Tuesday, April 28, 2009


Last week the International Court of Justice issued a Press Release announcing that 35 Member States of the UN had filed written statements on the question of the Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo. On 8 October 2008 the General Assembly of the UN adopted resolution A/RES/63/3 in which it requested the ICJ to render an advisory opinion on this question. The Court decided on 17 October 2008 that the UN and its Member States and also the authors of the declaration are "considered likely to be able to furnish information on the question" and organized proceedings ( Art. 48, 65, 66 Statute, Art. 104, 105 Rules).

The list of basic principles of international law which have to be dealt with is long. The amount of legal literature is extensive and interpretations differ widely. The political players in the field are numerous and the whole proces does not show up until now satisfying results.

We must exercise some patience until the wise judges of the ICJ give their opinion. In the meantime there is some reading to do.

Monday, April 20, 2009

Abyei Arbitration

From Saturday 18 until Thursday 23 April oral pleadings are being held at the Peace Palace in The Hague in the arbitration case between the Government of Sudan and the Sudan People’s Liberation Movement (SPLM) concerning the delimitation of the Abyei Area. The arbitration is based on an Arbitration Agreement between the Parties that was deposited with the Permanent Court of Arbitration (PCA) on 11 July 2008.

The Abyei region, on the border between north and south Sudan has been a major conflict area in over 20 years of civil war. The status of the region which contains one of Sudan's two largest oil fields proved one of the most contentious issues in the negotiation of the 2005 Comprehensive Peace Agreement between the Sudanese government and the SPLM. Under the agreement the South was granted provisional autonomy and Abyei's residents are to decide along with the South whether to secede from the North or not in a referendum in 2011.

To resolve the border and oil revenue sharing issues both parties adopted the Abyei Protocol in June 2004. The precise borders of Abyei were to be determined by the Abyei Borders Commission (ABC). The ABC presented its report in July 2005 but it was rejected by the Sudanese government, claiming that the experts exceeded their terms of reference by basing their conclusions on the 1956 border, rather than the 1905 border.

Violence erupted again in the Abyei region in December 2007 and tensions escalated further in March 2008 when northern soldiers entered Abyei town. These troops clashed with SPLM fighters resulting in considerable casualties, and the displacement of an estimated 50,000 civilians.

Under the Arbitration Agreement, the five member Tribunal has to determine the following issues:
“a. Whether or not the ABC [Abyei Boundary Commission] experts had, on the basis of the agreement of the Parties as per the CPA [Comprehensive Peace Agreement], exceeded their mandate which is “ to define (i.e. delimit) and demarcate the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905” as stated in the Abyei Protocol, and reiterated in the Abyei Appendix and the ABC Terms of Reference and Rules of Procedure.
b. If the Tribunal determines, pursuant to Sub-article (a) herein, that the ABC experts did not exceed their mandate, it shall make a declaration to that effect and issue an award for the full and immediate implementation of the ABC Report.
c. If the Tribunal determines, pursuant to Sub-article (a) herein, that the ABC experts exceeded their mandate, it shall make a declaration to that effect, and shall proceed to define (i.e. delimit) on map the boundaries of the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905, based on the submissions of the Parties.”

The Parties have filed three rounds of written submissions. The oral pleadings are being broadcasted live by webstream. Both and other related documents are available on the PCA website <http://www.pca-cpa.org/showpage.asp?pag_id=1306>.

Thursday, April 16, 2009

“De bijdrage van Nederland aan de codificatie van het moderne humanitaire recht (1800-1914)”

A legal historical study of the development of international humanitarian law in the nineteenth century and the beginning of the twentieth century in the Netherlands.

Recently the Peace Palace Library received a gift from the children of D.J.H.N. den Beer Poortugael (Herman den Beer Poortugael). The gift, a book titled: “De bijdrage van Nederland aan de codificatie van het moderne humanitaire recht (1800-1914)” is an adaptation of the dissertation written by Herman den Beer Poortugael, former head of the military police of the Netherlands. Unfortunately, just before he had to defend his thesis, he died at the age of 82. He worked on the dissertation for fifteen years.

In his dissertation Herman Den Beer Poortugael focused on the role of the Netherlands regarding the codification of humanitarian law and the law of war during the period of the nineteenth century until the First World War. He also paid attention to the participation of his great-uncle J.C.C. den Beer Poortugael (1832-1913) concerning the codification of humanitarian law during this period.

Jacobus Catharinus Cornelis den Beer Poortugael (1832-1913)

J.C.C. den Beer Poortugael initially was not a jurist. He was trained as an infantry officer at the Royal Military Academy of the Netherlands. J.C.C. den Beer Poortugael, the great-uncle of the author, became director of the training department of the military staff of the Netherlands. During that period J.C.C. den Beer taught politics of war at the training department (military school). Amongst other things the discipline 'politics of war' covered public international law and the law of war. For the sake of teaching this discipline, J.C.C. den Beer Poortugael wrote a manual on the law of war in 1872, which was called: “Het oorlogsrecht”. Writing this manual made him a distinguished authority in the field of humanitarian law. [1]

In the following years J.C.C. den Beer also became intensely involved with government issues as a statesman after becoming a Minister of War and later as a member of the Council of State of the Netherlands.[2] Besides these positions, J.C.C. den Beer contributed to the final text of the Oxford Manual of 1880, a manual on the laws of war on land as a member of the Dutch delegation.[3] He also was a member of the Dutch delegation to the Hague Peace Conventions of 1899 and 1907 and the Conference of Geneva in 1906. The achievements of J.C.C. den Beer Poortugael have shown that he was a true humanitarian throughout his career.

The author was of the opinion that the peace conferences in The Hague in 1899 and 1907 were essential to the further development of international humanitarian law. The pioneering codifications that came into existence during this period had an influence on all later codifications of humanitarian law. The Netherlands contributed to this endeavor not only by its diplomatic and foreign policy to pursue the general interests of the international community but also through contributions made by Dutch jurists to the codification of humanitarian law. The progressive suggestion of C. van Vollenhoven to create an international police force in 1910 also serves as an example of Dutch efforts towards the codification and development of international law.[4]

Related links to the online public catalogue (opc) of the Peace Palace Library:

* Beer Poortugael, Jacobus Catharinus Cornelis den
* International humanitarian law
* Law of war
* Peace conferences
* Hague Conventions (1899 and 1907)

[1] D.J.H.N. den Beer Poortugael , “De Bijdrage van Nederland aan de codificatie van het moderne humanitaire recht (1800-1914)” Thieme MediaCenter: Nijmegen, 2009, p. 17.
[2] Ibid.
[3] Ibid., p. 108.
[4] Ibid., p. 209.

Wednesday, April 8, 2009

Holiday on Ice?

Tourism is an important source of income, prosperity and happiness for many people, but not everywhere.The increasing number of cruiseships, loaded with tourists, heading for Antarctica threatens the fragile ecosystem, habitat of many animals, in this region. Tourism to the frozen continent has increased nearly ten-fold in the last 15 years. (See also the warnings of IMO Report on Southern Ocean Vessel Issues of 2008)
Celebrating this year the 50th anniversary of the Antarctic Treaty and the conclusion of the 2007-2009 International Polar Year, the Antarctic Treaty Consultative Meeting has put the preservation of wildlife, including the management of tourism, high on its agenda.
At its 32nd Antarctic Treaty Consultative Meeting, for the first time together with the Arctic Council, in Baltimore, the Obama Administration has now called for new strict regulations to limit Antarctic tourism. As Secretary of State Mrs Clinton said “The United States is concerned about the safety of the tourists and the suitability of the ships that make the journey south ... We have submitted a resolution that would place limits on landings from ships carrying large numbers of tourists. We have also proposed new requirements for lifeboats on tourist ships to make sure they can keep passengers alive until rescue comes. And we urge greater international cooperation to prevent discharges from these ships that will further degrade the environment around the Antarctica” (Source: The New York Times)

This might be a major step to preserve this precious part of the world.
If you want to say hello to Memphis and Mumble, go to the zoo!

Wednesday, April 1, 2009

The European Union’s ‘ContraFake’ policy

Counterfeiting, which represents 5 to 7% of world trade, has implications on the competitiveness of EU companies, on jobs and on the health and security of EU citizens. László Kovác, European Commissioner in charge of Taxation and Customs Union, states his vision on the fight against counterfeiting as follows. ‘Customs have a vital role to play, as they intercept some 70% of all the counterfeited products seized worldwide. A successful action depends very much on collective efforts, work with other law enforcement bodies and the private sector is essential. Moreover, cooperation with the countries of origin of counterfeited goods will also be important in this context.'

ConfraFake 2009

The European Commission's conference "ContraFake 2009" will be held on April 2th 2009 in Brussels. This annual high Level Conference on Counterfeiting and Piracy will again consider the growing problem of counterfeiting and piracy, but will be focused more on planned efforts to combat the problem, in particular the European Counterfeiting and Piracy Observatory. For more information regarding the conference see the European Commissions website on this subject.

Counterfeiting and anti-piracy measures
The European Commission, other EU institutions and EU Member States are fighting counterfeit on various fronts. The latest successful initiatives in this respect are the EU-coordinated action "MEDI-FAKE", and an EU-US joint customs operation called "INFRASTRUCTURE". At a more strategic level an Action Plan (COM(2001)254 final) was proposed by the Commission in 2005 to combat the constantly evolving phenomenon of counterfeiting more effectively.

Within the EU, the Enforcement Directive 2004/48/EC is the cornerstone piece of legislation in the fight against counterfeiting and piracy. It aims to harmonise the civil laws of the Member States by means of enforcing intellectual property rights (via sanctions and remedies). The Directive covers infringements of all intellectual property rights (trade marks, designs, patents, copyright etc.) for commercial purposes or which cause significant harm to rightholders. The Directive also contains the necessary safeguards and limitations to protect the interests of not only the defendant but also of potentially innocent offenders, who have unknowingly been involved in counterfeiting or piracy.

Concerning criminal sanctions, the Commission has adopted a proposal for a Directive and for a Framework Decision on intellectual property infringements. The measures proposed are aimed at approximating the Member States' criminal legislation on combating infringements of intellectual property rights (counterfeiting and piracy).

Concerning customs cooperation, the EU customs legislation was modernised in 2004. The new regime sets out clear conditions under which the customs authorities may intervene in cases where goods are suspected of infringing intellectual property rights. The regulatory framework for the enforcement on border measures is contained in the European Community (EC) Regulation 1383/2003 (Customs Actions against goods suspected of infringing intellectual property rights), and its implementation in EC Regulation 1891/2004. Their practical application depends upon the national rules and procedures of the Member States.

The peace palace library would like to recommend the book ‘Enforcement of Intellectual Property Rights through Border Measures’ by O. Vrins & M. Schneider (ed.). The book is a practical guide on anti-counterfeiting and anti-piracy measures at the borders of the enlarged European Community. It deals with all aspects of ‘border measures’ under Regulation (EC) 1383/2003. As well as providing a thorough description of the implementation of the new regime, the publication also ‘fills in the gaps’ by including areas of national law, and provides an ambitious ‘snapshot’ of the application of the current regime of border measures in place within the European Union. This manual is the very first English language publication dealing with the practical application of Regulation 1383/2003 in all 25 Member Countries of the European Community. See for book reviews WIPO Magazine 4/2006 p.17 and Journal of Intellectual Property Law and Practice, Oxford University Press, 2006, Vol 1, N° 8.

Use European Union and counterfeiting for more books and articles on this subject in the Peace Palace Library.