• National Human Rights Action Plan of China (2009-2010)

• ASIL Task Force Report on the United States Policy Toward the International Criminal Court (ASIL, April 2009)

• Amnesty International Report on United States Immigration Detentions (2009)

• National Grid P.L.C. v. Argentina (UNCITRAL, Nov. 3, 2008)

• Fadi al Maqaleh v. Gates (D.D.C. Apr. 2, 2009)

• In Re South African Apartheid Litigation (D.C.N.Y. Apr. 8, 2009)

• Prosecutor v. Radovan Karadzic (ICTY, Mar. 26, 2009)

• Rule of Law in Armed Conflicts Project (Geneva Academy of International Humanitarian Law and Human Rights, 2009)

• U.S. to Run for Election to the UN Human Rights Council (Dept. of State, Mar. 31, 2009)

• EC Signs Hague Choice of Court Convention (Apr. 1, 2009)

National Human Rights Action Plan of China (2009-2010)

Click here for document (approximately 5 pages)

The Chinese government released its first Human Rights Action plan “in response to the United Nations' call for establishing a national human rights action plan.” The plan is intended to “define[] the Chinese government's goals in promoting and protecting human rights, and the specific measures it is taking to this end.”

According to the text of the plan, three fundamental principles are included in this initiative:

First, in pursuit of the basic principles prescribed in the Constitution of China, and the essentials of the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights, the plan is aimed at improving laws and regulations upholding human rights and advancing the cause of China's human rights in accordance with the law;

[S]econd, adhering to the principle that all kinds of human rights are interdependent and inseparable, the plan encourages the coordinated development of economic, social and cultural rights as well as civil and political rights, and the balanced development of individual and collective rights;

[T]hird, in the light of practicality and China's reality, the plan ensures the feasibility of the proposed goals and measures, and scientifically promotes the development of the cause of human rights in China.

The 2-year plan also enumerates five areas on which the government will focus:

(1) Guarantee of Economic, Social and Cultural Rights
(2) Guarantee of Civil and Political Rights
(3) Guarantee of the Rights and Interests of Ethnic Minorities, Women, Children, Elderly People and the Disabled
(4) Education in Human Rights
(5) Performing International Human Rights Duties, and Conducting Exchanges and Cooperation in the Field of International Human Rights

ASIL Task Force Report on the United States Policy Toward the International Criminal Court (ASIL, April 2009)

Click here for document (approximately 100 pages)

The American Society of International Law (ASIL) independent Task Force on U.S. Policy Toward the International Criminal Court (ICC) published its 2009 Report encouraging U.S. engagement in the ICC. According to the official press release, the Report “recommend[s] that President Obama announce a policy of positive engagement with the Court.” While the report “does not recommend that the United States join the Court in the immediate future,” it does ask that the new administration “participate in the [2010] Review Conference [of the Assembly of States Parties] and otherwise engage with the Court to help shape it into an institution with which the United States can, in its interests, work constructively.” The Task Force notes that participation at the Conference is necessary, especially since one of the issues discussed will include “the definition of the crime of aggression within the Court’s jurisdiction—a question that will inevitably implicate U.S. interests.”

Amnesty International Report on United States Immigration Detentions (2009)

Click here for document (approximately 56 pages)

Amnesty International published a report criticizing current United States Immigration Detention procedures, stating that “[t]he use of detention as a tool to combat unauthorized migration falls short of international human rights law, which contains a clear presumption against detention.” According to the Report, current detention policies violate “the right to liberty, freedom of movement, and the right not to be arbitrarily detained,” guaranteed to everyone.

The Report recognizes that governments have the right to control their borders, but adds that those governments “also have obligations under international law to protect the human rights of migrants, no matter what prompted an individual to leave his or her home country.”

The Report cites that there has been a “dramatic increase” in detention of immigrants: “In just over a decade, immigration detention has tripled. In 1996, immigration authorities had a daily detention capacity of less than 10,000. Today more than 30,000 immigrants are detained each day, and this number is likely to increase even further in 2009.”

The Report names 4 major recommendations for the government:

1. “The US Congress should pass legislation creating a presumption against the detention of immigrants and asylum seekers and ensuring that it be used as a measure of last resort.

2. The US government should ensure that alternative non-custodial measures, such as reporting requirements or an affordable bond, are always explicitly considered before resorting to detention. Reporting requirements should not be unduly onerous, invasive or difficult to comply with, especially for families with children and those of limited financial means. Conditions of release should be subject to judicial review.

3. The US Congress should pass legislation to ensure that all immigrants and asylum seekers have access to individualized hearings on the lawfulness, necessity, and appropriateness of detention. [...]

4. The US government should ensure the adoption of enforceable human rights detention standards in all detention facilities that house immigration detainees, either through legislation or through the adoption of enforceable policies and procedures by the Department of Homeland Security. There should be effective independent oversight to ensure compliance with detention standards and accountability for any violations.”

The report comes as the U.S. administration considers changes to this area. See the official White House agenda on this topic at http://www.whitehouse.gov/agenda/immigration/.

National Grid P.L.C. v. Argentina (UNCITRAL, Nov. 3, 2008)

Click here for document (approximately 133 pages)

An arbitration tribunal instituted under the Arbitration Rules of the United Nations Commission on International Trade Law (“UNCITRAL Rules”) pursuant to an Agreement between United Kingdom and Argentina for the Promotion and Protection of Investments, found Argentina liable to National Grid P.L.C. (National Grid), a British company, in the amount of almost $54 million. The tribunal did not accept Argentina’s argument that its actions were within the state of necessity defense under international law.

The facts, as stated in the award, are as follows: Argentina enacted laws in 1989 and 1991 privatizing several industry sectors, including its electricity sector. At some point National Grid became a shareholder in Transener and Transba, two government- created companies, who were granted 95-year concessions to provide high-voltage electricity transmission services. National Grid also made other investments through Transener. Finally, in 1997, 1999 and 2001, Transener was awarded three contracts to construct, operate and maintain transmission lines in return for periodic payments from the beneficiaries of the lines; the associated payments were to be calculated in U.S. dollars and adjusted periodically in accordance with the US Consumer Price Index and the US Producer Price Index. In 2002, through the enactment of a reform law, Argentina changed important payment calculations and “forbade electricity transmission and public utility companies from suspending or modifying compliance with their obligations under their concessions and licenses.”

National Grid argued that Argentina had “expropriated its investment by acts and omissions contrary to the undertakings and assurances related to the remuneration regime on which its investment was premised.” According to National Grid, Argentina, in addition to expropriating the investment, 1) treated the investment unfairly and inequitably, 2) failed to provide its investment protection and constant security, 3) implemented laws that were unreasonable and discriminatory against the energy sector and 4) breached the BIT umbrella clause protections. Argentina countered the allegations, arguing that “the crisis situation in the Argentine Republic since 2001” justified a state of necessity defense. In fact, Argentina claimed, the measures taken “were the only way to safeguard an essential interest against a grave and imminent peril, and they did not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole; investors have been treated in the same manner irrespective of their nationality or within the same type of activity; and the international obligations of the Respondent under the Treaty do not exclude the possibility to plead the defense of the state of necessity.”

The tribunal rejected National Grid’s claims relating to discrimination, the breach of the umbrella clause and expropriation. However, the tribunal did find that Argentina breached its obligations by failing to accord fair and equitable treatment and protection and constant security to the investment.

The interesting discussion relates to the necessity defense put forward by Argentina. The tribunal pointed out that the necessity defense was recognized under Article 25 of the International Law Commission’s Draft Articles on State Responsibility, “which both Parties agree reflect[ed] the current status of customary international law.” The tribunal reviewed the evidence presented and found that while the “crisis was caused by internal and external factors,” Argentina’s contribution to the crisis was substantial, thus invalidating the necessity defense.

Fadi al Maqaleh v. Gates (D.D.C. Apr. 2, 2009)

Click here for document (approximately 53 pages)

The U.S. District Court for the District of Columbia held that detainees imprisoned at the U.S. Air Base in Bagram, Afghanistan can challenge the legality of their detention before a federal judge in a U.S. court, based on Boumediene v. Bush (2008). By comparing the petitioners here to those in Boumediene, Judge Bates concluded that given the “citizenship, site of apprehension, and status -- the analysis for these petitioners is roughly the same as it was for the petitioners in Boumediene.” The Court rejected the government’s argument that applying the Boumediene standard to individuals held in Afghanistan “is tantamount to a holding that the Constitution ‘applies to the four corners of the earth.’” The Court disagreed with the government’s conclusion, noting instead that the “narrowly drawn” test in Boumediene only applies in cases where the U.S. has “the degree of control over a site that would permit meaningful review of an individual's detention following a ‘reasonable amount of time.’”

The four petitioners “are all foreign nationals captured outside Afghanistan yet held at the Bagram Theater Internment Facility at Bagram Airfield in Afghanistan for six years or more” as enemy combatants by U.S. forces. The U.S. government filed a motion to dismiss their habeas corpus petitions on the basis that the court lacked jurisdiction to review their status in the aftermath of Boumediene.

The case has received much attention, especially after the new administration informed the court that it ‘“adheres to its previously articulated position’” regarding the treatment of habeas petitions of alleged enemy combatants. Many did not anticipate that the new administration would agree with the Bush administration litigation position in this case, especially given President Obama’s criticisms of the Bush administration policy during campaign days.

In Re South African Apartheid Litigation (D.C.N.Y. Apr. 8, 2009)

Click here for document (approximately 144 pages)

United States District Court for the Southern District of New York granted in part and denied in part defendants’ motion to dismiss the plaintiffs’ claim under the Alien Tort Claims Act (ATCA), alleging defendants’ multinational corporations aided and abetted the brutal apartheid regime in South Africa thus violating customary international law.

There are two classes of plaintiffs, the Ntsebeza and Khulumani, each alleging different types of violations. According to the Ntsebeza plaintiffs, Daimler, Ford, and GM [the automotive defendants] “committed both direct and secondary violations of law of nations by engaging in workplace discrimination that mimicked and enhanced apartheid.” The Ntsebeza plaintiffs also claim that the IBM [the technology defendants] “committed secondary violations of the law of nations by providing the computer hardware, software, maintenance, and support necessary for the South African government to carry out geographic segregation and denationalization.” Finally, according to the Ntsebeza plaintiffs, Barclays Bank [the banking defendants] “directly and indirectly violated the law of nations through its employment practices.”

The Khulumani plaintiffs also allege that the automotive defendants aided and abetted by providing automotive parts to the apartheid security forces; the technology defendants aided and abetted apartheid by providing software to track dissidents; and that the banking defendants violated the law of nations by financing the apartheid government. Finally, Khulumani plaintiffs also allege that Rheinmetall [military supply defendants] provided armaments and military equipment to the apartheid regime, thus aiding and abetting the South African government in violations of customary international law.

The two classes of plaintiffs originally filed their claim in 2002. However, the Southern District of New York court dismissed their actions, finding aiding and abetting unavailable under the ATCA. The 2nd Circuit reversed. Defendants petitioned the Supreme Court for a writ of certiorari, but without a necessary quorum of six justices, the Supreme Court affirmed the 2nd Circuit, and the case returned to the District Court, where defendants filed the current motion to dismiss.

The District Court held that ATCA applies exterritorialy, thus disagreeing with the defendants’ argument that the ATCA should only apply within U.S. borders. The Court went on to hold that while state-sponsored apartheid was against customary international law, “this Court declines to recognize a tort of apartheid by a non-state actor.” The Court did allow the following claims to continue:

1) Ntsebeza plaintiffs v. Daimler, GM, and Ford, for aiding and abetting torture, cruel, inhuman or degrading treatment, extrajudicial killing, and apartheid

2) Ntsebeza plaintiffs v. IBM, for aiding and abetting arbitrary denationalization and apartheid

3) Khulumani plaintiffs v. Rheinmetall, for aiding and abetting extrajudicial killing and apartheid

All other claims were dismissed.

Prosecutor v. Radovan Karadzic (ICTY, Mar. 26, 2009)

Click here for document (approximately 10 pages)

The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 (ICTY) issued an interesting decision finding that the accused Radovan Karadzic understood and spoke English for the purposes of his trial for war crimes and genocide allegedly committed during the Balkan conflict.

The practical effect of the decision is that from hereon all documents requested by the accused will be in English, not in Bosnian/Croatian /Serbian (B/C/S) as was initially decided. The prosecution successfully argued that Karadzic was able to understand English for the following reasons: 1) he studied at Columbia University for one year in 1974; 2) he was involved in complex negotiations primarily conducted in English during the Balkan conflict; 3) he gave lengthy interviews in English and also spoke English to officials and diplomats; 4) he has verified translations of documents first submitted in his native language; 5) he has also made submission in English. Finally (and most surprisingly) the prosecution argued that his pro bono legal adviser had written on his blog that Karadzic spoke English with him.

The Tribunal found the evidence convincing and decided that there was no need to spend money on costly translations when the accused understood the English originals.

Rule of Law in Armed Conflicts Project (Geneva Academy of International Humanitarian Law and Human Rights, 2009)

Click here for website

The Geneva Academy of International Humanitarian Law and Human Rights has recently started the Rule of Law in Armed Conflicts Project as “an initiative . . . to support the application and implementation of international law in armed conflict.” According to the website, “the Project aims ultimately to report on every concerned State and disputed territory in the world, considering both the legal norms that apply as well as the extent to which they are respected by the relevant actors.”

U.S. to Run for Election to the UN Human Rights Council (Dept. of State, Mar. 31, 2009)

Click here for press release (approximately 1 page)

According to the United States Department of State press release, the U.S. Secretary of State Hillary Rodham Clinton and U.S. Permanent Representative to the United Nations Ambassador Susan Rice announced that the United States is intending to seek a seat on the United Nations Human Rights Council “with the goal of working to make it a more effective body to promote and protect human rights.”

Secretary of State Clinton stated that “[h]uman rights are an essential element of American global foreign policy” and that “[w]ith others, we [the U.S.] will engage in the work of improving the UN human rights system to advance the vision of the UN Declaration on Human Rights.” Clinton added that “[t]he United States helped to found the United Nations and retains a vital stake in advancing that organization's genuine commitment to the human rights values that we share with other member nations. We believe every nation must live by and help shape global rules that ensure people enjoy the right to live freely and participate fully in their societies.”

The decision to seek election to the Council is yet another step by the current administration to reverse the Bush era policy on the Council.

EC Signs Hague Choice of Court Convention (Apr. 1, 2009)

Click here for press release (approximately 1 page); click here for Convention (approximately 10 pages)

According to the Hague Conference on Private International Law website, H.E. Mr Jirí Pospísil, Czech Minister of Justice and the current president of the European Union, has signed on behalf of the European Community the Hague Convention of 30 June 2005 on Choice of Court Agreements during the Council on General Affairs.

So far, Mexico has acceded to the Convention in 2007 and “only one more ratification or accession is needed for the entry into force of the Convention, which is open to all States.”

The Convention is meant to “promote international trade and investment through enhanced judicial co-operation” through “uniform rules on jurisdiction and on recognition and enforcement of foreign judgments in civil or commercial matters” (see Preamble). More information on the Convention and the drafting process is available at http://www.asil.org/insights050726.cfm.