the indian society of international...

January-March 2009 1

Editorial

Bangladesh gave notice to India and Myanmar on October 2009 about initi-ating arbitration under the United Nations Convention on Law of the Sea(UNCLOS) seeking, delineation of the boundary of continental shelf in theBay of Bengal. As the initiator, Bangladesh first nominated Alan VaughanLowe, a former Chichele Professor of Public International Law in the OxfordUniversity. Thereafter, India nominated P. Sreenivasa Rao, a former legal advi-sor to the Ministry of External Affairs and former member of the InternationalLaw Commission. Both countries are yet to agree on a third arbitrator. In fact,Bangladesh raised concerns on some aspects of the UNCLOS which has estab-lished the formula to determine base line and also the equidistant/equitableprinciple to delimit the continental shelf between opposite and adjacentStates. Bangladesh is contending that India has trained the river upstream to

divert the flow of the Hariabhanga River, west of New Moore Island (South Talpatti). Hence, Bangladeshargues that the baseline should be determined by the depth rather than objects on the coast. Bangladesh isalso advocating the application of equitable principle, applicable in disputed areas (surrounding the NewMoore Island-Sunderban-Bay of Bengal). India relied on Article 15 of UNCLOS regarding “delimitation ofthe territorial sea between States with opposite or adjacent coasts”. It states that “where the coasts of twoStates are opposite or adjacent to each other, neither of the two States is entitled, failing agreement betweenthem to the contrary, to extend its territorial sea beyond the median line every point of which is equidistantfrom the nearest points on the baselines from which the breadth of the territorial seas of each of the two Statesis measured.” India argues that the above provision, however, does not apply, where it is necessary by reasonof historic title or other special circumstances to delimit the territorial seas of the two States in a way whichis at variance therewith.” In brief, it is obvious that if no treaty exists otherwise (as in the case of India-Bangladesh), the equidistant line should be considered as the boundary. India also explained that there areneither any historic title, nor special circumstances exist between these two countries. Nor Bangladesh wasable to draw sea base line in the disputed sea areas. Hence, India believes that technically their claim will getpriority over the Bangladesh claim since India follows the equidistant principle. India is also relying on thejudgment of the ICJ in the North Sea Continental Shelf case (1969) that appeared to treat the equidistantprinciple as a general rule to which “special circumstances rule will follow”. Some scholars reviewed statepractice covering the period between 1945 and 1983 and concluded that “in large majority of cases Stateshave been satisfied that the median or equidistant line leads to an equitable solution or result.”

India has so far delimited maritime boundary with Maldives, Sri Lanka, Thailand, Myanmar and even withIndonesia. India has, between 1974 and 1979, concluded eleven Agreements with five of its neighbours,namely Sri Lanka, Maldives, Indonesia, Myanmar and Thailand. The boundary negotiations with Bangladeshcommenced in October 1974 and have not yet been concluded. In fact, India had already presented asubmission on May 11, 2009 to the Commission on the Limits of the Continental Shelf on its claims on thecontinental shelf beyond 200 nautical miles in only three areas – the eastern offshore region in the Bay ofBengal, western offshore region of the Andaman Islands and the western offshore region in the Arabian Sea.Since 1970’s, India has already carried out seismic survey and made Bangladesh aware about it. However,recent developments in the exploration of Bay of Bengal involved interest of foreign oil companies grantedlicence by the Bengladesh. India’s policy, nevertheless, in this matter seems to suggest to resolve maritimedispute amicably with Bangladesh through negotiation.

Ram Niwas Mirdha

PresidentRam Niwas Mirdha

Executive PresidentR. P. Anand

Vice PresidentsNarinder Singh

C. K. ChaturvediR. Venkat Rao

TreasurerV. G. Hegde

Secretary GeneralRahmatullah Khan

DirectorS. K. Verma

INSIDE

Recent Activities ...................................... 2-5

Recent Developmentsin International Law .................................. 5-8

Forthcoming Event ...................................... 7

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

Published by:The Indian Society of International Law

V.K. Krishna Menon Bhawan,9, Bhagwan Dass Road,

New Delhi-110001 (INDIA)Tel.: 23389524, 23384458-59 Fax: 23383783

E-mail: [email protected]: www.isil-aca.org

The Indian Societyof International Law

VOL. 8, NO. 3, July-September 2009

N E W S L E T T E R

For members only

2 January-March 2009

RECENT ACTIVITIES

ONE WEEK COMPULSORYTRAINING COURSE FOR THEINDIAN FOREST SERVICEOFFICERS ON POLICY ANDLEGAL ISSUES IN FORESTRYThe ISIL organized one week compulsorytraining course on Policy and legal Issues inForestry on August 3 – 7, 2009. The trainingcourse comprised of a series of lectures on avariety of aspects of law and policy governingIndia’s forests. The lectures covered bothinternational and national legal instruments thatgovern protection and preservation of India’sforests. The training course was participated bynineteen Indian Forest Service officers drawnfrom different parts of the country.

We had four classes daily followed bydiscussion. The inaugural lecture was deliveredby Prof. Rahmatullah Khan, Secretary GeneralISIL, on General Principles of InternationalEnvironmental Law. Prof. Khan spoke on theemergence of state system aftermath of the treatyof Westphalia. He outlined how state becamesovereign of all the natural resources existingwithin its jurisdiction. He also discussed stateentering into treaty with another state for theextraction of natural resources.

Ms. Meena Panicker, lecturer at the DelhiUniversity Campus Law Centre, presented anoverview of the Rio Forest Principles. Thoughthe principles are legally non-binding, it servesas source of law-making in many countries andfuture negotiations at multilateral forum. Shespoke on the issues of equity, which is the heartand soul of the Rio Forest principles. The firstlecture of the first day’s post lunch session wasgiven by Prof. C. K. Varshney on the topic titledGrowing Importance of Forests in ShapingEnvironmental Policy for SustainableDevelopment. He focused on the contribution offorests in the ecological processes.

The last lecture of the first day was given by Dr.Anwar Sadat, Assistant Professor, ISIL, on thetheme Climate Change and Forests. Hediscussed in the lecture how forests have beendealt with in the climate change regime. Hebegan his lecture discussing role of forests ingreenhouse gas mitigation and its role inemission of greenhouse when forests aredestroyed as a result of harvest, fires or pestattacks. He discussed the kind of shape forestrelated issues are taking in the post-Kyotophase.

The second day (August 4, 2009) was entirelydevoted to the legal instruments responsible forconservation of biological diversity. Professor S.K. Verma, Director ISIL, initiated the discussionon the Convention on Biological Diversity 1992.

She discussed the objectives of the Conventionand critically analysed all those provisions in theConvention bearing on the issues of intellectualproperty rights.

Second lecture of the second day was given byMs. Meena Panicker on the Biological DiversityAct 2002. Lecture was replete with thoseprovisions which are meant for conservation ofbiological diversity, sustainable use of it andbenefit sharing. She discussed the role ofNational Biological Diversity Authority of India.

Two lectures of the post lunch session of thesecond day were devoted to one themeBiotechnology, Biodiversity and SustainableDevelopment. Prof. B. N. Prasad, Head of theDepartment of Microbiology Amity University,spoke on the subject. He strongly underlined theimportance of biotechnology in the production offood. How varieties of rice could becomepossible with the help of biotechnology?

The first two lectures of the third day (August 5,2009) of the training course were devoted toContribution of Indian Judiciary in the Protectionof Environment and Principle of SustainableDevelopment and Forests. Sanjay Parikh,eminent lawyer, spoke on both the themes. Hecited all the relevant cases which enumeraterelevant principles of environmental law andsustainable development. He underlined the needthat people will have to assert that naturalresources are the common property and it shouldbe protected and sustainably used.

The last two lectures of the day were devoted toTribal and Protected Areas: Law and PolicyAspect. Madhu Sarin, one of the leadingactivists for the cause of tribal welfare with thehelp of forests, spoke on the subject. She traced

the evolution of the forest policy since the Britishtimes till today. She pointed out that the Britishersare first responsible for drawing demarcationlines between forests and tribals. The samepolicy was reflected in the Indian Forest Act1927 and the Forest Act of 1980 with minoralterations. She substantiated her argument withthe wealth of information on how tribals havebeen dealt with by the forest officials. The secondpart of her lecture was based on Forest Act2005.

The first two lectures of the fourth day were onthe theme Concept of Protected Areas &Forests in India and Protected Areas andWildlife Protection Act 1972 respectively. Mrs.Vishaish Uppal, Senior Coordinator Sustainablelivelihoods Programme at World Wide Fund forNature (WWF), spoke on both the themes. Shediscussed the role of protected areas in thepreservation of forests. She also discussed IndiaEco-development project, which was funded byGlobal Environment Facility (GEF) andInternational Development Association (IDA).The second part of her lecture was on themeProtected Areas and Wildlife Protection Act 1972.There is synergy between protected areas andconservation of wild animal. Her lectures werewell received by the audience. The post lunchsession of the day was meant for paneldiscussion. The topic of the panel discussionwas Improvement in the Working of ForestDepartments-Need for Career Developmentthrough Training and Improvement of Skills. Thefollowing were the panelists R.B. Singh, Prof. ofGeography at Delhi School of Economics,Kashmir Singh Dehal, Principal ChiefConservator of Forests, Tamil Nadu and Prof.B.N. Prasad). Kashmir Singh Dehal, being the


seniormost member among the participants,chaired the session. The discussion was initiatedby Prof. R.B.Singh. He made a comprehensivepresentation about improvement in the workingcondition of forest department. In his power pointpresentation, Prof. Singh covered a wide rangeof issues aimed at improvement in the workingcondition of the department. He said how forestfires are being dealt with in different countries.How eco-tourism can be made effective sourceof revenue spinner and it can be promoted forcareer development.

Prof. B. N. Prasad furthered the paneldiscussion. He shared his experience of Nepalwith the Indian Forest Service officers. He alsoconcurred with the opinion of eco-tourism as oneof the means to promote career development.Kashmir Singh Dehal, who was chairing thesession, summed up the discussion very well.After the end of the discussion, the IFS officialsvisited Supreme Court of India.

The last day of the training course (07-08-09)came to an end with two lectures in the firstsession. The first lecture was delivered by Prof.R. B. Singh on the theme Forest Ecosystem-Monitoring and Management. The last lecture ofthe training course on the theme IntellectualProperty Rights and Forests was given by Dr.V. G. Hegde, Associate Professor at the Centrefor International Legal Studies JNU. He linkedtraditional knowledge in the IPR with the issuesof forests. He said rights of those people who areprotecting traditional knowledge must beprotected. The lecture was immediately followedby certificate distribution ceremony. Thecertificates were given to IFS officers by Prof.R. P. Anand, Executive President, ISIL.

LECTURE ON “GENERALAGREEMENT ON TRADE INSERVICES AND INVESTMENTAGREEMENT” BY SUFIANJUSOH, NCCR RESEARCHFELLOW, THE WORLD TRADEINSTITUTE, BERN,SWITZERLANDIndian Society of International Law (ISIL)organised a special lecture on “GeneralAgreement on Trade in Services and InvestmentAgreement” on 11 August 2009 at its premises.Prof. R. P. Anand, Executive President, ISILintroduced the speaker Mr. Sufian Jusoh, NCCRResearch Fellow, The World Trade Institute,Bern, Switzerland. The Lecture witnessed livelyexchange of views with the audience on hispresentation.

A SPECIAL LECTURE ON “UNACTION AGAINSTTERRORISM” BY DR. ROHANPARERA, LEGAL ADVISOR,MINISTRY OF FOREIGNAFFAIRS, SRI LANKAIndian Society of International Law (ISIL)organised a special lecture on “UN Actionagainst Terrorism” on 7 September 2009 at itspremises. Dr. M. Gandhi, Director, L&TDivision, MEA, Government of India introducedthe speaker Dr. Rohan Parera, Legal Advisor,Ministry of Foreign Affairs, Sri Lanka. Hediscussed the political view of criminal act ofcivilized society and the progress ofcomprehensive response of criminal approach.The response to terrorism from internationalcommunity can be divided into three stages: 1.Early phase of 1970; 2. 1990’s phase; 3.Comprehensive Convention on International law.

Early phase of 1970’s underlined where politicalfactors like debates on terrorism figured.Emotional debates and convention in 1970’s didnot result in an effective instrument or yielded toany legal framework for terrorism. However, thisphase witnessed 6th Commission of 1972,where Saudi Arab suggested title for internationalinstrument as measures to eliminate internationalterrorism. It was proclaimed that terroristoccupied nation should be liberated from terroristand foreign occupation and pure legislativeapproach should be adopted through politicalmeans. Second phase underscores adoption ofthe Geneva Convention of 1996 which gaveemphasis to curb terrorist financing. Final phaseyields ad hoc committees to elaborate oninternational terrorism which dealt with 1-Specific offences; 2 - Creditable threats; 3 -Refugee status; 4 - Treaty provisionsconventional form; 5 - Operation of training

campus; 6 - Collateral damages. The Lecturewitnessed lively exchange of views with theaudience on his presentation. Prof. S. K. Vermagave vote of thanks.

CONVOCATION ANDINAUGURAL OF P. G.DIPLOMA AND CERTIFICATECOURSES OF THE INDIANACADEMY OFINTERNATIONAL LAW, ISIL,NEW DELHIISIL organized the Convocation for Awarding ofPost Graduate Diploma Certificates AcademicSession (2008-09) on 1st September 2009. Theceremony was also marked to inaugurate PostGraduate Diploma and Certificate Courses forthe 2009-2010. Prof. S. K. Verma, Director,ISIL, welcomed and introduced the chief guestHon’ble Justice A. K. Sikri, Judge, High Courtof Delhi and invited him to give inauguraladdress. Hon’ble Justice Shri Sikri distributedcertificates to students of ISIL. Mr. Manish KumarYadav received V. K. Krishna Menon MemorialPrize for securing the highest marks in the PostGraduate Diploma Course in International Lawand Diplomacy; Mr. Nishant Garg received K.Krishna Rao Memorial Prize for securing thehighest marks in the Post Graduate DiplomaCourse in International Trade and Business Law;Dr. Ish Kumar received Judge Nagendra SinghMemorial Prize for securing the highest marks inthe Post Graduate Diploma Course in HumanRights, International Humanitarian and RefugeeLaw; and Mr. Nipun Bhatia received M. K.Nawaz Memorial Prize in the Certificate Courseon International and National Intellectual PropertyRights.


LECTURE ON “PROGRESSIVEDEVELOPMENT OFINTERNATIONAL LAW ANDROLE OF INTERNATIONALLAW EXPERTS FROM THIRDWORLD” BY DR. P. S. RAO,FORMER JUDGE, ICJIndian Society of International Law (ISIL)organised a special lecture on “ProgressiveDevelopment of International Law and Role ofInternational Law Experts from Third World” on25 September 2009 at its premises. Prof. R. P.Anand, Executive President, ISIL, introducedthe speaker Dr. P. S. Rao, Former Judge, ICJ,Former Legal Advisor, MEA, Government ofIndia. He highlighted the efforts of first generationthird world scholars, to challenge the hegemonyof mainstream scholars which paved the way forthe second generation scholars to establishprogramme of new international economic order.He made a number of observations on thewritings of eminent scholars of third world ofthose days in the development of internationallaw. The Lecture witnessed lively exchange ofviews with the audience on his presentation. Dr.M. Gandhi, Director, L&T Division, MEA,Government of India gave vote of thanks.

NINTH HENRY DUNANTMEMORIAL MOOT COURTCOMPETITIONISIL and the International Committee of the RedCross (ICRC), New Delhi organized the NinthHenry Dunant Memorial Moot Court Competition

Dr. Ambedkar Law University, Chennai wasadjudged the Best Advocate, Ms. Rasleen KaurDua, Rajiv Gandhi National University of Law,Patiala won the Best Researcher award, andLaw Centre - I, Delhi University, Delhi wonBest Memorial award in this Competition.Hon’ble Justice Lokur gave valedictory addresson the occasion.

VISIT OF STUDENTSA delegation of 35 students from DurgapurInstitution of Legal Studies, Burdwan, visitedISIL on 13 August 2009. Prof. R. P. Anand,Exeuctive President, ISIL, and Prof. S. K.Verma, Director, ISIL spoke to the students anddescribed the activities of ISIL to the visitors andalso discussed the importance of internationallaw and career prospect in this area.

RECENTDEVELOPMENT

AGREEMENT ON PORT STATEMEASURES TO PREVENT,DETER AND ELIMINATEILLEGAL, UNREPORTED ANDUNREGULATED FISHING (IUU)91 countries (FAO members) have agreed to thefinal text of a United Nations-brokered treatyaimed at combating illegal, unreported andunregulated (IUU) fishing on 1 September 2009.This will be the first ever legally-binding globalpact that commits governments to prevent, deterand eventually eliminate illegal, unreported andunregulated (IUU) fishing by taking steps toguard their ports against ships engaged in suchillicit practices and consequently preventing theircatch from entering international markets. ElevenFAO members – Angola, Brazil, Chile, theEuropean Commission, Indonesia, Iceland,Norway, Samoa, Sierra Leone, the UnitedStates and Uruguay signed the treatyimmediately following its approval by theagency’s Governing Conference. The“Agreement on Port State Measures to Prevent,Deter and Eliminate Illegal, Unreported andUnregulated Fishing” will enter into force once 25countries have ratified it.

In the Agreement, countries agreed to take anumber of steps to harden their ports againstIUU fishers. Key points of the treaty include:Foreign fishing vessels wishing to dock will berequired to request permission from specially

RECENT ACTIVITIES/ RECENT DEVELOPMENT

at its premises from 10th to 13th September 2009.Prof. R. P. Anand, Executive President, ISIL,gave welcome address. On this occasionHon’ble Justice Dalveer Bhandari, Judge,Supreme Court of India, gave inaugural address.He appreciated team members participations andunderlined the importance of the event in thepresent day which equip the students to developskills and create asset for the bar of the country.Mr. Yahia Alibi, Deputy Head of the Delegation,ICRC, New Delhi, also addressed the gatheringand spoke on the importance of the subject of themoot court competition and highlighted thecontribution of the ICRC in the development ofinternational humanitarian law. Participants from48 law universities and/ colleges came toparticipate in the Competition. Prof. S. K. Verma,Director, ISIL, gave a formal vote of thanks.

The Competition was conducted in four stages,preliminary, quarter-final, semi-final and finalrounds. The participants were judged on thebasis of written memorials, appreciation of factsand law, advocacy skills, use of authorities andcitations, general impression and court manners.Eminent professors, legal officers andinternational law scholars judged the teams inpreliminary, quarter-final and semi-final rounds.Hon’ble Justice Madan Lokur, Judge, Delhi HighCourt, His Excellancy, Prof. Dr. Rahmat BinMohamad, Secretary General, AALCO, NewDelhi and Hon’ble Justice Dr. S. Muralidhar,Judge, Delhi High Court, were the final roundjudges. School of Law in Excellence, The TamilNadu Dr. Ambedkar Law University, Chennaiand NALSAR, Hyderabad, were the winner andrunner up of the Competition respectively.Smirthi Ramesh, School of Excellence in Law,


designated ports ahead of time, transmittinginformation on their activities and the fish theyhave on board - this will give authorities anopportunity to spot red flags in advance; thetreaty commits countries to regular inspectionsand outlines a set of standards that will be usedduring those inspections. Reviews of shippapers, surveys of fishing gear, examiningcatches and checking a ship’s records can oftenreveal if it has engaged in IUU fishing;Signatories must ensure that ports and inspectorsare adequately equipped and trained; When avessel is denied access, port states mustcommunicate that information publicly andnational authorities from the country whose flagthe vessel is flying must take follow-up action;The treaty calls for the creation of information-sharing networks to let countries share details onIUU-associated vessels, and also containsprovisions intended to assist resource-strappeddeveloping countries meet their treaty obligations;Regular monitoring of compliance will take place,with a major review scheduled to occur fouryears after the Agreement takes effect.

ICJ ON NAVIGATIONAL ANDRELATED RIGHTS (COSTARICA V. NICARAGUA)ICJ, on 13 July 2009, delivers the followingJudgment on Navigation and related rights. Thefacts of the case as follow: On 29 September2005 the Republic of Costa Rica (hereinafter“Costa Rica”) filed in the Registry of the Courtan Application of the same date, institutingproceedings against the Republic of Nicaragua(hereinafter “Nicaragua”) with regard to a“dispute concerning navigational and relatedrights of Costa Rica on the San Juan River”. Inits Application, Costa Rica seeks to find thejurisdiction of the Court on the declaration it madeon 20 February 1973 under Article 36, paragraph2, of the Statute, as well as on the declarationwhich Nicaragua made on 24 September 1929under Article 36 of the Statute of the PermanentCourt of International Justice and which isdeemed, pursuant to Article 36, paragraph 5, ofthe Statute of the present Court, for the periodwhich it still has to run, to be acceptance of thecompulsory jurisdiction of this Court. CostaRica also seeks to found the jurisdiction of theCourt on the Tovar-Caldera Agreement signedbetween the Parties on 26 September 2002. Inaddition, Costa Rica invokes as a basis of theCourt’s jurisdiction the provisions of Article XXXIof the American Treaty on Pacific Settlement,officially designated, according to Article LXthereof, as the “Pact of Bogotá”.

Taking account of the subject of the dispute and ofthe Parties’ submissions and arguments, theCourt proceeded in the following manner. It firstdetermined the extent of Costa Rica’s right of freenavigation on the San Juan river. It nextascertained whether, and to what extent, withinthe ambit of the right thus defined, Nicaragua hasthe power to regulate navigation by Costa Ricanboats and whether the specific measures it hasdecided and put into effect to this end during theperiod of the dispute are compatible with CostaRica’s rights. It then considerd the question of theright which Costa Rica claims for inhabitants ofthe Costa Rican bank of the river to engage insubsistence fishing. Finally, in the light of itsreasoning on the preceding points, it considerdthe Parties’ claims as presented to it in their finalsubmissions, in respect in particular of theappropriate remedies.

The ICJ, with regards to Costa Rica’snavigational rights on the San Juan river underthe 1858 Treaty, where navigation is common,unanimously, finds that Costa Rica has the rightof free navigation on the San Juan river forpurposes of commerce. It also unanimously,finds that the right of navigation for purposes ofcommerce enjoyed by Costa Rica includes thetransport of passengers. It also, unanimously,finds that the right of navigation for purposes ofcommerce enjoyed by Costa Rica includes thetransport of tourists. By nine votes to five, ICJfinds that persons travelling on the San Juanriver on board Costa Rican vessels exercisingCosta Rica’s right of free navigation are notrequired to obtain Nicaraguan visas. It,unanimously, finds that persons travelling on theSan Juan river on board Costa Rican vesselsexercising Costa Rica’s right of free navigationare not required to purchase Nicaraguan touristcards. By thirteen votes to one, ICJ finds thatthe inhabitants of the Costa Rican bank of theSan Juan river have the right to navigate on theriver between the riparian communities for thepurposes of the essential needs of everyday lifewhich require expeditious transportation.

By twelve votes to two, ICJ finds that CostaRica has the right of navigation on the San Juanriver with official vessels used solely, in specificsituations, to provide essential services for theinhabitants of the riparian areas whereexpeditious transportation is a condition formeeting the inhabitants’ requirements.

ICJ, unanimously, finds that Costa Rica doesnot have the right of navigation on the San Juanriver with vessels carrying out police functions.ICJ, unanimously, finds that Costa Rica doesnot have the right of navigation on the San Juan

river for the purposes of the exchange ofpersonnel of the police border posts along theright bank of the river and of the re-supply ofthese posts, with official equipment, includingservice to arms and ammunition.

ICJ with regard to Nicaragua’s right to regulatenavigation on the San Juan river, in that partwhere navigation is common, unanimously, findsthat Nicaragua has the right to require CostaRican vessels and their passengers to stop atthe first and last Nicaraguan post on their routealong the San Juan river. It, unanimously, findsthat Nicaragua has the right to require personstravelling on the San Juan river to carry apassport or an identity document. It,unanimously, finds that Nicaragua has the right toissue departure clearance certificates to CostaRican vessels exercising Costa Rica’s right offree navigation but does not have the right torequest the payment of a charge for the issuanceof such certificates. It, unanimously, finds thatNicaragua has the right to impose timetables fornavigation on vessels navigating on the SanJuan river. It, unanimously, finds that Nicaraguahas the right to require Costa Rican vessels fittedwith masts or turrets to display the Nicaraguanflag.

ICJ, with regard to subsistence fishing, bythirteen votes to one, finds that fishing by theinhabitants of the Costa Rican bank of the SanJuan river for subsistence purposes from thatbank is to be respected by Nicaragua as acustomary right.

ICJ with regard to Nicaragua’s compliance withits international obligations under the 1858 Treaty,by nine votes to five, finds that Nicaragua is notacting in accordance with its obligations underthe 1858 Treaty when it requires personstravelling on the San Juan river on board CostaRican vessels exercising Costa Rica’s right offree navigation to obtain Nicaraguan visas.

ICJ, unanimously, finds that Nicaragua is notacting in accordance with its obligations underthe 1858 Treaty when it requires personstravelling on the San Juan river on board CostaRican vessels exercising Costa Rica’s right offree navigation to purchase Nicaraguan touristcards.

ICJ, unanimously, finds that Nicaragua is notacting in accordance with its obligations underthe 1858 Treaty when it requires the operators ofvessels exercising Costa Rica’s right of freenavigation to pay charges for departureclearance certificates. ICJ, unanimously, rejectsall other submissions presented by Costa Ricaand Nicaragua.


FLORENCE HARTMANNGUILTY OF CONTEMPT OFTRIBUNALThe Specially Appointed Chamber on 14September 2009 convicted Florence Hartmann ofcontempt of the Tribunal for disclosing confidentialinformation in knowing violation of a court order.She was sentenced to pay a fine of 7,000 Euros,in two installments of 3,500 Euros each, to bepaid by 14 October and 14 November 2009respectively. Hartmann, a one-timespokesperson for a former Tribunal Prosecutor,disclosed the contents, purported effect andconfidential nature of two Appeals ChamberDecisions from the Slobodan Miloševiæ case ina book as well as an article authored by her in2007 and 2008.

VOJISLAV ŠEŠELJSENTENCED OFIMPRISONMENT FORCONTEMPT OF COURTTrial Chamber II on 24 July 2009 convictedVojislav Šešelj of contempt of the Tribunal andsentenced him to 15 months’ imprisonment fordisclosing the name and other personal details ofprotected witnesses in a book he authored.Šešelj, the leader of the Serbian Radical Party,is on trial before the Tribunal for alleged crimescommitted in Bosnia and Herzegovina andCroatia between 1991 and 1994.

On 21 January 2009 the chamber issued anorder in lieu of indictment charging the accusedwith having knowingly and willfully interferedwith the administration of justice by disclosingconfidential information of three witnesses whohad been granted protective measures in his warcrimes trial.

Šešelj admitted he was the author of the bookwhich was published after decisions grantingprotective measures were made but pleaded notguilty to charges of contempt at his initialappearance on 6 March. The trial took place on29 May.

Trial Chamber II found that Šešelj disclosedconfidential information “intentionally, with theknowledge that by doing so, he was violatingTrial Chamber orders”.

THREE PERMANENT JUDGESSWORN IN ICTYThree permanent judges were sworn in on 2nd

September 2009 before the Tribunal, replacing

three outgoing judges from Belgium, the UnitedKingdom and the Caribbean. Judges GuyDelvoie (Belgium), Howard Morrison (UnitedKingdom) and Sir Burton Hall (The Bahamas)were appointed by the UN Secretary-General inaccordance with Article 13bis of the ICTYStatute. Their appointments are effective as of 1September, 31 August and 7 August,respectively, until 31 December 2010 or until thecompletion of the cases to which they will beassigned if sooner. The three new Judgesreplace Judges Christine Van Den Wyngaert,Lord Iain Bonomy and Mohamed Shahabuddeenwho have resigned from the ICTY. The Tribunalhas 16 permanent judges, as well as 12 ad litemjudges who are appointed to sit on a specific trial.

MILAN LUKIC AND SREDOJELUKIC CONVICTED OF WARCRIMES IN VIŠEGRADTrial Chamber III today convicted Milan Lukiæand Sredoje Lukiæ, to life and 30 years’imprisonment respectively, for crimes againsthumanity and war crimes committed in easternBosnian town of Višegrad during the 1992-1995conflict. The two cousins were charged withmurder, torture and extermination committedmostly during the early months of the war. MilanLukiæ has been found guilty of persecutions,murder, extermination, cruel treatment, andinhumane acts, as crimes against humanity andwar crimes, in relation to six discrete incidents.He was convicted for the killing of five Muslimcivilian men at the Drina river on or about 7 June1992 and the killing of seven Muslim civilianmen at the Varda factory in Višegrad town on orabout 10 June 1992. Milan Lukiæ was also foundguilty of the murder of Hajra Koriæ. He wasadditionally found guilty of beating Muslimdetainees in the Uzamnica detention camp. Inaddition Milan Lukiæ was found responsible forthe murder of 59 Muslim women, children andelderly men in a house on Pionirska Street inVišegrad. On 14 June 1992, the victims werelocked into one room of the house which wasthen set on fire. Milan Lukiæ was found to haveplaced the explosive device into the room,which set the house ablaze. Milan Lukiæ shot atpeople trying to escape from the burning house.

Sredoje Lukiæ was also found guilty of aidingand abetting the commission of the crime ofpersecutions inhumane acts, murder and crueltreatment. Specifically, he was found guilty ofUzamnica camp beatings and the Pionirskastreet fire, Judge Patrick Robinson dissentingwith regards to the latter charge. He was found

not guilty, Judge Pedro David dissenting, ofcharges pertaining to Bikavac house fire.

The Trial of Milan and Sredoje Lukiæ began on 9July 2008 and the Prosecution completed itscase-in-chief on 11 November 2008 after callinga total of 46 witnesses. Sredoje Lukiæ’s Defencecase commenced on 1 December 2008 andconcluded on 2 December 2008 after calling atotal of three witnesses. Milan Lukiæ’s Defencecase commenced on 17 December 2008 andconcluded on 21 April 2009 after calling a total of28 witnesses. The Trial Chamber called a total offour witnesses. Closing arguments were heardon 19 and 20 May at which the Prosecutionasked for both Accused to be sentenced to spendthe remainder of their lives incarcerated while theDefence asked for both of them to be acquitted onall charges. Milan Lukiæ and Sredoje Lukiæwere initially indicted together with MitarVasiljeviæ. He was arrested in January 2000and sentenced to 15 years’ imprisonment byAppeals Chamber judgement rendered on 25February 2004.

Since its establishment the Tribunal has indicted161 persons for serious violations ofhumanitarian law committed on the territory of theformer Yugoslavia between 1991 and 2001.Proceedings against 120 have been concluded.

UNITED NATIONS FACTFINDING MISSION ON THEGAZA CONFLICTHead of the UN Fact Finding Mission JusticeRichard Goldstone presented the report of theMission to the Human Rights Council in Genevaon 29 September 2009, urging the Council andthe international community as a whole to put anend to impunity for violations of international lawin Israel and the Occupied Palestinian Territory.International Independent Fact Finding Missionwas established by the President of the HumanRights Council, on 3 April 2009, with themandate “to investigate all violations ofinternational human rights law and internationalhumanitarian law that might have been committedat any time in the context of the militaryoperations that were conducted in Gaza duringthe period from 27 December 2008 and 18January 2009, whether before, during or after.”

Following its 3-month investigation, the four-person Mission (Justice Richard Goldstone,Hina Jilani, Professor Christine Chinkin and BeitHanoun) concluded that serious violations ofinternational human rights and humanitarian lawwere committed by Israel in the context of its


military operations in Gaza from December 27,2008 to January 18, 2009, and that Israelcommitted actions amounting to war crimes, andpossibly crimes against humanity. The Missionalso found that Palestinian armed groups hadcommitted war crimes, as well as possiblycrimes against humanity.

The Mission recommends that the SecurityCouncil set up a body of independent experts toreport to it on the progress of the Israeli andPalestinian investigations and prosecutions. If theexperts’ reports do not indicate within six monthsthat good faith, independent proceedings aretaking place, the Security Council should referthe situation in Gaza to the ICC Prosecutor.

The report concluded that the Israeli militaryoperation was directed at the people of Gaza asa whole, in furtherance of an overall andcontinuing policy aimed at punishing the Gazapopulation, and in a deliberate policy ofdisproportionate force aimed at the civilianpopulation. The Report states that Israeli acts thatdeprive Palestinians in the Gaza Strip of theirmeans of subsistence, employment, housing andwater, that deny their freedom of movement andtheir right to leave and enter their own country,that limit their rights to access a court of law andan effective remedy, and could lead a competentcourt to find that the crime of persecution, a crimeagainst humanity, has been committed.

UNITED STATES SIGNEDDISABILITY CONVENTIONOn 31 July 2009, the United States signed UNConvention on the Rights of Disabilities to protectand promote the rights of the world’s estimated650 million people with disabilities. The totalnumber of signatories to the DisabilitiesConvention became 141 states. So far the treatyhas been ratified by 60 countries. In addition, theConvention’s Optional Protocol allowsindividuals to petition an international expert bodywith grievances.

REGIONAL CENTRE FORINTELLECTUAL PROPERTYDISPUTES IN SINGAPOREAsia’s first centre for dealing with disputes relatedto intellectual property including trademarks,copyright and patent issues will open inSingapore, the United Nations World IntellectualProperty Organization (WIPO) reported on 28July 2009. An agreement signed by WIPO andthe Singaporean Government will pave the way

for training and advice on procedures andprovide a dedicated dispute resolution facility inthe region, according to a joint communiqué. Thenew centre is designed to complement themediation work carried out by WIPO’s Genevaoffice, which was set up in 1994 and hashandled a caseload of over 30,000 disputessince then with the amounts in dispute rangingfrom tens of thousands to hundreds of millions ofdollars. Any parties may avail themselves of thedispute resolution procedures offered by thecentre, regardless of nationality or domicile. Theymay be held anywhere in the world, in anylanguage and under any law chosen by theparties.

CZECH REPUBLIC BECOMESSTATE PARTY TOINTERNATIONAL CRIMINALCOURTThe Czech Republic has become the 110th

country to ratify the Rome Statute, the pact thatestablished the International Criminal Court(ICC). The Czech Government deposited itsinstrument of ratification to the Statute on 21 July2009. The Statute will enter into force for theCzech Republic on 1 October 2009. All 27European Union members are now StatesParties.

UN COMMITTEE DISCUSSESNEW FORMS OFDISCRIMINATION AGAINSTWOMENOn 21 July 2009, the United Nations Committeeon CEDAW asked countries about the impact ofthe financial crisis on women is basic socialservices, including women’s salaries andwomen’s unemployment. The Committee is alsoconsidering the “scourge” of trafficking inwomen, and the impact on women of diseasesincluding outbreak of influenza. The Committeeon the Elimination of Discrimination AgainstWomen (CEDAW) has various means ofinfluencing countries’ behaviour, including thepublication of its observations, withrecommendations to be followed up. All thecommittee’s findings go to the UN HighCommissioner for Human Rights in Geneva,and form part of the Universal Periodic Reviewprocess, which involves a review of the recordsof all 192 UN Member States once every fouryears. At 21st July 2009 meeting of theCommittee’s 22 independent experts will reviewthe situation of women in Azerbaijan, Bhutan,Denmark, Guinea-Bissau, Laos, Japan, Liberia,Spain, Switzerland, Timor-Leste and Tuvalu.

UN TREATY ON MARITIMEGOODS TRANSPORTATIONSET TO BE SIGNED INROTTERDAMA new United Nations treaty the (UNConvention on Contracts for InternationalCarriage of Goods Wholly or Partly by Sea,also known as the “Rotterdam Rule”) governingthe movement of commercial cargo by sea isslated to be signed on 22nd September 2009 inRotterdam. The Convention, adopted by the UNGeneral Assembly in December 2008, creates aset of contemporary and uniform rules for thetransportation of containers that include aninternational sea leg, but is not limited to port-to-port shipping of goods. Describing the rights andobligations of all parties involved in shipping ofgoods by sea, the treaty aims to bring clarityregarding who is responsible and liable for what,when, where and to what extent. Among theinnovations contained in the Convention, whichupdates and replaces three obsolete treaties, areprovisions covering electronic transport recordsand container shipping as well as regulations forcombined sea and land transport.

REPUBLIC OF KOSOVO JOINSICSID The Convention on the Settlement of InvestmentDisputes between States and Nationals of OtherStates (the ICSID Convention) was signed bythe Republic of Kosovo on June 29, 2009.Before signing the ICSID Convention, theRepublic of Kosovo became a member of theInternational Monetary Fund (IMF) and of theInternational Bank for Reconstruction andDevelopment (IBRD). The Republic of Kosovoalso joined the International DevelopmentAssociation (IDA), the International FinanceCorporation (IFC), and the MultilateralInvestment Guarantee Agency (MIGA). TheRepublic of Kosovo also deposited its Instrument

FORTHCOMING EVENTCompulsoary One Week TrainingProgramme on Trade and IntellectualProperty Rights for Indian Forest ServiceOfficers on 5-9 October 2009

A Special Lecture on “International Law andSocial Transformation” by Prof. P. IshwarBhat, Professor of Law, University ofMysore, on 23 October 2009.

India-Australia Dialogue on International Lawjointly organising by the Indian Society ofInternational law (ISIL) and Australian andZealand Society of International Law, on 5-6December 2009.


Printers: Paras Printers 4648/21 Sedhumal Building, Ansari Road, Darya Ganj, New Delhi-110002

Current Issue ofIndian Journal of International LawJuly-September 2009, Vol. 49, No. 3

CONTENTS

ARTICLES

Legal and Ethical Issues in Physicians’ ‘Right’of Conscientious Objection in HealthcareService Delivery: A Comparative Reflection

Yusuff Abdulwasiu Ojo Akorede

The Human Right to Health, Access to Drugsand Global Medical Patents

B. C. Nirmal

Deep Seabed Enactments: In Demise or WithDelusion to Sustain

M. Habibur Rahman

Regional Trade Agreements: LegalInterpretations and Suggested Proposals

Vinai Kumar Singh

SHORTER ARTICLE

Critical Issues Relating to Intellectual PropertyRights (IPR) in Biotechnology: DevelopingCountries’ Perspective and India

Amit Singh

OFFICIAL DOCUMENTS

India-ASEAN Relations, July 2009

Agreement on Dispute Settlement Mechanismunder the Comprehensive EconomicCooperation between the Republic of India andthe Association of Southeast Asian Nations,July 2009

BOOK REVIEW

Dr. (Mrs.) Harpal Kaur Khehra (ed.), Law inIndia: Emerging Trends

G. S. Sachdeva

SELECT BIBLIOGRAPHY AND NEWACQUISITIONS

New Acquisitions to the ISIL Library fromJuly to September 2009

of Acceptance of the ICSID Convention with theWorld Bank, which acts as the depositary of theConvention. The ICSID Convention will enterinto force for the Republic of Kosovo on July 29,2009, following the completion of all requirementsfor ICSID membership.

DENUNCIATION OF THE ICSIDCONVENTION BY ECUADOROn July 6, 2009, the World Bank received awritten notice of denunciation of the Conventionon the Settlement of Investment Disputesbetween States and Nationals of Other States(the ICSID Convention) from the Republic ofEcuador. In accordance with Article 71 of theICSID Convention, the denunciation will takeeffect six months after the receipt of Ecuador’snotice, i.e., on January 7, 2010.

RECENT DEVELOPMENT INHCCHHague Intercountry Adoption Convention is soonto be in force for 81 States. Nepal, Greece,Cape Verde and the Republic of Togo joined theHague Convention of 29 May 1993 on Protectionof Children and Co-operation in Respect ofIntercountry Adoption on 28 April 2009, 2September 2009, 4 September 2009 and 12

October 2009 respectively. The Convention willenter into force for Greece and Cape Verde on 1January 2010, for Togo on 1 February 2010.

The Hague Convention of 19 October 1996 onJurisdiction, Applicable Law, Recognition,Enforcement and Co-operation in Respect ofParental Responsibility and Measures for theProtection of Children was signed and ratifiedby Switzerland and the Republic of Croatia on27 March 2009 and 4 September 2009. TheConvention will enter into force for theSwitzerland on 1 July 2009 and for the Republicof Croatia on 1 January 2010.

The Hague Convention of 5 July 2006 on theLaw Applicable to Certain Rights in Respect ofSecurities held with an Intermediary was ratifiedby Switzerland on 14 September 2009. Twomore ratifications or accessions are needed inorder for the Convention, which is open forsignature by all States, to enter into force.

The Hague Convention of 30 June 2005 onChoice of Court Agreements was signed by theUS and the European Community on 19January 2009 and 1 April 2009 respectively.

INDIA-ASEAN RELATIONSRecently, India finalized text of Trade-in-GoodsAgreement under a Free Trade Agreement (FTA)with the ASEAN block, which will ensure

lowering of duties and free flow of trade in goods.India-ASEAN relations have deepened andintensified significantly in recent years. Indiabecame sectoral dialogue partners of ASEAN in1992. In 1996, this was upgraded to full dialoguepartnership. Since 2002, India have annualSummits with ASEAN – along with China,Japan and Republic of Korea. With this in mindIndia looks forward to the India-ASEANMinisterial Meeting on 22nd July, 2009 to beheld in Thailand and the 7th India-ASEANSummit proposed to be held in Thailand inOctober, 2009.

SOUTH KOREA, INDIA SIGNBILATERAL TRADE PACTSouth Korea and India signed a comprehensivefree trade agreement on 7 August 2009 that willslash tariffs, encourage mutual foreigninvestment, and facilitate the exchange ofprofessional workers between the two countries.In 2007, South Korea signed a bilateral free tradeagreement with the United States but that pacthas yet to be ratified by the legislatures in bothcountries. However, South Korea already has afree trade agreement with the Association ofSoutheast Asian Nations (ASEAN).

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