July-September 2010 1

PresidentR. P. Anand

Vice PresidentsNarinder Singh

C. K. ChaturvediR. Venkat Rao

TreasurerV. G. Hegde

Secretary GeneralRahmatullah Khan

DirectorS. K. Verma

INSIDE

Recent Activities ...................................... 2-4

Recent Developmentsin International Law .................................. 4-8

New Additions in ISIL Library .................... 8

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

Forthcoming Events .................................... 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: isil@giasdl01.vsnl.net.inWebsite: www.isil-aca.org

The Indian Societyof International Law

VOL. 9, NO. 3, July-September, 2010

N E W S L E T T E R

For members only

Editorial

The legitimacy of unilateral declaration of independence has generated heateddebate. Asserting that right to self-determination and secession as an arm of theright, ICJ, on 22 July 2010, in its advisory opinion on Kosovo’s unilateral declarationof independence, held that the unilateral declaration of independence by Kosovodid not violate general international law, nor did Resolution 1244 (1999) or theConstitutional Framework, nor any applicable rule of international law. The GAhad posed the following question for advisory opinion of the ICJ: Is the unilateraldeclaration of independence by the Provisional Institutions of Self Governmentof Kosovo in accordance with International Law? ICJ reformulated the question:whether the unilateral declaration of independence by Kosovo was in accordancewith international law; and not whether the declaration has established Kosovo’s

statehood or the legal consequences of the declaration. ICJ further emphasized that it has not been called uponto determine whether or not there is a rule of international law that entitles Kosovo or a unit of State to unilaterallydeclare independence.

Students of international law were expecting answers of the four fundamental and vital issues involved in the case:(i) scope and extent of the principle of self-determination, or in other words, does principles of equal rights andself determination of peoples allow for the dismemberment of an existing State without its consent; (ii) whetherthe principle of territorial integrity resist secession; (iii) whether or not there is an international law right tosecession or whether there is a remedial right to secession? (iv) did declaration of February 17, 2008 violateResolution 1244 or the Constitutional Framework?

Obviously, the reformulation of GA resolution prevented the ICJ to deliver judgment on issues viz., self-determinationand whether there was a right of minorities to “remedial secession”. The ICJ has emphatically ruled that theprinciple of territorial integrity does not apply to non-State actors like secessionist groups within a State. By tenvotes to four, it, however, concluded that general international law does not prohibit declarations of independence(dissenting votes: Vice-President Tomka, Judges Koroma, Bennouna and Skotnikov). Consequently, the unilateraldeclaration of independence by Kosovo on February 17, 2008, did not violate general international law. Theopinion contains interesting statements about the interpretation of Security Council resolutions. In its viewResolution 1244 was concerned with creating an interim regime for Kosovo and not with dealing with a finalsettlement of Kosovo’s situation.

On preliminary objection to the jurisdiction of ICJ, it decided that (i) it has jurisdiction to give the opinionrequested and (ii) its request for an advisory opinion is not in itself a ‘recommendation’ by the General Assembly‘with regard to dispute or situation’. On this issue, ICJ referred to the judgment given in the case of LegalConsequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J.Reports 2004 (I), p. 148, para. 25).

R.P. Anand

2 July-September 2010

RECENT ACTIVITIES

TWO-DAY TRAINING

PROGRAMME ON

INTELLECTUAL PROPERTY

RIGHTS AND WTO

ACCOUNTABILITY - SCOPE OF

PATENTING FOR THE INDIAN

FOREST SERVICE OFFICERS

Indian Society of International Law (ISIL)conducted Two-days Training Workshop onIntellectual Property Rights and WTOAccountability – Scope of Patenting forIndian Forest Service Officers at itspremises on 5th and 6th July 2010.Seventeen IFS Officers participated in theworkshop. ISIL undertook following themesin the Programme: 1. International andNational Patent Laws; 2. WTO-TRIPS andIndian Cases in WTO and Its Implications; 3.TRIPS, Convention on Biological Diversityand Traditional Knowledge. There werelectures and presentations on the themes ofinternational and national economic law.The faculty of the orientation courseconsisted of eminent international lawscholars, namely, Dr. V. G. Hegde,Associate Professor, JNU, New Delhi, Dr.Ravindra Pratap, GGSIP University, Delhi,Dr. R. Saha, Director, Dr. Sudhir Kochar,Principal Scientist, ICAR, Dr. MalathiLakshmikumaran (Scientist) and Shri VinaiKumar Singh, Assistant Professor, ISIL. Theparticipants were taken for visit to IndianPatent Office, Dwarka, New Delhi where Dr.K. S. Kardam, Assistant Controller of Patentsbriefly discussed the work and functioning ofthe New Delhi Patent Office. He alsodistributed certificates to the participants.

LECTURE AT XIAMEN ACADEMY

OF INTERNATIONAL LAW BY

PROF. B. C. NIRMAL, MEMBER,

EC, ISIL

Essentially based on the pattern of theHague Academy of International Law,Xiamen Academy is devoted to the cause ofthe dissemination of international law andteaching and research in this fast growingbranch of law of far reaching significance intoday’s globalized world. Prof. B. C. Nirmal,Member, Executive Council, ISIL deliveredlecture on “The Development ofInternational Criminal Law of Procedure

Through International Courts andTribunals” at the summer programme of theXiamen Academy held on 5th July to 9th July2010 at Xiamen. The other eminentinternational law scholars who deliveredlectures in the Xiamen Summer 2010namely H.E. Judge Bruno Simma,International Court of Justice, The Hague -“Multilateral Rights and Obligations inModern International Law”; Prof. ChristineChinkin, London School of Economics andPolitical Science, University of London, UK– “Peaceful Settlement of InternationalDispute Resolution”; Prof. W. MichaelReisman, Yale University, U.S.A. – “TheUse of Force in International Law”; Prof.Lingliang Zeng, Macau University, China –“International Organizations, theInternational Rule of Law and TheirRelevance to China”; Dr. Ralph Wilde,University College London, University ofLondon, UK – “The ExtraterritorialApplication of Human Rights Law”. Earlierin 2008, Prof. R. P. Anand, President, ISILhad delivered lecture at the summerprogramme of the Xiamen Academy.

CONVOCATION AND

INAUGURATION OF P. G.

DIPLOMA AND CERTIFICATE

COURSES OF THE INDIAN

ACADEMY OF INTERNATIONAL

LAW, ISIL, NEW DELHI

ISIL organized the Convocation forAwarding of Post Graduate Diploma

Certificates on 1st September 2010. Theceremony was also marked to inauguratePost Graduate Diploma and CertificateCourses 2010. Prof. S. K. Verma, Director,ISIL welcomed and introduced the chiefguest Hon’ble Justice Sanjay Kishen Kaul,Judge, High Court of Delhi and invited himto give inaugural address. Hon’ble JusticeShri Kaul distributed certificates to studentsof ISIL. Mr. Annpoorna K. received V. K.Krishna Menon Memorial Prize for securingthe highest marks in the Post GraduateDiploma Course in International Law andDiplomacy; Ms. Priyanka Parasharreceived K. Krishna Rao Memorial Prize forsecuring the highest marks in the PostGraduate Diploma Course in InternationalTrade and Business Law; Ms. Usha GraceAntony received Judge Nagendra SinghMemorial Prize for securing the highestmarks in the Post Graduate Diploma Coursein Human Rights, International Humanitarianand Refugee Law; and Ms. Pragati Anejareceived M. K. Nawaz Memorial Prize inthe Certificate Course on International andNational Intellectual Property Rights. Thisacademic year 2010 also witnessedaddition of Post Graduate Diploma Courseon Environmental Law and also conversionof Certificate Course on IPR into PostGraduate Course on International andNational Intellectual Property Rights Law.

July-September 2010 3

VISIT OF DELEGATION FROM

THE INSTITUTE OF LEGAL

STUDIES, KANSAI

UNIVERSITY AND A TALK ON

“PROTECTION OF GENETIC

RESOURCES AND

TRADITIONAL KNOWLEDGE

IN INDIA”

A delegation of three professors Prof.Takasaka M, Prof. Konno M, Prof.Shrestha M. L. of Institute of LegalStudies, Kansai University visited ISILon 3 September 2010. And on thisoccasion, Prof. Shrestha delivered alecture on “Protection of GeneticResources and Traditional Knowledgein India”. Prof. Shrestha made emphasison the need of legal binding benefitsharing instrument among states toprevent misappropriation of biologicalresources and deter the ongoing piracyon genetic materials. He suggested towork on the line of African countries whorecently concluded benefit sharingagreements with Japan. The Lecturewitnessed lively exchange of views withthe audience on his presentation.

TENTH HENRY DUNANT

MEMORIAL MOOT COURT

COMPETITION (NATIONAL

ROUND)

ISIL and the International Committee ofthe Red Cross (ICRC), New Delhi

organized the Tenth Henry DunantMemorial Moot Court Competition at itspremises from 9th to 12th September 2010.Prof. R. P. Anand, President, ISIL, gavewelcome address. On this occasion Hon’bleJustice Cyriac Joseph, Judge, SupremeCourt of India gave inaugural address. Heappreciated team members participationsand underlined the importance of the eventin the present day which equip the studentsto develop skills and create asset for the barof the country. Mr. Francois Stamm, Head ofthe Regional Delegation, ICRC, New Delhialso addressed the gathering and spoke onthe importance of the subject of the mootcourt competition and highlighted thecontribution of the ICRC in the developmentof international humanitarian law.Participants from 59 law universities and/colleges came to participate in theCompetition. Prof. S. K. Verma, Director,ISIL gave a formal vote of thanks.

The Competition was conducted in fourstages, preliminary, quarter-final, semi-finaland final rounds. The participants werejudged on the basis of written memorials,appreciation of facts and law, advocacyskills, use of authorities and citations,general impression and court manners.Eminent professors, legal officers andinternational law scholars judged the teamsin preliminary, quarter-final and semi-finalrounds. Hon’ble Justice Ravindera Bhat,Judge, Delhi High Court, His Excellancy,Prof. (Dr.) Gudmundur Eiriksson,Ambassdor of Iceland to India and Dr. M.Gandhi, Director, L&T Division, MEA,

Government of India were the final roundjudges. Hidyatullah National Law University,Raipur and National Law School, Dwarka,New Delhi were the winner and runner upof the Competition respectively. Ms. VenuNanavaty, Institute of Law, NIRMAUniversity, Ahmedabad was adjudged theBest Advocate, Mr. Aditya Bose, Dr. RamManohar Lohia National Law University,Lucknow, won the Best Researcher award,and Natioanl Law Institute, Bhopal won BestMemorial award in this Competition. Hon’bleJustice Bhat gave valedictory address onthe occasion.

TRAINING PROGRAMME FOR

PROBATIONERS OF INDIAN

FOREIGN SERVICE ON

INTERNATIONAL LAW

Indian Society of International Law (ISIL)conducted seven day Training Programmeon International Law for probationers ofIndian Foreign Service Officers at itspremises on 21-29 September 2010.Twenty two probationers of IFS Officersparticipated in the programme. There werelectures and presentations on the themes ofinternational law. The faculty of theorientation course consisted of eminentinternational law scholars. Prof. R. P.Anand, President, ISIL, gave concludingremarks and distributed certificates to theOfficer-Trainees. Prof. Rahmatullah Khan,Secretary General, ISIL proposed a formalvote of thanks.

THE FELICITATION FUNCTION

FOR DR. KISHORE SINGH,

SPECIAL RAPPORTEUR IN THE

HUMAN RIGHTS COUNCIL ON

THE RIGHT TO EDUCATION

ISIL organised a programme on 31st August2010 at ISIL premises to felicitate Dr.Kishore Singh, Former UNESCO Officerwho has been recently appointed a SpecialRapporteur on the Right to Education.Nominated by Government of India andjointly by Judge Yusuf and Judge Trindadeof the International Court of Justice. DrKishore Singh has excellent academicrecord, with a Ph. D. in international law(1977) from the University of Paris. Having

4 July-September 2010

been the coordinator for follow up toUNESCO’s conventions andrecommendations in the field of education aswell as the Secretary of the Joint ExpertGroup UNESCO (CR)/ECOSOC (CESCR)on the Monitoring of the Right to Education,Dr Kishore Singh is highly experienced andcompetent in dealing with matters related toapplication of the right to education and itsmore effective monitoring. In a number ofactivities relating to this field, he hascollaborated with the Office of the HighCommissioner for Human Rights (OHCHR),and participated in the work of the UNhuman rights treaty bodies, especiallyCESCR. He has also representedUNESCO at the sessions of the Commissionon Human Rights.

Being the Special Rapporteur on the Rightto Education, Singh will be responsible forsafeguarding and promoting the right toeducation worldwide. Apart from this, anannual global report will also have to bepresented by him to the Human RightsCouncil. The report will consist of interactivedialogue, suggestions andrecommendations for advancing the RTE.Shri Singh briefly mentioned his role andresponsibility in the UNESCO andexpressed his gratitude to ISIL. On thisoccasion, a shawl and memento waspresented by Shri Narinder Singh,Member, International Law Commission.Prof. S. K. Verma, Director, ISIL gave avote of thanks.

RECENT ACTIVITIES/ RECENT DEVELOPMENTS

RECENT

DEVELOPMENT

RATIFICATION OF SOME

MULTILATERAL TREATIES BY

COUNTRIES

On the occasion of the UN Treaty Event, 26countries undertook 44 separate treaty intoactions. On 28 September 2010, Maltaratifies a global treaty banning the sale ofchildren, child prostitution and childpornography as a critical step towardsprotecting the rights of young people.Malta’s ratification brings the number ofState parties to the Optional Protocol on theSale of Children, Child Prostitution andChild Pornography to 141. The treaty, oneof two Optional Protocols to the Conventionon the Rights of the Child, extends theobligations of States parties to guarantee theprotection of children from sale,pornography and prostitution, throughexplicit prohibition of these acts in their laws.Among the other ratifications, on 28September 2010, was that by Tunisia of theConvention on Cluster Munitions and theInternational Convention for theSuppression of Acts of Nuclear Terrorism,by the Netherlands of the Optional Protocolto the Convention against Torture, and byTogo of the Protocol against the smugglingof migrants. In addition, Ethiopia signed theOptional Protocol on children and armedconflict and Paraguay signed theInternational Tropical Timber Agreement of2006.

SUMMARY OF THE WORK OF

THE INTERNATIONAL LAW

COMMISSION AT ITS SIXTY-

SECOND SESSION

As regards the topic “Reservations totreaties”, the Commission had before itaddendum 2 to the fourteenth report (A/CN.4/614/Add.2) as well as the fifteenth andsixteenth reports (A/CN.4/624 and Add.1and 2, and A/CN.4/626 and Add.1,respectively) of the Special Rapporteur.Addendum 2 to the fourteenth report andthe fifteenth report considered the legaleffects of reservations, acceptances ofreservations and objections to reservations,

as well as the legal effects of interpretativedeclarations and reactions thereto.Following a debate in plenary on thesereports, the Commission referred 37 draftguidelines to the Drafting Committee. Thesixteenth report considered the issue ofreservations, objections to reservations,acceptances of reservations andinterpretative declarations in relation to thesuccession of States. Following a debate inplenary, the Commission referred 20 draftguidelines, as contained in that report, to theDrafting Committee. The Commissionprovisionally adopted 59 draft guidelines,together with commentaries, including 11draft guidelines which had beenprovisionally adopted by the DraftingCommittee at the sixty-first session andwhich deal with the freedom to formulateobjections and with matters relating to thepermissibility of reactions to reservationsand of interpretative declarations andreactions thereto. The Commission thuscompleted the provisional adoption of the setof draft guidelines (chap. IV).

Concerning the topic “Expulsion of aliens”,the Commission had before it document A/CN.4/617, containing a set of draft articleson the protection of the human rights ofpersons who have been or are beingexpelled, revised and restructured by theSpecial Rapporteur in the light of the debatewhich had taken place in plenary during thesixty-first session of the Commission (2009).The Commission referred the revised draftarticles 8 to 15, as contained in thatdocument, to the Drafting Committee. TheCommission also had before it the sixthreport of the Special Rapporteur (A/CN.4/625 and Add.1), which consideredcollective expulsion, disguised expulsion,extradition disguised as expulsion, thegrounds for expulsion, detention pendingexpulsion and expulsion proceedings.Following a debate in plenary, theCommission referred to the DraftingCommittee draft articles A, 9, B1 and C1, ascontained in the sixth report, and draftarticles B and A1 as revised by the SpecialRapporteur during the session. TheCommission also had before it a new draftwork plan with a view to restructuring thedraft articles (A/CN.4/618), which had beenpresented by the Special Rapporteur to theCommission at its sixty-first session (2009),

July-September 2010 5

as well as comments and informationreceived thus far from Governments (A/CN.4/604 and A/CN.4/628) (chap. V).

As regards the topic “Effects of armedconflicts on treaties”, the Commissioncommenced the second reading of the draftarticles on the effects of armed conflicts ontreaties (which had been adopted on firstreading at its sixtieth session (2008)) on thebasis of the first report of the SpecialRapporteur (A/CN.4/627 and Add.1).Following a debate in plenary on the reportof the Special Rapporteur, the Commissionreferred all the draft articles, and the annex,proposed by the Special Rapporteur to theDrafting Committee (chap. VI).

In relation to the topic “Protection of personsin the event of disasters”, the Commissionhad before it the third report of the SpecialRapporteur (A/CN.4/629), dealing with thehumanitarian principles of neutrality,impartiality and humanity, as well as theunderlying concept of respect for humandignity. The report also considered thequestion of the primary responsibility of theaffected State to protect persons affected bya disaster on its territory, and undertook aninitial consideration of the requirement thatexternal assistance be provided on thebasis of the consent of the affected State.Following a debate in plenary, theCommission decided to refer draft articles 6to 8, as proposed by the SpecialRapporteur, to the Drafting Committee. TheCommission also adopted draft articles 1 to5, which it had taken note of at its sixty-firstsession (2009), together with commentaries.The Commission subsequently took note offour draft articles provisionally adopted bythe Drafting Committee, relating to thehumanitarian principles in disasterresponse, the inherent human dignity of thehuman person, the obligation to respect thehuman rights of affected persons, and therole of the affected State, respectively (A/CN.4/L.776) (chap. VII).

As regards the topic “The obligation toextradite or prosecute (aut dedere autjudicare)”, the Commission reconstituted theWorking Group. The Working Groupcontinued its discussions with the aim ofspecifying the issues to be addressed tofurther facilitate the work of the SpecialRapporteur. It had before it a Survey of

multilateral conventions which may be ofrelevance for the Commission’s work on thetopic, prepared by the Secretariat (A/CN.4/630), and a working paper prepared by theSpecial Rapporteur (A/CN.4/L.774)containing some observations andsuggestions based on the generalframework proposed in 2009 and drawingupon the survey by the Secretariat (chap.VIII).

Concerning the topic “Immunity of Stateofficials from foreign criminal jurisdiction”, theCommission did not consider it in the courseof the present session (chap. IX).

In relation to the topic “Treaties over time”,the Commission reconstituted the StudyGroup on Treaties over time. The StudyGroup began its work on the aspects of thetopic relating to subsequent agreements andpractice, on the basis of an introductoryreport prepared by its Chairman on therelevant jurisprudence of the InternationalCourt of Justice and of arbitral tribunals ofad hoc jurisdiction. A variety of issuesrelating to the significance and role ofsubsequent agreements and practice in theinterpretation of treaties, and possibly alsoin their modification, were touched upon inthe discussions (chap. X).

As regards the topic “The Most-favoured-nation clause”, the Commission reconstitutedthe Study Group on the Most-Favoured-Nation clause. The Study Groupconsidered and reviewed the variouspapers prepared on the basis of theframework which had been agreed upon in2009, including a catalogue of MFNprovisions and papers on the 1978 draftarticles, the practice of GATT and WTO, thework of OECD and UNCTAD on MFN, andthe “Maffezini” issue, and set out aprogramme of work for next year (chap.XI).

In relation to the topic “Shared naturalresources”, the Commission once moreestablished the Working Group on Sharednatural resources. The Working Groupcontinued its assessment on the feasibility offuture work on oil and gas on the basis of aworking paper (A/CN.4/621). The workinggroup considered all aspects of the matter,taking into account the views ofgovernments, including as reflected in theworking paper, as well as in light of its

previous discussions. The Commissionendorsed the recommendation of theWorking Group that the Commission shouldnot take up the consideration of the oil andgas aspects of the topic “Shared naturalresources” (chap. XII).

Concerning “Other matters”, theCommission, pursuant to its 2009 decision,devoted a discussion to “Settlement ofdisputes clauses”. It had before it a Note onSettlement of disputes clauses, prepared bythe Secretariat (A/CN.4/623). TheCommission decided to continue debate onthe issue under “Other matters” at its nextsession. It was also agreed that a memberof the Commission would prepare a workingpaper for that purpose (chap. XIII, sect.A.1). The Commission set up the PlanningGroup to consider its programme,procedures and working methods (chap.XIII, sect. A). The Working Group on theLong-term programme of work wasreconstituted (chap. XIII, sect. A.3). TheCommission decided that its sixty-thirdsession be held in Geneva from 26 April to3 June and 4 July to 12 August 2011 (chap.XIII, sect. B).

ICC ORDERS RELEASE OF

CONGOLESE LEADER LUBANGA

After suspending the case against aCongolese warlord on trial for allegedlyenlisting child soldiers, the InternationalCriminal Court (ICC), on 15 July 2010,ordered his release. Earlier, the ICC’s trialchamber suspended proceedings againstThomas Lubanga Dyilo, founder andleader of the Union of Congolese Patriots inthe Ituri region of the eastern DemocraticRepublic of the Congo (DRC), saying thatprosecutors have refused orders to discloseinformation to his defence. Mr. Lubangafaces two counts of war crimes: conscriptingand enlisting child soldiers into the militarywing of his group and then using them toparticipate in hostilities between September2002 and August 2003. His trial began atICC on January 2010. Earlier, the trialchamber ordered to stay the proceedings,“considering that the fair trial of the accusedis no longer possible due to non-implementation of the Chamber’s orders bythe Prosecution.” The ICC judges said, on15 July 2010, that defendants cannot be

6 July-September 2010

held in preventative custody on aspeculative basis, namely that the ThomasLubanga Dyilo proceedings may resume atsome point in the future. But the order willnot be implemented for five days, giving theprosecution time to appeal.

UN EXPERTS REVIEW EFFORTS

OF EIGHT NATIONS INCLUDING

INDIA TO ELIMINATE

DISCRIMINATION AGAINST

WOMEN

A meeting of the United Nations committeeon the elimination of discrimination againstwomen opened in New York, on 12 July2010, to look into the situation of women ineight countries, including Papua NewGuinea, which will be reviewed for the firsttime, and India, which will be examined onan exceptional basis. Violence againstwomen, political participation, discriminatoryfamily law, eliminating gender stereotypesand preventing trafficking are some of theareas to be explored by the committee ofexperts charged with ensuring thatgovernments eliminate discrimination againstwomen. During its 19-day session at UNHeadquarters, the Committee on theElimination of Discrimination against Woman(CEDAW) will review the status of women inArgentina, Fiji, Russia, Australia, PapuaNew Guinea, India and Albania. India willbe reviewed on an exceptional basis, withthe Committee considering the country’sfollow-up report on the impact of the 2002Gujarat massacres on women. Followingthe eight reviews, the experts will makerecommendations to each governmentabout what more it should do to eliminatediscrimination against women.

TREATY PROTECTING UN

PERSONNEL ENTERED INTO

FORCE

A 2005 Optional Protocol to the Conventionon the Safety of UN and AssociatedPersonnel that expands an internationaltreaty aimed at protecting United Nationsstaff members and other humanitarianworkers entered into force after the UnitedKingdom became the latest country to ratifyit. The UK became party to the 2005Optional Protocol to the Convention on the

Safety of UN and Associated Personnel, on21 July 2010, joining 21 other countrieswhich have already done so over the pastfour years. The optional protocol provideslegal protection to staff deliveringemergency humanitarian assistance and tothose providing political and developmentassistance in peacebuilding situations. Itextends the legal protection offered by the1994 convention on the same subject,which only applies to personnel engaged inpeacekeeping operations. In the year 2009alone, 28 civilian UN staff members werekilled, according to the UN Staff Union, andat least 97 aid workers were killed, while 60others were wounded and 92 more wereabducted.

BURKINA FASO AND NIGER

REFER BORDER DISPUTE TO

ICJ

On 21 July 2010, the West African countriesof Burkina Faso and Niger have submitteda dispute over their common border to theUnited Nations International Court of Justice(ICJ) as part of a wider agreement by thetwo States to resolve the situationpeacefully. In a joint letter filed, on 21 July2010, the ICJ has been asked to delineatethe border between the two nations from theTong-Tong marker to the start of the Botoubend. The court has also been asked toobserve the two countries’ agreement onthe results of the work of a joint technicalcommission set up by Burkina Faso andNiger on two other sections of their sharedborder. The decision to refer the matter tothe ICJ is in line with a special agreementsigned by the two countries last year inNiamey, the capital of Niger.

KOSOVO’S DECLARATION OF

INDEPENDENCE

Kosovo’s unilateral declaration ofindependence from Serbia in February2008 did not violate international law, theInternational Court of Justice (ICJ) said in itsadvisory opinion on 22 July 2010. The ICJwas asked by the General Assembly to giveits opinion on the legality of theindependence declaration by theProvisional Institutions of Self-Government(PISG) of Kosovo. By 10 votes to four,

judges at the ICJ concluded that thedeclaration does not breach either generalinternational law, a Security Councilresolution from 1999 following the end offighting in Kosovo, or the constitutionalframework that was adopted by theSecretary-General’s SpecialRepresentative on behalf of the UN InterimAdministration Mission in Kosovo (UNMIK).UNMIK was established after Westernforces drove out Yugoslav forces amid inter-ethnic fighting in 1999. Ethnic Albaniansoutnumber ethnic Serbs and other minoritiesby about nine to one in Kosovo.

GENERAL ASSEMBLY

DECLARES ACCESS TO CLEAN

WATER AND SANITATION IS A

HUMAN RIGHT

Safe and clean drinking water andsanitation is a human right essential to thefull enjoyment of life and all other humanrights, the General Assembly declared, on28 July 2010, voicing deep concern thatalmost 900 million people worldwide do nothave access to clean water. The 192-member Assembly also called on UnitedNations Member States and internationalorganizations to offer funding, technologyand other resources to help poorercountries scale up their efforts to provideclean, accessible and affordable drinkingwater and sanitation for everyone. TheAssembly resolution received 122 votes infavour and zero votes against, while 41countries abstained from voting. The text ofthe resolution expresses deep concern thatan estimated 884 million people lack accessto safe drinking water and a total of morethan 2.6 billion people do not have accessto basic sanitation. Studies also indicateabout 1.5 million children under the age offive die each year and 443 million schooldays are lost because of water- andsanitation-related diseases. The UN HumanRights Council’s requested Catarina deAlbuquerque, the UN Independent Experton the issue of human rights obligationsrelated to access to safe drinking water andsanitation, report annually to the GeneralAssembly as well. Ms. de Albuquerque’sreport will focus on the principal challengesto achieving the right to safe and cleandrinking water and sanitation, as well as on

July-September 2010 7

progress towards the relevant MillenniumDevelopment Goals (MDGs). The MDGs, aseries of targets for reducing social andeconomic ills, all by 2015, includes thegoals of halving the proportion of peoplewho cannot reach or afford safe drinkingwater and halving the number who do nothave basic sanitation.

SEYCHELLES JOINED

INTERNATIONAL CRIMINAL

COURT

Seychelles ratified the 1998 Rome Statute,on 11 August 2010, which will enter intoforce for the country on 1 November 2010.Now 112 States are Parties to the ICCStatute.

UN HUMAN RIGHTS COUNCIL

MISSION ON FLOTILLA

INCIDENT DEPARTS FOR

TURKEY, JORDAN

The United Nations Human Rights Council’s(HRC), on 23 August 2010, decided toestablish international independent factfinding mission of high-level experts lookinginto the Gaza flotilla incident on 31 May2010. The mission visited Turkey andJordan to interview witnesses andgovernment officials. Technical and legalspecialists also accompanied the three-person mission, chaired by Judge Karl T.Hudson-Phillips, a former judge with theInternational Criminal Court (ICC), on thetwo-week visit to the two countries. Its othermembers are Sir Desmond de Silva, aformer chief prosecutor at the Special Courtfor Sierra Leone (SCSL), and ShanthiDairiam, a member of the Gender EqualityTask Force at the UN DevelopmentProgramme (UNDP). The mission spenttwo weeks in Geneva, where it drafted itsterms of reference and held talks withdiplomats, including the ambassadors ofIsrael and Turkey. The 47-member, HRCvoted on 2 June 2010 – with 32 votes infavour to three against, and nineabstentions – to dispatch the mission toinquire into incident regarding the flotilla,which had departed Turkey and wasbound for the Gaza Strip.

TURKEY SIGNED

INTERNATIONAL CONVENTION

FOR THE SAFE AND

ENVIRONMENTALLY SOUND

RECYCLING OF SHIPS

On 27 August 2010, Turkey, one of the fivemajor ship recycling nations in the world,has signed the International Convention forthe Safe and Environmentally SoundRecycling of Ships promoting theenvironmentally friendly recycling of ships.The Hong Kong International Conventionfor the Safe and Environmentally SoundRecycling of Ships, adopted in May 2009, isaimed at ensuring that ships, when beingrecycled at the end of their operationallives, do not pose an unnecessary risk tohuman health and safety or theenvironment. The convention deals with allthe major issues surrounding ship recycling,including the fact that ships sold forscrapping may contain environmentallyhazardous substances such as asbestos,heavy metals, hydrocarbons, ozone-depleting substances and others. It alsotackles concerns about the working andenvironmental conditions at many shiprecycling locations. In addition, theconvention regulates the design,construction, operation and preparation ofships so as to facilitate safe andenvironmentally sound recycling – withoutcompromising the ships’ safety andoperational efficiency. It focuses on theoperation of ship recycling facilities in a safeand environmentally sound manner, as wellas on establishment of an appropriateenforcement mechanism for ship recycling –including certification and reportingrequirements. The text of the conventionwas developed over a three-year period,with input from IMO Member States andrelevant nongovernmental organizations(NGOs), in cooperation with theInternational Labour Organization (ILO) andthe Parties to the Basel Convention on theControl of Transboundary Movements ofHazardous Wastes and their Disposal. It willenter into force 24 months after the date onwhich 15 States, representing 40 per cent ofworld merchant shipping by gross tonnage,have either signed it without reservation asto ratification, acceptance or approval, or

have deposited instruments of ratification,acceptance, approval or accession with theIMO Secretary-General. The combinedmaximum annual ship recycling volume ofthose States during the preceding 10 yearsmust constitute not less than 3 per cent oftheir combined merchant shipping tonnage.To date, the Convention has been signed,subject to ratification or acceptance, byFrance, Italy, the Netherlands, Saint Kittsand Nevis and Turkey.

SWAKOPMUND PROTOCOL ON

THE PROTECTION OF

TRADITIONAL KNOWLEDGE AND

EXPRESSIONS OF FOLKLORE

ADOPTED BY AFRICAN STATES

TO PROTECT AFRICAN

FOLKLORE AND TRADITIONAL

KNOWLEDGE

The Swakopmund Protocol on theProtection of Traditional Knowledge andExpressions of Folklore has been adoptedon 31 August 2010 in Swakopmund,Namibia, by member states of the AfricanRegional Intellectual Property Organization(ARIPO), which is designed to preserveand protect the use of Africa’s diverseknowledge systems and cultures for thecontinent’s sustainable development. It willenter into force following ratification by sixARIPO member states. Developed byAfrican experts over a six-year period, theSwakopmund Protocol is a response to themisappropriation and misuse of thecontinent’s traditional knowledge andtraditional cultural expressions. It wasdeveloped in coordination with a similarinstrument prepared over the same periodby the 16 West African countries comprisingthe Organization Africaine de la ProprieteIntellectuelle (OAPI), and adopted in July2007. Meanwhile, WIPO’sIntergovernmental Committee on IntellectualProperty and Genetic Resources,Traditional Knowledge and Folklore isworking towards the development of a legalinstrument for the effective protection oftraditional knowledge and traditional culturalexpressions that would be international inscope.

8 July-September 2010

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

Current Issue ofIndian Journal of International LawJuly-September 2010, Vol. 50, No. 3

CONTENTS

ARTICLES

What Goes Around Comes Around: TheReturn of Rejected Western Standardson Investment through BilateralInvestment Treaties

Amin George Forji

Optional Protocol to the InternationalCovenant on Economic, Social andCultural Rights: An Overview

B. C. Nirmal

The SPS Agreement, Risk Assessmentand Science-in Troubled Waters?

Sanu M.K.

CURRENT DEVELOPMENTS

The National Green Tribunal Act, 2010:An Introductory Note

Shikhar Ranjan

NOTES AND COMMENTS

India, WTO and Shrimp II – YetInterpretation Loss to India

Ravindra Pratap

The International Criminal CourtReaches A Milestone: Should IndiaContinue to Stay Out?

Dilip Lahiri

OFFICIAL DOCUMENTS

BOOK REVIEW

Lukas H. Meyer, (ed.), Legitimacy,Justice and Public International Law

G. S. Sachdeva

SELECT BIBLIOGRAPHY AND NEWACQUISITIONS

New Acquisitions to the ISIL Library fromJuly to September 2010

RECENT DEVELOPMENTS/ NEW ADDITIONS IN ISIL LIBRARY

NEW ADDITIONS

Carr, Indira, International Trade Law. 4th

ed. (Routledge, London, 2010).

Charney, Jonathan I. (ed.), InternationalMaritime Boundaries Vol. 3, 4, 5 (MartinusNijhoff Publishers, Hague, 2002).

Crawford, James (ed.), The Law ofInternational Responsibility (OxfordUniversity Press, Oxford, 2010).

Gutter, Jeroen, Thematic Procedures of theUN Commission on Human Rights andInternational Law in Search of a Sense ofCommunity (Intersentia, Oxford, 2006).

Harris, David, Case and Materials onInternational Law 7th ed. (Sweet andMaxwell, London, 2010).

Johnson, Lindy S., Coastal StateRegulation of International Shipping(Oceana Publications, New York, 2004).

Kincaid, Harold and Don, Ross (eds.), TheOxford Handbook of Philosophy ofEconomics (Oxford University Press,Oxford, 2009).

Koul, Autar Krishen, A Textbook ofJurisprudence (Satyam Law International,Delhi, 2009).

Koul, Autar Krishen, Guide to the WTOand GATT: Economic, Law and Politics 2nd

ed. (Satyam Law International, Delhi,2010).

Lauterpacht, Elihu (ed.), International Law:Collected Papers, Volume 5 - Disputes,War and Neutrality Part IX-XIV (CambridgeUniversity Press, United Kingdom, 2004).

MacClean, David and Beevers, Kisch,Conflict of Laws 7th ed., (Sweet andMaxwell, London, 2009).

Mahanty, Samareshwar, MaritimeJurisdiction and Admiralty Law in India(Universal Law Publications, Delhi, 2009).

Pennings, Frans (ed.), International SocialSecurity Standards: Current View andInterpretation matters (Intersentia, Oxford,2007).

Rehman, Javaid and Susan C. Breau(eds.), Religion, Human Rights andInternational Law: A Critical Examination ofIslamic State Practice (Martinus NijhoffPublishers, Leiden, 2007).

Solis, Gary D., The Law of Armed Conflict:International Humanitarian: An Law in War(Cambridge University Press, Cambridge,2010).

Tanka, Yoshifumi, Predictability andFlexibility in the Law of Maritime

FORTHCOMING EVENTS

A Function to confer HonoraryMembership on Prof. Francisco OrregoVicüna, Professor of International Lawat the University of Chile and A SpecialLecture on ‘New Issue for InternationalLaw Arising from the InternationalArbitration Practice in Latin America,’ on2 October 2010

Henry Dunant Memorial Moot CourtComptetion (South Asia RegionalRound), 22 - 24 october 2010

UGC Refresher Course in HumanRights and Social Justice, InternationalHumanitarian and Refugee Laws,9 - 30 November 2010

Special Lecture on ‘Towards EconomicRecovery, the Role of InternationalCommercial Arbitration’ by Mr AdrianWinstanley, Director General, LondonCourt of International Arbitration,12 November 2010

First Winter Course on InternationalEnvironmental Law, 13 - 17 December2010

Delimitation (Hart Publishers, Oxford,2006).