April-June 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 ...................................... 2-4

Recent Developmentsin International Law .................................. 4-7

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

New Additions in ISIL Library .................... 8

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

Forthcoming Events .................................... 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. 2, April-June, 2010

N E W S L E T T E R

For members only

Editor-in-Chief

The year 2010 marks, and is in fact a very proud moment for the Indian InternationalLaw scholarship, as the flagship publication of the Indian Society of International Law(ISIL) – The Indian Journal of International Law (IJIL) completes fifty years.Generations of Indian scholars have contributed to IJIL’s glory that has enabled it tobuild its reputation and prestige as a leading voice of third world scholarship, ingeneral, and the Indian scholarship in particular in the international law discourse. Itis an occasion to cherish to commemorate, as also an opportunity to chart the pathahead.

The seeds for this long-journey were sown by Pandit Jawaharlal Nehru, our first PrimeMinister and a leading statesman of his time. It was carefully nurtured for more thantwo decades by Shri V. K. Krishna Menon, the first and longest-serving President of the

ISIL. Menon’s successors, at ISIL, namely, Dr. Nagendra Singh, Justice R. S. Pathak, Prof. Upendra Baxi, Shri RamNiwas Mirdha and Prof. R. P. Anand contributed to ensure that the seeds sown by the founding fathers grow intoa full bloom tree.

The first issue of the Indian Journal of International Law was published in 1960, with Radha Binod Pal, asHonorary Editor-in-Chief and C. J. Chako, as the Editor-in-Chief. The Editorial Board members of the firstvolume were Nagendra Singh, Krishna Rao, E. E. Jhirad, R. S. Pathak, C. V. L. Narayan, Atul Setalvad, HarnamSingh and J. S. Bains. After the demise of Radha Binod Pal, K. Krishna Rao, an eminent international lawpractitioner, was the Editor-in-Chief of the Journal from 1966 to 1970. He continued the tradition set up byRadha Binod Pal and took this Journal to new heights. The Journal was then published under the able guidanceof following Editor-in-Chiefs: V. K. Krishna Menon (1971-74); Nagendra Singh (1975-88) and R. S. Pathak(1989-91). I consider it a very great honour to assume charge of it from 1992 as the Editor-in-Chief.

Many eminent international law scholars have served as Editors and Editorial Board Members of the journal andall of them have contributed immensely to the growth of the Journal. We would like to record our deepappreciation to all these eminent scholars for their untiring efforts to make IJIL an important international lawjournal in the world.

The Journal had published a special issue in 1995 on the occasion of 50th Anniversary of the UN (CommemorativeVolume) with M. S. Rajan, as Special Editor. It is not possible to publish good international law journalswithout the active and voluntary support of international law scholars who submitted their articles for publication.A large number of scholars have anonymously helped the Journal in this task. On behalf of the Editorial Boardof the journal, it is my pleasant duty to record our deep appreciation to all these academicians and practitionerswho helped during the last 50 years.

Rahmatullah Khan

Special EditorialSpecial EditorialSpecial EditorialSpecial EditorialSpecial Editorial

2 April-June 2010

RECENT ACTIVITIES

THIRTY NINTH ANNUALCONFERENCE OF THE INDIANSOCIETY OF INTERNATIONALLAW

Indian Society of International Law (ISIL)organized its 39th Annual Conference on 24-25April 2010 at V. K. Krishna Menon Bhawan(ISIL), New Delhi. More than 250 delegatescomprising law faculty members, researchers,students and lawyers from different parts of thecountry and representatives from severalembassies and ministries participated in theConference. Prof. R. P. Anand, President, ISIL,while welcoming the distinguished guests and thedelegates, mentioned the significance of theAnnual Conference of ISIL and the need forparticipating in such a conference. He stronglyemphasized on the need to train scholars ininternational law to counter the hegemony ofwestern scholars’ writing. He highlightedachievements of ISIL in bringing scholars fromall over the world to one platform in the last 50years. He said in his welcome address, thatinternational law is gaining much importance invarious ministries over the years. Hon’ble Dr.Justice B. S. Chauhan, Judge, Supreme Courtof India, inaugurated the Conference. He stronglyargued for increased emphasis on internationallaw in the law schools and colleges and the needto appoint a proper faculty to teach this subject asthe subject has wider ramifications andimplications on many aspects of day-to-dayactivities. I am convinced that it is onlycongregations of this nature which is filled withinternational law experts could come out withsome practical and workable ideas in this regard.I said earlier the challenges posed by theexponential growth in International law makes usto plan for the development of the humanresources in international law so that thediscipline and the nation will be better served.Perhaps the time has come for ISIL to take aserious look at the formidable challenges in thisregard. I find the themes you have chosen forthis year are very contemporary and relevantwhich have bearing upon India’s national interest.I am sure your deliberations will complement theglobal negotiations on these topics. I wish theConference a great success.” H.E. Mr.Gudmundur Eiriksson, Ambassador of Iceland toIndia, Special Guest of Honour also addressedthe gathering on this occasion. Prof. S. K.Verma, Director, ISIL briefly outlined the schemeof the Conference and proposed a formal vote ofthanks.

Three sessions were organized to discuss threethemes. The first session (morning) was on the

‘Climate Change: Copenhagen and Beyond’which was chaired by Prof. Rahmatullah Khan,Secretary General, ISIL. Shri Sanjay Parikh,Advocate, Supreme Court of India gave thekeynote address in this session. Eminentpanelists namely Dr. Phillippe Cullet, Director,ICELR; Prof. Satish C. Shastri, Dean andHead, Modi Institute of Technology and Science;Dr. Luther M Rangreji, Legal Officer, Legal &Treaties Division, Ministry of External Affairs;and Dr. Anwar Sadat, Assistant Professor, ISILpresented papers on “Equity and South-NorthNegotiations for a Future Climate Regime –Rethinking Differential treatment”, “Issues inClimate Change Negotiations”, “Climate ChangeNegotiations: Copenhagen and Beyond” and “ACritical Review of Financial Commitment of theCopenhagen Accord” respectively.

The second session (afternoon) was on the‘Forced Migration: Emerging Global Legal andPolicy Issues’ chaired by Prof. B. C. Nirmal,Professor of Law, BHU, Varanasi. Shri RaviNair, Executive Director, South Asia HumanRights Documentation Centre gave the keynoteaddress. Eminent panelists namely Ms. KiranKaur, Senior Protection Officer, UNHCR, NewDelhi; Prof. Sanjay Chaturvedi, Professor,Department of Political Science, ChandigarhUniversity, Chandigarh and Shri Y. S. R.Murthy, Executive Director, Jindal Global LawSchool, Sonipat presented papers on“Challenges of Refugee Protection in theContext of Forced and Mixed Migration Flows”,“Climate Change and Displacements” and “Roleof NHRC on Rights of Displaced Persons”respectively.

The third session based on the theme“Intellectual Property Rights: Implementation

Issues” was chaired by Shri T. C. James,Director, National Intellectual PropertyOrganisation. Shri G. R. Raghvender, Registrarof Copyrights Division, MHRD gave keynoteaddress. Eminent panelists namely, Ms. SunitaK. Sreedharan, Advocate and Patent Agent,SKS Law Associates; Ms. Prathiba Singh,Advocate, Supreme Court of India; Dr. V. G.Hegde, Treasurer, ISIL; and Mr. Rodney Ryder,Advocate, Supreme Court of India presentedpapers on “Biotechnology Innovations andTraditional Knowledge and Law of Patents”,“Recent Developments in Trade Marks”,“Traditional Knowledge and IPRs”, and“Copyright and the New Media – The RightsHolder and the Code” respectively. Finally, Prof.R.P. Anand, President, ISIL gave valedictoryaddress and Prof. Rahmatullah Khan, SecretaryGeneral, ISIL, made the concluding remarks. Dr.V. G. Hegde, Treasurer proposed a formal voteof thanks. The Annual Conference concludedwith General Body Meeting held at 2.15 pm on25 April 2010.

ONE WEEK TRAINING COURSEFOR THE INDIAN ECONOMICSERVICE OFFICERS ONINTERNATIONAL AND NATIONALECONOMIC LAW

ISIL conducted a Training Programme for theofficers of Indian Economic Services onInternational and National Economic Lawsponsored by the Ministry of Finance,Government of India at its premises from May17-21, 2010. Prof. R. P. Anand, President, ISIL,inaugurated the programme and highlighted theimportance of international economic law in

April-June 2010 3

increased globalised society. Prof. Anandgave an introductory lecture to the Officer-Trainees. There were lectures andpresentations on a variety of themes ofinternational and national economic laws. Thefaculty of the orientation course consisted ofeminent international law scholars. Prof.Anand, gave concluding remarks anddistributed certificates to the Officer-Trainees.Prof. S. K. Verma, Director, ISIL proposed aformal vote of thanks.

VISIT OF DELEGATION FROMSCHOOL OF LAW,UNIVERSITY OF EDINBURGHAND A SPECIAL LECTURE BYSMITA KHERIA, SCHOOL OFLAW, UNIVERSITY OFEDINBURGH, OLD COLLEGE,SOUTH BRIDGE, EDINBURGH

Delegation of three professors of School ofLaw, University of Edinburg, Old College,South Bridge, visited ISIL on 20 May 2010.On this occasion, Prof. Smita Kheria, Schoolof Law, University of Edinburg, delivered alecture on “Moral Rights and NewTechnologies”. Prof. Smita examined therelevance of moral rights to the areas of newtechnology. She also explored the moralrights in new kinds of artistic works thatmake use of technological elements in theircreation, performance, or exhibition. Shesuggested that some form of moral rightsprotection may well be appropriate to newtechnological works. The Lecture wasfollowed by a lively exchange of views onher presentation.

NINTH SUMMER COURSE ONINTERNATIONAL LAW

The ISIL organized its Ninth Summer Course onInternational Law at its premises from 24 May –4 June 2010. The Course received a hugeresponse of 350 participants from every part ofIndia. The Summer Course was intended tointroduce all branches of international law andhighlight the contemporary issues to theparticipants. The Course was inaugurated byHon’ble Dr. Justice Mukundakam Sharma,Judge, Supreme Court of India, on Monday, 24thMay 2010. He said, “I am delighted to be here atthe Indian Society of International Law (ISIL) andaddress the students, members of this renownedplace of learning and other guests present here.My greeting to you all. The ISIL has been thesource of enlightened learning for over 50 yearsnow. The ISIL is well known for its internationalcharacter, diversity and research, enriched by its

heritage and preparedness for future. It is a tributeto the qualities of academia, leadership and publicservice which the ISIL imparts that manyeminent scholars are a product of the ISIL.” Prof.R. P. Anand, President, ISIL, in his welcomeaddress, narrated the purpose and the importanceof the course. Prof. Rahmatullah Khan,Secretary General, ISIL highlighted significanceof international law in increased globalizedsociety. Prof. S. K. Verma, gave vote of thanks.

The substantive lectures of the Course werespread over two weeks. Lectures weredelivered on vital and contemporary areas ofinternational law, viz., General Principles ofPublic International Law, International Institutions,International Human Rights Law, InternationalHumanitarian and Refugee Law, InternationalCriminal Law, Maritime Law, Public InternationalTrade Law, National and International Arbitration,International Environmental Law and SustainableDevelopment. The faculties for the SummerCourse comprised of eminent international lawexperts. The Course witnessed livelyinteractions and discussion by the participants.

V. K. KRISHNA MENONMEMORIAL LECTURE BY PROF.UPENDRA BAXI ON “MISSIONIMPOSSIBLE:?- SOMETHOUGHTS TOWARDS UNCHARTER REFORM”

In the memory of Shri V. K. Krishna Menon,former President and founder of the ISIL, the ISILorganized the Tenth V. K. Krishna MenonMemorial Lecture on 28 May 2010 at ISILpremises which was delivered by Prof. UpendraBaxi. Prof. Rahmatullah Khan, SecretaryGeneral, ISIL, highlighted and underlined the

4 April-June 2010

achievements of Prof. Upendra Baxi. Prof. R. P.Anand, President, ISIL welcomed the chief guestProf. Upendra Baxi, Emeritus Professor of Law,University of Warwick and University of Delhiand the distinguished guests.

Prof. Baxi said, “It is an extraordinary privilegeto be invited to deliver this Memorial Lecture.Vengalil Krishnan Krishna Menon, a legendaryfigure, articulated a distinctive vision of a post -Westphalian international law and order and hedid so with a rare passion for India’s future in theworld.”

Over the theme of the lecture, Prof Baxi stated:“Why Talk about the ‘Reform’ of the UN Charter?To this threshold question, three types ofresponses are possible. The first—a standard –response suggests that as an organic instrumentof global governance, the UN Charter needsbasic transformations in the 21st Century CE.The UN ought to now take more seriously theneed for reform of powers and procedures thatenable us to meet better not just the old concernsbut more importantly the newly emergent ones.Call this the state-centric reform perspective.

A second response suggests that we—that issocial movement and human rights activistfolks— should not engage with the UN Charterreform discourse [UNCRD] not becauseamendments to the charter is difficult to attainmentbut rather because even when at some point oftime backed by member-states will andconsensus, no UN reform is likely to amelioratethe plight of the globally worst-off peoples andeven their future generations. The UN, in thisview, will continue to exist and may even bereformed but without making any substantialcontribution to the elimination of structural causesof human suffering and rightless humans. I amtempted to name this as a nihilist position but Iresist that description given my understanding ofNietzsche for whom nihilism consisted notmerely in devaluation of established/imposedvalues but also creation of new values. Allowme then to name this then rather more accuratelyas an Argument of Justified Indifference (AOJI.)[3]

A third response constitutes what I may call asArgument for Constructive Engagement (AFCE)with UN Charter reform talk and action. I thinkthis is what animated a few friends’ excitementwith my choice of the theme! AFCC advancesthe view that the UN reform talk and action is tooserious a matter for human futures to be left todiplomats, international law persons, and‘statesmen’ (a term I am unable to sufficientlyfeminize.) AFCE further points to a profound shiftin the original position at Dumbarton Oakeswhere the UN Charter was framed; since thenthere has occurred a remarkable implosion of

RECENT ACTIVITIES/ RECENT DEVELOPMENTS

global civil society activism that has criticallyengaged the UN action and inaction both asregards its prime function of maintaininginternational peace and security, global socialdevelopment, and movement towards globaljustice. At a basic level, AFCE suggests waysin which the United Nations systems affects usall and therefore commends its reform agendumas a serious concern, even for human rights andsocial movement activists in the Global South.”Then he addressed each of these responses inhis lecture.

Taking note of the great contribution made by ProfBaxi in the field of international Law, ISILconferred Life Time Achievement Award forteaching and research in International Law tohim. Prof. S. K. Verma, Director, ISIL, gave avote of thanks.

RECENT

DEVELOPMENTS

ICC PROSECUTOR GOT

DECISION TO MOVE FORWARD

WITH KENYA PROBE

On November 2009, prosecutor Luis Moreno-Ocampo sought authorization to open aninvestigation into the violence in Kenya –claiming 1,000 lives and uprooting more than300,000 others – that erupted after the disputedDecember 2007 polls in which President MwaiKibaki was declared winner over oppositionleader Raila Odinga, who is now Prime Minister.And in March 2010, following a request foradditional information from the ICC, theProsecutor named the 20 people are mostresponsible for the deadly post-election ethnicviolence.

On 30 March, 2010, the ICC’s Pre-TrialChamber II found in a majority decision of two toone that “the information available provides areasonable basis to believe that crimes againsthumanity have been committed on Kenyanterritory.” It noted that “the majority found that allcriteria for the exercise of the Court’s jurisdictionwere satisfied, to the standard of proof applicableat this stage.” Judge Hans-Peter Kaul,dissenting, held that the crimes in Kenya do notqualify as crimes against humanity under thejurisdictional ambit of the Rome Statute, underwhich the ICC operates. He concluded that therewas no reasonable basis to believe that thecrimes in Kenya were committed in an attackagainst a civilian population pursuant to or infurtherance of a policy stemming from a State oran organization, which he said was required by

Article 7 of the Statute. The majority decision byJudges Ekaterina Trendafilova and CunoTarfusser cited the low threshold applicable at thisstage of the proceedings.

BRITISH LAW TO STOPPREDATORY FINANCIAL FUNDS

On 20 April 2010,United Kingdom passed alandmark debt relief law, which limits the ability ofso-called “vulture funds” to sue the world’spoorest countries in British courts for repaymentof debts, saying they could have ramifications fora recent court verdict involving Liberia. This lawmarks the first occasion on which a country hasbanned profiteering by vulture funds. Vulturefunds buy up either all or a portion of debt of aweakened country. The funds often targetgovernments that have received internationaldebt relief, and then sue to recover the fullamount of the debt, diverting precious financialresources saved from debt cancellation. One ofthe first impacts of the British law could be toblock a November 2009 ruling by the London’sHigh Court awarding $20 million to two vulturefunds that bought Liberia’s debt at a fraction of thesum. The case dates back to 1978. Liberia,which is recovering from a 14-year civil war,does not have the funds to pay back the debt. Atthe time of the case, Liberia was taking part in theHeavily Indebted Poor Countries Initiative(HIPC) process, an internationally agreed debtrelief measure designed to free up funds for poorcountries to invest in developmental issues. TheWorld Bank reported in 2008 that 54 lawsuits hadbeen instituted by commercial creditors against12 HIPCs over the past decade.

UN WORKING GROUP URGESSUPPORT FOR TREATYREGULATING PRIVATEMILITARY SECURITYCOMPANIES

A United Nations expert body, on 30 April 2010,is urging broad support for the creation of a newglobal treaty to regulate the activities of privatemilitary and security contractors, stressing theneed for strict control mechanisms for this “highlyspecific and dangerous trade.” The five-memberUN Working Group on the use of mercenaries,created in 2005, is currently drafting a possiblenew legally binding instrument that aims to setminimum global standards for States to regulateprivate military and security companies’ activitiesat the international level. “It’s high time to closethe legal gap for private security contractors,”said José Luis Gómez del Prado, who currentlychairs the Working Group. The Working Group,which has been monitoring their impact on

April-June 2010 5

human rights and their lack of accountability,stressed that there is a “clear gap” regarding thejurisdiction applicable to private military andsecurity contractors. “Employees of privatemilitary and security companies cannot usuallybe considered as mercenaries, and theiractivities are not covered by the GenevaConventions or the International Conventionagainst the recruitment, use, financing andtraining of mercenaries,” stated Mr. Gómez delPrado. Support for a legally binding treaty hasbeen expressed by regional bodies, such as theParliamentary Assembly of the Council ofEurope, citing concerns at the lack oftransparency and accountability of privatemilitary and security companies. The WorkingGroup is calling for support for the treaty in aletter addressed to all Member States. It willsubmit its report on the progress achieved inelaborating the draft legal instrument to theGeneva-based UN Human Rights Council inSeptember 2010.

GENERAL ASSEMBLY ELECTS14 COUNTRIES TO SERVE ONUN HUMAN RIGHTS COUNCIL

Fourteen countries were elected to serve on theHuman Rights Council (HRC) for three-yearterms starting next month after one round ofballoting, on 13 May 2010. Angola, Libya,Mauritania and Uganda were chosen to fill thefour vacant African seats on the 47-memberpanel, according to a formula that allots seatsamong regions. The two seats from the LatinAmerican and Caribbean region went to Ecuadorand Guatemala. In the Eastern Europeancategory, the two available seats went to Polandand the Republic of Moldova; in WesternEurope, to Spain and Switzerland. Fourcountries contested the positions distributed toAsian States, with Malaysia, Maldives, Qatarand Thailand winning the most votes to join thepanel. The results were announced by thecurrent President of the General Assembly, AliTreki. Elected members will serve for three-yearperiods and cannot run for immediate re-electionafter two consecutive terms. Overall, the 47members include 13 from Africa, 13 from Asia,six from Eastern Europe, eight from LatinAmerica and the Caribbean, and seven fromWestern Europe and Other States.

TWO MORE NATIONS RATIFIEDTHE CTBT

The Central African Republic (CAR) and Trinidadand Tobago, on 26 May 2010, ratified theComprehensive Nuclear-Test-Ban Treaty(CTBT) that prohibits all nuclear tests, bringing

the total number of countries bound by the globalban to 153. The Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO) is building averification regime to monitor compliance with thetreaty. When complete, 337 facilities around theworld will monitor underground, the oceans andthe atmosphere for any sign of a nuclearexplosion. The CTBT, which opened forsignature in 1996, has been called “afundamental building block for a world free ofnuclear weapons,” by Secretary-General BanKi-moon. Of the 182 countries that have signedthe treaty, 153 have ratified it, as of now. Thereare 44 countries that have to ratify the treaty for itto enter into force, of which 35 have alreadydone so. The remaining nine are China, theDemocratic People’s Republic of Korea (DPRK),Egypt, India, Indonesia, Iran, Israel, Pakistanand the United States. Indonesia announced on 3May 2010 that it had initiated the CTBT ratificationprocess. In addition to Indonesia’sannouncement, Papua New Guinea said it is inthe process of “formally ratifying the CTBT” andGuatemala expressed its wish to “promptly”ratify the treaty.

JUSTICE JON KAMANDA RE-ELECTED AS HEAD OF SPECIALCOURT FOR SIERRA LEONE(SCSL)

Justice Jon Kamanda of Sierra Leone, on 31May 2010, has been re-elected to serve asPresident of the United Nations-backed warcrimes tribunal set up to deal with the worst actscommitted during the long and brutal civil war inthe West African nation. This will be his secondterm as the Presiding Judge of the appealschamber, a post which automatically makes himthe President of the Special Court for SierraLeone (SCSL). Justice Emmanuel Ayoola ofNigeria, who previously served as the court’sPresident, also has been re-elected as Vice-President.

ENFORCEMENT OF JAIL TERMSIMPOSED BY INTERNATIONALCRIMINAL COURT

Three European countries, on 1 June 2010,signed an agreement with the InternationalCriminal Court (ICC) to enforce the tribunaljudges’ sentences of imprisonment, taking thenumber of countries that are willing to detainpeople convicted by the ICC to five.Representatives of Belgium, Denmark andFinland signed the agreement during a ceremonyin Kampala, Uganda, where the reviewconference of the Rome Statute – which set upthe ICC – took place. Austria and the United

Kingdom have previously entered into similaragreements with the court to enforce sentences.

ICC REVIEW CONFERENCE ATKAMPALA

More than 80 nations have reaffirmed theircommitment to the Rome Statute, which led tothe founding of the International Criminal Court(ICC), emphasizing the crucial role of justice inachieving sustainable peace. The so-calledKampala Declaration was adopted, on 1 June2010, at the end of the general debate segment ofthe two-week long ICC review conference underway in the Ugandan capital. During the debate,84 States, along with Palestine, internationalorganizations and others, reiterated their supportfor the Court’s mission of tackling impunity,bringing justice to victims and deterring futureatrocities. In the Declaration, States underscoredtheir determination to end impunity for perpetratorsof the most serious crimes and pledged toenhance efforts to promote victims’ rights underthe Rome Statute.

Member States of the International CriminalCourt (ICC) have also agreed on whatconstitutes the crime of aggression, a long-running source of contention in international law,after nearly one decade of discussion. Nationsagreed to amend the Rome Statute, which set upthe Court, to define the crime of aggression as“the planning, preparation, initiation or execution,by a person in a position effectively to exercisecontrol over or to direct the political or militaryaction of a State, of an act of aggression which,by its character, gravity and scale, constitutes amanifest violation of the Charter of the UnitedNations.” Under the resolution adopted at the endof the two-week-long ICC review conference inKampala (Uganda) on 14 June 2010, blockadesof ports or coasts of a State by armed forces ofanother State, as well as an invasion or attackby troops of one State on the territory of another,are considered as acts of aggression under theStatute. Nations agreed that the ICC canexercise jurisdiction over crimes of aggression,committed one year after 30 States Parties haveratified the newly-made amendment. This will,however, not happen until at least 2017, whenStates meet against to review the amendment,according to the new resolution adoptedKampala. It also noted that if the ICC Prosecutorwishes to move forward with an investigation ofpossible cases, he or she will take the case tothe Security Council. Once that body hasdetermined that an act of aggression has takenplace, the Prosecutor will move forward with aprobe. So far 111 countries have become partiesto the Statute, while 37 others have signed butnot yet ratified it.

6 April-June 2010

ICTY JAILS TWO BOSNIANSERBS FOR LIFE OVERSREBRENICA MASSACRE

International Criminal Tribunal for the formerYugoslavia (ICTY), on 10 June 2010, handed outlife terms in jail to two former top Bosnian Serbmilitary officers after convicting them of genocidefor their role in the 1995 massacre of nearly8,000 Muslim men and boys in the UN safehaven of Srebrenica, the most notorious episodeof the Balkan conflicts of the 1990s. In the largestever case before the ICTY, judges alsosentenced five other former military and policeofficers to lengthy terms in prison for their role inthe killings at Srebrenica and another safe havenof •epa – events the court said wereunprecedented in scale and brutality. The ICTYfound that at least 5,336 people are confirmed tohave been killed as a result of the fall ofSrebrenica in July 1995, but that other evidenceindicates the death toll could be as high as 7,826.Srebrenica and •epa had been declared safehavens for civilians by the UN two years beforethe massacres, but they were both overrun bythe Bosnian Serb forces.

The attacks were carried out following the issuingof a “supreme command directive” in March1995 by the then Bosnian Serb presidentRadovan Karad•ic in which he set out thecriminal plan aimed at forcing the BosnianMuslims of Srebrenica and •epa to leave theenclaves. Mr. Karad•ic is himself on trial for hisrole in the Balkan wars.

JOSEPH DEISS, FORMER SWISSLEADER, ELECTED AS NEXTPRESIDENT OF UN GENERALASSEMBLY

Joseph Deiss, a former leader of Switzerlandand former economic professor, who wasinstrumental in his country joining the UnitedNations eight years ago was chosen, on 11 June2010, by the world body’s 192 Member States toserve as the next President of the GeneralAssembly. Joseph Deiss, 64, will succeed AliTreki when he takes over the presidency in mid-September as the General Assembly’s 65th

session begins.

NEW PRESIDENT AND SPECIALRAPPORTEURS CHOSEN TOTHE HUMAN RIGHTS COUNCIL

Sihasak Phuangketkeow, Thailand’sAmbassador to the United Nations Office inGeneva on 21 June 2010, was named as thenew President of the UN Human Rights

Council. Sihasak Phuangketkeow becomes thefifth president of the 47-member Council, whichreplaced the earlier UN Commission on HumanRights amidst concerns about its effectiveness.He was the candidate of the panel’s Asianmembers. Mr. Phuangketkeow succeeds Alexvan Meeuwen of Belgium as the Council’sPresident. Meanwhile, on 18 June 2010, theCouncil appointed several new specialrapporteurs who will focus on monitoring humanrights as they relate to certain issues orcountries. Christof Heyns becomes the SpecialRapporteur on extrajudicial, summary or arbitraryexecutions, succeeding Philip Alston; HeinerBielefeldt replaces Asma Jahangir as the SpecialRapporteur on freedom of religion or belief; andKishore Singh takes over from Vernor MuñozVillalobos as the Special Rapporteur on the rightto education. Calin Georgescu is now SpecialRapporteur on the adverse effects of themovement and dumping of toxic and dangerousproducts and wastes on the enjoyment of humanrights, succeeding Okechukwu Ibeanu; FatsahOuguergouz replaces Akich Okola as theIndependent Expert on the situation of humanrights in Burundi; and Marzuki Darusman is thenew Special Rapporteur on the situation ofhuman rights in the Democratic People’sRepublic of Korea (DPRK), taking over from VititMuntarbhorn. Special Rapporteurs andIndependent Experts report to the Human RightsCouncil and serve as both in an independent andunpaid capacity.

UN APPOINTS NEW JUDGE FORICJ AND EXTENDS TERMS OFJUDGES FOR ICTY AND ICTR

The Security Council and the General Assembly,on 29 June 2010, elected Xue Hanqin to fill avacancy in the International Court of Justice(ICJ), while the Council separately extended theterms of judges of the UN war crimes tribunalsfor the 1994 genocide in Rwanda and the 1990sconflicts in the former Yugoslavia. The Counciland the General Assembly each voted to electMs. Xue, who comes from China, to succeedShi Jiuyong, who resigned last month. Ms. Xuewill hold office for the remainder of Judge Shi’sterm, which expires on 5 February 2012.

Meanwhile, the terms of two permanent judges ofthe International Criminal Tribunal for Rwanda(ICTR) – Mehmet Güney of Turkey andAndrésia Vaz of Senegal, who are members ofthe appeals chamber – were extended by theSecurity Council until 31 December 2012 or untilthe completion of the cases to which they areassigned. Five permanent judges and membersof the trial chamber had their terms extended until

31 December 2011 or until they completed casesassigned to them. They are Charles MichaelDenis Byron (Saint Kitts and Nevis), KhalidaRachid Khan (Pakistan), Arlette Ramaroson(Madagascar), William Sekule (Tanzania) andBakhtiyar Tuzmulakhamedov (Russia). TheCouncil also extended the terms of nine ad litemjudges – who are limited to particular cases –who are members of the trial chamber until 31December 2011 or until they completed theirassigned cases. They are Aydin Sefa Akay(Turkey), Florence Rita Arrey (Cameroon),Solomy Balungi Bossa (Uganda), Vagn Joensen(Denmark), Gberdao Gustave Kam (BurkinaFaso), Lee Gacugia Muthoga (Kenya), Seon KiPark (Republic of Korea), Mparany MamyRichard Rajohnson (Madagascar) and EmileFrancis Short (Ghana).

Meanwhile, Council members also adopted aresolution extending the terms in office of 13permanent and 10 ad litem judges with theInternational Criminal Tribunal for the formerYugoslavia (ICTY). The permanent judgeswhose terms were extended are: Carmel Agius(Malta), Liu Daqun (China), Theodor Meron(United States), Fausto Pocar (Italy), PatrickRobinson (Jamaica), Jean-Claude Antonetti(France), Guy Delvoie (Belgium), Burton Hall(the Bahamas), Christoph Flügge (Germany), O-Gon Kwan (Republic of Korea), Bakone JusticeMoloto (South Africa), Howard Morrison (UnitedKingdom) and Alphons Orie (the Netherlands).The ad litem judges whose terms were extendedare: Melville Baird (Trinidad and Tobago), PedroDavid (Argentina),Elizabeth Gwaunza(Zimbabwe), Frederik Harhoff (Denmark), FlaviaLattanzi (Italy), Antoine Kesia-Mbe Mindua(Democratic Republic of the Congo), PriscaMatimba Nyambe (Zambia), Michèle Picard(France), Árpád Prandler (Hungary) and StefanTrechsel (Switzerland).

ICJ DELIVERS JUDGMENT ONPULP MILLS ON THE RIVERURUGUAY (ARGENTINA V.URUGUAY)

On 4 May 2006, the Argentine Republic(hereinafter “Argentina”) filed in the InternationalCourt of Justice (ICJ) an application institutingproceedings against the Eastern Republic ofUruguay (hereinafter “Uruguay”) in respect of adispute concerning the breach, allegedlycommitted by Uruguay, of obligations under theStatute of the River Uruguay (United Nations,Treaty Series (UNTS), Vol. 1295, No. I-21425,p. 340), a treaty signed by Argentina andUruguay at Salto (Uruguay) on 26 February

April-June 2010 7

1975 and having entered into force on 18September 1976 (hereinafter the “1975 Statute”).In the Application, Argentina stated that thisbreach arose out of “the authorization,construction and future commissioning of twopulp mills on the River Uruguay”, with referencein particular to “the effects of such activities onthe quality of the waters of the River Uruguayand on the areas affected by the river”.

The ICJ in its judgment of April 2010 concludedthat Uruguay breached its procedural obligationsunder the 1975 Statute. Argentina first requestedthe Court to find that Uruguay has violated theprocedural obligations incumbent on it under the1975 Statute and has thereby engaged itsinternational responsibility. Argentina furtherrequested the Court to order that Uruguayimmediately cease these internationally wrongfulacts. The Court considered that its finding ofwrongful conduct by Uruguay in respect of itsprocedural obligations per se constitutes ameasure of satisfaction for Argentina. AsUruguay’s breaches of the procedural obligationsoccurred in the past and have come to an end,there is no cause to order their cessation.

Argentina nevertheless argued that a finding ofwrongfulness would be insufficient as reparation,even if the Court were to find that Uruguay hasnot breached any substantive obligation under the1975 Statute but only some of its proceduralobligations. To this end, the Orion (Botnia) millshould be dismantled. According to Argentina,restitutio in integrum is the primary form ofreparation for internationally wrongful acts.

Uruguay maintained that restitution would not bean appropriate form of reparation if Uruguay isfound responsible only for breaches of proceduralobligations. Uruguay argued that the dismantlingof the Orion (Botnia) mill would at any rateinvolve a “striking disproportion between thegravity of the consequences of the wrongful actof which it is accused and those of the remedyclaimed”, and that whether or not adisproportionate burden would result fromrestitution must be determined as of when theCourt rules, not, as Argentina claims, as of thedate it was seized.

The Court recalled that customary internationallaw provides for restitution as one form ofreparation for injury, restitution being the re-establishment of the situation which existedbefore occurrence of the wrongful act. The Courtfurther recalled that, where restitution is materiallyimpossible or involves a burden out of allproportion to the benefit deriving from it, reparationtakes the form of compensation or satisfaction, oreven both (see Gabèíkovo-Nagymaros Project

(Hungary/Slovakia), Judgment, I.C.J. Reports1997, p. 81, para. 152; Legal Consequences ofthe Construction of a Wall in the OccupiedPalestinian Territory, Advisory Opinion, I.C.J.Reports 2004 (I), p. 198, paras. 152-153;Application of the Convention on the Preventionand Punishment of the Crime of Genocide(Bosnia and Herzegovina v. Serbia andMontenegro), Judgment, I.C.J. Reports 2007, p.233, para. 460; see also Articles 34 to 37 of theInternational Law Commission Articles on theResponsibility of States for InternationallyWrongful Acts).

Like other forms of reparation, restitution must beappropriate to the injury suffered, taking intoaccount the nature of the wrongful act havingcaused it. As the Court has made clear, “[w]hatconstitutes ‘reparation in an adequate form’clearly varies depending upon the concretecircumstances surrounding each case and theprecise nature and scope of the injury, since thequestion has to be examined from the viewpointof what is the ‘reparation in an adequate form’ thatcorresponds to the injury” (Avena and OtherMexican Nationals (Mexico v. United States ofAmerica), Judgment, I.C.J. Reports 2004 (I), p.59, para. 119).

As Uruguay has not breached substantiveobligations arising under the 1975 Statute, theCourt is likewise unable, for the same reasons,to uphold Argentina’s claim in respect ofcompensation for alleged injuries suffered invarious economic sectors, specifically tourismand agriculture.

Argentina further requested the Court to adjudgeand declare that Uruguay must “provideadequate guarantees that it will refrain in futurefrom preventing the Statute of the River Uruguayof 1975 from being applied, in particular theconsultation procedure established by Chapter IIof that Treaty”.

The Court fails to see any special circumstancesin the present case requiring the ordering of ameasure such as that sought by Argentina. Asthe Court has recently observed: “[W]hile theCourt may order, as it has done in the past, aState responsible for internationally wrongfulconduct to provide the injured State withassurances and guarantees of non-repetition, itwill only do so if the circumstances so warrant,which it is for the Court to assess.

As a general rule, there is no reason to supposethat a State whose act or conduct has beendeclared wrongful by the Court will repeat thatact or conduct in the future, since its good faithmust be presumed. There is thus no reason,except in special circumstances . . . to order [the

provision of assurances and guarantees of non-repetition].”

Uruguay, for its part, requested the Court toconfirm its right “to continue operating the Botniaplant in conformity with the provisions of the 1975Statute”. Argentina contends that this claimshould be rejected, in particular because it is acounter-claim first put forward in Uruguay’sRejoinder and, as such, is inadmissible by virtueof Article 80 of the Rules of Court.

There is no need for the Court to decide theadmissibility of this claim; it is sufficient toobserve that Uruguay’s claim is without anypractical significance, since Argentina’s claims inrelation to breaches by Uruguay of itssubstantive obligations and to the dismantling ofthe Orion (Botnia) mill have been rejected.

Lastly, the Court pointed out that the 1975 Statuteplaces the Parties under a duty to co-operatewith each other, on the terms therein set out, toensure the achievement of its object andpurpose. This obligation to co-operateencompasses ongoing monitoring of an industrialfacility, such as the Orion (Botnia) mill. In thatregard the Court notes that the Parties have along-standing and effective tradition of co-operation and co-ordination through CARU. Byacting jointly through CARU, the Parties haveestablished a real community of interests andrights in the management of the River Uruguayand in the protection of its environment. Theyhave also co-ordinated their actions through thejoint mechanism of CARU, in conformity with theprovisions of the 1975 Statute, and foundappropriate solutions to their differences within itsframework without feeling the need to resort to thejudicial settlement of disputes provided for inArticle 60 of the Statute until the present casewas brought before the Court.

The ICJ: By thirteen votes to one, finds that theEastern Republic of Uruguay has breached itsprocedural obligations under Articles 7 to 12 of the1975 Statute of the River Uruguay and that thedeclaration by the Court of this breach constitutesappropriate satisfaction.

RECENT ARTICLES

Baxi, Upendra, “Towards Understanding theDiplomacy of Human Rights: A Review Essay,”Indian Journal of International Law, vol. 50, no. 1(2010), pp. 1-13.

Chimni, B. S., “Prolegomena to a ClassApproach to International Law”, EuropeanJournal of International Law, vol. 21, no. 1(2010),pp. 57-82.

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CONTENTSARTICLES

On Being Accountable in a KaleidoscopicWorld

Edith Brown Weiss

Benefit Sharing of International Watercourses:Equitable Process and Sustainable Outcome

Katak Malla

Because the Cart Situates the Horse:Unrecognized Movements Underlying theIndian Supreme Court’s Internalization ofInternational Environmental Law

Saptarishi Bandopadhyay

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Air Carrier Liability under Polish Air Law

Anna Konert

10th V. K. Krishna Menon Memorial Lecture on“Mission Impossible? – Some ThoughtsTowards UN Charter Reform”

Upendra Baxi

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Naples Declaration on Piracy 2009

Security Council Imposes Additional Sanctionson Iran, 6334th Meeting

Note on Agreement and MOUs Signed withCanada during PM’s Visit, 27 July 2010

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Eric A. Posner, Law and Social Norms

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Wing Commander U. C. Jha (Retd), IndianArmed Forces: Socio-Legal Perspectives

Vinai Kumar Singh

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Antunes, Nuno Marques, Towards theConceptualisation of Maritime Delimitation: Legaland Technical Aspects of a Political Process(Martinus Nijhoff Publishers, Leiden, 2003).

Bhuiyan, Sharif, National Law in WTO Law:Effectiveness and Good Governance in theWorld Trading System (Cambirdge UniversityPress, Cambridge, 2007).

Boothby, William H., Weapons and the Law ofArmed Conflict (Oxford University Press,Oxford, 2009).

Castellino, Joshua, Minority Rights in Asia: AComparative Legal Analysis (Oxford UniversityPress, Oxford, 2006).

Chakravarty, Suhash, V.K. Krishna Menon andthe India League 1925-47, vol. 1 (Har-AnandPublication Pvt. Ltd., New Delhi,1997).

Chakravarty, Suhash, V.K. Krishna Menon andthe India League 1925-47, vol. 2 (Har-AnandPublication Pvt. Ltd., New Delhi,1997).

Fletcher, George P., Defending Humanity: WhenForce is Justified and Why (Oxford UniversityPress, Oxford, 2008).

Fox, Hazel, The Law of State Immunity (OxfordUniversity Press, Oxford, 2008).

Hensel, Howard, The Legitimate Use of MilitaryForce: The Just War Tradition and theCustomary Law of Armed Conflict (AshgatePublishing, USA, 2008).

Hong, Seoung-Yong, Maritime BoundaryDisputes, Settlement Process and the Law ofthe Sea (Martinus Nijhoff Publishers, Leiden,2009).

Kolb, Robert, Case Law on Equitable MaritimeDelimitation: Digest and Commentaries(Martinus Nijhoff Publisher, Hague, 2003).

Mettraux, Guenael, The Law of CommandResponsibility (Oxford University Press,Oxford, 2009).

Narayanan, P., Intellectual Property Law(Eastern Law House, Kolkota, 2009).

Reus-Smit, Christian, The Oxford Handbook ofInternational Relations (Oxford UniversityPress, Oxford, 2008).

Sinha, Manoj Kumar, International Criminal Lawand Human Rights (Manak Publication, NewDelhi, 2010).

Steiner, Henry J., International Human Rights inContext: Law, Politics, Morals Text andMaterials (Oxford University Press Oxford,2007).

Thomas, Chantal, Developing Countries in theWTO Legal System (Oxford University Press,Oxford, 2009).

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

Verschraegen, B., International Encyclopedia ofLaws: Private International Law, vol. 1, 2 and 3(Kluwer Law International, Netherlands, 2009).