INTERNATIONAL LAW REPORTS · 2006. 11. 27. · jeure) or where there is a choice of law problem involving discussion of international law or general principles of law as possible

INTERNATIONALLAW REPORTS

Volume 128

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Cambridge University Press978-0-521-86769-6 - International Law Reports, Volume 128Edited by Elihu Lauterpacht, C. J. Greenwood, A. G. Oppenheimer and Karen LeeFrontmatterMore information

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Lauterpacht Research Centre for International LawUniversity of Cambridge

INTERNATIONALLAW REPORTS

VOLUME128

Edited by

SIR ELIHU LAUTERPACHT, cbe qcHonorary Professor of International Law, University of Cambridge

Bencher of Gray’s Inn

C. J. GREENWOOD, cmg qcProfessor of International Law, London School of Economics and Political Science

Bencher of Middle Temple

A. G. OPPENHEIMERAssociate Editor: Civil Law Jurisdictions

Fellow of the Lauterpacht Research Centre for International Law, University of Cambridge

KAREN LEEAssistant Editor

Fellow of the Lauterpacht Research Centre for International Law, University of CambridgeFellow of Girton College, Cambridge

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




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CONTENTSPage

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 128 xix

Table of Treaties xxxv

Reports of Cases 1

Index 723

v




PREFACE

The present volume includes the decisions and award given under Chap-ter 11 of the North American Free Trade Agreement in the Loewen casetogether with the United States judicial review decision. The jurispru-dence of international tribunals is also reflected in the judgments of theInternational Court of Justice and the Special Court for Sierra Leone inthe Arrest Warrant and Taylor cases respectively and in the judgment ofthe International Tribunal for the Law of the Sea on the application forprompt release in The Juno Trader case. Also included is the award inthe arbitration between Newfoundland and Labrador and Nova Scotia.The national decisions are from Belgium, Canada, England, France,Germany, Italy, the Netherlands, Serbia, Spain, Sweden and the UnitedStates of America.

There are many people, to all of whom the Editors are most grateful,whose work has made this volume possible. Mr Joshua Brien, LLM,prepared the summaries of the Arrest Warrant, Taylor and The JunoTrader cases. Ms Karen Lee, Assistant Editor, prepared the summariesof the Newfoundland and Labrador/Nova Scotia arbitration award andthe Bouzari and Mofaz cases in addition to preparing the Tables ofCases and performing invaluable work in seeing the volume throughthe press. Mr Andrew Oppenheimer, Associate Editor for Civil LawJurisdictions, prepared the cases from Belgium, France, Germany, Italy,the Netherlands and Spain. Dr Sanja Djajic translated and summarizedthe Serbian case and Dr Anna-Karin Lindblom, the Swedish case. Pro-fessor Greenwood prepared the summaries of the Loewen arbitrationand Re Bo Xilai. We are also grateful to Mr Anastasios Xeniadis, LLM,and Ms Sarah M. Miller, LLM, for their summaries and to ProfessorCarlo Focarelli, University of Perugia, and Ms Emily Willmott, Assis-tant Legal Adviser, Foreign and Commonwealth Office, for supplyingthe texts of the Ferrini and Mofaz decisions. Ms Tara Grant prepared theDigest and provided invaluable general and secretarial assistance. MissMaureen MacGlashan, CMG, compiled the Table of Treaties and theIndex. Mrs Diane Ilott checked the copy and Mr Philip Riley read theproofs.

vii




viii PREFACE

Finally, we would like to extend our thanks to all the others who haveworked to complete this volume, particularly our publishers, CambridgeUniversity Press, and typesetters, TechBooks, and their staff.

E. LAUTERPACHTLauterpacht Research Centre

for International Law,University of Cambridge

C. J. GREENWOODLaw Department,London School of Economics

and Political Science

March 2006




EDITORIAL NOTE

The International Law Reports endeavour to provide within a singleseries of volumes comprehensive access in English to judicial materialsbearing on public international law. On certain topics it is not alwayseasy to draw a clear line between cases which are essentially ones of publicinternational law interest and those which are primarily applications ofspecial domestic rules. For example, in relation to extradition, the Reportswill include cases which bear on the exception of “political offences”or the rule of double criminality, but will restrict the number of casesdealing with purely procedural aspects of extradition. Similarly, while thegeneral rules relating to the admission and exclusion of aliens, especiallyof refugees, are of international legal interest, cases on the procedureof admission usually are not. In such borderline areas, and sometimesalso where there is a series of domestic decisions all dealing with asingle point in essentially the same manner, only one illustrative decisionwill be printed and references to the remainder will be given in anaccompanying 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 jurisdictions towhich full coverage cannot be given, either because of the large numberof decisions (e.g. the Administrative Tribunal of the United Nations) orbecause not all the decisions bear on questions of public internationallaw (e.g. the Court of Justice of the European Communities). In theseinstances, those decisions are selected which appear to have the greatestlong-term value.

Human rights cases. The number of decisions on questions of inter-national protection of human rights has increased considerably in recentyears and it is now impossible for the Reports to cover them all. As far asdecisions of international jurisdictions are concerned, the Reports willcontinue to publish decisions of the European Court of Human Rightsand of the Inter-American Court of Human Rights, as well as “views”of the United Nations Committee on Human Rights. Decisions of na-tional courts on the application of conventions on human rights will notbe published unless they deal with a major point of substantive humanrights law or a matter of wider interest to public international lawyers

ix




x EDITORIAL NOTE

such as the relationship of international law and national law, the ex-tent of the right of derogation or the principles of the interpretation oftreaties.

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. Pieter Sanders, under the aus-pices of the International Council for Commercial Arbitration).) Butwhere there is a sufficient point of contact with public international lawthen the relevant parts of the award will be reported. Examples of suchpoints of contact are cases in which the character of a State as a partyhas some relevance (e.g. State immunity, stabilization clauses, force ma-jeure) or where there is a choice of law problem involving discussion ofinternational law or general principles of law as possible applicable laws.The same criteria will determine the selection of decisions of nationalcourts regarding the enforcement of arbitral awards.

Decisions of National TribunalsA systematic effort is made to collect from all national jurisdictions thosejudicial 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 indicate the pagination of the original report.

NotesFootnotes. Footnotes enclosed in square brackets are editorial inser-

tions. 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. Afurther volume containing the Consolidated Index and ConsolidatedTables of Cases and Treaties for volumes 81-100 was published in 1996.A Consolidated Index, a Consolidated Tables of Cases and a Consoli-dated Table of Treaties for volumes 1-125 were published in 2004.




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.)

Arias v. Venezuela 684Arrest Warrant of 11 April 2000 (Demo-

cratic Republic of the Congo v. Belgium)(Request for the Indication of ProvisionalMeasures) 1, 12

Arrest Warrant of 11 April 2000 (Demo-cratic Republic of the Congo v. Belgium)(Judgment) 1, 60

Bo Xilai 713Bouzari and Others v. Islamic Republic of

Iran 586

District Public Prosecutor (Serbia) v. Nikolić(Case No Kž. I 1594/02) 691

Ferrini v. Federal Republic of Germany(Decision No 5044/2004) 658

FILT-CGIL Trento and Others v. UnitedStates of America (Decision No530/2000) 644

The Juno Trader (Saint Vincent and theGrenadines v. Guinea-Bissau) (Applica-tion for Prompt Release) 267

Kenyan Diplomatic Residence Case (CaseNo IXa ZB 19/03) 632

LM v. Netherlands, Minister for Nether-lands Antilles Affairs and Aruban Affairsand Others 681

Loewen Case 334, 716Loewen Group Inc. and Raymond L.

Loewen v. United States of America(ICSID Case No ARB(AF)/98/3) 334

Loewen Group Inc. and Raymond L.Loewen v. United States of America(ICSID Case No ARB(AF)/98/3) (Com-petence and Jurisdiction) 334, 339

Loewen Group Inc. and Raymond L.Loewen v. United States of America(ICSID Case No ARB(AF)/98/3)(Award) 334, 359

Loewen Group Inc. and Raymond L.Loewen v. United States of America(ICSID Case No ARB(AF)/98/3) (Sup-plementary Decision) 334, 420

Loewen, Raymond L. v. United States ofAmerica 716

Mexico, United States of v. Feldman Karpa610

Mofaz 709Morocco, Kingdom of v. Stichting Revali-

datiecentrum “De Trappenberg” 676

Netherlands v. Azeta BV 688Newfoundland and Labrador/Nova Sco-

tia Arbitration concerning Portions ofthe Limits of their Offshore Areas asdefined in the Canada–Nova ScotiaOffshore Petroleum Resources AccordImplementation Act and the Canada–Newfoundland Atlantic Accord Imple-mentation Act (First and Second Phases)425

Nova Scotia/Newfoundland and LabradorArbitration concerning Portions of theLimits of their Offshore Areas asdefined in the Canada–Nova ScotiaOffshore Petroleum Resources AccordImplementation Act and the Canada–Newfoundland Atlantic Accord Imple-mentation Act (First and Second Phases)425

President of the Council of Ministers v.Marković and Others (Decision No8157/2002) 652

Prosecutor (Special Court for Sierra Leone)v. Taylor (Case SCSL-2003-01-I) (Im-munity from Jurisdiction) (AppealsChamber) 239

Sassetti v. Multinational Force and Ob-servers (Decision No 3857/1994) 640

xiii




xiv TABLE OF CASES

Scimet v. African Development Bank 582State Marine Corporation and Currence v.

United States of America 701Stichting Revalidatiecentrum “De Trappen-

berg” v. Kingdom of Morocco 676

Taylor (Case SCSL-2003-01-I) (Immunityfrom Jurisdiction) (Special Court forSierra Leone Appeals Chamber) 239

Västerås, Municipality of v. Iceland 705

Yugoslavia, Federal Republic and NationalBank of v. Republics of Croatia, Slove-nia, Macedonia and Bosnia-Herzegovina627




TABLE OF CASES REPORTEDARRANGED ACCORDING TO COURTS

AND TRIBUNALS (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

Arbitration Tribunal

2001Arbitration between Newfoundland and

Labrador and Nova Scotia concerningPortions of the Limits of their Off-shore Areas as defined in the Canada–Nova Scotia Offshore Petroleum Re-sources Accord Implementation Act andthe Canada–Newfoundland Atlantic Ac-cord Implementation Act (First Phase)425, 435

2002Arbitration between Newfoundland and

Labrador and Nova Scotia concerningPortions of the Limits of their OffshoreAreas as defined in the Canada–NovaScotia Offshore Petroleum ResourcesAccord Implementation Act and theCanada–Newfoundland Atlantic AccordImplementation Act (Second Phase)425, 504

International Court of Justice

2000Case Concerning the Arrest Warrant of 11

April 2000 (Democratic Republic of theCongo v. Belgium) (Request for the In-dication of Provisional Measures) 1, 12

2002Case Concerning the Arrest Warrant of 11

April 2000 (Democratic Republic of theCongo v. Belgium) (Judgment) 1, 60

International Tribunal for the Law of the Sea

2004The Juno Trader (Saint Vincent and the

Grenadines v. Guinea-Bissau) (Applica-tion for Prompt Release) 267

NAFTA Chapter 11 Arbitration Tribunal

2001The Loewen Group Inc. and Raymond

L. Loewen v. United States of Amer-ica (ICSID Case No ARB(AF)/98/3)(Decision on Respondent’s Objectionsto Competence and Jurisdiction) 334,339

2003The Loewen Group Inc. and Raymond L.

Loewen v. United States of America(ICSID Case No ARB(AF)/98/3)(Award) 334, 359

2004The Loewen Group Inc. and Raymond

L. Loewen v. United States of America(ICSID Case No ARB(AF)/98/3) (Deci-sion on Respondent’s Request for a Sup-plementary Decision) 334, 420

Special Court for Sierra Leone

2004Prosecutor v. Taylor (Case SCSL-2003-01-I)

(Immunity from Jurisdiction) (AppealsChamber) 239

xv




xvi TABLE OF CASES

II. DECISIONS OF MUNICIPAL COURTS

Belgium

1997Scimet v. African Development Bank 582

Canada

2004Bouzari and Others v. Islamic Republic of

Iran 586

2005United Mexican States v. Feldman Karpa

610

France

1999Federal Republic and National Bank of Yu-

goslavia v. Republics of Croatia, Slove-nia, Macedonia and Bosnia-Herzegovina627

Germany, Federal Republic of

2003Kenyan Diplomatic Residence Case (Case

No IXa ZB 19/03) 632

Italy

1994Sassetti v. Multinational Force and Ob-

servers (Decision No 3857/1994) 640

2000FILT-CGIL Trento and Others v. United

States of America (Decision No530/2000) 644

2002President of the Council of Ministers v.

Marković and Others (Decision No8157/2002) 652

2004Ferrini v. Federal Republic of Germany (De-

cision No 5044/2004) 658

The Netherlands

1991Stichting Revalidatiecentrum “De Trappen-

berg” v. Kingdom of Morocco 676

1994Kingdom of Morocco v. Stichting Revali-

datiecentrum “De Trappenberg” 676

1998Arias v. Venezuela 684LM v. Netherlands, Minister for Nether-

lands Antilles Affairs and Aruban Affairsand Others 681

Netherlands v. Azeta BV 688

Serbia

2002District Public Prosecutor v. Nikolić (Case

No Kž. I 1594/02) 691

2003District Public Prosecutor v. Nikolić (Case

No Kž. I 1594/02) 691

Spain

1999State Marine Corporation and Currence v.

United States of America 701

Sweden

1999Municipality of Västerås v. Iceland 705

United Kingdom, England

2004Re Mofaz 709

2005Re Bo Xilai 713

United States of America

2005Raymond L. Loewen v. United States of

America 716




DIGEST OF CASESList of Main Headings

(Those headings for which there are entries in the present volume are printed initalics. 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 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 128

PageArbitration

Award — Binding nature — ICSID Additional Facility Rules,Articles 42 and 52 — Interpretation — When Award final —Whether requests for supplemental decisions rendering Awardnon-final until Tribunal decides on supplemental decision —Review by domestic courts — United States Federal Arbitra-tion Act — Three-month period for serving notice of motion tovacate — Award final from issuance if arbitrators manifesting in-tent to decide all issues referred to arbitration — United States,District Court for the District of Columbia (Judicial Review)

Raymond L. Loewen v. United States of America 716

Challenge — Arbitration tribunal constituted under NorthAmerican Free Trade Agreement (NAFTA), Chapter 11 —Arbitral award — Canadian court dismissing Mexico’s applica-tion to set aside arbitral award — Mexico appealing decision —Proceedings in Canadian courts — Canada, Ontario Court ofAppeal

United Mexican States v. Feldman Karpa 610

Disclosure of confidential information — Adverse inference fromfailure to provide information — Article 34 of UNCITRAL ModelLaw — NAFTA Article 2105 — Canada, Ontario Court of Appeal


International maritime boundary award — Dispute regard-ing boundary line dividing offshore areas of two CanadianProvinces — Oil, gas and mineral rights on continental shelf —Accord Acts — Dispute settlement provisions — Terms of Refer-ence — Canadian Provinces to be treated as States for purposesof arbitration — Arbitration in two stages — Phase One to de-termine whether boundary line resolved by agreement — 1964Joint Statement — 1972 Communiqué — Subsequent practice ofParties — Relevance — Phase Two to determine line in absenceof agreement — Applicable law — Arbitration Tribunal

Arbitration between Newfoundland and Labrador and Nova Sco-tia concerning Portions of the Limits of their Offshore Areas as

xix




xx DIGEST OF CASES

Arbitration(cont.)

defined in the Canada–Nova Scotia Offshore Petroleum ResourcesAccord Implementation Act and the Canada–NewfoundlandAtlantic Accord Implementation Act (First Phase) (SecondPhase) 425

Jurisdiction of Tribunal — Procedure — Reconsideration ofaward — Appointment of arbitrators — NAFTA ArbitrationTribunal

The Loewen Group Inc. and Raymond L. Loewen v. UnitedStates of America (ICSID Case No ARB(AF)/98/3) (Decisionon Respondent’s Objections to Competence and Jurisdiction)(Award) (Decision on Respondent’s Request for a SupplementaryDecision) 334

Claims

Investor claims under North American Free Trade Agreement(“NAFTA”) — Nationality — Whether continuous nationality ofclaimant required — Language of NAFTA not dispositive — Issueto be decided in accordance with applicable rules of internationallaw — Continuous nationality to date of award required —NAFTA Arbitration Tribunal


Local remedies rule — Nature and application — Whether ap-plicable to claims under NAFTA Chapter 11 — Effective andavailable remedies — NAFTA Arbitration Tribunal


Diplomatic Relations

Immunity — Property of foreign State in use by diplomaticstaff — Whether subject to execution in receiving State — FederalRepublic of Germany, Federal Supreme Court (BGH)

Kenyan Diplomatic Residence Case (Case No IXa ZB 19/03) 632




DIGEST OF CASES xxi

Economics, Trade and Finance

Foreign investment — NAFTA Article 1101 — Measures adoptedor maintained by a Party — Whether State conduct induc-ing private settlement agreement included — NAFTA Article1105 — Meaning of obligations to provide “fair and equitabletreatment” and “full protection and security” — Whether free-standing obligations or obligations under customary internationallaw — Whether bad faith and malicious intention required —Whether conduct of trial was so flawed that it constituted a man-ifest injustice and breach of minimum standards prescribed inNAFTA and international law — Gross failure of trial judge to af-ford due process breached minimum standards — NAFTA Article1102 — Discrimination against foreign investors — Example of“most favourable treatment accorded in like circumstances” re-quired — No example available to Tribunal — Breach not demon-strated — NAFTA Arbitration Tribunal


Foreign investment — Standards of treatment — International lawminimum standard — Fair and equitable treatment — NAFTAArticle 1105 — Whether differing from standards of internationallaw — Whether judicial acts capable of breaching standard — Con-duct of trial — Whether bad faith required — Requirement offinality — Whether implying duty to exhaust domesticremedies — NAFTA Arbitration Tribunal


Investment protection — NAFTA — Chapter 11 — Nationaltreatment — Non-discrimination — NAFTA Article 1102 — Lessfavourable treatment to investors — Canada, Ontario Court ofAppeal





xxii DIGEST OF CASES

Expropriation

NAFTA Article 1110 — Judicial act — Claimant required to es-tablish denial of justice under NAFTA Article 1105 — Claimantunable to establish breach of Article 1105 — NAFTA ArbitrationTribunal


Human Rights

Freedom from torture — Nature of prohibition of torture —Whether a rule of jus cogens — Consequences — Remedies for tor-ture — Whether State entitled to claim State immunity when suedfor torture — Whether other States required to provide remedy foracts of torture committed outside their territory — Conventionagainst Torture, 1984, Article 14(1) — International Covenant onCivil and Political Rights, 1966, Article 14 — Balance to be struckbetween prohibition of torture and State sovereignty — Canada,Ontario Court of Appeal

Bouzari and Others v. Islamic Republic of Iran 586

Universal Declaration of Human Rights, 1948 — InternationalCovenant on Civil and Political Rights, 1966 — Right to life —Whether right to life violated — Serbia, Prokuplje District Court(Chamber) and Supreme Court (Chamber)

District Public Prosecutor v. Nikolić (Case No Kž. I 1594/02) 691


Admissibility — Date at which question of admissibility to bedetermined — Effect of events which occurred after the filing ofApplication — Whether dispute transformed into one of a radi-cally different character — Whether adjudication would seriouslyjeopardize principle of procedural fairness and administration ofjustice — Whether Application deprived of object — Whether re-quest for provisional measures deprived of object — InternationalCourt of Justice

Case Concerning the Arrest Warrant of 11 April 2000 (Demo-cratic Republic of the Congo v. Belgium) (Provisional Measures)(Judgment) 1




DIGEST OF CASES xxiii

Jurisdiction — Optional Clause — Statute of the Court, Article36(2) — Declaration accepting jurisdiction of the Court — Dateat which jurisdiction to be established — Definition of a legal dis-pute — Existence of a legal dispute concerning arrest warrant —Whether events subsequent to act instituting proceedings depriv-ing Court of jurisdiction — International Court of Justice


Procedure — Claim in Application instituting proceedings notmade in final submissions — Effect of non ultra petita rule —Whether Court permitted to rule on withdrawn claim in oper-ative part of Judgment — Whether Court permitted to considerelements of withdrawn claim in reaching decision — InternationalCourt of Justice


Provisional measures of protection — Requirement of prima fa-cie jurisdiction — Object of provisional measures — Preserva-tion of respective rights of the Parties pending decision on themerits — Criteria for indication of provisional measures — Riskof irreparable prejudice to rights — Urgency — Whether provi-sional measures required in circumstances of case — InternationalCourt of Justice


International Criminal Law

Indictment of incumbent Head of State — International circula-tion of arrest warrant — Whether sovereignty of Ghana violatedby transmission of arrest warrant — Special Court for Sierra Leone(Appeals Chamber)

Prosecutor v. Taylor (Case SCSL-2003-01-I) (Immunity from Ju-risdiction) (Appeals Chamber) 239

Jurisdiction — Universal — Whether exercise of universal juris-diction in absentia consistent with international law — Issue andinternational circulation of arrest warrant — Relationship between




xxiv DIGEST OF CASES

International Criminal Law (cont.)

jurisdiction and immunities — Distinction between immunityfrom jurisdiction and impunity — War crimes — Crimes againsthumanity — International Court of Justice


War crimes — Crimes against humanity — Individual criminalresponsibility — Statute of the Special Court for Sierra Leone,Articles 1, 2, 3, 4 and 6 — Special Court for Sierra Leone (AppealsChamber)

Prosecutor v. Taylor (Case SCSL-2003-01-I) (Immunity from Ju-risdiction) (Appeals Chamber) 239

War crimes — Deportation to forced labour — Article 6(b) ofCharter and Judgment of Nuremberg International Military Tri-bunal — Provisions of Hague Convention, 1907, and GenevaConvention, 1929 — Whether recognized as declaratory of cus-tomary international law prior to outbreak of Second WorldWar — Categorization of deportation to forced labour as interna-tional crime — Confirmation in Statutes of International CriminalTribunals for Former Yugoslavia and Rwanda and Statute of In-ternational Criminal Court, 1998 — Italy, Court of Cassation(Plenary Session)

Ferrini v. Federal Republic of Germany (Decision No5044/2004) 658

International Organizations

Immunity — Immunity from jurisdiction — African Devel-opment Bank — Scope of immunity — Whether absolute orlimited — Khartoum Agreement, 1963, Article 50 — Object ofimmunity to enable Bank to achieve its purpose and perform itsfunctions — Whether limiting scope of immunity — Belgium,Court of First Instance of Brussels

Scimet v. African Development Bank 582

Immunity — Jurisdictional immunity — National of receivingState employed by international organization — Contract ofemployment — Termination — Claim for unlawful dismissaland reinstatement — Whether international organization entitledto jurisdictional immunity — Whether examination of legalityof dismissal of employee would involve interference with public




DIGEST OF CASES xxv

functions of international organization — Multinational Forceand Observers (MFO) established under Egypt–Israel Peace Treaty,1979 — Legal status of MFO — Whether entitled to jurisdictionalimmunity — MFO–Italy Headquarters Agreement, 1982 — Ar-ticle 8 — Provision for immunity from jurisdiction of receivingState in absence of waiver — Whether express waiver required —Relevance of provision for settlement of employment disputes byarbitration — Italy, Examining Magistrate (Pretore)

Sassetti v. Multinational Force and Observers (Decision No3857/1994) 640

International Tribunals

Application for prompt release under Article 292 of the UnitedNations Convention on the Law of the Sea, 1982 — Rules ofProcedure and Evidence — Rule 111(4) of Rules of Procedure —Implications for principle of equality of opportunity for parties –Rule 111(4) of Rules — Whether failure to file a Statement inResponse placing detaining State in a position of unfair advantage –International Tribunal for the Law of the Sea

The Juno Trader (Saint Vincent and the Grenadines v. Guinea-Bissau) (Application for Prompt Release) 267

International Tribunal for the Law of the Sea — Applicable law— United Nations Convention on the Law of the Sea, 1982 —Guinea-Bissau and Saint Vincent and the Grenadines both StatesParties to Convention — Saint Vincent and the Grenadines in-stituting proceedings under Article 292 of Convention — Juris-diction and admissibility — Relationship between InternationalTribunal and domestic courts and administration — Decisionof the International Tribunal under Article 292 — InternationalTribunal for the Law of the Sea


Special Court for Sierra Leone — Legal basis for establishment ofSpecial Court — Whether Special Court part of judicial systemof Sierra Leone — Consideration of treaty establishing SpecialCourt — Consideration of role of Security Council — Whetherabsence of Chapter VII powers in the Special Court bears uponcharacterization of Special Court — Special Court for Sierra Leone(Appeals Chamber)

Prosecutor v. Taylor (Case SCSL-2003-01-I) (Immunity fromJurisdiction) (Appeals Chamber) 239




xxvi DIGEST OF CASES

International Tribunals (cont.)

Special Court for Sierra Leone — Procedure — Rules of Procedureand Evidence, Rules 72 and 73 — Motion to quash indictmentand set aside arrest warrant — Whether claim of immunity raisesissue of jurisdiction — Consideration of rules requiring accusedto submit to jurisdiction before bringing preliminary motion —Discretionary exception to application of rules where accused isincumbent Head of State — Exercise of inherent power and dis-cretion of Appeals Chamber — Special Court for Sierra Leone(Appeals Chamber)


Jurisdiction

Coastal State jurisdiction — Exercise of sovereign rights ofcoastal State — Juno Trader flying flag of Saint Vincent and theGrenadines — Allegation of illegal fishing in EEZ of Guinea-Bissau — Seizure of vessel, fish and equipment — Bond for releaseof vessel set by order of Ministerial Maritime Control Commissionof Guinea-Bissau — Order suspended pending final decision byRegional Court of Bissau — Saint Vincent and the Grenadinescontesting legality of the bond — International Tribunal for theLaw of the Sea


Failure to exhaust domestic remedies — Distinguished from waiverof domestic proceedings — Requirement to exhaust local reme-dies applicable to NAFTA — Remedies available to claimants notexhausted — NAFTA Arbitration Tribunal


Visiting forces — Civil claim for damages arising from acts ofNATO forces — NATO Status of Forces Agreement, 1951 —Article VIII(5) — Whether right of action against receiving Statedependent upon prior characterization of act in question as un-lawful — Italy, Court of Cassation (Plenary Session)

President of the Council of Ministers v. Marković and Others(Decision No 8157/2002) 652




DIGEST OF CASES xxvii

Relationship of International Law and Municipal Law

Act of State and justiciability — NATO bombardment of Ser-bian Television building in Belgrade — Use of bases in Italy byaircraft involved in bombardment — Whether action of ItalianGovernment in allowing use of bases justiciable — Italy, Court ofCassation (Plenary Session)


Application for judicial review of arbitral award — Annulmentof award by national court — Article 34 of UNCITRAL ModelLaw — Jurisdiction to apply provisions not raised during arbi-tral proceedings — NAFTA Article 210 — Deference to arbitralaward — International commercial arbitrators — Review of find-ings of fact — Article 34(2) and (3) of UNCITRAL Model Law —ICSID Article 53 — Breach of public policy — Article 34(2)(b)(ii)of UNCITRAL Model Law — Canada, Ontario Court of Appeal


Crimes against international law — Customary internationallaw — Jurisdictional immunity of foreign States for acts performedjure imperii — International crimes involving serious violations offundamental human rights — Claims for damages by individu-als for loss and injury arising from commission of such crimes —Whether States entitled to rely on immunity — Practice of nationaland international tribunals — Whether conclusive — Whetherfact that acts performed jure imperii relevant — Whether prioritynow accorded to protection of fundamental rights of individualsover right of States to jurisdictional immunity — Whether any par-allel between functional immunity of State organs and immunityof States — Italy, Court of Cassation (Plenary Session)

Ferrini v. Federal Republic of Germany (Decision No5044/2004) 658

Customary international law — Jurisdictional immunity of foreignStates for acts performed jure imperii — Whether constituting ruleof customary international law automatically incorporated intomunicipal law — Italian Constitution, Article 10 — Whethersuch rule taking precedence over right to effective remedy beforenational courts — Italy, Court of Cassation (Plenary Session)

FILT-CGIL Trento and Others v. United States of America (Deci-sion No 530/2000) 644




xxviii DIGEST OF CASES

Relationship of International Law and Municipal Law (cont.)

Customary international law — Part of Canadian common law –Treaties — Effect in Canadian law of treaty not implemented bylegislation — International law principles and values as aid toconstruction of legislation — Expert evidence on internationallaw — Admissibility — Value — Canada, Ontario Court of Appeal


Sea

Delimitation of maritime boundaries between Parties — Con-tinental shelf — Delimitation of continental shelf beyond 200nautical mile limit to outer edge of continental margin —Method of delimitation — Practical method — Equitable result— Geographical context — Governing law — Whether fourthGeneva Convention on the Continental Shelf, 1958 applicable —Article 6 of Geneva Convention — Provisional strict equidistanceline — Whether requiring adjustment — Conduct of Parties —Relevant geographical circumstances — Whether proportionalitytest relevant — Arbitration Tribunal

Arbitration between Newfoundland and Labrador and Nova Sco-tia concerning Portions of the Limits of their Offshore Areas asdefined in the Canada–Nova Scotia Offshore Petroleum ResourcesAccord Implementation Act and the Canada–NewfoundlandAtlantic Accord Implementation Act (First Phase) (SecondPhase) 425

Exclusive Economic Zone (“EEZ”) — Arrest of vessel — UnitedNations Convention on the Law of the Sea, 1982 — Articles 73and 292 of Convention — Procedures for ensuring prompt re-lease of vessels and crew — Declaration accepting jurisdiction ofCourt — International Tribunal for the Law of the Sea


State Immunity

Attachment and execution — Property for use in militaryactivity — Consignment of goods including food required byUnited States troops stationed abroad — Whether covered by im-munity from execution — Spain, Provincial Court of Cadiz

State Marine Corporation and Currence v. United States ofAmerica 701




DIGEST OF CASES xxix

Attachment and execution — Property of foreign State —Premises owned by foreign State and used by diplomatic staff –Whether immune from execution — Relevance of fact thatpremises in the process of being sold — Test of whether or notthe ability of mission to function would be impaired if forced saleof premises permitted — Whether sending State can be requiredto provide details of use of premises — Whether assurance fromambassador that premises in use for diplomatic functions sufficient— Federal Republic of Germany, Federal Supreme Court (BGH)

Kenyan Diplomatic Residence Case (Case No IXa ZB 19/03) 632

Immunity from attachment — Embassy bank account — Whetherfunds in use for performance of sovereign functions of foreignState — Funds intended for maintaining and runningembassy — Statement to this effect by foreign State — Whetherfurther enquiry into intended use of funds constituting unrea-sonable interference in diplomatic mission — The Netherlands,District Court of Rotterdam

Netherlands v. Azeta BV 688

Immunity from jurisdiction and execution — Foreign States —Funds belonging to State which has disappeared — Funds subjectto dispute between States claiming succession — Whether suchfunds capable of being covered by immunity — France, Court ofCassation (First Civil Chamber)

Federal Republic and National Bank of Yugoslavia v. Republics ofCroatia, Slovenia, Macedonia and Bosnia-Herzegovina 627

Jurisdiction — United States forces stationed in Italy under NATOTreaty, 1949 — Low-flying military training flights — Whetherconstituting sovereign activity — Proceedings brought before na-tional courts to restrict such flights on safety and human rightsgrounds following accidents involving loss of life — WhetherUnited States entitled to jurisdictional immunity — Potential con-flict between human rights protection and rule of jurisdictionalimmunity excluding recourse to courts — Immunity for acts per-formed jure imperii — Italy, Court of Cassation (Plenary Session)

FILT-CGIL Trento and Others v. United States of America (Deci-sion No 530/2000) 644

Jurisdictional immunities — Foreign minister — Purpose of im-munities — Whether immunities of Head of State and diplomaticagents relevant to determining immunities of incumbent foreign




xxx DIGEST OF CASES

State Immunity (cont.)

minister — Whether incumbent foreign minister enjoying full im-munity from criminal prosecution and inviolability during periodof office — Whether official and private acts covered during term ofoffice — Whether immunity remaining after person concerned hasceased to hold office — Whether exception to immunity in caseswhere person accused of war crimes and crimes against humanity –Issue and international circulation of arrest warrant — Whetherviolating immunity even if warrant not enforced — InternationalCourt of Justice


Jurisdictional immunities — Head of State — Whether incumbentHead of State immune from prosecution by Special Court forSierra Leone — Statute of the Special Court for Sierra Leone,Article 6(2) — Whether Article 6(2) of Statute in conflict withperemptory norm of international law — Special Court for SierraLeone (Appeals Chamber)


Jurisdictional immunity — Claim against State for slander by oneof its officials — Claim brought before courts of another Stateforming part of same constitutional union — Whether defendantState entitled to jurisdictional immunity — Status of constituentparts of the Kingdom of the Netherlands — The Netherlands,Court of Appeal of the Netherlands Antilles and Aruba

LM v. Netherlands, Minister for Netherlands Antilles Affairs andAruban Affairs and Others 681

Jurisdictional immunity — Claim by individual against foreignState for personal injury — Deportation to forced labour by Ger-man occupying forces during Second World War — Violation ofrules of jus cogens — Whether grave violations of human rights pre-cluding reliance on State immunity under customary internationallaw — European Convention on State Immunity, 1972, Articles11 and 31 — Whether entitlement to rely on immunity preservedfor acts of armed forces — Whether commission of grave viola-tions of human rights automatically implying waiver of immunityby State — Italy, Court of Cassation (Plenary Session)

Ferrini v. Federal Republic of Germany (Decision No 5044/2004) 658




DIGEST OF CASES xxxi

Jurisdictional immunity — Exceptions to immunity — Penal pro-ceedings — Commercial activity — Torts occasioning personalor bodily injury — Whether exception to immunity for non-commercial torts extends to torture committed by defendant Statein its own territory — Whether there is an exception to immu-nity for violations of jus cogens — Canada State Immunity Act1982 — Canada, Ontario Court of Appeal


Jurisdictional immunity — Locally recruited foreign nationalemployed as secretary by mission of foreign State — Con-tract of employment — Claim for wrongful dismissal —Whether foreign State entitled to jurisdictional immunity —Employee neither national of nor permanently resident in receivingState — Whether dismissal of such an employee covered byimmunity — Draft international provisions on the matter— Whether reflecting current position under customary in-ternational law — The Netherlands, District Court of TheHague

Arias v. Venezuela 684

Jurisdictional immunity — Nordic Council Agreement on Com-mon Upper Secondary School Education, 1992 — Payment ofeducational costs by Swedish education authority — Claim torecover costs from Iceland as State of nationality of student —Whether Iceland entitled to jurisdictional immunity — Whetherconclusion and implementation of such agreement performed jureimperii or jure gestionis — Whether conclusion of agreement con-stituting waiver of immunity — Whether contractual choice-of-law clause implying waiver of immunity — Sweden, SupremeCourt

Municipality of Västerås v. Iceland 705

Jurisdictional immunity — Tort — Alleged failure by foreign Stateto provide medical insurance for consular employee — Whetherconstituting a tortious omission — Whether foreign State entitledto sovereign immunity from jurisdiction — Distinction betweenacts performed jure imperii and jure gestionis — The Netherlands,Court of Appeal of Amsterdam and Supreme Court

Stichting Revalidatiecentrum “De Trappenberg” v. Kingdom of Mo-rocco; Kingdom of Morocco v. Stichting Revalidatiecentrum “DeTrappenberg” 676




xxxii DIGEST OF CASES

State Immunity (cont.)

Officials — Defence Minister — Basis for State immunityclaims — State immunity extending to serving Head of State, Headof Government and Minister for Foreign Affairs — Whether cat-egories of office exclusive — Whether State immunity extendingto Defence Minister — Whether current Israeli Defence Minis-ter entitled to immunity ratione personae — England, Bow StreetMagistrates’ Court

Re Mofaz 709

Officials — Minister for Commerce — Basis for State immunityclaims — Allegations of offences of torture committed by Ministerduring previous office — Whether Minister entitled to immunityratione personae — Membership of a special mission — Conventionon Special Missions, 1969 — Whether declaratory of customaryinternational law — England, Bow Street Magistrates’ Court

Re Bo Xilai 713

State Succession

Identity and continuity of States — Whether international lawlays down any procedure for determining the existence of successorStates — Whether Federal Republic of Yugoslavia constituting acontinuation of Socialist Federal Republic of Yugoslavia — Claimnot accepted by international community and opposed by otherformer Republics of Socialist Federal Republic of Yugoslavia —France, Court of Cassation (First Civil Chamber)

Federal Republic and National Bank of Yugoslavia v. Republics ofCroatia, Slovenia, Macedonia and Bosnia-Herzegovina 627

States

Conduct of foreign relations — Choice of method of conductinghostilities in war — Whether subject to judicial review — Italy,Court of Cassation (Plenary Session)


Treaties

Geneva Convention on the Continental Shelf, 1958, Article6 — United Nations Convention on the Law of the Sea, 1982,Article 83(1) and (4) — Customary international law — Law




DIGEST OF CASES xxxiii

governing maritime delimitation — Unity — Flexibility — Arbi-tration Tribunal

Arbitration between Newfoundland and Labrador and Nova Sco-tia concerning Portions of the Limits of their Offshore Areas asdefined in the Canada–Nova Scotia Offshore Petroleum ResourcesAccord Implementation Act and the Canada–NewfoundlandAtlantic Accord Implementation Act (First Phase) (SecondPhase) 425

Individual rights — International humanitarian law — Rules in-tended to secure protection of civilians from armed attack —Whether creating rights for individuals to claim compensationfor breaches — First Additional Protocol to Geneva Conventions,1977 — Italy, Court of Cassation (Plenary Session)


Interpretation — Relevance of subsequent practice — Conventionagainst Torture, 1984 — Practice of States Parties — Reports toCommittee against Torture — Response to declaration by UnitedStates of America — Canada, Ontario Court of Appeal


Interpretation and application — United Nations Convention onthe Law of the Sea, 1982 — Article 73(2), (3) and (4) — Meaningof expression “reasonable bond or other financial security” in Ar-ticle 292 — Whether bond set for release of vessel reasonable —Consideration by International Tribunal of level and elements ofbond — Consideration by International Tribunal of facts and cir-cumstances of case — Valuation of vessel — Assessment of gravityof alleged offences — Whether international concern over illegalfishing relevant to assessment of gravity and to level of bond —Whether value of seized catch and fishing gear forming part ofthe bond — Determination of reasonable bond by InternationalTribunal — Arrangements for posting of bond — InternationalTribunal for the Law of the Sea


War and Armed Conflict

Conduct of military operations — Whether choice of method ofconducting hostilities justiciable — Whether non-justiciability



Documents

INTERNATIONAL LAW REPORTS · 2006. 11. 27. · jeure) or where there is a choice of law problem involving discussion of international law or general principles of law as possible