|Resolutions, Declarations, and Other Documents|
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United Nations Security Council Resolution 1882 on Children and Armed Conflict (August 4, 2009)
Click here for document (approximately 5 pages)
The United Nations Security Council has adopted resolution 1882 “[s]trongly condemn[ing] all violations of applicable international law involving the recruitment and use of children by parties to armed conflict as well as their re-recruitment, killing and maiming, rape and other sexual violence, abductions, attacks against schools or hospitals and denial of humanitarian access by parties to armed conflict and all other violations of international law committed against children in situations of armed conflict.”
The Security Council stressed that national governments played the “primary role” in ensuring the safety and protection of children. Furthermore, the Security Council recalled that the obligation to “end impunity and to prosecute those responsible for genocide, crimes against humanity, war crimes and other egregious crimes perpetrated against children” lies with the individual states. In this respect, the Security Council welcomed the fact that both national and international courts and tribunals have assisted in bringing to justice “several individuals who are alleged to have committed crimes against children in situations of armed conflict.” (One example would be Thomas Lubanga Dyilo, currently being tried before the International Criminal Court.)
The Security Council also called “on all parties to armed conflict to comply strictly with the obligations applicable to them under international law for the protection of children in armed conflict, including those contained in the Convention on the Rights of the Child and its Optional Protocol on the involvement of Children in Armed Conflict, as well as the Geneva Conventions of 12th August 1949 and their Additional Protocols of 1977.”
Finally, the Security Council requested that all parties concerned, including Member States, the Secretary General, and other United Nations entities, monitor and report on issues related to children and armed conflict.
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United Nations Security Council Resolution 1881 - Reports of the Secretary-General on the Sudan (July 30, 2009)
Click here for document (approximately 4 pages)
Through resolution 1881, the United Nations Security Council extended the mandate of the African Union-United Nations Hybrid Operation in Darfur (UNAMID), stating “that the situation in Sudan constitutes a threat to international peace and security.” Noting that “there can be no military solution to the conflict in Darfur and that an inclusive political settlement and the successful deployment of UNAMID are essential to re-establishing peace,” the Security Council demanded “that all parties to the conflict, including all rebel groups, immediately engage fully and constructively in the peace process without preconditions.”
The Security Council also expressed “concern, two years after the adoption of resolution 1769 (2007), at the continued seriousness of the security situation and deterioration of the humanitarian situation in Darfur, and at the recurring attacks on the civilian population” and “call[ed] on all parties to comply with their obligations under international humanitarian and human rights law, emphasizing the need to bring to justice the perpetrators of such crimes and urging the Government of Sudan to comply with its obligations in this respect.”
Finally, the Security Council “request[ed] the Secretary-General to develop a comprehensive strategy for providing protection to women and girls from sexual violence and gender-based violence and to ensure that the relevant provisions of resolutions 1325 (2000) and 1820 (2008) are implemented by UNAMID and to include information on this in his reporting to the Council.”
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United States Signs Landmark Disability Agreement (July 30, 2009)
Click here for press release (approximately 1 page); click here for United Nations press release (approximately 1 page); click here for the text of the Convention and Optional Protocol (approximately 37 pages); click here for Ambassador Susan Rice remarks (approximately 1 page)
On July 30, 2009, Ambassador Susan Rice signed the United Nations Convention on the Rights of Persons with Disabilities on behalf of the U.S. government. The United States is now one of 141 signatory nations.
The Convention and its Optional Protocol were adopted on December 13, 2006 and were opened for signature on March 30, 2007. According to the United Nations website, on the opening day of the Convention, “[t]here were 82 signatories to the Convention, 44 signatories to the Optional Protocol, and 1 ratification of the Convention. This is the highest number of signatories in history to a UN Convention on its opening day.” The Convention has been called “the first comprehensive human rights treaty of the 21st century and is the first human rights convention to be open for signature by regional integration organizations.” The purpose of the Convention “is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.”
The Convention, which recalls the existence of other human rights instruments (including the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families), notes that “despite these various instruments and undertakings, persons with disabilities continue to face barriers in their participation as equal members of society and violations of their human rights in all parts of the world.”
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House of Lords/House of Commons Joint Committee on Human Rights - Allegations of UK Complicity in Torture (July 21, 2009)
Click here for report (approximately 140 pages)
The Joint Committee on Human Rights, a body appointed by the United Kingdom House of Lords and the House of Commons to “consider matters relating to human rights in the United Kingdom,” has issued its report on the allegations of UK complicity in torture.
The report notes that “[t]here have been a number of reports that UK security services have been complicit in the torture of UK nationals held in Pakistan and elsewhere.” The report aims at determining whether those allegations are true by identifying what type of conduct constitutes “complicity in torture” and whether conduct by UK authorities amounted to such conduct.
The Committee concludes that in order to “restore public confidence in the intelligence services . . . an independent inquiry into the numerous allegations about the UK’s complicity in torture” had to be established. The inquiry should be tasked with “mak[ing] recommendations about improving the accountability of the security and intelligence services, and removing any scope for impunity . . . and look[ing] into whether there was any connection between the UK Government’s controversial view of the limited territorial scope of application of UNCAT [United Nations Convention Against Torture] on the one hand and the adequacy of its guidance to its intelligence and security operatives on the other.”
|Judicial and Similar Proceedings|
High Court of England and Wales
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McKinnon v. Secretary of State for Home Affairs (July 31, 2009)
Click here for decision (approximately 41 pages); click here for summary (approximately 7 pages)
On July 31, 2009, the High Court of Justice refused Gary McKinnon’s request for judicial review of the Director of Public Prosecutions (DPP) decision not to prosecute him in the UK and the Home Secretary’s decision to order McKinnon extradited to the United States. In rejecting McKinnon’s request to review the decision of the DPP, “[t]he Court agreed . . . that the USA is the appropriate jurisdiction for the prosecution of Mr McKinnon’s alleged offending conduct.” With respect to the request to review the decision by the Home Secretary, the Court added “that the question whether his rights under the European Convention on Human Rights would be infringed by his extradition was for the Home Secretary and the Courts to decide, not the prosecuting authorities in this country.”
Gary McKinnon is charged by the United States for hacking into hundreds of U.S. government computers, “damag[ing] computers by impairing their integrity, availability and operation of programmes, systems, information and data, rendering them unreliable. The cost of repair was alleged to total over $700,000.” McKinnon was arrested in March of 2002 and the U.S. has ever since sought his extradition to the U.S. to face charges. Once the prosecution authorities in the UK decided not to prosecute him there, “[h]e unsuccessfully resisted his extradition in proceedings before District Judge . . . [and] the House of Lords, which dismissed his appeal on 30 July 2008.” After the House of Lords rejected the Applicant’s appeal, the Secretary of State, pursuant to statutory duty under section 118 of the 2003 Act, had to extradite him to the U.S. unless extradition would amount to violation of the Convention. The Secretary of State found that no such limitation applied and ordered the Applicant extradited. McKinnon also filed a claim in the European Court of Human Rights, arguing that his extradition would amount to violation of his Convention rights, a claim the European Court rejected in August of 2008.
His appeal to extradite would have ended there had McKinnon not been diagnosed with Asperger Syndrome, a form of autism, which led his lawyers to appeal to the Home Secretary to reconsider the initial decision to extradite McKinnon. In a letter to the Home Secretary following McKinnon’s diagnosis, he “contended that there was a real and substantial risk that if extradited to the USA the Claimant would be detained in a so-called supermax prison, in severe conditions without contact with his partner or family that would infringe his rights under Articles 3 and 8.” In October 2008, the Home Secretary rejected the request on the basis that no evidence was presented showing that McKinnon’s detention would infringe with his Article 3 and Article 8 rights. A similar request was sent to the DPP, asking the office to reconsider its initial rejection to prosecute McKinnon in the UK, but it was also rejected in February 2009.
International Court of Justice
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Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (Request for Advisory Opinion) – Public Hearing Date Set (July 29, 2009)
Click here for press release (approximately 2 pages); click here for Court’s order fixing time-limits (approximately 2 pages); click here for General Assembly Request for Advisory Opinion (approximately 3 pages)
The International Court of Justice has announced that it will hold public hearings on the question of the Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo. According to the Court’s press release, the public hearings are scheduled to commence on December 1, 2009. The hearings will allow the United Nations and its Member States to present statements and comments on the legality of Kosovo’s declaration of independence, and also enable the Provisional Institutions of Self-Government of Kosovo to respond to any such statements.
On October 8, 2008, the United Nations General Assembly requested the advisory opinion pursuant to Article 65 of Statute of the Court, which enables the Court to “give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.”
Pursuant to the October 17, 2008 Order, the Court determined that “the United Nations and its Members States [were] considered likely to be able to furnish information on the question submitted to the Court for an advisory opinion.” As a result, 36 UN Member States filed written statements on the question presented, which will “remain confidential until the Court decides to make them accessible to the public, at the opinion of the oral proceedings or at a later date.”
European Court of Human Rights
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Dubus S.A. v. France (June 11, 2009)
Click here for decision (available in French) (approximately 26 pages); click here for press release (approximately 4 pages)
The European Court of Human Rights unanimously held in Dubus S.A. v. France that France violated Article 6 §1 (right to a fair trial) of the European Convention on Human Rights because the disciplinary proceedings by the French Banking Commission (Commission) against the applicant company were not independent and impartial. However, the Court found that there was no violation of Article 6 § 1 of the Convention with respect to the complaints about the unfairness of the proceedings before the Conseil d’Etat.
The dispute between the applicant and governmental authorities began in 2000, when the applicant, an investment company, was accused of 1) failing to follow regulations that prescribed the reporting of clients’ deposits, 2) failing to keep sufficient funds, and 3) breaching management and book keeping rules. The Commission opened disciplinary proceedings against the applicant. The applicant challenged the lawfulness of the Commissions’ proceedings, alleging that the Commission lacked impartiality and fairness because it served as a “prosecuting, investigating and judicial authority.” The applicant’s challenge, which was dismissed by the Commission, was appealed to the Conseil d’Etat. The Conseil d’Etat, “rejecting the complaints concerning the Commission’s combined powers,” dismissed the applicant’s appeal.
The European Court of Human Rights agreed with the applicant that the proceedings before the Commission were not in fact impartial and independent and thus in violation of the Convention. The Court noted that “[w]hile the combination of investigative and judicial functions was not, in itself, incompatible with the need for impartiality,” the applicant “might reasonably have had the impression that it had been prosecuted and tried by the same people, and had doubts about the decision of the Commission, which, in its various capacities, had brought disciplinary proceedings against it, notified it of the offences and pronounced the penalty.”
The Court considered that the decision amounted to just satisfaction and awarded the applicant company 15,000 euros for costs and expenses.
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The United States and Swiss government to Settle Bank Secrecy Case (August 1, 2009)
Click here for press release (approximately 2 pages); click here for Department of Justice press release (approximately 2 pages)
The Washington Post reports that the United States and the Swiss government have “‘reached an agreement in principle on the major issues’ and expect to resolve remaining points over the next week” over a “legal dispute in which the U.S. government was demanding the names of thousands of Americans suspected of using Swiss bank accounts to hide money from the Internal Revenue Service.” While the terms of the agreement remain secret, this development is significant especially since the “dispute had escalated into a serious confrontation between the two countries, pitting U.S. law enforcement and tax collection efforts against Swiss economic interests.”
In February of this year, the U.S. government filed a lawsuit in a Miami federal court against Swiss bank UBS AG, asking the court to order the international bank to disclose to the Internal Revenue Service (IRS) the identities of the bank’s U.S. customers with secret Swiss accounts. According to the U.S. government, as many as 52,000 U.S. customers have been hiding their UBS accounts from the government in violation of the tax laws. The U.S. government alleged that “as of the mid-2000s, those secret accounts held about $14.8 billion in assets” and “UBS engaged in cross-border securities transactions in the United States that it knew violated U.S. security laws.” Furthermore, UBS allegedly “helped hundreds of U.S. taxpayers set up dummy offshore companies, to make it easier for those taxpayers to avoid their reporting obligations under U.S. tax laws.”
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International Law In Brief (ILIB) - Copyright 2009
The American Society of International Law
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