Feb 3, 2014 | Digest
Posted by Guo Cai – February 3, 2014 @ 01:21.
On January 16, 2014, the trial of Prosecutor v. Ayyash et al opened before the Special Tribunal for Lebanon (“STL”). The four accused—Assad Hassan Sabra, Salim Jamil Ayyash, Hussein Hassan Oneissi and Mustafa Amine Badreddine—are charged in the death of former Lebanese Prime Minister Rafik Hariri and others on February 14, 2005. The trial is being held in the absence of the accused and is the first trial in absentia in international tribunals since the Nuremberg trials. The late former Prime Minister Hariri’s family members, including his son Saad Hariri (also a former Lebanese Prime Minister), were present at the opening session.
Ten days following Hariri’s assassination, the UN Secretary General sent a fact-finding mission to Beirut. The mission delivered a report with a recommendation to create an independent international investigation into the attack. The series of killings and bombings in Lebanon led to the establishment of the STL in 2007 by UN Security Council Resolution 1757. The tribunal opened on March 1, 2009, in Leidschendam, located on the outskirts of The Hague.
Pursuant to Article 2 of the STL Statute, the applicable law of the trial shall be the Lebanese Criminal Code, which provides for the prosecution of terrorism and allows for trial in absentia. This gives the STL some novel features nonexistent among other international criminal tribunals. After the Trial Chamber concluded the accused still remained on Lebanese territory and could not be located despite “all reasonable steps” being taken, it decided on February 1, 2012, to try the four accused in absentia (“the Decision”), as authorized by Article 22 of the STL Statute.
Speaking on the second day of the Trial, the Counsels for the Defence dismissed the Prosecution’s case as “based on pure theoretical evidence” and stated the identities of perpetrators were still unknown. Before,the Defense had objected to trial in absentia by filling a motion to reconsider the Decision, alleging, inter alia, that this would violate the rights of the accused. The Trial Chamber dismissed the motion in July 2012. The Appeals Chamber rejected a subsequent appeal. According to Article 22, Section 3 of the STL Statue, in case of conviction in absentia, the accused, if subsequently arrested, shall have the right to demand a retrial.
The Trial has been accompanied by heightened tensions in Lebanon. On January 16, the first day of the Trial, a car bombing killed at least three people in Hermel near the border with Syria. On January 21, a suicide car bomber killed four people and injured 27 others in Haret Hreik, a southern Beirut neighborhood known as a Hezbollah stronghold.
Dec 16, 2013 | Digest
Posted by Ignacio Boulin – December 16, 2013 @ 15:03.
The last three years have been difficult for the Inter-American Human Rights System. Harsh criticism from States party to this regional system, especially targeting the DC-based Inter-American Commission on Human Rights, produced what was euphemistically called “Process of Strengthening of the Inter-American System for the Protection of Human Rights.” This process grew out of instability in the system and, though it has nominally been resolved, major challenges remain.
Two situations laid the foundation for this full revision of the system. First, countries such as Nicaragua, Ecuador, and Venezuela denounced what they called an excessive intervention by the Commission in their internal affairs. These States were particularly vocal about what they saw as over-reach by the IACHR Special Rapporteur for Freedom of Speech. Indeed, the continuous scrutiny over the situation led Venezuela to withdraw from the American Convention on Human Rights. Second, the Commission lost the support of one of the most important states in the region, Brazil, when it issued precautionary measures requiring the government to suspend the construction of a hydroelectric power plant named Belo Monte, for presumed violations of the rights of indigenous people of the region.
These States articulated four basic needs that revision of the system should meet: (i) increasing clarity to the system of precautionary measures; (ii) promoting efficiency and transparency in the management mechanisms of the IACHR regarding individual cases; (iii) prioritizing friendly settlements; and (iv) revising the criteria for including States in Chapter IV of the annual report of the Commission—in which states with the worst human rights record of the region are included.
As a response, the Commission issued a document on March 2013 addressing these topics and amended its rules of procedure to conform to the results of the process.
Three challenges remain. First, at the “conclusion” of the review States kept the strengthening process open, which poses a threat the political independence of the Commission. Second, the Commission urgently needs a bigger budget. Without more resources, the Commission may be unable to manage its workload, risking discredit. Third, and probably the most difficult, is the Commission’s legitimacy deficit regarding the universality of the system, due to the fact that the most powerful country in the region, the US, has never ratified the American Convention on Human Rights.
The continued relevance of the Commission and the Inter-American System depends on the ability of States to meet these challenges.
Dec 6, 2013 | Digest
Posted by Guo Cai – December 6, 2013 @ 10:42
On November 14-16, the Asian Society of International Law held its 4th Biennial Conference encompassing a wide range of topics. The highlight of the conference, however, was the ongoing South China Sea dispute between the Philippines and China, a current case before the International Tribunal on the Law of the Sea (“ITLOS”).
In a panel discussion entitled “Contemporary Issues in the Law of the Sea,” Professor Harry Roque from the University of Philippines argued that the Philippines’ claims against China concerned issues within the compulsory jurisdiction of the United Nations Convention on the Law of the Sea (“UNCLOS”)—that is, not involving any reservations made by China. Professor Roque reports that his presentation was immediately rebutted by H.E. Judge Xue, China’s member of the ICJ, who, in her personal capacity (not representing the view of China), opined that the UNCLOS dispute involved “territorial claims” which fall outside UNCLOS jurisdiction. Judge Xue also referred to a code of conduct established between ASEAN States and China pertaining to the South China Sea, under which disputes must be resolved through negotiation and not through arbitration.
The South China Sea arbitral proceeding started on January 22 of this year, when the Republic of the Philippines served a Notification and Statement of Claims to the People’s Republic of China pursuant to Annex VII to the UNCLOS. The Philippines made four claims: (1) China’s nine-dashed line is invalid; (2) China occupied mere rocks on Scarborough Reef rather than significant features; (3) China’s structures on submerged features are illegal; and (4) Chinese harassment of Philippine nationals at sea is illegal.
On February 19, China presented a Note Verbale to the Philippines in which it rejected and returned the Philippines’ Notification. Despite China’s refusal to participate in the ITLOS proceedings, ITLOS completed its appointment of a five-man tribunal to hear the case on April 24, 2013. On July 11, the Tribunal established rules of procedure and an initial timetable for hearing the dispute, requiring the Philippines to file a memorial that fully addresses “all issues” by March 30, 2014.
Dec 4, 2013 | Digest
Posted by Joseph Klingler – December 4, 2013 @ 02:14
A Spanish court two weeks ago issued warrants for the arrest of former Chinese President Jiang Zemin and four other ex-officials as part of an inquiry into allegations of genocide in Tibet. Although no formal charges have been filed, the court ordered the arrests—for purposes of questioning—after noting the “‘existence of signs of participation’ in abuses” by the former leaders implicated by the investigation. The allegations at least initially included claims of “genocide, crimes against humanity, torture and terrorism,” and were brought under Spain’s so-called “universal jurisdiction” statute.
Universal jurisdiction statutes allow courts to assert jurisdiction over individuals who have committed certain serious crimes—including “genocide, crimes against humanity, torture, some war crimes, apartheid and slavery”— believed to “harm the international community as a whole.” In its pure form, universal jurisdiction may be asserted regardless of the nationality of the suspect or victims, and regardless of where the crime was committed. Former US Secretary of State Henry Kissinger, former Prime Minister Ariel Sharon of Israel, and former dictator Augusto Pinochet of Chile, among others, have each faced controversial scrutiny under “universal jurisdiction” statutes of one form or another. An extensive, worldwide survey of universal jurisdiction legislation may be found here.
Despite the frequency with which the phrase “universal jurisdiction” is invoked in reference to the Spanish law, its use may not be entirely apropos. Since its controversial amendment in 2009, the law now requires a nexus to Spain—in this case the Spanish citizenship of one of the alleged victims—and is therefore arguably no longer truly universal in character.
Whatever its jurisdictional basis, the move has already sparked significant political backlash. Chinese officials have requested “clarification” and, assuming reports of the warrants were accurate, “express[ed China’s] strong dissatisfaction and firm opposition to [the] relevant agencies in Spain.” If nothing else, China’s rhetoric makes one thing clear: to the extent the 2009 amendment to Spain’s “universal jurisdiction” statute was designed to avoid the sort of “diplomatic headache[s]” created by “high profile investigations,” it may not have gone far enough. But to those fearing that requiring a link to Spain would constrict “one of the most hospitable fora for redress,” arrest warrants in this particular case do little to assuage concerns that the amendment has already gone too far.
Nov 26, 2013 | Digest
Posted by Kylie Kim – November 26, 2013 @ 01:11
In January of last year, the D.C. Circuit ruled on the contentious BG Group PLC v. Republic of Argentina. The court found that an arbitral tribunal did not have the authority to address a particular dispute between a U.K. investor, BG Group, and Argentina because “BG Group was required to commence a lawsuit in Argentina’s courts and wait [18] months before filing for arbitration[,] pursuant to Article 8(3) [of the 1993 Britain-Argentina Bilateral Investment Treaty (“BIT”)], if the dispute remained.” The Supreme Court granted BG Group’s cert petition and is scheduled to hear the case on December 2.
The case has attracted attention from a number of interested parties. “Professors and Practitioners of Arbitration Law” filed an amicus brief in favor of Respondents arguing that the BIT was only a conditional offer by Argentina to agree to arbitration, and that the condition—the 18-month requirement—was not met. Also, although the arbitrators could decide on jurisdiction “in the first instance,” their “decision was subject to de novo review by the court.” The United States government and the Republic of Ecuador joined in this sentiment, and Respondent has largely adopted these positions.
On the other hand, the American Arbitration Association raised concerns about the future of international arbitration in the United States if the “cost and efficiency benefits of arbitration are undermined by judicial intrusion,” and if the Court disregards expert findings by “eminent arbitrators.” The United States Council for International Business added to this view by arguing that allowing judges to rule on issues of jurisdiction would be ignoring the parties’ consent to the rules of the United Nations Commission on International Trade Law (UNCITRAL Rules), which “explicitly vest” jurisdictional decisions in arbitrators. The Plaintiffs’ own arguments are largely in line with these positions.
Regardless of the interest surrounding the case, the long-term significance of the case will likely depend on whether the Court “clarif[ies] what constitutes [] ‘procedural arbitrability’” or simply decides whether “compliance with certain [(pre-)]conditions to arbitration” (emphasis added)—namely, the 18-month requirement specific to the Britain-Argentina BIT—is for an arbitrator or a judge to decide. At the very least, however, this case will remain relevant as the first U.S. Supreme Court ruling on international investment arbitration, even if the Court adopts domestic or commercial arbitration principles, already addressed in cases such as Howsam v. Dean Witter Reynolds, Inc., in reaching the decision.
Nov 22, 2013 | Digest
Posted by Ignacio Boulin – November 22, 2013 @ 09:39
During its 149th regular session, held from October 24 to November 8, 2013, the Inter-American Commission on Human Rights (“IACHR”) held four public hearings regarding the impact of extractive industries on the rights of both indigenous and non-indigenous peoples throughout Latin America. Public hearings are formal proceedings under the Inter-American procedural rules, although they might not be related to any particular case. Several civil society organizations and the defendant States—Colombia, Honduras, Ecuador and Peru—discussed current problems happening in these territories, as well as the responsibility of extractive industries’ home States. Home States are those in which companies are legally incorporated, such as Canada, home of many of the main companies working in Latin America.
During the hearings, representatives of indigenous communities and environmental advocates criticized host States—those States in which extractive activities are undertaken, i.e. Colombia—for tolerating human rights abuses committed by multinational corporations against vulnerable groups, and denounced home States such as Canada for not providing effective judicial remedies to protect foreign victims harmed by Canada’s multinational companies. Lastly, multinational corporations were attacked for violating rights of communities, specifically the right to prior consultation.
The States asserted their sovereign rights to design and implement policies to eradicate poverty and achieve sustainable development.
It is noteworthy that no actors from the private sector participated in the hearings. Their absence derives from the jurisdictional scope of the American Convention on Human Rights: only States can be accused of human rights violations. This leaves an entire category of the main players outside the discussion table.
These hearings, although part of the regular activity of the IACHR, might be a turning point in international law, particularly in the field of business and human rights. On the one hand, it was the first time the responsibility of home States was addressed at the regional level. On the other, U.S. Commissioner Dinah Shelton highlighted an interesting path for future litigation, when she noted that Article 36 of the OAS charter provides that “transnational enterprises and foreign private investment shall be subject to the legislation of the home countries and to the jurisdiction of their competent courts and to the international treaties and agreements to which said countries are parties.” This provision has never been used by human rights organization at the regional level, but might well provide some guidance on future strategies in transnational litigation, in which multinational companies will be targeted both in host and home States.
