International Law In Brief
Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
October 15, 2004
©2004 American Society of International Law
(Educational copying is permitted with due acknowledgment)
JUDICIAL AND SIMILAR PROCEEDINGS
DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS
· International Court of Justice (ICJ): Amended Practice Directions (July 30, 2004)
· International Criminal Court (ICC)-Uganda (August 26, 2004)
· World Trade Organization (WTO): Cambodia becomes the 148th member of the WTO (October 13, 2004)
· ASIL Announcements: Arthur C. Helton Fellowship Program
JUDICIAL AND RELATED DOCUMENTS
Permanent Court of Arbitration (PCA): Arbitration in Application of the Convention of December 3, 1976 on the Protection of the Rhine against Pollution by Chlorides and the Additional Protocol of September 25, 1991 (March 12, 2004)
The decision concerns a dispute that arose between France and the Netherlands concerning the interpretation and application of the Additional Protocol (?the Protocol?) of September 25, 1991 to the Convention of December 3, 1976 on the Protection of the Rhine against Pollution by Chlorides (?the Convention?). On December 3, 1976, the governments of Germany, France, Luxembourg, the Netherlands and Switzerland signed the Convention on the Protection of the Rhine against Pollution by Chlorides. Article 1 of the Convention provides that France shall reduce in two phases its chlorine waste from the Mines of Potasse d?Alsace. The Additional Protocol of September 25, 1991 (?the Protocol?) provides that in French territory, measures shall be taken including reducing chloride waste and temporarily stockpiling of chlorides on land as soon as the concentration of salts on the German-Dutch border exceeds 200mg/l. It also provides that measures are to be taken on Dutch territory, in the Polder of Wieringermeer, in order to reduce chloride waste in the waters of the Ijsselmeer by wastes in the sea of Wadden. According to the Protocol, the measures are to be financed according to the following percentages: 30% by Germany, 30% by France, 34% by the Netherlands and 6% by Switzerland.
According to Article 13 of the Convention, integrated into the Protocol by application of Article 7 of the Convention: ?Any dispute between the Contracting Parties concerning the interpretation or application of the present Convention and which is not able to be solved by negotiation is, in the absence of an agreement between the Parties, to be submitted to arbitration in accordance with the provisions in Annex B. This [...] forms an integral part of the present Convention.? Annex B, entitled ?Arbitration? provides for the constitution and composition of an arbitral Tribunal, the procedures for the Tribunal and provides that the Tribunal shall have competence to decide matters relating to its procedure.
On October 21, 1999, the Netherlands sent a note verbale to their embassy in Paris, addressed to the French Minister of Foreign Affairs asking that a dispute concerning the amount that France owed the Netherlands for purifying stocks in accordance with paragraph 4.2.1 of Annex III of the Protocol. The note verbale sent by the Netherlands also informed the French Minister of Foreign Affairs of its intention to nominate Pieter H. Kooijmans, a judge at the International Court of Justice, as an arbitrator. It invited France to nominate a second arbitrator and allow the two nominated arbitrators to select a third.
France, in turn, responded by nominating Gilbert Guillaume, another judge at the International Court of Justice. Pursuant to the agreement between the parties, arbitrators Guillaume and Kooijmans appointed as President of the Tribunal, Krzystof Skubiszewiski, President of the Iran-U.S. Claims Tribunal.
The Netherlands contested, inter alia, the manner in which France calculated its expenditures in terms of the quantities of chlorides, and argued that France?s interpretation of the Protocol was in violation of Article 31 of the Vienna Convention, which provides in section 1 that ?A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.? In terms of the purpose of the treaty, the Netherlands noted that the purpose of the Protocol was the improvement of the water quality in the Rhine and the provision of potable water, and that its interpretation of the pertinent sections of the Protocol were in accordance with this purpose. The Netherlands further refuted the notion submitted by France that the Netherlands obligations were pursuant to its geographical location and the polluter pays principle.
France contended that the object and purpose of the Protocol were to establish solidarity among the countries bordering the Rhine, and that France should not be forced to pay more than the other parties.
The Tribunal observed that for the period in question, the quantities of chlorides stored by France have well exceeded the amount provided for by the parties in the Protocol. As a result, it found that France should compensate the other parties for the excess amount that it has discharged. However the Tribunal disagreed with the Netherlands? calculation of amounts owed. The Tribunal concluded that the amounts should be calculated in two phases: (1) the amount that the Netherlands has spent in excess of France?s expenditures and (2) accrued interest, to be distinguished between interest accrued until December 31, 1998 and afterwards. It concluded that France must pay the Netherlands the sum of 118,855,162 French francs, or 18,119, 353 euros. It found that France must also reserve 10 million French francs, or 1,524,490 euros, designed to finance the high price of de-stocking after 1998.
Members of the Tribunal:
Professor Krzysztof Skubiszewski (President)
Judge Gilbert Guillaume (France)
Judge Peter Kooijmans (Netherlands)
Click here for Part I of the award. Click here for Part II of the award. (Award in French).
International Court of Justice (ICJ): Romania brings a case against Ukraine (September 16, 2004)
Romania has brought a case against Ukraine before the ICJ concerning the establishment of a single maritime boundary between the two States in the Black Sea, a boundary that would delimit the continental shelf and the exclusive economic zones appertaining to them.
On June 2, 1997, Romania and Ukraine signed a Treaty on Relations of Co-operation and Good-Neighborliness, and concluded an Additional Agreement by exchange of letters between their respective Ministers for Foreign Affairs. Both instruments entered into force on 22 October 1997. In its application before the ICJ, Romania states that pursuant to these agreements, ?the two States assumed the obligation to conclude a Treaty on the State Border Regime between them, as well as an Agreement for the delimitation of the continental shelf and the exclusive economic zones . . . in the Black Sea?. It also notes that at the same time,? the Additional Agreement provided for the principles to be applied in the delimitation of the above-mentioned areas, and set out the commitment of the two countries that the dispute could be submitted to the ICJ, subject to the fulfilment of certain conditions.? Romania submits that between 1998 and 2004, after 24 rounds of negotiations were held, ?no result was obtained and an agreed delimitation of the maritime areas in the Black Sea was not accomplished.? Romania brings the matter before the ICJ ?in order to avoid the indefinite prolongation of discussions that, in [its] opinion, obviously cannot lead to any outcome.?
Romania requests the ICJ ?to draw in accordance with international law, and specifically the criteria laid down in Article 4 of the Additional Agreement, a single maritime boundary between the continental shelf and the exclusive economic zone of the two States in the Black Sea.?
Click here for the ICJ press release.
DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS
United Nations (U.N.) Security Council: Resolution 1565 (The situation concerning the Democratic Republic of the Congo)(October 1, 2004)
The U.N. Security Council reaffirmed ?its commitment to respect the sovereignty, territorial integrity and political independence of the Democratic Republic of the Congo and all the States of the region.? It called on all the Congolese parties to the Global and All Inclusive Agreement on the Transition in the Democratic Republic of the Congo, signed in Pretoria on December 17, 2002, to honor their commitments under this agreement, and in particular to ensure ?that free, fair and peaceful elections ca take place within the agreed time frame.?
The U.N. Security Council noted its deep concern by the continuation of hostilities in the eastern part of the Democratic Republic of the Congo and by the grave violations of human rights and international humanitarian law accompanying these hostilities. Noting that the situation in the Democratic Republic of the Congo continues to constitute a threat to international peace and security in the region and, acting under Chapter VII of the U.N. Charter, it decided to extend the deployment of the U.N. Mission in the Democratic Republic of the Congo (MONUC) until March 31, 2005. It requested the U.N. Secretary-General to arrange for the rapid deployment of additional military capabilities for MONUC. It authorized, inter alia, the increase of MONUC?s strength by 5,900 personnel, including up to 341 civilian police personnel, as well as air mobility assets, and expressed its determination to keep MONUC?s strength and structure under regular review.
The U.N. Security Council also set forth the scope of MONUC?s mandate, which provides, inter alia, that MONUC will deploy and maintain a presence in the key areas of potential volatility in order to prevent violence and human rights violations. The U.N. Security Council?s mandate for MONUC emphasizes the importance of assisting in the promotion of human rights with particular attention to women, children and vulnerable persons. It provides that MONUC is to ensure the protection of civilians, including humanitarian personnel, and is to establish the necessary operational links with the U.N. Operation in Burundi (ONUB) in order to discourage cross-border movements of combatants between the two countries. It further provides that MONUC will seize arms and related material in the Democratic Republic of the Congo the presence of which violates the measures imposed by paragraph 20 of resolution 1493.
Click here for UN Security Council Resolutions (2004).
Click here for EISIL peace-keeping resources.
United Nations (U.N.) Security Council: Resolution 1566 (Threats to international peace and security caused by terrorist acts)(October 8, 2004)
The U.N. Security Council called upon States to cooperate fully with the Counter-Terrorism Committee (?CTC?) established in accordance with resolution 1373 (2001), including the recently established Counter-Terrorism Committee Executive Directorate (?CTED?), and the Al Qaida/Taliban Sanctions Committee.
Acting under Chapter VII of the U.N. Charter, the U.N. Security Council condemned ?all acts of terrorism irrespective of their motivation?, recalling that terrorist acts are ?under no circumstances justifiable by considerations of a political, philosophical, ideological, radical, ethnic, religious or other similar nature? and called upon all States to prevent and punish such acts. Also acting under Chapter VII of the U.N. Charter, the U.N. Security Council decided to establish a working group consisting of all members of the Security Council to come up with more effective procedures for bringing terrorists to justice such as prosecution or extradition, freezing of their financial assets, preventing their movement through the territories of Member States, and preventing the supply to them of all types of arms and related material. It further requested that this working group consider creating a fund to compensate victims of terrorist acts and their families. It further requested the U.N. Secretary-General to take, as a matter of urgency, appropriate steps to make the CTED fully operational.
Click here for recent U.N. Security Council Resolutions (2004).
United Nations (U.N.) Security Council: Resolution 1567(Nominations for Permanent Judges of the International Criminal Tribunal for the Former Yugoslavia) (October 14, 2004)
The Security Council forwarded the following nominations to the General Assembly in accordance with Article 13 bis (1) (d) of the Statute of the International Criminal Tribunal for the Former Yugoslavia (?ICTY?):
Mr. Carmel A. Agius (Malta)
Mr. Jean-Claude Antonetti (France)
Mr. Iain Bonomy (United Kingdom)
Mr. Liu Daqun (China)
Mr. Mohamed Amin El-Abbassi El Mahdi (Egypt)
Mr. Elhagi Abdulkader Emberesh (Libyan Arab Jamahiriya)
Mr. Rigoberto Espinal Irias (Honduras)
Mr. O-gon Kwon (Republic of Korea)
Mr. Theodor Meron (United States of America)
Mr. Bakone Melema Moloto (South Africa)
Ms. Prisca Matimba Nyambe (Zambia)
Mr. Alphonsus Martinus Maria Orie (Netherlands)
Mr. Kevin Horace Parker (Australia)
Mr. Fausto Pocar (Italy)
Mr. Yenyi Olungu (Democratic Republic of the Congo)
Mr. Sharada Prasad Pandit (Nepal)
Ms. Vonimbolana Rasoazanany (Madagascar)
Mr. Patrick Lipton Robinson (Jamaica)
Mr. Wolfgang Schomburg (Germany)
Mr. Mohamed Shahabuddeen (Guyana)
Ms. Christine Van den Wyngaert (Belgium)
Mr. Volodymyr A. Vassylenko (Ukraine)
Click here for recent U.N. Security Council Resolutions (2004).
Special Court for Sierra Leone: First Annual Report (2002-2003)
The first annual report of the Special Court for Sierra Leone (?the Court?) covers the activities of all sections of the Court, from the time the Judges of the Court were sworn in on December 2, 2002, through the year 2003. The Court was established to ?prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996," as set forth in Article (1)(1) of the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court of Sierra Leone.
The report notes, inter alia, that from 2002-2003, the Court?s Prosecutor investigated and prepared cases against thirteen individuals who have been charged with crimes against humanity, war crimes and other related crimes.
The report also describes the relationship between the Court and the Truth and Reconciliation Commission (TRC). It notes that ?[f]rom an early stage, both organisations recognised their respective roles and objectives and overall, the relationship proved to be cordial.? The report further describes a request by the TRC to interview two of the Court?s indictees.
Also included in the report is a description of the Prosecutor?s motions for immediate protective measures for witnesses and victims and for non-public disclosure in each of the 10 cases where an Accused had been arrested and was in the custody of the Court. These measures were designed to ensure the protection of witnesses? security and privacy and their willingness to testify. It noted that with the exception of one case, all of these motions by the Prosecution were granted.
The report also describes the local outreach efforts of the Court towards civil society, noting in particular that the Special Court Interactive Forum was designed ?to enable the Court?s progress to be monitored by civil society and for their expectations to be voiced and considered.?
Click here for the report.
Click here for more resources on the Special Court for Sierra Leone through EISIL;
Click here for more EISIL resources on War Crimes Tribunals.
International Court of Justice (ICJ): Amended Practice Directions (July 30, 2004)
The ICJ has taken further measures in order to increase its efficiency in view of its growing caseload. The new measures include, inter alia, ways of shortening the period between the closing of written proceedings and the opening of oral proceedings.
In terms of preliminary objections under Article 79 of the Rules of the Court, Practice Direction V has been amended so that the time-limit for the presentation by the other party of observations and submissions under paragraph 5 of Article 79 shall generally not exceed four months from the date of the filing of preliminary objections.
In regard to provisional measures, Practice Direction XI notes that there has been an ?increasing tendency of parties to request the indication of provisional measures.? It provides that in oral pleadings, parties should ?limit themselves to what is relevant to the criteria for the indication of provisional measures as indicated in the Statute, Rules and jurisprudence of the Court. They should not enter into the merits of the case beyond what is strictly necessary for that purpose.?
In terms of submissions from international NGOs, Practice Direction XII has been amended, noting that such submissions are not considered part of the case file. It provides that ?[s]uch statements and/or documents shall be treated as publications readily available and may accordingly be referred to by States and intergovernmental organizations presenting written and oral statements in the case in the same manner as publications in the public domain.?
Click here for the ICJ press release and complete list of Practice directions.
BRIEFLY NOTED
International Criminal Court (ICC)-Uganda (August 26, 2004)
A team from the International Criminal Court (ICC) arrived in Uganda to prepare the investigation of crimes committed in the war between government troops and the rebel Lord's Resistance Army (LRA) in the north, according to UN officials.
The Government of Uganda and the ICC signed an agreement to investigate and arrest members of the LRA as war crimes suspects. This agreement has the effect of amending the Amnesty Act of 2000, which pardoned all combatants in rebel activities in Uganda since 1986. According to an ICC press release, Ugandan President Museveni has indicated to the ICC Prosecutor his intention to amend this amnesty so as to exclude from the amnesty only those LRA leaders bearing the greatest responsibility for the crimes against humanity committed in Northern Uganda.
Click here for an ICC press release.
World Trade Organization (WTO): Cambodia becomes the 148th member of the WTO (October 13, 2004)
According to the WTO?s press release:
?After Nepal joined on 23 April 2004, Cambodia is now the second least-developed country to join the WTO through the full working party negotiation process. It brings the current number of least-developed countries in the WTO to 32.?
The WTO press release also notes that ?[a]nother 24 countries are negotiating membership (listed from oldest to most recent application): Algeria, Russian Federation, Saudi Arabia, Belarus, Ukraine, Sudan, Uzbekistan, Vietnam, Seychelles, Tonga, Kazakhstan, Azerbaijan, Andorra, Laos, Samoa, Lebanese Republic, Bosnia Herzegovina, Bhutan, Cape Verde, Yemen, Serbia and Montenegro, Bahamas, Tajikistan, Ethiopia, and Libya.
Click here for the WTO news page.
Arthur C. Helton Fellowship Program
A special one-time honor, the Arthur C. Helton Fellowship Program is being created to recognize the remarkable legacy of Arthur C. Helton. The fellowship program provides "micro-grants" in 2005 for law students and young lawyers who need modest sums (up to $1000) to allow them to pursue human rights work and research.
An internationally-renowned human rights lawyer and advocate for internally displaced persons and refugees, Arthur Helton died in the August 19, 2003 bombing of the U.N. headquarters in Baghdad.
Click here for the 2005 Helton Fellowship application and instructions.
To support the Helton Fellowship Program, please send your contribution by check made payable to "ASIL" (add "Helton Fellowship" in the note area) to: ASIL, P. O. Box 79516 Baltimore, Maryland 21279-0516.
International Law In Brief (ILIB) - Copyright 2004