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Cambridge University Press978-0-521-19005-3 - International Law Reports: Volume 142Edited by Sir Elihu Lauterpacht, Sir Christopher Greenwood and Karen LeeFrontmatterMore information

INTERNATIONALLAW REPORTS

Volume 142

http://www.cambridge.org

http://www.cambridge.org/9780521190053




Volumes published under the title:

ANNUAL DIGEST AND REPORTSOF PUBLIC INTERNATIONAL LAW CASES

Vol. 1 (1919-22)

Vol. 2 (1923-24)Edited by Sir John Fischer Williams, K.C.,

and H. Lauterpacht, LL.D.

Vol. 3 (1925-26)

Vol. 4 (1927-28)

Edited by Arnold D. McNair, C.B.E., LL.D.,and H. Lauterpacht, LL.D.

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

Edited by H. Lauterpacht, Q.C., LL.D., F.B.A.

Volumes published under the title:

INTERNATIONAL LAW REPORTS

Vol. 17 (1950)Vol. 18 (1951)Vol. 19 (1952)Vol. 20 (1953)

Vol. 21 (1954)Vol. 22 (1955)Vol. 23 (1956)

Edited by Sir Hersch Lauterpacht, Q.C., LL.D.,F.B.A.

Vol. 24 (1957) Edited by Sir Hersch Lauterpacht, Q.C., LL.D.,F.B.A., and E. Lauterpacht

Vol. 25 (1958-I)

Vol. 26 (1958-II)Edited by E. Lauterpacht, Q.C.

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

Vols. 69-142 and Consolidated Index and Consolidated Tables of Casesand Treaties to Vols. 1-80, Vols. 81-100and Vols. 1-125

Edited by Sir Elihu Lauterpacht, C.B.E., Q.C.,and Sir Christopher Greenwood, C.M.G., Q.C.






Lauterpacht Centre for International LawUniversity of Cambridge

INTERNATIONALLAW REPORTS

VOLUME142

Edited by

SIR ELIHU LAUTERPACHT, cbe qcHonorary 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 LEEAssistant Editor

Fellow of the Lauterpacht 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 142 xix

Table of Treaties xxxiii

Reports of Cases 1

Index 711

v






PREFACEThe present volume contains the important 2010 decision of the AfricanCommission on Human and Peoples’ Rights on indigenous land rightsin the Endorois Case. It also contains the judgment of the Court of Justiceof the European Communities in the Intertanko Case and the judgmentof the European Court of Human Rights in Bijelic v. Montenegro andSerbia. National jurisprudence is reflected in decisions from the courts ofBotswana (Bah), the Czech Republic (Succession of States and IndividualsCase, Diplomatic Privileges and Immunities of a Visiting Prince Case andState Immunity in Labour Law Matters Case), England (Grovit, Othman,Morgan, Brown and ImageSat), the Hong Kong Special AdministrativeRegion (FG Hemisphere), Kenya (Waweru and Lemeiguran), the RussianFederation (Death Penalty Constitutionality Case) and Zimbabwe(Kachingwe).

We are very grateful to those whose work has made this volumepossible. Ms Karen Lee, Assistant Editor, wrote the summaries of theEndorois Case, Bah, FG Hemisphere, Waweru, Lemeiguran, Death PenaltyConstitutionality Case, Othman, Morgan, Brown, ImageSat and Kach-ingwe as well as seeing the volume through the press. Thanks are due toMs Klara Polackova for summarizing and translating the cases from theCzech Republic and to Ms Charlotte Peevers for summarizing Grovit.We are also grateful to Mr Sergey A. Golubok, LLM, Mr Andrey Esin,LLM and Ms Irina Sergeeva, LLM for supplying and translating thedecision from the Russian Federation and to Dr Jessie Hohmann andDr Michael Waibel for drawing our attention to the Endorois and FGHemisphere cases respectively. Ms Tara Grant prepared the Tables ofCases and Digest and provided general and secretarial assistance. MissMaureen MacGlashan, CMG compiled the Table of Treaties and theIndex. Mrs Alison Morley and Mrs Diane Ilott checked the copy. MsJenny Macgregor read the proofs.

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

E. LAUTERPACHTLauterpacht Centre

for International Law,University of Cambridge

C. J. GREENWOODThe Peace Palace,The Hague

May 2011






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 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 in1996. A Consolidated Index, a Consolidated Tables of Cases and aConsolidated Table of Treaties for volumes 1-125 were published in2004. Volume 140 contains Consolidated Tables of Cases for volumes126-140.






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.)

Bah v. Libyan Embassy 167Bijelic v. Montenegro and Serbia (Applica-

tion No 11890/05) (Merits) 146Brown (aka Bajinya) and Others v. Govern-

ment of Rwanda and Another 568

Centre for Minority Rights Development(“CEMIRIDE”) (Kenya) and MinorityRights Group International on behalfof Endorois Welfare Council v. Kenya(Communication No 276/2003) (Mer-its) 1

Clarification of Paragraph 5 of OperativePart of Constitutional Court ResolutionNo 3-P of 2 February 1999 383

Death Penalty Constitutionality Case 383Diplomatic Privileges and Immunities of a

Visiting Prince Case 186

Endorois Case 1

FG Hemisphere Associates LLC v. Demo-cratic Republic of the Congo and Others216

Grovit v. De Nederlandsche Bank NV andOthers 403

Intertanko (International Association ofIndependent Tanker Owners) Case 89

Kachingwe and Others v Minister of HomeAffairs and Another 691

Lemeiguran and Others v. Attorney-Generaland Others 328

Morgan and Baker v. Hinton Organics(Wessex) Ltd and Coalition for Accessto Justice for the Environment (“CAJE”)542

OO (aka Abu Qatada) (Jordan) v. Secre-tary of State for the Home Department411

Othman (aka Abu Qatada) (Jordan) v. Sec-retary of State for the Home Department411

R (International Association of IndependentTanker Owners (Intertanko) and Others)v. Secretary of State for Transport (CaseC-308/06) 89

RB (Algeria) v. Secretary of State for theHome Department 411

Serbia, Republic of v. ImageSat Interna-tional NV 644

State Immunity in Labour Law Matters Case206

Succession of States and Individuals Case175

U (Algeria) v. Secretary of State for theHome Department 411

Waweru v. Republic of Kenya 308

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

African Commission on Human and Peoples’Rights

2010Centre for Minority Rights Development

(“CEMIRIDE”) (Kenya) and MinorityRights Group International on behalfof Endorois Welfare Council v. Kenya(Communication No 276/2003) (Mer-its) 1

Court of Justice of the European Communities

2008The Queen (on the Application of the

International Association of Indepen-dent Tanker Owners (Intertanko) andOthers) v. Secretary of State for Trans-port (Case C-308/06) 89

European Court of Human Rights

2009Bijelic v. Montenegro and Serbia (Applica-

tion No 11890/05) (Merits) 146

II. DECISIONS OF MUNICIPAL COURTS

Botswana

2005Bah v. Libyan Embassy 167

Czech Republic

2001Succession of States and Individuals Case

175

2002Diplomatic Privileges and Immunities of a

Visiting Prince Case 186

2008State Immunity in Labour Law Matters Case

206

Hong Kong Special Administrative Region

2010FG Hemisphere Associates LLC v. Demo-

cratic Republic of the Congo and Others216

Kenya

2006Lemeiguran and Others v. Attorney-General

and Others 328Waweru v. Republic of Kenya 308

Russian Federation

2009Re Clarification of Paragraph 5 of Operative

xv






xvi TABLE OF CASES

Part of Constitutional Court ResolutionNo 3-P of 2 February 1999 383

United Kingdom, England

2007Grovit v. De Nederlandsche Bank NV and

Others 403

2008Othman (Jordan) v. Secretary of State for

the Home Department 411, 420

2009Brown (aka Bajinya) and Others v. Govern-

ment of Rwanda and Another 568Morgan and Baker v. Hinton Organics

(Wessex) Ltd and Coalition for Access

to Justice for the Environment (“CAJE”)542

Othman (Jordan) v. Secretary of State forthe Home Department 411, 449

RB (Algeria) v. Secretary of State for theHome Department 411, 449

Republic of Serbia v. ImageSat InternationalNV 644

U (Algeria) v. Secretary of State for theHome Department 411, 449

Zimbabwe

2005Kachingwe and Others v. Minister of Home

Affairs and Another 691






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 142

Aliens

Immigration and deportation — Appellants deemed to be dangerto national security — Deportation orders authorized by HomeSecretary — Appellants appealing against deportation orders —Whether deportation from United Kingdom to home countrieswould breach appellants’ rights under European Convention onHuman Rights, 1950 — Special Immigration Appeals Commis-sion upholding deportation orders — Procedural and substantiveobjections to deportation orders — Whether Commission erring inlaw — Jurisdiction of Commission and Court of Appeal — Ques-tions of fact and law — Commission procedure — Legitimacy andfairness — Whether Commission permitted to use closed materialin reaching conclusions on safety on return — Assurances —Whether effective — Whether individual assurances of receivingState can be relied upon where pattern of human rights violationin receiving State — European Convention on Human Rights,1950 — England, Court of Appeal and House of Lords

Othman (Jordan) v. Secretary of State for the Home Department;RB (Algeria) v. Secretary of State for the Home Department; U(Algeria) v. Secretary of State for the Home Department 411

Arbitration

Jurisdiction — International Chamber of Commerce arbitra-tion — Arbitration arising from contract between ImageSat Inter-national NV and State Union of Serbia and Montenegro —Montenegro declaring independence — Serbia and Montenegrotwo separate States — Whether arbitrator having jurisdiction todecide whether Serbia “successor” or “continuator” or “continua-tion” of State Union of Serbia and Montenegro in internationallaw — Whether ImageSat estopped or precluded from contendingSerbia “continuator” in law of State Union — Whether Serbia con-tractually submitting to arbitrator’s jurisdiction by its agreement inTerms of Reference — Serbia challenging substantive jurisdictionof arbitrator — Section 67 of Arbitration Act 1996 — WhetherPartial Award to be set aside — England, High Court, Queen’sBench Division (Commercial Court)

Republic of Serbia v. ImageSat International NV 644

xix






xx DIGEST OF CASES

Comity

Nature of international comity — Distinction between comityand customary international law — Comity based upon consider-ations of courtesy rather than obligation — Privileges and immu-nities accorded as a matter of comity rather than of law — CzechRepublic, Supreme Court

Diplomatic Privileges and Immunities of a Visiting Prince Case 186

Damages

Equitable approach to compensation — Requirement that Statetake action within specified period or pay damages — EuropeanCourt of Human Rights (Second Section)

Bijelic v. Montenegro and Serbia (Application No 11890/05)(Merits) 146

Diplomatic Relations

Diplomatic immunity — Diplomatic status — Possession ofdiplomatic passport not an indication of diplomatic status or ofentitlement to privileges and immunities — Special Missions Con-vention — Vienna Convention on Diplomatic Relations, 1961 —Holder of diplomatic passport on private visit — Whether enti-tled to immunity from criminal jurisdiction — Czech Republic,Supreme Court


Diplomatic immunity — Vienna Convention on Diplomatic Rela-tions, 1961 — Duty of diplomatic mission towards the rule of lawin the receiving State — Respondent embassy of foreign Statein Botswana — Whether capable of being sued — DiplomaticImmunities and Privileges Act — Whether immunity extendingto private acts — Breach of employment contract — Whetherjusticiable — Botswana, Industrial Court

Bah v. Libyan Embassy 167

Environment

Nuisance — Odours — Environmental proceedings — Whetherodours from defendant’s premises interfering with claimants’enjoyment of their properties — Costs — Whether interim costsissue should have been reserved for trial judge — Whether interimcosts order unfair and prohibitively expensive — Article 9(4) of






DIGEST OF CASES xxi

Aarhus Convention, 1998 — Applicability of Convention — Eng-land, Court of Appeal

Morgan and Baker v. Hinton Organics (Wessex) Ltd and Coalitionfor Access to Justice for the Environment (“CAJE”) 542

Pollution — Disposal of waste matter — Township develop-ment — Discharge of sewage into River Kiserian — PublicHealth Act — Water Act 2002 — Responsibility for sewagetreatment works — Section 3 of Environment Management andCo-ordination Act 1999 — Right to a clean environment —Relevant universal principles — Sustainable development — Pre-cautionary principle — Polluter pays principle — Public trust —Intergenerational equity principle — Whether township develop-ment ecologically sustainable — Requirement of solutions to avertserious environmental damage — Kenya, High Court


Extradition

Rwandan genocide — Rwandan Government requesting extradi-tion of appellants to Rwanda to face trial for crimes of genocide —Secretary of State for Home Department ordering appellants’ extra-dition — Extradition Act 2003 — Memorandum of Understand-ing — Appellants appealing against extradition — Whether extra-dition orders contravening Article 6 of European Convention onHuman Rights, 1950 — Whether Memorandum of Understand-ing sufficient assurance that Rwandan Government would upholdrule of speciality — England, High Court, Queen’s Bench Division(Divisional Court)

Brown (aka Bajinya) and Others v. Government of Rwanda andAnother 568

Human Rights

Fundamental rights and freedoms — Rights of minorities —Right of representation — Right of expression — Freedom ofconscience — Constitution of Kenya, Sections 1A, 78, 79 —Whether Il Chamus indigenous people — Whether distinct minor-ity group or part of clan — Whether Kenyan Government violat-ing applicants’ fundamental rights — Minorities and indigenouspeople — Definition — Whether encompassing non-citizens —Recognition and protection of rights of indigenous peoples ininternational instruments — International Covenant on Civil andPolitical Rights, 1966, Article 27 — UN Declaration on the Rights






xxii DIGEST OF CASES

Human Rights (cont.)

of Persons belonging to National or Ethnic, Religious and Lin-guistic Minorities 1992 — International Labour OrganizationConvention concerning Indigenous and Tribal Peoples in Inde-pendent Countries, 1989, Articles 3, 7, 61(b) — African Charteron Human and Peoples’ Rights, 1981, Articles 19 and 22 —Constitution of Kenya — Interpretation — Democracy — Par-ticipation of minorities — Constitutional responsibility of Elec-toral Commission of Kenya — Whether Il Chamus having claimto representation under Sections 33 and 42 of Constitution ofKenya — Kenya, High Court

Lemeiguran and Others v. Attorney-General and Others 328

Inhuman and degrading treatment — Section 15(1) of Constitu-tion of Zimbabwe — Applicants detained in police holding cells —Applicants alleging degrading and inhumane conditions — Appli-cants seeking redress for alleged violation of constitutionalright — Whether applicants subjected to inhuman and degrad-ing treatment — Whether applicants entitled to constitutionalprotection — Zimbabwe, Supreme Court

Kachingwe and Others v. Minister of Home Affairsand Another 691

Prohibition of torture — Whether substantial grounds for believ-ing appellants would be at real risk of exposure to treatment con-trary to Article 3 of European Convention on Human Rights,1950 — Whether question of fact not subject to appeal —Assurances to be considered with other relevant circumstances —Whether question of fact — Whether assurances could only berelied upon if eliminated all risk of inhuman treatment — Whetherconclusions of Special Immigration Appeals Commission irra-tional — Article 3 of European Convention on Human Rights,1950 — England, Court of Appeal and House of Lords


Right to culture — Requirement for State to protect and promoteculture — Whether Kenya creating major threat to Endorois’ pas-toralist way of life by displacement from ancestral land — Whether






DIGEST OF CASES xxiii

Kenya violating Article 17(2) and (3) of African Charter on Humanand Peoples’ Rights, 1981 — African Commission on Human andPeoples’ Rights

Centre for Minority Rights Development (“CEMIRIDE”) (Kenya)and Minority Rights Group International on behalf of EndoroisWelfare Council v. Kenya (Communication No 276/2003)(Merits) 1

Right to development — Whether Kenya providing adequately forEndorois in development process — Whether consultation ade-quate — Whether Endorois effectively participating — Whetheradequate compensation — Whether Endorois accorded land ofequal value — Whether Endorois having equitable share in bene-fits from game reserve — Whether Kenya violating Article 22 ofAfrican Charter on Human and Peoples’ Rights, 1981 — AfricanCommission on Human and Peoples’ Rights


Right to fair trial — Application to foreign trial — Whether return-ing appellant to native Jordan would breach Article 6 of EuropeanConvention on Human Rights, 1950 — Whether Special Immi-gration Appeals Commission erring in law by concluding Article6 no bar to deportation — Whether Commission permitted touse closed material in reaching conclusions on safety on return —Whether defects in criminal trial would amount to flagrant denialof fair trial — Whether composition of Jordanian court consti-tuting flagrant breach of Article 6 — Prohibition on use of evi-dence obtained by torture — Whether real risk of use of evidenceobtained by torture necessarily amounted to flagrant denial ofjustice — Whether United Kingdom required to retain terroristsuspect to detriment of national security — Article 6 of EuropeanConvention on Human Rights, 1950 — England, Court of Appealand House of Lords


Right to fair trial — Whether real risk of flagrant denial of jus-tice if appellants extradited to Rwanda to face trial in High Court of






xxiv DIGEST OF CASES


Rwanda — Difficulties regarding defence testimony — WhetherHigh Court lacking impartiality and independence — Evidence —International Criminal Tribunal for Rwanda decisions — Rele-vance — Political context — Article 6 of European Conventionon Human Rights, 1950 — England, High Court, Queen’s BenchDivision (Divisional Court)

Brown (aka Bajinya) and Others v. Government of Rwanda andAnother 568

Right to free disposition of natural resources — Ownership of nat-ural resources — Consultation — Participation in benefits — Priorenvironmental and social impact assessments — Requirement ofadequate compensation or restitution of land — Whether Kenyaviolating Article 21 of African Charter on Human and Peoples’Rights, 1981 — African Commission on Human and Peoples’Rights


Right to liberty and security — Whether substantial grounds forbelieving appellant would be held without charge for 50 days ifdeported — Whether constituting flagrant breach — Whetherreturning appellant to native Jordan would breach Article 5 ofEuropean Convention on Human Rights, 1950 — England, Courtof Appeal and House of Lords


Right to life — Death penalty — Right to jury trial — Constitu-tion of Russian Federation, Article 20 — Provision for impositionof death penalty until abolition as exceptional form of punish-ment if right to jury trial — Constitutional Court ResolutionNo 3-P of 2 February 1999 — Requirement of right to trial byjury in every region of Russian Federation before death penaltyapplicable — Supreme Court seeking clarification of ResolutionNo 3-P — Whether Resolution No 3-P allowing for applicationof death penalty where conviction by jury trial — Russian Federa-tion member of Council of Europe — Russian Federation signingbut not ratifying Protocol No 6 to 1950 European Convention on






DIGEST OF CASES xxv

Human Rights, 1983 — Legal effect — Vienna Convention onthe Law of Treaties, 1969, Article 18 — Whether Russian Federa-tion violating international legal obligations — Judicial practice —Moratorium on application of death penalty — Effect — RussianFederation, Constitutional Court

Re Clarification of Paragraph 5 of Operative Part of ConstitutionalCourt Resolution No 3-P of 2 February 1999 383

Right to life — Section 71 of Constitution of Kenya — Right to lifein environmental context — International environmental instru-ments — Right to clean environment — Section 3 of EnvironmentManagement and Co-ordination Act 1999 — Balance of rights —Economic benefits of development — Rights of Kiserian towndevelopers — Rights of downstream users of Kiserian River —Rights of future generations — Sustainable development — Kenya,High Court


Right to practise religion — Whether Endorois’ spiritual beliefsand ceremonial practices constituting a religion under AfricanCharter and international law — Whether Kenya interfering withEndorois’ right to religious freedom by its actions or inactions —Whether Kenya violating Article 8 of African Charter on Humanand Peoples’ Rights, 1981 — African Commission on Human andPeoples’ Rights


Right to property — Indigenous land rights — Whether landconstituting property — Ownership of ancestral land — Whetherspecial measures of protection appropriate — Whether Endoroisland encroached upon by Kenya — Whether encroachment pro-portionate to public need and in compliance with national andinternational law — Whether adequate consultation and compen-sation — Whether Kenya violating Article 14 of African Charteron Human and Peoples’ Rights, 1981 — African Commission onHuman and Peoples’ Rights







xxvi DIGEST OF CASES


Right to property — Requirement that State take positive steps toprotect right to property — Judgment of national court requiringthat Applicants be given possession of apartment — State failing toenforce judgment against resident — European Court of HumanRights (Second Section)


International Organizations

Council of Europe — Member States — Obligations of RussianFederation as Member State — Nature of obligations — Whetherapplication of death penalty incompatible with obligations —Russian Federation, Constitutional Court


European Community — Nature of Community as a subject ofinternational law — Whether Community obliged to act in accor-dance with international law — Whether Community’s powers tolegislate limited by international treaty obligations of the MemberStates — Court of Justice of the European Communities (GrandChamber)

The Queen (on the Application of the International Association ofIndependent Tanker Owners (Intertanko) and Others) v. Secretaryof State for Transport (Case C-308/06) 89

Relationship of International Law and Municipal Law

Customary international law — Section 3 of Environment Man-agement and Co-ordination Act 1999 — Universal principles —Sustainable development — Precautionary principle — Polluterpays principle — Public trust — Rio Declaration on Environmentand Development 1992 — Kenya, High Court


Decisions of international tribunals on human rights — Inter-American Court of Human Rights — European Court of HumanRights — International instruments — International norms —Relevance — Zimbabwe, Supreme Court

Kachingwe and Others v. Minister of Home Affairs and Another 691






DIGEST OF CASES xxvii

European Community law — Treaties concluded by Commun-ity — Whether part of Community legal order — Whether pos-sessing primacy over Community legislation — Treaties bindingMember States but not the Community — Whether validityof Community legislation can be assessed in light of treaty —Whether treaty confers rights upon individuals — Whether treatyprecise and unconditional — Court of Justice of the EuropeanCommunities (Grand Chamber)


European Convention on Human Rights, 1950 — Conventionrequiring effective remedy before national authority where breachof Convention — United Kingdom instituting specialist tribunalin Special Immigration Appeals Commission — Review of Com-mission decisions — Right of appeal to Court of Appeal on ques-tions of law only — Procedural objections — Whether no reason-able tribunal, properly directed, could have reached same conclu-sion on evidence — Whether Commission permitted to use closedmaterial in reaching conclusions on safety on return — WhetherCommission erring in law — England, Court of Appeal and Houseof Lords


Protocol No 6 to 1950 Convention for the Protection of HumanRights and Fundamental Freedoms, 1983 — Russian Federationsigning but not ratifying Protocol No 6 — Legal effect — ViennaConvention on the Law of Treaties, 1969, Article 18 — Obligationon State not to deprive Protocol No 6 of its object and purpose —Russian courts rendering death sentences after Russia joiningCouncil of Europe and signing Protocol No 6 — Substitutionof death sentences with lesser punishments — Compliance ofConstitutional Court Resolution No 3-P of 2 February 1999 —Judicial practice — Moratorium on application of death penalty —Constitutional legal regime — Whether Russian Federation vio-lating Constitution or international legal obligations — RussianFederation, Constitutional Court







xxviii DIGEST OF CASES

Relationship of International Law and Municipal Law (cont.)

Questions of public international law — Questions whether Serbia“successor” or “continuator” of State Union of Serbia and Mon-tenegro — Whether justiciable and arbitrable in English court —Section 67 of Arbitration Act 1996 — England, High Court,Queen’s Bench Division (Commercial Court)


Restrictive immunity doctrine — Whether part of customary inter-national law — Whether widespread practice and belief to belegally obligatory — Whether part of common law by incorpora-tion — Whether conflicting with municipal law — Hong KongSpecial Administrative Region, Court of Appeal

FG Hemisphere Associates LLC v. Democratic Republic of theCongo and Others 216

Treaties — Effect of treaty in domestic law — Aarhus Conven-tion, 1998 — Status of Convention in English law — Principle inConvention that costs in environmental proceedings should notbe prohibitively expensive — Treaty obligation — Relevance —Whether directly binding on court — Whether any directly appli-cable rule of Community law — Civil Procedure Rules Part 44containing principles governing award of costs in England andWales — England, Court of Appeal

Morgan and Baker v. Hinton Organics (Wessex) Ltd and Coalitionfor Access to Justice for the Environment (“CAJE”) 542

Treaties — Treaties and other international instruments relating tothe status and treatment of minorities — Whether forming part ofthe law of Kenya — Whether to be taken into account by Kenyancourts in applying Kenyan law regarding minorities — Kenya,High Court

Lemeiguran and Others v. Attorney-General and Others 328

Vienna Convention on Diplomatic Relations, 1961 — Diplo-matic Privileges and Immunities Act incorporating Articles 22 and31 of Vienna Convention and relevant jurisprudence — Immu-nity not extending to private acts — Applicant’s action arisingfrom breach of employment contract — Whether justiciable —Botswana, Industrial Court







DIGEST OF CASES xxix

Sea

Maritime zones — High seas — Exclusive economic zone — Ter-ritorial sea — Rights of coastal State and flag States — Pollution —United Nations Convention on the Law of the Sea, 1982 — Inter-national Convention on Maritime Pollution, 1973 and Protocol(MARPOL 73/78) — Whether coastal State entitled to imposestandards higher than those of MARPOL 73/78 on ships of otherflag States — Powers of European Community — Court of Justiceof the European Communities (Grand Chamber)


State Immunity

Immunity from jurisdiction and execution — Arbitration award —Enforcement against monies owed to respondent State — Doc-trine of restrictive immunity — Whether part of law of the HongKong Special Administrative Region — People’s Republic of Chinaresuming sovereignty over Hong Kong on 1 July 1997 — HongKong inalienable part of People’s Republic of China — Gov-ernment of People’s Republic of China responsible for foreignaffairs of Hong Kong under Article 13 of Basic Law — People’sRepublic of China adhering to doctrine of absolute immunity —Democratic Republic of Congo submitting to arbitration —Whether Democratic Republic of Congo waiving right to Stateimmunity — Hong Kong Special Administrative Region, Courtof Appeal

FG Hemisphere Associates LLC v. Democratic Republic of theCongo and Others 216

Jurisdiction — Doctrine of restrictive immunity — Action forbreach of contract of employment — Whether respondent entitledto immunity — Botswana, Industrial Court


Jurisdiction — Functional nature of immunity — Restrictivetheory — Employment matters — State sued in respect of thedismissal of embassy driver — Whether entitled to immunity —Czech Republic, Supreme Court

State Immunity in Labour Law Matters Case 206






xxx DIGEST OF CASES

State Immunity (cont.)

Jurisdiction — Head of State — Immunities of Head of State —Monarchy — Members of ruling family — Cousin of the King —Whether entitled to immunity when on a private visit to foreignState — Czech Republic, Supreme Court


Jurisdictional immunity — Application to civil or commer-cial matters — European Community Judgments Regulation —Definition of public law act — Libel action for exercise of publicauthority — England, Court of Appeal

Grovit v. De Nederlandsche Bank NV and Others 403

State Succession

Dissolution of State — Czech and Slovak Federal Republic —Succession to public service claims — Claim by former memberof secret service of the Czechoslovak Socialist Republic against theCzech Republic — Whether Czech Republic a successor State orthe continuation of the Czech and Slovak Federal Republic and theCzechoslovak Socialist Republic — Whether liable for claims inrespect of unpaid salary — Czech Republic, Constitutional Court

Succession of States and Individuals Case 175

State Union of Serbia and Montenegro — Article 60 of Consti-tutional Charter of State Union — Montenegro declaring inde-pendence — Whether Serbia new successor State or continuationof State Union of Serbia and Montenegro — Distinction betweenState continuity and State succession in international law — Agree-ment binding on State Union of Serbia and Montenegro —Whether binding on Serbia — Whether parties givingarbitrator substantive jurisdiction to determine — England, HighCourt, Queen’s Bench Division (Commercial Court)


Treaties — Human rights treaties — Dissolution of federation —Emergence of successor State — Serbia and Montenegro —Montenegro successor State — Montenegro bound by EuropeanConvention on Human Rights with retroactive effect — EuropeanCourt of Human Rights (Second Section)





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