The Cambridge Companion to International Law

Posted on January 26, 2012 by Gentian Zyberi

The Cambridge Companion to International Law is edited by  James Crawford, University of Cambridge and Martti Koskenniemi, University of Helsinki.

The book was launched today at the Faculty of Law, University of Cambridge. It provides a perfect introduction to international law from both traditional and critical perspectives. The companion brings together a group of leading academics and bridges the divide between legal and non-legal methodologies; traditional and critical approaches; theoretical and practical projects of social emaniciplation; and Anglo-American and European orientations towards international law.

Some of the features of the book are as follows:

- World-class contributors from a wide range of disciplines make it accessible to both academics and professionals working in the field.

- Chapters provide politically and theoretically informed overviews without the technical and specialised vocabularies.

- Transcends the key divides in international law to provide multiple insights into the main issues.

For more information on the book you can visit the website of CUP here

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December 2011 Resolution by the Assembly of States Parties on State Cooperation with the International Criminal Court

Posted on January 25, 2012 by Gentian Zyberi

This post draws attention to Resolution ICC-ASP/10/Res.2, on cooperation, adopted by consensus on 20 December 2011 by the Assembly of States Parties of the International Criminal Court during its 7th plenary meeting (10th Session). There are other important resolutions adopted during the 10th Session, including that dealing with reparations (see previous post); amendments to the rule 4 of the Rules of Procedure and Evidence (see here); programme budget for 2012, the Working Capital Fund for 2012, scale of assessments for the apportionment of expenses of the International Criminal Court, financing appropriations for 2012 and the Contingency Fund (see here), strengthening the International Criminal Court and the Assembly of States Parties (see here), and on permanent premises (see here).

In this resolution, the Assembly of States Parties first recalled the provisions of the Rome Statute, the Declaration on Cooperation (RC/Dec.2) agreed by States Parties at the 2010 Review Conference in Kampala and previous resolutions and declarations of the Assembly of States Parties with regard to cooperation including ICC-ASP/8/Res.2, ICC-ASP/9/Res.3, and the sixty-six recommendations annexed to ICC-ASP/6/Res.2. Resolution ICC-ASP/10/Res.2 emphasizes the importance of effective and comprehensive cooperation and assistance by States Parties, other States, and international and regional organizations, to enable the Court to fully fulfil its mandate. The importance of timely and effective cooperation and assistance from States Parties and other States under an obligation to cooperate with the Court pursuant to Part 9 of the Rome Statute or a United Nations Security Council resolution was also emphasized, since the failure to provide such cooperation in the context of judicial proceedings affects the efficiency of the Court. The resolution also notes the impact that non-execution of Court requests can have on the ability of the Court to execute its mandate, in particular when it concerns the arrest and surrender of individuals subject to arrest warrants. With a large number of accused still at large, it is understandable that the Assembly of States Parties draws attention to the obligations of States to assist the Court in executing its arrest warrants.

The resolution recalls that the ratification of the Rome Statute must be matched by national implementation of the obligations emanating therefrom, notably through implementing legislation and adopting appropriate measures at the national level. Since many States have not done so yet, it is to be hoped that this resolution will encourage them to take action so that they can fully meet their obligations under the Rome Statute. The resolution also emphasizes the need for States Parties to cooperate with the Court in such areas as preserving and providing evidence, securing the arrest and surrender to the Court of persons for whom arrest warrants have been issued, sharing information and protecting victims. Moreover, the resolution calls upon all States Parties and other States, where possible, to consider strengthening their cooperation with the Court by entering into agreements or arrangements with the Court or any other means concerning, inter alia, protective measures for witnesses who are at risk and sentence enforcement.

The Assembly of States Parties commended the work of the Court on framework agreements or arrangements or any other means in areas such as interim release, final release, witness relocation and sentence enforcement, it encouraged the Court to continue its work in this regard, and encouraged all States Parties to consider, where possible, strengthening voluntary cooperation in these areas. The resolution goes on to underline the need for a proactive approach by the Court in developing, in consultation with States Parties, effective strategies to facilitate cooperation by States Parties and other States to identify, track, freeze or seize proceeds, property and assets, and the corresponding obligation of States Parties to comply with such requests by the Court, as envisaged in article 93, paragraph 1 (k), of the Rome Statute, for the purposes set out in the Statute. The resolution also welcomes the establishment of the Special Fund for Relocations and encourages all States Parties to consider, where possible, entering into relocation agreements or arrangements with the Court, including on a cost neutral basis and to consider making voluntary contributions to the Special Fund for Relocations.

Another emphasis of the resolution is on the importance of States Parties responding, to the extent possible, to requests for assistance on behalf of defence teams. It was noted that the Court may facilitate the communication of such requests, when appropriate. Defence teams face an uphill battle in ensuring State cooperation, so the resolution’s attention to this matter is certainly a step in the right direction. While welcoming the increased cooperation between the Court and the United Nations, and other international and regional organizations, and other inter-governmental institutions, the resolution emphasizes the importance of States Parties enhancing support for the Court at the international level. The Assembly of States Parties requested the Bureau to establish a facilitation of the Assembly of States Parties for cooperation to consult with States Parties, the Court and non-governmental organizations, as well as other interested States and relevant organizations in order to further strengthen cooperation with the Court as well as to report on significant developments to the Assembly of States Parties at its eleventh session. The Assembly of States Parties decided to continue to monitor cooperation with a view to facilitating States Parties in sharing their experiences and considering other initiatives to enhance cooperation; to this end, it included a specific item on cooperation on the agenda of its eleventh session. The Court was also requested to submit an updated report on cooperation to the Assembly at its twelfth session.

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Pre-Trial Chamber II Issues Confirmation of Charges Decisions in the Kenya Situation

Posted on January 23, 2012 by Gentian Zyberi

Pre-Trial Chamber II of the International Criminal Court composed of Judges Hans-Peter Kaul, Cuno Tarfusser and Ekaterina Trendafilova (presiding), presented an oral summary of the decisions on confirmation charges pursuant to Article 61(7)(a) and (b) of the Rome Statute in the Kenya situation. The decisions issued concern the charges of the Prosecutor against William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang in Case 1 and Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali in Case 2. In Case 1 the Chamber found that Mr. Ruto and Mr. Sang are responsible for the charges levied against them. The Chamber declined to confirm the charges against Mr. Kosgey. In Case 2 the Chamber was satisfied that the evidence established substantial grounds to believe that Mr. Muthaura and Mr. Kenyatta are criminally responsible for the alleged crimes, as indirect co-perpetrators, pursuant to article 25(3)(a) of the Rome Statute. The Chamber declined to confirm the charges against Mr. Ali.

Judge Kaul appended a dissenting opinion in both cases. In his view the ICC is not competent because the crimes committed on the territory of the Republic of Kenya during the post-election violence of 2007-2008 were serious common crimes under Kenyan criminal law, but not crimes against humanity as codified in Article 7 of the Rome Statute.

The summary of the decisions is available here. The full text of the decision for Case 1 is available here and for Case 2 here.

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New issue of the Goettingen Journal of International Law

Posted on January 23, 2012 by Dominik Zimmermann

The new issue of the Goettingen Journal of International Law is out now. In Vol. 3 No. 3 (2011) the GoJIL pays tribute to the International Criminal Tribunal for the former Yugoslavia and dedicates a GoJIL Focus to its legacy. Furthermore, the issue contains two articles about current developments in international law and an article discussing the legal status of the Holy See. For more information visit the homepage at www.gojil.eu.

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The Assembly of States Parties Requests the International Criminal Court to Establish Coherent Principles Relating to Reparations for Victims

Posted on January 21, 2012 by Gentian Zyberi

The important issues dealt with during the Tenth Session of the Assembly of States Parties in New York in late December 2011 include not only the election of the ICC Prosecutor and six judges (see here), but also the adoption of a few important resolutions. This post will discuss Resolution ICC-ASP/10/Res.3 on reparations, adopted by consensus at the 7th plenary meeting on 20 December 2011. Although hailed as one of the major improvements of the international criminal justice system, many substantive and procedural issues regarding reparations for victims remain unsettled to date. Resolution ICC-ASP/10/Res.3 aims at changing this regrettable state of affairs. It starts by recalling Articles 75(1) and 112(2)(g) of the ICC Statute. Article 75(1) provides that the Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting. Under Article 75(2) a reparations order may be made directly against a convicted person while the award for reparations may be made through the Trust Fund for Victims. Under Article 39(2)(b) the full panel of the Trial Chamber is expected to handle reparations for victims. Article 112 lays down the powers of the Assembly of States Parties and under Article 112(2)(g) the Assembly is entrusted with performing any other function consistent with this Statute or the Rules of Procedure and Evidence.

Resolution ICC-ASP/10/Res.3 states that reparations to the victims of the most serious international crimes are critical components of the Rome Statute and therefore it is essential that the relevant provisions of the Rome Statute are efficiently and effectively implemented.  The resolution further notes with concern that the Court has not yet established principles relating to reparations, on which any determination of the extent and scope of any damage, loss and injury to, or in respect of, victims is to be based, in accordance with Article 75(1), and that in the absence of such principles pre-established by the Court practical inconsistency and unequal treatment of victims may occur. Concluding that guidance and clarification from States Parties is essential in order to ensure the effective and efficient implementation of the reparations provisions, the Assembly of the States Parties requested the Court to ensure that Court-wide coherent principles relating to reparations are established in accordance with Article 75(1), based on which the Court may issue individual orders for reparations, and further requested the Court to report back to the Assembly at its Eleventh Session.

Although it asked the Court to establish coherent principles relating to reparations, through this resolution the Assembly of States Parties clarified three important issues related to reparations for victims, namely that States properties and assets are not to be used for reparations awards, that the Court should take all measures to identify and freeze any assets of the convicted person, and that evidence concerning reparations may be taken during trial hearings. First, the resolution goes on to clarify that as liability for reparations is exclusively based on the individual criminal responsibility of a convicted person, under no circumstances shall States be ordered to utilize their properties and assets, including the assessed contributions of States Parties, for funding reparations awards, including in situations where an individual holds, or has held, any official position. Secondly, the resolution underlines that as the freezing and identification of any assets of the convicted person, which are indispensable for reparations, is of paramount importance the Court should seek to take all measures to that end, including effective communication with relevant States so that they are in a position to provide timely and effective assistance pursuant to Article 93(1)(k), where possible, in all cases and at as early a stage of the proceedings as possible, irrespective of the declaration of indigence for the purpose of legal aid which bears no relevance to the ability of the accused to provide reparations. Thirdly, the resolution recognizes that as adjudication on the individual criminal responsibility shall remain the focus of the judicial mandate of the Court, evidence concerning reparations may be taken during trial hearings so as to ensure that the judicial phase of reparations is streamlined and does not result in any delay thereof. Finally, through the resolution the Assembly of States Parties invited the Bureau to report to the Assembly at the next session on reparations and any appropriate measures.

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Max Planck Encyclopedia of Public International Law – Print Edition

Posted on January 18, 2012 by Dominik Zimmermann

In the past couple of years, we have regularly reported on the Max Planck Encyclopedia of Public International Law, the leading reference work in international law which is being prepared under the general editorship of Professor Rüdiger Wolfrum of the Max Planck Institute in Heidelberg, Germany. The Max Planck Encyclopedia has been available for some time in an online edition, but Oxford University Press now announced that the print edition will be coming out on 23rd February 2012. Also, there is a pre-publication offer in place until the end of January 2012 – more details here: http://ukcatalogue.oup.com/product/9780199291687.do

I can only recommend this great reference work to everybody who has the financial means to obtain it. And if one cannot afford it personally, there is always the opportunity of asking the university library to get it. It is definantely worth it!

Thanks to John Louth of OUP for drawing my attention to this.

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WIPO Diplomatic Conference on the Protection of Audio Visual Perfomances Slated for June 2012 in Beijing.

Posted on January 18, 2012 by innomawire

Introduction

Creative control over one’s artistic endeavor is an important right that an artist strives to retain. In addition to creative control, artists seek to prevent the unlawful distribution of the creative product, insist on being acknowledged as the creator of the work, and aim to achieve adequate compensation for the creation. Through union organization, treaties and national legislation, countries have tried to ensure that these rights, and others, are protected for those men and women whose talents have enlightened, challenged, and entertained us for centuries.

Technological developments have given rise to increased modes of distributing creative content, thus allowing purveyors of art to access creative works from almost anywhere in the world. For example, one could view the latest installment at the Harare Arts Theater from the comfort of one’s home in Geneva, Switzerland. This increased exposure has expanded the artist’s potential audience and has created additional sources of revenue. However, with technological innovation and increased exposure have come numerous logistical and legal problems for artists, utilitarian proponents and the natural rights regime legislators who scramble to keep the law in step with the rapidly changing society. In an attempt to cope with these changes, the World Intellectual Property Organization’s Performances and Phonograms Treaty (WPPT) was adopted in 1996.

The Adoption of the WPPT

With the adoption of the WPPT, musicians, songwriters and audio performers witnessed the enactment of legislation that granted them enhanced protection and control over their contributions to sound recordings, plays, motion pictures and other works that use music. Uniform standards concerning the definition of authorship, length of ownership and control over the distribution, licensing and duplication of copyrightable content were set forth in this treaty and adopted by the contracting nations.

However, one group of artists was conspicuously excluded from the scope of the WPPT’s protection. The WPPT failed to outline a method for harmonizing legislation that would ensure protection of the rights of audiovisual performers in their contributions to audiovisual fixations. Consensus could not be reached on the manner and scope of protection to be granted to actors. These differences led the WIPO Member States to abandon their hopes of including audiovisual performers within the WPPT.

At the close of the 1996 diplomatic conference for the adoption of the WPPT in Geneva, WIPO members passed a resolution that called for member states to reconvene at a later date to negotiate a treaty that would address audiovisual performer’s rights. In the months leading up to the review of the proposed treaty, Member States were at odds over how the following issues should be addressed within the international accord: (1) national treatment; (2) the scope of protection that should be afforded to performers for the public broadcast of their works; (3) transfer of rights; and (4) the question of moral rights.

The Failed 2000 Diplomatic Conference

After much debate, negotiators from over 120 nations met in December of 2000 at the Diplomatic Conference on the Protection of Audiovisual Performances. Agreement was reached on nineteen of the twenty proposed Articles that would comprise the treaty. Consensus could not be reached on an appropriate manner with which audiovisual performers would transfer their rights to producers so as to allow producers greater ease in administering and licensing rights to the audiovisual production.

However, after 11 years of intense negotiations amongst the various delegations, Member States were able to reach agreement on the outstanding article 12 of the Treaty, regarding transfer of rights. The article provides that any transfer of exclusive fixation rights of authorization to the producer shall be done with the consent of the performer and subject to signing of contract between the performer and producer, as determined in their national law.  As such, in 2011, the WIPO General Assembly approved the reconvening of a Diplomatic Conference for the protection of Audiovisual Performances.

Potential Benefits

The potential benefits of an audiovisual performances treaty are numerous. Producers, audiovisual performers and broadcasters across the globe would benefit from a uniform set of laws that would provide audiovisual performers increased financial rewards and creative control, while affording producers, consumers and others a clearer understanding of what they can and cannot do with audiovisual fixations.

Registration for the Diplomatic Conference

In view of the above, the Diplomatic Conference will take place in Beijing, China from the 20-26 of June 2012 (Venue will be communicated shortly on the website). Member States are invited to register online by March 20, 2012 at: www.wipo.int/dc2012 (secure code: DC12C01).

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The ICTY Residual Mechanism

Posted on January 16, 2012 by Gentian Zyberi

In December 2011 the ICTY Registry launched a dedicated web feature (within the ICTY website) to provide a better understanding of the role and functions of the future Residual Mechanism of the Tribunal. The Residual Mechanism of the ICTY is meant to continue the important work which needs to be carried out once the Tribunal completes its mandate. This ad hoc body established by Security Council Resolution 1966 (2010) will be responsible for continuing the ‘jurisdiction, rights and obligations and essential functions’ and maintaining the Tribunal’s legacy.

The new feature at the ICTY website describes the timeline for setting up the two branches of the Mechanism, which will cover functions inherited from the International Criminal Tribunal for Rwanda and the ICTY respectively. The feature also explains in detail the limited number of essential functions currently carried out by the ICTY that the Mechanism will eventually take over. Those functions are appeals against ICTY judgements, retrial of persons indicted by the ICTY, trial for contempt of the Tribunal and false testimony, proceedings for review of final judgement, protection of witnesses, supervision of enforcement of sentences, assistance to national courts, and preservation and management of ICTY archives.

The UN Security Council has requested the ICTY and the ICTR to take ‘all possible measures to expeditiously complete all their remaining work no later than 31 December 2014’. The Mechanism itself will begin operating on 1 July 2013, meaning that during the initial period of its work, there will be a temporal overlap with the ICTY, which will continue to complete its work on any ongoing cases.

The feature is available in English, French and Bosnian/Croatian/Serbian, and forms part of the ICTY’s ongoing efforts to maintain transparency and inform the public about the work of the Tribunal.

* This post is based on the ICTY Registry Press Release of 16 December 2011 available here.

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10 years Guantanamo: continuing the practice of detention without trial?

Posted on January 11, 2012 by Gentian Zyberi

Today is the tenth anniversary of the transfer of the first detainees to the United States naval base in Guantánamo Bay, in Cuba. And with the recent adoption of the 2012 National Defense Authorization Act (NDAA) (section 1021) the practice of indefinite detention without charge or trial of terrorism suspects has been legalized in the US; for foreign nationals that is.

Apparently, habeas corpus and universal human rights standards are not worth much if you’re a terrorist, or tagged as one. Some time ago there was still some hope that Guantanamo would be closed. Well, that hope is fading with the years. International and domestic US law require that the detention of terrorist suspects be followed by concrete charges and persons so detained be immediately informed of those charges and brought before a competent judicial authority. Or are due process and human rights only for good guys that pay taxes?!

Calls for the closure of the Guantanamo detention centre have come from different quarters, including most recently from Ambassador Janez Lenarčič, the Director of the OSCE Office for Democratic Institutions and Human Rights (ODIHR) (see here) and many human rights organizations and activists.  For a recent report by Amnesty International on the wrong message that Guantanamo sends to the world see here. In his yesterday talk, Lenarčič, called for a swift closure of the Guantánamo detention centre, as promised by President Obama, and for the United States Congress to remove any obstacles in this regard. Ambassador Lenarčič also urged the US authorities to prosecute promptly the remaining Guantánamo detainees in accordance with international fair trial standards, or release them.

Fighting terrorism while safeguarding equality before the law and  individual liberties are some of the minimum human rights obligations that all states have undertaken. So, please 1, 2, 3…action (in the right direction)!

Filed under: Human Rights, International and national law, International terrorism | Leave a Comment »

Decision on Challenge to Arbitrator in Chagos Dispute

Posted on January 10, 2012 by James Harrison

Back in December 2010, Mauritius initiated proceedings against the United Kingdom challenging the establishment of a Marine Protected Area (MPA) around the Chagos Archipelago as a violation of the 1982 United Nations Convention on the Law of the Sea.  Mauritius is expected to argue that the United Kingdom had no right to establish an MPA because it does not have sovereignty over the archipelago.  Yet, the establishment of the arbitral tribunal under Annex VII of the 1982 Convention has been delayed by a challenge raised by Mauritius against the arbitrator nominated by the United Kingdom, namely Judge Sir Christopher Greenwood.  A decision rejecting the challenge was given by the tribunal back in October 2011, but the reasoned decision of the tribunal has just been posted on the website of the Permanent Court of Arbitration and it offers an interesting read. Challenges to individual arbitrators in inter-state arbitration are rare. Indeed, there have been no known cases where an arbitrator has been challenged in an arbitration brought under the 1982 United Nations Convention on the Law of the Sea. This decision is important as it provides a first attempt to clarify the rules and principles which apply in this situation.

Read more »

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UNCTAD conference on the Principles on Responsible Sovereign Borrowing and Lending

Posted on January 5, 2012 by Dominik Zimmermann

In an earlier post here on International Law Observer, I drew our readers attention to the so-called “Principles on Responsible Sovereign Borrowing and Lending” (read more here). These Principles were drafted by an Expert Group and aimed to guide responsible sovereign lending and borrowing. In this context, UNCTAD, together with the University Autónoma of Madrid through its schools of Law and Economics, is now organizing the Conference “Responsible Sovereign Borrowing and Lending: The Search for Common Principles”. According to the conference website, the event “will open with an “ESIL Lecture” by Prof. Dr. Armin von Bogdandy and be structured in four Panels, each of them specialized in one topic and focusing on the foundations, implications and perspectives of these Principles and the problems they are designed to address. Some concluding remarks by Prof. Robert Howse will close the Conference.” Find out more here.

Thanks to Professor Juan Pablo Bohoslavsky for drawing my attention to this.

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Upcoming conference on the lessons learned from the Lubanga Trial

Posted on January 5, 2012 by Dominik Zimmermann

On March 8-9, 2012, The International Criminal Court Student Network will convene a conference on the ICC’s first case: The case of Thomas Lubanga Dyilo.

This conference offers undergraduate, graduate and law students, and early professionals/academics (generally within five years of terminal degree) studying or working in the field of International Criminal Law an opportunity to both present and discuss their research. Invited speakers will be asked to prepare comments or a paper. A number of papers will be selected for publication in the ICCSN’s journal, Issues in International Criminal Justice.

For more information, please visit the conference website.

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2011 in review

Posted on January 5, 2012 by Dominik Zimmermann

The WordPress.com stats helper monkeys prepared a 2011 annual report for this blog.

Here’s an excerpt:

The Louvre Museum has 8.5 million visitors per year. This blog was viewed about 120,000 times in 2011. If it were an exhibit at the Louvre Museum, it would take about 5 days for that many people to see it.

Click here to see the complete report.

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Iranian threat to close Strait of Hormuz

Posted on January 5, 2012 by James Harrison

The recent threat by Iran to “bar foreign warships from the Gulf” raises a classic issue in the law of the sea – the legality of coastal states demanding authorization for warships to pass through their waters.  The water in question is the Strait of Hormuz, linking the Persian Gulf with the Gulf of Oman and the Arabian Sea. It is an incredibly important route for international shipping and “one of the world’s most strategically important choke points.” Apparently, the Iranian regime has warned the US navy that its vessels are not welcome in the Persian Gulf and the proposed legislation before the Iranian legislature is intended to provide a basis for preventing the passage of foreign warships. Read more »

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Croatia to withdraw its case against Serbia?

Posted on January 3, 2012 by Gentian Zyberi

Recently I read in the news that Croatia is going to withdraw its case against Serbia. This case was brought before the International Court of Justice in 1999 and is based on Article IX of the 1948 Genocide Convention. To be more precise, the application instituting proceedings was filed on 2 July 1999. Croatia claims that Serbia has breached several of its obligations under the Genocide Convention. The Court’s judgment on preliminary objections was rendered on 18 November 2008. For more information on this case see here.

Is this move (provided that the request to remove the case from the List is actually filed in the coming days) going to mark the beginning of a new era in the relations between the two biggest states emerging from the former Yugoslavia? While that remains to be seen (noting, however, that their relations are way better than in 1999 when the case was initiated), it would be good if the two countries managed to resolve their differences amicably.

Filed under: ICJ, International Court of Justice, International Humanitarian Law, United Nations | Leave a Comment »

Callixte Mbarushimana Released from ICC Custody

Posted on December 31, 2011 by Gentian Zyberi

Callixte Mbarushimana was surrendered to the custody of the ICC by French authorities on 25 January 2011, in accordance with the warrant of arrest delivered against him on 28 September 2010 by Pre-Trial Chamber I. In the document containing the charges, the Prosecutor charged Mr Mbarushimana with five counts of crimes against humanity (murder, inhumane acts, rape, torture, and persecution) and eight counts of war crimes (attacking civilians, murder, mutilation, cruel treatment, rape, torture, destruction of property and pillaging).

In their decision of 16 December 2011 the Majority of the Chamber, comprising Judge Sylvia Steiner and Judge Cuno Tarfusser, found that there was not sufficient evidence to establish substantial grounds to believe that Callixte Mbarushimana could be held criminally responsible, under article 25(3)(d) of the Rome Statute, for these counts. Judge Sanji Mmasenono Monageng, Presiding, filed a dissenting opinion. For the full text of the decision see here. Mr Mbarushimana, whose case is part of the situation in the Democratic Republic of the Congo, was released from ICC custody to France on 23 December 2011.

* This post is based on the ICC Press Release ICC-CPI-20111223-PR760 (for more information see here).

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Extension of dispute between Costa Rica and Nicaragua

Posted on December 30, 2011 by James Harrison

With one dispute between Costa Rica and Nicaragua already pending before the International Court of Justice , Nicaragua has initiated a new claim at the Court alleging that Costa Rica has caused transboundary pollution through the construction of a road on the border of the two countries. Read more »

Filed under: Environmental Law, ICJ, International Court of Justice, International Environmental Law, Public International Law | Leave a Comment »

Rest in Peace, President Havel

Posted on December 21, 2011 by Gentian Zyberi

Vaclav Havel, writer and well-known dissident of the communist rule in Czechoslovakia, and from 1989 to 2003 an iconic statesman, first of Czechoslovakia (1989) and then of the Czech Republic (1993) died at 75. The Velvet revolution, which he led, is remembered as one of the few peaceful transitions in Eastern Europe which took a few weeks to complete and where not a single bullet was fired. For a captivating tribute to President Havel’s life see an article in the NY Times by Dan Bilefsky and Jane Perlez here.

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Newest elections at the ICC and the ICJ

Posted on December 15, 2011 by Gentian Zyberi

Two great international lawyers from Africa, Ms. Fatou Bensuda (Gambia) and Ms. Julia Sebutinde (Uganda), have been elected respectively as Prosecutor of the International Criminal Court (ICC) and as Judge of the International Court of Justice (ICJ). Both these African women have had a distinguished career in the area of international legal practice (for their CVs and more information on the election process see respectively here and here). We express our heartfelt congratulations and wish them the best in fulfilling these important positions.

The election of Ms. Sebutinde at the Bench brings the number of female judges at the ICJ at three; a great development within a short period of time. It is a sign that States are slowly but surely introducing some gender balance. I am happy to note that my own country, Albania, is one of the 67 countries that nominated Ms. Fatou B. Bensouda, from Gambia, for election to the position of Prosecutor of the International Criminal Court (see here for more information and the full list of countries). For more information on the tenth session of the Assembly of States Parties to the Rome Statute taking place in New York see here.

Filed under: Africa, ICC, ICJ, International Court of Justice, International Courts, international justice, United Nations | Leave a Comment »

Durban Outcome

Posted on December 12, 2011 by Ole W. Pedersen

After running into overtime, the 17th Conference of the Parties to the UN Framework Convention on Climate Change (UNFCCC) finished Saturday. While press coverage of the event was somewhat muted compared to previous conferences (the aftermath of the EU Summit in Brussels on Friday night took most of the limelight), the reactions to the outcome range from mildly positive to slight disappointment. Some of the main points from the summit include:

  • A pledge to work towards a legally binding climate change agreement no later than by 2015 (with the view of operationalising it by 2020). To this effect a new Ad Hoc Working Group on the Durban Platform for Enhanced Action was established.
  • An extension of the Kyoto Protocol’s commitment period for a number of countries most notably the EU.
  • Agreement on the design of the extensive funding regime which is to assist developing countries in adapting to and mitigation climate change. This includes the Green Climate Fund although many details on the exact origin of the promised $100bn are not yet specified.
  • The agreement on procedures for allowing carbon capture and storage (CCS) projects to form part of the CDM.

Critics point out that there may not be much gained from the extension of a Kyoto commitment period which doesn’t include emission reduction requirements from the leading emitters such as China, the US and India (the EU emits roughly around 14-15% of total world CO2 emission). On the other hand, perhaps the EU’s willingness to step forward when countries like the US, India and China were unwilling to take action is to be applauded. If nothing else, perhaps this indicates that the EU can show leadership in a time of crisis and when leadership seems absent from the European negotiations on the debt crisis.

Elsewhere commentators point out that the Durban outcome is another indicator that the UN system has outplayed its role in climate change negotiations. Likewise, private businesses would no doubt have preferred a bit more clarity in respect to climate finance. Similarly, the recognition that the two degree Celsius target is out of reach will no doubt disappoint many. On the other hand, the fact that a roadmap now seems to have been hammered out may prove a much needed impetus.  Overall, it seems that the reactions to Durban are moderately positive. But then again, this may be because expectations were appropriately lowered in light of past disappointments.

You can see the official press release from the Climate Change Secretariat here, commentary from the Economist here, the BBC here and the Guardian here.

Filed under: Environmental Law, EU-Law, International Environmental Law, Public International Law, United Nations | Leave a Comment »

The activity of the International Criminal Tribunal for Rwanda for 2010-2011

Posted on December 10, 2011 by Gentian Zyberi

The Report of the International Criminal Tribunal for Rwanda for the period from 1 July 2010 to 30 June 2011 was presented before the Security Council on 6 June 2011 by the President of the ICTR, Judge Khalida Rachid Khan. For accessing the full text of the ICTR Annual Report click here.

In her speech Judge Khan provided an update on the progress of the Tribunal towards completion. Like her ICTY counterpart, she also pointed out that staff retention remains a critical issue. Another important issue to which she drew the attention of the Security Council is the increasingly problematic issue of the relocation of acquitted persons. While in any national jurisdiction, a person acquitted of criminal allegations is set free and allowed to fully reintegrate into society, the persons acquitted by the ICTR remain trapped in Arusha, as they wait to be relocated to a safe country.

For the full text of Judge Khan’s speech see here.

As at 4 November 2011, the Tribunal for Rwanda had completed the work at the trial level with respect to 76 of the 92 accused, which included two referrals to national jurisdictions, two withdrawn indictments, and two indictees who died prior to or in the course of the trial. The Tribunal has delivered 50 first-instance judgements involving 70 accused, 9 of whom pleaded guilty. Appellate proceedings have been concluded in respect of 37 persons. Nine fugitives remain at large.

For the 2011 ICTR Completion Strategy Report, see here.

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The activity of the International Criminal Tribunal for the former Yugoslavia for 2010-2011

Posted on December 10, 2011 by Gentian Zyberi

The Report of the International Criminal Tribunal for the former Yugoslavia for the period from 1 August 2010 to 31 July 2011 was presented before the Security Council on 6 June 2011 by the President of the ICTY, Judge Robinson. The report includes an introductory section, followed by sections focusing respectively on the activity involving the entire Tribunal, the activity of the Chambers, the activity of the Office of the Prosecutor, and the activity of the Registry. For the full report see here.

In his speech Judge Robinson asked the assistance of the Security Council in addressing three problematic areas for the Tribunal, namely staff retention, the establishment of a victims’ trust fund, and the enforcement of our sentences. With regard to the first area Judge Robinson noted that the most serious challenge to the completion of the work of the Tribunal is the perpetual departure of uniquely experienced staff for more secure employment elsewhere. The second area where Judge Robinson asked for the support of the Security Council involves the establishment of a victims’ trust fund. As Judge Robinson rightly stated:

The Tribunal cannot, through the rendering of its Judgements alone, bring peace and reconciliation to the region. Other remedies should complement the criminal trials if lasting peace is to be achieved, and one such remedy should be adequate assistance to the victims for their suffering. I would like to call upon the Security Council to lend its support to those initiatives.

The third area where Judge Robinson asked for the support of the Member States of the Security Council was the enforcement of its sentences. The Tribunal has signed enforcement of sentence agreements with 17 States, most of which have been enforcing its sentences for years. However, as Judge Robinson pointed out, considering that up to 40 additional sentences may have to be enforced over the next few years, depending upon the outcome of trials and appeals, it has become evident that the Tribunal’s current enforcement capacity is rapidly approaching its limit.

For the full text of Judge Robinson’s speech see here.

The current President of the ICTY, Judge Meron, addressed the Security Council on 8 December 2011 with regard to the 2011 Completion Strategy Report. Judge Meron serves for the second time as President of the ICTY. In his speech he praised the work of its two predecessors, Judges Robinson and Pocar, whose outstanding efforts, he said, have greatly strengthened the Tribunal. Judge Meron explained the difficulties the Tribunal is encountering in completing its work and some of the steps that he intended to take in order to further increase the efficiency of the work of the Tribunal. At the end of his speech Judge Meron eloquently stated that:

Born in the darkness emanating from Yugoslavia’s breakup, the Tribunal faced particularly difficult challenges in its early years. While the Tribunal will soon cease to exist, it will leave a world transformed, and its legacy will be an indelible testament to the international community’s commitment to justice: the noblest of human ideals.

For the full speech of Judge Meron see here. For the 2011 Completion Strategy Report, covering the period from 15 May to 15 November 2011, see here.

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The activity of the International Criminal Court for 2010-2011

Posted on December 10, 2011 by Gentian Zyberi

The Report of the International Criminal Court covering the period 1 August 2010 to 31 July 2011 was presented before the General Assembly of the United Nations on 26 October 2011 by the President of the ICC, Judge Sang‐Hyun Song. In his speech  Judge Sang‐Hyun Song first noted that with two new investigations and several new cases, the Court is busier than ever. He also noted that international support for the ICC has continued to grow; with five new states joining the Rome Statute, the number of States Parties has increased to 119 (120 from 1 February 2012). There are 14 cases in 7 situations which have been brought before the International Criminal Court (for more information see here).

Judge Sang‐Hyun Song stated that as the ICC’s first judgments are drawing closer, we may in the coming year see also the first-ever judicial decisions by the ICC on reparations to victims. When that moment comes, the Trust Fund for Victims will have an important role to play: as an implementing agency for Court-ordered reparations as well as a possible source of complementary financing of reparations awards, in the case that a convicted person is found to be indigent. Judge Sang‐Hyun Song ended his speech with a forceful appeal to the UN member States:

I appeal to all UN member states to stand united behind the international efforts to suppress the gravest crimes known to humanity. The Rome Statute is based on common values of fundamental importance – peace, security and the well-being of the children, men and women of the world.

By joining this community, each state adds a brick to a wall that protects future generations from terrible atrocities.

For the full report of the ICC activity during the period 2010-2011 click here.

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The activity of the International Court of Justice for 2010-2011

Posted on December 10, 2011 by Gentian Zyberi

The Report of the International Court of Justice (ICJ) for the period from 1 August 2010 to 31 July 2011 was presented before the General Assembly of the UN on 26 October 2011 by the ICJ President, Judge Owada. In his speech Judge Owada pointed out that the cases before the Court have involved States from all regions of the world, and have raised a broad range of legal questions. After explaining in some detail the activity of the Court during the reporting period, Judge Owada eloquently stated:

In this twenty-first century, international politics are undeniably inter-connected; a truly global economy has emerged; and our natural environment and global climate change have created new challenges. In these times of unprecedented interconnection between States and peoples, it is my sincere belief that a firm reliance on international law must underpin any and all future developments on the global stage. The International Court of Justice, as guardian of international law, is proud to play a vital role in our increasingly globalized world.

At the moment there are 14 cases pending before the Court. The most recent judgment of the Court was that of 5 December 2011 in the case between FYROM/Macedonia and Greece (see other posts in this blog). For the full report of the 2010-2011 year of the ICJ click here.

Filed under: ICJ, International Court of Justice, United Nations | Leave a Comment »

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