Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
June 3, 2008

©2008 American Society of International Law
(Educational copying is permitted with due acknowledgment)

JUDICIAL AND SIMILAR PROCEEDINGS·
	International Court of Justice: Case Concerning Sovereignty Over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) (May 23, 2008)
	The High Court of South Africa: Mazibuko and The City of Johannesburg (April 30, 2008)
	United States: Gandara v. Bennett (11th Cir., May 22, 2008)

RESOLUTIONS, DECLARATIONS, AND OTHER DOCUMENTS·
	United States: Regulations on Rough Diamonds Issued (May 21, 2008)

TREATIES, AGREEMENTS, AND RELATED DOCUMENTS·
	Kenya and United States Open Skies Agreement (May 30, 2008)

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JUDICIAL AND SIMILAR PROCEEDINGS

International Court of Justice: Case Concerning Sovereignty Over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) (May 23, 2008).

Click here for document. (Approximately 80 pages).

By a vote of twelve to four the International Court of Justice (ICJ) held May 23, 2008 that Singapore holds sovereignty over Pedra Branca/Pulau Batu Puteh. It held by a vote of fifteen to one that Malaysia holds sovereignty over Middle Rocks. It held by a note of fifteen votes to one that the state in the territorial waters in which South Ledge is located holds sovereignty to it.

Pedra Branca/Pulau Batu Puteh (PBPBP) is an island located in the eastern entrance of the Straits of Singapore. Its name means "white rock" in Portugese and Malay. Middle Rocks is comprised of a small group of rocks permanently above water and about 1.2 meters high. South Ledge is only visible at low-tide and lies about 2.2 nautical miles southwest of PBPBP.

The case involves an historic dispute over territory between Malaysia and Singapore. In December 1979 Malaysia published a map depicting its territorial seas and continental shelf which included the island of PBPBP. On February 14, 1980 Singapore sent Malaysia a diplomatic note disputing Malaysia's claim to the island and asking that the map be corrected. Singapore's diplomatic note led to a series of discussions in 1993-94 in which also the sovereignty of Middle Rocks and South Ledge also arose. The governments of Malaysia and Singapore submitted their dispute over the sovereignty of PBPBP, Middle Rocks, and the South Ledge to the ICJ on July 24, 2003 under Article 36(1) of the Court's statute. Before being elected President of the Court, Judge Higgins recused herself from participating in this case.

In its discussion the ICJ first examined when the dispute "crystallized" between the parties because this is important for determining which acts are relevant for sovereignty and found that with respect to PBPBP, it crystallized February 14, 1980 after the dispute over the map. Because the 1980 dispute referred only to the island however, the ICJ found that the dispute with respect to Middle Rocks and South Ledge did not crystallize until February 6, 1993, during the discussions regarding the two nations.

Malaysia contended that its predecessor, the Sultanate of Johor, held sovereignty of PBPBP before the 1840s. Singapore, by contrast, asserted that the island was terra nullius and thus subject to occupation by its predecessor, the United Kingdom, which built a lighthouse on the island in 1851. The ICJ examined the historical and geographical context, emphasizing in particular that the PBPBP was long considered to be a navigational hazard and thus it was impossible that the island would have remained unknown. The Court therefore concluded that the Sultanate of Johor did encompass the islands of the Straits of Singapore including the PBPBP and met the condition in the Island of Palmas Case (Netherlands/United States of America) Award of April 1928 of "continuous and peaceful display of territorial sovereignty."

The Court applied the test for sovereignty which was not disputed among the parties, an intent to acquire sovereignty, a permanent intent to do so, and overt action to implement the intent and make this intent known to other states. The majority found a number of factors determinative in the decision that Singapore held sovereignty of the island from 1980. For example, it noted that Singapore investigated marine accidents near the island it controlled visits to the island and installed naval communication equipment on PBPBP. Neither Malaysia nor its predecessors responded to this conduct, of which it had notice.

With respect to sovereignty over Middle Rocks, the Court rejected Singapore's assertion that sovereignty over both should follow that of PBPBP, and that the three contain similar geomorphologies of light granite that support its contention to treat them as a single unit. Malaysia by contrast claimed that Middle Rocks has historically been viewed as falling within Johor sovereignty. The majority of the ICJ concurred with this assertion and held that none of the circumstances which had led sovereignty of PBPBP to transfer to Singapore applied with respect to Middle Rocks. As to South Ledge however, the ICJ noted that international treaty law is silent as to whether low-tide elevations are "territory," and that it is not well-established that low-tide elevations can be absorbed with islands for sovereignty purposes. Because the ICJ found that South Ledge falls within the overlapping territorial waters of both nations and they did not ask the Court to delimit the territorial waters, it held that South Ledge belongs to the State in the territorial waters in which it is located.

The High Court of South Africa: Mazibuko and The City of Johannesburg (April 30, 2008)

Click here for document. (Approximately 73 pages).

In a decision involving the rights to water for poor residents of the township of Phiri, South Africa, the High Court (Court) held that the forced installation of a prepayment water meter system without the option of an "all available" water supply option was unconstitutional and unlawful. The Court ordered the City of Johannesburg to provide each applicant and other similarly situated residents of Phiri with free basic water supply of 50 liters per person per day, thus setting aside the City's decision to limit the water supply to 25 liters per person per day. The Court required Johannesburg to pay for the installation of a metered water supply to allow residents of Phiri that option.

Phiri is a township in Soweto, South Africa with an antiquated water pipe system and a population of principally poor, uneducated, unemployed residents many of whom are living with HIV/AIDs. Before 2001 the City of Johannesburg provided all of its residents except those living in Phiri an unlimited supply of water on credit; while Phiri residents could obtain their water at a flat rate. After 2001 while the city of Johannesburg provided residents with 6 kiloliters of free water per month Phiri residents had to prepay for their 6 kiloliters of water. In 2004 the City installed prepayment water meters in Phiri to try to save water and renovate the infrastructure.

Residents of Phiri, Lindiwe Mazibko, Grace Munyai, Jennifer Makoatsane, Sophia Malekutu, and Vusimuzi Paki (the Applicants), brought suit against the City of Johannesburg, Johannesburg Water, the South African Minister of Water Affairs and Forestry, and the Centre on Housing Rights and Evictions (the Respondents). The Residents alleged that the Respondent's policies and practices of disconnecting their unlimited water supply at the fixed rate and installing prepayment meters, and limiting households to 5 kiloliters per month were unconstitutional. They asked the High Court to declare National Regulation 3(b) setting the water supply at 6 kilolitres per household per month (25 liters per person) unconstitutional and invalid and to order the Applicants and other residents of Phiri 50 litres of water per person per day with a metered water supply to be installed at the city's cost.

Section 27(1) of the South African Constitution guarantees everyone the right to have access to "sufficient water." Section 39(1)(b) of the Constitution requires courts to consider international law when applying the South African Bill of Rights, and states a preference for interpreting legislation consistently with international law.

While the Court noted that in international law there is no express right to water it nonetheless cites a number of international conventions providing for an adequate standard of living such as the Universal Declaration on Human Rights Article 25; the International Covenant on Economic, Social, and Cultural Rights (ICESCR) Articles 11 and 12 which calls for the adequate amount of water to be consistent with World Health Organization (WHO) guidelines. These specify 25 liters per day per person as the smallest amount needed to maintain life in the short term. The Convention on the Rights of the Child Article 24 on states' obligation to help children attain the highest standard of health and to combat disease through adequate food and drinking water; and its counterpart in the African Convention on the Rights of the Child. The African Charter on Human and People's Rights Article 16 guarantees the right to enjoy the best attainable standard of mental and physical health. The African Commission has held that a state's failure to provide safe drinking water violates this article. Further, General Comment 15 of the Twenty-Ninth session of the United Nation's Committee on Economic and Social Rights emphasizes the importance of the availability and accessibility of water and sufficient for personal and domestic use in a discriminatory-free manner.

The Court held that the Applicants failed to set forth a case sufficient to set aside Regulation 3(b) because South Africa is a scare water country and the 25 liters per person per day is a minimum rather than a maximum level, which the government should increase as the nation becomes able. With respect to the prepayment meters the Court examined Article 21 of the Water Services Act which provides that every water services authority, such as the City of Johannesburg, must set forth by-laws regarding the provision of water services. After examining the by-laws for Johannesburg and finding that the by-laws do not authorize the installation of prepayment meters, the Court found that the prepayment meters that the Respondents installed were ultra vires are thus unconstitutional and unlawful. In its analysis the Court emphasized that the residents of Phiri are treated differently and worse than white residents of other parts of the city that received notice and an opportunity to pay their arrears payments before their water supply is cut off. The Court noted that because women constitute the head of households in many homes in Phiri and perform chores such as water gathering, the prepayment meters also unlawfully discriminate against women unfairly based on their gender. In addition, because of the high incidence of HIV/AIDS in Phiri township the Court relied upon expert testimony regarding the amount of water that persons living with HIV/AIDS and their caregivers require to clean food and linens and to wash, which is more than the general population and certainly more than the 25 liters of water per day permitted by the City.

United States: Gandara v. Bennett (11th Cir., May 22, 2008)

Click here for document. (Approximately 34 pages).

The Federal Court of Appeals for the Eleventh Circuit (Court) held that Article 36 of the Vienna Convention on Consular Relations (Convention) does not create judicially enforceable individual rights, and affirmed the District Court's dismissal of the case for failure to state a claim but on alternate grounds from those of the District Court.

Police arrested Hector Gandara, a Uruguyan immigrant in the United States on a temporary visa, September 11, 2004 and charged with him with false imprisonment. Gandara asserted that after his arrest police failed to inform him of his right to contact the Uruguyan consulate pursuant to Article 36 of the Convention. He brought suit pursuant to 42 U.S.C. §1983 seeking a declaratory judgment and compensatory damages. The District Court adopted the report and recommendation of the U.S. Magistrate and treated Gandara's claims as analogous to those in a habeas corpus petition and dismissed them for failure to state a claim pursuant to §1983.

In its discussion, the Court opined that the District Court relied improperly upon Heck v. Humphrey, 512 U.S. 477 (1994), in which the Supreme Court held that to recover damages for harm a §1983 plaintiff must demonstrate that the conviction or sentence had been reversed on appeal, expunged through executive order, declared invalid, or called into question by a federal court issuing a writ of habeas corpus. The Eleventh Circuit noted that under the Supreme Court's decision in Sanchez-Llamas v. Oregon, 126 S.Ct. 2669 (2006), a violation of Article 36 of the Convention did not necessarily mandate reversal of a criminal conviction.

To reach its conclusion that Article 36 of the Convention does not create judicially enforceable rights, the Court examined the preamble of the Convention, the position of the U.S. State, Department, and the travaux préparatoires of the Convention. The Court noted that the preambular language of the Convention emphasized that the purpose of the Convention is not to benefit individuals but rather to ensure that consular posts perform efficiently for their states. The U.S. State Department has stated on a number of occasions that the remedies for failure of consular notification under the convention are diplomatic or political ones between states under international law. Further, the travaux préparatoires also support this conclusion.

Judge Rodgers filed a special concurrence because while he agreed with the majority that the Court was bound by prior panel decisions holding that the Convention does not confer individually enforceable rights; he nonetheless opined that the majority did not discuss a number of issues present in the case. In Judge Rodger's view, the majority erred by conflating the existence of an individual right and a legal remedy for violations of that right.

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RESOLUTIONS, DECLARATIONS, AND OTHER DOCUMENTS

United States: Regulations on Rough Diamonds Issued (May 21, 2008)

Click here for document.

The United States Department of the Treasury Office of Foreign Assets Control (OFAC) amended the Rough Diamonds Control regulations May 21, 2008 to include two new mandates to improve the collection of data regarding the import and export of rough diamonds. The amendments ameliorate U.S. governmental oversight of the rough diamond trade to improve the Kimberly Process Certification Scheme.

The United Nations General Assembly adopted resolution 55/56 on January 29, 2001 expressing its concern about the role of diamonds in fuelling conflict and breaking the ties between illicit diamond sales and armed conflicts. It called upon all member nations to fully implement Security Council Resolutions addressing the link between armed rebel movements and "conflict diamonds;" and welcomed the Kimberly Process initiative of African diamond-producing nations to begin a consultative dialogue of governments, industry, and civil society organizations, to address the issue. Subsequent negotiations led to the development of the Kimberly Process Certification scheme (KPCS) that allows members to certify that their rough diamonds are "conflict-free." The United States enacted the Clean Diamond Trade Act (P.L. 108-19) and President Bush issued Executive Order 13312 in 2003 to implement the Act. OFAC developed the regulations in 2004 to implement the Executive Order.

The amendments to the regulations provide that the United States Bureau of Customs and Border Protection (CBP) will not release custody of an import of rough diamonds unless it accords with formal entry requirements in 19 CFR 141.0a(f). The amendments also specify that importers and exporters of rough diamonds must file an annual report with the U.S. State Department regarding their imports, exports, and stockpiles of diamonds.

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TREATIES, AGREEMENTS, AND RELATED DOCUMENTS

Kenya and United States Open Skies Agreement (May 30, 2008)

Click here for more information.

The United States and Kenya entered into an "Open Skies" agreement on May 30, 2008 following two days of negotiations in Washington, D.C. It is the 20th Open Skies Agreement between the U.S. and an African nation, and the 92nd Open Skies agreement for the U.S. (See United States/European Union Open Skies Agreement 46 ILM 470 (2007)).The agreement permits airlines to determine routes and destinations based on demand and will not limit the number of carriers that can serve both nations or the number of flights.

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