|Resolutions, Declarations, and Other Documents|
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Interlaken Declaration (Feb. 19, 2010)
Click here for document (approximately 7 pages)
In an attempt to reform by 2011 the ineffective procedures at the European Court of Human Rights—given that the Court has a backlog of approximately 120,000 cases—forty-seven member states of the Council of Europe, expressing "deep concern" about the backlog, have set out a "roadmap" in the form of a declaration. The Council member states stressed that all states parties to the European Convention on Human Rights and the European Court of Human Rights share responsibility in ensuring that the Court's work is done efficiently. The current situation, the member states noted, "causes damage to the effectiveness and credibility of the Convention and its supervisory mechanism and represents a threat to the quality and the consistency of the case-law and the authority of the Court."
To facilitate the reform process, increased state party participation is necessary. The declaration requires the states parties to implement specific measures, including, inter alia, full execution of the Court's judgments; increased cooperation between national human rights NGOs and national governments; improved accessibility to all necessary background information on the application process; facilitation of friendly settlements; and implementation of general measures that effectively remedy the causes of repetitive applications.
|Judicial and Similar Proceedings|
European Court of Justice
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Judgment in Case C-386/08, Brita GmbH v. Hauptzollamt Hamburg-Hafen (Feb. 25, 2010)
Click here for document (approximately 11 pages)
The European Court of Justice ruled that products originating in the West Bank are outside the scope of the EC-Israel Association Agreement. The Court held that products originating in the West Bank were governed by the EC-Palestinian Liberation Organization (PLO) Association Agreement.
Both agreements exempt from customs duties products imported from Israel or the Palestinian territories to the European Union and require both parties' authorities to cooperate with EC authorities in determining product origin.
Brita, a German company, sought to import into Germany products manufactured in the West Bank. To claim preferential treatment under the EC-Israel agreement, Brita informed German customs authorities that the goods originated in Israel. German customs authorities asked Israeli authorities to confirm the origin, which the Israeli authorities did. However, Israeli authorities failed to respond to a follow-up inquiry as to whether the goods originated in the occupied territories. As a result, German customs refused to grant the preferential treatment under the EC-Israel agreement. Brita sued the authorities in the German finance court, which in turn referred the issue to the European Court of Justice.
The Court compared the two agreements and concluded that the EC-PLO agreement expressly included the West Bank and the Gaza Strip, while similar language was missing from the EC-Israel agreement:
[T]o interpret Article 83 of the EC-Israel Association Agreement as meaning that the Israeli customs authorities enjoy competence in respect of products originating in the West Bank would be tantamount to imposing on the Palestinian customs authorities an obligation to refrain from exercising the competence conferred upon them by virtue of the abovementioned provisions of the EC-PLO Protocol. Such an interpretation . . . would thus be contrary to the principle of general international law, 'pacta tertiis nec nocent nec prosunt', as consolidated in Article 34 of the Vienna Convention.
As a result, the Court held that products originating in the West Bank could not benefit from the EC-Israel agreement.
International Centre for Dispute Resolution
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In the Matter of an Independent Review Process: ICM Registry, LLC v. Internet Corp. for Assigned Names and Numbers ("ICANN") (Feb. 19, 2010)
Click here for document (approximately 79 pages)
An independent review panel, composed of Judge Stephen Schwebel, Jan Paulsson, and Judge Dickran Tevrizian, recently issued its declaration in a dispute between ICM Registry LLC (ICM) and the Internet Corporation for Assigned Names and Numbers (ICANN), holding that the panel's declarations are advisory in nature and not binding on the parties; decisions of the ICANN Board are to be reviewed objectively; ICANN's articles of incorporation required it conform to international law norms and instruments and the laws of California; ICM's application to register .XXX as a top-level domain was approved by ICANN; and ICANN's subsequent reconsideration of the approved application was inconsistent with ICANN's policy.
ICANN, originally a group of American computer scientists controlling the management of Internet identifiers, is a nonprofit public benefit corporation incorporated in 1998 in California and has full operational responsibility over protocol and domain name systems of the Internet. ICANN's corporate governance is set out in its bylaws and articles of incorporation, according to which ICANN's powers are exercised and controlled by its Board.
The dispute between ICANN and ICM involves the registering of a top-level domain (TLD), specifically a generic TLD (gTLD). TLDs, internet address such as .com, .org, .net, can be either sponsored (one entity oversees a narrower community, such as .museum) or unsponsored (gTLDs managed and overseen by ICANN).
In 2000, ICANN decided to invite applications for new gTLDs. Among the applicants was ICM, which sought to register the .XXX as an unsponsored TLD. The new TLD would offer "adult entertainment." Over several years of negotiations on whether .XXX should be registered, the ICM's registration application was finally rejected in 2007 when the majority of ICANN Board members voted against it. ICM requested that the panel review the procedures because it felt that ICANN had singled it out: '"ICANN's reopening of the sponsorship criteria – which it did only for ICM – was unfair, discriminatory and pretextual, and a departure from transparent, fair and well documented policies…not done neutrally and objectively, with integrity and fairness…[it] singled out ICM for disparate treatment, without substantial and reasonable cause.'"
The panel first had to establish whether its declaration would be binding on the parties. To this end, the panel closely analyzed ICANN's bylaws and concluded that the panel's declaration was "not binding, but rather advisory in effect." Then panel went on to declare ICANN's review of ICM's application for registration inconsistent with ICANN's policy. Since ICM prevailed on all other grounds, the panel ordered ICANN to pay all administrative fees, along with the compensation and fees of the review panel, a sum of almost $242,000.
European Court of Human Rights
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Al-Saadoon & Mufdhi v. United Kingdom (Mar. 2, 2010)
Click here for document (approximately 53 pages)
The European Court of Human Rights issued a decision in the case brought by two Iraqi nationals claiming that their detention and subsequent transfer by British forces to Iraqi authorities to stand trial for war crimes—a crime punishable with sentences including the death penalty—violated Articles 2 (right to life), 3 (freedom from torture or inhuman or degrading treatment or punishment), 6 (right to fair trial), 13 (right to effective remedy), and 34 (individual applications) of the European Convention on Human Rights. Specifically, the applicants claimed that their transfer to Iraqi authorities would expose them to the death penalty and an unfair trial.
The U.K. argued that, at the date of transfer, there were no substantial grounds for believing that the applicants would face the death penalty if convicted and that the U.K. had no choice but to respect the Iraqi sovereignty and transfer the applicants.
The Court dismissed both arguments by the U.K. It first emphasized that the U.K. did nothing to ensure that the applicants' Convention rights would be guaranteed once they were transferred to Iraqi authorities. Specifically, there was no record of negotiations on this issue between the two governments. By failing to elicit binding assurance from the Iraqi government as to the safety of the applicants, the U.K. violated Articles 2 and 3 of the Convention. In addition, by failing to comply with an earlier interim measure by the Court, the U.K. violated Articles 13 and 34 of the Convention.
However, the Court also concluded that the applicants failed to establish that at the time of their transfer there was a risk of unfair trial. In other words, the U.K. did not violate the applicant's Article 6 rights.
Inter-American Court of Human Rights
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González ("Cotton Field") v. Mexico (Nov. 16, 2009)
Click here for document (approximately 138 pages)
The Inter-American Court of Human Rights issued an important decision in November 2009 that was recently translated into English. The Court ruled that Mexico had violated several human rights obligations, including, the rights to life, personal integrity, and personal liberty, when it failed to protect the life of three young women, two of whom were minors. The women, who had disappeared in an area where gender violence is prevalent, were found dead days after their disappearance. While autopsies done on their bodies did not disclose the exact cause of death, the physical evidence suggested that all three women had been sexually assaulted, tortured, and brutally murdered.
Mexico partially acknowledged that the initial investigations into the victims' disappearance had been irregular, but it disputed that it had violated the victims' the right to life, humane treatment, dignity, and personal liberty.
One of the most controversial aspects of the judgment is the Court's decision to apply Article 7 of the Convention on the Prevention, Punishment and Eradication of Violence against Women, or as the Court called it, the Convention of Belém do Pará. Mexico argued that the Court lacked jurisdiction to apply the Belém do Pará Convention, claiming that "the Court can only interpret and apply the American Convention and other instruments that expressly grant it jurisdiction." The Court disagreed and concluded that "the combination of the systematic and teleological interpretations, the application of the principle of effectiveness, added to the sufficiency of the literal criterion in this case, allow the Court to ratify its compulsory jurisdiction as regards examining violations of Article 7 of the Convention of Belém do Pará."
Ciuad Juárez, a Mexican city on the border with El Paso, TX, has received international attention due to an increasing number of disappearances and murders of women and girls. Paragraphs 113 – 164 of the judgment illustrate a gruesome picture of violence against women in this region and the apparent lack of state activity to halt the problem.
African Commission on Human and Peoples' Rights
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Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya (Feb. 4, 2010)
Click here for document (approximately 80 pages)
The African Commission on Human and Peoples' Rights has issued a ruling against Kenya, finding it in violation of Articles 1 (obligation of states parties), 8 (right to practice religion), 14 (right to property), 17 (right to culture), 21 (right to free disposition of natural resources), and 22 (right to development) of the African Charter on Human and Peoples' Rights and has ordered Kenya to return the ancestral land originally belonging to the Endorois, an indigenous community living in Kenya. Kenya was also ordered to pay the Endorois compensation for losses suffered due to unlawful eviction by the Kenyan government.
The complaint, which was filed by two nongovernmental organizations on behalf of the Endorois, alleged numerous violations resulting from the unlawful displacement of the Endorois from their ancestral lands, failure to properly compensate them for their property, interference with their religious and cultural rights and the "overall process of development of the Endorois people." Allegedly, in 1973, after hundreds years of having "customary" rights to the lands—the Endorois did not have actual title to the land, but always considered themselves to be the rightful and bona fide owners of it—the Endorois were evicted by the Kenyan government without compensation.
The Commission determined that the Endorois had property rights over their land, even though Kenyan authorities had denied them a legal title. The Commission ordered that Kenya take steps to return the disputed land to the Endorois and compensate them within three months for the damages.
According to a press release by the Human Rights Watch, this ruling is the first time an international tribunal found "a violation of the right to development" and also "determine[d] who are indigenous peoples in Africa, and what are their rights to land."
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International Court of Justice: Territorial and Maritime Dispute (Nicaragua v. Colombia) - Costa Rica Requests Permission to Intervene in the Proceedings (Feb. 26, 2010)
Click here for press release (approximately 3 pages)
On February 25, 2010, Costa Rica filed an application with the International Court of Justice (ICJ) requesting permission to intervene in the case concerning Territorial and Maritime Dispute (Nicaragua v. Colombia). According to the ICJ press release, Costa Rica has stated that it only wishes to intervene in the maritime aspect of the dispute that "might affect Costa Rica's legal rights and interests." This, Costa Rica has declared, is a precautionary step to ensure that 1) its legal rights are protected and 2) the Court is informed of Costa Rica's legal rights and interests that could potentially be affected in a future delimitation decision.
The proceedings were commenced in 2001 when Nicaragua filed an application with the ICJ to determine the legal "title to territory and maritime delimitation" in the western Caribbean.
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International Law In Brief (ILIB) - Copyright 2010
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