Nota do Governo Brasileiro sobre o conflito entre Israel e Palestina

Brasil-Israel

Nota do Ministério das Relações Exteriores do Brasil

nº 168

23/07/2014 -

O Governo brasileiro considera inaceitável a escalada da violência entre Israel e Palestina. Condenamos energicamente o uso desproporcional da força por Israel na Faixa de Gaza, do qual resultou elevado número de vítimas civis, incluindo mulheres e crianças.

O Governo brasileiro reitera seu chamado a um imediato cessar-fogo entre as partes.

Diante da gravidade da situação, o Governo brasileiro votou favoravelmente a resolução do Conselho de Direitos Humanos das Nações Unidas sobre o tema, adotada no dia de hoje.

Além disso, o Embaixador do Brasil em Tel Aviv foi chamado a Brasília para consultas

US Courts Defend Rights of Vulture Funds Over Argentina

 

Michael Hudson and James Henry discuss an approaching July 30 deadline that could see Argentina put in a partial default by American banks and courts -   July 23, 14

PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I’m Paul Jay.

The U.S. Supreme Court’s refusal to review a case in which vulture funds sued to make the Argentinian government pay them 100 percent of the value of bonds, which they purchased for a fraction of the face value, let stand a lower court ruling requiring the bonds be paid in full. Reuters reports that Aurelius Capital Management, one of the lead holdout creditors seeking to settle with Argentina over sovereign debt payments from its 2002 default, said on Monday the government faces a new crisis on July 30 unless it engages in serious negotiations. Argentine officials and the holdout investors met separately, with a court-appointed mediator on Friday emerging from his offices after five hours of discussions with no resolution and no further talks scheduled. Both sides have ramped up the rhetoric to explain why they are, on one level, equal to eager to negotiate and, on another, at pains to show why the other side is not engaging. Quote:

“‘Absent a deal, Argentina’s next sovereign debt crisis will start on July 30. There is still time to avoid that outcome, but only if the Argentine government commences serious discussions with us immediately,’ Aurelius said in a statement.

“The firm said that together with other holdout creditors, it has offered to meet with the government anytime, anywhere, but has been rebuffed.

‘Argentine officials refuse to meet with us or even negotiate with us directly. Sadly, this approach gambles with the livelihoods and futures of the Argentine people.’

“In 2012, U.S. District Judge Thomas Griesa in New York awarded the holdouts $1.33 billion plus accrued interest in a case based upon the pari passu, or equal treatment, clause used to sell the bonds originally in 1994.

“Without a deal, Latin America’s No. 3 economy risks tumbling into a new default on July 30″.

Now joining us to talk about all of this first of all in Buenos Aires in Argentina is James Henry. James is a leading economist, attorney, investigative journalist. He’s written extensively about global issues. He served as chief economist at the international consultancy firm McKinsey & Company.

And also joining us from New York is Michael Hudson. He is a distinguished research professor of economics at the University of Missouri-Kansas City. His upcoming book is titled Killing the Host: How Financial Parasites and Debt Bondage Destroy the Global Economy.

Thank you both for joining us.

MICHAEL HUDSON, ECONOMICS PROF., UMKC: Good to be here.

JAMES S. HENRY, SENIOR ECONOMIST, TAX JUSTICE NETWORK: You’re very welcome.

JAY: So, Michael, don’t you feel better about the whole debt crisis, knowing that Aurelius is so concerned about the fate of the Argentine people?

HUDSON: Well, this has really divided the world into two halves. The ruling that’s under judge Griesa’s judgment today basically prevents not only Argentina but any country that’s issued bonds in the New York market from ever writing down or renegotiating the debt. Seventy percent of the sovereign bonds of governments throughout the world are issued in New York (about 22 percent are in London). And for those 70 percent, you’re going to have countries like Greece and others, Latin America in the 1980s, that have to write down the debts. If you don’t write down the debts to something that can reasonably be paid, they’re going to have to end up looking like Ireland or Greece. They’re going to be imposing a decade of austerity on themselves. And no country is going to commit financial suicide. So Judge Griesa has apparently told the Argentines, come to New York to negotiate under the rules that I’ve said, which are different from all the other countries’ rules. And there is no possible way that Argentina can obey his orders without essentially committing suicide for the economy.

JAY: Right. Okay. James, let me see if I just have the basic fact base correct. On July 30, Argentina was supposed to pay interest payments to the 90 percent of bondholders that agreed to the restructured debt, which I think was something like about $0.30 on the dollar. But about 10 percent of the bondholders refused to restructure. These vulture funds then bought these bonds at a fraction of the face value, but then sued to get paid the entire amount. And the judge has actually said they should get the entire amount. Now, on July 30, the judge says they can’t make their payments to the restructured bondholders until they pay off this $1.8 billion or something to the vulture funds. Is that–do I have it right?

HENRY: Yeah. Essentially, the vulture funds like Elliott, which is a Cayman Island-based fund, in 2008 they bought whatever Argentine bonds, restructured bonds they own or $48 million. And today they’re claiming not only the $1.3 billion that Griesa awarded them, but, beyond that, interest that’s accumulated since then. So the total for Elliott and the immediate parties, holdouts, is something like $1.65 billion–quite a profit compared with the $48 million they invested five years ago.

In addition to that, Argentina has another $15 billion of holdouts that it believes would come in if this kind of behavior holds up. And those people are already beginning to file suit.

On the other hand, since they have on the order of $140 billion of debt that they have restructured, including $80 billion that was restructured 2005 and 2010 at a 40 percent discount, if they have to now go back and put themselves back in essentially deeply in debt to pay these vultures, it just stands on the head.

Basically, we have no mechanism for handling country debt the way we do for private sector bankruptcy. And the IMF tried to suggest a system back in the early 2000s. The world just didn’t go for it. As a result, we have this cockamamie system where a New York judge is making rulings based on sort of 19th century concepts of contract law. And he only has jurisdiction in this case because Argentina is one of four Latin American countries–unlike Brazil–that has decided to choose the Southern District of New York, one of the Wall Street safe havens in terms of the federal judiciary, as the location for ruling on all of these cases with respect to Argentine foreign debt.

It has a history of ruling against debtor countries. It’s totally repealed the doctrine of champerty, which is a doctrine of the law that says that you can’t go out and buy somebody’s debts up and then just take them to court and sue just because you’ve become a creditor. But the judges in the Southern District of New York tossed that out in the late ’90s. And this is one of a series of vulture cases where companies like Elliott have been going around the world, countries like Panama and Nicaragua and Peru, and basically leveraging the fact that they have friendly judges in the Southern District of New York like Judge Griesa.

JAY: James, do we know how much interest these bonds–in ’94 when they were first issued, how much interest they were paying?

HENRY: Well, the bonds have paid variable interest depending on the time of the year. In 2001 they got up to 15 percent interest.

But if you go back to the sordid history of the Argentine debt, that’s the other thing that’s really quite disturbing here. As of 1976, Argentina had a total foreign debt of $18 million, 17 percent of GDP. The military came in in ’76 with U.S. government support, established a junta. By 1983, the debt had soared to $48 billion–by a factor of seven. And no one has ever audited that debt. There’s–and, interestingly, there’s a U.S. legal doctrine called odious debt which says that if you have a debt that’s contracted by a military dictatorship, it doesn’t necessarily have to be honored. We invoked it with respect to Cuba in 1898. It had acquired a lot of loans from Spain, and nobody could account for where they were. But this odious debt doctrine had never been applied to Argentina.

Interestingly, the other thing is that this choice of jurisdiction was originally chosen by this military junta back in 1976. Martínez de Hoz, the finance minister at that point in time, a very conservative guy, decided that Argentina would waive its sovereign immunity for purposes of all this debt that it was beginning to accumulate and allow the United States and the Southern District of New York to be the [siphus (?)] for all of these cases. So those two very fundamental changes made by, essentially, a military government, first of all blowing up the debt out of proportion, and then relocating the judiciary outside of Argentina, is very important for what we’re seeing all the way forward to 2014.

JAY: Right. Michael, it seems to me a little ironic or something. You know, you pay, you earn 10, 12, 15 percent. I mean, the reason you’re earning those kinds of money on government bonds is ’cause you’re acknowledging risk. If there’s no, ever, a risk of default, then why should you be paying? You could /ˈpeɪbi/ inflation, but not any more. So, I mean, the judge is saying there should be bonds that can pay high rates of interest, but there should be no risk.

HUDSON: That’s–there should not be any suffering as a result of risk. In other words, anybody can buy a discounted bond, and you have Third World countries always paying a premium over what the United States government has to pay, just like you have companies paying high for junk bonds. Essentially, Argentina was like a junk-bond country.

The history that was just said is very important. You had the U.S.-backed military dictatorship that ran the debt up into 1983, but then, in 1989, you had another neoliberal takeover with the Washington Consensus, and they adopted the U.S. dollar as their basic monetary reserves and tied their money supply to the dollar. That essentially drove the country into debt because it brought on an economic collapse by 2002. That’s why the government was voted out and why the Kirchners came in. So you have a destructive neoliberal government coming in, driving the country into debt, ’cause that’s what neoliberals do.

And then, 2002 (and it was just mentioned), the IMF said, look, we’re going to need something like the Bank for International Settlements was set out to do in 1929, to settle German reparations (obviously, Germany couldn’t pay the reparations that it had to). We have to have some international forum to decide how much a country can pay without imposing austerity and depression on its population, ’cause every country’s sovereign. That’s why they call it sovereign debt.

Well, the United States at that time, in 2002, blocked this and said, wait a minute, other countries want an international forum, but we’re going to block the IMF from doing that, because if they do that, they’ll write down the debt, and most of the bondholders are Wall Street, and we want to get every penny these guys want, and we don’t want.

Well, ironically, after Judge Griesa’s ruling threatened to throw the whole international bond issue into anarchy, the U.S. Treasury and the government and the French government and the IMF all filed amicus brief cases with the Supreme Court, saying, if you follow Judge Griesa’s ruling, it’s so wrong it treats Argentina as if it’s a family restaurant that’s just gone broke, and now let’s carve up all the little pieces and pay off. If you treat countries like you’d treat a family restaurant, then no country is going to ever again say, we’re going to agree, if there is a dispute, to settle the rules under the laws of New York, because if you settle the laws under New York bankruptcy, you’re going to have a nutcase like Judge Griesa saying, I don’t like Argentina, Argentina doesn’t pay its debts, I’m going to make it pay all the 100 percent money it owes as if there were no risk, and all of the interest, the 15 percent, you said, compounded year after year, and all of the legal fees that–the hedge fund has gone after 900 attempts to grab Argentine property, including their Naval training vessel, ARA Libertad, and now it’s trying to grab the shale oil in Argentina, and I’m going to give you a penalties because I don’t like Argentina. So when the judge says, Argentina, send up your people to negotiate on my terms or I’ll find you in contempt of court, Argentina says, no country could possibly negotiate on your terms. We overthrew the military dictatorship. You are not going to do to us what the military dictatorship did, Judge Griesa.

JAY: Right. Right. James, why doesn’t Argentina raise the concept of odious debt? Didn’t Correa in Ecuador do that in 2008 and actually use that to restructure some of the debt there?

HENRY: Yes, they did. I mean, Raúl Alfonsín, who came to power in 1984, raised the issue of odious debt for 21 days, and then, at the end of that 21 day period, he reversed himself. That’s the last time we ever had a serious discussion of auditing the Argentine debt. So President Alfonsín must have gotten the message from international banks, who have long treated Argentina as a huge source not only of lousy lending but also capital flight, something like $300 billion of offshore private capital outside of the country.

The irony is, as Michael just said: I think this has actually been one of the most successful examples of debt restructuring that we’ve ever seen. Argentine economy performed extremely well from 2005 until 2009 after it restructured the debt, growing at 5 to 7 percent a year. It’s had some difficulties in the last three years, but nothing like what was it going through in 2000 and 2001, when you had 40 percent of the people below the poverty line, you had 18 percent unemployment, you had the neoliberal, my classmate, Domingo Cavallo, running the economy, and he blew the debt up from about $90 billion in 1999 to $144 billion by the time he left office.

JAY: James, it should also be added that it’s not just the dictators. It was the dictatorship, you could say, of the IMF and the whole restructuring that took place that preceded this default, was it not?

HENRY: Well, I think it was kind of that plus the militant neoliberal [crosstalk]

JAY: Yeah, that’s what I’m talking about. Yeah.

HENRY: –was really, you know, convertibility. Convertibility of the dollar into the peso became an iron law. If you basically say that you can’t devalue your exchange rate in order to grow the economy and you’re running budget deficits and you can’t borrow, you’ve taken away all of the levers except cutting spending, and there just wasn’t that much spending to cut.

JAY: James, just quickly (we’re getting near the end of this), July 30 is just a few days away. What do you think’s actually going to happen?

HENRY: Well, Argentina doesn’t really have a plan B. My guess is that–this is quite a complicated story. Default doesn’t automatically occur. It takes 25 percent of the creditors, in this case those who would be entitled to the $140 billion, to actually declare Argentina in default. Furthermore, many of the payments that Argentina’s making are to bondholders who are in Europe or have peso debt. About 60 percent of these bonds are actually owned by Argentinians, and they’re accepting pesos, and those have been cleared through the custodial banks that are handling those payments. It’s basically the 29 percent of the bonds that are owned by U.S. that are being paid in dollars–they’re dollar denominated–that are really the subject of a possible sort of partial default here.

I think Argentina actually has quite a bit of–it can try this notion that’s been bandied about of inviting bondholders to come in and accept payment outside of the United States in other currencies, or even in dollars in Argentina. And if it did that carefully, the value of those bonds would of course plummet, but Argentina could do what Ecuador did, which is to buy up some of the bonds at a discounted value. Maybe that would cost them less than they would have to pay to these holdouts, who have maybe $15 billion in debt.

So I think there’s not going to be a cliff here. It’s going to be a messy process, but I doubt that you’re going to see these vultures at the end of the day able to get Argentina to pay them. Now, they may well have sold–the smart money says that these guys have already essentially insured themselves, they bought credit default swaps, CDSs. And so whether or not those CDSs come due at the date of July 30 is an interesting legal question. But it may be that these vultures are really mainly interested in collecting on those credit default swaps. We’ll just have to see.

But the big picture is that Argentina is not about to go back into $140 billion in debt in order to simply satisfy people who bought their bonds for $48 million in 2000.

JAY: Michael, just a quick final word. What message does this all send to other countries around the world about how they might deal with vulture funds?

HUDSON: Well, the ruling of Judge Griesa now is a precedent for any country that tries to renegotiate its debt like Greece negotiated its debt downward. And the problem is that, as the United States argued against Greece’s ruling, saying, wait a minute, this means that no country that issues bonds in New York or has a new bank as a paying agent–and if they pay in dollars, it has to go through some New York bank–no country can write down the debt anywhere in the world.

So this goes way beyond Argentina. This is only–you have a case of the tail wagging the dog. And that’s why everybody from the U.S. government to Europe was insisting that the Supreme Court overruled Judge Griesa’s ruling. And the Supreme Court said, wait a minute, since the ruling is only local New York State bankruptcy contract law, it’s not a national law and a constitutional law, so we don’t have any ground to review it. And the other people said, wait a minute. It may be, of course, it’s local law, but we’re dealing with an entire country and international relations, and the international relations means that other countries will now shun the New York and the dollar market for bonds, and there goes Wall Street.

And the other aspect of Wall Street, as you just mentioned: many people have been speculating over how much credit default swaps have Singer’s vulture funds bought? And the idea is, okay, this is like John Paulson buying junk mortgage default swaps and making $1 billion off–believing that the junk mortgages would go bust. Well, the problem with these credit default swaps and Argentina is who’s on the other side. And the belief is that–. Who is on the other side of credit default swaps? It’s the ten largest New York banks. So Citibank, Chase Manhattan, Bank of America, they’re on the other side of these credit default swaps, and they’ll take a huge loss if indeed there is a default. So everything is just up into a potentially explosive situation.

HENRY: Paul, let me just make one more content.

JAY: Yeah, go ahead, James.

HENRY: I could say, just to end a positive note, last week not only did Argentina almost win the World Cup, but the Chinese premier came to Argentina with 200 business executives, and he is setting up a $7.5 billion project lending facility plus at $11 million currency swap facility. Chinese companies are looking seriously at investing in farms, farmland, grain production, and in the shale oil deposits that Argentina has, which are larger than the United States’, potentially.

So this country has great future, and I think it’s disappointing for the United States not to be able to behave in a more professional way toward Argentina, one that values this long-term relationship.

ONU – “Comunidade Internacional debate conflito em Gaza e Israel”

Publicado em 23/07/2014

“Não somos números. Somos seres humanos”, disse Riyad Mansour, observador permanente da Palestina junto às Nações Unidas, em uma reunião do Conselho de Segurança da ONU sobre as mortes em Gaza. O vice-representante de Israel na ONU, David Yitshak Roet, disse que o presidente palestino, Mahmoud Abbas, deveria “dissolver a unidade de governo” da Palestina.

“Estes são os rostos humanos de nossas vítimas”, acrescentou Mansour, mostrando fotos das crianças palestinas mortas e feridas no conflito — até esta quarta-feira (23), mais de 160 crianças palestinas haviam sido assassinadas, com pelo menos 1.100 feridas, segundo o UNICEF.

Por videoconferência, o secretário-geral da ONU, Ban Ki-moon — que está visitando diversos países na região –, afirmou: “Um cessar-fogo é essencial, mas se não enfrentarmos as questões mais profundas, nós nunca resolveremos o problema. Nós só iremos postergá-lo para um outro momento”.

Em Genebra, o Conselho de Direitos Humanos da ONU fez uma reunião emergencial sobre o tema. A chefe de direitos humanos da ONU, Navi Pillay, alertou para potenciais crimes de guerra e contra a humanidade que estão sendo cometidos.

Assista nesta matéria especial da ONU e saiba mais em http://www.onu.org.br/especial/gaza

CIJ – “Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile)”

Fixing of the time-limit for the filing of a written statement by Bolivia on the
preliminary objection to the jurisdiction of the Court raised by Chile

THE HAGUE, 16 July 2014. By an Order of 15 July 2014, the President of the International Court of Justice (ICJ) has fixed the time-limit for the filing, by the Plurinational State of Bolivia, of a written statement of its observations and submissions on the preliminary objection to the jurisdiction of the Court raised by the Republic of Chile in the case concerning the Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile).

In his Order, the President recalls that earlier that day, Chile, referring to Article 79,
paragraph 1, of the Rules of Court, filed a preliminary objection to the jurisdiction of the Court. In accordance with paragraph 5 of the same Article, the proceedings on the merits have therefore been suspended. Pursuant to that paragraph, the President, by the said Order, has fixed 14 November 2014 as the time-limit within which Bolivia may present a written statement of its observations and submissions on the preliminary objection raised by Chile. The subsequent procedure has been reserved for further decision.

History of the proceedings

On 24 April 2013, Bolivia filed in the Registry of the Court an Application instituting
proceedings against Chile concerning a dispute in relation to “Chile’s obligation to negotiate in good faith and effectively with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean”.

By an Order of 18 June 2013, the Court fixed 17 April 2014 and 18 February 2015 as the respective time-limits for the filing of a Memorial by Bolivia and a Counter-Memorial by Chile.

The Memorial of Bolivia was filed within the time-limit thus fixed. Further details can be found in Press Releases Nos. 2013/11 and 2013/15, available on the Court’s website (www.icj-cij.org) under the heading “Press Room”/“Press Releases”.

Fonte: http://www.icj-cij.org/presscom/index.php?p1=6&p2=1

ONU – “Israel agrees to ‘humanitarian pause’ in war-torn Gaza Strip, UN envoy confirms”

After days of escalating violence and follow-on civilian suffering in the Gaza Strip, the United Nations special envoy for the Middle East confirmed today that Israel has agreed to a five hour humanitarian pause – set to begin tomorrow morning – and repeated his call on Hamas to respect the lull “in the interest of the people of Gaza.”

In a statement issued by his spokesperson in Jerusalem, Robert Serry UN Special Coordinator for the Middle East Peace Process confirmed that the Government of Israel agreed the five hour humanitarian pause, which will start at tomorrow at 10:00 a.m., local time and end at 3:00 p.m.

“Mr. Serry appreciates this Israeli decision and repeats his call on Hamas and other factions to respect the humanitarian pause from their side, in the interest of the people of Gaza,” said the statement.

It goes on to say that Mr. Serry reiterates the importance of arriving at a durable ceasefire understanding, also addressing underlying issues in Gaza, as soon as possible. “The United Nations, together with other international actors, will continue to support efforts in this regard,” the statement concluded.

war-amp-peace1

This news comes as media reports suggest that Israel previously had agreed to a pause for several hours Tuesday after Egypt put forward a cease-fire proposal that subsequently collapsed.

Israeli-Palestinian violence has flared ago in the wake of the kidnapping and murder of three Israeli teenagers in the West Bank in late June and the subsequent kidnapping and killing of a Palestinian teenager from East Jerusalem earlier this month.

And with militants in Gaza stepping up rocket attacks against Israel, and Israeli airstrikes on the enclave intensifying, Secretary-General Ban Ki Moon and a host of other senior UN officials, as well as the members of the Security Council, have repeatedly urged all actors to exercise maximum restraint and avoid further civilian casualties and overall destabilization.

Meanwhile, earlier today, the UN Emergency Relief Coordinator reminded both Israelis and Palestinians of their obligations under international law to protect civilians and to distinguish between military and civilian targets, as she warned that innocent men, women and children continue to bear the brunt of the deadly violence that has engulfed the region.

Extremely concerned by the escalation of hostilities and its impact on civilians, Valerie Amos, in a statement issued by the UN Office for the Coordination of Humanitarian Affairs (OCHA), which she heads, said that according to preliminary estimates, as of 15 July, 194 Palestinians had been killed by Israeli attacks, including 149 civilians.

Ms. Amos said that hundreds of homes have been directly targeted by Israeli airstrikes, many of which were allegedly the residences of members of armed groups. More than 1,300 families have been forced to seek shelter with relatives and neighbours. Nearly 80 schools have been damaged because of their proximity to targeted sites. In one incident, an Israeli airstrike killed 18 people in one house, including six children and three women.

Public services have been suspended and the water supply is at risk after two maintenance engineers were killed by an Israeli missile, she added.

“Armed groups are firing rockets from residential areas in Gaza towards populated areas in Israel, reportedly killing one civilian so far and putting at risk the lives of thousands more, both Israeli and Palestinian,” Ms Amos said, and underscored: “Sustained bombardment is terrifying for everyone but particularly for children, who will need psycho-social support long after the violence subsides.”

She went on to remind the parties to conflict that they have responsibilities under international humanitarian law, emphasizing that “they must take precautions to protect civilians and must distinguish between civilian and military targets.”

“This is the third major military confrontation in Gaza in six years, and civilians have borne the brunt each time. They are paying the price for a collective failure to break the cycle of violence and reach a lasting political solution,” declared Ms. Amos.

Fonte: http://www.un.org/apps/news/story.asp?NewsID=48284#.U8fX4fldVBs

ONU – “Level of human loss, destruction in Gaza ‘immense,’ says UN agency”

The level of human loss and destruction in Gaza as a result of the ongoing conflict with Israel has been “immense,” the United Nations agency tasked with assisting Palestinian refugees said today, noting that eight days of hostilities has claimed 174 lives and injured well over 1,100 people.

palestine_2400071b

“The numbers are increasing by the hour,” Sami Mshasha, from the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), told a news conference in Geneva.

“We also notice that a good number of those killed and injured are women and children, and that is a cause of concern for UNRWA,” he said, speaking by phone from Jerusalem.

Mr. Mshasha added that 560 homes were completely destroyed and thousands of other buildings damaged in Israeli airstrikes.

Since the latest hostilities began a week ago, senior UN officials and the Security Council have called on the parties to de-escalate the situation, restore calm, and reinstitute the November 2012 ceasefire that ended eight days of violence in Gaza and Israel.

Secretary-General Ban Ki-moon, who spoke with Egyptian President Abdel Fattah el-Sisi on Sunday, has expressed his full support for the Egyptian initiative for a cease-fire agreement.

“He is deeply worried that the fighting has not stopped, despite Israel’s readiness to accept the ceasefire proposal and the Palestinian Authority’s support,” UN spokesperson Farhan Haq told reporters in New York.

“He calls on Hamas to cooperate with the Egyptian initiative, and urges all sides to build on this opening of a diplomatic channel. All parties must respect international humanitarian law.”

Mr. Haq added that the UN will in the meantime continue providing much-needed emergency humanitarian assistance to Gaza.

UNRWA said it is extremely worried that if the ceasefire being negotiated does not succeed, an Israeli ground offensive and military incursion into Gaza will take place, bringing more death and destruction.

“There is a high level of anticipation for the ceasefire to take effect today or tomorrow, and if it doesn’t, I am afraid that the civilians in Gaza will end up paying again the ultimate price,” said Mr. Mshasha.

Fonte: http://www.un.org/apps/news/story.asp?NewsID=48277#.U8ZvDPldVBs

ONU – “Ban says Israel’s construction of West Bank wall violates international law, fuels Mid-East tensions”

At a special meeting to mark the 10th anniversary of the International Court of Justice (ICJ) advisory ruling declaring illegal Israel’s construction of a separation wall in the West Bank, Secretary General Ban Ki-moon today called for a halt to the current violence between Israelis and Palestinians, while also the need all Member States to comply with international law.

08-06-2009barrier

In a statement to the UN Committee on the Exercise of the Inalienable Rights of the Palestinian People, delivered by Oscar Fernandez-Taranco, Assistant Secretary-General for Political Affairs, Mr. Ban urged all sides to abide by their international obligations, emphasizing that the wall and increased settlement activity were fuelling tensions.

“The implications of the wall go far beyond its legality,” he stated, pointing out that 10 years ago today, the ICJ in its Advisory Opinion on the “Legal Consequences of a Wall in the Occupied Territory” found that the Israeli construction of the Wall within the Occupied Palestinian Territory, including in and around East Jerusalem, violated Israel’s obligation under international law.

On 09 July 2004, the Advisory Opinion called on Israel to cease the construction of the Wall, bring down the parts that had already been built, and halt the severe restrictions on the freedom of movement of Palestinians living in the West Bank. In addition, the Advisory Opinion pointed out that all States were not only under an obligation not to recognize the illegal situation resulting from the construction of the wall, but that States Parties to the Fourth Geneva Convention had the additional obligation to ensure compliance by Israel with international humanitarian law.

“The wall severely restricts Palestinian movement and access throughout the West Bank, cuts off land and access to resources needed for Palestinian development, and continues to undermine agricultural and rural livelihoods throughout the West Bank,” Mr. Ban said.

The wall and increased settlement expansion have worsened the fragmentation of the Palestinian Territory, compounding the increasing isolation of East Jerusalem from the rest of the Territory, Mr. Ban continued. Israel’s Government, however, claims that the wall is a temporary security measure.

Since 2008, a UN office collecting data on the damage caused by the construction of the wall, has collected 42,600 claims and over 1.1 million supporting documents.

Also today, the UN Office for the Coordination of Humanitarian Affairs released a new report which summarizes the continuing humanitarian impact of the barrier on Palestinian rural and urban communities. It notes that after a decade, 62 per cent of the wall has been constructed, including 200 kilometres since the ICJ Advisory Opinion.

At the conclusion of the meeting, the Committee approved a statement by which it reaffirmed all aspects of the ICJ decision and reiterated the call by the Court on the UN General Assembly and the Security Council to consider what further action is required to bring to an end the illegal situation resulting from Israel’s construction of the wall and the associated regime.

By its statement, the Committee deeply regretted that the Security Council has “remained silent” on the critical matter of Israel’s construction of the Wall, and has failed in recent years to take action to condemn and bring a halt to Israel’s continuing violations of international law, especially those related to the illegal settlement expansion and the Wall.

Calling on the Security Council to act urgently and decisively to compel Israel to end its violations of international law, the Committee also stressed that more active steps from the international community, Governments, international organizations, parliamentarians and civil society, are required to salvage the two-State solution in accordance with the relevant UN resolutions, the Madrid principles and the Arab Peace Initiative, the Quartet Roadmap, and to assist the Palestinian people to realize their inalienable rights, justice, freedom and peace.

Fonte: http://www.un.org/apps/news/story.asp?NewsID=48236#.U76hfPldVBs

CIJ – History of the Court

The creation of the Court represented the culmination of a long development of methods for the pacific settlement of international disputes, the origins of which can be traced back to classical times.

International_Court_of_Justice_logo

Article 33 of the United Nations Charter lists the following methods for the pacific settlement of disputes between States: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, and resort to regional agencies or arrangements; good offices should also be added to this list. Among these methods, certain involve appealing to third parties. For example, mediation places the parties to a dispute in a position in which they can themselves resolve their dispute thanks to the intervention of a third party. Arbitration goes further, in the sense that the dispute is submitted to the decision or award of an impartial third party, so that a binding settlement can be achieved. The same is true of judicial settlement (the method applied by the International Court of Justice), except that a court is subject to stricter rules than an arbitral tribunal, particularly in procedural matters.

Mediation and arbitration preceded judicial settlement in history. The former was known in ancient India and in the Islamic world, whilst numerous examples of the latter are to be found in ancient Greece, in China, among the Arabian tribes, in maritime customary law in medieval Europe and in Papal practice.

The Origins

The modern history of international arbitration is, however, generally recognized as dating from the so-called Jay Treaty of 1794 between the United States of America and Great Britain. This Treaty of Amity, Commerce and Navigation provided for the creation of three mixed commissions, composed of American and British nationals in equal numbers, whose task it would be to settle a number of outstanding questions between the two countries which it had not been possible to resolve by negotiation. Whilst it is true that these mixed commissions were not strictly speaking organs of third-party adjudication, they were intended to function to some extent as tribunals. They reawakened interest in the process of arbitration. Throughout the nineteenth century, the United States and the United Kingdom had recourse to them, as did other States in Europe and the Americas.

The Alabama Claims arbitration in 1872 between the United Kingdom and the United States marked the start of a second, and still more decisive, phase. Under the Treaty of Washington of 1871, the United States and the United Kingdom agreed to submit to arbitration claims by the former for alleged breaches of neutrality by the latter during the American Civil War. The two countries stated certain rules governing the duties of neutral governments that were to be applied by the tribunal, which they agreed should consist of five members, to be appointed respectively by the Heads of State of the United States, the United Kingdom, Brazil, Italy and Switzerland, the last three States not being parties to the case. The arbitral tribunal’s award ordered the United Kingdom to pay compensation and it was duly complied with. The proceedings served as a demonstration of the effectiveness of arbitration in the settlement of a major dispute and it led during the latter years of the nineteenth century to developments in various directions, namely:

  • sharp growth in the practice of inserting in treaties clauses providing for recourse to arbitration in the event of a dispute between the parties;
  • the conclusion of general treaties of arbitration for the settlement of specified classes of inter-State disputes;
  • efforts to construct a general law of arbitration, so that countries wishing to have recourse to this means of settling disputes would not be obliged to agree each time on the procedure to be adopted, the composition of the tribunal, the rules to be followed and the factors to be taken into consideration in making the award;
  • proposals for the creation of a permanent international arbitral tribunal in order to obviate the need to set up a special ad hoc tribunal to decide each arbitrable dispute.

The Hague Peace Conferences and the Permanent Court of Arbitration (PCA)

The Hague Peace Conference of 1899, convened at the initiative of the Russian Czar Nicholas II, marked the beginning of a third phase in the modern history of international arbitration. The chief object of the Conference, in which — a remarkable innovation for the time — the smaller States of Europe, some Asian States and Mexico also participated, was to discuss peace and disarmament. It ended by adopting a Convention on the Pacific Settlement of International Disputes, which dealt not only with arbitration but also with other methods of pacific settlement, such as good offices and mediation.

paz-haia

With respect to arbitration, the 1899 Convention made provision for the creation of permanent machinery which would enable arbitral tribunals to be set up as desired and would facilitate their work. This institution, known as the Permanent Court of Arbitration, consisted in essence of a panel of jurists designated by each country acceding to the Convention — each such country being entitled to designate up to four — from among whom the members of each arbitral tribunal might be chosen. The Convention further created a permanent Bureau, located at The Hague, with functions corresponding to those of a court registry or a secretariat, and it laid down a set of rules of procedure to govern the conduct of arbitrations. It will be seen that the name “Permanent Court of Arbitration” is not a wholly accurate description of the machinery set up by the Convention, which represented only a method or device for facilitating the creation of arbitral tribunals as and when necessary. Nevertheless, the system so established was permanent and the Convention as it were “institutionalized” the law and practice of arbitration, placing it on a more definite and more generally accepted footing. The Permanent Court of Arbitration was established in 1900 and began operating in 1902.

A few years later, in 1907, a second Hague Peace Conference, to which the States of Central and South America were also invited, revised the Convention and improved the rules governing arbitral proceedings. Some participants would have preferred the Conference not to confine itself to improving the machinery created in 1899. The United States Secretary of State, Elihu Root, had instructed the United States delegation to work towards the creation of a permanent tribunal composed of judges who were judicial officers and nothing else, who had no other occupation, and who would devote their entire time to the trial and decision of international cases by judicial methods. “These judges”, wrote Secretary Root, “should be so selected from the different countries that the different systems of law and procedure and the principal languages shall be fairly represented”. The United States, the United Kingdom and Germany submitted a joint proposal for a permanent court, but the Conference was unable to reach agreement upon it. It became apparent in the course of the discussions that one of the major difficulties was that of finding an acceptable way of choosing the judges, none of the proposals made having managed to command general support. The Conference confined itself to recommending that States should adopt a draft convention for the creation of a court of arbitral justice as soon as agreement was reached “respecting the selection of the judges and the constitution of the court”. Although this court was never in fact to see the light of day, the draft convention that was to have given birth to it enshrined certain fundamental ideas that some years later were to serve as a source of inspiration for the drafting of the Statute of the Permanent Court of International Justice (PCIJ).

Notwithstanding the fate of these proposals, the Permanent Court of Arbitration, which in 1913 took up residence in the Peace Palace that had been built for it thanks to a gift from Andrew Carnegie, has made a positive contribution to the development of international law. Among the classic cases that have been decided through recourse to its machinery, mention may be made of the Carthage and Manouba cases (1913) concerning the seizure of vessels, and of the Timor Frontiers (1914) and Sovereignty over the Island of Palmas (1928) cases. Whilst demonstrating that arbitral tribunals set up by recourse to standing machinery could decide disputes between States on a basis of law and justice and command respect for their impartiality, these cases threw into bold relief the shortcomings of the Permanent Court of Arbitration. Tribunals of differing composition could hardly be expected to develop a consistent approach to international law to the same extent as a permanently constituted tribunal. Besides, there was the entirely voluntary character of the machinery. The fact that States were parties to the 1899 and 1907 Conventions did not oblige them to submit their disputes to arbitration nor, even if they were minded so to do, were they duty-bound to have recourse to the Permanent Court of Arbitration nor to follow the rules of procedure laid down in the Conventions.

The Permanent Court of Arbitration has recently sought to diversify the services that it can offer, alongside those contemplated by the Conventions. The International Bureau of the Permanent Court has inter alia acted as Registry in some important international arbitrations, including that between Eritrea and Yemen on questions of territorial sovereignty and maritime delimitation (1998 and 1999), that concerning the delimitation of the boundary between Eritrea and Ethiopia (2002), and that between Ireland and the United Kingdom under the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR). Moreover, in 1993, the Permanent Court of Arbitration adopted new “Optional Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State” and, in 2001, “Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment”.

conferencia-haia

For more information on the Permanent Court of Arbitration, please visit their website: www.pca-cpa.org.

The work of the two Hague Peace Conferences and the ideas they inspired in statesmen and jurists had some influence on the creation of the Central American Court of Justice, which operated from 1908 to 1918, as well as on the various plans and proposals submitted between 1911 and 1919 both by national and international bodies and by governments for the establishment of an international judicial tribunal, which culminated in the creation of the PCIJ within the framework of the new international system set up after the end of the First World War.

The Permanent Court of International Justice (PCIJ)

Article 14 of the Covenant of the League of Nations gave the Council of the League responsibility for formulating plans for the establishment of a Permanent Court of International Justice (PCIJ), such a court to be competent not only to hear and determine any dispute of an international character submitted to it by the parties to the dispute, but also to give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly. It remained for the League Council to take the necessary action to give effect to Article 14. At its second session early in 1920, the Council appointed an Advisory Committee of Jurists to submit a report on the establishment of the PCIJ. The committee sat in The Hague, under the chairmanship of Baron Descamps ( Belgium). In August 1920, a report containing a draft scheme was submitted to the Council, which, after examining it and making certain amendments, laid it before the First Assembly of the League of Nations, which opened at Geneva in November of that year. The Assembly instructed its Third Committee to examine the question of the Court’s constitution. In December 1920, after an exhaustive study by a subcommittee, the Committee submitted a revised draft to the Assembly, which unanimously adopted it. This was the Statute of the PCIJ.

The Assembly took the view that a vote alone would not be sufficient to establish the PCIJ and that each State represented in the Assembly would formally have to ratify the Statute. In a resolution of 13 December 1920, it called upon the Council to submit to the Members of the League of Nations a protocol adopting the Statute and decided that the Statute should come into force as soon as the protocol had been ratified by a majority of Member States. The protocol was opened for signature on 16 December. By the time of the next meeting of the Assembly, in September 1921, a majority of the Members of the League had signed and ratified the protocol. The Statute thus entered into force. It was to be revised only once, in 1929, the revised version coming into force in 1936. Among other things, the new Statute resolved the previously insurmountable problem of the election of the members of a permanent international tribunal by providing that the judges were to be elected concurrently but independently by the Council and the Assembly of the League, and that it should be borne in mind that those elected “should represent the main forms of civilization and the principal legal systems of the world”. Simple as this solution may now seem, in 1920 it was a considerable achievement to have devised it. The first elections were held on 14 September 1921. Following approaches by the Netherlands Government in the spring of 1919, it was decided that the PCIJ should have its permanent seat in the Peace Palace in The Hague, which it would share with the Permanent Court of Arbitration. It was accordingly in the Peace Palace that on 30 January 1922 the Court’s preliminary session devoted to the elaboration of the Court’s Rules opened, and it was there too that its inaugural sitting was held on 15 February 1922, with the Dutch jurist Bernard C. J.  Loder as President.

The PCIJ was thus a working reality. The great advance it represented in the history of international legal proceedings can be appreciated by considering the following:

  • unlike arbitral tribunals, the PCIJ was a permanently constituted body governed by its own Statute and Rules of Procedure, fixed beforehand and binding on parties having recourse to the Court;
  • it had a permanent Registry which, inter alia, served as a channel of communication with governments and international bodies;
  • its proceedings were largely public and provision was made for the publication in due course of the pleadings, of verbatim records of the sittings and of all documentary evidence submitted to it;
  • the permanent tribunal thus established was now able to set about gradually developing a constant practice and maintaining a certain continuity in its decisions, thereby enabling it to make a greater contribution to the development of international law;
  • in principle the PCIJ was accessible to all States for the judicial settlement of their international disputes and they were able to declare beforehand that for certain classes of legal disputes they recognized the Court’s jurisdiction as compulsory in relation to other States accepting the same obligation. This system of optional acceptance of the jurisdiction of the Court was the most that it was then possible to obtain;
  • the PCIJ was empowered to give advisory opinions upon any dispute or question referred to it by the League of Nations Council or Assembly;
  • the Court’s Statute specifically listed the sources of law it was to apply in deciding contentious cases and giving advisory opinions, without prejudice to the power of the Court to decide a case ex aequo et bono if the parties so agreed;
  • it was more representative of the international community and of the major legal systems of the world than any other international tribunal had ever been before it.

Although the Permanent Court of International Justice was brought into being through, and by, the League of Nations, it was nevertheless not a part of the League. There was a close association between the two bodies, which found expression inter alia in the fact that the League Council and Assembly periodically elected the Members of the Court and that both Council and Assembly were entitled to seek advisory opinions from the Court, but the latter never formed an integral part of the League, just as the Statute never formed part of the Covenant. In particular, a Member State of the League of Nations was not by this fact alone automatically a party to the Court’s Statute.

Between 1922 and 1940 the PCIJ dealt with 29 contentious cases between States and delivered 27 advisory opinions. At the same time several hundred treaties, conventions and declarations conferred jurisdiction upon it over specified classes of disputes. Any doubts that might thus have existed as to whether a permanent international judicial tribunal could function in a practical and effective manner were thus dispelled. The Court’s value to the international community was demonstrated in a number of different ways, in the first place by the development of a true judicial technique. This found expression in the Rules of Court, which the PCIJ originally drew up in 1922 and subsequently revised on three occasions, in 1926, 1931 and 1936. There was also the PCIJ’s Resolution concerning the Judicial Practice of the Court, adopted in 1931 and revised in 1936, which laid down the internal procedure to be applied during the Court’s deliberations on each case. In addition, whilst helping to resolve some serious international disputes, many of them consequences of the First World War, the decisions of the PCIJ at the same time often clarified previously unclear areas of international law or contributed to its development.

For more information on the Permanent Court of International Justice, please see the “PCIJ” pages on our website.

The International Court of Justice (ICJ)

The outbreak of war in September 1939 inevitably had serious consequences for the PCIJ, which had already for some years known a period of diminished activity. After its last public sitting on 4 December 1939, the Permanent Court of International Justice did not in fact deal with any judicial business and no further elections of judges were held. In 1940 the Court removed to Geneva, a single judge remaining at The Hague, together with a few Registry officials of Dutch nationality. It was inevitable that even under the stress of the war some thought should be given to the future of the Court, as well as to the creation of a new international political order.

e89e517ccb43e4606165d71e449d7781

In 1942 the United States Secretary of State and the Foreign Secretary of the United Kingdom declared themselves in favour of the establishment or re-establishment of an international court after the war, and the Inter-American Juridical Committee recommended the extension of the PCIJ’s jurisdiction. Early in 1943, the United Kingdom Government took the initiative of inviting a number of experts to London to constitute an informal Inter-Allied Committee to examine the matter. This Committee, under the chairmanship of Sir William Malkin ( United Kingdom), held 19 meetings, which were attended by jurists from 11 countries. In its report, which was published on 10 February 1944, it recommended:

  • that the Statute of any new international court should be based on that of the Permanent Court of International Justice;
  • that advisory jurisdiction should be retained in the case of the new Court;
  • that acceptance of the jurisdiction of the new Court should not be compulsory;
  • that the Court should have no jurisdiction to deal with essentially political matters.

Meanwhile, on 30 October 1943, following a conference between China, the USSR, the United Kingdom and the United States, a joint declaration was issued recognizing the necessity “of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving States, and open to membership by all such States, large and small, for the maintenance of international peace and security”.

This declaration led to exchanges between the Four Powers at Dumbarton Oaks, resulting in the publication on 9 October 1944 of proposals for the establishment of a general international organization, to include an international court of justice. The next step was the convening of a meeting in Washington, in April 1945, of a committee of jurists representing 44 States. This Committee, under the chairmanship of G. H. Hackworth ( United States), was entrusted with the preparation of a draft Statute for the future international court of justice, for submission to the San Francisco Conference, which during the months of April to June 1945 was to draw up the United Nations Charter. The draft Statute prepared by the Committee was based on the Statute of the PCIJ and was thus not a completely fresh text. The Committee nevertheless felt constrained to leave a number of questions open which it felt should be decided by the Conference: should a new court be created? In what form should the court’s mission as the principal judicial organ of the United Nations be stated? Should the court’s jurisdiction be compulsory, and, if so, to what extent? How should the judges be elected? The final decisions on these points, and on the definitive form of the Statute, were taken at the San Francisco Conference, in which 50 States participated. The Conference decided against compulsory jurisdiction and in favour of the creation of an entirely new court, which would be a principal organ of the United Nations, on the same footing as the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council and the Secretariat, and with the Statute annexed to and forming part of the Charter. The chief reasons that led the Conference to decide to create a new court were the following:

  • as the court was to be the principal judicial organ of the United Nations, it was felt inappropriate for this role to be filled by the Permanent Court of International Justice, which had up until then been linked to the League of Nations, then on the point of dissolution;
  • the creation of a new court was more consistent with the provision in the Charter that all Member States of the United Nations would ipso factobe parties to the court’s Statute;
  • several States that were parties to the Statute of the PCIJ were not represented at the San Francisco Conference, and, conversely, several States represented at the Conference were not parties to the Statute;
  • there was a feeling in some quarters that the PCIJ formed part of an older order, in which European States had dominated the political and legal affairs of the international community, and that the creation of a new court would make it easier for States outside Europe to play a more influential role. This has in fact happened as the membership of the United Nations grew from 51 in 1945 to 192 in 2006.

The San Francisco Conference nevertheless showed some concern that all continuity with the past should not be broken, particularly as the Statute of the PCIJ had itself been drawn up on the basis of past experience, and it was felt better not to change something that had seemed to work well. The Charter therefore plainly stated that the Statute of the International Court of Justice was based upon that of the PCIJ. At the same time, the necessary steps were taken for a transfer of the jurisdiction of the PCIJ so far as was possible to the International Court of Justice. In any event, the decision to create a new court necessarily involved the dissolution of its predecessor.

thehague1

The PCIJ met for the last time in October 1945 when it was decided to take all appropriate measures to ensure the transfer of its archives and effects to the new International Court of Justice, which, like its predecessor, was to have its seat in the Peace Palace. The judges of the PCIJ all resigned on 31 January 1946, and the election of the first Members of the International Court of Justice took place on 6 February 1946, at the First Session of the United Nations General Assembly and Security Council. In April 1946, the PCIJ was formally dissolved, and the International Court of Justice, meeting for the first time, elected as its President Judge José Gustavo Guerrero ( El Salvador), the last President of the PCIJ. The Court appointed the members of its Registry (largely from among former officials of the PCIJ) and held an inaugural public sitting, on the 18th of that month. The first case was submitted in May 1947. It concerned incidents in the Corfu Channel and was brought by the United Kingdom against Albania.

Fonte: http://www.icj-cij.org/court/index.php?p1=1&p2=1

Celso Lafer – O Brasil e a Globalização — Pensadores do Direito Internacional

Publicado em 03/04/2014

Celso Lafer – O Brasil e a Globalização — Pensadores do Direito Internacional: http://www.youtube.com/watch?v=pFFq2jtUiMc

Entrevista com o professor, advogado e árbitro Celso Lafer realizada pelo jornalista Carlos Eduardo e o sócio de, L.O.Baptista-SVMFA , Mauricio Almeida Prado, abordando temas como: globalização e direto, Direito Internacional Econômico, governança global e os desafios do multiculturalismo.  A entrevista é parte da obra “O Brasil e a Globalização — Pensadores do Direito Internacional”, composta por livro e DVD.

http://www.lob-svmfa.com.br