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.
The House of Lords, Britain’s highest appellate court, ruled that there was “no point of law or general importance” that would justify further review in a case brought by Mostafa Kamel Mostafa, an Egyptian-born Muslim cleric who is fighting his extradition to the United States on terrorism charges. He faces criminal charges in the United States in an 11-count indictment for his part in a global plan to wage holy war against the United States. The cleric became well known for sermons in support of Al Qaeda and in praise of suicide bombers. The criminal charges against him in the United States include allegations that he masterminded a terrorist ambush in 1998 in which 16 foreign tourists (some of them Americans) were taken hostage in a remote area of Yemen. He is also charged with conspiring to establish a terrorist training camp in Oregon, to provide combat training for missions in Afghanistan. Jacqui Smith, the British Home Secretary, signed an order approving his extradition, and British officials said that the cleric would be extradited to the United States as soon as he exhausted his legal recourses in the United Kingdom. The cleric is serving a prison sentence in the United Kingdom, but had reached the point where he would have been eligible for release if he had not been indicted in the United States. Lawyers for the cleric said that they would try to appeal to the European Court of Human Rights to fight his extradition to the United States.
Thursday, July 24, 2008
A New Dispute Over the Temple of Preah Vihear -- UN Security Council Asked to Help Resolve New Dispute Between Cambodia and Thailand
The United Nations Security Council will convene a special session to try to avert a military confrontation over a border dispute between Cambodia and Thailand. Cambodia had appealed to the United Nations after the Association of Southeast Asian Nations (ASEAN) declined a request to help resolve the dispute. The border conflict focuses on 1.8 square miles of land adjacent to the Preah Vihear Temple, an ancient Hindu temple which was just listed as a United Nations World Heritage Site. UNESCO granted the designation as a World Heritage Site based upon the request of Cambodia, and it used a disputed map provided by Cambodia. Hundreds of troops from each country have been engaged in a standoff over the disputed land. Sovereignty over the temple has been in dispute since France withdrew from the area in the 1950s. In 1962, the International Court of Justice awarded the temple to Cambodia over the objections of Thailand. The land in dispute was not covered in the 1962 judgment of the International Court of Justice.
Omar Hassan al-Bashir, the president of Sudan, faces indictment by the International Criminal Court (also located in the Hague) for being the “mastermind” behind violence that resulted in the murder of thousands of persons, the rape of countless women, and the displacement of more than two million people from their land An indictment against President al-Bashir is being sought by Luis Moreno-Ocampo, the prosecutor of the International Criminal Court. The United Nations Security Council may step in to suspend the case, with two of the permanent members of the Security Council (Russia and China) reportedly suggesting that a criminal indictment against the president would not assist peace efforts in Sudan.
Radovan Karadzic, the former Bosnian Serb leader charged with genocide and war crimes, was arrested in Serbia after spending 13 years as a fugitive from justice. His arrest stunned many observers because he was indicted in 1995 and was living openly (under an assumed identity) in the city of Belgrade. His lawyer announced that Karadzic would act as his own attorney in any war crimes trial if he is handed over to the International Criminal Tribunal for the Former Yugoslavia (ICTY). Karadzic is suspected of being the architect of the murders of nearly 8,000 Bosnian Muslim men and boys at Srebrenica. If he is transferred to stand trial in the Netherlands as expected, he would be the most notorious war crimes defendant to stand trial since Slobodan Milosevic, the former Yugoslav president who was arrested in 2001 and put on trial in 2002. Milosevic also acted as his own attorney and refused to be represented by attorneys appointed by the court. Milosevivc died during the defense phase of his trial.
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Wednesday, July 23, 2008
Professors Gregory S. Gordon (North Dakota) and Cindy G. Buys (Southern Illinois University) are both participating in an international human rights law summer study program in Vilnius Lithuana entitled: "Bringing Human Rights Home." The students in the program are equally divided among Americans, Lithuanians and Belarussian students. The Belarussian students study are studying in Lithuania because their university, the European Humanities University, was banned in Belarus. Lithuania is still exploring and struggling to come to terms with its recent history of occupation by Germany and Russia and atrocities that were committed during that time. The KGB's practices of arresting, interrogating, torturing, and executing persons who resisted Russian rule in Lithuania are documented at the KGB Museum in Vilnius. Lithuania has yet to fully explore and document the loss of 95% of its Jewish population during World War II.
The U.S. International Trade Commission announced that Robert K. Rogers was named as an Administrative Law Judge. He previously served as a Supervisory Administrative Law Judge at the Office of Medicare Hearings and Appeals in Irvine, California. He also served as an Administrative Law Judge at the Federal Energy Regulatory Commission in Washington, DC, and at the Office of Hearings and Appeals with the Social Security Administration in Sacramento, California.
Tuesday, July 22, 2008
Press conferences from the WTO will be webcast live on the WTO website. Click here to see the schedule of upcoming press conferences. The website will also carry archived versions of press conferences. Press conferences this week include Susan Schwab: US Trade Representative, and Mrs. Mari E. Pangestu, Minister of Trade of Indonesia.
On July 22, 2008, the WTO talks in Geneva could have died if the non-confidence vote in India had not been defeated. Lucky for the WTO talks, this brush with a fatal delay to the process brushed by with a narrow margin. But, if the Indian Government had been defeated in the non-confidence vote, the Parliament would have been dissolved and Minister Nath would not have been able to return to Geneva to participate in the high level talks that are occurring this week.
On July 21, 2008, the EU representatives at the WTO talks agreed to increase their reductions in agricultural subsidies from 54% to 60%. However, this concession was delivered with the statement that emerging economies, such as India, China and Brazil, would have to reduce their tariffs on industrial goods, otherwise the Doha Round would not succeed. Hence, it is critically important for India to be at the table for current WTO negotiations to succeed.
If the India Government was dissolved and the WTO was forced to wait until after a new government was formed in India, they would be waiting for the new U.S. government to be formed also. It is far from clear that the presumptive presidential candidates would support the cuts to agricultural subsidies that are currently on the table or that must be improved this week.
This situation raises an important issue that will become headline news more regularly in the future (at least I will make the safe prediction). Domestic politics and power struggles can negatively impact on trade deals. The world is learning this lesson while watching the U.S. Congress' tactics in stopping the approval of the United States - Korea Free Trade Agreement, the United States - Panama Trade Promotion Agreement and the United States - Columbia Trade Promotion Agreement. We saw Costa Rica delay approval of the CAFTA-DR Agreement and the domestic problems associated with the approval of that free trade agreement. The United States - Korea Beef Agreement has led to consumer protests in the streets of Seoul. Politics at various levels are proving to be a tactical maneuver.
But, what we could have experienced today could have represented (and maybe still does represent) a dangerous step in a new direction. Political foes may, in a parliamentary system on other domestic constitutional structures, derail multilateral trade negotiations. Pro free trade political parties may be removed from office and replaced with protectionist political parties. If this should occur and important concessions tabled in the negotiations are reversed, multilateral trade negotiations may suffer serious negative consequences.
Yes - the WTO dodged a bullet today, but their will be something else tomorrow. The Doha Round is in a difficult place (even through Geneva is very secure). The governing party in India may return to the WTO negotiating tables wounded by serious credibility issues . They may feel as though they must take a cautious approach and it is possible that anything they agree to in terms of tariff reductions for industrial (non-agricultural) goods will be the subject of another non-confidence vote.
This would make from good drama if trade negotiations were more interesting.
Cyndee Todgham Cherniak
The International Court of Justice (ICJ) has fixed 29 August 2008 as the time-limit for the filing by the United States of America of written observations on the Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) submitted by Mexico on 5 June 2008.
A press release from the ICJ says that the Court took this decision pursuant to Article 98, paragraph 3, of the Rules of Court, after ascertaining the views of the Parties. It reserved the right, after the written observations of the United States of America have been filed, to afford the Parties the opportunity of furnishing further written explanations, as provided for in paragraph 4 of the aforementioned Article 98.
In its Order indicating provisional measures of 16 July 2008, the Court stated that it was “in the interest of both Parties that any difference of opinion as to the interpretation of the meaning and scope of their rights and obligations under paragraph 153 (9) of the Avena Judgment be resolved as early as possible." It added that it was for the Court to ensure that a final judgment on the Request for interpretation was reached “with all possible expedition."
It is not mentioned in the press release from the ICJ, but the date for written observations from the United States is after at least one scheduled execution date of individuals named in the Avena judgment. The U.S. Supreme Court ruled in Medellin that individuals named in the ICJ judgment had no right to enforce it, and the State of Texas has shown no willingness to defer the executions. Click here to download a background document on the Medellin case.
Monday, July 21, 2008
The Southeastern Association of Law Schools (SEALS) is about to have its annual meeting in Palm Beach, Florida, from July 27 to August 2, 2008. Click here for more information. I will be speaking on a panel on the 60th Anniversary of the Universal Declaration of Human Rights. The panel is scheduled for 4:30 to 6:00 p.m. on Tuesday, July 29, 2008. The other panelists are Robert Blitt (University of Tennessee), Barbara Stark (Hofstra University Law School), Margaret McGuinness (University of Missouri School of Law), and Johanna Bond (University of Wyoming College of Law). The moderator will be Professor Ngai Pindell of the University of Nevada, Law Vegas.