INTERNATIONAL LAW REPORTS - Newbooks

INTERNATIONALLAW REPORTS

Volume 153

www.cambridge.org© in this web service Cambridge University Press

Cambridge University Press978-1-107-03676-5 - International Law Reports: Volume 153Edited by Sir Elihu Lauterpacht, Sir Christopher Greenwood and Karen LeeFrontmatterMore information

http://www.cambridge.org/9781107036765

http://www.cambridge.org


Volumes published under the title:

ANNUAL DIGEST AND REPORTSOF PUBLIC INTERNATIONAL LAW CASES

Vol. 1 (1919-22)Vol. 2 (1923-24)

Edited by Sir John Fischer Williams, KC,and H. Lauterpacht, LLD

Vol. 3 (1925-26)Vol. 4 (1927-28)

Edited by Arnold D. McNair, CBE, LLD,and H. Lauterpacht, LLD

Vol. 5 (1929-30)Vol. 6 (1931-32)Vol. 7 (1933-34)Vol. 8 (1935-37)Vol. 9 (1938-40)Vol. 10 (1941-42)Vol. 11 (1919-42)Vol. 12 (1943-45)Vol. 13 (1946)Vol. 14 (1947)Vol. 15 (1948)Vol. 16 (1949)

Edited by H. Lauterpacht, QC, LLD, FBA

Volumes published under the title:

INTERNATIONAL LAW REPORTS

Vol. 17 (1950)Vol. 18 (1951)Vol. 19 (1952)Vol. 20 (1953)Vol. 21 (1954)Vol. 22 (1955)Vol. 23 (1956)

Edited by Sir Hersch Lauterpacht, QC, LLD, FBA

Vol. 24 (1957) Edited by Sir Hersch Lauterpacht, QC, LLD, FBA,and E. Lauterpacht

Vol. 25 (1958-I)Vol. 26 (1958-II) Edited by E. Lauterpacht, QC

Vols. 27-68 and Consolidated Tables and Index to Vols. 1-35 and 36-45Edited by E. Lauterpacht, QC

Vols. 69-150 and Consolidated Index and Consolidated Tables of Casesand Treaties to Vols. 1-80, Vols. 81-100and Vols. 1-125

Edited by Sir Elihu Lauterpacht, CBE, QC,and Sir Christopher Greenwood, CMG, QC

Vols. 151-3 Edited by Sir Elihu Lauterpacht, CBE, QC, LLD,Sir Christopher Greenwood, CMG, QC,and K. L. Lee






Lauterpacht Centre for International LawUniversity of Cambridge

INTERNATIONALLAW REPORTS

VOLUME153

Edited by

SIR ELIHU LAUTERPACHT, cbe, qc, lldHonorary Professor of International Law, University of Cambridge

Bencher of Gray’s Inn

SIR CHRISTOPHER GREENWOOD, cmg, qcJudge of the International Court of Justice

Bencher of Middle Temple

and

KAREN LEEFellow of the Lauterpacht Centre for International Law, University of Cambridge

Fellow of Girton College, Cambridge

G R O T I U S P U B L I C A T I O N S






University Printing House, Cambridge CB2 8BS, United Kingdom

Published in the United States of America by Cambridge University Press, New York

Cambridge University Press is part of the University of Cambridge.

It furthers the University’s mission by disseminating knowledge in the pursuit of education, learningand research at the highest international levels of excellence.

www.cambridge.orgInformation on this title: www.cambridge.org/9781107036765

C© Sir Elihu Lauterpacht 2013

This publication is in copyright. Subject to statutory exceptionand to the provisions of relevant collective licensing agreements,no reproduction of any part may take place without the written

permission of Cambridge University Press.

First published 2013

Printed in the United Kingdom by CPI Group Ltd, Croydon CR0 4YY

A catalogue record for this publication is available from the British Library

ISBN 978-1-107-03676-5 Hardback

Cambridge University Press has no responsibility for the persistence oraccuracy of URLs for external or third-party internet websites referred to

in this publication, and does not guarantee that any content on suchwebsites is, or will remain, accurate or appropriate.






CONTENTS

Page

Preface vii

Editorial Note ix

Table of Cases (alphabetical) xiii

Table of Cases (according to courts and countries) xv

Digest (main headings) xvii

Digest of Cases Reported in Volume 153 xix

Table of Treaties xxxiii

Reports of Cases 1

Index 715

v











PREFACE

The present volume contains international decisions from the Court ofJustice of the European Communities (Commission v. Ireland) and of theEuropean Union (Mahamdia v. Algeria and Hungary v. Slovakia) and theEuropean Court of Human Rights (Silih v. Slovenia and Khodorkovskiy v.Russia). National jurisprudence is reflected in decisions from the courtsof Australia (Snedden, Zentai and PT Garuda Indonesia), China’s HongKong Special Administrative Region (Hua Tian Long (No 3)), England(Evans, Rahmatullah and Othman), the Netherlands (Nuhanovic),Northern Ireland (McCaughey) and Zimbabwe (Sibanda and Mann).

As usual this volume has been the work of many hands, to all of whomthe Editors wish to express their gratitude. Dr Chester Brown wrote thesummaries of the Australian cases and Ms Ciara Murphy summarizedMahamdia. Miss Maureen MacGlashan, CMG compiled the Table ofTreaties and the Index. Mrs Diane Ilott checked the copy and Mrs JennyMacgregor read the proofs. Ms Karen Lee summarized the cases from theCourt of Justice of the European Communities, the European Courtof Human Rights, the Hong Kong Special Administrative Region ofChina, the Netherlands, the Evans and Othman cases from England, thecase from Northern Ireland and the cases from Zimbabwe, prepared theTables of Cases and Digest and saw the volume through the press.

In addition, we would like to extend our thanks to all the otherswho have worked to complete this volume, particularly our publishers,Cambridge University Press, and typesetters, Aptara, and their staff.

E. LAUTERPACHTLauterpacht Centre

for International Law,University of Cambridge

C. J. GREENWOODThe Peace Palace,The Hague

K. L. LEELauterpacht Centre

for International Law,University of Cambridge

December 2012

vii











EDITORIAL NOTE

The International Law Reports endeavour to provide within a single seriesof volumes comprehensive access in English to judicial materials bearingon public international law. On certain topics it is not always easy todraw a clear line between cases which are essentially ones of publicinternational law interest and those which are primarily applicationsof special domestic rules. For example, in relation to extradition, theReports will include cases which bear on the exception of “politicaloffences” or the rule of double criminality, but will restrict the numberof cases dealing with purely procedural aspects of extradition. Similarly,while the general rules relating to the admission and exclusion of aliens,especially of refugees, are of international legal interest, cases on theprocedure of admission usually are not. In such borderline areas, andsometimes also where there is a series of domestic decisions all dealingwith a single point in essentially the same manner, only one illustrativedecision will be printed and references to the remainder will be given inan accompanying note.

Decisions of International TribunalsThe Reports seek to include so far as possible the available decisions ofevery international tribunal, e.g. the International Court of Justice, or adhoc arbitrations between States. There are, however, some jurisdictionsto which full coverage cannot be given, either because of the largenumber of decisions (e.g. the Administrative Tribunal of the UnitedNations) or because not all the decisions bear on questions of publicinternational law (e.g. the Court of Justice of the European Union). Inthese instances, those decisions are selected which appear to have thegreatest long-term value.

Human rights cases. The number of decisions on questions of interna-tional protection of human rights has increased considerably in recentyears and it is now impossible for the Reports to cover them all. Asfar as decisions of international jurisdictions are concerned, the Reportswill continue to publish decisions of the European Court of HumanRights and of the Inter-American Court of Human Rights, as well as“views” of the United Nations Committee on Human Rights. Decisionsof national courts on the application of conventions on human rightswill not be published unless they deal with a major point of substantivehuman rights law or a matter of wider interest to public international

ix






x EDITORIAL NOTE

lawyers such as the relationship of international law and national law, theextent of the right of derogation or the principles of the interpretationof treaties.

International arbitrations. The Reports of course include arbitralawards rendered in cases between States which involve an application ofpublic international law. Beyond this, however, the selection of arbitraldecisions is more open to debate. As these Reports are principally con-cerned with matters of public international law, they will not includepurely private law commercial arbitrations even if they are internationalin the sense that they arise between parties of different nationality andeven if one of them is a State. (For reports of a number of such awards,see Yearbook Commercial Arbitration (ed. Albert Jan van den Berg, underthe auspices of the International Council for Commercial Arbitration).)But where there is a sufficient point of contact with public internationallaw then the relevant parts of the award will be reported. Examples ofsuch points of contact are cases in which the character of a State as aparty has some relevance (e.g. State immunity, stabilization clauses, forcemajeure) or where there is a choice of law problem involving discussionof international law or general principles of law as possible applica-ble laws. The same criteria will determine the selection of decisions ofnational courts regarding the enforcement of arbitral awards.

Decisions of National TribunalsA systematic effort is made to collect from all national jurisdictionsthose judicial decisions which have some bearing on international law.

Editorial Treatment of MaterialsThe basic policy of the Editors is, so far as possible, to present the materialin its original form. It is no part of the editorial function to impose onthe decisions printed in these volumes a uniformity of approach orstyle which they do not possess. Editorial intervention is limited to theintroduction of the summary and of the bold-letter rubric at the headof each case. This is followed by the full text of the original decision orof its translation. Normally, the only passages which will be omitted arethose which contain either statements of fact having no bearing on thepoints of international law involved in the case or discussion of mattersof domestic law unrelated to the points of international legal interest.The omission of material is usually indicated either by a series of dotsor by the insertion of a sentence in square brackets noting the passageswhich have been left out.






EDITORIAL NOTE xi

Presentation of MaterialsThe material in the volume has been typeset for this volume. The sourceof all such material is indicated by the reference to the “Report” in squarebrackets at the end of the case. The language of the original decision isalso mentioned there. The bold figures in square brackets in the bodyof the text in non-English cases indicate the pagination of the originalreport.

NotesFootnotes. Footnotes enclosed in square brackets are editorial insertions.All other footnotes are part of the original report.

Other notes. References to cases deemed not to be sufficiently sub-stantial to warrant reporting will occasionally be found in editorial noteseither at the end of a report of a case on a similar point or under anindependent heading.

Digest of CasesWith effect from Volume 75 the decisions contained in the Reports areno longer arranged according to the traditional classification scheme.Instead a Digest of Cases is published at the beginning of each volume.The main headings of the Digest are arranged alphabetically. Under eachheading brief details are given of those cases reported in that volumewhich contain points covered by that heading. Each entry in the Digestgives the name of the case concerned and the page reference, the nameof the tribunal which gave the decision and an indication of the mainpoints raised in the case which relate to that particular heading of theDigest. Where a case raises points which concern several different areasof international law, entries relating to that case will appear under eachof the relevant headings in the Digest. A list of the main headings usedin the Digest is set out at p. xvii.

Consolidated Index and TablesA Consolidated Index and a Consolidated Tables of Cases and Treatiesfor volumes 1-80 were published in two volumes in 1990 and 1991.A further volume containing the Consolidated Index and Consol-idated Tables of Cases and Treaties for volumes 81-100 was pub-lished in 1996. A Consolidated Index, a Consolidated Tables of Casesand a Consolidated Table of Treaties for volumes 1-125 were pub-lished in 2004. Volume 150 contains Consolidated Tables of Cases forvolumes 126-150.











TABLE OF CASES REPORTEDALPHABETICAL

(Cases which are reported only in a note are distinguished from cases which are reportedin full by the insertion of the word “note” in parentheses after the page number of the report.)

Commission of the European Communitiesv. Ireland (Case C-459/03) 1

Croatia (Republic of ) v. Snedden 335

Evans (Maya) Case 508

Foreign Secretary and Defence Secretary v.Rahmatullah 607

Garuda (PT) Indonesia Ltd v. AustralianCompetition and Consumer Commis-sion 406

Hua Tian Long (No 3) 430Hungary v. Slovak Republic (Case

C-364/10) 92

International Committee of the RedCross v. Sibanda and Ngangura 689

Intraline Resources Sdn Bhd v. Ownersof the Ship or Vessel Hua Tian Long(No 3) 430

Khodorkovskiy v. Russia (ApplicationNo 5829/04) 253

Mahamdia v. People’s Democratic Republicof Algeria (Case C-154/11) 58

Mann v. Republic of Equatorial Guinea 697

McCaughey and Another, In re (NorthernIreland Human Rights Commission andOthers intervening) 192

Minister for Home Affairs (Australia Cth)and Others v. Zentai and Others 366

Mustafic and Others v. Netherlands (note)506

Nuhanovic v. Netherlands 467

Othman (Abu Qatada) v. Secretary of Statefor the Home Department 651

PT Garuda Indonesia Ltd v. AustralianCompetition and Consumer Commis-sion 406

R (Evans) v. Secretary of State for Defence508

Rahmatullah v. Secretary of State for Foreignand Commonwealth Affairs and Secre-tary of State for Defence 607

Secretary of State for Foreign and Common-wealth Affairs and Secretary of State forDefence v. Rahmatullah 607

Silih v. Slovenia (Application No 71463/01)122

xiii











TABLE OF CASES REPORTEDARRANGED ACCORDING TO COURTS ANDTRIBUNALS (INTERNATIONAL CASES) AND

COUNTRIES (MUNICIPAL CASES)

(Cases which are reported only in a note are distinguished from cases which are reportedin full by the insertion of the word “note” in parentheses after the page number of the report.)

I. DECISIONS OF INTERNATIONAL TRIBUNALS

Court of Justice of the European Communities

2006Commission of the European Communities

v. Ireland (Case C-459/03) 1

Court of Justice of the European Union

2012Hungary v. Slovak Republic (Case C-

364/10) 92

Mahamdia v. People’s Democratic Republicof Algeria (Case C-154/11) 58

European Court of Human Rights

2009Silih v. Slovenia (Application No 71463/01)

122

2011Khodorkovskiy v. Russia (Application No

5829/04) 253

II. DECISIONS OF MUNICIPAL COURTS

Australia

2010Republic of Croatia v. Snedden 335

2012Minister for Home Affairs (Cth) and Others

v. Zentai and Others 366PT Garuda Indonesia Ltd v. Australian

Competition and Consumer Commis-sion 406

China, Hong Kong Special AdministrativeRegion

2010Intraline Resources Sdn Bhd v. Owners of

the Ship or Vessel Hua Tian Long (No 3)430

The Netherlands

2011Mustafic and Others v. Netherlands (note)

506Nuhanovic v. Netherlands 467

United Kingdom, England

2010The Queen (on the application of Evans) v.

Secretary of State for Defence 508

2012Othman (Abu Qatada) v. Secretary of State

for the Home Department 651Secretary of State for Foreign and Common-

wealth Affairs and Secretary of State forDefence v. Rahmatullah; Rahmatullah v.

xv






xvi TABLE OF CASES

Secretary of State for Foreign and Com-monwealth Affairs and Secretary of Statefor Defence 607

United Kingdom, Northern Ireland

2011In re McCaughey and Another (Northern

Ireland Human Rights Commission andOthers intervening) 192

Zimbabwe

2004International Committee of the Red Cross

v. Sibanda and Ngangura 689

2008Mann v. Republic of Equatorial Guinea 697






DIGEST OF CASESList of Main Headings

(Those headings for which there are entries in the present volume are printed in italics.For a guide to the Digest, see the Editorial Note at p. xi.)

Air

Aliens

Arbitration

Canals

Claims

Comity

Conciliation

Consular relations

Damages

Diplomatic relations

Economics, trade and finance

Environment

Expropriation

Extradition

Governments

Human rights

International court of justice

International criminal law

International organizations

International tribunals

Jurisdiction

Lakes and landlocked seas

Nationality

Recognition

Relationship of international law andmunicipal law

Reprisals and countermeasures

Rivers

Sea

Sources of international law

Space

State immunity

State responsibility

State succession

States

Territory

Terrorism

Treaties

War and armed conflict

xvii











DIGEST OF CASESREPORTED IN VOLUME 153

AliensPage

Immigration and deportation — Deportation of non-nationalto State of nationality — Appellant deemed to be danger tonational security — Deportation order authorized by Home Secre-tary — Non-enforcement of deportation order pending outcomeof European Court of Human Rights proceedings — Strasbourgjudgment — Home Secretary notifying appellant of intention todeport to native Jordan — Refusal by Home Secretary of appel-lant’s request to revoke deportation order — Appellant appeal-ing against Home Secretary’s decision — Whether decision sat-isfying test identified by Strasbourg Court — Whether HomeSecretary’s discretion should have been exercised differently —Section 86(3)(b) of Nationality, Immigration and Asylum Act2002 — England, Special Immigration Appeals Commission

Othman (Abu Qatada) v. Secretary of State for the HomeDepartment 651

DamagesNon-pecuniary damage — Whether findings of violations of Arti-cles 3 and 5 of Convention sufficient — Costs and expenses —Whether indication of specific individual measures appropriate —Articles 41 and 46 of European Convention on Human Rights,1950 — European Court of Human Rights (Former First Section)

Khodorkovskiy v. Russia (Application No 5829/04) 253

ExtraditionDouble criminality — Nature and scope of requirement — Tem-poral element — Whether acts constituting offence must haveconstituted the precise crime for which extradition requested atthe date they took place — War crimes — Murder — Respondentaccused of war crime of murdering civilian in Hungary in 1944 —Murder constituting offence under Hungarian law in 1944 —Offence of war crimes added to Hungarian law at later date —Australia, High Court

Minister for Home Affairs (Cth) and Others v. Zentai and Others 366

xix






xx DIGEST OF CASES

Extradition (cont.)

Eligibility for surrender — Risk of discrimination against respon-dent at trial — Extradition objection — Necessary causal con-nection between potential punishment, detention or restriction ofliberty and person’s political opinions — Whether ineligibility formitigating factors in sentencing is punishment — Extradition Act1988 (Cth) — Australia, High Court

Republic of Croatia v. Snedden 335

Extradition Act 1988 (Cth) — Bilateral Extradition Treaty betweenAustralia and Hungary — Treaty interpretation — Double crim-inality — Requirement that offence charged was crime at time ofcommission of offence — War crimes — Refusal of surrender —Australia, High Court


Human RightsInhuman and degrading treatment — Conditions of detention inRussian remand prisons — Conditions in courtroom before andduring trial — Whether violation of Article 3 of European Con-vention on Human Rights, 1950 — European Court of HumanRights (Former First Section)


Limitation on use of restriction on rights — Whether State usingcriminal prosecution for political ends — Presumption of goodfaith — Standard of proof — Whether violation of Article 18of European Convention on Human Rights, 1950 — EuropeanCourt of Human Rights (Former First Section)


Prohibition of torture — Assurances by Jordanian Governmentabout treatment of appellant on return to Jordan — Whetherproviding sufficient guarantee of protection against risk of ill-treatment by Jordanian State agents — Article 3 of EuropeanConvention on Human Rights, 1950 — England, Special Immi-gration Appeals Commission


Right to a fair trial — Article 6 of European Convention onHuman Rights, 1950 — Prohibition on use of evidence obtainedby torture — Test to be applied in “foreign” Article 6 cases — Testidentified by Strasbourg Court — Assessment of risks — Risk that






DIGEST OF CASES xxi

statements obtained by torture admitted in evidence at appellant’sretrial — Factors giving rise to risk — Whether appellant wouldbe subjected to flagrantly unfair trial in Jordan — Evidence —Determinative question — Whether real risk impugned statementswould be admitted as probative of appellant’s guilt at retrial underJordanian law — Jordanian law — Application by three civilianjudges in State Security Court — Admissibility of statements underArticle 148.2 of the Code of Criminal Procedure — Whether realrisk statements admitted even though real risk they were obtainedby torture — Whether Home Secretary establishing no real riskimpugned statements would be admitted — Whether deportationwould violate Article 6 — Whether test identified by StrasbourgCourt satisfied — Whether Home Secretary’s discretion shouldhave been exercised differently — Whether appellant’s deportationorder should be revoked — England, Special Immigration AppealsCommission


Right to liberty and security — Arrest for failure to respond to wit-ness summons — Whether violation of Article 5(1)(b) of EuropeanConvention on Human Rights — Exclusion of public from hear-ings — Whether violation of Article 5(1)(c) of Convention —Whether applicant’s continuous detention justified by compellingreasons outweighing presumption of liberty — Whether violationof Article 5(3) of Convention — Whether procedural flaws indetention proceedings — Whether unacceptable delays in appel-late review of detention orders — Whether violation of Article 5(4)of European Convention on Human Rights, 1950 — EuropeanCourt of Human Rights (Former First Section)


Right to liberty of person — Crime Prevention Law 7 of 1954 —Whether real risk Jordanian authorities would invoke law to secureappellant’s detention if acquittal followed retrial — Article 5 ofEuropean Convention on Human Rights, 1950 — England, Spe-cial Immigration Appeals Commission


Right to life — Article 2 of European Convention onHuman Rights, 1950 — Nature of obligations — Decision ofEuropean Court of Human Rights in Silih – Proceduralobligation to investigate deaths detachable from substantiveobligation — Procedural obligation requiring State to carry outeffective official investigation into circumstances of death —






xxii DIGEST OF CASES

Human Rights (cont.)

Human Rights Act 1998 incorporating Convention into domes-tic law — Human Rights Act 1998 commencing 2 October2000 — Deaths occurring before commencement of Act — Scopeof inquest into deaths — Whether inquests into deaths to com-ply with procedural obligation under Article 2 of Convention —United Kingdom, Supreme Court

In re McCaughey and Another (Northern Ireland Human RightsCommission and Others intervening) 192

Right to life — Fundamental nature of right — Applicants’ com-plaint of their son’s death due to medical negligence — Applicantsinstituting criminal and civil proceedings in Slovenia — Proced-ural obligation to carry out effective investigation under Article2 of European Convention on Human Rights, 1950 — Whetherdomestic authorities failing to deal with applicants’ claim with levelof diligence required by Article 2 — Whether Slovenia violatingArticle 2 of Convention in its procedural limb — European Courtof Human Rights (Grand Chamber)

Silih v. Slovenia (Application No 71463/01) 122

Torture — Inhuman and degrading treatment — United King-dom operations in Afghanistan — United Kingdom transferringdetainees to Afghan authorities — National Directorate of Secu-rity detention facilities — Kabul (Department 17), Kandahar andLashkar Gah — Whether United Kingdom transferees at real riskof torture or serious mistreatment — Whether practice of trans-fer breaching Secretary of State’s policy — Article 3 of EuropeanConvention on Human Rights, 1950 — Relevant principles —Role of court — Standard in international legal instruments —Article 3 of Torture Convention, 1984 — Class case — Whetherconsistent pattern of gross and systematic violations of humanrights — Other relevant considerations — Whether proper evi-dential basis — Independent reports — Allegations of UnitedKingdom transferees — Canadian material — Safeguards —Afghanistan–United Kingdom Memorandum of Understandingand related assurances — Whether sufficient — Practical oper-ation of transfer arrangements — Access to transferees by UnitedKingdom personnel — Credibility of allegations — Whether sys-tem of specific safeguards insulating United Kingdom transfereesaltogether from risk of ill-treatment — Whether current UnitedKingdom practice of transfers unlawful — England, High Court,Queen’s Bench Division

The Queen (on the application of Evans) v. Secretary of State forDefence 508






DIGEST OF CASES xxiii

International OrganizationsEuropean Community — Autonomy of Community legal sys-tem — Whether international agreement affecting allocation ofresponsibilities defined in EC and Euratom Treaties — Obli-gations of EC Member States — EC Member State institutingdispute-settlement proceedings against another EC Member Stateunder United Nations Convention on the Law of the Sea, 1982 —Whether Member State failing to fulfil its obligations under ECand Euratom Treaties — Whether Court of Justice having exclu-sive jurisdiction over dispute between EC Member States — Courtof Justice of the European Communities (Grand Chamber)

Commission of the European Communities v. Ireland (CaseC-459/03) 1

International Committee of the Red Cross — Privileges and immu-nities — Employment dispute — Zimbabwe conferring immu-nity from suit and legal process on ICRC — Whether immunitycovering all suits and legal processes — Nature and extent ofimmunity accorded to foreign sovereign — Doctrine of restrictiveimmunity — Whether ICRC enjoying immunity from suit andlegal process in respect of contracts of employment — Whethercontracts of employment terminated by agreement — WhetherRetrenchment Regulations applicable — Zimbabwe, SupremeCourt

International Committee of the Red Cross v. Sibanda andNgangura 689

Responsibility — Attribution of acts to international organiza-tion or to States — United Nations — Peacekeeping mission —United Nations Security Council establishing United Nations Pro-tection Force (“UNPROFOR”) — Security Council Resolution743 (1992) — Peacekeeping mission of UNPROFOR extendingto Bosnia and Herzegovina — The Netherlands, Court of Appealof The Hague


International TribunalsArbitral Tribunal established under Annex VII of United NationsConvention on the Law of the Sea, 1982 — Jurisdiction — ECMember State submitting dispute with other EC Member Stateto Arbitral Tribunal — Whether dispute concerning Communitylaw — Whether EC Member State thereby failing to fulfil itsobligations under EC and Euratom Treaties — Whether system for






xxiv DIGEST OF CASES

International Tribunals (cont.)

resolution of disputes in EC Treaty or Part XV of UNCLOS havingprecedence — Court of Justice of the European Communities(Grand Chamber)


Relationship of International Law and Municipal LawEffect of international law in the law of the European Union —International law forming part of the EU legal order — Inter-national law regarding Heads of State — Court of Justice of theEuropean Union (Grand Chamber)

Hungary v. Slovak Republic (Case C-364/10) 92

Effect of international law in the law of the European Union —International law on State immunity — Uncertain scope of inter-national law — Court of Justice of the European Union (GrandChamber)

Mahamdia v. People’s Democratic Republic of Algeria (CaseC-154/11) 58

European Convention on Human Rights, 1950 — Incorporationinto domestic law by Human Rights Act 1998 — Human RightsAct 1998 entering into force on 2 October 2000 — Application —Interpretation — European Court of Human Rights — Tempo-ral jurisdiction — Grand Chamber decision of European Courtof Human Rights — Silih — Meaning — Nature of obligationsimposed by Article 2 of European Convention — Substantive andprocedural obligations — Procedural obligation requiring Stateto carry out effective official investigation into circumstances ofdeath — Procedural obligation detachable from substantive obliga-tion — Effect of Silih decision on domestic law — Previous Houseof Lords decision in McKerr inconsistent with Silih decision —Whether McKerr binding — Deaths occurring before commence-ment of Human Rights Act 1998 — Substantive obligation havingno application in domestic law — Scope of inquests — Whetherinquests into deaths to comply with procedural obligation underArticle 2 of Convention — Whether breach of claimants’ Arti-cle 2 rights under Human Rights Act 1998 — United Kingdom,Supreme Court

In re McCaughey and Another (Northern Ireland Human RightsCommission and Others intervening) 192






DIGEST OF CASES xxv

Treaties — Customary international law — European Conven-tion on Human Rights, 1950, Articles 2 and 3 — InternationalCovenant on Civil and Political Rights, 1966 (“ICCPR”), Articles6 and 7 — Right to life — Prohibition of inhuman treatment —Fundamental legal principles of civilized nations — Universallyvalid — Binding upon State — Bosnia and Herzegovina party toICCPR — ICCPR constituting part of Bosnian law — ICCPRprovisions having priority over Bosnian law in event of inconsis-tency — Constitution of Bosnia and Herzegovina, Article 3 —Alleged wrongful conduct to be tested against law of Bosnia andHerzegovina in accordance with Dutch international private law —Alleged wrongful conduct to be tested against legal principles con-tained in European Convention and ICCPR — The Netherlands,Court of Appeal of The Hague


Treaties — European Convention on Human Rights, 1950 —Convention against Torture, 1984, Article 15 — Strasbourgcase law — Evidence obtained by torture — Admission —Whether European Convention standards imposed on foreignStates — Whether requirement for prosecution in Jordanian caseto prove no real risk statement obtained by torture — Jordan-ian law — Relevance — England, Special Immigration AppealsCommission


Treaties — Interpretation — Extradition treaty — Treaty giveneffect in Australian law by statute — Approach to treaty interpret-ation — Australia, High Court


Treaties — Memorandum of Understanding — Effect in munici-pal law — Memorandum of Understanding regarding transfer ofdetainees in Iraq — Effect in English law — United Kingdom,Supreme Court

Secretary of State for Foreign and Commonwealth Affairs andSecretary of State for Defence v. Rahmatullah; Rahmatullah v.Secretary of State for Foreign and Commonwealth Affairs andSecretary of State for Defence 607

Treaties — United Nations Convention against Torture, 1984 —Status in international law — Zimbabwe not party to Tor-ture Convention — Extradition Act — Article 3 of Torture






xxvi DIGEST OF CASES

Relationship of International Law and Municipal Law (cont.)

Convention — Non-refoulement principle — Whether Article3 of Torture Convention applicable in Zimbabwe — Universalprohibition of torture — Customary international law — Inter-national Covenant on Civil and Political Rights, 1966 — AfricanCharter on Human and Peoples’ Rights, 1981 — Interpretation —Zimbabwe party to International Covenant and African Charter —Zimbabwe’s obligations under International Covenant and AfricanCharter — Whether substantial grounds for believing appellant atrisk of being subjected to torture if extradited — Whether appel-lant’s extradition prohibited under Extradition Act — Zimbabwe,High Court

Mann v. Republic of Equatorial Guinea 697

Treaties — United Nations Convention on the Law of theSea, 1982 — Arbitral Tribunal established under Annex VII ofUNCLOS — European Community — EC and EuratomTreaties — Obligations of Member States of European Commu-nity under EC and Euratom Treaties — Exclusive jurisdictionof Court of Justice of the European Communities — Autonomyof Community legal order — Whether EC Member States hav-ing conflicting legal obligations under public international law —Whether UNCLOS part of Community legal order — Court’sjurisdiction over mixed agreements such as UNCLOS — Scope —Whether UNCLOS provisions in issue within Community com-petence — Whether part of Community law — Whether subjectto Court’s jurisdiction — Whether system for resolution of dis-putes in EC Treaty or Part XV of UNCLOS having precedence —Court of Justice of the European Communities (Grand Chamber)


SeaEnvironmental protection — United Nations Convention on theLaw of the Sea, 1982 — Protection of marine environment —UNCLOS provisions invoked in dispute relating to protectionof marine environment — Whether within scope of EuropeanCommunity competence — Whether subject to jurisdiction ofCourt of Justice of the European Communities — Court of Justiceof the European Communities (Grand Chamber)







DIGEST OF CASES xxvii

State ImmunityJurisdictional immunity — Employment — Employment atembassy — Dual German and Algerian national employed asdriver at Algerian Embassy in Germany — Employment dispute —Whether Algeria entitled to immunity from jurisdiction of theGerman courts — EU Regulation No 44/2001 — Whetherembassy to be treated as branch, agency or other establishment —Contractual clause giving exclusive jurisdiction to the courtsof Algeria — Court of Justice of the European Union (GrandChamber)

Mahamdia v. People’s Democratic Republic of Algeria (CaseC-154/11) 58

Jurisdictional immunity — Exceptions to immunity — Proceed-ings concerning commercial transaction — Antitrust law andanticompetitive behaviour — Proceedings instituted by regu-lator — Public and private law distinction — Agreements orunderstandings as “commercial transactions” — Australia, HighCourt

PT Garuda Indonesia Ltd v. Australian Competition andConsumer Commission 406

Nature and scope — Applicability — Concept based on equalityof States — People’s Republic of China resuming sovereignty overHong Kong Special Administrative Region after 1 July 1997 —Whether action against organ of Chinese Government in HongKong impleading foreign State — Whether sovereign immunityhaving application inter-provincially — Basic Law of Hong KongSpecial Administrative Region — “One country, two systems”principle — Crown immunity — Applicability — Nature —Concept based on inequality of ruler and ruled — Crown Pro-ceedings Ordinance enacted in Hong Kong in 1957 — Effect oncommon law doctrine of Crown immunity — New constitutionalorder — Crown immunity after 1 July 1997 — Whether sub-sisting — Whether defendant owners of vessel Hua Tian Longentitled to assert Crown immunity — Whether forming part ofCrown of People’s Republic of China — Whether submitting toCourt’s jurisdiction — Whether waiving right to immunity —Hong Kong Special Administrative Region of the People’s Repub-lic of China, Court of First Instance

Intraline Resources Sdn Bhd v. Owners of the Ship or Vessel HuaTian Long (No 3) 430






xxviii DIGEST OF CASES

State ResponsibilityAttribution — National contingent in United Nations force —State placing troops at disposal of United Nations — Dutchbattalion contingent in UNPROFOR — Alleged wrongful con-duct of contingent — Whether attributable to State — Whetherattributable to United Nations — Whether attributable to bothState and United Nations — Assessment in accordance with inter-national law — Decisive criterion for attribution — Effective con-trol — Context for alleged conduct — Whether alleged conductunlawful — Bosnian law — Principles laid down in Articles 6 and7 of International Covenant on Civil and Political Rights, 1966 —Whether State liable for damages — The Netherlands, Court ofAppeal of The Hague


StatesHead of State — Privileges and immunities — Status when visitingterritory of another State — Obligations of the host State — Mem-ber States of the European Union — Citizenship of the EuropeanUnion — Free movement of EU citizens — Whether applica-ble to Head of State — Head of State of one EU Member Statebarred from entering the territory of another EU Member State —Whether compatible with EU law — Court of Justice of the Euro-pean Union (Grand Chamber)

Hungary v. Slovak Republic (Case C-364/10) 92

Sovereignty — Afghanistan — United Nations Security Coun-cil Resolutions — International community pledging to supportand ensure respect for Afghan sovereignty — Afghanistan havingjurisdiction over all persons in territory unless expressly agreedotherwise — Entitlement of Afghan Government to prosecutethose in jurisdiction committing offences under Afghan law —Security and rule of law in Afghanistan — Afghanistan havingoverall responsibility — Afghan Constitution and Penal Code pro-hibiting all acts of torture and inhuman punishment — WhetherUnited Kingdom practice of transferring detainees to Afghanauthorities unlawful — England, High Court, Queen’s BenchDivision

The Queen (on the application of Evans) v. Secretary of Statefor Defence 508






DIGEST OF CASES xxix

TerrorismAppellant deemed to be danger to national security in United King-dom — Deportation order for appellant to return to native Jor-dan — Whether deportation would violate Article 6 of EuropeanConvention on Human Rights, 1950 — Whether test identifiedby Strasbourg Court satisfied — Exercise of Home Secretary’s dis-cretion — Whether revocation of deportation order appropriate —England, Special Immigration Appeals Commission


TreatiesApplication — Principle of non-retroactivity — Article 28 ofVienna Convention on the Law of Treaties, 1969 — Slovenia rat-ifying European Convention on Human Rights, 1950 on 28 June1994 — Death of son of applicants on 19 May 1993 — Applicantscomplaining that Convention rights breached by Slovenia due toinefficiency of Slovenian judicial system in establishing respon-sibility for their son’s death — Whether Court having temporaljurisdiction to deal with complaint concerning procedural aspectof Article 2 of Convention — Time of interference principle —Detachability of procedural obligations — Whether proceduralobligation to carry out effective investigation under Article 2 ofConvention separate and autonomous duty — Whether bindingon State even if death occurred prior to date of Slovenia’s ratifica-tion of Convention — Jurisprudence of United Nations HumanRights Committee and Inter-American Court of Human Rights —Principle of legal certainty — Exhaustion of domestic remedies —European Court of Human Rights (Grand Chamber)

Silih v. Slovenia (Application No 71463/01) 122

EC Treaty — Euratom Treaty — Application and interpretation —Court of Justice of the European Communities — Jurisdiction —Scope — Member States of European Community — Obligationson Member States under EC and Euratom Treaties — MemberState instituting dispute-settlement proceedings against anotherMember State under United Nations Convention on the Law ofthe Sea, 1982 — Whether dispute concerning Community law —Whether Ireland failing to respect exclusive jurisdiction vested inCourt — Whether dispute requiring interpretation and applica-tion of Community law measures — Whether Ireland failing tocomply with duty of cooperation — Whether Ireland failing






xxx DIGEST OF CASES

Treaties (cont.)

to fulfil its obligations under Articles 10 and 292 of EC Treaty andArticles 192 and 193 of Euratom Treaty — Court of Justice of theEuropean Communities (Grand Chamber)


Interpretation — Vienna Convention on the Law of Treaties,1969 — Articles 31 and 32 — Whether declaratory of custom-ary international law — Interpretation of treaty given effect bystatute — Relevance of subsequent practice of the parties — Aus-tralia, High Court


Non-binding agreements — Memorandum of Understanding —Nature — Significance — Assumption that State will complywith undertakings made in Memorandum of Understanding —Memorandum of Understanding concerning transfer of detaineesin Iraq — United Kingdom, Supreme Court

Secretary of State for Foreign and Commonwealth Affairs andSecretary of State for Defence v. Rahmatullah; Rahmatullah v.Secretary of State for Foreign and Commonwealth Affairs andSecretary of State for Defence 607

United Nations Convention on the Law of the Sea, 1982 —UNCLOS concluded by European Community and all its Mem-ber States — Mixed agreement — Status of UNCLOS in Com-munity legal order — EC Member State relying on UNCLOSprovisions in submitting dispute to Arbitral Tribunal — WhetherUNCLOS provisions in issue within scope of Community com-petence — Whether forming integral part of Community legalorder — Whether dispute concerning interpretation or applicationof EC or Euratom Treaties — Effect of UNCLOS on allocationof responsibilities in Treaties — Effect of UNCLOS on autonomyof Community legal system — Court of Justice of the EuropeanCommunities (Grand Chamber)


War and Armed ConflictDetainees — Protected persons — Occupied territory — Civil-ians — Prisoners of war — Pakistani national arrested by British






Documents

INTERNATIONAL LAW REPORTS - Newbooks