• Council of Europe Convention on Access to Official Documents (November 27, 2008)

• Republic of Liberia Truth and Reconciliation Commission Report (July 1, 2009)

• Organization of American States General Assembly Resolution on Cuba (June 3, 2009)

• Organization of American States General Assembly Resolution to Suspend Honduras (July 4, 2009)

European Court of Human Rights

• Pukhigova v. Russia (July 2, 2009)

• Al-Saadoon and Mufdhi v. United Kingdom (June 30, 2009)

• Georgia v. Russia (June 30, 2009)

European Court of Justice

• Omar Mohammed Othman v. Council and Commission (June 11, 2009)

International Centre for Settlement of Investment Disputes

• Saipem S.p.A. v. The People’s Republic of Bangladesh (June 30, 2009)

• Glamis Gold, Ltd. v. U.S. NAFTA (June 8, 2009)

International Criminal Court

• Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui Trial Chamber II Decision on Principle of Complementarity (June 12, 2009)

Special Tribunal for Lebanon

• The Office of the Prosecutor and the Lebanese Government Memorandum of Understanding (June 26, 2009)

• Republic of Kosovo Joins ICSID, World Bank, and IMF

• World Bank settles with Siemens

• Chile Ratifies the Rome Statute

Council of Europe Convention on Access to Official Documents (November 27, 2008)

Click here for document (approximately 7 pages)

At the end of last year, the Committee of Ministers adopted the Council of Europe Convention on Access to Official Documents, a treaty aimed at guaranteeing everyone the right to access official documents upon request. According to the Council’s Explanatory Report issued in conjunction with the Convention, this “is the first binding international legal instrument to recognise a general right of access to official documents held by public authorities.” The Report also notes that the drafting of the Convention was “guided by the concern to identify, amongst the various national legal systems, a core of basic obligatory provisions reflecting what was already accepted in the legislation of a number of countries and that, at the same time, could be accepted by States that did not have such legislation.” The Convention thus represents the minimum standard with respect to the right to have access to official information.

So far twelve European countries, including Belgium, Estonia, Finland, Georgia, Hungary, Lithuania, Macedonia, Montenegro, Norway, Serbia, Slovenia, and Sweden, have signed the Convention.

Republic of Liberia Truth and Reconciliation Commission Report (July 1, 2009)

Click here for document (approximately 384 pages)

The Republic of Liberia Truth and Reconciliation Commission has issued its final report outlining its conclusions and recommendations on the human rights violations that took place during the 24 years of unrest in the country.

The Commission, composed of seven members, was the result of a peace conference that took place in Ghana in 2003. In addition to signing the Comprehensive Peace Agreement, the parties to the conflict also decided to establish the Commission “to foster truth, justice and reconciliation by identifying the root cause of the conflict, and determining those who are responsible for committing domestic and international crimes against the Liberian people.”

The Commission has proposed in the final report “general and specific recommendations” that include issues, such as “reparations, amnesty, prosecution in a specialized Liberian criminal tribunal, public sanctions and a palava hut peace building mechanism to foster peace dialogue and rebuild broken relationships.”

Organization of American States General Assembly Resolution on Cuba (June 3, 2009)

Click here for document (approximately 1 page)

The Organization of American States (OAS) recently voted to rescind the 1962 decision to suspend Cuba’s membership to the international body. The OAS General Assembly, “recognizing the shared interest in the full participation of all member states” and “guided by the purpose and principles of the Organization of American States . . . embodied in the Charter of the Organization and its other fundamental instruments,” resolved to revive the “process of dialogue initiated at the request of the Government of Cuba.” Cuba was one of the 21 original members that founded the OAS in 1948.

According an OAS press release issued a few weeks before the General Assembly vote, the Secretary General of the Organization of American States, José Miguel Insulza, stated that a resolution of this kind “would not mean automatically Cuba’s readmission to the institution. The full reintegration of Cuba to the hemispheric institution is a decision for Cuba itself and all OAS Member States to make. That possibility should be debated in an independent process, separated from an eventual abolition of the 1962 resolution.”

According to several media reports, Cuban ambassador Hector Igarza has stated that Cuba is not interested in coming back to the OAS.

Organization of American States Resolution to Suspend Honduras (July 4, 2009)

Click here for document (approximately 2 pages)

In the aftermath of recent unrest in Honduras, which led to the expulsion of President José Manuel Zelaya Rosales, the OAS General Assembly adopted a resolution immediately “suspend[ing] the Honduran state from the exercise of its right to participate in the Organization of American States, in accordance with Article 21 of the Inter-American Democratic Charter.”

Article 21 allows the General Assembly, upon determination “that there has been an unconstitutional interruption of the democratic order of a member state, and that diplomatic initiatives have failed,” to “take the decision to suspend said member state from the exercise of its right to participate in the OAS by an affirmative vote of two thirds of the member states in accordance with the Charter of the OAS.” However, despite the suspension, the member state has to “continue to fulfill its obligations to the Organization, in particular its human rights obligations.”

The General Assembly was “deeply concerned about the worsening of the current political crisis in the Republic of Honduras resulting from the coup d’état against the constitutional government of President José Manuel Zelaya Rosales, as well as his arbitrary detention and expulsion from the country, which produced an unconstitutional alteration of the democratic order.”

European Court of Human Rights

Pukhigova v. Russia (July 2, 2009)

Click here for document (approximately 18 pages)

The European Court of Human Rights issued its judgment on July 2, 2009 in a disappearance case that took place in the Chechen Republic, unanimously holding that Russia violated Article 2 (right to life), Article 3 (prohibition of inhuman or degrading treatment), Article 5 (right to liberty and security), and Article 13 (right of an effective remedy) of the European Convention on Human Rights (Convention). The Chamber awarded the applicant widow a sum of €35,000 for non-pecuniary damages and €4,757 for costs and expenses.

The Chamber held that the eight-year unjustified disappearance of the applicant's husband and the failure by the Russian authorities to carry out an investigation of the disappearance amounted to two violations of Article 2 of the Convention. Furthermore, the distress and anguish suffered by the applicant because of the inability to find her husband and/or the reason for his abduction constituted inhuman treatment under Article 3 of the Convention. The Chamber also held that the unlawful detention of the applicant's husband constituted “a particularly grave violation of the right to liberty and security as enshrined in Article 5.” Finally, the Chamber, citing the ineffectiveness of local remedies, found a violation of Article 13 of the Convention.

Al-Saadoon and Mufdhi v. United Kingdom (June 30, 2009)

Click here for document (approximately 32 pages)

On June 30, 2009, the European Court of Human Rights declared partly admissible the application by two Iraqi nationals alleging that their transfer from British to Iraqi authorities and the ongoing trial against them for the murder of two British soldiers were in violation of Article 2 (right to life), Article 3 (prohibition of torture and or inhuman and degrading treatment), Article 6 (right to a fair trial) and Article 1 of Protocol No. 13 (abolition of the death penalty). The applicants also claim that their transfer to Iraqi authorities, an act in direct violation of the Court's earlier ruling, amounted to violations of Articles 13 (right to an effective remedy) and Article 34 (right of individual petition).

The Court first noted that the applicants were in British custody from 2003 until 2008, and that the British authorities had “total and exclusive control” over the detention facilities. This, the Court held, meant that the applicants were “within the UK's jurisdiction and remained so until their physical transfer to the custody of the Iraqi authorities on 31 December 2008.” Thus, from a jurisdictional point of view, the European Convention on Human Rights applied to both applicants, and their subsequent transfer to a place where a real risk of potential human rights abuses existed, including an unfair trial with the possibility of receiving the death penalty, “raised serious question of fact and law which were of such complexity that they had to be determined on an examination of the merits.”

The Court declared the applicants’ allegations regarding ill-treatment and/or extra-judicial killing to be inadmissible because applicants had not exhausted all available domestic remedies.

Georgia v. Russia (June 30, 2009)

Click here for document (approximately 15 pages)

In a recent decision, the European Court of Human Rights declared admissible the application instituted by Georgia against Russia for the alleged harassment of Georgian immigrants living in Russia. According to the application, in the aftermath of the 2006 arrest in Tbilisi, Georgia of four Russian nationals on suspicion of espionage, Georgian immigrants in Russia have been subject to mistreatment amounting to violations of numerous provision of the European Convention on Human Rights, including: Article 3 (prohibition of inhuman and degrading treatment and punishment), Article 5 (right to liberty), Article 8 (right to respect for private and family life), Article 13 (right to an effective remedy), Article 14 (prohibition of discrimination), Article 18 (limitation on the use of restrictions on rights) of the Convention; Articles 1 (protection of property) and 2 (right to education) of Protocol No. 1; Article 4 (prohibition of collective expulsion of aliens) of Protocol No. 4 and Article 1 (procedural safeguards relating to expulsion of aliens) of Protocol No. 7.

The allegations were disputed by Russia, which stated that there was no link between the arrest of Russian nationals and the expulsion of Georgian nationals. Furthermore, the removal of Georgians from Russian soil was, according to Russia, an administrative practice aimed at preventing illegal immigration and in accordance with both the Convention and Russia's international obligations.

The Court found that the evidence provided by Georgia was not “wholly unsubstantiated” nor did it lack “the requirements of a genuine allegation required by Article 33 of the Convention.” With respect to the exhaustion of domestic remedies, the Court noted that this was an issue that had to be considered in conjunction with the administrative practices in question during the merit stage of the proceedings. As a result, the Court found the application admissible.

European Court of Justice

Omar Mohammed Othman v. Council and Commission (June 11, 2009)

Click here for document (approximately 11 pages)

In this case, the European Court of Justice (ECJ) was once again asked to review an EU regulation freezing the funds of individuals and entities appearing on the Untied Nations Sanctions Committee list.

In the aftermath of 9/11, through a number of United Nations Security Council Resolutions, all UN Member States were mandated to freeze the funds of individuals and entities associated with Osama bin Laden, Al-Qaeda or Taliban. The Council of the European Union, to give effect to this mandate, adopted a regulation which ordered the freezing of funds of persons and entities listed by the UN Sanctions Committee. Mr. Othman, whose name was on this list and whose assets have been frozen, asked the ECJ to invalidate this action and unfreeze his accounts.

The Court analogized the situation to that in Kadi and Al Barakaat International Foundation v. Council and Commission (Cases C-402/05 and C-415/02), concluding “that both in respect of the procedure leading to the adoption of the contested regulation and in respect of the extent, effects and justification, if any, of the restriction of the use of his right to property arising from that regulation, Mr Othman finds himself in a factual and legal situation in every way comparable to that of Mr Kadi.” Thus, the Court issued an identical ruling, finding the regulation in question void with respect to Mr. Othman.

International Centre for Settlement of Investment Disputes

Saipem S.p.A. v. The People’s Republic of Bangladesh (June 30, 2009)

Click here for document (approximately 63 pages)

Recently, an ICSID tribunal ruled that a decision by the Supreme Court of Bangladesh, annulling and voiding an International Chamber of Commerce (ICC) award in favor of the Claimant Saipem, amounted to an expropriation under Article 5 of the Bilateral Investment Treaty (BIT) between Italy and Bangladesh.

The parties to the dispute, Saipem, an Italian company, and Petrobangla, a state owned natural resource entity in Bangladesh, entered into an agreement to build a pipeline in Bangladesh. At some point, there was a delay in the project, whereupon Saipem asked for an extension to complete the pipeline project. Petrobangla rejected the request and claimed compensation for the failure to complete on time. Both parties started negotiations to settle the issue of compensation resulting from the delay. A dispute arose as to the amount to be paid for the delay, and in 1993 Saipem instituted arbitration proceedings pursuant to the parties’ contract before the ICC. After several years before the ICC, the tribunal issued an award holding that Petrobangla had breached its contractual obligations to compensate Saipem and ordered Petrobangla to pay Saipem more than $6 million. Petrobangla instituted a proceeding before the Supreme Court of Bangladesh and obtained a decision declaring the ICC Award null and void. In 2004, Saipem filed a request to arbitrate before ICSID, alleging that Bangladesh had expropriated Saipem’s investment and breached international obligations under the BIT.

The tribunal held that the decision to void a seemingly legitimate award without justification amounted to expropriation. And while the actions by the judiciary did not amount to “direct expropriation,” the tribunal found that such measures had “similar effects” and “resulted in substantially depriving Saipem of the benefit of the ICC Award.” It is interesting to note that the tribunal and the parties agreed that “the actions of . . . Bangladesh must be ‘illegal’ in order to give rise to a claim of expropriation.” While the tribunal did not find collusion between Petrobangla and the courts, it did hold “that the Bangladeshi courts abused their supervisory jurisdiction over the arbitration process,” and “that the revocation of the arbitrators’ authority was contrary to international law.”

The tribunal ordered Bangladesh to pay Saipem the amount initially awarded by the ICC, plus interest.

Glamis Gold, Ltd. v. U.S. NAFTA (June 8, 2009)

Click here for document (approximately 362 pages)

An ICSID tribunal, instituted pursuant to Article 3 of the United Nations Commission on International Trade Law (“UNCITRAL”) and referencing Articles 1117 and 1120 of the North American Free Trade Agreement (“NAFTA”), dismissed the claims brought by a Canadian mining company (“Glamis”) against the United States, alleging that the US breached its Chapter 11 NAFTA obligations.

Glamis commenced the arbitration in 2003, claiming that US “expropriated rights possessed by Glamis to mine gold in southeastern California and that the United States denied Glamis fair and equitable treatment in its attempts to utilize those rights.” In its notice to arbitrate, Glamis enumerated several “actions taken at the federal and state levels of the United States government that Claimant alleged breached the obligations of the United States under Section A of Chapter 11 of the NAFTA, including: (i) Article 1105 – Minimum Standard of Treatment; and (ii) Article 1110 – Expropriation and Compensation.”

With respect to the expropriation allegation, the Tribunal held that Glamis had failed to establish the first factor of the expropriation analysis, which requires that the measure in question “cause a sufficient economic impact to the Imperial Project [investment in question] to effect an expropriation of Glamis’ [investor’s] investment.” Secondly, the Tribunal addressed the allegation of unfair and inequitable treatment and found that none of the measures enumerated by Glamis amounted to Article 1105 violations.

The Tribunal ordered Glamis to pay two-thirds of the costs of the proceedings.

International Criminal Court

Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui Trial Chamber II Decision on Principle of Complementarity (June 12, 2009)

Click here for press statement (approximately 1 page) [final decision not available at this time]

Trial Chamber II of the International Criminal Court rejected a motion challenging admissibility submitted by the defense for Germain Katanga in the case of The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui. The defense asked the Chamber to find the case against Katanga inadmissible under the Court’s complementarity principle. According to the defense, since legal proceedings were already instituted against the defendant before the Democratic Republic of Congo courts for almost the same crimes, the Chamber had no jurisdiction to hear the case.

The Trial Chamber held that “the principle of complementarity requires the Court to investigate and, where warranted, prosecute and try individuals only if the State concerned is unable or, alternatively, genuinely unwilling to do so.” According to the press release “Presiding Judge Bruno Cotte indicated that the Chamber found a clear and overt unwillingness on the part of the DRC to prosecute Mr Katanga.” Furthermore, the Chamber noted that “the DRC had referred the situation in its territory to the Court because of its commitment to the fight against impunity and that this State had never challenged the admissibility of the case.” Finally, the Chamber added “that the DRC authorities stated to the Court that they had not opened any investigation against Germain Katanga concerning the 24 February 2003 attack on Bogoro for which Mr Katanga is currently being prosecuted before the ICC.”

Germain Katanga, an alleged commander of the Force de résistance patriotique en Ituri [Patriotic Resistance Force in Ituri], was arrested and transferred to the Court pursuant to a warrant of arrest issued on July2, 2007 by Pre-Trial Chamber I. On March 11, 2008, Katanga’s case was joined with that of Mathieu Ngudjolo Chui, an alleged leader of the Front des nationalistes et intégrationnistes [Nationalist Integrationist Front] Both individuals were charged with war crimes and crimes against humanity. This is the second case in the situation in the Democratic Republic of the Congo, after that of Thomas Lubanga Dyilo, whose trial commenced on January 26, 2009.

Special Tribunal for Lebanon

The Office of the Prosecutor and the Lebanese Government Memorandum of Understanding

Click here for document (approximately 4 pages)

The Office of the Prosecutor of the Special Tribunal for Lebanon (STL) and the Government of the Republic of Lebanon have signed a Memorandum of Understanding on the modalities of their cooperation.

The Memorandum requires that the Lebanese government cooperate with the office of the Prosecutor and guarantee that the Prosecutor’s work be free from interference by Lebanese authorities. The Prosecutor shall also be provided with any necessary assistance, including a space at the Court of Cassation.

Republic of Kosovo Joins ICSID, World Bank, and IMF

Click here for press release (approximately 1 page)

According to a press release issued by the International Centre for Settlement of Investment Disputes, the Republic of Kosovo has signed the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention).

The press release also notes that “[b]efore signing the ICSID Convention, the Republic of Kosovo became a member of the International Monetary Fund (IMF) and of the International Bank for Reconstruction and Development (IBRD). The Republic of Kosovo also joined the International Development Association (IDA), the International Finance Corporation (IFC), and the Multilateral Investment Guarantee Agency (MIGA).”

World Bank settles with Siemens

Click here for press release (approximately 1 page)

The World Bank has announced “a comprehensive settlement with Siemens AG in the wake of the company’s acknowledged past misconduct in its global business and a World Bank investigation into corruption in a project in Russia involving a Siemens subsidiary.” According to the press release, “[t]he settlement includes a commitment by Siemens to pay $100 million over the next 15 years to support anti-corruption work, an agreement of up to a four-year debarment for Siemens’ Russian subsidiary, and a voluntary two-year shut-out from bidding on Bank business for Siemens AG and all of its consolidated subsidiaries and affiliates.” In addition to the monetary penalty, “Siemens has also agreed to co-operate to change industry practices, clean up procurement practices and engage in collective action with the World Bank Group to fight fraud and corruption. Siemens will also provide information on any additional cases of wrongdoing to the Bank’s Institutional Integrity Vice Presidency (INT), which investigates fraud and corruption in Bank Group-financed activities.”

Chile Ratifies the Rome Statute

Click here for press release (approximately 1 page)

The International Criminal Court has reported that Chile has ratified the Rome Statute on June 29, 2009, thus becoming its 109th state party.