Thursday, July 31, 2008
As we have some readers of our blog in Brunei Darussalam, it seems like a good idea to point out that Brunei will hold an International Arbitration Conference on the 16th and 17th August 2008 together with the Second Regional Arbitral Institutes Forum Conference. The Conference will be hosted by the Arbitration Association Brunei Darussalam ("AABD") and is supported by the Brunei Attorney General's Chambers and members of the Regional Arbitral Institutes Forum, including the Australian Indonesian National Arbitration Board; Hong Kong Institute of Arbitrators; Institute of Arbitrators & Mediators Australia; Malaysian Institute of Arbitrators; and the Singapore Institute of Arbitrators. A link to the conference is available at http://www.cityneon.com.bn/arbit-con2008/.
Hat tip to Mark Goldstein.
News from the WTO. Director-General Pascal Lamy reported to the General Council on today that the Trade Negotiations Committee had heard “multiple strong calls for preserving the package that had been so painfully negotiated in order to conclude this Round successfully.” Lamy said there was no doubt that “looking at what is on the table now, members believe that the Doha Round is still worth fighting for.”
We received the following news release from the Human Rights Campaign. There are several reports that President Bush lifted the HIV ban for the United States, but actually the ban simply reverted from a statutory ban to an administrative ban. It remains in place until the Secretary of Health and Human Services lifts it. The U.S. was one of the first countries to impose an HIV travel ban, despite public health evidence that such a ban would be counterproductive in many instances.
Hat tip to Rex Wockner.
HUMAN RIGHTS CAMPAIGN
FOR IMMEDIATE RELEASE: July 30, 2008
Brad Luna | Phone: 202/216.1514 | Cell: 202/812.8140
Trevor Thomas | Phone: 202/216.1547 | Cell: 202/250.9758
President Signs Bill Repealing Discriminatory HIV Travel and Immigration Law
HRC calls on Department of Health and Human Services to update regulations
WASHINGTON - The Human Rights Campaign, the nation's largest gay, lesbian, bisexual and transgender civil rights organization, today called on the Department of Health and Human Services to update its regulations following the President's signing of legislation to reauthorize PEPFAR, the President's Emergency Plan for AIDS Relief. Included in this measure was a provision to repeal our nation's discriminatory law barring HIV-positive visitors and immigrants. The PEPFAR bill passed the Senate on July 16 and the U.S. House passed the bill last week.
"We appreciate the President signing the repeal of this unjust and sweeping policy that deems HIV-positive individuals inadmissible to the United States," said Human Rights Campaign President Joe Solmonese. "The HIV travel and immigration ban performs no public health service, is unnecessary and ineffective. We thank our allies on the Hill who fought to end this injustice and now call on Secretary of Health and Human Services Leavitt to remove the remaining regulatory barriers to HIV-positive
visitors and immigrants."
HRC has been a lead organization lobbying on Capitol Hill for the repeal and will continue to work to ensure that Department of Health and Human Services' regulations are changed. The Human Rights Campaign has worked closely with the offices of Senators John Kerry (D-MA) and Gordon Smith (R-OR), as well as Rep. Barbara Lee (D-CA), the sponsor of an effort to repeal the ban in the House of Representatives. Both Sen. Kerry and Rep. Lee participated in a national media conference call held by HRC in March. In addition to action alerts urging members to contact their Senators, HRC and Immigration Equality drafted a coalition letter on behalf of more than 165 organizations in support of the Kerry-Smith provision in the PEPFAR bill, and directly lobbied numerous Senate offices on the repeal measure.
In December of 2007, Senators Kerry and Smith introduced legislation, the HIV Non-Discrimination in Travel and Immigration Act (S. 2486), to repeal the ban. In the House, U.S. Rep. Barbara Lee (D-CA) introduced similar the legislation, H.R. 3337, in August 2007. The travel and immigration ban prohibits HIV-positive foreign nationals from entering the U.S. unless they obtain a special waiver, which is difficult to obtain and can only allow for short-term travel. Current policy also prevents the vast
majority of foreign nationals with HIV from obtaining legal permanent residency in the United States.
The ban originated in 1987, and explicitly codified by Congress in 1993, despite efforts in the public health community to remove the ban when Congress reformed U.S. immigration law in the early 1990s. While immigration law currently excludes foreigners with any "communicable disease of public health significance" from entering the U.S., only HIV is explicitly named in the statute. For all other illnesses, the Secretary of Health and Human Services retains the ability, with the medical expertise of his department, to determine which illnesses truly pose a risk to public health.
We received the following press release from the American Civil Liberites Union.
Hat tip to Rex Wockner
Peace Corps Agrees To Stop Discriminating Against Volunteers With HIV
ACLU Will Keep Close Eye On Agency To Make Sure It Complies With Policy Change
FOR IMMEDIATE RELEASE
July 30, 2008
Paul Cates (212) 549-2568;
Cell (917) 566-1294
NEW YORK - After pressure from the American Civil Liberties Union, the Peace Corps has agreed that it will no longer terminate volunteers just because they have HIV. The ACLU demanded the policy change on behalf of a volunteer who was sent home from his post in the Ukraine and terminated after he tested positive for the disease.
"We are very pleased that the Peace Corps has acknowledged that it cannot legally terminate volunteers automatically merely because they test positive for HIV," said Rebecca Shore, a staff attorney with the ACLU Lesbian Gay Bisexual Transgender Project. "But actions speak louder than words, so we're going to be keeping a close eye on the agency to make sure it lives up to its promises."
The ACLU sent a letter to the Peace Corps today acknowledging the new Peace Corps policy barring HIV discrimination, but making it clear that simply adopting a nondiscrimination policy is not enough. The letter notes that the agency is bound by the Rehabilitation Act, which bars the agency from discriminating against people with HIV and requires the agency to make accommodations for the special needs of those with the disease when necessary.
The ACLU demanded the change on behalf of Jeremiah Johnson, who served as a Peace Corps volunteer in Rozdilna, Ukraine, where he taught English to middle and high school students. During a routine mid-service medical examination, he opted to take an HIV test which came back positive. After receiving the diagnosis, he was immediately sent back to Washington, D.C., given just two days to pack his bags and say goodbye to his students and other people he met while volunteering. Although further medical testing showed that Johnson had no health problems, he was told he could not finish his service in the Ukraine or elsewhere.
After Johnson made his story public, the ACLU heard from other volunteers who suffered similar discrimination. In 2001, Rebecca Coulborn was volunteering in Burkina Faso in West Africa. Just days after she tested positive for the disease, she too was shipped back to D.C. and kicked out of the Peace Corps.
"While I'm still disappointed that I didn't get to finish the projects I started in the Ukraine, getting the Peace Corps to acknowledge that volunteers with HIV shouldn't be discriminated against has helped to remind me why I chose to volunteer in the first place," said Johnson. "Things certainly didn't turn out the way I thought they would when I signed up, but at least I was able to do some good for future volunteers with HIV."
The new policy guarantees that the Peace Corps will not automatically terminate volunteers who test positive for the HIV. Rather, the agency will conduct an individual assessment of each volunteer who tests positive to determine what steps to take to protect the health of the volunteer while also allowing the volunteer to continue his or her service as required by the Rehabilitation Act when feasible. The Peace Corps has also given the ACLU assurances that it will communicate its new policy barring HIV discrimination in a prudent and appropriate manner.
Volunteers who feel they have been discriminated against by the Peace Corps because of their HIV status, are encouraged to contact the ACLU at www.aclu.org/hiv .
A copy of the letter from the Peace Corps acknowledging the change in policy as well as the response by the ACLU is available at http://www.aclu.org/hiv/discrim/34948res20080421.html
Bradley University in Peoria, Illinois will celebrate 50 years of international studies this fall with an alumni reunion and an alumni-student-faculty-staff banquet on the evening of October 4. As part of the open house, the school intends to have a photo display. Although they have a number of images already, they are making a call to alumni (and those who know alumni of the Institute of International Studies at Bradley University) to send in additional images, either in print form or electronically.
For more information about the upcoming reunion or international activities at Bradley University, contact Professor Charles Bukowski, Director of the Institute of International Studies at Bradley University, Peoria, IL 61625. Click here to send him an email.
Congratulations to the Bradley University Institute of International Studies on its 50th Anniversary.
Coronation activities are underway for King George Tupou V of Tonga. In a surprising but welcome announcement, press reports indicate that the new King will move the monarchy to a more of a figurehead role, similar to a British-style constitutional monarchy. Tonga will see its first democratic election of MPs in 2010. Click here for more information.
Wednesday, July 30, 2008
The International Law Students Association has announced that its 2008 Fall Conference will be hosted by Vermont Law School in Royalton, Vermont, on October 2-4, 2008.
The conference is titled "Understanding Genocide: Prevention, Prosecution, and Progress," and will feature a keynote lecture by Juan Mendez, President of the International Center for Transitional Justice.
The conference website is available at http://sba.vermontlaw.edu/groups/ils/genocide/index.html.
On July 29, the UN General Assembly unanimously approved Navanethem Pillay as the new UN High Commissioner for Human Rights. Prior to this appointment, Ms. Pillay had a distinguished career as a lawyer for international human rights. Educated at Harvard, Ms. Pillay began her legal career in 1967 in South Africa defending anti-apartheid activists. In 1995, she was the first woman of Southeast Asian descent to be appointed to the South African Supreme Court. She also has served as a judge on the International Criminal Tribunal for Rwanda and as an appeals chamber judge for the International Criminal Court. Ms. Pillay will begin her new post on September 1. The international human rights community hopes that Ms. Pillay will be an outspoken advocate for international human rights.
Lamy told a press conference that out of a "to-do list" of 20 topics, 18 had seen positions converge but the gaps could not narrow on the 19th — the special safeguard mechanism for developing countries. Click here to read more.
In the coming days we will see if Doha is completely dead or if the agreed-upon parts can still survive.
Tuesday, July 29, 2008
This was originally posted on www.tradelawyersblog by Cyndee Todgham Cherniak
The “Doha Round” of multilateral trade talks at the World Trade Organization lapsed back into limbo on July 29, 2008 as an informal meeting of Ministers did not end in the acceptance of the compromise "package of elements".
If the United States, India, and China fail to reach a compromise, and the "Doha Round" fails, it might represent the beginning of the end for the World Trade Organization. Failure means one thing: that Membership in the WTO does not include the responsibility to compromise so that the system itself can evolve. Evolution does not require big steps at each Round. Evolution does require progress on important issues, including agricultural subsidies, NAMA tariff reductions, services liberalization, improvements to the Anti-dumping Agreement and Subsidies and Countervailing Measures Agreement, improvements to the dispute settlement mechanism, improvements to rules of origin, etc.
Negotiations of a middle ground to improve the multilateral trading system should not appear to be a matter of brinkmanship - and it does appear that the United States and the European Union on one side are locked in a battle with China and India (and other developing countries) on the other side. Something is not right with this picture.
It is difficult to believe that a compromise cannot be reached with respect to the special agricultural safeguard mechanism. It seems reasonable for developing countries to ask for an agricultural safeguard mechanism. The developing countries are being asked to reduce agricultural tariffs so that other countries can export agricultural commodities to the developing countries. It is reasonable for the developing countries to be concerned that the reductions are too steep and it is legitimate to want to protect the developing country farmers. If the developing country farmers cannot sell their goods in the domestic market of the developing country, does the developed countries really expect that they will find alternative export markets? Do the developed countries really expect that the developing country farmers will take up manufacturing or services jobs if they cannot be farmers? It is one thing to desire access to the developing country markets - it is quite another to be insensitive to the concerns of the developing countries.
Why is it that a special agricultural safeguard mechanism is unacceptable? The compromise special agricultural safeguard mechanism contained in the July 26th "package of elements" provides restrictions of the safeguard mechanism, which are transparent and involve a degree of certainty. The exporting countries will know what level of increase in imports into the developing country will be considered to constitute a surge (40%).
The sticking point must be that the developing countries may impose surtaxes that exceed the existing bound rates by 15%. Developed countries today can impose agricultural safeguard surtaxes at any level - even more than 15%. If challenged at the WTO, the level of safeguard surtaxes may be found to be WTO inconsistent. However, based on the WTO case law, the WTO may not require the improperly collected surtaxes to be refunded after the years it takes to resolve the dispute.
So, the agricultural safeguard rules become more clear and limitations are placed on the levels of surtaxes. This is better than what the multilateral trading system has currently.
It would have made more sense for the developed countries to accept the special agricultural safeguard for now and work towards greater improvements so that the Doha Round, when all is put on the table, results in positive evolution.
We should be disappointed.
Monday, July 28, 2008
A few days ago we posted a thank you to our first 4,000 readers and listed countries where our readers are located. Since then we've had a few visits from readers in other jurisdictions, so we've updated the previous list and are sharing the new list of countries with you here. Thank you, everyone, for visiting the International Law Prof Blog. Your contributions are always welcome. Welcome to our latest "new countries" -- Cambodia, Finland, Vietnam, Vanuatu, Israel, Brunei Darussalam, Thailand, South Africa, Malaysia, and Morocco!
- Brunei Darussalam
- Costa Rica
- Cote D'Ivoire
- Czech Republic
- Hong Kong
- New Zealand
- People’s Republic of China
- South Africa
- Sri Lanka
- United Arab Emirates
- United Kingdom
- United States of America
Sunday, July 27, 2008
Saturday, July 26, 2008
Professor Steven D. Schwinn of The John Marshall Law School in Chicago won a case on behalf of Washington state grape growers against the U.S. Department of Agriculture at the U.S. Court of International Trade.
Schwinn's clients applied for trade adjustment assistance, arguing that increased grape imports led to a decline in their net income.
The USDA denied TAA benefits, failing to consider the distorting effects of an extraordinary deduction on the growers' net income.
The U.S. Court of International Trade in a significant decision reversed and ordered the Department to change the way it calculates net income under the TAA program.
Friday, July 25, 2008
The ABA applauds the recent action of Luis Moreno-Ocampo, prosecutor of the International Criminal Court, in filing 10 counts of genocide, crimes against humanity and war crimes against Omar Hassan al-Bashir, president of Sudan.
Since the United Nations first recognized genocide 60 years ago, it has stood in infamy as the most horrific crime under international law. Today, a sitting head of government stands publicly, formally and carefully accused by the ICC prosecutor of seeking to destroy other ethnic groups. By means of responsible filings and due process proceedings, the ICC can fulfill its purpose of ensuring that the most powerful people accused of the worst crimes are held accountable, and that their potential emulators are deterred. This matter will now move to the next phase: a fair and impartial determination of whether the prosecutor's evidence warrants a trial.
Ambassador William H. Luers, president of the United Nations Association of the United States of America (UNA-USA), issued the following statement concerning the nomination by United Nations Secretary-General Ban Ki-moon of Navanethem Pillay to serve as United Nations High Commissioner for Human Rights.
Hat tip to Chris Tangney
The United Nations Association of the USA (UNA-USA) welcomes the nomination of Navanethem Pillay of South Africa to succeed Louise Arbour as United Nations High Commissioner for Human Rights. Judge Pillay brings a distinguished professional career in law and human rights to her new post; she also has been a prominent voice over many years in support of women’s rights, particularly leading the international community to take strong positions on crimes perpetrated against women during conflict.
Judge Pillay currently serves as a judge of the International Criminal Court (ICC) and had previously been president of the International Criminal Tribunal for Rwanda (ICTR). In this latter position, she was responsible for the administration and management of the tribunal and worked hard to overcome allegations of shortcomings in the operation of the ICTR. Judge Pillay led the tribunal to take advanced positions on crimes against women, especially establishing mass rape as a crime rather than assimilating it into more general criminal categories such as assault. The institutional impact of her work is undeniable: the Rome Statute creating the ICC recognizes such crimes, and the ICC has charged some of its present suspects and defendants with crimes against women.
Judge Pillay becomes High Commissioner for Human Rights at a pivotal moment in the history of this important United Nations post. Sixty years after the adoption of the Universal Declaration of Human Rights, the United Nations is more than ever called upon to address human rights violations whenever and wherever they may occur. Judge Pillay has a strong reputation both as a leader and as an advocate for human rights and international justice that should enable her to work effectively with UN member-states and with such UN institutions as the Human Rights Council.
UNA-USA calls upon all UN member-states, particularly the United States, to support the nomination of Judge Pillay. We believe that Judge Pillay is singularly qualified to serve as High Commissioner in an era when human rights issues increasingly take center stage in relations among nations.
Ambassador William Luers, president of the United Nations Association of the United States of America (UNA-USA), issued the following statement concerning the International Criminal Court's investigations in Darfur.
Hat tip to Chris Tangney
The United Nations Association of the USA (UNA-USA) supports the decision of the Prosecutor of the International Criminal Court to bring justice to the victims of atrocities in Darfur and calls on the United States to ensure that the UN Security Council does not block any efforts to execute arrest warrants for Darfur suspects, including a potential arrest warrant for Sudanese President Omar Al Bashir.
The ICC Prosecutor’s application for an arrest warrant for President Bashir of Sudan is an important step to ensure that there is no impunity for alleged crimes committed in Darfur. UNA-USA applauds this action and others by the ICC to bring justice where otherwise there would be no accountability.
UNA-USA has supported the ICC investigation in Darfur since the UN Security Council adopted Resolution 1593 on March 31, 2005 which referred the situation to the Court. Despite a Bush Administration policy of opposition to the ICC, the US did not veto the resolution. The ICC opened a formal investigation in June 2006 and named its first Darfur suspects, Sudanese Humanitarian Affairs Minister Ahmed Harun and Janjaweed militia leader Ali Kushayb, in February 2007. Both individuals are still at large and the Government of Sudan has refused to hand them over.
On July 14, 2008, the ICC Chief Prosecutor Luis Moreno-Ocampo filed an application for an arrest warrant for Sudanese President Omar Al Bashir on 10 counts of genocide, war crimes and crimes against humanity. A decision on the arrest warrant for President Bashir is expected in the fall. The Rome Statute, the treaty which governs the ICC, specifies that heads of state will not have immunity or amnesty for crimes within the ICC’s jurisdiction.
UNA-USA believes that the Security Council should seek enforcement of the mandate it gave to the ICC by all parties concerned. The UN Security Council conferred jurisdiction over Darfur to the ICC and asked it to investigate atrocity crimes committed by the parties to the conflict. Under Resolution 1593, all parties to the Darfur conflict must cooperate with the ICC, including the arrest and surrender of individuals to the Court. The Government of Sudan, which has signed but not ratified the Rome Statute, must cooperate with the Court as a UN member-state. As a signatory, Sudan is obligated not to defeat the Statute’s object and purpose.
The ICC is a judicial institution and accordingly it carries out its mandate under the Rome Statute. The Rome Statute permits the Court to accept a Security Council resolution under Chapter VII of the UN Charter to refer cases to the ICC. It also requires the Court’s judges to act on Security Council resolutions deferring investigations and prosecutions for renewable periods of 12 months. The Court’s founders anticipated dilemmas of peace and justice and Article 16 of the Statute leaves it the Council to make political decisions on stopping cases for the purpose of maintaining international peace and security.
Despite its formal opposition to the Court, the US has continued its shift toward the ICC in practice in response to the Darfur situation. It has offered its cooperation on the investigation and this month acknowledged that it was considering a request for information. In June 2008, the Security Council under US leadership issued a Presidential Statement reiterating that the Government of Sudan must cooperate with the ICC. UNA-USA urges the US to ensure that the Security Council does not invoke its ICC deferral power to block this action or similar future actions. The US should join other Security Council members in opposing any resolution ordering the Court not to act on this case.
Achieving justice for the over 2,000,000 victims in Darfur is an important step for ensuring lasting peace. In the near term, we believe that decisions about peace and justice are political ones appropriate for the Security Council, not for the Court. For the long run, we are convinced, as were the founders of the United Nations, that justice provides the only secure foundation for peace.
The ICC is the world’s first permanent international court, established on July 17, 1998 at a UN-sponsored diplomatic conference. The Court is also investigating atrocities in the Democratic Republic of the Congo, Uganda and the Central African Republic. UNA-USA advocated for the Court leading up to and following its establishment. Its AMICC program is a leader in educating Americans about the Court and is an internationally-respected resource on US-ICC policy.
The International Court of Justice announced that it would hold public hearings in the case concerning the Maritime Delimitation in the Black Sea (Romania v. Ukraine). The public hearings will be from Tuesday, September 2, 2008 to Friday, September 19, 2008, at the Peace Palace in The Hague.
Romania had filed an application in 2004 seeking to establish a single maritime boundary in the Black Sea, to delimit the continental shelf and the exclusive economic zones. Romania contended that negotiations with Ukraine since 1998 have been inconclusive.
Because neither Romania nor Ukraine had a judge from their own nationality, both states exercised their right to name an ad hoc judge to sit on the case. Romania chose Mr. Jean-Pierre Cot of France as its judge, and Ukraine chose Mr. Bernard H. Oxman of the United States of America as its judge.
Visit the ICJ website for information on how to attend the proceedings in person. Applications for individual admission will close midday on Monday, September 1, 2008. Verbatim records of the hearings will be published daily on the Court's website, with translations to follow as soon as practicable.