• Treaty Priority List (U.S. Dept. of State, May 11, 2009)

• Report of the Independent Fact Finding Committee on Gaza: No Safe Place, Presented to the League of Arab States (Apr. 30, 2009)

• Framework Agreement on Integrated Cross-Border Maritime Law Enforcement Operations between the U.S. and Canada– The Shiprider Agreement (May 26, 2009)

• Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Elah (U.S. Sup. Ct. Apr. 21, 2009)

• Renta 4 S.V.S.A. v. Russian Federation (Arbitration Institute of the Stockholm Chamber of Commerce, Mar. 20. 2009)

• Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) - Request for the Indication of Provisional Measures (I.C.J. May 28, 2009)

• Order Regarding the Detention of Persons Detained in Lebanon in Connection with the Case of the Attack Against the Prime Minister Rafiq Hariri and Others (Special Tribunal for Lebanon, Apr. 29, 2009) )

• Georgia: Joint Statement with European Union on Protests in Tbilisi (May 25, 2009)

Treaty Priority List for the 111th Congress (U.S. Dept. of State, May 11, 2009)

Click here for document (approximately 6 pages)

The United States Department of State has issued its Treaty Priority List, enumerating treaties which have the present support of the current administration and treaties on which the current administration does not presently ask for Senate action.

In the area of arms control, the administration strongly supports the Comprehensive Nuclear-Test-Ban Treaty, signed by the United States on September 24, 1996 and submitted to the Senate in 1997.

There are five environmental law related treaty documents, including 1) Annex VI on Liability Arising From Environmental Emergencies to the Protocol on Environmental Protection to the Antarctic Treaty; 2) Agreement on the Conservation of Albatrosses and Petrels; 3) International Treaty on Plant Genetic Resources for Food and Agriculture; 4) 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter; and 5) Stockholm Convention on Persistent Organic Pollutants.

In the human rights area, the administration has asked that the Convention on the Elimination of All Forms of Discrimination Against Women be acted upon by the Congress. The United States signed this treaty on July 17, 1980.

Another treaty that has long awaited ratification is the United Nations Convention on the Law of the Sea, signed by the United States on July 29, 1994.

Finally, the Hague Convention on the International Recovery of Child Support and other Forms of Family Maintenance will be considered.

For the full list of treaty documents, please refer to the above document.

Report of the Independent Fact Finding Committee On Gaza: No Safe Place. Presented to the League of Arab States (Apr. 30, 2009)

Click here for document (approximately 254 pages)

An independent fact-finding committee, established by the League of Arab States to investigate and report on alleged violations of human rights and international humanitarian law arising out of the December 2008 Israel offensive in Gaza, issued its report finding “that there is sufficient evidence to substantiate prosecutions of the Israel Defense Forces (IDF) for war crimes and crimes against humanity. The report also finds that the Israeli political leadership is responsible for such crimes.”

The Committee members are international academics and legal practitioners, including judges. According to the a press release, the Committee “base[d] its findings on a visit to Gaza, during which it interviewed victims and witnesses of the conflict and visited sites of destruction, and on official publications of the Israeli government and NGO’s operating in the Territory.” The report notes that the evidence obtained during the visit “showed convincingly that the IDF had failed to distinguish between military and civilian targets in killing over 1,400 Palestinians (of which at least 850 were civilians, including 300 children and 110 women) and wounding over 5,000, and in destroying over 3,000 homes, damaging a further 11,000 and destroying or damaging hospitals, mosques, schools, factories, businesses, UN properties and government buildings.”

In its report, the Committee noted the investigation instituted by Israel and “rejected the conclusions of this investigation on the grounds that it was not an independent investigation, that it failed to consider most of the allegations made against the IDF and that it had not had regard to Palestinian sources.” The Committee also considered the issue whether IDF had committed acts of genocide, but found that “while IDF actions met some of the requirements for the crime of genocide, Israel lacked the necessary special intention to destroy in whole or in part a national or ethnical group as required by the Genocide Convention because its operation had been motivated by an intention to collectively punish the people of Gaza in order to compel the population to reject Hamas or subdue the population into a state of submission.”

The Committee issued a number of recommendations to the League, including, among others, that the United Nations Security Council refer the situation in Gaza to the International Criminal Court and that the United Nations General Assembly “ask for an advisory opinion from the International Court of Justice on the legal consequences of Operation Cast Lead.”

Framework Agreement on Integrated Cross-Border Maritime Law Enforcement Operations between the U.S. and Canada – The Shiprider Agreement (May 26, 2009)

Click here for document (approximately 17 pages)

The United States and Canada signed a Framework Agreement making joint law enforcement teams stationed along the international maritime border permanent. The joint law enforcement operation, also called Shiprider, is an effort by the Royal Canadian Mounted Police (RCMP) and U.S. Coast Guard to combat criminal activity in the shared waterways, including smuggling, organized drug crime, and gun trade. According to Article 1 of the Agreement, the main aim of the joint effort is “to provide the Parties additional means in shared waterways to prevent, detect, suppress, investigate, and prosecute criminal offences or violations of law including, but not limited to, illicit drug trade, migrant smuggling, trafficking of firearms, the smuggling of counterfeit goods and money, and terrorism.”

Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Elah (U.S. Sup. Ct. Apr. 21, 2009)

Click here for document (approximately 33 pages)

The United States Supreme Court held that a judgment in favor of Iran could not be attached by Respondent Elahi, a U.S. national who successfully obtained an award against Iran for the death of his brother, because Respondent had waived his right to attach any Iranian assets when he agreed to receive partial compensation from the U.S. government.

Elahi, whose brother was allegedly murdered by Iran, sued Iran and successfully obtained a default judgment of about $312 million. Elahi then tried to collect parts of the judgment by attaching Iran’s assets, which were in the form of a judgment obtained by Iran against a California company (Cubic Judgment). Iran invoked the sovereign immunity defense of the Foreign Sovereign Immunities Act, arguing that this prevented any such attachment. The defense was denied by the California District Court, and the Ninth Circuit affirmed, holding that there was an exception to the foreign sovereign immunity defense. The case then reached the U.S. Supreme Court, which remanded, holding that the lower court’s reliance on the “commercial activity” exception was improper, because this exception “applies only to property of an ‘agency or instrumentality’ of a foreign state’”, not ‘property of an entity that itself is an inseparable part of the foreign state [Ministry of Defense].’” On remand, the Ninth Circuit found that a different type of exception applies, namely an exception enumerated in the Terrorism Risk Insurance Act of 2002 (TRIA). The TRIA exception “permit[s] holders of terrorism-related judgments against Iran to attach ‘blocked’ Iranian assets.”

After a lengthy discussion of the U.S.-Iran conflict and the subsequent unblocking of blocked assets, the Supreme Court held that “the asset still was not ‘blocked’ at the time of the decision below.” But even if the asset later was blocked, the Court added, “Elahi cannot attach the Cubic Judgment because he has waived his right to do so.” The Court cited Section 2002 of the Victims of Trafficking and Violence Protection Act of 2000 (VPA) which “offers compensation to individuals holding terrorism-related judgments against Iran,” and “requires those receiving payment to relinquish ‘all rights to . . . attach property that is at issue in claims against the United States before an international tribunal.’” Since the U.S. government paid Elahi $2.3 million under the VPA as partial compensation for his judgment against Iran, and he signed a waiver form that mirrors the statutory language, Elahi could not seek to attach the property in question.

Renta 4 S.V.S.A. v. Russian Federation (Arbitration Institute of the Stockholm Chamber of Commerce, Mar. 20. 2009)

Click here for document (approximately 75 pages)

The Arbitration Institute of the Stockholm Chamber of Commerce issued its decision on Preliminary Objection in the case Renta 4 S.V.S.A. et al. v. the Russian Federation, holding that it had subject matter jurisdiction under Article 10 of the Spanish BIT “to decide whether compensation is due by virtue of claims of expropriation raised” by the Claimants. However, the Tribunal disagreed with the Claimants, holding that it had no subject matter jurisdiction under Article 5 of the Spanish BIT.

The Claimants have alleged in their application “that Russia unlawfully dispossessed Yukos Oil Company (‘Yukos’) of its assets and expropriated it from its shareholders.” As owners of the Yukos American Depository Receipts, Claimants ask that Russia compensate them for their losses. According to the Claimants, Russia expropriated their property “by means of a variety of abuses of executive and judicial power.” The Claimants invoked the Agreement for Reciprocal Promotion and Protection of Investments between Spain and the USSR (Spanish BIT) as the basis for Tribunal’s jurisdiction, specifically Article 10 of the treaty. Russia disagreed with the Tribunal’s jurisdiction, arguing that “Article 10 plainly does not encompass all conceivable disputes under the Spanish BIT and that the Claimants’ Request for Arbitration was therefore misguided when it relied on Articles 4 to 6.”

The Tribunal dismissed Russia’s arguments questioning its jurisdiction, noting that “Article 10 contains some 200 words arranged within four paragraphs. Its purported overall effect is to create international arbitral jurisdiction. It is constructive; its raison d’être is not to limit pre-existing jurisdiction. The search to give meaning to the eight (or eleven) words that follow ‘relating to’ Article 10(1) simply cannot be allowed to deprive the remaining text of its essential positive meaning.”

Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) - Request for the Indication of Provisional Measures (I.C.J. May 28, 2009)

Click here for decision (approximately 18 pages); click here for the Summary of the Order (approximately 11 pages); click here for the press release (approximately 4 pages)

The International Court of Justice issued a decision on the request for the indication of provisional measures submitted by Belgium against Senegal in the case dealing with Questions Relating to the Obligation to Prosecute or Extradite. The Court ruled 13 to one that “the circumstances, as they now present themselves . . . are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.”

Belgium filed its application instituting proceedings against Senegal when a dispute arose between the two countries regarding “Senegal’s compliance with its obligation to prosecute Mr. Hissène Habré, former President of the Republic of Chad, or to extradite him for purposes of criminal proceedings” for violations of customary international law and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Belgium noted in its initial application that the Court had jurisdiction based on declarations made by both countries pursuant to the Court’s Statute dealing with disputes concerning the Convention against Torture. The Statute mandates that with respect to disputes regarding the interpretation of the Convention that cannot be settled through other means, “any of the Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.” According to Belgium, Senegal, where Habré has been residing since 1990, has failed to institute proceedings against him and also rejected the request to extradite him to Belgium to face criminal charges, including crimes of torture and crimes against humanity, allegedly perpetrated during his presidency.

Belgium also filed a Request for the Indication of Provisional Measures pursuant to Article 41 of the Statute of the Court and Articles 73 and 75 of the Rules of the Court, asking the Court “to indicate, pending a final judgment on the merits, provisional measures requiring Senegal to take all the steps within its power to keep Mr. H. Habré under the control and surveillance of the judicial authorities of Senegal so that the rules of international law with which Belgium requests compliance may be correctly applied.”

Senegal argued that there was no need for provisional measures because it was willing to try Habré in its own courts. As to the extradition request, Senegal claimed that while an appeals court held that Habré could not be extradited to Belgium “on the grounds that he enjoyed immunity from jurisdiction by virtue of having been Head of State at the time the acts occurred,” the Heads of State and Government of the African Union allowed Senegal to nonetheless prosecute and try Mr. Habré. If the Court issued provisional measures, Senegal added, such an order would prejudice the merits “and deprive Senegal of the rights it held under international rules, in particular the Convention against Torture.” Finally, Senegal argued that there was no dispute as to the interpretation of the Convention against Torture.

The Court first noted that “its power to indicate provisional measures will be exercised only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice may be caused to the rights in dispute before the Court has given its final decision.” The Court agreed that press releases and statements by Senegalese Head of State, implying that Senegal would set Habré free unless more funding for his detention is available, could “give[] rise to some concern on the part of Belgium.” However, “[t]aking note of the assurances given by Senegal, the Court finds that the risk of irreparable prejudice to the rights claimed by Belgium is not apparent on the date of this Order and concludes from the foregoing that there does not exist, in the circumstances of the present case, any urgency to justify the indication of provisional measures by the Court.”

Order Regarding the Detention of Persons Detained in Lebanon in Connection with the Case of the Attack Against the Prime Minister Rafiq Hariri and Others (Special Tribunal for Lebanon, Apr. 29, 2009)

Click here for document (approximately 15 pages)

The Special Tribunal for Lebanon (Tribunal), which commenced its proceedings on March 1 2009, issued its first decision on April 29, 2009, ordering the immediate release of four generals held in the Tribunal’s custody.

The four individuals have been in the Tribunal’s custody since April 10, 2009, when Lebanese authorities, pursuant to Article (4)(2) of the Tribunal’s Statute, which provides that the Lebanese judicial authority defer its competence over individuals detained in connection with the Hariri case, transferred them to the Tribunal.

The Prosecutor, citing Article 4 of the Statute and Rules 2, 17, 63, 68, 101 and 102 of the Rules, asked the Pre-Trial Judge to order the release of four detained generals, Jamil Mohamad Amin El Sayed, Ali Salah El Dine El Hajj, Raymond Fouad Azar and Mostafa Fehmi Hamdan, noting that under the Tribunals Statute and Rules a “person may not be detained as a suspect for more than ninety days, unless an indictment has been confirmed by the Pre-Trial Judge by the expiry of that period.” According to the Prosecutor, the lack of information “sufficiently credible to warrant indictment of the persons detained” warranted their immediate release.

The Tribunal first noted that “provisional detention is an exceptional measure, which is only warranted where it proves strictly necessary and under the circumstances set out in the Rules.” Relying on the Tribunal’s Rules with respect to detention of suspects and on other international tribunals’ jurisprudence dealing with detention of individuals under criminal investigation, the Tribunal held “the persons detained cannot, at this stage in the investigation, be considered as either suspects or accused persons in the proceedings pending before the Tribunal.”

Georgia: Joint Statement with European Union on Protests in Tbilisi (May 25, 2009)

Click here for statement (approximately 1 page)

The United States and the European Union issued a Joint statement on May 25, 2009, urging “Georgia’s government and opposition to end the current stalemate on the streets and begin negotiations immediately and without preconditions on a new program of reforms to invigorate Georgia’s democracy.” The two governments asked that “all Georgians . . . respect the rule of law, abide by Georgia’s Constitution, avoid violence, and honor the right of peaceful protest.” Finally, both governments pledged “full support for all such efforts aimed at strengthening Georgia’s democratic freedom and prosperity, and reiterate our unyielding support for Georgia’s independence and territorial integrity.”