Resolutions, Declarations, and Other Documents
| | | | United Nations Security Council Resolution 1883 on Iraq (Aug. 7 2009) Click here for document (approximately 3 pages) The United Nations Security Council, stressing “the importance of stability and security of Iraq” has extended the mandate of the United Nations Assistance Mission for Iraq (UNAMI) for a period of twelve months. The Security Council expressed concern for “human rights challenges . . . and humanitarian issues confronting the Iraqi people,” and has asked all parties to place particular emphasis on the protection of children. In addition, UNAMI and the Special Representative of the Secretry-General were requested “to continue to pursue their expanded mandate.”
The resolution notes that the Security Council will “review the mandate of UNAMI in twelve months or sooner” if a request is made by Iraq. In the meantime, the Council has asked that the Secretary General submit quarterly reports to the Security Council “on the progress made toward the fulfillment of all UNAMI’s responsibilities.” | | | | | | United Nations Security Council Resolution 1884 on the Middle East (Aug. 27, 2009) Click here for document (approximately 3pages) The Security Council has decided to extend the mandate of the United Nations Interim Force in Lebanon (UNIFIL) until August 31, 2010. According to the Security Council and the Government of Lebanon, which requested the extension of the mandate, the situation in Lebanon continues to pose a threat to international peace and security.
The Security Council condemned recent violations of Resolution 1701 and requested all parties “to respect the cessation of hostilities and to cooperate fully with the United Nations” in order to achieve positive results in the region. Referring to latest breaches of Resolution 1701, Daniel Carmon, Israel’s representative to the United Nations, said that the situation in the area “was fraught with growing complexity and challenges, especially in recent years,” a reality evidenced in the recent Secretary-General’s report on the implementation of Resolution 1701. | | | | | | United Nations Security Council Resolution 1885 on Liberia (Sept. 15, 2009) Click here for document (approximately 3 pages) The Security Council has extended the mandate of the United Nations Mission in Liberia (UNMIL) until September 30, 2010, and authorized “UNMIL to assist the Liberian government with the 2011 general presidential and legislative elections, by providing logistical support, particularly to facilitate access to remote areas, coordinating international electoral assistance, and supporting Liberian institutions and political parties in creating an atmosphere conducive to the conduct of peaceful elections.”
The Security Council has also requested that the Secretary General “provide in his reports an indication of progress toward achieving a coordinated United Nations approach in Liberia” and “to continue to monitor progress on core benchmarks, in particular on progress on preparations for the 2011 elections, and on the progress made towards building the capability of the Liberia National Police.” | | | | | | United Nations Security Council Resolution 1886 on Sierra Leone (Sept. 15, 2009) Click here for document (approximately 3 pages) The United Nations Security Council has extended the mandate of the United Nations Integrated Peacebuilding Office in Sierra Leone (UNIPSIL) until September 30, 2010. The Council stressed “the importance of continued integrated support of the United Nations system and the international community for the long-term peace, security and development of Sierra Leone” and underlined the role of UNIPSIL in “providing support to the Government of Sierra Leone in its efforts regarding constitutional reform” and “supporting the preparations for the 2012 elections.”
Finally, the Security Council invited the UNIPSIL and the government of Sierra Leone to promote human rights and welfare in the region. | | | | | | United Nations Security Council Resolution 1887 on Maintenance of International Peace and Security: Nuclear Non-Proliferation and Nuclear Disarmament (Sept. 24, 2009) Click here for document (approximately 6 pages) On September 24, 2009, the United Nations Security Council unanimously adopted a United States-sponsored resolution pledging all State Parties to implement necessary steps to create a nuclear-free world, which would improve international stability.
Among other commitments, the Security Council has called upon all State Parties to comply with all their obligations and fulfill their commitments under the Treaty on the Non-Proliferation of Nuclear Weapons (NPT); states not parties to the NPT were asked “to accede to the Treaty” to “achieve its universality.”
It is interesting to note that the resolution makes no mention of either Iran or North Korea by name, instead only cites resolutions concerning the countries’ nuclear activities. The resolution stresses, in general terms, that “that a situation of non-compliance with non-proliferation obligations shall be brought to the attention of the Security Council, which will determine if that situation constitutes a threat to international peace and security, and emphasizes the Security Council’s primary responsibility in addressing such threats.” |
Judicial and Similar Proceedings
| European Court of Justice | | | | Republic of Estonia, Lithuania and Slovak Republic v. Commission of the European Union & Republic of Poland, Hungary, Lithuania and Slovak Republic v. Commission of European Communities (Sept. 23, 2009) Click here for Poland decision (approximately 26 pages); click here for Estonia decision (approximately 21 pages) On September 23, 2009, the Court of First Instance of the European Union issued two separate judgments annulling the decisions of the European Commission (Commission) concerning Estonia’s and Poland’s national allocation plans (NAP) for greenhouse gas emission allowances. The Court found that the Commission had overstepped its authority under European Community (EC) law when it relied on its own methods for calculating the countries’ NAPs.
Article 1 of the European Parliament and Council Directive 2003/87/EC establishes a system that governs trading of greenhouse emission allowances within the EC. Under this system, each EC Member State must develop a national plan, “based on objective and transparent criteria,” allocating the total quantity of greenhouse allowances for a specified period. Each Member then submits its plan to the Commission.
Article 9(3) of the directive, which authorizes the Commission to review the NAPs, allows it to reject a plan, in form of a “reasoned decision,” if the Commission finds that the plan is incompatible with the directive. In case a plan is rejected, the Member State cannot make amendments unless approved by the Commission.
Both Estonia and Poland had submitted their NAPs to the Commission, and both plans were rejected because the methods of calculation and the final quantities were not in accordance with the directive. In its decision rejecting the NAPs, the Commission rejected the countries’ methods for calculating allowances and, applying its own method and data, requested that both accordingly modify their NAPs. Estonia and Poland lodged this application for annulment, requesting that the court invalidate the Commission’s findings.
The court found that the Commission had overstepped its mandate under the directive and held, in the case of Estonia, that by specifying a specific quantity of allowances, any exceeding of which is regarded as incompatible with the criteria laid down by the Directive, and by rejecting the national plan of the Republic of Estonia in so far as the total quantity of allowances proposed therein exceeds that threshold, the Commission has exceeded the limits of its power of review under Article 9(1) and (3) and Article 11(2) of the Directive. The Court reached the same conclusion in the case of Poland, where it held that “Republic of Poland is right to argue that the Commission did not have the power to replace the data contained in the NAP with its own data, obtained on the basis of a single method of assessment applied to all the Member States.”
The Commission can appeal this decision within two months of the judgment. | | | International Criminal Court | | | | | | Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Sept. 25, 2009) Click here for document (approximately 44 pages) The Appeals Chamber of the International Criminal Court (ICC) affirmed the Trial Chamber’s decision finding the case against Germain Katanga admissible, thus rejecting his grounds for appeal.
Katanga, who was transferred to the ICC in October 2007, is charged with committing, by enlisting others, crimes against humanity (including murder, sexual slavery, and rape) and war crimes (including using children under the age of fifteen to participate actively in hostilities, intentionally directing an attack against civilians, willful killing, destroying property, sexual slavery, and rape). In his original motion challenging the admissibility of the case before the ICC, Katanga argued, inter alia, that the Democratic Republic of Congo (DRC) was the appropriate forum to prosecute him, not the ICC. Furthermore, he argued that documents kept undisclosed by the prosecutor showed that the DRC had commenced criminal investigations against him and that the nondisclosure had resulted in an incorrect determination that the case was admissible before the ICC. The Trial Chamber dismissed Katanga’s arguments in June 2009, whereupon he lodged the present appeal.
The Appeals Chamber reviewed all five grounds of appeal, but focused on the principle of complementarity, under which the ICC will defer jurisdiction to a national court if the national court is willing and able to prosecute the individual. Katanga argued that the Trial Chamber misapplied the relevant parts of Article 17 of the Rome Statute by erroneously interpreting the term “unwilling.”
The Appeals Chamber rejected Katanga’s argument and held that “the question of unwillingness or inability of a State having jurisdiction over the case becomes relevant only where, due to ongoing or past investigations or prosecutions in that State, the case appears to be inadmissible.” The Appeals Chamber, relying on outside evidence and statements by DRC authorities, concluded that no investigation against Katanga had taken place in the DRC, and, as a result, his reliance on Article 17 was misplaced. In relevant part, the Chamber held: [I]n considering whether a case is inadmissible under article 17 (1)(a) and (b) of the Statute, the initial questions to ask are (1) whether there are ongoing investigations or prosecutions, or (2) whether there have been investigations in the past, and the State having jurisdiction has decided not to prosecute the person concerned. It is only when the answers to these questions are in the affirmative that one has to look to the second halves of sub-paragraphs (a) and (b) and to examine the question of unwillingness and inability. To do otherwise would be to put the cart before the horse. Katanga also challenged the Trial Chamber’s “acquiescence” in the DRC’s decision to “relinquish jurisdiction,” which he argued “would be to negate the obligations of States to prosecute crimes.” The Appeals Chamber, which acknowledged the existence of a duty of states to prosecute, nonetheless stress[ed] that the complementarity principle, as enshrined in the [Rome] Statute, strikes a balance between safeguarding the primacy of domestic proceedings vis-à-vis the International Criminal Court on the one hand, and the goal of the Rome Statute to “put an end to impunity” on the other hand. If States do not or cannot investigate and, where necessary, prosecute, the International Criminal Court must be able to step in. | | | International Centre for Settlement of Investment Disputes | | | | | | Toto Costruzioni Generali S.p.A. v. Republic of Lebanon (Sept. 11, 2009) Click here for document (approximately 65 pages) An International Centre for Settlement of Investment Disputes (ICSID) arbitration tribunal has held that it had jurisdiction to decide a dispute between Toto Costruzioni Generali S.p.A. (Toto), an Italian construction company that had contracted with a state-run agency to build a highway in Lebanon, and the Republic of Lebanon, pursuant to an agreement between Italy and Lebanon on the Promotion and Reciprocal Protection of Investments (Treaty), the ICSID Convention, and the ICSID Arbitration Rules.
Toto filed a request for arbitration with ICSID in April 2007, alleging “various breaches of the Treaty by Lebanon, such as changing the regulatory framework; delaying or failing to carry out the necessary expropriations; failing to deliver sites; failing to protect Toto's legal possession; and giving erroneous design information and instructions.” Toto also alleged that a pending action filed against Lebanon with the Lebanese Conseil d’Etat (the Lebanese administrative court) in 2001 amounted to a “denial of justice.” Toto asked the tribunal to declare that Lebanon breached its legal obligations under the Treaty and to order Lebanon to indemnify Toto for damages amounting to more than $27 million. Lebanon challenged the tribunal’s jurisdiction, arguing that Toto’s highway construction project was not an “investment” either under the Treaty or the ICSID Convention, that Toto could not invoke the Treaty to submit the claim before an ICSID tribunal, that an independent non-state organ unrelated to the state had been involved, and that the claims put forward by Toto were contractual claims and fell outside the language of the Treaty.
The tribunal first determined, by referring to Articles 4 and 5 of the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, that the agency that had originally contracted with Toto and the agency’s successor were both state organs and exercised governmental authority. As a result, Lebanon was not shielded from liability. Furthermore, rejecting Lebanon’s argument that the road project was not an investment, the tribunal applied several recent ICSID decisions, including Saipem v. Bangladesh, and decided that the project met the “investment requirements deemed necessary” by the tribunal. The tribunal then limited its jurisdiction to the following claims: “whether (i) the delay in expropriation, (ii) the failure to remove Syrian troops and (iii) the changes in the regulatory framework, constitute breaches of Article 2 and/or Article 3.1 of the Treaty.” However, the tribunal also held that it had no jurisdiction with respect to remainder of Toto’s claims, including a) Erroneous Instructions and Design as breaches of Article 2 and Article 3.1 of the Treaty; b) Disruption of negotiations as breach of Article 3.1 of the Treaty; c) Delays in two law suits before the Conseil d'Etat as breach of Article 3.1 of the Treaty; d) Lack of Transparency in the proceedings before the Conseil d'Etat as breach of Article 3.1 of the Treaty; and e) Indirect expropriation as breach of Article 4.2 of the Treaty. | | | Extraordinary Chambers in the Courts of Cambodia | | | | | | Co-Investigating Judges Order Extending Provisional Detention of Nuon Chea (Sept. 16, 2009) Click here for document (approximately 10 pages) The Co-Investing Judges of the Extraordinary Chambers in the Courts of Cambodia (ECCC), a joint tribunal established by the United Nations and the Royal Government of Cambodia to try senior members of the Khmer Rouge regime for crimes against humanity, recently issued an order extending the provisional detention for another term of twelve months of Nuon Chea, a former Deputy Secretary of the Communist Party of Kampuchea (CPK) and member of the CPK Central and Standing Committee.
Nuon Chea was charged with crimes against humanity (including murder, torture, imprisonment, prosecution, extermination, enslavement, deportation and forcible transfer and other inhumane acts) and grave breaches of the Geneva Convention (including willful killing, torture, inhumane acts, willfully causing great suffering or serious injury to body or health, willful deprivation of rights to a fair trial, unlawful confinement, and unlawful deportation or transfer). He was placed in provisional detention on September 19, 2007, for a term of one year. This initial order was extended by another year in 2008, because the Co-Investigating Judges had determined at that time that continued detention was necessary to prevent him from exerting pressure on witnesses or destroying evidence.
In their recent order extending his provisional detention for still another year, the judges concluded that there was still well founded reason to believe that Nuon Chea may have committed the crime or crimes specified . . . and provisional detention appear[s] as a necessary measure to: (i) prevent the Charged Person from exerting pressure on any witnesses or Victims; (ii) ensure the presence of the Charged Person during the proceedings; (iii) protect the security of the Charged Person; and (iv) preserve public order. |
Briefly Noted
| | | | New Insight: The Goldstone Report by David Kaye, discussing the recent Report of the United Nations Fact Finding Mission on the Gaza Conflict, available at http://www.asil.org/insights091001.cfm |
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International Law In Brief (ILIB) - Copyright 2009
The American Society of International Law
Author:Djurdja Lazic
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