• President Obama's Executive Orders (Jan. 22, 2009)

• Memorandum for the Attorney General- Review of the Detention of Ali Saleh Kahlah al-Marri (Jan. 22, 2009)

• ASIL Task Force – Recommendations on U.S. Policy Toward the International Criminal Court

• Maritime Delimitation in the Black Sea (Romania v. Ukraine) (I.C.J. Feb. 3, 2009)

• Rabi Abdullahi v. Pfizer, Inc. (2d Cir. Jan. 30, 2009)

• Snedden v. Republic of Croatia (Fed. Ct. of Australia, Feb. 3, 2009)

• TSA Spectrum de Argentina S.A. v. Argentina (ICSID Dec. 19, 2008)

• Revised Practice Directions III and VI and New Practice Direction XIII (I.C.J. Jan. 30, 2009)

• Letter to Obama Asking for Access to Guantánamo Detention Center (Jan. 30, 2009)

• Statement by the Committee for the Peaceful Reunification of Korea (CPRF) (English translation) (Jan. 30, 2009)

President Obama Executive Orders: 1) Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities; 2) Review of Detention Policy Options; 3) Ensuring Lawful Interrogations (Jan. 22, 2009)

Click here for Guantánamo Bay document (approximately 5 pages); click here for Detention Policy document (approximately 2 pages); click here for Lawful Interrogations document (approximately 5 pages)

Only days after becoming the President of the United States, President Obama signed three Executive Orders aimed at changing the U.S. policy with respect to detention and interrogation of individuals in U.S. custody in connection with its anti-terrorism efforts.

Guantánamo Bay Closure and Review of Detainees Order

The Executive Order on the review and disposition of individuals detained at the Guantánamo Bay Naval Base and the closure of the detention facilities, is meant “to effect the appropriate disposition of individuals currently detained by the Department of Defense at the Guantánamo Bay Naval Base (Guantánamo) and promptly to close detention facilities at Guantánamo, consistent with the national security and foreign policy interests of the United States and the interests of justice.” And if there still was any doubt, the Executive Order declares that “individuals currently detained at Guantánamo have the constitutional privilege of the writ of habeas corpus.” Furthermore, Section 3 states that Guantánamo will be “closed as soon as practicable, and no later than 1 year from the date of this order.” Finally, Section 4 sets out guidelines pertaining to the immediate review of the detainees' status, including a list of authorities involved and their respective roles within the winding down process.

Review of Detention Policy Order

According to President Obama, this Executive Order was issued “in order to develop policies for the detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations that are consistent with the national security and foreign policy interests of the United States and the interests of justice.” Pursuant to this general goal, President Obama has asked that a Special Task Force on Detainee Disposition, which will “identify lawful options for the disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operation,” should be established. Similar to the Guantánamo Bay Order, the President lists the authorities that will be involved in executing this order and their respective roles within the process.

The current deadline for submitting the report is 6 months from the day the Executive Order was issued, unless those in charge “determine that an extension is necessary.” In the meantime, the Task Force “shall provide periodic preliminary reports during those 180 days.” The Task Force's mandate will end upon the completion of the duties described in the Executive Order.

Lawful Interrogations Order

The Lawful Interrogations Orders is meant “to improve the effectiveness of human intelligence gathering, to promote the safe, lawful, and humane treatment of individuals in United States custody and of United States personnel who are detained in armed conflicts, to ensure compliance with the treaty obligations of the United States, including the Geneva Conventions, and to take care that the laws of the United States are faithfully executed.”

This Order revokes Executive Order 13440, issued on July 20, 2007, which interpreted the meaning and application of the text of Common Article 3 of the Geneva Conventions regarding detentions and interrogations by the CIA. The Order requires that individuals in U.S. custody be treated according to Army Field Manual 2 22.3 (Manual). In interpreting the Manual and Common Article 3, U.S. officials may not “rely upon any interpretation of the law governing interrogation -- including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2 22.3, and its predecessor document, Army Field Manual 34 52 issued by the Department of Justice between September 11, 2001, and January 20, 2009.”

The Order also requires that CIA facilities be closed and that the International Committee of the Red Cross be allowed access to detained individuals.

Memorandum for the Attorney General- Review of the Detention of Ali Saleh Kahlah al-Marri (Jan. 22, 2009)

Click here for document (approximately 2 pages)

President Obama issued a memorandum entitled “Review of the Detention of Ali Saleh Kahlah al-Marri” asking that a review of his status be commenced immediately. According to the Memorandum, al-Marri has been detained for more than 5 years by the Department of Defense on U.S. soil as an enemy combatant. The Memorandum states that he is “the only individual the Department of Defense is currently holding as an enemy combatant within the United States.” Since al-Marri is not detained in Guantánamo, his case falls outside the review mandated in the Review and Disposition Order.

In the Memorandum, President Obama acknowledges that “it is equally in the interests of the United States that the executive branch undertake a prompt and thorough review of the factual and legal basis for al-Marri's continued detention, and identify and thoroughly evaluate alternative dispositions.”

ASIL Task Force – Recommendations on U.S. Policy Toward the International Criminal Court

Click here for press release and recommendations (approximately 5 pages)

On February 2, 2009 the American Society of International Law’s (ASIL) Task Force on U.S. Policy Toward the International Criminal Court released a Statement of Policy Recommendations, recommending that the new administration commence “a policy of positive engagement with the Court.”

The Task Force was established last summer and is composed of a diverse group of legal experts, including the former Legal Advisor to the State Department and Deputy Secretary of Defense William H. Taft, IV, former U.S. federal appellate and International Criminal Tribunal for the Former Yugoslavia (ICTY) Judge Patricia M. Wald, former Congressman Mickey Edwards, Vanderbilt Law School Professor Michael A. Newton, former U.S. Supreme Court Justice Sandra Day O’Connor, former International Court of Justice President Stephen M. Schwebel, former Deputy Prosecutor of the ICTY David Tolbert, and Johns Hopkins School for Advanced International Studies Professor Ruth Wedgwood.

The Task Force urges the President to “take prompt steps to announce a policy of positive engagement with the Court.” Such steps would include, among others, 1) a policy statement by the new administration demonstrating support for the object and purpose of the Statute creating the Court (Rome Statute); 2) an assessment of ways in which the U.S. can assist the Court in criminal investigations; 3) a review of the Article 98 Agreements; and 4) a review of the American Service-members’ Protection Act of 2002. Finally, the Task Force recommended “that Congress pursue a legislative agenda” that would ensure that the new policy goals can be implemented.

According to the ASIL press release, the Task Force is scheduled to issue its final report detailing and explaining its conclusions before the Society’s 103rd Annual Meeting, March 25-28, 2009.

Maritime Delimitation in the Black Sea (Romania v. Ukraine) (I.C.J. Feb. 3, 2009)

Click here for document (approximately 68 pages)

The International Court of Justice delivered its judgment in the Maritime Delimitation in the Black Sea case, an action instituted by Romania against Ukraine in 2004, regarding the delimitation of the continental shelf and the exclusive economic zones of Romania and Ukraine in the Black Sea. Romania requested the Court “to draw in accordance with the 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 zones of the two States in the Black Sea.”

The basis for the Court's jurisdiction, according to Romania, was paragraph 4(h) of the Additional Agreement, concluded with reference to Article 2 of the Treaty on the Relations of Good Neighbourliness and Co-operation between Romania and Ukraine (Treaty) and signed on June 2, 1997. According to paragraph 4 of the Additional Agreement, the parties would “negotiate an Agreement on the delimitation of the continental shelf and the exclusive economic zones in the Black Sea.” Furthermore, paragraph 4(g) required that the negotiations for the conclusion of this agreement were to start “as soon as possible, during a period of three months from the date of the entering into force of the Treaty.” The parties held 24 rounds of negotiations, but never could reach agreement on the issue. As a result, referring to the Additional Agreement, Romania filed its application instituting proceedings against Ukraine.

The Court first held that the 1982 United Nations Convention on the Law of the Sea (UNCLOS), to which both Romania and Ukraine are parties, is the applicable law. According to the Court, Articles 74 (Exclusive Economic Zone) and 83 (Continental Shelf), which deal with different subject matter but in fact are identical in text, were the relevant provisions. Furthermore, the Court held that determination of the single maritime delimitation line included the analysis of the agreements in force between the parties. In deciding which of the agreements referred to by the parties are in fact agreements relating to the delimitation within the meaning of Articles 74, paragraph 4, and 83, paragraph 4, of UNCLOS, would depend, according to the Court, “on the conclusion ... on Romania’s contention that they establish the initial segment of the maritime boundary which the Court has to determine.”

After noting that there is a dispute with respect to the existence of an already agreed upon maritime boundary, the Court held that while there is evidence of an agreement pertaining to the demarcation of the state border between Romania and the USSR, “there is no agreement in force between Romania and Ukraine delimiting between them the exclusive economic zone and the continental shelf.” The Court next examined other relevant factors, such as the relevant coasts and maritime areas, and established the provisional equidistance line. Finally, the Court applied the disproportionality test to determine whether delimitation line determined by the Court “lead[s] to any significant disproportionality by reference to the respective coastal lengths and the apportionment of areas that ensue.” The Court held that line set did not “require[] any alternation.”

While the judgment seems pretty straightforward and “relatively dry”, a post on Opinio Juris notes that “the answer to this question affects maritime delimitation lines, which in turn resolves which country has the right to exploit oil and natural gas deposits found near Serpents’ Island, which may total about 100 billion cubic meters of natural gas and 100 million metric tons of crude oil.”

Rabi Abdullahi v. Pfizer, Inc. (2d Cir. Jan. 30, 2009)

Click here for document (approximately 89 pages)

The United States Court of Appeals for the Second Circuit reversed and remanded the Rabi Abdullahi case to the lower court thus allowing the Plaintiffs to proceed with their Alien Tort Statute action against pharmaceutical company Pfizer. The United States District Court for the Southern District of New York had dismissed the complaints for lack of subject matter jurisdiction under the Alien Tort Statute, 28 U.S.C. § 1350 (ATS), and in the alternative, on the ground of forum non conveniens.

Plaintiffs, Rabi Abdullahi and other Nigerian children and their guardians, commenced suit against Pfizer, Inc., the “world's largest pharmaceutical corporation,” under the ATS, alleging that “Pfizer violated a customary international law norm prohibiting involuntary medical experimentation on humans when it tested an experimental antibiotic on children in Nigeria, including themselves, without their consent or knowledge.”

The Court reversed the dismissal holding “(1) that the district court incorrectly determined that the prohibition in customary international law against nonconsensual human medical experimentation cannot be enforced through the ATS; (2) that changed circumstances in Nigeria since the filing of this appeal require re-examination of the appropriate forum, albeit on the basis of a legal analysis different from that employed by the district court; and (3) that the district court incorrectly applied Connecticut’s choice of law rules in the Adamu action.”

According to the allegation, Pfizer, with the cooperation of the Nigerian government, experimented with Trovan, a new antibiotic, on child patients at a Nigerian hospital without the children's or their guardians’ knowledge or consent. Furthermore, the Plaintiffs allege that Pfizer knew that the new drug had never before been tested on children in the form being used at the hospital. In fact, the Plaintiffs claim that “animal tests showed that Trovan had life-threatening side effects, including joint disease, abnormal cartilage growth, liver damage, and a degenerative bone condition.” As a result of the deliberate conduct by Pfizer, so the Plaintiffs claim, eleven children died, and “many others [were left] blind, deaf, paralyzed, or brain-damaged.”

Snedden v. Republic of Croatia (Fed. Ct. of Australia, Feb. 3, 2009)

Click here for document (approximately 20 pages)

The Federal Court of Australia dismissed Dragan Vasiljkovic's application for review of an extradition order requested by Croatia in 2007 for two alleged war crimes against prisoners of war, contrary to Article 122 of the Basic Criminal Code of the Republic of Croatia, and one alleged war crime against the civilian population, contrary to Article 120 of that same Code. The applicant raised three grounds for reversal of the initial determination by a magistrate honoring the request: 1) alleged pre-trial bias against the applicant and the likelihood of being prejudiced at trial; 2) alleged abuse of process, evidenced by the delay in prosecuting the Applicant; and 3) alleged violation of his right to a jury trial.

Regarding the first ground of appeal, the Court held that the evidence presented was insufficient to prove that the applicant will in fact experience pre-trial bias in Croatia. The Court also found, upon review of the evidence submitted by both parties, that the judicial system in Croatia, unlike what the applicant's complaint alleged, “is capable of providing a fair trial to the applicant.” Reviewing the second ground of the appeal, the Court held that “[n]o claim of an abuse of process can be sustained under Chapter III of the Commonwealth of Australia Constitution Act 1901 since at no earlier stage prior to the institution of these proceedings has the judicial power of the Commonwealth been invoked.” As to the third ground, right to a jury trial, the Court held that since the applicant was not charged under the criminal laws of Australia, the constitutional guarantee to receive a trial by jury is inapplicable.

TSA Spectrum de Argentina S.A. v. Argentina (ICSID Dec. 19, 2008)

Click here for document (approximately 53 pages)

Thales Spectrum de Argentina S.A. (TSA), incorporated in Argentina, is a wholly owned subsidiary of TSI Spectrum International N.V, (TSI), a company registered in the Netherlands. TSA and Argentina signed a Concession Contract in 1997 under which “TSA was to provide radio spectrum administration, monitoring and control services to CNC [Communications and the National Commission of Telecommunications of the Argentine Republic] which, in turn, was obliged to create a unified database.” In 2004 TSA allegedly breached the agreement, whereupon CNC terminated the Concession Contract. After no resolution to the dispute was found, TSA filed its application with ICSID alleging that Argentina had violated the bilateral investment treaty between Argentina and the Netherlands (BIT), international law and Argentine law by 1) expropriating TSA’s investment; 2) failing to treat TSA’s investment fairly and equitably; 3) unreasonably impairing the management and operation TSA’s investment; and 4) failing to protect TSA’s investment. Argentina, on the other hand, argued that TSA’s claims were unfounded and raised four objections as to the Tribunal’s jurisdiction.

The first issue the Tribunal had to dispose of was Article 29 of the Concession Contract, which limited the venues wherein the parties’ could settle their disputes to either Argentinian courts or a tribunal convened under the International Chamber of Commerce rules. According to Argentina, this Clause effectively denied TSA’s right to have the dispute adjudicated before an ICSID tribunal. The Tribunal disagreed, stating that notwithstanding Article 29 of the Concession Contract and Article 26 of the ICSID Convention, the dispute settlement rules in the BIT remained at the disposal of TSA, provided that the BIT was not for other reasons inapplicable to TSA.”

The second jurisdictional issue was based on Article 10 of the BIT which, in case of non-amicable resolution of a dispute, required the parties to first pursue their claims before an administrative or judicial agency of the country of investment. If after 18 months no final resolution to the dispute was issued, or the parties disagreed with the final conclusion, the parties could commence a dispute settlement procedure before an international tribunal. According to Argentina, TSA had violated this provision of the BIT. While the Tribunal agreed that in fact TSA was bound by Article 10 and had not followed its requirements (filing three months prematurely its case before ICSID), in reality no final decision that would have been acceptable to TSA could have been issued in such a short time. Therefore, this jurisdictional objection was also dismissed.

The third jurisdictional objection was based on Article 25(2)(b) of the Convention, which “permits the extension of the [ICSID] jurisdiction to local companies which, because of foreign control, the parties have agreed should be treated as nationals of another Contracting State for the purposes of the ICSID Convention.” This expansion principle, however, requires that “effective control” exist, and effective control requires more than “company stockholding.” According to the facts of the case, in 2002 TSA was sold by a French company to a majority stockholder of Argentinian nationality. In reviewing the jurisdictional requirements of Article 25(2)(b), the Tribunal concluded that in the application of the second part of Article 25(2)(b) “it [was] necessary to pierce the corporate veil and establish whether or not the domestic company was objectively under foreign control.” Since the majority shareholder destroyed the required diversity under the BIT, the Tribunal concluded that it lacked jurisdiction with respect to TSA’s claims and dismissed the action.

Revised Practice Directions III and VI and New Practice Direction XIII (I.C.J. Jan. 30, 2009)

Click here for document (approximately 2 pages)

The International Court of Justice (ICJ) revised Practice Directions III and VI and adopted new Practice Direction XIII.

The amended Practice Direction III now requires the parties not only to “append to their pleadings only strictly selected documents” but also advises them “to keep written pleadings as concise as possible, in a manner compatible with the full presentation of their positions.”

Practice Direction VI reinforces the requirement to keep oral pleadings brief (see Article 60, paragraph 1, of the Rules of Court), and asks the parties to pay particular attention to “those points which have been raised by one party at the stage of written proceedings but which have not so far been adequately addressed by the other, as well as on those which each party wishes to emphasize by way of winding up its arguments.”

Finally, the new Practice Direction XIII explains the procedure under Article 31 of the Rules of Court. Under Article 31 “[i]n every case submitted to the Court, the President shall ascertain the views of the parties with regard to questions of procedure. For this purpose he shall summon the agents of the parties to meet him as soon as possible after their appointment, and whenever necessary thereafter.” Practice Direction XIII is meant to facilitate this process.

According to the ICJ Press Release, “the Court first adopted Practice Directions for use by States appearing before it in 2001.” These are not alternations but additions to the Rules of Court.

Letter to President Obama Asking for Access to Guantánamo Detention Center (Jan. 30, 2009)

Click here for document (approximately 3 pages)

Four NGOs, including the American Civil Liberties Union, Amnesty International, Human Rights First and Human Rights Watch, wrote a letter to President Obama requesting “full access to the Guantánamo Bay detention camps” in order to commence independent “review and report on the conditions of confinement there and make concrete recommendations for change.”

Referring to the recent Executive Orders (see above), the organizations applauded Obama's “decisive action in restoring U.S. commitment to the rule of law and respect for human rights by issuing executive orders to close Guantánamo, suspend the military commissions, prohibit CIA prisons, and enforce the ban on torture.” They offered their assistance in changing the U.S. stance toward detainees, particularly with respect to the conditions at detention facilities, which, the organizations agree, must be in full compliance with Common Article 3 of the Geneva Conventions.

According to the letter, while the Bush administration did grant the four groups observer status, full access to Guantánamo has been continuously denied to them.

Statement by the North Korean Committee for the Peaceful Reunification of Korea (CPRF) (English translation) (Jan. 30, 2009)

Click here for document (approximately 5 pages)

Tensions between South and North Korea are growing. North Korea has publicly announced that it will disregard agreements with South Korea meant to decrease military tensions. The statement highlighted here was issued by the North Korean Committee for the Peaceful Reunification of Korea (Committee), a state body. According to its text, “North-South relations have reached a situation where there is neither a method to settle relations nor hope to correct them.”

The Committee was formed as an affiliate of the Workers' Party in 1961, “to take advantage of the reunification movement that emerged in South Korea after the April 19 Student Uprising in 1960.”