• U.S.-Brazil Defense Cooperation Agreement (Apr. 12, 2010)

International Court of Justice

• Pulp Mills on the River Uruguay (Argentina v. Uruguay) (Apr. 20, 2010)

World Trade Organization

• United States – Measures Affecting the Production and Sale of Clove Cigarettes, Request for Consultation by Indonesia (Apr. 14, 2010)

European Court of Human Rights

• Kin-Stib and Majkic v. Serbia (Apr. 20, 2010)

Inter-American Commission on Human Rights

• Mossville Environmental Action Now v. United States, Admissibility (Mar. 17, 2010)

Federal Court of Australia

• Habib v. Commonwealth of Australia (Feb. 25, 2010)

Ninth Circuit Court of Appeals

• Serra v. Lappin (Apr. 9, 2010)

• Nuclear Security Summit (Apr. 12-13, 2010), Foreign Policy List of National Commitments

U.S.-Brazil Defense Cooperation Agreement (Apr. 12, 2010)

Click here for document (approximately 3 pages)

The United States and Brazil have signed a Defense Cooperation Agreement, pledging to cooperate in defense-related matters, including exchange of information, sharing of experiences, combined military training and education, and general cooperation and collaboration in other military fields.

The agreement, completed in Washington, D.C. on April 12, 2010, will enter into force once the parties have exchanged notifications “that their internal procedures as are necessary to bring this Agreement into force have been satisfied.”

The Agreement stipulates that each party’s “Executive Agent”, i.e. the Brazilian Ministry of Defense and the U.S. Department of Defense, will be in charge of facilitating its implementation.

International Court of Justice

Pulp Mills on the River Uruguay (Argentina v. Uruguay) (Apr. 20, 2010)

Click here for document (approximately 80 pages)

The International Court of Justice issued a decision in the dispute between Argentina and Uruguay regarding the construction by Uruguay of two pulp mills on the Uruguay River, finding Uruguay in breach of its procedural obligations under Articles 7 and 12 of the 1975 Statute of the River. The Court also held that its declaration that Uruguay had breached the 1975 Statute constituted just satisfaction.

Argentina commenced the proceedings against Uruguay in 2006 under the 1975 Statute, a treaty signed by the parties to govern the “regime for the use of the river.” Argentina claimed that the construction of two pulp mills on the Uruguay River has caused environmental damage to the river and its surroundings, and that Uruguay’s failure to coordinate the construction through the appropriate agency amounted to substantive breaches. Uruguay argued that it was not in breach of its international obligations and that it had properly monitored the project and ensured that environmental standards were met.

As Cymie R. Payne noted in her recent Insight on the decision, “[t]his judgment is a significant step forward in the ICJ’s jurisprudence on environmental law and on shared watercourses. The Court recognized environmental impact assessment as a practice that has become an obligation of general international law in these situations.”

World Trade Organization

United States – Measures Affecting the Production and Sale of Clove Cigarettes, Request for Consultation by Indonesia (Apr. 14, 2010)

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Indonesia has requested consultations with the United States pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes, Article XXII of the General Agreement on Tariffs and Trade 1994 (GATT 1994) and Article 14 of the Agreement on Technical Barriers to Trade (TBT Agreement) regarding a U.S. ban on clove cigarettes.

The ban of all clove cigarettes began in late 2009, ninety days after the U.S. president signed into law the Family Smoking Prevention Tobacco Control Act of 2009, which prohibits the production and sale of cigarettes containing certain additives, including clove, in the U.S. However, the Act does not prohibit the production and sale of other cigarettes, such as cigarettes containing menthol.

Indonesia claims that this Act is inconsistent with U.S. WTO obligations on non-discrimination, as it treats differently “like products.” Indonesia also stipulates that while Article XX of GATT 1994 allows certain measures that protect human, animal or plant life or health, such measures should not be arbitrary or discriminatory, or amount to “a disguised restriction on international trade.” Finally, Indonesia claims that a total ban on clove cigarettes did not take into consideration “scientific and technical information” required by TBT Agreement Article 2, nor did the measure take into account “the special development and trade needs of developing country Members.”

European Court of Human Rights

Kin-Stib and Majkic v. Serbia (Apr. 20, 2010)

Click here for document (approximately 12 pages)

The European Court of Human Rights has found Serbia in violation of Article 1 of Protocol 1 of the European Convention on Human Rights (peaceful enjoyment of possession) regarding the partial non-enforcement of an arbitration award issued in favor of Kin-Stib, a limited liability company based in the Congo, and a former Serbian national.

The applicants both claimed interest in a casino located in Serbia. Kin-Stib originally concluded a joint-venture agreement with a socially-owned company (Generalexport) in 1989 to set up a casino on the premises of a hotel owned by Generalexport. The casino operated only between 1990 and 1993, when it was closed due to financial difficulties. Kin-Stib then commenced an arbitration proceeding against Generalexport, and an award was issued in its favor. The award, which included lost earnings and an order that the casino revert back to Kin-Stib for a period of five years, was only partially satisfied when two successor companies of Generalexport paid the lost earnings part of the award. Kin-Stib never successfully obtained possession of the casino, and the hotel was eventually sold to a third party. Between 2001 and 2005, the national courts of Serbia awarded the applicants damages for their losses; however, those awards were never paid.

The second applicant at one point purchased shares in the casino and thus claimed an ownership interest in the arbitration award.

The Court held that Serbia had to pay the applicants the amounts awarded by Serbian courts, in addition to non-pecuniary damages (8,000 Euros jointly) and Kin-Stib’s costs and expenses (30,000 Euros).

Inter-American Commission on Human Rights

Mossville Environmental Action Now v. United States, Decision on Admissibility (Mar. 17, 2010)

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The Inter-American Commission on Human Rights found the application on behalf of hundreds of Mossville, Louisiana residents admissible. The petition and the request for precautionary measures were filed with the Commission by Advocates for Environmental Human Rights in 2006, alleging that Mossville residents “suffer or are put at risk of various health problems caused by toxic pollution released from fourteen chemical-producing industrial facilities.” The petitioners also claim that the majority of the facilities emitting dangerous and toxic chemicals are all located in an area that is predominately African-American, “resulting in what they refer to as environmental racism.” Petitioners argue that this in turn violates their right to equality before the law guaranteed under Article II of the American Declaration of the Rights and Duties of Men and the American Convention on Human Rights.

The U.S. government argued, inter alia, that the petition should be dismissed because petitioners did not exhaust domestic remedies and that “there is no such right as the right to a healthy environment.”

The Commission first noted that if the U.S. does not recognize rights allegedly suffered, then the petitioners cannot actually exhaust local remedies, as they do not in fact exist. It also concluded that “in interpreting and applying the American Declaration, it is necessary to consider its provisions in the context of international and Inter-American human rights systems more broadly.” Thus, while the U.S. may not recognize the rights alleged in the petition, the Commission is not limited to that narrow reading in determining whether the alleged suffering took place.

Federal Court of Australia

Habib v. Commonwealth of Australia (Feb. 25, 2010)

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The Federal Court of Australia recently held that the act of state doctrine did not bar the claim of an Australian citizen, Mamdouh Habib, alleging torture by Pakistani, Egyptian, and American authorities. The court’s decision thus paves the way for plaintiff’s claim against the Australian government for aiding, abetting, and counseling “agents of foreign states to inflict torture” on him.

The act of state doctrine is a judge-made rule enunciated in Underhill v. Hernandez, 168 U.S. 250 (1897): “Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory.” The Federal Court of Australia applied this definition in its decision.

The Australian government argued that this doctrine should be applied in the present case and the plaintiff’s case dismissed because going forward would inevitably require the court to review and “sit in judgment” of torture allegations perpetrated by foreign countries.

The Federal Court of Australia rejected this argument holding that the act of state doctrine, as it has evolved over the years, did not bar the plaintiff’s claim “insofar as that claim alleges that the Commonwealth is liable for the acts of its officials constituting the torts of misfeasance in public office or the action of intentional but indirect infliction of harm by the aiding, abetting and counseling of agents of foreign states to subject Mr Habib to torture whilst he was detained in Pakistan, Egypt, Afghanistan and Guantánamo Bay.”

Habib was initially arrested in Pakistan and then transferred to different locations where he allegedly was tortured with the knowledge and at times in the presence of Australian officials. He also alleges that Australian authorities authorized his detention.

Ninth Circuit Court of Appeals

Serra v. Lappin (Apr. 9, 2010)

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The United States Court of Appeals for the 9th Circuit held that prisoners “have no enforceable right to be paid for their work under the [U.S.] Constitution or international law.”

Plaintiffs, three current and former inmates of federal prisons in California, commenced the suit against the federal government alleging violation of their due process rights under the Fifth Amendment. They also claimed that their low wages—between $19.00 and $145.00 per month—violated certain international instruments, including the International Covenant on Civil and Political Rights (ICCPR) and the United Nations Standard Minimum Rules for the Treatment of Prisons (Standard Rules), and customary international law norms.

The Court rejected the reliance on international law, concluding that the ICCPR, while ratified by the United States, was not self-executing; that the Standard Rules were not a treaty and therefore not binding on the United States; and that customary international law “is not a source of judicially enforceable private rights in the absence of a statute conferring jurisdiction over such claims.”

According to the Court, the only plausible legal instrument that would allow the plaintiffs’ claim to go forward would be the Alien Tort Statute, which grants the district courts original jurisdiction to hear any civil claim by an alien for a tort “committed in violation of the law of nations or a treaty of the United States.” However, since none of the plaintiffs was an alien, this course of action was also closed.

The Court also acknowledged that in certain circumstances it would apply a canon of statutory construction—also known as the Charming Betsy canon, after the Supreme Court decision Murray v. The Schooner Charming Betsy—that allows the courts, ‘“[w]where fairly possible,’” to construe a U.S. statute so “as to not conflict with international law or with an international agreement with the U.S.” However, the Court concluded that this canon is primarily used to “avoid negative ‘foreign policy implications’ of violating the law of nations.” The Court went on to hold that in the present case, the plaintiffs failed to show that their wages “have any possible ramifications for this country’s foreign policy.”

Nuclear Security Summit (Apr. 12-13, 2010), Foreign Policy List of National Commitments

Click here for press release (approximately 2 pages)

Foreign Policy has published a short summary of major national commitments made by numerous countries at the recent Nuclear Security Summit in Washington D.C. The commitments range from financial obligations to specific promises to eliminate remaining highly enriched uranium. Several countries also vouched to ratify the International Convention on Suppression of Acts of Nuclear Terrorism and the 2005 Amendment of the Convention on Physical Protection of Nuclear Materials.

Last year, President Obama, at the G8 Summit, called for a global nuclear summit in the spring of 2010 to advance his goal of a nuclear free world. The New York Times reported that the Summit was “the largest gathering of world leaders called by an American president since Franklin D. Roosevelt organized the 1945 meeting in San Francisco that created the United Nations.”