• International Criminal Court Review Conference Resolutions (June 10, 2010)

• Treaty between the Republic of Trinidad and Tobago and Grenada on the Delimitation of Marine and Submarine Areas (April 21, 2010)

• Safe State Amendment – Oklahoma Joint House Resolution on International and Sharia Law (May 25, 2010)

International Centre for Settlement of Investment Disputes

• Alasdair Ross Anderson and Others v. Republic of Costa Rica (May 19, 2010)

United States Supreme Court

• Rent-A-Center West v. Jackson (June 21, 2010)

• Holder et al. v. Humanitarian Law Project et al. (June 21, 2010)

International Criminal Court

• Decision Informing the UN Security Council About the Lack of Cooperation by the Republic of the Sudan (May 25, 2010)

European Court of Human Rights

• Turgay & Others v. Turkey (June 15, 2010)

• Schalk & Kopf v. Austria (June 24, 2010)

• Joan E. Donoghue Nominated to Serve as a Judge on the International Court of Justice (June 18, 2010)

International Criminal Court Review Conference Resolutions RC/Res.4

Click here for ICC Review Conference Web site

The Review Conference of the Rome Statute concluded in Kampala, Uganda, on June 11, 2010. Remarkably, the Conference adopted a resolution amending the Rome Statute to include a definition of the crime of aggression and provisions for activation of the Court’s jurisdiction over the crime. The definition is based on 1974 United Nations General Assembly Resolution 3314 (XXIX).

In addition, the States Parties adopted a resolution amending Article 8 of the Rome Statute (allowing the Court to prosecute as a war crime the employment of certain poisonous weapons and expanding bullets, asphyxiating or poisonous gases, and all other liquids and materials, when such employment takes place in armed conflict not of an international character); and a resolution preserving in its current form Article 124, which allows new States Parties to exclude for seven years from the Court’s jurisdiction war crimes allegedly committed by its nationals or on its territory, but agreeing to review its provisions at the 14th session of the Assembly of States Parties.

Other notable resolutions adopted at the Conference include a resolution regarding the impact of the Rome Statute system on victims and affected communities; a resolution dealing with complementarity; and a resolution on the enforcement of sentences.

For more detailed information about the ICC Review Conference, check out the ASIL Insight by David Scheffer on this topic. See also the ASIL ICC Review Conference blog.

Treaty between the Republic of Trinidad and Tobago and Grenada on the Delimitation of Marine and Submarine Areas (April 21, 2010)

Click here for document (approximately 8 pages)

As we reported a while back, Grenada and Trinidad and Tobago exchanged instruments of ratification of the Treaty on the Delimitation of Marine and Submarine Areas on April 27, 2010, one week after the formal treaty signing in Port of Spain.

A copy of the agreement, which permits the exploration for oil and gas in Grenada’s waters and seeks the protection of marine species there, has been made available by the government of Grenada at its official Web site.

Oklahoma Safe State Amendment – State of Oklahoma Joint House Resolution on International and Sharia Law (May 25, 2010)

Click here for document (approximately 5 pages)

The Oklahoma House of Representatives adopted a Joint Resolution directing the Secretary of State to refer for a vote a proposed state constitutional amendment, which would require state courts to follow only the U.S. Constitution, the Constitution of Oklahoma, established rules and regulations, and federal and state common law. The Resolution would prohibit reliance on international or Sheria law.

In pertinent part, the Resolution reads:

The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

International Centre for Settlement of Investment Disputes

Alasdair Ross Anderson and Others v. Republic of Costa Rica (May 19, 2010)

Click here for document (approximately 27 pages)

An International Centre for Settlement of Investment Disputes (ICSID) arbitral tribunal has ruled that investment of funds by several Canadian citizens into a Ponzi scheme operated in Costa Rica by two Costa Rican nationals was not an investment under the Canada-Costa Rica Bilateral Investment Treaty (BIT). The tribunal thus foreclosed the claimants’ ability to collect damages for their losses incurred once the Ponzi scheme collapsed.

The claimants, 137 Canadian citizens, commenced the arbitration proceedings against the government of Costa Rica, claiming that Costa Rica, by failing to properly oversee and supervise its national financial system, injured their investment in violation of the BIT, including the full protection and security, fair and equitable treatment, due process of law, and protection against expropriation provisions of the treaty.

The ICSID tribunal concluded that the transactions between the claimants and the Ponzi scheme operators were illegal as they were in violation of Costa Rican law. Consequently, since the original transactions were illegal so were the assets resulting from those transaction. In sum, the ownership and the resultant gains were all unlawful and thus not an investment under the BIT.

Interestingly, the tribunal rejected the respondent’s argument that the claimants should bear the costs of the arbitration. Each party was ordered to pay its own costs and fees.

United States Supreme Court

Rent-A-Center West v. Jackson (June 21, 2010)

Click here for document (approximately 27 pages)

The Supreme Court, reversing the judgment of the Ninth Circuit, held that under the Federal Arbitration Act, a former employee’s challenge of the validity of his employment contract as a whole, rather than the specific agreement to arbitrate, is left for the arbitrator to consider. The decision, which will impact both national and international arbitrations and arbitration agreements, follows the pro-arbitration view adopted by the U.S. Supreme Court in recent years.

Respondent Antonio Jackson sued his former employer, Rent-A-Center, challenging the arbitration agreement contained in his employment contract. Jackson alleged that the arbitration agreement, under which he agreed to have an arbitrator resolve any dispute arising out of his employment or regarding the enforceability of the agreement, was unconscionable and thus unenforceable under Nevada law.

Relying on previous case law, the Supreme Court held that only claims challenging specifically the validity of the agreement to arbitrate are relevant to a court’s determination whether the arbitration agreement is enforceable. The Court, establishing that Jackson’s argument referred to the agreement as a whole, concluded that the arbitrator, not the court, could hear the claim.

Holder et al. v. Humanitarian Law Project et al. (June 21, 2010)

Click here for document (approximately 65 pages)

The U.S. Supreme Court recently ruled that the Material Support Statute, 18 U.S.C. §2339B, as it applied to the support the plaintiffs in the case intended to provide to two terrorist organizations, was not unconstitutionally vague and did not violate the plaintiffs’ Fifth and First Amendment rights.

The Material Support Statute makes it a crime to “knowingly provid[e] material support or resources to a foreign terrorist organization.”

Plaintiffs, two U.S. citizens and six domestic organizations, intended to provide support to two organizations (the Partiya Karkeran Kurdistan (PKK) and the Liberation Tigers of Tamil Eelam (LTTE)). Both organizations are designated as terrorist organizations by the Secretary of State. Plaintiffs commenced suit, asking U.S. courts to enjoin the enforcement of the Material Support Statute as it violated their constitutional rights. The lower court partially enjoined the enforcement of the Statute and the Night Circuit affirmed. Thereafter, both the plaintiffs and the U.S. government cross petitioned for writ of certiorari.

The Supreme Court reviewed the relevant provision and concluded that Congress had clearly spoken on the issue of what types of actions were prohibited by the Statute: “Congress has prohibited the provision of ‘material support or resources’ to certain foreign organizations that engage in terrorist activity.” Plaintiffs’ intended activities, including the “training [of] PKK members to use international law to resolve disputes peacefully; teaching PKK members to petition the United Nations and other representative bodies for relief; and engaging in political advocacy on behalf of Kurds living in Turkey and Tamils living in Sri Lanka,” clearly fell within the range of activities prohibited by the Statute. The Court, relying on statements issued by Congress, held that foreign organizations engaging in terrorist activity “are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.”

The Court remanded the case to the lower courts for further proceedings.

Justice Stephen Breyer, with whom Justices Ruth Bader Ginsburg and Sonia Sotomayor joined, dissented. While he agreed with the majority that the Statute was not unconstitutionally vague, he disagreed with the “conclusion that the Constitution permits the Government to prosecute the plaintiffs criminally for engaging in coordinated teaching and advocacy furthering the designated organizations’ lawful political objectives.” In his view, “the Government has not met its burden of showing that an interpretation of the statute that would prohibit this speech- and association-related activity serves the Government’s compelling interest in combating terrorism.”

International Criminal Court

Decision Informing the United Nations Security Council About the Lack of Cooperation by the Republic of the Sudan (May 25, 2010)

Click here for document (approximately 8 pages)

Pre-Trial Chamber I of the International Criminal Court (ICC) has, pursuant to a request filed by the Office of the Prosecutor under Regulation 31 of the Regulations of the Court, ordered the Registrar to inform to the United Nations Security Council of Sudan’s continued non-cooperation with two outstanding arrest warrants against Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman.

The warrants were issued in April 2007 and, despite continued attempts to secure their arrest and surrender, Sudan has refused to comply with the Chamber’s orders. As a result, the Court, relying on numerous Security Council resolutions, has asked that the Security Council be informed of the continued non-compliance. Moreover, the Chamber has asked the Security Council “to take any action it may deem appropriate.” While Sudan is not a State Party to the ICC, it is bound to follow Security Council resolutions as a member of the United Nations.

The situation in Darfur was referred to the Court in March 2005 by the Security Council.

European Court of Human Rights

Turgay & Others v. Turkey (June 15, 2010)

Click here for document (approximately 11 pages)

The European Court of Human Rights unanimously held that the suspension of two weekly newspapers published in Turkey violated Article 10 (freedom of expression) of the European Convention on Human Rights (Convention). The Court concluded that discontinuing the publication of future, unknown news content, even if for just one month, unjustifiably restricted the press’ freedom of expression in a democratic society.

In January of 2008, a Turkish court suspended for one month the publications pursuant to the Prevention of Terrorism Act, alleging that these newspapers contained propaganda supporting the crimes of a threatening terrorist organization. The applicants, the owners and editor-in-chief of these papers, all Turkish nationals, were criminally prosecuted for distributing such propaganda. They alleged that this suspension constituted an unjustified interference with their freedom of expression and amounted to censorship. The government, disagreeing, argued that the suspension was necessary to protect national security.

Examining prior case law, the Court determined that an Article 10 violation existed in an identical complaint (Urper & Others v. Turkey), and it could not find a reason why it should depart from this previously drawn judgment. As before, the Court concluded that the suspension of the newspapers was unnecessary, and that more lenient measures, such as the confiscation of the particular newspaper issues or the ban of specific articles, could have been alternatively imposed. Having found a violation of Article 10, the Court decided that making separate rulings regarding the applicants’ other alleged violations of Articles 6 (right to a fair trial), 7 (no punishment without law), and 13 (right to an effective remedy) of the Convention and Article 1 of Protocol No. 1 (right to property) to the Convention was unnecessary.

Schalk & Kopf v. Austria (June 24, 2010)

Click here for document (approximately 27 pages)

The European Court of Human Rights has ruled that there is no requirement under the European Convention on Human Rights to grant same-sex couples access to marriage.

The applicants, a male Austrian couple, had ineffectively petitioned their government to allow them to be married. When domestic challenges to the Civil Code, which provides that same-sex marriages are “null and void” proved unsuccessful, the applicants asked the European Court to declare that the Austrian law and jurisprudence on the issue were in violation of the applicants’ Article 12 (right to marry) and Article 14 (nondiscrimination) Convention guarantees.

The European Court acknowledged that the Convention is a “living instrument which had to be interpreted in present-day conditions;” however, it stopped short of recognizing a right to marry for same-sex couples. In particular, the Court concluded that while “the institution of marriage has undergone major social changes since the adoption of the Convention . . . there is no European consensus regarding same-sex marriage. At present no more than six out of forty-seven Convention States allow same-sex marriage.”

Joan E. Donoghue Nominated to Serve as a Judge on the International Court of Justice (June 18, 2010)

Joan E. Donoghue, the State Department’s Principal Deputy Legal Adviser and an ASIL member, was nominated by the U.S. National Group to serve as a Judge on the International Court of Justice (ICJ). If elected, she will replace ICJ Judge Tomas Buergenthal. Donoghue’s nomination follows on the recent nomination by the Chinese National Group of Xue Hanqin to replace Judge Shi Jiuyong.

There are currently no women serving on the ICJ. If elected, Xue and Donoghue would become only the second and third woman to serve as ICJ judges in the history of the Court.

For more information on the ICJ appointment procedure, see a recent ASIL Insight.