, which
in turn asked the Court of Justice to clarify the scope of the
"standstill" clause.
According to the press release, the Court ruled that the Protocol "does
not preclude the introduction, after its entry into force, of a visa
requirement where the purpose of the visit is to obtain services."
The Court reasoned that the notion of "freedom to provide services"
in the "standstill" clause "does not encompass passive freedom
of provision of services, namely the freedom for Turkish nationals who are the
recipients of services to visit a Member State in order to obtain
services." In making this determination, the Court differentiated the
purely economic purpose of the Agreement from that of EU Treaties on Member
State Nationals.
Court of Justice of the
European Union
Pinckney v. KDG
Mediatech AG (October 3, 2013)
Click here for Judgment
(approximately 5 pages); click here for press release
(approximately 2 pages)
The European Court of Justice (ECJ), on
October 3, 2013, issued a judgment in the Pinckney v. KDG Mediatech AG case.
The ECJ has qualified a general rule that courts have jurisdiction to hear a
dispute either in the Member State where the defendant is domiciled or the
Member State where the alleged harmful event occurred. Mr. Pinckney, a
resident of France, discovered that an Austrian company, without his authority,
had reproduced songs from his album and that companies from the United Kingdom
were marketing the songs on websites accessible from Mr. Pinckney’s home.
Mr. Pinckney brought a copyright infringement action against the Austrian
company in French court. The company moved to dismiss, arguing that only Austria
(country of defendant’s domicile) or the UK (country where the alleged
infringement occurred) would have jurisdiction. In interpreting Article
5(3) of Council Regulation (EC) No 44/2001 on Jurisdiction and the Recognition
and Enforcement of Judgments in Civil and Commercial Matters, the Court ruled
that, when a Member State protects infringement of copyrights, the courts of
that State have “jurisdiction to hear an action to establish liability brought
by the author of a work against a company established in another Member State
and which has, in the latter State, reproduced that work on a material support
which is subsequently sold by companies established in a third Member State
through an internet site also accessible with the jurisdiction of the court
seised.” In such circumstances, however, the “court has jurisdiction only to
determine the damage caused in the Member State within which it is situated.”
Court of Justice of the
European Union
Bundesrepublik
Deutschland v. Kaveh Puid (November 14, 2013)
Click here for judgment
(approximately 4 pages); click here for press release
(approximately 2 pages)
The Grand Chamber of the European Union
Court of Justice (ECJ) ruled in the case of Bundesrepublik Deutschland v.
Kaveh Puid that, according to the press release, “[w]here a Member State
may not transfer an asylum seeker to the State competent to examine his
application because of a risk of infringement of his fundamental rights in the
latter, the Member State is required to identify another Member State as responsible
for the examination.” The ECJ further found that “a finding that it is
impossible to transfer an asylum seeker to the Member State initially
identified as responsible does not in itself mean that the Member State which
is determining the Member State responsible is required itself . . . to examine
the application for asylum.” In the case, Mr. Puid, an Iranian national who
arrived in Germany irregularly by transiting through Greece, had initially been
denied his application for asylum in Germany on the ground that Greece was the
Member State competent to examine the application. Puid brought an action in
German court seeking the annulment
of the denial and an order that Germany assume responsibility for his asylum
application; the German court ruled in favor of Puid on the ground that
Germany was required to rule on the application in light of the conditions in
Greece related to reception of asylum seekers and processing of asylum
applications. It is now for the Hessischer Verwaltungsgerichtshof (Higher
Administrative Court, Land of Hesse, Germany) to dispose of the appeal from the
lower court’s ruling in accordance with the ECJ’s decision.
Court of Justice of the
European Union
X, Y, and Z v. Minister
voor Immigratie en Asiel (November 7, 2013)
Click here for judgment
(approximately 8 pages); click here for press release
(approximately 2 pages)
The European Court of Justice ruled that, according to the press release, “[h]omosexual
applicants for asylum can constitute a particular social group who may be
persecuted on account of their sexual orientation.” According to European
Council Directive 2004/83/EC, a refugee is anyone who “owing to well-founded
fear of being persecuted for reasons of race, religion, nationality, membership
of a particular social group or political opinion, is outside the country of
his nationality and is unable or, owing to such fear, is unwilling to avail
himself of the protection of that country.” Three nationals of Sierra Leone,
Uganda, and Senegal had sought refugee status in the Netherlands—claiming a
well-founded fear of being persecuted in their countries of origin because of
their sexual orientation—and the Dutch Raad van State (Council of State) had
asked the Court of Justice about the assessment of applications for refugee
status under the provision of the Directive. The Court held that not all
violations of the fundamental rights of a homosexual applicant for asylum will
necessarily reach the sufficient level of seriousness to constitute
persecution, though “a term of imprisonment which accompanies a legislative
provision which punishes homosexual acts may constitute an act of persecution
per se, provided that it is actually applied.”
European Court of Human
Rights
Delfi v. Estonia (October 10, 2013)
Click here for Judgment
(approximately 25 pages); click here for press release
(approximately 3 pages)
A Chamber of the European Court of Human
Rights ruled in Delfi AS v. Estonia on October 10, 2013, that
holding an Estonian Internet news portal liable for offensive comments posted
by a reader did not violate the right to freedom of expression pursuant to
Article 10 of the European Convention on Human Rights. According to the
press release, the Court held that the finding of liability was “a justified
and proportionate restriction on the portal’s right to freedom of expression”
given that “the comments were highly offensive; the portal failed to prevent
them from becoming public, profited from their existence, but allowed their
authors to remain anonymous; and, the fine imposed by the Estonian courts was
not excessive.” The Chamber judgment is not final.
European Court of Human
Rights
Janoweic and Others v.
Russia (October 21, 2013)
Click here for Judgment
(approximately 63 pages); click here for press release
(approximately 5 pages)
The Grand Chamber of the European Court
of Human Rights ruled in the Janoweic and Others v. Russia case
brought by relatives of victims the Katyń massacre—the killing of more
than 20,000 prisoners of war in the wake of the Red Army’s invasion of Poland
in 1939—who argued that Russia had not carried out an effective investigation
into their relatives’ deaths while displaying a dismissive attitude towards
their requests for information. The Court first found that it was not
competent under Article 2 (right to life) of the European Convention on Human
rights to examine the adequacy of an investigation into events occurring before
the Convention began its existence in 1950. The Court also held that
there was no violation of Article 3 (prohibition on inhuman or degrading
treatment) because the death of the prisoners of war had become established
historical fact by the time Russia adopted the Convention. However, the
Court ruled that Russia had failed to furnish necessary facilities for
examination of the case, pursuant to Article 38, when it failed to provide the
Court with a 2004 top-secret classified decision to discontinue the Katyń
investigation.
European Court of Human
Rights
Del Río Prada v.
Spain (October
21, 2013)
Click here for Grand Chamber
Judgment (approximately 47 pages); click here for press release
(approximately 5 pages)
On October 21, 2013, the Grand Chamber of
the European Court of Human Rights ruled in the case of Del Río
Prada v. Spain that Spain violated Article 7 (no punishment
without law) and Article 5 § 1 (no unlawful detention) of the European
Convention on Human Rights. According to the press release, Ms. Inés del
Río Prada, who was convicted of perpetrating multiple terrorist attacks between
1982 and 1987, had complained that a new sentencing approach adopted by the
Supreme Court after her sentencing resulted in the date of her release being
postponed by almost nine years. The Grand Chamber ordered Spain to
release Ms. del Río Prada at the earliest date possible and to pay her 30,000
euros in non-pecuniary damages and 1,500 euros in costs and expenses.
European Court of Human
Rights
Söderman v. Sweden (November 12, 2013)
Click here for judgment
(approximately 36 pages); click here for press release
(approximately 4 pages)
The Grand Chamber of the European Court
of Human Rights ruled in Söderman v.
Sweden that Sweden violated Article 8 (right to respect for private life)
of the European Convention on Human Rights when it failed to protect a minor
against a violation of her personal integrity. According to the press release, Eliza Söderman, who in
2002 was fourteen years old, had been secretly filmed naked by her stepfather.
Her stepfather was ultimately acquitted of charges of sexual molestation by a
Swedish appeals court on the grounds that the molestation provision did not
cover the act and that Swedish law did not generally prohibit the filming of an
individual without his or her consent. The Grand Chamber ruled that the act
committed by Söderman’s “stepfather had violated [Söderman’s] integrity and had
been aggravated by the fact that she was a minor, that the incident took place
in her home, and that the offender was a person whom she was entitled and
expected to trust.” The Court held that Sweden was to pay Söderman €10,000 in
nonpecuniary damages and €29,700 in costs and expenses.
Caribbean Court of
Justice
Shanique Myrie v. The
State of Barbados (October 4, 2013)
Click here for Judgment
(approximately 60 pages); click here for press release
(approximately 1 page)
The Caribbean Court of Justice has
awarded Jamaican national Shanique Myrie Bds$2,240 in pecuniary damages and
Bds$75,000 in non-pecuniary damages to be paid by the State of Barbados.
According to the press release, the Court “found that Ms Myrie had been
wrongfully denied entry into Barbados, subjected to a humiliating cavity search
and unlawfully detained overnight in a cell and expelled from Barbados.” In
making its ruling, the Court held that Caribbean Community (CARICOM) nationals
“are entitled to enter CARICOM Member States, without harassment or the
imposition of impediment, and stay for up to six months.”
International Court of
Justice
Request for
Interpretation of the Judgment of 15 June 1962 in the Case concerning the
Temple of Preah Vihear (Cambodia v. Thailand) (November 11, 2013)
Click here for judgment
(approximately 39 pages); click here for press release
(approximately 5 pages)
The International Court of Justice issued
a Judgment in the case concerning
the Request for Interpretation of the Judgment of 15 June 1962 in the Case
concerning the Temple of Preah Vihear (Cambodia v. Thailand). According to
the press release, the ICJ declared
unanimously “that the Judgment of 15 June 1962 decided that Cambodia had
sovereignty over the whole territory of the promontory of Preah Vihear, as
defined in paragraph 98 of the present Judgment, and that, in consequence,
Thailand was under an obligation to withdraw from that territory the Thai
military or police forces, or other guards or keepers, that were stationed
there.” The Temple of Preah Vihear is situated on a promontory of the same
name in the Dangrek range of mountains, which generally constitutes the
boundary between Cambodia to the south and Thailand to the north. The Judgment
comes in the wake of several decades of dispute between the two countries
regarding the territory surrounding the temple, including a number of armed
incidents which had prompted the United Nations Security Council to call for a
permanent ceasefire in February 2011.
International Criminal
Court
Prosecutor v. Saif
Al-Islam Gaddafi and Abdullah Al-Senussi (October 11, 2013)
Click here for decision
(approximately 152 pages); click here for press release
(approximately 3 pages)
Pre-Trial Chamber I of the International
Criminal Court has held that the case against Abdullah Al-Senussi is
inadmissible. The Court ruled that the same case “is currently subject to
domestic proceedings being conducted by the competent authorities of
Libya—which has jurisdiction over the case—and that Libya is not unwilling or
unable genuinely to carry out its proceedings in relation to the case against
Mr Al-Senussi.” The Chamber noted that if the Prosecutor is “fully
satisfied that new facts have arisen which negate the basis on which the case
had previously been found inadmissible,” she may submit a request for review of
the decision.
International Criminal
Court
Prosecutor v. William
Samoei Ruto and Joshua Arap Sang (October 25, 2013)
Click here for Judgment
(approximately 27 pages); click here for press release
(approximately 3 pages)
On October 25, 2013, in the Prosecutor
v. William Samoei Ruto and Joshua Arap Sang case, the Appeals Chamber
of the International Criminal Court ruled that, according to the press release,
“the absence of an accused person from trial is permissible under exceptional
circumstances if the accused has explicitly waived his right to be present at
trial.” The Trial Chamber thus unanimously reversed the decision of Trial
Chamber V(a), conditionally granting William Samoei Ruto’s request to be
excused from being physically present continuously throughout the trial, with
the exception of a number of sessions including the opening and closing
statements as well as the victims’ presentation of their views and concerns. The
Appeals Chamber held that the Trial Chamber had interpreted its discretion too
broadly and thus may make a new decision on the matter in light of the Appeals
Chamber’s criteria. Ruto is currently serving as Deputy President of
Kenya and is accused of being criminally responsible for crimes against
humanity.
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 Frederik Harhoff 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."
Special Court for Sierra
Leone
Prosecutor v. Charles
Taylor (September 26, 2013)
Click here for Judgment
(approximately 349 pages); click here for press release
(approximately 2 pages)
The Appeals Chamber of the Special Court
for Sierra Leone (SCSL) has unanimously upheld the conviction of former
Liberian President Charles Taylor on eleven counts of war crimes and crimes
against humanity, and affirmed the fifty-year sentence imposed by the Trial
Chamber. In April 2012, an SCSL Trial Chamber had found Taylor guilty of
aiding and abetting crimes that the Revolutionary United Front (RUF) and the
Armed Forces Revolutionary Council rebel forces had committed against Sierra Leone's
civilian population over a five-year period, as well as planning, with RUF
Battlefield Commander Sam Bockarie, crimes that rebel forces committed during
the attack on Freetown in January 1999.
According to the press release, the
Appeals Chamber found that the Trial Chamber had properly applied the standard
of proof of beyond a reasonable doubt. The Appeals Chamber also
"dismissed Defence challenges to findings of fact, saying that the findings
were reasonable in light of the Trial Chamber's careful and cautious approach
to the evaluation of the evidence." The Appeals Chamber held that the
Trial Chamber "had relied on a combination of direct, circumstantial and
hearsay evidence in reaching its findings, and that none of its findings were
based on uncorroborated hearsay evidence." The Appeals Chamber also
concurred in the Trial Chamber's finding Taylor had a substantial effect on the
rebels' capacity to implement its operational strategy and to carry out attacks
on civilians.
Special Tribunal for
Lebanon Indicts Hassan Habib Merhi (October 10, 2013)
Click here for Order on Partially
Lifting the Confidentiality of the Indictment (approximately 4 pages); click here for redacted public
Indictment (approximately 35 pages); click here for press release
(approximately 2 pages)
A Pre-Trial Judge of the Special Tribunal
for Lebanon (STL) has partially lifted the confidentiality on its July 2013
decision to confirm an indictment against Hassan Habib Merhi. According to the
press release, the confirmed indictment and an arrest warrant were transmitted
to the Lebanese authorities so that they could search for Merhi, arrest him,
and transfer him to STL custody. Merhi is accused of being criminally
responsible for the attack in Beirut that killed former Prime Minister Rafik
Hariri on February 14, 2005.
International Centre for
Settlement of Investment Disputes
ConocoPhillips
Petrozuata B.V. et al v. Bolivarian Republic of Venezuela (September 3, 2013)
Click here for decision
(approximately 142 pages)
The ICSID Arbitral Tribunal issued a
partial ruling in the dispute between ConocoPhillips and Venezuela regarding
the latter's 2007 taking of ConocoPhillips oil assets located in the country.
ConocoPhillips submitted the dispute to ICSID in 2007 pursuant to Article 36 of
the ICSID Convention, basing its claims on the Venezuelan Law on the Promotion
and Protection of Investments and the 1991 Agreement on Encouragement and
Reciprocal Protection of Investments between the Kingdom of the Netherlands and
the Republic of Venezuela (BIT). ConocoPhillips claimed Venezuela's 2007
actions violated both Venezuelan law and the BIT, effecting an unlawful
expropriation (or equivalent measures) of ConocoPhillips investments, evidencing
a failure to accord those investments "fair and equitable treatment"
and "full protection and security," and constituting "arbitrary
and discriminatory measures impairing the use and enjoyment of its investments
in Venezuela." ConocoPhillips requested that Venezuela pay damages to
ConocoPhillips for its breaches of the law and BIT, as well as arbitration
costs and expenses and other relief the Tribunal considers appropriate.
The Tribunal determined that under
Article 9 of the BIT it had jurisdiction over most of ConocoPhillips' claims,
though not as to its claim regarding the loss of future tax credits, which it
dismissed accordingly. The Tribunal further found that Venezuela breached its
obligation under Article 6(c) of the BIT "to negotiate in good faith for
compensation for its taking of the ConocoPhillips assets. . . ." Damages,
costs, and expenses of the Tribunal will be determined in an additional
proceeding; ConocoPhillips has provisionally claimed that Venezuela owes over
$30.3 billion, while Venezuela claims that compensation should be limited to
$570.5 million.
Permanent Court of
Arbitration
Chevron Corporation and
Texaco Petroleum Company v. The Republic of Ecuador (September 17, 2013)
Click here for document
(approximately 76 pages); click here for press release
(approximately 2 pages)
A tribunal convened at the Permanent
Court of Arbitration ruled that former settlement agreements protected Chevron
from paying to Ecuador a $19 billion fine for polluting the Amazon basin
region. According to the press release, the tribunal, which was convened under
the authority of the U.S.-Ecuador Bilateral Investment Treaty and under the
United Nations Commission on International Trade Law (UNCITRAL) Rules,
"found that the Settlement and Release Agreements that the Government of
Ecuador entered into with [Texaco Petroleum Company (TexPet)] in 1995 and 1998
released TexPet and its affiliates of any liability for all public interest or
collective environmental claims." The Tribunal further found that: "1)
Chevron and TexPet are 'Releasees' under the 1995 Settlement Agreement and the
1998 Final Release; 2) Chevron can invoke and enforce its contractual rights as
a Releasee; and 3) the Government settled all public interest or collective
environmental claims, including collective claims asserted by third
parties."
National Commissioner of
the South African Police Service v. Southern African Human Rights Litigation
Centre (South African Ct. App.) (November 27, 2013)
Click here for judgment
(approximately 41 pages)
On November 27, 2013, South Africa’s
Supreme Court of Appeal held in National Commissioner of the South African
Police Service v. Southern African Human Rights Litigation Centre that the
South African Police Service (SAPS) is empowered to investigate alleged crimes
against humanity committed in Zimbabwe against Zimbabwean nationals “whether or
not the alleged perpetrators are present in South Africa.” In so doing, the
Court of Appeals reversed the North Gauteng High Court’s May 2012 ruling in
favor of the SAPS’s decision not to investigate torture as a crime against
humanity committed by Zimbabwean police and officials against Zimbabwean
citizens in Zimbabwe. The Court of Appeals held that the SAPS is “required to
initiate an investigation under the Implementation of the Rome Statute of the
International Criminal Court Act 27 of 2002 into the alleged offences,” though
it noted it is “not for [the] court to prescribe to the [SAPS] Commissioner how
the investigation is to be conducted” and that “the SAPS will consider issues
such as the gathering of information in a manner that does not impinge on
Zimbabwe’s sovereignty.” The Court also noted that this case was the first in
which the question of South Africa’s competence to investigate crimes against
humanity has arisen directly.
In the Matter of KL (A
Child) (United Kingdom S.Ct.) (December 4, 2013)
Click here for judgment
(approximately 16 pages)
On December 4, 2013, the Supreme Court of
the United Kingdom unanimously ruled in In the Matter of KL (A Child) that UK
courts have inherent jurisdiction to order the return of a child. The case
concerned a child, K, who had been born in Texas to an American father and a
Ghanaian mother with indefinite leave to remain in the UK. After the parents
divorced and K was taken to the UK with his mother pursuant to U.S. federal
district court order, the U.S. Court of Appeals for the Fifth Circuit reversed
and the lower court later ordered K’s return to the United States. The
father’s subsequent applications under the Convention were dismissed by both
the UK’s High Court and Court of Appeal. According the Supreme Court, “[u]nder
the Family Law Act 1986, the High Court has power to exercise its inherent
jurisdiction in relation to children by virtue of the child’s habitual
residence and presence here.” The Court thus allowed the father’s appeal and
ordered the return of K to the United States “on the basis of the undertakings
offered by [K’s] father.”
Ali v. Obama (D.C. Cir.)
(December 3, 2013)
Click here for judgment
(approximately 23 pages)
In Ali v. Obama, the federal appeals
court in Washington, DC denied the petitioner’s writ of habeas corpus petition,
holding that “determining whether an individual is part of Al-Qaeda, the
Taliban, or an associated force almost always requires drawing inferences from
the circumstantial evidence, such as that individual’s personal associations.”
In March 2002, the petitioner was captured in Pakistan while staying at a
guesthouse of Abu Zubayadah (an ally of Osama bin Laden), declared an enemy
combatant, and subsequently detained at Guantanamo Bay.
The petitioner denied any involvement
with Al-Qaeda and challenged the proof of his alleged involvement. The court
held that “as in any criminal or civil case, there remains a possibility that
the contrary conclusion is true—in other words—that Ali was not part of Abu Zubayadah’s
force. But the preponderance standard entails decisions based on the more
likely conclusion. In our judgment, the evidence here demonstrates that Ali
more likely than not was part of Zubaydah’s force. The President therefore has
authority to detain Ali under the 2001 Authorization for Use of Military
Force.”
The “Arctic Sunrise”
Case (Kingdom of the Netherlands v. Russian Federation) (ITLOS) (November 22,
2013)
Click here for opinion
(approximately 25 pages)
On November 22, 2013, the International
Tribunal for the Law of the Sea (Tribunal), according to the press release, “ordered that the
vessel Arctic Sunrise and all persons detained in connection with the dispute
be released and allowed to leave the territory and maritime areas under the
jurisdiction of the Russian Federation upon the posting of a bond in the amount
of 3.6 million euros.” On October 21, 2013, the Netherlands submitted a
request to the Tribunal for the prescription of provisional measures under
article 290 of the United Nations Convention on the Law of the Sea in its dispute
with Russia over the arrest and detention of the vessel Arctic Sunrise—an
icebreaker which flies the flag of the Netherlands and is operated by
Greenpeace International—and its crew by authorities of the Russian
Federation. The Tribunal also ordered the Parties to submit initial reports
detailing their compliance with the provisional measures not later than
December 2, 2013, and authorized the President “to request further reports and
information as he may consider appropriate after that report.” According to a
news report, the Russian Foreign Ministry has issued a statement that the
Tribunal has “no jurisdiction over its criminal prosecution” of the thirty
Arctic Sunrise crew members.
Prosecutor v. Uhuru
Muigai Kenyatta (ICC) (November 26, 2013)
Click here for decision
(approximately 12 pages)
On November 26, 2013, Trial Chamber V(b)
of the International Criminal Court reconsidered its previous decision excusing
the accused from continuous presence at trial in the Prosecutor v. Uhuru Muigai
Kenyatta case in light of an October 2013 Judgment of the Appeals Chamber on
the same issue in the Prosecutor v. William Samoei Ruto and Joshua Arap Sang
case. According to the press release, the majority, Judge
Eboe-Osuji dissenting, held that “as a general rule, Mr Kenyatta must be
present at trial,” and that “any future requests to be excused from attending
parts of the trial will be considered on a case-by-case basis.” Mr. Kenyatta
is charged with five counts of crimes against humanity (murder, deportation or
forcible transfer, rape, persecution, and other inhumane acts) allegedly
committed during the post-election violence in Kenya in 2007–2008.
Prosecutor v. William
Samoei Ruto & Joshua Arap Sang (ICC Appeals Chamber) (December 13, 2013)
Click here for judgment
(approximately 14 pages)
On December 13, 2013, a majority of the
Appeals Chamber of the International Criminal Court dismissed the Prosecutor’s
appeal relating to the temporal scope of charges in The Prosecutor v. William
Samoei Ruto and Joshua Arap Sang case. According to the press release, in January 2012,
Pre-Trial Chamber II confirmed the charges against the two accused for, inter
alia, crimes against humanity allegedly committed between January 1, 2008 and
January 4, 2008 in the greater Eldoret area in Kenya. In July 2013, after the
Trial Chamber was constituted and had set the date for commencement of trial
for September 2013, the Prosecutor sought an amendment to the temporal
framework of the charges in the greater Eldoret area to include December 30 and
31, 2007. The Pre-Trial Chamber denied the motion on the ground that such an
amendment “would unduly compromise the rights of the accused persons.”
A majority of the Appeals Chamber
affirmed, ruling that, pursuant to Article 61(9) of the Rome Statute of the
ICC, once the trial has commenced, it is no longer possible to amend or to add
to the charges. The Appeals Chamber thus concluded that the appeal was inadmissible
given that in September 2013 opening statements were made and first witness was
heard. Judge Ušacka dissented, reasoning “that the Prosecutor sought an
amendment of the charges before the commencement of trial” and thus “the
Prosecutor’s appeal should have been considered on the merits.”
Prosecutor v. Grégoire
Ndahimana (ICTR Appeals Chamber) (December 16, 2013)
Click here for judgment
(approximately 102 pages)
On December 16, 2013, the Appeals Chamber
of the International Criminal Tribunal for Rwanda delivered a judgment in the
Prosecutor v. Grégoire Ndahimana case. According to the press release, the Appeals Chamber
“set[] aside some of the Trial Chamber’s findings and increas[ed] the sentence
of 15 years of imprisonment imposed on Mr. Ndahimana by the Trial Chamber to a
sentence of 25 years of imprisonment.” The Appeals Chamber affirmed
Ndahimana’s convictions for genocide and extermination as a crime against
humanity “for failing to punish his subordinates from the Kivumu communal
police for the killings perpetrated at Nyange Church on 15 April 1994” as well
as extermination as a crime against humanity “for the killings perpetrated at
Nyange Church on 16 April 1994.” Ndahimana will remain in the United Nations
Detention Facility in Arusha, Tanzania, until transfer to the country where he
will serve his sentence.
Prosecutor v. Šainović
et al. (ICTY Appeals Chamber) (January 23, 2014)
Click here for judgment
(approximately 824 pages)
On January 23, 2014, the Appeals Chamber
of the International Criminal Tribunal for the former Yugoslavia partially
granted the appeals of both the Defence and the Prosecution in the Prosecutor
v. Šainović et al. case. According to the press release, the Appeals Chamber reduced the sentences of
Nikola Šainović, Sreten Lukić, and Vladimir Lazarević, while
affirming the sentence of Nebojša Pavković. The Appeals Chamber also
concluded, Judge Tuzmukhamedov dissenting, that “specific direction” is not an
element of the aiding and abetting mode of liability. The accused are “four
Serbian senior officials from the political, military, and police establishment
of the Federal Republic of Yugoslavia . . . and Serbia.”
Frédéric Hay v. Crédit
agricole mutuel de Charente-Maritime et des Deux-Sèvres (ECJ) (December 12,
2013)
Click here for judgment
(approximately 5 pages)
On December 12, 2013, the Court of
Justice of the European Union ruled in Frédéric Hay v Crédit agricole mutuel de
Charente-Maritime et des Deux-Sèvres that, according to the press release, “[e]mployees who enter
into a civil partnership with a partner of the same sex must be granted the
same benefits as those granted to their colleagues upon their marriage, where
marriage is not possible for homosexual couples.” Mr. Hay, who had entered
into a PACS arrangement (civil solidarity pact) with his same-sex partner, was
an employee of Crédit agricole mutuel, which grants certain benefits—days of
special leave and a salary bonus—to employees on the occasion of their
marriage. Hay was refused those benefits on the ground that they were granted
only upon marriage and subsequently challenged the refusal in French court.
The Cour de cassation “asked the Court of Justice whether the difference in
treatment for persons who have entered into a PACS arrangement with their
same-sex partner constitutes discrimination based on sexual orientation, which
is prohibited under EU rules on employment relations,” specifically Article
2(2)(a) of Council Directive 2000/78/EC of 27 November 2000 establishing a
general framework for equal treatment in employment and occupation. In making
its ruling, the Court reasoned that the refusal to grant such benefits
“constitutes direct discrimination based on sexual orientation.”
Nnamdi Onuekwere v.
Secretary of State for the Home Department & Secretary of State for the
Home Department v. M.G. (ECJ) (January 16, 2014)
Click here and here for judgments
(approximately 11 pages combined)
On January 16, 2014, the Court of Justice
of the European ruled in the joint cases of Nnamdi Onuekwere v. Secretary of
State for the Home Department and Secretary of State for the Home Department v.
M.G. on the effect of periods of imprisonment upon the right of citizens of the
Union and their family members to move and reside freely within the territory
of the Member States, pursuant to Directive 2004/38/EC of the European
Parliament and of the Council of 29 April 2004. According to the press release, the Court ruled that
“[p]eriods in prison cannot be taken into account for the purposes of the
acquisition of a permanent residence permit or with a view to the grant of
enhanced protection against expulsion.” Similarly, with regard to a provision
of Directive 2004/38/EC that an expulsion decision may not be taken against an
EU citizen who has resided in the host Member State for the previous ten years
unless on imperative grounds of public security, the Court ruled that “a period
of imprisonment is, in principle, capable both of interrupting the continuity
of the period of residence . . . and of affecting the decision regarding the
grant of the enhanced protection” from expulsion.
X v. Latvia (ECHR Grand
Chamber) (November 26, 2013)
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(approximately 54 pages)
On November 26, 2013, the Grand Chamber
of the European Court of Human Rights ruled, by nine votes to eight, in X v.
Latvia that Latvia had violated Article 8 (right to respect for private and
family life) of the European Convention on Human Rights (European Convention)
because its courts had not considered an arguable allegation of “serious risk”
to a child when ordering the child’s return to Australia, her country of
origin. According to the press release, the Grand Chamber
ruled that, in ordering the return of the child pursuant to the Hague
Convention on the Civil Aspects of International Child Abduction of 25 October
1980 (Hague Convention), the Latvian courts had failed to apply the European
Convention and Hague Convention “in a combined and harmonious manner.” Citing
the United Nations Convention on the Rights of the Child, the Grand Chamber also
reaffirmed “that the best interests of the child had to be the primary
consideration.” In a joint dissenting opinion, eight judges reasoned that the
Latvian courts “adequately responded to the [child’s mother’s] arguments and
that the examination of the claims made by the applicant satisfied the
procedural requirements imposed on them by Article 8 of the Convention.”
Vilnes and Others v.
Norway (ECHR) (December 5, 2013)
Click here for judgment
(approximately 83 pages)
On December 5, 2013, a Chamber of the
European Court of Human Rights ruled by majority in Vilnes and Others v. Norway
that, according to the press release, “Norwegian authorities failed to provide
deep sea divers with essential information about risks associated with their
employers’ use of rapid decompression tables” and thus violated Article 8
(right to respect for private and family life) but not Article 2 (right to
life) or Article 3 (prohibition of inhuman or degrading treatment) of the
European Convention on Human Rights. Mr. Vilnes and other divers argued that they
sustained damage to their health as a result of diving in the North Sea for oil
companies between 1965 and 1990. The Court, though noting “authorities had
taken a wide range of measures in order to ensure the protection of divers’
safety,” reasoned that such authorities had failed to “provide access to
essential information,” specifically on “rapid decompression times and on the
consequence that this could have on their health and safety,” resulting in them
being “unable to fully assess the risks involved and give their informed
consent.” The Court ordered the Norwegian government to pay different amounts
of damages, ranging from €8,000–€50,000, to the applicants within three months.
Jones v. United Kingdom
(ECHR) (January 14, 2014)
Click here for judgment
(approximately 65 pages)
On January 14, 2014, the Fourth Section
of the European Court of Human Rights (the Court) issued its judgment in Jones
and Others v. United Kingdom. The Court found that the United Kingdom (UK) had
not violated the right of access to court under Article 6 § 1 of the European
Convention on Human Rights when UK courts granted immunity to Saudi Arabia and
its State officials, thus dismissing the Applicants’ claims for compensation
for torture they allegedly suffered at the hands of Saudi Arabian officials.
The Court stated that “measures taken by a State which reflect generally
recognised rules of public international law on State immunity cannot in
principle be regarded as imposing a disproportionate restriction on the right
of access to a court as embodied in Article 6 § 1.” However, the Court
concluded that “in light of the developments currently under way in this area
of public international law, this is a matter which needs to be kept under
review”. According to the press release, the parties have three
months in which to request a referral to the Grand Chamber.
Metal-Tech Ltd. v.
Republic of Uzbekistan (ICSID) (October 4, 2013)
Click here for judgment
(approximately 144 pages)
In Metal-Tech Ltd. v. Republic of
Uzbekistan—a dispute arising under the Israel-Uzbekistan bilateral investment
treaty (BIT) relating to a joint venture to process minerals—an International
Centre for Settlement of Investment Disputes (ICSID) tribunal found that it
lacked jurisdiction to hear the claim as the initial investment failed to
fulfill the requirements of Article 1(1) of the BIT, which provides that the
investment be “implemented in accordance with the laws and regulations of the
Contracting Party in whose territory the investment is made.” The tribunal
concluded that “corruption was established to an extent sufficient to violate
Uzbekistan law in connection with the establishment of the Claimant’s
investment in Uzbekistan,” and since Uzbekistan’s consent to ICSID arbitration
is restricted to disputes concerning investment implemented in compliance with
local law, the dispute failed to fulfill Article 8(1) requirements. The
tribunal dismissed all other claims and counterclaims, and it held that each
party should bear its own costs.
Burlington v. Ecuador
(ICSID) (December 13, 2013)
Click here for judgment
(approximately 19 pages)
In Burlington v. Ecuador, a dispute
arising out of two production-sharing contracts, the Chairman of the
Administrative Council of the International Centre for Settlement of Investment
Disputes (ICSID) upheld a proposal to disqualify Professor Orrego Vicuña
according to Arbitration Rule 9(1), which provides that “a party proposing the
disqualification of an arbitrator pursuant to Article 57 of the Convention [. .
.] promptly, and in any event before the proceeding is declared closed, file
its proposal with the Secretary-General, stating its reasons therefore.” The
Chairman found that Professor Orrego Vicuña had not fully disclosed his
previous appointments “both prior to and after” he was appointed by the party
for the present case. The Chairman also found that “as the ICSID Convention and
Rules do not specify a number of days within which a proposal for
disqualification must be filed, the timelines of a proposal must be determined
on a case by case basis.”
Indus Waters Kishenganga
Arbitration (Pakistan v. India) (Arbitration at PCA) (December 20, 2013)
Click here for judgment (approximately 52 pages)
On December 20, 2013,
the Court of Arbitration constituted in the matter of Indus Waters Kishenganga
Arbitration (Pakistan v. India) rendered its Final Award in the dispute between
Pakistan and India regarding the Kishenganga Hydro-Electric Project (KHEP)
located on the Kishenganga/Neelum River. Pakistan instituted arbitral
proceedings against India in 2010, challenging, in particular, the
permissibility of the planned diversion by the KHEP of the waters of the
Kishenganga/Neelum and the effect that this diversion would have on Pakistan’s
own hydro-electric project under construction downstream of the KHEP. The
Final Award decided the issue of “minimum flow” that was left unresolved in the
Court of Arbitration’s February 2013 Partial Award. According to the press release, with the Final Award,
“the Court of Arbitration unanimously decided . . . that India shall release a
minimum flow of 9 cumecs into the Kishenganga/Neelum River below the KHEP at
all times.” Although the Final Award is binding on the parties without appeal,
“the Court also decided that either India or Pakistan may seek reconsideration
of this decision through the Permanent Indus Commission and the mechanisms of
the Indus Waters Treaty after a period of seven years from the first diversion
of water from the Kishenganga/Neelum River.”
International
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