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INTERNATIONALLAW REPORTS

Volume 154

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Cambridge University Press978-1-107-03677-2 - International Law Reports: Volume 154Edited by Sir Elihu Lauterpacht, Sir Christopher Greenwood and Karen LeeFrontmatterMore information

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ANNUAL DIGEST AND REPORTSOF PUBLIC INTERNATIONAL LAW CASES

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

Vols. 151-4 Edited by Sir Elihu Lauterpacht, CBE, QC, LLD,Sir Christopher Greenwood, CMG, QC,and K. L. Lee






Lauterpacht Centre for International LawUniversity of Cambridge

INTERNATIONALLAW REPORTS

VOLUME154

Edited by

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

Bencher of Gray’s Inn

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

Bencher of Middle Temple

and

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

Fellow of Girton College, Cambridge

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






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CONTENTS

Page

Preface vii

Editorial Note ix

Table of Cases (alphabetical) xiii

Table of Cases (according to courts and countries) xv

Digest (main headings) xvii

Digest of Cases Reported in Volume 154 xix

Table of Treaties xxxi

Reports of Cases 1

Index 775

v






PREFACE

The present volume opens with the February 2013 Award of the Court ofArbitration in the Indus Waters Kishenganga Arbitration (an earlier Orderof the Court of Arbitration was published in 150 ILR 311). It also con-tains the important Advisory Opinion OC-16/99 of the Inter-AmericanCourt of Human Rights on the Right to Information on Consular Assistance.National jurisprudence is reflected in decisions from the courts of England(Adams, Al-Haq and Apostolides; the Court of Appeal judgment in Apostolidesis reproduced together with the preliminary ruling of the Court of Justice ofthe European Communities), Canada (Hashemi), Malawi (Banda), North-ern Ireland (MacDermott and McCartney) and the United States (Abbott,Zivotofsky, Dire, Habyarimana and Hamdan).

The editors wish to thank Judge Schwebel, President of the Court of Arbi-tration in Indus Waters, and Mr Aloysius Llamzon of the Permanent Courtof Arbitration, for supplying the text of the Award, and Ms Emily Willmott,Assistant Legal Adviser, Foreign and Commonwealth Office, for supplyingthe text of Al-Haq. In addition, we are most grateful to the many peoplewhose work has made this volume possible. Miss Maureen MacGlashan,CMG compiled the Table of Treaties and the Index. Mrs Diane Ilott checkedthe copy and Mrs Jenny Macgregor read the proofs. Ms Karen Lee wrote thesummaries of the cases from the Inter-American Court of Human Rights,England, Canada, Malawi, Northern Ireland and the United States, preparedthe Tables of Cases and Digest and saw the volume through the press.

Finally, our thanks go to all the others who have worked to completethis volume, particularly our publishers, Cambridge University Press, andtypesetters, Aptara, and their staff.

E. LAUTERPACHTLauterpacht Centre

for International Law,University of Cambridge

C. J. GREENWOODThe Peace Palace,The Hague

K. L. LEELauterpacht Centre

for International Law,University of Cambridge

March 2013

vii






EDITORIAL NOTE

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

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

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

ix






x EDITORIAL NOTE

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

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

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

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






EDITORIAL NOTE xi

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

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

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

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

Consolidated Index and TablesA Consolidated Index and a Consolidated Tables of Cases and Treatiesfor volumes 1-80 were published in two volumes in 1990 and 1991. Afurther volume containing the Consolidated Index and ConsolidatedTables of Cases and Treaties for volumes 81-100 was published in1996. A Consolidated Index, a Consolidated Tables of Cases and aConsolidated Table of Treaties for volumes 1-125 were published in2004. Volume 150 contains Consolidated Tables of Cases for volumes126-150.






TABLE OF CASES REPORTEDALPHABETICAL

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

Abbott v. Abbott 639Adams v. Secretary of State for Justice 533Al-Haq v. Secretary of State for Foreign and

Commonwealth Affairs 423, 442 (note)Apostolides v. Orams and Another 443, 450,

498

Banda, Re 410

Consular Assistance in the Framework ofthe Guarantees of the Due Process of Law,Right to Information on (Advisory Opin-ion OC-16/99) 248

Dire Case 700, 738 (note)

Estate of the Late Kazemi v. Islamic Republicof Iran and Others 351

Habyarimana and Ntaryamira v. Kagame739, 750 (note)

Hamdan v. United States of America 751Hasan Case 700

Indus Waters Kishenganga Arbitration(Islamic Republic of Pakistan v. Republicof India) (Partial Award) 1

Iran, Islamic Republic of and Others v.Hashemi and Estate of the Late Kazemi351

Kazemi (Estate of the Late) v. Islamic Repub-lic of Iran and Others 351

McCartney, In re 533MacDermott, In re 533

Orams and Another v. Apostolides (Case C-420/07) 443, 450, 498

R (Adams) v. Secretary of State for Justice533

R (Al-Haq) v. Secretary of State for For-eign and Commonwealth Affairs 423,442 (note)

Right to Information on Consular Assis-tance in the Framework of the Guaran-tees of the Due Process of Law (AdvisoryOpinion OC-16/99) 248

United States of America v. Ali 700United States of America v. Dire 700United States of America v. Gurewardher

700United States of America v. Hasan 700United States of America v. Umar 700

Zivotofsky v. Clinton, Secretary of State 674

xiii






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

COUNTRIES (MUNICIPAL CASES)

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

I. DECISIONS OF INTERNATIONAL TRIBUNALS

Court of Arbitration

2013Indus Waters Kishenganga Arbitration

(Islamic Republic of Pakistan v. Republicof India) (Partial Award) 1

Court of Justice of the European Communities

2009Orams and Another v. Apostolides (Case

C-420/07) 443, 450

Inter-American Court of Human Rights

1999The Right to Information on Consular

Assistance in the Framework of the Guar-antees of the Due Process of Law (Advi-sory Opinion OC-16/99) 248

II. DECISIONS OF MUNICIPAL COURTS

Canada

2012Islamic Republic of Iran and Others v.

Hashemi and Estate of the Late Kazemi;Estate of the Late Kazemi v. IslamicRepublic of Iran and Others 351

Malawi

2008Re Banda 410

United Kingdom, England

2009The Queen on the Application of Al-Haq

v. Secretary of State for Foreign andCommonwealth Affairs 423, 442 (note)

2010Apostolides v. Orams and Another 443, 498

2011Regina (Adams) v. Secretary of State for

Justice 533

United Kingdom, Northern Ireland

2011In re MacDermott; In re McCartney 533

United States of America

2010Abbott v. Abbott 639

2011Habyarimana and Ntaryamira v. Kagame

739, 740, 750 (note)

xv






xvi TABLE OF CASES

2012Habyarimana and Ntaryamira v. Kagame

739, 747, 750 (note)Hamdan v. United States of America 751United States of America v. Dire; United

States of America v. Ali; United States

of America v. Umar; United States ofAmerica v. Gurewardher; United Statesof America v. Hasan 700, 738 (note)







DIGEST OF CASESList of Main Headings

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

Air

Aliens

Arbitration

Canals

Claims

Comity

Conciliation

Consular Relations

Damages

Diplomatic Relations

Economics, Trade and Finance

Environment

Expropriation

Extradition

Governments

Human Rights

International Court of Justice

International Criminal Law

International Organizations

International Tribunals

Jurisdiction

Lakes and Landlocked Seas

Nationality

Recognition

Relationship of International Law andMunicipal Law

Reprisals and Countermeasures

Rivers

Sea

Sources of International Law

Space

State Immunity

State Responsibility

State Succession

States

Territory

Terrorism

Treaties

War and Armed Conflict

xvii






DIGEST OF CASESREPORTED IN VOLUME 154

ArbitrationPage

Jurisdiction — Admissibility — Scope of dispute — IndusWaters Treaty, 1960 — Procedure for settlement of disputes byarbitration — Appointment of seven-member Court ofArbitration — Disputes involving technical issues — Whethercapable of resolution by arbitration — Whether requiring refer-ence to neutral expert — Court of Arbitration

Indus Waters Kishenganga Arbitration (Islamic Republic of Paki-stan v. Republic of India) (Partial Award) 1

Consular RelationsRight of access to consul for detained person — Right to beinformed of right of access — Right of consul to be informedof detention — Vienna Convention on Consular Relations,1963, Article 36 — Character of rights conferred by Article36 — Whether human rights of the individual detainee —Inter-American Court of Human Rights

The Right to Information on Consular Assistance in the Frameworkof the Guarantees of the Due Process of Law (Advisory OpinionOC-16/99) 248

EnvironmentPrinciples of customary international environmental law —Relevance to interpretation and application of treaty on use ofriver waters — Effect of hydro-electric plant on downstream useof river waters — Court of Arbitration


Human RightsRemedies — Right to compensation — Statutory right formiscarriages of justice — Section 133 of Criminal Justice Act1988 — Interpretation — Scope — Meaning of “miscarriage ofjustice” in first and second appeals — Satisfactory test — Whether

xix






xx DIGEST OF CASES

Human Rights (cont.)

proof of innocence necessary — Meaning of “a new or newlydiscovered fact” in first appeal — Article 14(6) of InternationalCovenant on Civil and Political Rights, 1966 — Whether appel-lants entitled to compensation under Section 133 of Act — UnitedKingdom, Supreme Court

Regina (Adams) v. Secretary of State for Justice; In re MacDermott;In re McCartney 533

Right to a fair hearing — Right to liberty — Whether Section3(1) of SIA compatible with Section 2(e) of Canadian Bill ofRights — Whether Section 3(1) of SIA compatible with Section 7of Canadian Charter of Rights and Freedoms — Canada, QuebecCourt of Appeal

Islamic Republic of Iran and Others v. Hashemi and Estate of theLate Kazemi; Estate of the Late Kazemi v. Islamic Republic of Iranand Others 351

Right to information on consular assistance — Relationship tominimum guarantees of due process of law — Inherent rights ofindividual as recognized in International Covenant on Civil andPolitical Rights, 1966, American Declaration, 1948, Charter ofOrganization of American States, 1948, as amended — Whethernon-observance of right to information on consular assistance con-stituting violation of rights in Article 14 of ICCPR — Impositionof death penalty where non-observance of right to information —Whether violating right not to be arbitrarily deprived of one’slife — Article 4 of American Convention — Article 6 ofICCPR — Juridical consequences of violation — Inter-AmericanCourt of Human Rights


Right to information on consular assistance — Right to consularcommunication — Right to consular notification — Right toconsular assistance — Article 36 of Vienna Convention on Con-sular Relations, 1963 — Relationship to protection of humanrights in American States — Characteristics of rights — Whetherindividual rights — Whether Vienna Convention on ConsularRelations treaty concerning protection of human rights in Amer-ican States — Enforceability of rights — Whether subject toprotests of sending State — Meaning of “without delay” in






DIGEST OF CASES xxi

Article 36(1)(b) — Crime punishable by death penalty — Rele-vance — Article 36 of Vienna Convention on Consular Relations,1963 — Inter-American Court of Human Rights


Torture — Damages — Civil proceedings against foreign State foracts of torture — Immunity from jurisdiction — Exceptions —Prohibition of torture constituting jus cogens norm — Whethercustomary international law rule of State immunity no longerextending to torture — Whether Canada State Immunity Act1985 (“SIA”) applying to acts of torture — Article 14(1) of Con-vention against Torture, 1984 — Whether imposing obligationon signatories to provide civil remedy for acts of torture includ-ing those committed outside its jurisdiction — Canada, QuebecCourt of Appeal


International OrganizationsEuropean Union — Member States — United Kingdom Mem-ber State — Republic of Cyprus acceding to European Union in2004 — Council Regulation (EC) No 44/2001 on jurisdictionand the recognition and enforcement of judgments in civil andcommercial matters — Scope — Republic of Cyprus not exercis-ing sovereign jurisdiction over northern Cyprus — Article 1(1)of Protocol No 10 to Act of Accession suspending application ofacquis communautaire to northern Cyprus — Dispute concerningtitle to land in northern Cyprus — Court in Republic of Cyprusrendering judgments on title to disputed land — Recognition andenforcement of Cypriot judgments — Whether Article 1(1) ofProtocol precluding United Kingdom court from recognizing andenforcing Cypriot judgments — Preliminary ruling from Court ofJustice of the European Communities — Whether United King-dom having obligation under Community law to recognize andenforce Cypriot judgments — Article 34 of Regulation prohibitingrecognition manifestly contrary to public policy — Internationalpublic policy — Relevance — United Kingdom’s internationalobligations — Whether recognition of Cypriot judgments liableto infringe fundamental principle in United Kingdom legalorder — Whether Cypriot judgments enforceable in United






xxii DIGEST OF CASES

International Organizations (cont.)

Kingdom — England, Court of Appeal and Court of Justice of theEuropean Communities

Apostolides v. Orams and Another; Orams and Another v. Apos-tolides (Case C-420/07) 443

International TribunalsInter-American Court of Human Rights — Advisoryjurisdiction — Whether Court possessing necessary competenceto render advisory opinion — Member State of Organizationof American States requesting opinion — Whether fulfillingrequirements stipulated in Court’s Rules of Procedure in itsapplication — Considerations of Court in deciding whether toaccept or reject request for opinion — Scope of Article 64(1) ofAmerican Convention on Human Rights, 1969 — Whether Courthaving authority to interpret international treaties other thanAmerican Convention on Human Rights — Mexico’s questionsinvolving international instruments — Interpretation of interna-tional instruments — Whether rendering opinion would weakencontentious jurisdiction or lessen protection afforded to victim —Whether reasons to decline request for opinion — Contentiouscases before Inter-American Commission and International Courtof Justice — Relevance — Article 64(1) of American Conven-tion on Human Rights, 1969 — Inter-American Court of HumanRights


JurisdictionUniversal jurisdiction — Piracy — Universal jurisdictioncrime — Whether United States Congress intending to definepiracy as universal jurisdiction crime — United States Court ofAppeals, Fourth Circuit

United States of America v. Dire; United States of America v. Ali;United States of America v. Umar; United States of America v.Gurewardher; United States of America v. Hasan 700

Relationship of International Law and Municipal LawCustomary international law — Whether breach of UnitedKingdom’s international obligations — Compliance by United






DIGEST OF CASES xxiii

Kingdom Government — Role of domestic courts — Justiciabil-ity — Conduct of foreign affairs — Rule of non-justiciability ofhigh policy matters — Institutional competence — Comity —Elected representatives in democracy — Whether for domes-tic courts to decide appropriate foreign policy towards Israel —Whether claimant having standing to bring claim — England,High Court, Divisional Court

The Queen on the Application of Al-Haq v. Secretary of State forForeign and Commonwealth Affairs 423

Recognition — Sovereignty — Status of Jerusalem —Jurisdiction — Subject-matter jurisdiction — Whether disputejusticiable — Political question doctrine — Petitioner UnitedStates citizen born in Jerusalem — Petitioner requesting placeof birth in passport to be designated as Israel in accordance withSection 214(d) of Foreign Relations Authorization Act, Fiscal Year2003 — State Department policy not to take position on politicalstatus of Jerusalem — Passport issued listing Jerusalem as birth-place — Petitioner filing claim against State Department invokingAct — Whether petitioner’s claim presenting political question —Separation of powers — Foreign affairs — Constitution delegat-ing foreign affairs powers to Executive and Legislature — Whetherpetitioner asking Court to enforce specific statutory right — Con-stitutionality of Section 214(d) of Foreign Relations AuthorizationAct, Fiscal Year 2003 — United States Supreme Court


State immunity — Canada State Immunity Act 1985 (“SIA”) —Interpretation — Scope — Whether SIA complete and clear co-dification of law of State immunity in Canada — Customary inter-national law — Prohibition of torture — Jus cogens norm — Effecton SIA — Whether acts of torture falling within scope of Stateimmunity under customary international law — Whether conflictbetween rules of jus cogens and rules of State immunity —Judgment of International Court of Justice — Whether SIA apply-ing to acts of torture — Canada, Quebec Court of Appeal


Treaties — Convention against Torture, 1984 — Whether Article14(1) of Convention imposing obligation on signatories to providecivil remedy for acts of torture including those committed outsideits jurisdiction — Whether any subsequent binding developments






xxiv DIGEST OF CASES

Relationship of International Law and Municipal Law (cont.)

in international law — Means of effecting change in Canadianlaw — Canada, Quebec Court of Appeal


Treaties — Convention on the Rights of the Child, 1989 — AfricanCharter on the Rights and Welfare of the Child, 1990 — MalawiAdoption of Children Act 1949 — Interpretation — Inter-countryadoption — Residency requirement in Section 3(5) of Act —Constitution of Malawi — Malawi’s obligations under Conventionand Charter — Whether Court constitutionally obliged to upholdbinding international law — Foreign case law — Best interestof child paramount — Whether Malawi law allowing for inter-country adoption — Malawi, High Court

Re Banda 410

Treaties — International Covenant on Civil and Political Rights,1966 (“ICCPR”) — Criminal Justice Act 1988 — United King-dom’s international obligation under Article 14(6) of ICCPR —Section 133 of Act giving effect to United Kingdom’s internationalobligation — Statutory interpretation — Correct construction ofSection 133(1) of Act — Scope — Meaning of “miscarriage ofjustice” in first and second appeals — Satisfactory test — Whetherproof of innocence necessary — Meaning of “a new or newlydiscovered fact” in first appeal — Whether appellants entitledto compensation under Section 133 of Act — United Kingdom,Supreme Court


United Kingdom’s international obligations — United NationsSecurity Council Resolutions requiring respect for territorialintegrity of Republic of Cyprus — Respect for courts as judicial armof sovereign State — Obligations under Treaty of Guarantee —International public policy — Whether public policy applicablein United Kingdom to which enforcement of Cypriot judgmentsmanifestly contrary — Article 34 of Council Regulation (EC) No44/2001 on jurisdiction and the recognition and enforcement ofjudgments in civil and commercial matters — England, Court ofAppeal and Court of Justice of the European Communities







DIGEST OF CASES xxv

United States law incorporating law of nations in definition ofcrime of piracy — Interpretation of law of nations — Whether lawof nations at time Congress passed United States law — Whetherlaw of nations as evolved — Precedent — Alvarez-Machain —Treaties — Definition of piracy — Geneva Convention on theHigh Seas, 1958, Article 15 — United Nations Convention onthe Law of the Sea, 1982, Article 101 — Customary internationallaw — Intention of United States Congress — Whether defendantsguilty of crime of piracy under United States law — United StatesCourt of Appeals, Fourth Circuit


RiversLegal regulation — Indus Waters Treaty, 1960 — Hydro-electricplant — Whether State constructing plant entitled to divert watersfrom one tributary of river to another — Whether such diversionnecessary — Limits on right of diversion — Duty to preserveminimum flow for benefit of downstream use by other State —Court of Arbitration


SeaHigh seas — Piracy — Definition of crime of piracy — UnitedStates law defining piracy as defined by law of nations — Whetherpiracy narrowly defined as robbery at sea — Whether piracyencompassing violent conduct — Whether defendants guilty ofcrime of piracy under United States law — Whether defendants’mandatory life sentences appropriate — United States Court ofAppeals, Fourth Circuit


State ImmunityJurisdictional immunity — Foreign Head of State — Deter-mination of immunity by Executive Branch of United StatesGovernment — Common law precedent — Foreign SovereignImmunities Act 1976 — Applicability — Foreign State’s






xxvi DIGEST OF CASES

State Immunity (cont.)

entitlement to immunity — Whether FSIA addressing immunityof individual officials — Whether determination by ExecutiveBranch that foreign Head of State immune from suit conclusive —Separation of powers — United States District Court, WesternDistrict, Oklahoma and Court of Appeals, Tenth Circuit

Habyarimana and Ntaryamira v. Kagame 739

Jurisdictional immunity — General rule that foreign State immuneunless exception to immunity applicable — Canada State Immu-nity Act 1985 (“SIA”), Section 3(1) — Statutory exceptions toimmunity — Section 6 of SIA — Whether applicable — WhetherSIA complete codification of law of State immunity in Canada —Whether exceptions to immunity other than those contained inSection 6 of SIA — Whether SIA applicable to acts of torture —Whether foreign State having immunity — Whether Section 3(1)of SIA applicable to individual agents of foreign State — Whethernature of actions relevant — Canada, Quebec Court of Appeal


State ResponsibilityObligation in international human rights treaties not to arbitrarilydeprive of life — Article 4 of American Convention on HumanRights, 1969 — Article 6 of International Covenant on Civiland Political Rights, 1966 — Right to consular information indeath penalty cases — Article 36(1)(b) of Vienna Convention onConsular Relations, 1963 — Failure by State to observe right toinformation — Whether violating right not to be arbitrarilydeprived of one’s life — Juridical consequences of violation —Whether American States Parties to respective conventions havingfederal or unitary structure — Relevance for compliance with inter-national obligations — Inter-American Court of Human Rights


StatesRecognition — Republic of Cyprus — Turkish Republic armyinvading Cyprus in 1974 — Occupation of northern Cyprus —Turkish Republic of Northern Cyprus (“TRNC”) declared in






DIGEST OF CASES xxvii

1983 — Only Turkey recognizing TRNC as State — Republicof Cyprus not exercising sovereign jurisdiction over northernCyprus — Republic of Cyprus acceding to European Unionin 2004 — Article 1(1) of Protocol No 10 to Act of Acces-sion suspending application of acquis communautaire to northernCyprus — Dispute concerning title to land in northern Cyprus —Court in Republic of Cyprus rendering judgments on title todisputed land — Council Regulation (EC) No 44/2001 on juris-diction and the recognition and enforcement of judgments in civiland commercial matters — Whether Cypriot judgments enforce-able in United Kingdom — England, Court of Appeal and Courtof Justice of the European Communities


TreatiesEffect — Protocol No 10 to Act of Accession of Republic ofCyprus to European Union — Republic of Cyprus not exercisingsovereign jurisdiction over northern Cyprus — Article 1(1) of Pro-tocol suspending application of acquis communautaire to northernCyprus — Council Regulation (EC) No 44/2001 — Applica-bility — Recognition and enforcement of Cypriot judgments —England, Court of Appeal and Court of Justice of the EuropeanCommunities


European Convention on Human Rights, 1950 — Article 6(2) —Presumption of innocence — Whether denial of compensationunder Section 133 of Criminal Justice Act 1988 infringing pre-sumption of innocence in Article 6(2) — Protocol 7 to EuropeanConvention, Article 3 — Relevance — United Kingdom, SupremeCourt


Interpretation — American Convention on Human Rights,1969 — Article 64(1) of American Convention — Scope —Other treaties concerning protection of human rights in AmericanStates — Article 36 of Vienna Convention on Consular Relations,1963 — Articles 2, 6, 14 and 50 of International Covenant onCivil and Political Rights, 1966 — Whether treaties concerningprotection of human rights in American States — Relationship






xxviii DIGEST OF CASES

Treaties (cont.)

to safeguards guaranteeing protection of rights of persons facingdeath penalty and Vienna Convention on Consular Relations —American Declaration of the Rights and Duties of Man, 1948 —Charter of Organization of American States, 1948, as amended —Inter-American Court of Human Rights


Interpretation — Hague Convention on the Civil Aspects of Inter-national Child Abduction, 1980 — United States and Chile Con-tracting States to Convention — Congress implementing Conven-tion provisions through International Child Abduction RemediesAct — Parent having ne exeat right under Chilean law — Whetherconstituting right of custody under Convention — Whether giv-ing rise to return remedy — Text of Convention — Object andpurpose of Convention — Views of United States Department ofState — Case law of other Contracting States to Convention —Relevance — United States Supreme Court

Abbott v. Abbott 639

Interpretation — International Covenant on Civil and PoliticalRights, 1966, Article 14(6) — Meaning of “miscarriage ofjustice” — Vienna Convention on the Law of Treaties, 1969 —Travaux preparatoires — Whether extrinsic material providingassistance in ascertaining meaning of “miscarriage of justice” —Autonomous meaning — Context of Article 14(6) of ICCPR ininterpreting Section 133 of Criminal Justice Act 1988 — UnitedKingdom, Supreme Court


Interpretation — Principles of interpretation — Object and pur-pose of treaty — Need to interpret provisions of treaty in mutu-ally reinforcing fashion — Relevance of contemporary customaryinternational law to interpretation of 1960 treaty — Environmen-tal law — Application — Duty to apply treaty in good faith —Court of Arbitration







DIGEST OF CASES xxix

War and Armed ConflictWar crimes — Definition — Trial of unlawful alien enemy com-batants before military commissions — Conviction by militarycommission for “material support for terrorism” — Military Com-missions Act 2006 specifying “material support for terrorism” aswar crime — Conviction based on conduct occurring during 1996-2001 — Direct appeal of a military commission conviction —Whether Military Commissions Act 2006 retroactively punish-ing new crimes — Whether relevant statute at time of conductauthorizing prosecution for “material support for terrorism” —Relevant statute authorizing prosecution for violations of “law ofwar” — “Law of war” meaning “international law of war” —Whether “material support for terrorism” a war crime under inter-national law — Whether any relevant treaties — Whether custom-ary international law making “material support for terrorism” a warcrime — United States Court of Appeals, District of ColumbiaCircuit

Hamdan v. United States of America 751






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