Posts filed under 'International Courts and Tribunals'
March 27th, 2010 at 10:25am
Earlier this month, a senior U.S. Department of State official indicated that the United States and China, following years of consideration and five months of expedited negotiations, will soon have the draft text of a Bilateral Investment Treaty (BIT). The agreement would further liberalize the trade relationship between the United States and China, as well as providing a framework for resolving future commercial disputes.
But some commentators have raised questions about the full legal implications of such an agreement. In particular, the BIT could turn many American and Chinese regulatory decisions into arbitrable investment disputes.
A BIT typically permits aggrieved foreign investors to seek compensation for unfair or inequitable regulatory treatment in arbitration instead of host country domestic courts. Such an agreement with China would mark the first time that the United States has signed a BIT with a substantial foreign investor and opened the possibility of litigating American regulatory decisions before international arbitrators. With large scale regulatory reform on the horizon, particularly in the financial sector which has substantial Chinese investment, this possibility raises complex sovereignty questions.
In addition, arbitration of American regulatory disputes raises the tricky question of compliance with an adverse decision. The United States has typically treated BIT’s as self-executing treaties, but Congress would have to approve the payment of adverse judgments. Domestic political considerations would make such authorization unpalatable, and any failure to pay could jeopardize the overall BIT framework.
As of now, the parties have reached no agreement, and the U.S. Senate would have to ratify any BIT before it took effect. But, as several commentators have noted, the issues surrounding a U.S.-China BIT merit careful scrutiny.
For more information, please click here and here.
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March 23rd, 2010 at 08:00am
In its decision in Oršuš and Others v. Croatia on Tuesday (3/16), a seventeen-member Grand Chamber of the European Court of Human Rights (ECtHR) held that the policy of Croatian primary schools distinguishing among students based on their grasp of the Croatian language resulted in discriminatory segregation of Roma students in violation of the European Convention on Human Rights. The 9-8 decision reverses a unanimous ECtHR Chamber judgment from 2008 and counters a 2007 Croatian Constitutional Court decision that upheld the policy.
The applicants, fifteen Roma students from two Croatian primary schools, contested the schools’ policy of placing students who lacked an adequate command of the Croatian language in separate classes. In both schools, the separate classes consisted solely of Roma students. They argued that this fact, taken along with the high drop-out rates and low attendance of Roma students, amounted to discriminatory school segregation in violation of Art. 14 of the European Convention on Human Rights (prohibition of discrimination) and Art. 2 of Protocol 1 to the Convention (right to education).
While all students in the separate classes were Roma, not all Roma students at the school were in separate classes. In fact, most Roma students were fully integrated. The Court thus found it could not rely upon its previous jurisprudence on the subject of school segregation, which had found prima facie discrimination only where a large majority of Roma students were subject to different schooling policies.
Nevertheless, the Court determined that the fact that only Roma students lacked sufficient grasp of the Croatian language mandated that the schools apply special safeguards to ensure that their stated end of providing for the special needs of such students was adequately pursued, especially given the position of Roma as “a special type of disadvantaged and vulnerable minority [that] require special protection.” It found such safeguards lacking. The schools did not, for example, adequately test the linguistic skills at issue or provide sufficient language instruction in the separate classes. Furthermore, they did not take measures to combat the low attendance and high drop-out rates of Roma students. From these facts, the Court concluded that “the schooling arrangements for Roma children were not sufficiently attended by safeguards that would ensure that, in the exercise of its margin of appreciation in the education sphere, the State had sufficient regard to their special needs as members of a disadvantaged group.”
The minority opinion argued that, absent evidence showing discrimination on ethnic grounds, the Court should have afforded the state “quite a wide margin of appreciation” when deciding how “to address the special needs of certain pupils.” This was especially true given that Croatia’s Constitutional Court and an ECtHR Chamber had already unanimously approved the measure. According to the minority, the majority’s reasoning is better understood as an attempt to address the general disadvantages faced by the Roma population, rather than as a response to the particular situation that the Croatian educators faced.
For further information, please see the Court’s decision and press release.
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March 3rd, 2010 at 04:15pm
In Ahmet Arslan and Others v. Turkey, the European Court of Human Rights overturned, by a vote of 6-1, a 1997 decision by the Turkish courts convicting 127 Turkish nationals of breaking two laws, one against wearing headgear and the other against wearing religious clothing in public other than for religious ceremonies. The applicants, members of a religious group known as Aczimendi tarikatÿ, claimed that their conviction violated Article 9 (freedom of thought, conscience, and religion) of the European Convention on Human Rights. The ECtHR found that the decision of the Turkish courts amounted to violation of the applicants’ freedom of conscience and religion by prohibiting their expression of religion through their clothing. The court noted that it might have accepted that strict maintenance of a secular system was important for Turkey’s democracy and public safety, but that the Turkish judicial decisions at issue had failed to rely on that justification. The Court further noted that, unlike several other religious dress cases it had decided, the applicants here were punished for their religious dress in public areas that were open to all, rather than in public establishments where the state’s interest in religious neutrality might outweigh the individual’s right to manifest his or her religion.
The clothing mandated by Aczimendi tarikatÿ religious order includes a turban, baggy pants, a tunic, and a stick. Applicants had been arrested in 1996 while walking to the Kocatepe Mosque in Ankara, and filed their petition with the ECtHR in 1997.
For more information, see here and here.
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February 13th, 2010 at 03:02pm
On February 7, a pre-trial chamber of the International Criminal Court (ICC) unanimously declined to confirm charges against Sudanese rebel leader Bahar Idriss Abu Garda. Mr. Abu Garda is the first person to appear voluntarily before the court. He had been charged with being a direct or indirect co-perpetrator of several war crimes, including murder, attacks against a peacekeeping mission, and pillaging. All of the charges arose from his alleged involvement in an attack on Sept. 29, 2007, against the UN’s African Mission in Sudan (AMIS) in North Darfur. The Chamber found that while the allegations were sufficiently serious and while the personnel and installations associated with the AMIS peacekeeping mission were entitled to protection as civilians and civilian objects, the prosecution had produced insufficient evidence to establish substantial grounds that Mr. Abu Garda had participated in the attack.
The prosecution, led by Luis Moreno-Ocampo, had produced statements of anonymous witnesses. However, the Chamber found the statements to be of diminished probative value as they could not be directly challenged by the defense. The Chamber further found them to be “weak and unreliable due to the many inconsistencies,” and held that they failed to establish substantial grounds to believe that Mr. Abu Garda participated in any common plan to attack the AMIS mission. Further allegations that Mr. Abu Garda was himself involved in the attacks were found insufficient as the witness statements did not establish that he was present at the time of the attacks.
The Chamber’s decision not to confirm the charges presents yet another setback to the ICC’s efforts regarding the Darfur situation. The issue of Darfur was first referred to the Court by Security Council Resolution 1593 on March 31, 2005, following an International Commission of Inquiry on Darfur. Of five defendants indicted in four separate cases relating to the region, four remain outside of the Court’s custody, including Sudanese President Omar Hassan Ahmad al-Bashir. The charge of genocide against Mr. al-Bashir’s also failed to gain confirmation by the pre-trial Chamber, although the appeals Chamber recently ordered lower court to reconsider its decision in light of additional and previously disregarded evidence.
It is expected that, as in the al-Bashir case, the ICC prosecutor will again seek to appeal the pre-trial Chamber’s decision on Mr. Abu Garda.
For more information, please see the Court’s press release (here) and the Chamber’s decision (here).
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January 11th, 2010 at 12:53pm
On December 22, 2009, the European Court of Human Rights issued its ruling in Sejdic and Finki v. Bosnia and Herzegovina. In its opinion, the court held that the Bosnian Constitution, which requires that the House of Peoples of the Parliamentary Assembly and the Presidency be solely composed of persons belonging to the three constituent peoples (Bosniacs, Croats, and Serbs), discriminates against ethnic minorities and infringes electoral rights in violation of the European Convention on Human Rights. In order to prevent the government from adopting legislation contrary to the wills of any of the constituent peoples, the drafters of the Bosnian Constitution created a second legislative chamber (the House of the Peoples of the Parliamentary Assembly) composed of five members of each of the constituent peoples, and a collective Presidency composed of one member of each of the constituent peoples. In this case, a Jew and a Rom complained that the Bosnian Constitution and the Election Act of 2001 barred them from being candidates for office in the Presidency and the House of the Peoples of the Parliamentary Assembly, even though they possess experience comparable to the highest elected officials, because they refuse to declare affiliation with any of the constituent peoples.
The European Court of Human Rights acknowledged that the power-sharing mechanisms of the Bosnian Constitution were justifiably designed to achieve the aim of restoring peace to a war-torn country rife with ethnic conflict; however, it also noted that the country has made considerable progress in the fourteen years since the Dayton Peace Agreements. The court further noted the existence of other power-sharing mechanisms that do not require the exclusion of ethnic minorities not belonging to the three constituent peoples from high public office. As a result, the court found that the rule prohibiting non-constituent peoples from holding office in the House of the Peoples of the Parliamentary Assembly violated Article 14 of the European Convention on human rights (prohibiting discrimination in the enjoyment of rights guaranteed by the Convention) read in conjunction with Article 3 of Protocol No. 1 (guaranteeing the right of free elections). The court also found that the constitutional rule prohibiting the applicants from running for President violated Article 1 of Protocol No. 12 (prohibiting discrimination in the enjoyment of any right set forth by law). In terms of remedy, the court held that the finding of a violation provided just satisfaction with regards to the plaintiffs’ non-pecuniary injuries, and ordered the State to pay 1,000 Euros to the first applicant and 20,000 Euros to the second to cover their costs and expenses.
For further information, please click here.
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November 15th, 2009 at 10:50pm
On November 5th, a three-judge panel at the International Criminal Tribunal for Rwanda (ICTR) sentenced Michel Bagaragaza, the former head executive of the Rwandan tea industry, to eight years in prison for his role in the 1994 Rwandan genocide. The ICTR, which presides in Tanzania, found Bagaragaza guilty on one count of complicity for his role in having substantially contributed to the death of 1,000 ethnic Tutsis. Bagaragaza’s sentence includes credit for time he has already served since his detention in 2005.
As director general of OCIR/The, the government office controlling the tea industry, Bagaragaza oversaw 11 tea factories employing approximately 55,000 people. In addition to his government position in the tea industry, Bagaragaza was also the vice-president of a bank and a political leader in Gisenyi prefecture. His role in the 1994 genocide arose when 1,000 Tutsis sought refuge at Kesho Hill and at Nyundo Cathedral in Rwanda’s Gisenyi prefecture, close to the tea factories Bagaragaza oversaw. On April 8, 1994, Bagaragaza met with Thomas Kuradusenge, a senior official of the Giciye commune, and learned of Kuradusenge’s plan to carry out the killing of the 1,000 Tutsi seeking refuge. According to prosecutors, Bagaragaza aided and abetted Kuradusenge in carrying out those killings, authorizing that vehicles and fuel from the tea factories Bagaragaza oversaw be used in the attack, and ordering that the attackers be provided with weapons Bagaragaza had allowed the army to conceal at the tea factories since 1993. Bagaragaza also ordered that personnel from the factories participate in the attacks, according to a summary of the tribunal’s judgment. On subsequent occasions, Bagaragaza gave Kuradusenge large sums of money for the purchase of alcohol, so as to encourage those carrying out the killings in the Kabaya and Bugoyi areas to continue to do so.
Bagaragaza was initially charged with conspiracy to commit genocide, genocide, and in the alternative, complicity in genocide. On August 15, 2005, he voluntarily surrendered himself to the ICTR, pleading not guilty to each of the three counts listed in the initial indictment. Following procedural complications, he eventually pleaded guilty to the complicity charge in August of this year.
In sentencing, the judges noted that Bagaragaza had shown “genuine remorse for his actions,” providing “invaluable assistance to the Prosecution in its investigations.” They said that Bagaragaza had “to a remarkable degree contributed to the process of truth-finding with respect to the Rwandan tragedy and to national reconciliation.” The ICTR further noted that the defence had provided credible showing that Bagaragaza demonstrated no bias against Tutsis, and that his participation in the organization of the killings was likely motivated by concern for himself and his family. However, the court went on to state that the evidence did not suggest that Bagaragaza, “being a very resourceful person,” would have faced imminent danger had he not complied with the requests of the perpetrators.
Bagaragaza was represented by Counsel Geert-Jan Alexander Knoops from The Netherlands. The Prosecution was led by Wallace Kapaya, assisted by Patrick Gabaake, Mousa Sefon and Iskander Ismal.
The United Nations Security Council authorized the creation of the ICTR in 1994. An estimated 800,000 ethnic Tutsis and moderate Hutus were killed in the genocide that began in early April of that year.
For further information, please see here and here.
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November 15th, 2009 at 12:26am
In Shabani v. Switzerland (application no. 29044/06), a 4-3 decision, the European Court of Human Rights (ECtHR) ruled last Thursday (11/5) that a lengthy pre-trial detention did not violate the right to liberty of a suspected leader of a drug trafficking organization.
The applicant, Mr. Ragip Shabani, was denied the option of posting bail and was then subject to a pre-trial detention lasting over five years. He had originally been arrested on August 2, 2003, on suspicions of taking a leading role in a drug trafficking operation believed to involve fourteen-hundred kilograms of heroin and cocaine. After losing his appeal concerning Switzerland’s decision not to allow him to post bail, he turned to the ECtHR in 2006 while investigations were still underway, claiming that his lengthy detention violated his right to liberty. Subsequently, Mr. Shabani was indicted in December 2007, and his trial was scheduled for March 2008 but was later delayed until August 2008 due to a lack of adequate security staff. He was convicted on October 30, 2008.
The ECtHR recalled its previous findings that a government’s reasonable suspicion that someone had committed an offence could only justify detention for a limited period of time; after that time had lapsed, the authorities would have to give “relevant” and “sufficient” reasons for the continued detention and show that they had displayed “special diligence” in the conduct of the proceedings. The Court found that the government’s reasons for the continued detention satisfied these additional conditions. The government’s concerns that Mr. Shabani might abscond or collude if given the chance to post bail, as well as the potentially dubious origin of the funds used, justified its denial of that opportunity. And the proceedings were understandably long, since investigating an underground international criminal organization is a complex operation; in this regard, the Court found it especially significant that there had been no periods of inactivity during the proceedings.
In a short dissent, three judges rejected the “no period of inactivity” logic, pointing out that it could potentially justify indefinite detentions. They further argued that the delay in the trial’s starting date had been insufficiently explained; after more than four years with Mr. Shabani in detention, Switzerland should have been particularly cognizant of the need to start trial immediately after the indictment was filed. In their view, Switzerland’s lack of diligence, coupled with the lengthy detention, constituted a violation of Mr. Shabani’s right to liberty.
For more information, please click here.
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November 8th, 2009 at 11:22am
The hearing on the confirmation of charges against suspected Darfur war criminal Bahr Idriss Abu Garda at the International Criminal Court (ICC) ended on October 30th.Abu Garda, 46, is a leader of the United Resistance Front (URF), a rebel group fighting against the Sudanese government. He is suspected of war crimes allegedly committed during the attack on the African Union peacekeeping mission at the Haskanita military base in North Darfur on September 29, 2007.The attack resulted in the death of twelve UN peacekeepers and serious injury to eight others. Abu Garda’s alleged crimes, which fall under article 25(3)(a) of the Rome Statute, include murder, pillaging, and directing an attack against a peacekeeping mission.
Closing statements were made on October 29th and 30th. The Legal Representatives of the Victims emphasized that the orphans, widows, and survivors of the attack could never be truly compensated for their losses. “Victims will always be victims, but to see that justice is done will give them some comfort,” said Akin Akinbote, one of the victims’ four Representatives.
Prosecutor Fatou Bensouda alleged that Abu Garda was responsible for planning and executing the attack, in which 1,000 armed URF rebels attacked a base manned by African Union peacekeeping troops. The Prosecution further argued that their evidence established Military Group Site (MSG) Haskanita’s protected status under international law at the time of the attack, and that its personnel and property were entitled to the protection accorded to civilians. They noted that the Defence had presented no evidence to contradict this assertion.
Karim Khan, Abu Garda’s Defence counsel, argued that his client was not responsible for the September 29, 2007 attack on Haskanita. He also argued that Haskanita did not enjoy protected status when the attack occurred.
The court has 60 days from October 30th to determine whether the evidence against Abu Garda is sufficient for the case to go to trial. Abu Garda is the first alleged war criminal to appear before the ICC for crimes in Sudan.
For further information, please click here and here.
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November 7th, 2009 at 03:44am
The European Court of Human Rights (ECtHR) ruled Tuesday (11/3) that Italy’s display of crucifixes in public schools was in violation of the European Convention on Human Rights’ protection of the rights to education and freedom of religion.
The applicant, Ms. Soile Lautsi, petitioned the Court after Italy had rejected her requests to take down crucifixes that were prominently displayed in her children’s classrooms in accordance with Royal Decrees dating from the 1920’s. Responding to Italy’s argument that crucifixes had become a symbol of secular Italian history and culture, the Court relied on its former holding in Buscarini et al. v. Saint-Marin that the social and historical meaning of a text used in oath-taking did not deprive the text of its religious character. The Court noted that the crucifixes could easily be interpreted as religious signs and that children could feel that their school environment was Catholic; this point was further aggravated by the fact that Catholicism was the majority religion in Italy. As students could not avoid the classrooms without undue hardship, the Court found that the presence of the crucifixes thus interfered with the right of parents to educate their children in accordance with their convictions, and the right of children to believe or not to believe.
The Court awarded the applicant 5,000 euros for moral damage, considering that a mere declaratory judgment would not be sufficient as Italy had not expressed its readiness to review the relevant Royal Decrees.
For more information, please click here.
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November 6th, 2009 at 07:45pm
The interim government of Honduras has filed a complaint against Brazil in the International Court of Justice (ICJ), the Court announced on October 29. The complaint arises from events surrounding the surprise return to Honduras of Manuel Zelaya, the deposed president, who entered the country on September 21 and took refuge in the Brazilian Embassy in Tegucigalpa. Specifically, Honduras charges that Mr. Zelaya and an unknown number of other Honduran citizens have been using the Embassy as a “platform for political propaganda” with the complicity of Embassy staff and thereby “threatening the peace and internal public order of Honduras.” Honduras has requested declaratory and injunctive relief from the ICJ.
The legal bases of Honduras’s complaint are Article 2 (7) of the UN Charter, which reserves to member states matters which are “essentially within [their] domestic jurisdiction,” and the 1961 Vienna Convention on Diplomatic Relations. As a practical matter, Honduras’s complaint is only one element of a broader political and diplomatic offensive aimed at preventing Mr. Zelaya from returning to power before the upcoming presidential elections scheduled for November 29. It is unclear whether the ICJ will agree to hear the complaint, which was filed by an interim administration that many international observers consider illegitimate. Current efforts toward national reconciliation may also determine whether the case goes forward.
For more information, please click here.
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