January-March 2010 1

PresidentR. P. Anand

Vice PresidentsNarinder Singh

C. K. ChaturvediR. Venkat Rao

TreasurerV. G. Hegde

Secretary GeneralRahmatullah Khan

DirectorS. K. Verma

INSIDE

Recent Activities ...................................... 2-3

Recent Developmentsin International Law .................................. 3-7

Recent Articles ............................................ 7

New Additions in ISIL Library ................. 7-8

Current Issue of IJIL ................................... 8

Published by:The Indian Society of International Law

V.K. Krishna Menon Bhawan,9, Bhagwan Dass Road,

New Delhi-110001 (INDIA)Tel.: 23389524, 23384458-59 Fax: 23383783

E-mail: isil@giasdl01.vsnl.net.inWebsite: www.isil-aca.org

The Indian Societyof International Law

VOL. 9, NO. 1, January-March, 2010

N E W S L E T T E R

For members only

EditorialAlthough international law clearly prohibits secret detention, the practice iswidespread and “reinvigorated” by the so-called global war on terror. In a 222-page study presented to the UN Human Rights Council, the experts conclude that“secret detention is irreconcilably in violation of international human rights law,including during those adopted state of emergency.” Likewise, it is in violation ofinternational humanitarian law during any form of armed conflict. The study wasdone by the Special Rapporteur on the promotion and protection of human rightswhile countering terrorism (Martin Scheinin); the Special Rapporteur on tortureand other cruel, inhuman or degrading treatment or punishment (Manfred Nowak);the Working Group on arbitrary detention (represented by its Vice-Chairperson,Shaheen Sardar Ali); and the Working Group on enforced or involuntary

disappearances (represented by its Chairperson, Jeremy Sarkin). Working in an independent and pro bonocapacity, they all are appointed by, and report to, the Human Rights Council. The study, which took almost a yearto complete, involves responses from 44 States to a detailed questionnaire, as well as interviews with 30individuals – or their family members or their legal counsels – who were victims of secret detention, and in manycases may also have been subjected to torture. Secret detention as such may constitute torture or ill-treatment forthe victims as well as their families. But the very purpose of secret detention is to facilitate and, ultimately coverup torture and inhuman and degrading treatment used either to obtain information or to silence people. Whilein some cases, elaborate rules are put in place authorizing “enhanced” techniques that violate internationalstandards of human rights and humanitarian law, mostly secret detention is used as a kind of opaque shield toavoid any scrutiny and control – and make it impossible to learn about treatment and conditions duringdetention. The general fear of secret detention and its corollaries such as torture and ill-treatment tend toeffectively result in limiting the exercise of a large number of human rights and fundamental freedoms. TheExperts conclude, with concrete recommendations, to contain these practices including that the States shouldratify and implement the International Covenant on Civil and Political Rights and the Convention against Torture(CAT). Given that the Optional Protocol to the Convention against Torture (OPCAT) requires the setting up ofmonitoring systems covering all situations of deprivation of liberty, adhering to this international instrument addsa layer of protection. States should ratify the CAT and OPCAT and create independent national preventivemechanisms that are in compliance with the Paris Principles, and ratify the International Convention for theProtection of All Persons from Enforced Disappearance. The National Human Rights Commission of India hasalso recommended ratification of the CAT. In fact, Indian government is likely to bring an anti-torture law to ratifya UN Convention against torture and other cruel and inhuman treatment or punishment. Recently, the UnionCabinet has approved a proposal to introduce the Prevention of Torture Bill, 2010 in the Parliament. This is astep towards ratification of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatmentof Punishment adopted by the UN General Assembly in 1984. India had signed the Convention in October, 1997.The matter was examined at length in consultation with the Law Commission of India and the then AttorneyGeneral of India. As the matter is in the Concurrent List of the Seventh Schedule of the Constitution, the views ofthe state governments were also sought. Much still must be done to refine the international and national rulesand to implement them domestically.

R. P. Anand

2 January-March 2010

RECENT ACTIVITIES

A PUBLIC LECTURE ON“COMPARING LEGAL CULTURESTHROUGH FILMING TRIALS” BYHON’BLE JUSTICE ANTOINEGARAPON

Indian Society of International Law (ISIL)organised a public lecture on “Comparing LegalCultures Through Filming Trials” on 11th January2010 at its premises. Dr. V. G. Hegde,Treasurer, ISIL introduced the speaker Hon’bleJustice Antoine Garapon, Secretary General ofthe Institut des Hautes Etudes sur la Justice(IHEJ). Justice Garapon said, “Culture is notcontagious. Studying law books of a differentlegal culture is not the quickest way to “catch” orunderstand this culture and indeed might lead toserious misunderstandings. Comparing legalcultures requires one to not only study overtdifferences but also to attend to underlying terms/concepts that appear to be the same: does anAmerican judge really perform the same task ashis or her French colleague? It is not only amatter of jurisdictions but of different culturalidentities. If culture is the set of answers toquestions nobody bothered to ask, we must firstfind the questions! Through filming trials, theproject seeks to have a better access tocultures.” Images of trials in France, the US andChina were presented with commentary byJudge Garapon.

SEVENTH INTERNATIONALCONFERENCE ON LEGALREGIMES OF SEA, ANTARCTICA,AIR AND SPACE, 15-17 JANUARY2010

The Seventh International Conference identifiedthree themes: (I) Maritime Regime, (II) LegalRegime of Antarctica, (III) International LegalRegime of the Air and Outer Space Regime. TheSeventh International Conference on “LegalRegimes of Sea, Antarctica, Air and Space” heldon 15-17 January 2010. Hon’ble Shri PrithvirajChavan, Minister of State of Earth and Sciencesinaugurated the Conference on 15 January 2010at ISIL Auditorium. Prof. R. P. Anand, ExecutivePresident, ISIL also addressed the session. ShriRam Niwas Mirdha, the then President, ISILwelcomed the guests. At this occasion, the ISILwas able to distribute compendium of conferencepapers to each delegate. Chief Guest releasedthe Conference Papers and two books authoredby Dr. Manoj Kumar Sinha and Dr. S. R. S.Bedi respectively. In the evening a colourfulcultural programme was performed by the artistsof Sahitya Kala Parishad, New Delhi. Nearly300 delegates including 14 from abroadparticipated in the Conference. The delegates hadcome from various backgrounds such asinternational institutions, government ministries,universities, law colleges and non-governmentalorganizations. The Conference witnessed lively

interventions by delegates during all sessions.Altogether 40 papers were presented by expertsfrom India and abroad.

Three sessions were organized to discuss theabove mentioned themes. The first session heldon 16th January 2010 on the theme ‘LegalRegime of the Sea’ was chaired by Prof. R. P.Anand, Executive President, ISIL. Dr. M.Gandhi, Director, L&T Division, MEA,Government of India gave keynote address.Eminent panelists namely Prof. SandeepGopalan, University of Ireland; Rear Admiral O.P. Sharma; Mr. Robert C. Bakwel, Director,Centre for International Law, Singapore; Prof. J.L. Kaul, Professor of Law, Delhi University andProf. (Mrs.) Harpal Khera, Department of Law,Punjabi University, Patiala presented papers on“Pirates of the Aden: A Tale of Law’sImpotence”, “Maritime Security and the UNConvention on the Law of the Sea 1982”,“Submarine Cables and UNCLOS”, “Piracy andInternational Law” and “RegulatingEnvironmental Hazards of Ship Breaking: Roleof Judiciary in India” respectively.

The second session based on the theme “LegalRegime of Antarctica” was chaired by ProfessorYogesh K. Tyagi, Dean and Professor ofInternational Law, SIS, JNU, New Delhi. Thekeynote address was delivered by Dr. ShaileshNayak, Secretary, Ministry of Earth Sciences,Government of India & Chairman of EarthCommission. Eminent panelists namely Prof.Sanjay Chaturvedi, Department of PoliticalScience, Chandigarh University, Chandigarh;Dr. Luther Rangreji, Legal Officer, L&T Division,MEA, Government of India; Prof. Manoj KumarSinha, Professor of Law, NUJS, Kolkata and Dr.Sandeep Bhatt, NUJS, Kolkata presentedpapers on “Geopolitics-Law Interface in the

Antarctica: Continuity and Change”, “Fifty Yearsof Antarctica Treaty: Legal Challenges,Implementation of the Madrid Protocol (1991) onthe Environmental Protection of Antarctica inthe Indian Legal System”, “Why Moratorium andWhy not Common Heritage of Mankind for theExploitation of the Antarctica MineralResources?” respectively.

The third session held on 17th January 2010 hasbeen divided into two parts. First part discussedon the theme the “Legal Regime of Air”. Prof.Ram Jakhu, Associate Professor, Institute of Airand Space Law, Faculty of Law, McGillUniversity, McGill chaired the session. ShriVivek Pattanayak, Former Secretary & FormerIndian Representative at ICAO gave keynoteaddress. Dr. G. S. Sachdeva, Former LegalCounsellor, German Embassy in India presentedpaper titled “Air Carrier’s Liability: A NewPerspective”.

Second part of the session on the “Legal Regimeof Space” was divided into two segments. Firstsegment ‘Uses and Abuses of Outer Space’was chaired by Prof. S. K. Verma, Director,ISIL, New Delhi. Second segment ‘RemoteSensing Satellites and State Jurisdiction’ waschaired by Professor V. S. Mani, Professor,School of Law and Governance, Jaipur NationalUniversity, Jaipur. Dr. M. Y. S. Prasad,Associate Director of Satish Dhawan SpaceCentre, SHAR, Department of Space gavekeynote address. Eminent panelists namely Dr.G. S. Sachdeva, Former Legal Counsellor,German Embassy; Dr. Hakeem Ijaiya, Lecturer,Faculty of Law, University of Ilorin, Kwara Stateof Nigeria; Wg Cdr K. K. Nair, CommandSpace Operations Officers at Headquarters,Southern Air Command, Trivandrum; Dr. RamJakhu, McGill University, McGill; Prof. B. C.

January-March 2010 3

Nirmal, Professor of Law, Banaras Law School,BHU, Varanasi; Shri K. R. Sridharmurthi,Managing Director, Antrix and Dr. V. SeshiahShastri, Associate Professor, NLS, Jodhpurpresented papers on “New Ethics for SpaceCommerce”, “The International Legal RegimeRegulating Environmental Aspects of OuterSpace”, “Examining Space Law and Its MilitaryImplication”, “International Liability Issues ofIridium – Cosmos Collision of 10 February2009”, “Remote Sensing Satellite and StateJurisdiction”, “Satellite based Remote Sensingand Dissemination of Resolution Data”, and“Deployment of Remote Sensing SpaceTechnology & State Liability for Impact onEnvironment – An International Perspective”respectively. The session was followed byvaledictory address given by Prof. R. P. Anand,Executive President, ISIL. Prof. RahmatullahKhan made concluding remarks and Dr. V. G.Hegde proposed a formal vote of thanks.

ISIL PAID TRIBUTES TO SIR IANBROWNLIE

At the start of the meeting of the InternationalConference, Professor Rahmatullah Khan gaveexpression to the loss to the world community atthe sudden and untimely demise of Sir Ian

Brownlie who passed away on January 3,2010, and paid tribute to his dedication to thedevelopment of international law. Thereupon themembers of the ISIL and participants of theConference observed two minutes silence in thememory of the departed soul. Brownlie wasChichele Emeritus Professor of PublicInternational Law at Oxford University and aFellow of the All Souls College. He was amember of Blackstone Chambers from 1983 untilhis death and through the course of his careerhad appeared before numerous internationalcourts and tribunals. His writings were widelypublished in international law journal andauthored the authoritative textbook Principles ofPublic International Law. Brownlie was amember of ASIL since 1969 and in 2004 was therecipient of ASIL’s Honorary Member award. Hewas recently conferred Honorary Membership ofthe Indian Society of International Law. In hismessage, Prof. Khan, said Brownlie demise hascreated a deep void in the life of internationalcommunity with which he was activelyassociated since 1962. He may no longer bephysically with us to give us guidance, but hisexample will live on, to inspire us in the tasks hehad set before us. Professor Brownlie combinedexcellence in both practice and scholarship.Most of us learned international law from hisbooks.

A SPECIAL LECTURE ON“TOWARDS A PROPERUNDERSTANDING OF GENERALINTERNATIONAL LAW,CUSTOMARY INTERNATIONALLAW, AND THE JUDICIARY INGLOBAL SOCIETY” BY PROF.YASUAKI ONUMA

Indian Society of International Law (ISIL)organised a special lecture on 5th March 2010 atits premises on “Towards A ProperUnderstanding of General International Law,Customary International Law, and the Judiciaryin Global Society” by Prof. Yasuaki Onuma,Professor of Law, Meiji University, Japan. Prof.Onuma analysed the contribution of InternationalCourt of Justice (ICJ) in the development ofinternational law. In response to the rapiddevelopments, there are numerous sourcesthrough which international law developed. Inlight to this, ICJ is required to contribute more tothe progressive development of international law.The lecture witnessed lively interaction.

A SPECIAL LECTURE ON“WEAPONIZATION OF SPACE ANDINTERNATIONAL LAW” BY DR.RAM JAKHU

Indian Society of International Law (ISIL)organised a special lecture on “Weaponization ofSpace and International Law” on 12th March

2010 at its premises. Prof. S. K. Verma,Director, ISIL introduced the speaker Dr. RamJakhu, Associate Professor Institute of Air andSpace Law, Faculty of Law, McGill University,Canada and invited him to deliver the lecture.

VISIT OF STUDENTS

A delegation of 30 students from Department ofLaw, The University of Burdwan, Burdwanvisited ISIL on 8th February 2010. Prof. R. P.Anand, Exeuctive President, ISIL, Prof.Rahmatullah Khan, Secretary General, ISIL andProf. S. K. Verma, Director, ISIL spoke to thestudents and described the activities of ISIL tothe visitors and also discussed the importance ofinternational law and career prospect in this area.

RECENT

DEVELOPMENTS

MALAYSIAN ENVOY ELECTED TO

LEAD UN ECONOMIC AND SOCIAL

COUNCIL FOR 2010

The Malaysian diplomat Hamidon Ali waselected, on 19 January 2010, to serve as thenext President of the United Nations Economicand Social Council (ECOSOC). Mr. Ali, whosucceeds Ambassador Sylvie Lucas ofLuxembourg, is a career diplomat and has twicebeen Malaysia’s Ambassador to the UN. On thevery meeting, ECOSOC elected its vice-presidents, Heraldo Muñoz of Chile, SomduthSoborun of Mauritius, Alexandru Cujba of theRepublic of Moldova, and Morten Wetland ofNorway.

UN FORUM FOCUSES ONIMPROVING MONITORING OFCLIMATE CHANGE IMPACT

Some 150 experts from 84 countries participatedin the 15th session of the Commission forClimatology (CCI) of the World MeteorologicalOrganization (WMO), from 19 to 24 February2010 held at Antalya, Turkey. Delegatesdiscussed improved climate products andservices, including the establishment of an OpenPanel of Experts that will focus on thematicareas including climate data management, globaland regional climate monitoring and assessmentand climate information for adaptation and riskmanagement. During his opening remarks,WMO Secretary-General Michel Jarraud pointedout that the agency, through the CCI, has beenimproving climate system monitoring on varioustimescales, in particular by incorporatingknowledge access and tools for climate changeindex analysis. He also highlighted the agency’scontribution to the Intergovernmental Panel onClimate Change (IPCC) report which earned the2007 Nobel Peace Prize. Meanwhile, a newly

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4 January-March 2010

released study by the WMO says that whileglobal warming could cause the number oftropical cyclones worldwide to decrease by theend of the century, the storms that do formprobably will be more intense. The term “tropicalcyclones” encompasses all tropical storms,hurricanes, typhoons and cyclones. The study –Sunday published online by Nature Geoscience,a journal of Britain’s Nature Publishing Group –was led by Tom Knutson and colleagues fromWMO. The findings are based on an analysis ofpast storm data as well as computer models thatproject future storm activity out to the year 2100.

BULK OF EMITTERS SUBMITCLIMATE PLEDGES TO UNCONVENTION

On 2 February 2010, some of the world’s biggestemitters of carbon dioxide have formallysubmitted to the United Nations their nationaltargets to cut and limit greenhouse gases by2020 – abiding by the 31 January deadlinespecified in the Copenhagen Accord produced atNovember’s UN Summit in Denmark. TheUnited Nations Framework Convention onClimate Change (UNFCCC) said that by thedeadline, it had received specific pledges from55 countries that together account for 78 per centof global emissions from energy use. Thecountries that signed on to the CopenhagenAccord include the United States and EU, thetwo largest emitters, along with the Australia,Japan, China and India. The pledges are purelyvoluntary and there are no enforcementprovisions for the signing countries. Thesixteenth conference of parties to UNFCCC isscheduled for 29 November 2010 in MexicoCity. The next round of formal negotiations isscheduled to be in Bonn, Germany at the end ofMay 2010. Recently, the United Nations, on 31March 2010, announced that 75 nations havesubmitted their pledges to cut or limit emissionsof greenhouse gases by 2020, following lastyear’s climate change conference inCopenhagen. Those countries together accountfor more than 80 per cent of global emissionsfrom energy use, the secretariat of the UNFramework Convention on Climate Change(UNFCCC) said in its report of the results of theConference. Some 41 industrialized countrieshave formally communicated their economy-wide targets to the Convention’s secretariat,while 35 developing countries havecommunicated information on the nationallyappropriate mitigation actions they are planning totake, provided they receive the appropriatesupport in terms of finance and technology,according to the report. The report contains thetext of the Copenhagen Accord and lists the 112Parties – 111 countries and the European Union– that have indicated their support for the Accord.

With 194 Parties, UNFCCC has near universalmembership and is the parent treaty of the 1997Kyoto Protocol.

DRAFT BIODIVERSITY ACCORDFINALIZED AT UN MEETING INCOLOMBIA

After a week of intensive discussions and sixweeks of preparation, a draft internationalagreement on access to the Earth’s geneticresources and the fair and equitable share inbenefits from their use has been finalized at aUnited Nations meeting in Cali, Colombia heldon 30 March 2010. “Parties and their partnershave agreed on a draft Nagoya Protocol, as wellas on the road map from Cali to Nagoya andbeyond,”. The draft will be on the agenda foradoption at the Nagoya Biodiversity Summit tobe held in October 2010 in Japan. More than 500participants from governments, indigenous andlocal communities, civil society, researchinstitutions and business contributed to thedocument. The draft protocol, which has not beenpublicly released, addressed the issue of“access and benefit-sharing” (ABS), which hashistorically been a source of tension betweendeveloping countries and companies in sectorssuch as pharmaceuticals, agriculture, horticultureand biotechnology. ABS refers to the waygenetic resources – whether plant, animal ormicroorganism – are accessed, and how thebenefits that result from their use by variousresearch institutes, universities or privatecompanies are shared with the people orcountries that provide them. Prior to the NagoyaSummit, the UN General Assembly will hold ahigh-level thematic meeting devoted tobiodiversity in September 2010, to coincide withthe high-level General Debate in New York.

GOVERNMENTS AGREED TOPROTECT ENDANGERED SHARKSUNDER CMS

According to the UN Environmental Programme(UNEP), a landmark agreement, the UnitedNations supported wildlife treaty, to protect sharkspecies threatened with extinction was reached,on 16 February 2010. The 113 countries that areparty to the UNEP-administered Convention onthe Conservation of Migratory Species of WildAnimals (CMS) agreed to prohibit the hunting,fishing and deliberate of killing sharks speciescovered in an appendix to the CMS – the greatwhite, basking, whale, porbeagle, spiny dogfish,shortfin and longfin mako sharks. The CMSagreement, concluded at a gathering ofgovernment representatives in the Philippines,aims to restore the longterm viability ofpopulations of migratory sharks, which are alsoset to benefit from greater enforcement of existinglaws on illegal fishing and trade. UNEP notedthat over-fishing, fisheries by-catch, illegal trade,habitat destruction, depletion of prey species,pollution with a high risk of mercury intoxication,boat strikes and the impact of climate change onthe marine environment all seriously threatensharks.

Gestation periods of up to 22 months, a lifeexpectancy of up to 100 years, relatively lowreproductive rates, migratory patterns, and lownatural mortality combine to make the protectionof some species and their habitat difficult andmake sharks particularly vulnerable with littlechance to recover if over-fished. In addition,whale shark meat has been increasinglyconsidered as a high-grade, exotic product sincethe late 1980s, and according to TRAFFIC – awildlife trade monitoring network – prices haveskyrocketed to $7,000 for 2,000 kilograms inTaiwan, for example. According to the UN Foodand Agricultural Organization (FAO), up to900,000 tons of sharks have been caught everyyear for the last two decades, and calculating forillegal, unreported, unregulated fishing andmissing data, the actual catch figure is estimatedto be at least twice as high. Studies show thatshark populations collapsed in both in the Gulf ofMexico and in the Mediterranean Sea by 90 percent, and by 75 per cent in the north-westernAtlantic Ocean in the 15 years, said UNEP.

APPOINTMENT OF THEPROSECUTOR AND REGISTRAROF THE SPECIAL COURT FORSIERRA LEONE (SCSL)

A United States attorney, Ms. Brenda JoyceHollis, who leads the prosecution against formerLiberian president Charles Taylor, has beennamed, on 22nd Feberuary 2010, by Secretary-General Ban Ki-moon as the new Prosecutor ofthe SCSL to try the worst acts committed duringthe decade-long brutal civil war in Sierra Leone.Also, on the same day, Mr. Ban named BintaMansaray, a Sierra Leone an national, appointedas the Special Court’s Registrar. Appointed asDeputy Registrar in 2007, she has served asActing Registrar since last June. The SpecialCourt is an independent tribunal establishedjointly by Sierra Leone’s Government and theUN in 2002. It is mandated to try those whobear the greatest responsibility for atrocitiescommitted in Sierra Leone after 30 November1996.

ICTR SENTENCES FORMERRWANDAN SOLDIER TO 15 YEARSIN PRISON

International Criminal Tribunal for Rwanda(ICTR) tasked with trying atrocities committedduring the 1994 massacre in Rwanda of ethnicTutsis and moderate Hutus handed down a 15-year prison sentence to a former soldier, Mr.Tharcisse Muvunyi. The decision was renderedon 11 February 2010. This decision followsTharcisse Muvunyi’s retrial after he was foundguilty of several acts of genocide, direct andpublic incitement to commit genocide, and otherinhumane acts and sentenced to 25 years inprison by the International Criminal Tribunal forRwanda (ICTR) in 2006. In 2008, the tribunal’sappeals chamber set aside the conviction and

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sentence, but ordered a retrial that began in June2009 on an allegation of direct and publicincitement to commit genocide related to aspeech. Muvunyi gave in Butare prefecture inMay 1994, in which he called for the killing ofTutsis, whom he referred to as snakes. Mr.Muvunyi, 57, was formerly a lieutenant colonelin the Rwandan army. He was arrested in theUnited Kingdom in 2000 and transferred to theUN detention facility in Arusha, Tanzania, wherethe ICTR is based. The Security Councilauthorized the creation of the tribunal in late 1994in response to the genocide, in which anestimated 800,000 ethnic Tutsis and moderateHutus were killed.

ICC DISMISSES CHARGESAGAINST DARFURIAN REBELLEADER FOR LACK OF EVIDENCE

The International Criminal Court (ICC), on 8February 2010, declined to confirm the chargesmade against Bahar Idriss Abu Garda, a rebelleader, accused of directing the September 2007attack that killed a dozen African Unionpeacekeepers in Sudan’s strife-torn Darfurregion, citing lack of evidence. The Court’s pre-trial chamber “was not satisfied that there wassufficient evidence to establish substantialgrounds to believe that Abu Garda could be heldcriminally responsible either as a direct or as anindirect co-perpetrator for the commission of thecrimes,” according to a news release issued bythe ICC. Mr. Abu Garda, who commands asplinter group of the rebel Justice and EqualityMovement (JEM), was the first person to appearvoluntarily before the Court, which is based inThe Hague, in response to a summons. He wascharged with three war crimes – murder, attacksagainst a peacekeeping mission and pillaging –allegedly committed when 1,000 rebels attackedthe Haskanita camp in South Darfur state on 29September 2007. The attack killed 12peacekeepers serving with the African UnionMission in Sudan (AMIS) and wounded eightothers. AMIS was the predecessor to the jointUN-AU peacekeeping mission (UNAMID),which is tasked with quelling the violence inDarfur, where an estimated 300,000 people havedied and another 3 million displaced as a result offighting that began in 2003 between Governmentforces and allied Arab militiamen, known as theJanjaweed. The Court noted that this decisiondoes not preclude the prosecution fromsubsequently requesting the confirmation of thecharges against Mr. Abu Garda “if such requestis supported by additional evidence,” orappealing the decision on the confirmation ofcharges.

ICC CHAMBER ORDERED TORULE AGAIN ON GENOCIDECHARGE AGAINST SUDANESELEADER

The pre-trial chamber of the International CriminalCourt (ICC), on 3 February 2010, was ordered

to reconsider adding the charge of genocide tothe arrest warrant for Sudanese President Omaral-Bashir issued last year. Mr. al-Bashir becamethe first sitting head of State to be indicted by theCourt, which charged him with two counts ofwar crimes and five counts of crimes againsthumanity in March 2009. But the chamber at thattime rejected Prosecutor Luis Moreno-Ocampo’sapplication to charge the Sudanese leader withgenocide, ruling that there was insufficientevidence. The ICC’s appeals chamber found thestandard of proof set by the pre-trial chamber tobe too demanding at the arrest warrant stage,amounting to an “error of law”, according to anews release issued by the court, which isbased in The Hague. The pre-trial chamber hasbeen directed to decide anew whether or not Mr.al-Bashir should be charged with genocide. TheUnited Nations estimates that an estimated300,000 people have been killed and another 2.7million forced from their homes since fightingerupted in 2003 in Darfur, pitting rebels againstGovernment forces and allied Janjaweedmilitiamen. In December 2009, the ICCProsecutor told the Security Council thatindiscriminate bombings, rape and other crimesare continuing in Darfur, with the Government ofSudan still refusing to cooperate with his officeand its indicted President and other suspectsremaining at large. Soon after the arrest warrantfor Mr. al-Bashir was issued, authorities expelled13 international non-governmental organizations(NGOs) and revoked the permits of three localgroups, giving a blow to humanitarian efforts inthe region.

ICC GRANTED INVESTIGATION INKENYA POST-ELECTIONVIOLENCE

The International Criminal Court (ICC), on 31March 2010, granted the prosecutor’s request toinvestigate crimes against humanity allegedlycommitted in Kenya in post-election ethnicviolence two years ago, when some 1,000people were killed and 300,000 others forced toflee their homes. In November 2009, prosecutorLuis Moreno-Ocampo sought authorization toopen an investigation into the violence after thedisputed December 2007 polls in whichPresident Mwai Kibaki was declared winnerover the opposition leader Raila Odinga, who isnow Prime Minister. Earlier in the same month ina sealed list to the ICC, he named 20 peoplewho were most responsible. “The informationavailable provides a reasonable basis to believethat crimes against humanity have beencommitted on Kenyan territory,” the ICC’s Pre-Trial Chamber II found in a majority decision oftwo to one issued in The Hague, where theCourt is based. “The majority moreover foundthat all criteria for the exercise of the Court’sjurisdiction were satisfied, to the standard of proofapplicable at this stage.” Judge Hans-PeterKaul, dissenting, held that the crimes in Kenyado not qualify as crimes against humanity underthe jurisdictional ambit of the Rome Statute,

which established the court, and which Kenyaratified in 2005. He concluded that there was noreasonable basis to believe that the crimes inKenya were committed in an attack against acivilian population pursuant to or in furtherance ofa policy stemming from a State or anorganization. The majority decision by JudgesEkaterina Trendafilova and Cuno Tarfusser citedthe low threshold applicable at this stage of theproceedings. When he sought the authorization,Mr. Moreno-Ocampo said Mr. Kibaki and Mr.Odinga, who agreed to serve in a power -sharing administration following the violence, hadpromised to cooperate with any investigation.

ICTR RENDERS JUDGMENTS INAPPEALS BY TWO CONVICTEDRWANDANS

International Criminal Tribunal for Rawanda(ICTR), on 18 March 2010, affirmed theconviction and 15-year sentence of a famousRwandan singer and composer for his role duringthe mass killings that engulfed the country in1994, and reduced the sentence handed downagainst a top official after reversing a number ofhis convictions. Simon Bikindi, a former singer,composer and leader of a ballet troupe, wasfound guilty by the ICTR in 2008 of a singlecount of direct and public incitement to commitgenocide based on public exhortations to killTutsis, which he made on the Kivumu-Kayoveroad in Gisenyi prefecture in late June 1994. TheAppeals Chamber of the Tribunal, which isbased in the Tanzanian city of Arusha, on 18March 2010, dismissed the appeals of both Mr.Bikindi and the Prosecution and affirmed hisconviction and sentence of 15 years in prison.The Appeals Chamber also reversed a numberof convictions of Simèon Nchamihigo, a formerdeputy prosecutor in Cyangugu Prefecture, andreduced his sentence to 40 years instead of lifeimprisonment. Reversed were Mr. Nchamihigo’sconviction for genocide and murder as a crimeagainst humanity for aiding and abetting the killingof Joséphine Mukashema, Hélène and Marie, aswell as his conviction for genocide in relation toinstigating the killings of refugees taken fromKamarampaka stadium on 16 April 1994 and forinstigating the killings at Shangi parish andHanika parish. The court further reversed hisconvictions for genocide and extermination as acrime against humanity in relation to instigatingthe massacre at Mibilizi parish and hospital andthe massacre at Nyakanyinya school. Both menwill remain in the UN Detention Facility inArusha pending their transfer to the countries inwhich they will serve their sentence.

BANGLADESH JOINSINTERNATIONAL CRIMINALCOURT

Bangladesh has become the first South Asiancountry to ratify the pact that established theInternational Criminal Court (ICC) and gave it a

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mandate for trying people accused of genocide,crimes against humanity and war crimes. TheBangladeshi Government ratified the 1998 RomeStatute, on 23 March 2010. When the statuteenters into force for Bangladesh on 1 June, theSouth Asian country will become the 111th nationworldwide to become a State Party to the ICC.The court was set up in 2002 after the Statutetook effect that year when it passed a total of 60ratifications.

UGANDA RATIFIED THE AUCONVENTION

Uganda ratified the African Union (AU)Convention for the Protection and Assistance ofInternally Displaced Persons (IDPs) in Africa on19 February 2010. First legally bindinginternational treaty to provide legal protection andaid to millions of people displaced within theirown countries by conflicts and natural calamitieswas adopted in October 2009 in Kampala, theUgandan capital. “This first ratification, comingwithin the first four month’s of the Convention’sadoption, is an important milestone”. 25 nations –or nearly half of AU Member States –have nowsigned the treaty, which needs 15 ratifications tocome into force, a goal the AU has set for theend of 2010 year. At the beginning of last year,an estimated 11.6 million people were internallydisplaced by conflict in Africa, which is nearly 45per cent of the world’s internally displacedpersons (IDPs).

UN-BACKED PACT AGAINSTCLUSTER MUNITIONS TO TAKEEFFECT FROM AUGUST

Burkina Faso and Moldova both submitted, on16 February 2010, their instruments of ratificationof the Convention on Cluster Munitions at UNHeadquarters in New York, ensuring that thepact prohibiting explosive remnants of warknown as either cluster munitions or unexplodedordnance (UXO) becomes part of internationallaw. After the ratification by Burkina Faso andMoldova, the Convention banning the use ofcluster munitions will enter into force on 1 August2010 which required 30 ratifications for its entryinto force.

NEW ARMS PACT BETWEENRUSSIA AND THE UNITED STATES

Agreement has been reached between Russiaand the United States, on 26 March 2010, toreduce their arsenals. Negotiations between thetwo nations on a successor agreement to the1991 Treaty on the Reduction and Limitation ofStrategic Offensive Arms, better known asSTART, wrapped up recently. It is expected thatthe new pact will require both sides to cut theirdeployed nuclear warheads, missiles andlaunchers. It will also re-establish a verificationmechanism to replace the one that expired withSTART December 2009.

UN HUMAN RIGHTS COUNCILCALLS FOR INDEPENDENTINQUIRY INTO GAZA CONFLICT

The United Nations Human Rights Council, on25 March 2010, echoing the General Assembly,called on the Israeli Government and thePalestinian side to carry out independent andcredible investigations into the deadly conflict inthe Gaza Strip that ended early last year. Thoseinquiries, the Council said in Geneva, must lookinto the serious violations of internationalhumanitarian and human rights law reported bythe fact-finding mission into the Operation CastLead, the three-week Israeli military offensivestarting at the end of 2008 that had the stated aimof ending rocket attacks by militants operating inthe area. The fighting left more than 1,400 peopledead, injured 5,000 others and reduced homes,schools, hospitals and marketplaces to rubble.The Goldstone Report, as it has become known,found that both Israeli forces and Palestinianmilitants were guilty of serious human rightsviolations and breaches of humanitarian lawduring the Gaza conflict, which began in lateDecember 2008. The General Assembly hasendorsed the mission’s findings. The four-member fact-finding team headed by former UNwar crimes prosecutor Justice RichardGoldstone, set up at the request of the HumanRights Council, called on the two sides to carryout independent investigations into their actionsduring the conflict. The Human Rights Council,on 25 March 2010, also called on the HighCommissioner for Human Rights, Navi Pillay, tolook into setting up an escrow fund to providereparations to Palestinians who suffered lossesas a result of unlawful Israeli actions during theconflict. It also decided to establish a committeeof independent experts to monitor theindependence, effective and genuineness of theinvestigations and their conformity withinternational standards. The General Assemblyalso appealed for independent investigations byIsrael and the Palestinians in March 2010,reiterating a call by Secretary-General Ban Ki-moon in a follow-up report to the GoldstoneReport that they must conform with “internationalstandards into the serious violations ofinternational humanitarian and international humanrights law reported by the fact-finding mission,towards ensuring accountability and justice.”

REPUBLIC OF KOREA GRANTSREFUGEE CITIZENSHIP FOR THEFIRST TIME

For the first time since it adopted the 1951Refugee Convention almost two decades ago,the Republic of Korea (ROK) has granted arecognized refugee citizenship on 23 March2010. The new citizen is a 38-year-old Ethiopianman who fled persecution in his home countryand arrived in the ROK in 2001. The ROKrecognized its first refugee in 2001. Since its

Government began receiving refugee claims in1994, it has recognized 175 refugees and givenhumanitarian status to an additional 93 peoplewho were found not to be refugees but stillrequiring international protection. Between 1994and the end of 2009, the country has receivednearly 2,500 applications and 321 are stillpending.

NEW TEXT COULD PROPELSECURITY COUNCIL REFORMNEGOTIATIONS

On 3 March 2010, IntergovernmentalNegotiations on Security Council Reform, theofficial overseeing negotiations on reforming theUnited Nations Security Council says thatMember States will contribute by next week to atext that will focus the next round of discussionsand could help wrap up a process that has beenongoing for 17 years. The membership ofSecurity Council was last increased in 1963from 11 to 15. Five permanent members holdveto power – China, France, Russia, UnitedKingdom and United States – and 10 non-permanent members, with no veto, are electedfor a two-year terms. Some countries haveargued that this structure does not represent therealities of today’s world. Key issues underdiscussion are the category of membership, thequestion of veto, regional representation, the sizeof an enlarged Council, and the Council’sworking methods and its relationship with theGeneral Assembly. Mr. Tanin, who is also thePermanent Representative of Afghanistan to theUN, had requested Member States as groups tosubmit in writing by 5 March 2010 their positionon the key issues. It is noted that the Assemblyis for moving the process forward from an open-ended working group, first established in 1994, tointergovernmental negotiations that will ultimatelymake the decision on reform.

PANEL RULES ON DISPUTE OVERUS ANTI-DUMPING MEASURES ONTHAI PLASTIC BAGS

On 26 November 2008, Thailand requestedconsultations with the United States with respectto the application by the United States of thepractice known as “zeroing” of negative dumpingmargins in the United States’ determination of themargins of dumping in its anti-dumpinginvestigation of Polyethylene Retail Carrier Bagsfrom Thailand. Specifically, Thailand requestedconsultations concerning the USDOC’s use inthe Final Determination and Amended FinalDetermination of the practice of “zeroing”negative anti-dumping margins in calculatingoverall weighted-average margins of dumping inthis investigation. Thailand alleged that the effectof this practice was to create artificial margins ofdumping where none would otherwise havebeen found or, at a minimum, to inflate margins ofdumping. Thailand considers the USDOC’s use

RECENT DEVELOPMENTS

January-March 2010 7

RECENT DEVELOPMENTS/ RECENT ARTICLES/ NEW ADDITIONS

of this practice of “zeroing” in the FinalDetermination, the Amended Final Determination,and the Order to be inconsistent with the UnitedStates obligations under Article VI of the GATT1994, and, in particular, under Article 2.4.2 of theAnti-Dumping Agreement. On 9 March 2009,Thailand requested the establishment of a panel.At its meeting on 20 March 2009, the DSBestablished a panel. Argentina, the EuropeanCommunities, Japan, Korea and Chinese Taipeireserved their third-party rights. On 20 August2009, the panel was composed. On 22 January2010, the panel report was circulated toMembers. The Panel found that the UnitedStates acted inconsistently with Article 2.4.2, firstsentence, of the Anti-Dumping Agreement byusing “zeroing” in the Final Determination, asamended, and the Order to determine thedumping margins for individually investigatedThai exporters whose margins of dumping werenot based on total facts available. The Panelrecommended that the DSB request the UnitedStates to bring its measures into conformity withits obligations under the Anti-DumpingAgreement. On 18 February 2010, the DSBadopted the panel report. In light of the abovefindings, Appellate Body (AB) concluded that theUnited States acted inconsistently with Article2.4.2, first sentence of the Anti-DumpingAgreement by using “zeroing” in the FinalDetermination, as amended, and the Order todetermine the dumping margins for individuallyinvestigated Thai exporters whose margins ofdumping were not based on total facts available.Under Article 3.8 of the DSU, in cases wherethere is an infringement of the obligationsassumed under a covered agreement, the actionis considered prima facie to constitute a case ofnullification or impairment of benefits under thatagreement. Accordingly, AB concluded that, tothe extent the United States has actedinconsistently with the provisions of the Anti-Dumping Agreement, it has nullified or impairedbenefits accruing to Thailand under thatAgreement. AB therefore recommended that theDispute Settlement Body request the UnitedStates to bring its measures into conformity withits obligations under the Anti-DumpingAgreement.

UNITED NATIONS GENERALASSEMBLY ELECTS NEWUNCITRAL MEMBERS

The General Assembly, on 3 November 2010,held elections to fill vacancies in the UnitedNations Commission on International Trade Law(UNCITRAL). The outgoing members whoseterms of office will expire on 20 June 2010 are:Algeria, Australia, Austria, Belarus, Colombia,Czech Republic, Ecuador, Fiji, Gabon,Guatemala, India, Iran, Israel, Italy, Kenya,Lebanon, Madagascar, Mongolia, Nigeria,Pakistan, Paraguay, Poland, Serbia, Spain,Switzerland, Thailand, Uganda, United States,Venezuela and Zimbabwe. The Assembly

elected the following 28 States members ofUNCITRAL for a six-year term beginning on 21June 2010: Algeria, Argentina, Australia, Austria,Belarus, Brazil, Colombia, the Czech Republic,Fiji, Gabon, India, Iran, Israel, Italy, Jordan,Kenya, Mauritius, Nigeria, Pakistan, thePhilippines, Poland, Spain, Thailand, Turkey,Uganda, Ukraine, the United States of Americaand Venezuela. Two more vacancies are to befilled: one from the Group of African States andone from the Group of Latin American andCaribbean States. The Assembly will holdelections for the remaining seats upon notificationby interested Member States from these tworegions. The term of the following 30 Statesmembers of the Commission continues until2013: Armenia, Bahrain, Benin, Bolivia,Bulgaria, Cameroon, Canada, Chile, China,Egypt, El Salvador, France, Germany, Greece,Honduras, Japan, Latvia, Malaysia, Malta,Mexico, Morocco, Namibia, Norway, Republicof Korea, Russian Federation, Senegal,Singapore, South Africa, Sri Lanka and theUnited Kingdom.

RECENT ARTICLES

Alam, Aftab, “Towards Gender SensitiveInternational Refugee Law”, ISIL Yearbook ofInternational Humanitarian and Refugee Law,vol. 8 (2008), pp. 104-143.

Gandhi, Manimuthu, “National Security andMaritime Law: Emergence of Unilaterlism andOther Forms of Challenges to UniversalInternational Law”, Indian Journal of InternationalLaw, vol. 49, no. 4 (2009), pp. 509-520.

Grinsell, Scott, “Caste and the Problem ofSocial Reform in India Equality Law”, vol. 35,no. 1 (2010), Yale Journal of International Law,pp. 199-236.

Jackson, John H., “Process and Procedure inWTO Dispute Settlement”, vol. 42, no. 2 (2009),Cornell International Law Journal, pp. 233-240.

Jares, Vladimir, “The Continental Shelf Beyond200 Nautical Transnational Law Miles: The Workof the Commission on the Limits of theContinental Shelf and the Arctic”, VanderbiltJournal of International Law, vol. 42, no. 4(2009), pp. 1265-1305.

Koskenniemi, Martti, “The Function of Law in theInternational Community: 75 Years After”, BritishYearbook of International Law, vol. 79 (2008),pp. 351-366.

Nirmal, B. C., “Referral of Indictments fromICTY to National Courts under Rule 11 bis”, ISILYearbook of International Humanitarian andRefugee Law, vol. 8 (2008), pp. 18-37.

Nirmal, B. C., “Implementing Human Rights ofWomen with HIV / AIDS in DevelopingCountries: A Case Study of India”, AALCOQuarterly Bulletine, vol. 5, no.1-4 (2009), pp.15-47

Pfanner, Toni, “Various Mechanisms andApproaches for Implementing InternationalHumanitarian Law and Protecting and AssistingWar Victims”, vol. 91, no. 874 (2009),International Review of the Red Cross, pp. 279-320.

Ranjan, Shikhar, “Pursuit of InternationalCriminal Justice in”, AALCO Quarterly Bulletine,vol. 5, no. 1-4 (2010), pp. 48-74.

Sadat, Anwar, “The Copenhagen ClimateChange Conference – An Assessment”, IndianJournal of International Law, vol. 49, no. 4(2009), pp. 593-604.

Singh, Vinai Kumar, “Additional Protocols:Where India Stands”, ISIL Yearbook ofInternational Humanitarian and Refugee Law,vol. 8 (2008), pp. 38-81.

Singh, Vinai Kumar, “Regional TradeAgreements: Legal Interpretations and SuggestedProposals”, Indian Journal of International Law,vol. 49, no.3 (2009), pp. 429-455.

Tyagi, Yogesh, “The Denuactiation of HumanRights Treaties”, British Yearbook of InternationalLaw (2008), pp. 86-193.

NEW ADDITIONS

Alebeek, Rosanne G., Immunity of States andtheir officials in International Criminal Law andHuman Rights Law (Oxford University Press,Oxford, 2008).

Barnidge, Robert P., Non-State Actors andTerrorism: Applying the Law of StateResponsibility and the Due Diligence Principle(T.M.C. Asser Press, The Hague, 2008).

Bermann, George A. (ed.), Trade and HumanHealth and Safety (Cambridge UniversityPress, Cambridge, 2005).

Bermann, George A. (ed.), WTO Law andDeveloping Countries (Cambridge UniversityPress, Cambridge, 2007).

Blanpain, Roger (ed.), The Global LabourMarket: From Globalization to Flexicurity(Kluwer Law International, Austin, 2008).

Bole, Alfred M., Multiple Nationality andInternational Law (Martinus Nijhoff Publishers,Leiden, 2007).

Brand, Ronald A., Forum non Conveniens:History, Global Practice, the Future under theHague convention on Choice of CourtAgreements (Oxford University Press, Oxford,2007).

Briggs, Adrian, The conflict of Laws, 2nd ed.(Oxford University Press, Oxford, 2008).

Davis, Jeffrey, Justice Across Borders(Cambridge University Press, Cambridge,2008).

8 January-March 2010

Printers: Paras Printers 4648/21 Sedhumal Building, Ansari Road, Darya Ganj, New Delhi-110002

Current Issue ofIndian Journal of International LawJanuary-March 2010, Vol. 50, No. 1

CONTENTS

ARTICLES

Towards Understanding the Diplomacy ofHuman Rights: A Review Essay

Upendra Baxi

Poverty Link to the Environment: Internationaland National Perspectives

Abdul Haseeb Ansari

Interpretation of the WTO Agreements,Democratic Legitimacy and DevelopingNations

R Rajesh Babu

SHORTER ARTICLES

The Fundamental Right to Primary Educationin India: A Critical Evaluation.

Anuradha Saibaba Rajesh

OFFICIAL DOCUMENTS

Base Line System, Ministry of External AffairsNotification, Government of India, 11th May2009

The Ancient Monuments and ArchaeologicalSites and Remains (Amendment) and ValidationOrdinance 2010

Statement to the Conference on Disarmamentby Ambassador Hamid Ali Rao, PermanentRepresentative of India, 2010, SubstantiveSession of the UN Disarmament Commission

Joint Declaration on Scientific and TechnologicalCo-operation between the Republic of Turkeyand Republic of India, 9 February 2010

India-Republic of Korea Joint Statement Towardsa Strategic Partnership, January 25, 2010

BOOK REVIEW

Manoj Kumar Sinha, International CriminalLaw and Human Rights

U.C. Jha

V K Ahuja, Law relating to IntellectualProperty Rights

Ranjana Ferra

SELECT ARTICLES AND NEWACQUISITIONS

New Acquisitions to the ISIL Library fromJanuary to March 2010

Dugan, Christopher F., Investor-State Arbitration(New York: Oxford University Press, 2008).

Gardiner, Richard K., Treaty Interpretation(Oxford University Press, Oxford, 2008).

Gehring, Markus W. (ed.), SustainableDevelopment in World Trade Law (The KluwerLaw International, Netherlands, 2005).

Haye, Eva La, War crimes in Internal ArmedConflicts (Cambridge University Press,Cambridge, 2008).

Head, John W., Losing the Global DevelopmentWar: A Contemporary Critique of the IMF, theWorld Bank, and the WTO (Martinus NijhoffPublishers, The Netherlands, 2008).

Kearney, Michael G., Prohibition of Propagandafor War in International Law (Oxford UniversityPress, Oxford, 2007).

Lenzerini, Federico (ed.), Reparations ForIndigenous Peoples: International andComparative Perspectives (Oxford UniversityPress, Oxford, 2007).

Mettraux, Guenael (ed.), Perspectives on theNuremberg Trial (Oxford University Press,Oxford, 2008).

Prescott, Victor, International Frontiers andBoundaries: Law, Politics and Geography(Martinu Nijhoff, Leiden, 2008).

Sahasranaman, P. B., Oxford Handbook ofEnvironmental Law (Oxford University Press,Oxford, 2009).

Sauvant, Karl P. (ed.), Appeals Mechanism inInternational Investment Disputes (OxfordUniversity Press, Oxford, 2008).

Shan, Wenhua (ed.), Redefining Sovereignty inInternational Economic Law (Hart Publications,Oxford, 2008).

Tang, Yi Shin, The International Trade Policy forTechnology Transfers: Legal and EconomicMultilateralism versus Dilemmas on Bilateralism(Kluwer Law International, The Netherlands,2009).

Tansey, Geoff (ed.), The Future Control of Food:A Guide to International Negotiations and Ruleson Intellectual Property, Biodiversity and FoodSecurity (Earthscan, London, 2009).

Thio, Li-Ann, Managing Babel, The InternationalLegal Protection of Minorities in the TwentiethCentury (Martinus Nijhof Publisher, Leiden,2005).

Trebilcock, Michael J., Regulation ofInternational Trade 3rd ed. (Rutledge, London,2005).

Weiss, Edith Brown (ed.), ReconcilingEnvironment and Trade (Martinus NijhoffPublishers, Netherlands, 2008).

NEW ADDITIONS IN ISIL LIBRARY

FORTHCOMING EVENTS

Annual Conference of the Indian Society ofInternational Law, 24-25 April 2010

One Week Training Course for the IndianEconomic Service Officers on Internationaland National Economic Law, 17-21 May2010

Visit of Delegation from School of Law,University of Edinburgh and A SpecialLecture on “Moral Rights and NewTechnology” by Smita Kheria, School ofLaw, University of Edinburgh, Old College,South Bridge, Edinburgh, 20 May 2010

Summer Course on International Law, 24May - 05 June 2010

V. K. Krishna Menon Memorial Lecture byProf. Upendra Baxi on “MissionImpossible?: - Some Thoughts TowardsUN Charter Reform”, 28 May 2010

Xiamen Academy of International Law, CollectedCourses of the Xiamen Academy of InternationalLaw (Martinus Nijhoff Publisher, Leiden, 2008).