|Resolutions, Declarations, and Other Documents|
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Council of the European Union Regulation Implementing Enhanced Cooperation in the Area of the Law Applicable to Divorce and Legal Separation (Dec. 13, 2010)
Click here for document (approximately 24 pages)
The Council of the European Union has adopted the Regulation Implementing Enhanced Cooperation in the Area of the Law Applicable to Divorce and Legal Separation. The Regulation went into force on December 30, 2010.
Under Article 81 of the Treaty on the Functioning of the European Union, the Union is authorized to adopt measures dealing with judicial cooperation in civil matters having cross-border implications. This is true with respect to conflict of law rules applicable in the Member States, including laws dealing with legal separation and divorce proceedings.
The Regulation is meant to provide foreseeable and clear outcomes to spouses applying for separation or divorce, irrespective of where such proceedings are initiated. However, the Regulation does not apply to rules governing the existence, validity, or recognition of a marriage, annulment of a marriage, and other validity matters.
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WHO Global Code of Practice on the International Recruitment of Health Personnel (May 21, 2010)
Click here for document (approximately 8 pages)
The World Health Organization has unanimously adopted the Global Code of Practice on the International Recruitment of Health Personnel at the 63rd World Health Assembly held in May 2010. The Code, not binding on the Member States, provides “an ethical framework to guide Member States in the recruitment of health workers.” The Code is primarily meant to address the shortage of health workers in developing countries.
The Code encourages Member States to work together in “sustain[ing] health human resources development and training,” and asks the Member States to “discourage active recruitment of health personnel from developing countries facing critical shortages of health workers.”
According to the WHO, “[t]his is only the second Code in WHO's history, after the International Code of Marketing of Breast-milk Substitutes in 1981.”
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Motu Proprio Data on Illegal Activities in the Financial Sector (Dec. 30, 2010)
Click here for English translation (approximately 1 page)
Pope Benedict XVI has issued an Apostolic Letter in the form of Motu Proprio on the prevention and countering of illegal activities in the financial and monetary sectors. The decree provides for the creation of a new authority, Autorita di Informazione Finanziaria (AIF), to prevent money laundering and other financial crimes as required by the Monetary Agreement between Vatican City State and the European Union signed on December 17, 2009. The Financial Times reports that the decree is an attempt by the Vatican to “seek[ ] the blessing of international regulators who have refused to include it on lists of countries compliant with international norms.”
According to the decree, the AIF will be “connected” with the Holy See and will have public juridical canonical status and Vatican civil status. It will be overseen by Cardinal Attilio Nicora, head of the body responsible for Church properties and funding.
The Vatican Secretariat of State issued a statement clarifying the new anti-money laundering legislation and the establishment of the AIF.
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UN Security Council Resolution 1966 on the International Residual Mechanism for Criminal Tribunals (Dec. 22, 2010)
Click here for document (approximately 19 pages)
The United Nations Security Council, acting under Chapter VII of the UN Charter, has established an ad hoc mechanism to finalize the work of the two criminal tribunals—the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The so-called International Residual Mechanism for the International Criminal Tribunals is scheduled to start its mandate on July 1, 2012 for the ICTR and July 1, 2013 for the ICTY. Both the ICTY and ICTR have been requested to take “all possible measures to expeditiously complete all their remaining work” by December 31, 2014.
The Statute of the International Residual Mechanism, annexed to Resolution 1966, sets out the rules relating to the competence, functions, structure, organization, and jurisdiction of the new system. Notably, upon the closure of the ICTY and the ICTR, the Mechanism will “continue the material, territorial, temporal and personal jurisdiction of the ICTY and the ICTR” (Article Article 1) and will perform its functions from two separate branches—the ICTY branch will be located in The Hague and the ICTR branch will be located in Arusha (Article 3).
Primarily, the Mechanism will prosecute “persons indicted by the ICTY or the ICTR who are among the most senior leaders” and others who cannot be tried effectively in national jurisdictions (Article 1).
With respect to the organization of the Mechanism, the Statute provides that there will be two separate Trial Chambers and a common Appeals Chamber, prosecutor, and registry (Article 4). While the Mechanism and national courts will have “concurrent jurisdiction to prosecute” suspects, the Mechanism will have “primacy over national courts” (Article 5).
Finally, Annex 2 of Resolution 1966 provides guidance on transnational arrangements between the ICTY and ICTR and the Mechanism, including details relating to the temporal competence of the different organs.
|Judicial and Similar Proceedings|
International Centre for Settlement of Investment Disputes
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Global Trading Resource Corp. & Globex Int’l, Inc. v. Ukraine (Dec. 1, 2010)
Click here for document (approximately 20 pages)
An International Centre for Settlement of Investment Disputes tribunal has recently dismissed a claim by several U.S. investors against Ukraine pursuant to Rule 41(5) of the ICSID Arbitration Rules under which a party can file an objection with the tribunal that a claim is “manifestly without legal merit.” According to the tribunal, “this is, to the Tribunal’s knowledge, only the third occasion on which a decision has had to be taken on objection under Rule 41(5).”
The tribunal, acknowledging the relative newness of Rule 41(5)—introduced as part of amendments that came into effect in April 2006—was “particularly conscious” of its precedent-setting role and provided several important guidelines for future parties utilizing Rule 41(5).
The U.S. investors (claimants) and Ukraine (respondent) agreed that the issue before the tribunal was one of law and not of fact. Specifically, Ukraine claimed that the transactions at the center of the dispute—purchase agreements between two U.S. investors and Ukraine to sell poultry in Ukraine—were not “investments” under either the U.S.-Ukraine BIT or the ICSID Convention.
The tribunal, applying Rule 41(5), decided that a balance had to be struck between the respondent’s right to a “pre-preliminary dismissal” and the claimants’ due process rights. Specifically, the tribunal had to decide whether a dismissal at the earliest stage of the proceedings would harm either side, especially since the parties had no real chance to present their case. To reach a balanced answer, the tribunal posed the following question: “[W]hat other materials might either Party (specifically the Claimants) bring to bear if the question at issue were to be postponed until a later stage in the proceedings?” The tribunal was unable to identify any “further materials relevant to the question at issue” and concluded that Rule 41(5) requirements were thus sufficiently satisfied.
The tribunal then went on to determine whether the claimants claim was “manifestly without legal merit.” Here, the tribunal relied on recent cases dealing with the definition of investment and concluded that the transactions between the U.S. investors and Ukraine were of pure commercial nature and therefore could not “qualify as an investment” under either the BIT or the ICSID Convention. The tribunal found the claimants' argument that the Ukrainian government instigated and initially supported the transactions irrelevant.
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Strategic Arms Reduction Treaty Approved by U.S. Senate (Dec. 22, 2010)
Click here for press release (approximately 1 page)
On December 22, 2010, the U.S. Senate voted in favor (71-26) of the new Strategic Arms Reduction Treaty between Russia and the United States. The approval by the U.S. government of the landmark arms control treaty is a “major foreign policy victory” for the Obama Administration. President Obama and President Medvedev signed the START treaty and its protocol on April 8, 2010.
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2006 International Convention for the Protection of All Persons from Enforced Disappearances Enters Into Force
Click here for blog post (approximately 1 page)
According to the United Nations press release, the 2006 International Convention for the Protection of All Persons from Enforced Disappearances entered into force on December 23, 2010. The Convention mandates that member states pass domestic legislation to criminalize enforced disappearance and prosecute individuals who commit, order, solicit, or induce forced kidnapping. It also bans enforced disappearances and declares widespread or systematic kidnappings to be a crime against humanity. To date, eighty-seven states have signed the treaty and twenty states have ratified it.
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International Law In Brief (ILIB) - Copyright 2010
The American Society of International Law
- Djurdja Lazic, Esq., ILIB Managing Editor
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