The International Court of Justice delivered its judgment on April 16, 2013, in Frontier Dispute (Burkina Faso/Niger), a case submitted by special agreement or compromis and jointly notified to the Court on July 20, 2010. The judgment was unanimous on all holdings in the operative part or dispositif, but nevertheless included a declaration by Judge Bennouna and separate opinions by Judges Cancado Trindade and Yusuf as well as Judges ad hoc Mahiou and Daudet. The judgment set forth the parameters within which the border between Burkina Faso and Niger will be demarcated and, as such, should contribute to peace and stability in the region. This case is also notable for what was not decided; despite a clause in the compromis requesting the Court to “place on record” the parties’ agreement regarding the border in two sectors, the Court declined to include the agreement in the judgment’s dispositif, finding for the first time that a matter submitted to it did not constitute a dispute.

What are the requisite elements to convict an individual of aiding and abetting international crimes committed by an organization? This form of liability question was the principal issue the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) addressed in its February 28, 2013 judgment overturning the 2011 conviction of General Momčilo Perišić, the former head of the Army of Yugoslavia (VJ), for aiding and abetting war crimes in Bosnia-Herzegovina and Croatia.

The Appeals Chamber of the International Criminal Court (ICC) in the case of Prosecutor v. Germain Katanga held that a Trial Chamber, during the deliberations stage of trial proceedings, may, pursuant to Regulation 55 of the Regulations of the Court (Regulation 55), give notice of a possible modification of the legal characterization of the facts in its final Judgment, so long as the trial remains fair. This Introductory Note will provide background on the Katanga case and Regulation 55, summarize the Appeals Chamber’s Judgment, and discuss the implications of this ruling.

On May 30, 2012, the Appeals Chamber (Chamber) of the International Criminal Court (ICC) voted unanimously to dismiss the appeal of the Prosecution against the decision of the Pre-Trial Chamber not to confirm the charges against the alleged Congolese warlord Callixte Mbarushimana. The Prosecution had alleged Mbarushimana was criminally responsible under Article 25(3)(d) of the Rome Statute (Statute) for crimes against humanity and war crimes committed by members of the Forces Démocratiques de Libération du Rwanda (FDLR) in the Kivu provinces of the Democratic Republic of the Congo. The Prosecution had appealed the Pre-Trial Chamber’s decision on three separate issues, all of which were rejected.

The past decade has witnessed an increase in the number of investor-State arbitrations. With the increase has been a widening of the range and deepening of the complexity of issues raised, addressed, and resolved in the cases. In recent years, novel procedural issues have surfaced. One of them is whether arbitral tribunals have the authority to adjudicate claims of multiple investors in a single proceeding, and if so, how they should conduct the arbitration. In 2011, the tribunal in Abaclat & Others v. Argentine Republic, constituted under the auspices of the International Centre for Settlement of Investment Disputes (ICSID), held that claims of more than one investor, in fact, multiple investors, are admissible and that the tribunal had jurisdiction over them. Since Abaclat, another tribunal has similarly held that collective claims could be heard under the ICSID framework.2 The issue of multiple investors is one that will likely not fade so it is fitting that the Abaclat decision be re-published in International Legal Materials to promote wider access to it.

In 2012, the International Court of Justice (ICJ) rendered its fourth judgment in Nicaragua v. Colombia. The case was first initiated by Nicaragua under the Bogotá Pact in 2001. The fourth judgment affirmed Colombia’s territorial sovereignty over a group of islands in the western Caribbean Sea and delimited a boundary between the two states’ zones of maritime jurisdiction. Even after eleven years of complicated proceedings, however, the parties’ conflicting claims are not yet completely resolved. The ICJ explicitly declined to address Nicaragua’s potential entitlement to the continental shelf beyond 200 nautical miles from its coastal baselines, including the portion of Nicaragua’s ‘‘outer’’ continental shelf that allegedly overlaps with Colombia’s maritime entitlements. For the foreseeable future, this aspect of the controversy will likely remain unresolved. One week after the ICJ rendered its fourth judgment, Colombia withdrew from the Bogotá Pact and thereby terminated its consent to the ICJ’s jurisdiction.

In Ahmad and Others v. United Kingdom, the European Court of Human Rights (the Court) upheld the extradition of several suspected terrorists to the United States, despite the possibility that if convicted, the suspects could face life sentences and imprisonment or both, in a “supermax” prison. This decision marks another important step in the development of the Court’s Article 3 extradition jurisprudence. It also illustrates the uneasy tension between that jurisprudence and the efforts of European states to cooperate with U.S. anti-terror initiatives.

On November 16, 2012, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) reversed by majority the findings of a unanimous Trial Chamber in Prosecutor v. Gotovina et al. (Gotovina). In so doing, it acquitted two Croatian generals, Ante Gotovina and Mladen Markač, on all counts of the indictment, including persecution and deportation as crimes against humanity, and four counts of violations of the laws or customs of war.

On November 27, 2012, the Court of Justice of the European Union (ECJ) issued a landmark decision on the question of the compatibility of the European Stability Mechanism Treaty with European Union law. The Court ruled on the following issues related to the permanent bailout fund: the validity of Decision 2011/199/EU adopted by the European Council to amend Article 136 of the Treaty on the Functioning of the European Union (TEFU) in accordance with the simplified revision procedures; whether the European Council exceeded its competence by using the simplified revision procedure under Article 48(6) of the Treaty on European Union (TEU) to establish the stability mechanism in violation of the treaties; the compatibility of the Treaty Establishing the European Stability Mechanism (ESM) with the treaties founding the European Union; and whether Decision 2011/199/EU encroached on the competence of the Union to coordinate economic and monetary policies of the Member States.

When Yasin Al-Kadi, a Saudi businessman and alleged terrorist financier, prevailed at the Grand Chamber of the European Court of Justice (ECJ) and secured the lifting of economic sanctions that had been imposed against him since 2001, he opened a major gap in the multilateral legal framework for targeted economic sanctions. The framework dates to the late 1990s, was expanded substantially after the terrorist attacks of September 11, 2001, and now may be in decline, due in substantial part to the ECJ’s decision. The Kadi case rests on a simple legal proposition: there must be evidence to support restrictions against an individual for his alleged misconduct. The dilemma for authorities that impose targeted economic sanctions is that while the evidence exists, it tends to be sensitive, often classified–particularly with respect to terrorism, but also in similar frameworks imposing sanctions against those involved in the proliferation of weapons of mass destruction or human rights violations–and the intelligence services that collect such information prefer to keep it closely held.

The North American Free Trade Agreement between Canada, Mexico, and the United States (NAFTA) entered into force on January 1, 1994. Chapter Eleven of NAFTA contains provisions governing investment protection and investor-state arbitration. In general, NAFTA provides investors of one of the parties protections for their investments in another NAFTA party, guaranteeing: treatment at least as good as that of host or third country investors (NAFTA articles 1102-1104); treatment in accordance with the minimum standards of customary international law (NAFTA article 1105); and compensation for expropriation (NAFTA article 1110). NAFTA article 1139 defines “investment” broadly but excludes contracts for the sale of goods or services. After meeting specified threshold requirements, such an investor has the right to international arbitration against the host state to vindicate these protections.

On July 11, 2013, in the case against Radovan Karadžić, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) held that the evidence presented against the accused, if taken at its highest, could lead a reasonable trier of fact to find that genocide against Bosnian Muslim and/or Bosnian Croat groups had occurred in Bosnia and Herzegovina in 1992. This decision overturned an earlier ruling by Trial Chamber III on the accused’s motion for acquittal pursuant to Rule 98bis of the Rules of Procedure and Evidence, which found that there was insufficient evidence to support a conviction for genocide in the seven municipalities of Bosnia and Herzegovina.2

On May 29, 2013, the Inter-American Court of Human Rights (Court) issued its first pronouncement on abortion in the context of an order for provisional measures against El Salvador. The beneficiary was a young woman known as “B,” who suffered from lupus and whose fetus was determined to have anencephaly, a condition in which a major part of the brain is absent. The absolute criminalization of abortion in El Salvador prevented her doctors from terminating the pregnancy in order to protect her health, leading the Court to require the State to adopt the necessary measures in order for B’s doctors to perform the procedures they considered “opportune and desirable” to avoid irreparable harm to her rights to life, personal integrity and health.

The European Court of Human Rights (the Court) has issued a judgment in the case of Othman (Abu Qatada) v. the United Kingdom. The Court ruled that the United Kingdom would violate the Applicant’s Article 6 right to a fair trial if it were to deport him to Jordan, where he is sought on terrorism charges. The judgment is significant because it addresses the permissibility of expelling an individual to a third country to face a criminal prosecution, one in which evidence obtained through torture may be used in the case.

Kiobel v. Royal Dutch Petroleum is the United States Supreme Court’s second decision interpreting the Alien Tort Statute (ATS), 28 U.S.C. § 1350, which was enacted by the First Congress as part of the Judiciary Act of 1789. The ATS provides that federal district courts “shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Absent the ATS, such claims could only be brought in state, not federal, courts.

Only three years after Abbott v. Abbott, the first case in which the U.S. Supreme Court had taken up interpretation of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Convention), the Court again considered the Convention in Chafin v. Chafin.

In October and November of 2012, the Appeals Chamber of the Special Tribunal for Lebanon (STL) issued two key decisions affirming the legality of the court and the use of trials in absentia of the accused. Highly disputed within Lebanon and throughout the international legal community, both decisions are crucial milestones in the developing history of the STL, and mark critical developments in the evolution of the international justice system and international criminal law.

International legal personality has often been viewed as synonymous with statehood. States are the primary subjects of international law, and only they have general competence on the international plane, including the competence to create the law. However, in the 1949 Reparation for Injuries advisory opinion, the International Court of Justice (ICJ) acknowledged that forms of international legal personality other than statehood could exist. In determining whether the United Nations (UN) was an international person, the ICJ considered the functions and rights which had been conferred on the organization pursuant to the UN Charter. Although these were found to be distinct from the rights and duties possessed by States, the ICJ concluded that these necessarily involved “a large measure of international personality and the capacity to operate on an international plane.” According to the Court, the hallmarks of international legal personality included the ability to possess international rights and duties and the capacity to maintain such rights by bringing international claims.

The Arms Trade Treaty (ATT), open for signature on June 3, 2013, is the first ever multilateral treaty on the global trade in conventional arms. It establishes common standards for the $40 billion legal international trade of weapons and seeks to reduce the illicit arms trade.

On July 11, 2013, the United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (Transparency Rules). The new Transparency Rules are the product of three years of negotiations in UNCITRAL. The Transparency Rules will be available in two forms: (1) as part of the UNCITRAL Arbitration Rules, for use in arbitrations conducted under those rules, and (2) as a free-standing set of rules, available for use in arbitrations conducted under other arbitral rules, such as the Rules of the International Centre for Settlement of Investment Disputes (ICSID), or in ad hoc proceedings. The Transparency Rules, as well as the new version of the UNCITRAL Arbitration Rules that incorporates the Transparency Rules, will come into effect on April 1, 2014. The Transparency Rules are for use only in treaty-based investor-State arbitration – not in traditional commercial arbitration.