• United States Vetoes Proposed Security Council Resolution Condemning All Israeli Settlements Established in the Occupied Palestinian Territory Since 1967 (Feb. 18, 2011)

• Situation in Libya—Responses by the United Nations Security Council, the International Criminal Court, and the United Nations Human Rights Council

• Report of the Ombudsperson Tasked with Considering Requests for “De-Listing” from Sanctions Targeting Terrorist Organizations (Jan. 29, 2011)

International Centre for Settlement of Investment Disputes

• Malicorp Ltd. v. Arab Republic of Egypt (Feb. 7, 2011)

International Criminal Tribunal for the former Yugoslavia

• Prosecutor v. Djordjevic (Feb. 23, 2011)

Court of Justice of the European Communities

• Association belge des Consommateurs Test-Achats ASBL et al. v. Council of Ministers of the Kingdom of Belgium (Mar. 1, 2011)

• China Files WTO Complaint Against the United States (Feb. 28, 2011)

United States Vetoes Proposed Security Council Resolution Condemning All Israeli Settlements Established in the Occupied Palestinian Territory Since 1967 (Feb. 18, 2011)

Click here for press release (approximately 1 page)

On February 18, 2011, the United States vetoed a UN Security Council resolution condemning Israel’s settlement policy and demanding that “Israel . . . ceases all settlement activities in the occupied Palestinian territory. . . .” According to a UN press release, the United States viewed this resolution as a hindrance to the peace process in the Middle East.  While all other fourteen members of the Security Council voted in favor of the resolution, the United States’ permanent member status overrides the other members’ votes.  

The UN reports that the resolution would have required that both Israel and the Palestinian Authority abide by their obligations under the “roadmap” plan, which outlines a two-State solution favoring a peaceful coexistence of Israel and Palestine.  According to the press release, U.S. Ambassador Susan E. Rice explained that the veto should not be misunderstood to signify support for Israel’s settlement activity.  She stated that the United States rejects the legitimacy of the settlements and concedes that continued settlement activity “threatens the prospects for peace.” Nevertheless, she proceeded to declare that the draft resolution “[u]nfortunately . . . risks hardening the positions of both sides. It could encourage the parties to stay out of negotiations and, if and when they did resume, to return to the Security Council whenever they reach an impasse.”

Situation in Libya—Responses by the United Nations Security Council, the International Criminal Court Prosecutor, and the United Nations Human Rights Council 

Click here for UN Security Council Resolution 1970 (approximately 10 pages); click here for ICC press release (approximately 1 page); click here for UN Human Rights Council Resolution (approximately 3 pages)

Following the eruption of protests in Libya and the government’s violent response, several international organizations have expressed alarm and warned the Libyan leader Colonel Muammar Qadhafi that continued violence and bloodshed would be met with a unified response by the international community.

The United Nations Security Council, acting under Chapter VII of the UN Charter, unanimously adopted Resolution 1970, condemning the recent “gross and systemic” human rights violations committed in Libya. Resolution 1970 imposes an arms embargo, travel ban, and assets freeze on Qadhafi. The Security Council also decided to refer the situation in Libya to the Prosecutor of the International Criminal Court (“ICC”).

On March 2, 2011, the Office of the Prosecutor of the ICC issued a statement declaring that it will open an investigation into the alleged crimes against humanity committed in Libya. Even though Libya is not a party to the Rome Statute, the Security Council’s decision to refer the case to the ICC for investigation into “the widespread and systematic attacks currently taking place against the civilian population [which] may amount to crimes against humanity” provides the Court with jurisdiction.

On February 25, 2011, the United Nations Human Rights Council decided through Resolution A/HRC/S-15/2 to “urgently dispatch an independent international commission of inquiry to investigate all alleged violations of international human rights law” in Libya.  Such violations include “indiscriminate armed attacks against civilians, extrajudicial killings, arbitrary arrests, detention, and torture” of demonstrators.  On the Human Rights Council’s urging, the United Nations General Assembly suspended Libya’s membership from the United Nations Human Rights Council on March 1, 2011.

Report of the Ombudsperson Tasked with Considering Requests for “De-Listing” from Sanctions Targeting Terrorist Organizations (Jan. 29, 2011)

Click here for report (approximately 17 pages)

The Office of the Ombudsperson, established pursuant to UN Security Council Resolution 1904 in 2009 to assist the UN Sanctions Committee in handling de-listing requests by alleged supporters of Al-Qaida and the Taliban placed on the UN sanctions list, has issued its first report. The report summarizes the Ombudsperson’s activities and details limitations within the Office that should be addressed to ensure that the mandate is carried out effectively within the specified eighteen months.

The report sheds some light on the work of the Ombudsperson, including the process followed in considering and processing requests for de-listing. The Ombudsperson openly admits in her report that the current process is not perfect and that additional resources are required to fulfill the mandate. To this end, the Ombudsperson calls on the Security Council to consider adding additional permanent staff to the Office and also allocating additional finances for research, teaching, and outreach.

Also interesting is the information provided on the Ombudsperson’s work so far. According to the report, seven requests for de-listing were submitted to the Ombudsperson, six of which were accepted and are currently under review. An appendix to the report gives detailed information on the status of these requests.

Finally, the report also acknowledges defects in the manner in which the de-listing process is currently carried out, including the inability of listed individuals and entities to be informed of the country that initially placed them on the sanctions list.  Also noteworthy is the lack of a requirement to provide those seeking to be de-listed with the factual reasons for de-listing. According to the Ombudsperson, this information “would be very useful” in assessing other cases and in developing consistent decisions.

International Centre for Settlement of Investment Disputes

Malicorp Ltd. v. Arab Republic of Egypt (Feb. 7, 2011)

Click here for document (approximately 47 pages)

On February 7, 2011, an International Center for Settlement of Investment Disputes (ICSID) tribunal issued an award rejecting expropriation claims by a British company against the Arab Republic of Egypt in a dispute regarding Egypt’s termination of an agreement for the construction of an airport. The tribunal concluded that Egypt’s reasons for terminating the contract “appear serious and adequate” and that “the termination, justified in fact and in law, could not be interpreted as an expropriatory measure.”

Malicorp, a company incorporated in the United Kingdom, won a bid in February 2000 to construct an airport in Egypt. After the parties signed the contract, a dispute arose regarding Malicorp’s available capital, with Egypt alleging that Malicorp falsely represented that it possessed sufficient capital to finance the project on its own, a claim Malicorp denied. In addition, Egypt also expressed concern with respect to Malicorp’s failure to fulfill other contract obligations, including the establishment of a separate entity under Egyptian law. When the parties were not able to resolve these issues, the government of Egypt informed Malicorp that the contract was terminated. The parties dispute the actual reason for the termination of the contract.

Failing to reach an amicable resolution, in April 2004, Malicorp commenced arbitration proceedings in the Cairo Regional Centre for International Commercial Arbitration, which ruled that Egypt was “the victim of a fundamental error,” making the contract between the parties void. The Centre nonetheless ordered Egypt to pay Malicorp roughly fifteen million dollars for costs and expenses associated with the commencement of the project.

In 2008, Malicorp commenced the ICSID arbitration, alleging that Egypt violated the 1975 Agreement between the UK and Egypt for the promotion and protection of investments. Specifically, Malicorp claimed that Egypt wrongfully terminated the construction contract, thus breaching its obligations under the 1975 Agreement. According to Malicorp, Egypt’s violation resulted in damages, which Egypt should compensate.

The ICSID tribunal reviewed the facts presented, including the arbitration before the Cairo Centre, and concluded that Egypt’s decision to terminate the contract was justified, especially given the importance Egypt placed on the financing aspect of the project. Since the termination was justified and not a pretext to expropriate Malicorp’s investment, the tribunal did not award compensation. The tribunal ordered each party to equally share the arbitration costs and fees.

One noteworthy part of the award is the tribunal’s discussion of what constitutes an investment. In paragraph 110, the tribunal explained that the 1975 Agreement and Article 25 of the ICSID Convention were “complementary” as they both sought to “promote” investments by “creat[ing] the conditions that will encourage foreign nationals to make contributions and provide services in the host country,” while “also ‘protect[ing]’ the fruits of such contributions and services.”

International Criminal Tribunal for the former Yugoslavia

Prosecutor v. Djordjevic (Feb. 23, 2011)

Click here for judgment summary (approximately 3 pages); click here for full judgment (approximately 969 pages)

Trial Chamber II of the International Criminal Tribunal for the former Yugoslavia convicted Vlastimir Djordjevic, a former Assistant Minister of the Serbian Ministry of Internal Affairs and Chief of its Public Security Department, of crimes against humanity and war crimes committed against Kosovo Albanians in 1999. Djordjevic, found guilty of participating in a joint criminal enterprise aimed at changing the ethnic balance in Kosovo and ensuring Serbian dominance in the territory, was sentenced to twenty-seven years’ imprisonment.

According to the judgment, Djordjevic, along with other senior officials, political leaders, and army superiors, pursued the plan of enabling Serbian dominance in the territory “through a widespread campaign of terror and violence against ethnic Albanians, which included deportations, murders, forcible transfers and persecutions.” Djordjevic’s claim that he did not have “effective control” over military units in Kosovo was also dismissed. In fact, the Chamber found Djordjevic responsible for the murder of “not less than 724 Kosovo Albanians.” The Chamber also found that “[i]n the large majority of cases the victims, including many women and children, were civilians, who were unarmed and not in any way participating in any form of armed conflict.”

According to the ICTY press release, “Djordjevic is the eighth former senior Serbian official to be tried for the crimes committed in Kosovo and the sixth to be convicted. He was indicted in 2003 but remained on the run until his arrest on 17 June 2007 in Montenegro.”

Court of Justice of the European Communities

Association belge des Consommateurs Test-Achats ASBL et al. v. Council of Ministers of the Kingdom of Belgium (Mar. 1, 2011)

Click here for document (approximately 10 pages); click here for press release (approximately 2 pages)

The Court of Justice of the European Communities has found Article 5(2) of Council Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services invalid. The Court concluded that the option provided to Member States under Article 5(2) to derogate from the general prohibition of sex-based discrimination in assessing insurance premiums was indefinite, “allow[ing] insurers to apply the unequal treatment without any temporal limitation.”

The issue was referred to the Court by the Belgian Constitutional Court, which was hearing a case brought by a company and two male individuals asking that the Belgian law implementing Directive 2004/113/EC be annulled because it discriminated against male insurance holders. 

Directive 2004/113/EC implements the principle of equal treatment between men and women in the access to and supply of goods and services. Article 5(1) of the Directive provides that Member States should “ensure that in all new contracts concluded after 21 December 2007 at the latest, the use of sex as a factor in the calculation of premiums and benefits for the purposes of insurance and related financial matters . . . not result in differences in individual premiums and benefits.” Article 5(2) (the derogation clause) permits Member States to use gender to determine premiums where such use “is a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data.” However, Member States availing themselves of this provision must inform the Commission of such use and ensure that the data is regularly updated. However, Article 5(2) is silent on when the derogation clause will expire.

The original petitioners claimed that the higher premiums for male drivers were inconsistent with the aim and purpose of the Directive and the general objective of the EU Charter. According to BBC news, male drivers pay up to twice as much for car insurance as their female counterparts.

Not anymore. The Court concluded that starting December 21, 2012, there will be no more derogation from equal treatment with respect to insurance premiums.

China Files WTO Complaint Against the United States (Feb. 28, 2011)

Click here for press release (approximately 1 page)

According to the World Trade Organization (“WTO”) website, China has requested consultations with the United States under the dispute settlement system regarding U.S. anti-dumping measures on certain frozen warm-water shrimp from China. The parties have sixty days to consult and reach a workable resolution. However, if after sixty days no agreement is reached, China can request that the issue be referred to a WTO panel.