Monday, October 19, 2009
A press release received today from the United Nations . . .
The international community showed its support for the world’s nearly 400 million indigenous people by adopting the landmark 2007 declaration outlining their rights, a United Nations independent human rights said today.
The adoption of the Declaration on the Rights of Indigenous People came after more than two decades of debate.
“The adoption of the Declaration signals the strong commitment of the international community to remedy the historical and ongoing denial of the rights of indigenous peoples,” James Anaya, Special Rapporteur on the situation of human rights and fundamental freedom of indigenous people, told reporters in New York.
The text is based on the principles of equality, self-determination and respect for diversity, which form the “basic tenets of the modern human rights system,” he said.
A non-binding text, the Declaration sets out the individual and collective rights of indigenous peoples, as well as their rights to culture, identity, language, employment, health, education and other issues.
The Declaration emphasizes the rights of indigenous peoples to maintain and strengthen their own institutions, cultures and traditions and to pursue their development in keeping with their own needs and aspirations.
It also prohibits discrimination against indigenous peoples and promotes their full and effective participation in all matters that concern them, and their right to remain distinct and to pursue their own visions of economic and social development.
In his briefing to the General Assembly today, Mr. Anaya, an unpaid independent expert who reports to the Geneva-based UN Human Rights Council, said that he described the scope of his mandate and the activities he has undertaken since assuming his position last May.
His work, he said, falls within four interrelated areas: promoting good practices; thematic studies; country reports; and responding to cases of alleged gross violations.
In the past year, the expert has wrapped up reports on Brazil and Nepal after visiting the countries, as well as a follow-up trip to Chile. He has also conducted missions to assess indigenous persons’ conditions in Australia, Botswana, Russia and Colombia.
Here is a press release received today from the United Nations . . .
The United Nations-backed panel probing allegations of irregularities in the recent Afghan elections today submitted its findings to the national electoral body, which will now determine whether or not President Hamid Karzai received more than 50 per cent of the votes in order to avoid a run-off.
The Electoral Complaints Commission (ECC) was tasked with auditing suspicious ballot boxes and other complaints related to the 20 August presidential elections.
Following its investigations, it ordered the Independent Election Commission (IEC) – which organized the polls – to invalidate 210 polling stations around the country where the ECC found clear and convincing evidence of fraud.
“Now that the ECC has published its orders we expect the IEC to implement them without haste and move swiftly to announce either a final certified result or the requirement for a second round as required by Afghanistan’s electoral law,” said Aleem Siddique, spokesperson for the UN Assistance Mission in Afghanistan (UNAMA).
Last month, the ECC decided to take a closer look at roughly 10 per cent sample of the 3,377 fraud-prone ballot boxes from the presidential elections.
During the process, 343 suspicious ballot boxes were randomly picked from across the country and flown into the capital, Kabul, where they were examined by a team of officials from the IEC, ECC, and the UN Development Programme’s election project, known as UNDP/ELECT.
The ECC also gave a decision on the 646 polling stations that the IEC had quarantined after the election, because they contained more than 1,000 votes, or were cast in a polling station that was closed, or stations where the number of votes recorded in polling centre overall were greater than the number ballots issued by the IEC.
The Commission removed 628 stations from the final tally.
The ECC’s order has now gone to the IEC, which will make the necessary calculations by discarding the ballots declared as fraudulent from the preliminary results.
The IEC is expected to announce the final certified results within the next few days.
In 2008, the United Nations General Assembly asked the International Court of Justice (ICJ) to render an advisory opinion regarding whether Kosovo's 2008 declaration of independence from Serbia is in accordance with international law. The ICJ has announced that it will hold public hearings on the question from December 1-11, 2009. Thirty States have announced their intention to participate in the hearings. At least three European Union (EU) States, Spain, Romania and Cyprus, have announced their intention to oppose independence for Kosovo. Other EU States, including Germany, France, the United Kingdom, as well as the United States, are scheduled to testify in favor of independence for Kosovo. While the ICJ's opinion will only be advisory and will not decide any contentious cases, it will certainly provide ammunition to parties in other matters relating to statehood and independence.
Sunday, October 18, 2009
On too many occasions since 9/11 have
national governments relied on “national security” grounds to hide illegal
actions, prevent political embarrassment, or more prosaically, to secure
domestic political gains. Politicians should therefore not be surprised that
judges are now more willing to double-guess them when they argue, for instance,
that some allegedly sensitive material cannot be made public.
In a ruling issued on 16 October, the High Court in London, for the first time, refused to accept the British Foreign Secretary’s argument that the public release of litigious material, sought by the lawyers of a former Guantanamo detainee, would threaten national security (judgment available here). At issue was a previously censored 7-paragraph summary of the Guantanamo detainee’s “treatment” by US authorities made by the CIA and sent to the British Security Services. Reversing their prior holdings, Lord Justice John Thomas and Justice David Lloyd Jones convincingly and reasonably held that the public interest in making the paragraphs public is not only overwhelming but that the risk to national security alleged by the British government is not a serious one:
“We consider that, viewed objectively, a decision by a court in the United Kingdom to put the redacted paragraphs into the public domain in the circumstances of this case would not infringe the principle of control over intelligence. The principle admits an exception in the case of court ordered disclosure, which is plainly applicable in the present case for the following reasons:
i) It is necessary and justifiable:
a) It was BM’s case that the United Kingdom Government had facilitated or become mixed up in wrongdoing of the United States, alleged to amount to cruel, inhuman or degrading treatment or torture.
e) … the suppression of reports of wrongdoing by officials in circumstances which cannot affect in any way national security is inimical to the rule of law. Championing the rule of law, not subordinating it, is the cornerstone of democracy.
ii) It is exceptional. …
iii) As between the United States and the United Kingdom, it is accepted that the court of each State can order there be put into the public domain information otherwise subject to the principle of control. …
… In our view, as a court in the United Kingdom, a vital public interest requires, for reasons of democratic accountability and the rule of law in the United Kingdom, that a summary of the most important evidence relating to the involvement of the British security services in wrongdoing be placed in the public domain in the United Kingdom.
We have therefore conclude that, as the public interest in making the paragraphs public is overwhelming, and as the risk to national security judged objectively on the evidence is not a serious one, we should restore the redacted paragraphs to our first judgment by addition these to paragraphs 87 and 88 respectively. We shall therefore re-issue our first judgment with the paragraphs restored.”
Unsurprisingly, the British government agreed yesterday to appeal this ruling.
Saturday, October 17, 2009
Ireland became this week the 26th nation to ratify the Lisbon Treaty, leaving the Czech Republic as the only one of the 27 EU countries that has not yet done.
As mentioned in previous posts, the Czech President, a
notorious anti-EU and erratic politician, has been doing his best to delay
national ratification of the Treaty of Lisbon. His behavior is particularly appalling,
if not illegal, considering that the Treaty has been approved by both chambers
of the Czech Parliament and held compatible with the Czech Constitution by the
Constitutional Court (another ludicrous and late constitutional complaint
arguing that the Treaty creates a European “superstate” should be dealt with by
the Court before the end of this year).
The President’s signature being formally required to complete the Lisbon ratification process in his country, Mr. Klaus recently came up with another procrastination tactic: He demanded an “opt-out” from the EU Charter of Fundamental Rights. His main (and completely unfounded) fear is that the EU Charter, which will become legally binding once the Lisbon Treaty enters into force, could allow some German citizens to institute restitution claims on property confiscated from them in 1945 directly before the EU Court of Justice.
The main legal problem is that President Klaus wishes to see this “opt-out” enshrined in a new protocol to be annexed to the Lisbon Treaty. This is problematic because protocols, which have the same status as EU treaties, must be subject to national ratifications. Notwithstanding the fact that the Czech President does not even possess the legal power under the Czech Constitution to issue such a demand, other EU leaders have clearly and rightly refused to accommodate a demand of this nature almost two years after the Lisbon Treaty was signed.
Unsurprisingly, it has been today suggested that Mr. Klaus is now open to the idea of securing a “political declaration" instead of an opt-out. EU leaders are likely to give in to this demand. Declarations, which may be used to clarify the interpretation to be given to a treaty provision, do not indeed require national ratification. Regardless of what is going to be negotiated, this latest episode shows that it is more than time to scrap the unanimity rule when it comes to ratifying new EU treaties. As I wrote on many occasions, in a Union of 27 countries, such rule allows any nation (or any eccentric Head of state), for any reason, to hold up all the others on such a crucial issue of the EU institutional reform.
Thursday, October 15, 2009
Luis Moreno Ocampo, the Prosecutor of the International Criminal Court, confirmed that his office is looking into the murders committed in Guinea, where government security forces fired on an opposition rally in Conakry (the capital of Guinea) and killed more than 150 people on September 28, 2009. The U.N. High Commissioner for Human Rights, Navi Pillay, characterized the events of that day as a “blood bath.”
Guinea is a State Party to the Rome Statute which established the International Criminal Court. “As such the ICC has jurisdiction over war crimes, crimes against humanity or genocide possibly committed in the territory of Guinea or by nationals of Guinea, including killings of civilians and sexual violence,” the Court stated in a press release.
Other situations under preliminary examination by the ICC Prosecutor include:
- Côte d’Ivoire
- Kenya, and
- Palestine. .
Formal investigations are underway in four situations:
- the Central African Republic (CAR);
- the Democratic Republic of the Congo (DRC);
- Uganda; and
- the Darfur region of Sudan.
A press conference will be held on Friday at the ICC on the confirmation of charges in the case against Bahr Idriss Abu Garda, who voluntarily surrended to the International Criminal Court in May relating to war crimes allegedly committed in Sudan in September 2007 against the African Union Mission in Sudan.
The Georgetown Journal of International Law invites proposals for lectures or paper topics for its annual symposium to be held on March 22, 2010. The topic of the symposium is global anti-corruption efforts. Article or lecture proposals should be submitted by November 1, 2009 to the Georgetown Journal of International Law.
October 16, 2009 is World Food Day, a day to reflect and act on ways to end hunger. This year, the anniversary is marked with a sad record - for the first time in history, more than 1 billion people, or one-sixth of all humanity, will go hungry. And the UN Food and Agricultural Organization predicts that the number will increase unless governments step up spending on agriculture. In 1980, 17% of aid contributed by donor countries went to agriculture. By 2006, that percentage has falled to 3.8%. There are many reasons suggested for the increase in hunger, from the global financial meltdown, competition for public and private aid funds from other sources, low food prices that discouraged investment in agriculture followed now by rapidly increasing food prices. Unfortunately, the world governments are failing their pledges adopted as part of the UN Millennium Development Goals to cut the number of hungry people in half by 2015. A renewed commitment is desperately needed.
The General Assembly is expected to elect Bosnia and Herzegovina, Brazil, Gabon, Lebanon and Nigeria as non-permanent members of the Security Council for two-year terms starting on 1 January next year.
The five countries are set to run unopposed in their respective regions when voting takes place today at United Nations Headquarters in New York. This would mark the first time since 2004 that there has been a Security Council election with no contested seats.
Gabon and Nigeria have been endorsed as candidates by the African group and, if chosen, would succeed Burkina Faso and Libya. Brazil is set to replace Costa Rica in the Latin American and Caribbean category.
In Eastern Europe, Bosnia and Herzegovina is the only declared candidate for the seat currently held by Croatia, while Lebanon won regional endorsement from the Asian group to succeed Viet Nam.
Council elections are conducted by secret ballot in the General Assembly, and winning candidates requires a two-thirds majority of ballots of members present and voting. Formal balloting takes place even when there is only one declared candidate per available seat.
The five countries chosen today will join Austria, Japan, Mexico, Turkey and Uganda, whose terms on the 15-member body end on 31 December 2010. The five permanent members are China, France, Russia, the United Kingdom, and the United States.
Wednesday, October 14, 2009
The Appellate Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) has rejected the immunity claim of former Bosnian Serb leader Radovan Karadzic. He faces 11 counts of war crimes and crimes against humanity, including two counts of genocide. Karadzic argued that Richard Holbrooke (who was a U.S. mediator at the time) had offered him immunity if he left public life; Holbrooke denies ever making such an offer. Karadzic's trial should start later this month.
A spokesperson for the court said today that there were many errors in the press reports about the Appellate Chamber's decision yesterday. Click here to see his comments.
This just in from the United Nations . . .
The first United Nations human rights office in the European Union opened today in Brussels, marking what the world body’s top rights official hopes will be a new era of cooperation with countries in the region.
The Office of the High Commissioner for Human Rights is headquartered in Geneva but has never before opened a national or regional office in Western Europe.
“We already have 10 other regional offices in Africa, the Middle East, Latin America and Asia, and we are now present in 55 countries around the world in all. Europe was in many ways the missing piece in the puzzle,” High Commissioner for Human Rights Navi Pillay said as she opened the new office at the EU’s headquarters in Brussels.
The main aim of the new Regional Office, she said, will be to strengthen engagement with European countries in the implementation of international human rights standards as well as to forge stronger partnerships with regional organizations such as the EU and its relevant institutions. The office would also work with the Council of Europe in Strasbourg.
Monday, October 12, 2009
Over the weekend, foreign ministers for Turkey and Armenia signed protocols to reestablish diplomatic ties and reopen the border between their countries after decades of hostility. Tensions between the two countries certainly remain and even threatened to dispupt the signing ceremony. Armenia wants Turkey to recognize what Armenia considers to be genocide committed against its people by Turkey during World War I. For its part, Turkey is unhappy about Armenia's occupation of part of neighbouring Azerbaijan in the early 1990s. The protocols must still be ratified by each country's parliament. Improvement in relations between the two countries may also have a positive impact on Turkey's accession application to the European Union.
Sunday, October 11, 2009
Ireland's "yes" vote last week on the Lisbon Treaty, also known as the European Constitution, paved the way for the remaining European Union (EU) Member States to finalize their support for the treaty. Polish President Lech Kaczynski signed the Lisbon Treaty at a ceremony in Warsaw yesterday. The Polish parliament had approved the treaty over a year ago, but Poland was waiting to see whether Ireland joined before finalizing its ratification.
The Czech Republic still has to finalize its ratification. Czech President Vaclav Klaus stated on Friday that he plans to push for last-minute changes to the Lisbon Treaty at the upcoming 29 October summit. He wants Prague to get an exemption from the Charter of Fundamental Rights on the model of Polish and British opt-outs, which were added to the Lisbon Treaty in 2007 in a special protocol. The opt-out is needed, he added, in order to make sure that German families expelled from the Czech Republic 65 years ago cannot bypass Czech courts and go directly to EU courts to claim their back property. It is unclear if all the other EU Member States would have to agree to any such changes at this point.
Saturday, October 10, 2009
Ann Sinsheimer and Teresa Brostoff (University of Pittsburgh School of Law) presented at the Central Region Legal Writing Conference at Marquette Univesity Law School on their international teaching experiences, including experiences in Bahrain, Ethiopia, Iceland, Oman, Ukraine, and the United Arab Emirates.
Friday, October 9, 2009
Only nine months into his first year of office, U.S. President Barack Obama has been selected as the 2009 winner of the Nobel Peace Prize. Here is a statement from the Norwegian Nobel Prize Committee, which noted his "extraordinary efforts to strengthen international diplomacy" and that "[m]ultilateral diplomacy has regained a central position, with emphasis on the role that the United Nations and other international institutions can play." Here is the statement from the Nobel Prize Committee:
The Norwegian Nobel Committee has decided that the Nobel Peace Prize for 2009 is to be awarded to President Barack Obama for his extraordinary efforts to strengthen international diplomacy and cooperation between peoples. The Committee has attached special importance to Obama's vision of and work for a world without nuclear weapons.
Obama has as President created a new climate in international politics. Multilateral diplomacy has regained a central position, with emphasis on the role that the United Nations and other international institutions can play. Dialogue and negotiations are preferred as instruments for resolving even the most difficult international conflicts. The vision of a world free from nuclear arms has powerfully stimulated disarmament and arms control negotiations. Thanks to Obama's initiative, the USA is now playing a more constructive role in meeting the great climatic challenges the world is confronting. Democracy and human rights are to be strengthened.
Only very rarely has a person to the same extent as Obama captured the world's attention and given its people hope for a better future. His diplomacy is founded in the concept that those who are to lead the world must do so on the basis of values and attitudes that are shared by the majority of the world's population.
For 108 years, the Norwegian Nobel Committee has sought to stimulate precisely that international policy and those attitudes for which Obama is now the world's leading spokesman. The Committee endorses Obama's appeal that "Now is the time for all of us to take our share of responsibility for a global response to global challenges."
Oslo, October 9, 2009
President Obama is the third sitting U.S. President to win this award -- the other two were Woodrow Wilson and Theodore Roosevelt. The award has also been given to former U.S. President Jimmy Carter and former U.S. Vice President Al Gore. Critics of the award today say that Obama has not yet achieved anything, but they are wrong. The prize was given to him for bringing diplomacy and the work of international institutions back into the center stage.
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14. Brunei Darussalam
21. Costa Rica
22. Cote D'Ivoire
26. Czech Republic
33. The Gambia
45. Islamic Republic of Iran
54. Libyan Arab Jamahiriya
56. Former Yugoslav Republic of Macedonia (FYROM)
63. New Zealand
69. People’s Republic of China (including Hong Kong and Macau)
78. Saudi Arabia
80. Serbian and Montenegro
83. South Africa
85. Sri Lanka
89. United Republic of Tanzania
93. Trinidad and Tobago
96. United Arab Emirates
97. United Kingdom
98. United States of America
Thank you all for visiting the International Law Prof Blog.
Mark, Cindy, Cyndee, Laurent, and Mike
Thursday, October 8, 2009
The U.S. Court of Appeals for the Ninth Circuit recently issued a decision clarifying the application of the act of state doctrine in U.S. courts. The underlying case is Provincial Government of Marinduque v. Placer Dome Inc., no. 07-16306 (9th Cir. 2009). Marinduque is an island province in the Republic of the Philippines. It sued Pacer Dome in state court in Nevada alleging that Placer Dome caused serious damage to human health and the environment through the company's mining operations on the island. The complaint alleges that Placer Dome severely polluted the lands and water of the island for 30 years and left the island without cleaning up the mess, in violation of Philippine law. The complaint also alleges that Placer Dome was able to get away with this behavior because it gave former Philippine President Ferdinand Marcos a personal stake in the mining operations in exchange for the easing of environmental protections. Placer Dome sought to remove the lawsuit to federal court, claiming that the complaint presented questions of international law and foreign relations, including implication of the act of state doctrine, which gave the federal court jurisdiction over the suit. The act of state doctrine precludes courts from passing on the validity of acts of a foreign government in its own territory.
The Ninth Circuit rejected Placer Dome's assertion of federal court jurisdiction, stating that "Act of state issues only arise when a court must decide - that is, when the outcome of the case turns upon - the effect of official action by a foreign sovereign. When that question is not in the case, neither is the act of state doctrine." Here, the court said, the act of state doctrine is not an essential element of Marinduque's claim because Marinduque need not prove the validity or invalidity of an act of state. Whether or not former President Marcos acted corruptly, Marinduque may still be successful if it proves that Placer Dome violated Philippine mining, fishing, water or pollution laws, or that it breached its contract with the Province. Thus, nothing in the complaint requires a court to pass on the validity of an act of a foreign government and the act of state doctrine is not implicated. As a result, the Ninth Circuit remanded the case to Nevada state court. The full text of the opinion may be found here.
On Wednesday, October 14, Cameron Kelly, General Counsel for the U.S. Department of Commerce, is hosting Vice Minister Zhang Qiong from China’s State Council Legislative Affairs Office and other Chinese Government officials in Chicago for the 2009 U.S./China Legal Exchange. The Legal Exchange presents a valuable opportunity for business people, lawyers, law professors, and law students, to interact directly with these high-level officials on two dynamic areas of China’s evolving commercial law regime: China’s patent and telecommunications regimes. This year’s program is particularly timely, as China is in the process of developing new laws and rules for these regimes as it looks to enhance its domestic market.
The program provides a valuable opportunity to support the broad interest of the U.S. and Chinese Governments to enhance government transparency and promote stronger bilateral dialogue to the benefit both countries. Mr. Kelly will be joined by U.S. experts in the form of government and non-government speakers, including Chicago’s own Sharon Barner, the recently appointed Deputy Director of the Patent and Trademark Office, and the Associate Administrator for Policy Analysis and Development for the National Telecommunications and Information Administration, Danny Weitzner.
To register, click here.
If this was not a real story, it would be a great joke -- The Government of the Maldives Will Meet . . . Underwater (Wearing Scuba Gear)
The New York Times reports today that Government Mininsters in the Maldives (the lowest-lying nation on earth) will hold a cabinet meeting underwater--wearing scuba gear--to highlight the dangers of global warming and rising sea levels. The meeting will take place on October 17, 2009.
The Constitutional Court of Italy held (in a ruling of only six lines) that the immunity law that President Silvio Berlusconi pushed through the Italian Congress in April 2008 violates a clause in the Italian Constitution that grants citizens equality under the law. The immunity law (known also as the "Alfano Law") had sought to shield Berlusconi and three other officeholders from prosecution while they are in office. The ruling from the Constitutional Court reopens now three trials concerning his real estate holdings, and media empire.