Barbados/Trinidad and Tobago. Award on Jurisdiction and Merits. At <http://www.pca-cpa.org/ENGLISH/RPC/>, available at 45 ILM 800 (2006).

UN Convention on the Law of the Sea Annex VII Arbitral Tribunal, April 11, 2006.

The dispute addressed in the Barbados/Trinidad and Tobago arbitration emerged during nine rounds of negotiations concerning delimitation of die maritime boundary in the western, central, and eastern sectors of their overlapping claims to the continental shelf and 200-mile exclusive economic zone (EEZ) in the Caribbean Sea (five rounds), along with associated questions posed by the continuing access for Barbadian fisherfolk to flying fish stocks south of a prospective equidistance line in the western sector (four rounds). In February 2004, according to Barbados, the prime minister of Trinidad and Tobago declared the issue of the maritime boundary “intractable” (para. 56) and invited Barbados to proceed, if it so wished, with arbitration. Barbados then invoked the compulsory arbitration provisions of Part XV, Section 2, of the UN Convention on the Law of the Sea (LOS Convention). Upon its establishment, the Annex VII Barbados/Trinidad and Tobago Arbitral Tribunal [Tribunal], which comprised President Stephen M. Schwebel and arbitrators Ian Brownlie, Vaughan A. Lowe, Francisco Orrego Vicuña, and Sir Arthur Watts, adopted its Rules of Procedure and issued four orders by year's end. After joining Trinidad and Tobago's preliminary objections to the merits phase, the Tribunal held hearings in London on October 17-28,2005. The vital interests of the two states in valuable oil and fishery resources were reflected in the high intensity of the factual and legal (both procedural and substantive) contentions forcefully disputed by the parties as represented by leading international counsel, and a number of procedurally incidental issues arose in the context of the proceedings’ confidentiality and the treatment of evidence.

European Communities—Measures Affecting the Approval and Marketing of Biotech Products. WT/DS291/R, WT/DS292/R, & WT/DS293/R. At <http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm>.

World Trade Organization Panel, September 29, 2006 (adopted November 21, 2006).

In what was by far the longest panel report in the World Trade Organization’s history, a WTO panel ruled last September that various parts of the European Communities’ regulatory regime for the approval and marketing of “biotech products” (that is, products that contain, or are made from or with, genetically modified organisms (GMOs)) violated the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). The panel report was not appealed and was adopted by the WTO Dispute Settlement Body on November 21, 2006.

In recent years, a heated international debate has developed regarding the production and consumption of food made from or with GMOs. Among the key players in this debate, the United States, supported by many companies who have developed GMO-based products, has pushed for their acceptance; by contrast, the European Communities (EC) and its member states, backed by consumer groups and other activists, have tried to restrict their use through various regulations.

Prosecutor v. Karemera, Ngirumpatse, & Nzirorera. Case No. ICTR-98-44-AR73(C). Decision on Prosecutor's Interlocutory Appeal of Decision on Judicial Notice. At <http://www.ictr.org>.

International Criminal Tribunal for Rwanda, Appeals Chamber, June 16, 2006.

In an interlocutory appeal in Prosecutor v. Karemera, the appeals chamber of the International Criminal Tribunal for Rwanda (ICTR) held that the commission of genocide against the Tutsis in 1994 is a “fact of common knowledge” of which trial chambers must take judicial notice (Appeals Decision, paras. 35, 38). The decision represents a significant reversal in ICTR practice: although some trial chambers have been willing to take notice of “widespread and systematic attacks” against Tutsis in Rwanda, they have uniformly insisted that the question of whether the attacks amounted to genocide is so fundamental that formal proof is required.

As noted in the indictment, Edouard Karemera and Jospeh Nzirorera were minister-level officials in the Rwanda’ interim government (Indictment, paras. 1, 3) and served, along with Mathieu Ngirumpatse, as the national executive leadership of the National Republican Movement for Democracy and Development (MRND) (id., para. 9). They are charged with, inter alia, conspiracy to commit genocide, direct and public incitement to commit genocide, genocide, and—alternatively—complicity in genocide (id.). The prosecution alleges that they created, recruited, and organized the Interahamwe, the vicious youth wing of the MRND; provided members of the Interahamwe with weapons and military training; and helped formulate and implement policies of the interim government of April 8, 1994, that were intended to incite, encourage, and abet killings of Tutsis (id., para. 14).

Public Committee Against Torture in Israel v. Government of Israel. Case No. HCJ 769/02. At <http://elyonl.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf>.

Supreme Court of Israel, sitting as the High Court of Justice, December 13, 2006.

In Public Committee Against Torture in Israel v. Government of Israel1 Targeted Killings) the Supreme Court of Israel, sitting as the High Court of Justice, examined the legality of Israel's “preventative targeted killings” of members of militant Palestinian organizations. The Court's unanimous conclusion reads:

“Aerial Security Law.” Case No. 1 BvR 357/05. 115 BVerfGE 118. Available at <http://www.bundesverfassungsgericht.de>.

Bundesverfassungsgericht (Federal Constitutional Court of Germany), February 15, 2006.

On February 15,2006, the Federal Constitutional Court of Germany (Bundesverfassungsgericht) held the Aerial Security Act to be unconstitutional. This act authorized the use of military force against any aircraft intended to be used for the killing of human beings, if the use of such force was the only means to avert an immediate danger. The Court based its ruling on two grounds: first, that the federal level of government had no legislative power to enact such a law, and second, that the act's authorization of military force infringed upon the guarantee of human dignity as embodied in Article 1(1) of the German Constitution, or Basic Law (Grundgesetz).

On January 5, 2003, a small airplane circled over the Frankfurt banking district. For a few moments people saw themselves confronted with a terror attack, recalling 9/11 and the pictures of the burning World Trade Center. The police evacuated several buildings and two Air Force fighter jets arrived before it was established that the pilot was not a terrorist but merely a mentally confused person. A year later, in January 2004, the federal government proposed a draft federal Aerial Security Act. The government argued that the attacks of 9/11, along with the Frankfurt incident, made clear that in order to protect against such attacks, it was necessary to clarify the roles of the federal and state (Länder) governments. “This draft is meant to achieve that aim … and to establish quick and efficient mechanisms for information gathering and decision.”

Prosecutor v. Milutinović et al., Case No. IT-05-87-AR108bis.2, Decision on Request of the United States of America for Review.

Prosecutor v. Milutinović et al., Case No. IT-05-87-AR108bis.l, Decision on Request of the North Atlantic Treaty Organisation for Review.

International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, May 12 and May 15, 2006, respectively.

In May 2006, the appeals chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) granted the requests of the United States (U.S. Review Decision) and the North Atlantic Treaty Organization (NATO) (NATO Review Decision) and set aside the trial chamber's decision ordering the production of intercepted communications sought by defendant Dragolj ub Ojdanić. The appeals chamber held that Rule 54bis of the ICTY Rules of Procedure and Evidence does not require the possessor of intelligence information to produce that information when that state or international organization is not its owner or originator and that an order under Rule 54bis (“Orders Directed to States for the Production of Documents”) will not issue when a party refuses a state's cooperative efforts to provide information pursuant to Rule 70 (“Matters Not Subject to Disclosure”).

Natural Resources Defense Council v. Environmental Protection Agency. 464 F.3d 1.

United States Court of Appeals for the District of Columbia Circuit, August 29, 2006.

In Natural Resources Defense Councilv. Environmental Protection Agency, the U.S. Court of Appeals for the District of Columbia Circuit held that certain decisions of the parties acting under the international legal regime to protect the ozone layer are not “law” with which EPA must comply under the Clean Air Act. In dicta, the court suggested that holding the decisions to be “‘law’ would raise serious constitutional questions in light of the nondelegation doctrine, numerous constitutional procedural requirements for making law, and the separation of powers” (p. 9).

The purpose of the international ozone regime—in particular, the Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances That Deplete the Ozone Layer—is to protect stratospheric ozone, which intercepts harmful ultraviolet radiation from the sun. Unlike oxygen (O2), ozone (O3) is unstable: when a chlorine or bromine compound reaches the stratosphere, it sets off chemical chain reactions that destroy thousands of ozone molecules. As industrial production of such compounds has increased, stratospheric ozone has been depleted, allowing more ultraviolet radiation to reach the Earth, where it causes skin cancer and cataracts, reduces agricultural productivity, and harms the environment. The ozone regime reduces ozone-depleting substances (ODS) in the stratosphere by phasing out their production.

Commission of the European Communities v. Ireland. Case C-459/03. Jud gment. At <http://eur-lex.europa.eu>.

Court of Justice of the European Communities (Grand Chamber), May 30, 2006.

On May 30,2006, the Court of Justice of the European Communities (ECJ) ruled on Case C-459/03, Commission v. Ireland, brought by the European Commission (Commission) and alleging Ireland's failure to fulfill obligations under the Treaty Establishing the European Community (EC Treaty). In 2001, Ireland had initiated proceedings against the United Kingdom before an ad hoc Arbitral Tribunal pursuant to the Annex VII dispute settlement procedures of the 1982 UN Convention on the Law of the Sea (LOS Convention). In the present case, the Commission alleged, first, that Ireland breached Article 292 of the EC Treaty and Article 193 of the EURATOM Treaty (EA Treaty) because, by submitting the dispute to Annex VII arbitration, Ireland failed to respect the ECJ's exclusive jurisdiction on the interpretation and application of EC law. Second, the Commission claimed that Ireland had violated Article 10 of the EC Treaty and Article 192 of the EA Treaty because, by not consulting with the Commission before initiating arbitral proceedings, Ireland had hindered the achievement of the EC's tasks and jeopardized the attainment of the objectives of the EC Treaty. The Court upheld all complaints.

Aguas Del Tunari, S.A. v. Republic of Bolivia, ICSID Case No. ARB/02/3. Jurisdiction. 20 ICSID Review: Foreign Investment Law Journal 450 (2005).

International Centre for Settlement of Investment Disputes, October 21, 2005.

In Aguas del Tunari v. Republic of Bolivia, an International Centre for Settlement of Investment Disputes (ICSID) tribunal held that it had jurisdiction under the Netherlands-Bolivia bilateral investment treaty (BIT) over a claim against Bolivia brought by a Bolivian company owned primarily by two companies— one American and one Spanish—through Dutch intermediaries. The tribunal found that the Dutch intermediaries “controlled” the Bolivian company and that jurisdiction existed notwithstanding that the dispute related to a concession agreement with a choice-of-forum clause designating Bolivian courts.

The origin of the dispute lay in Bolivia's attempt in the late 1990s to privatize the water service in Cochabamba, its third largest city. In September 1999, Bolivia awarded a forty-year concession agreement to a Bolivian company, Aguas del Tunari, S.A. (AdT), for the exclusive provision of water services in the city.