Saturday, March 7, 2009
Helena Whalen-Bridge (University of Singapore), has published The Reluctant Comparativist: Teaching Common Law Reasoning to Civil Law Students and the Future of Comparative Legal Skills, 58 J. Leg. Educ. 364 (2009). In this article, based on a talk she gave at the Global Legal Skills Conference II, Prof. Whalen-Bridge gives an overview of legal reasoning in common law and civil law systems, and argues that we need to tell our second-language, second-law students (1) that gaps characterize our legal system; and (2) why they do. This is critical because, as she points out, in the civil law system, gaps are considered "rare pathological examples." She proposes a comparative approach not just to the law, but, more importantly, to the distinctive ways in which the two systems reason and articulate rules.
Hat tip to Professor Juli Campagna of The John Marshall Law School in Chicago
Responding to UN Resolutions 1814 (2008) 1816 (2008), 1838 (2008) on the situation in Somalia and which call for states and regional organizations to take action to protect shipping against acts of piracy, the EU launched military operation EU NAVFOR “Atalanta” (Atalanta is a character from ancient Greek mythology). This operation, which is the first EU maritime operation, is conducted in the framework of the European Security and Defence Policy (see Title V of the Treaty on European Union)
Two important legal acts are worth reading in this respect.
(1) The Council Joint Action 2008/851 CFSP of 10 Nov. 2008 on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (text available here).
According to Article 14 of the Treaty on European Union, EU “joint actions shall address specific situations where operational action by the Union is deemed to be required. They shall lay down their objectives, scope, the means to be made available to the Union, if necessary their duration, and the conditions for their implementation.” This is exactly what Council Joint Action 2008/851 does.
According to its Article 1(1): The EU “shall conduct a military operation in support of Resolutions 1814 (2008), 1816 (2008) and 1838 (2008) of the United Nations Security Council (UNSC), in a manner consistent with action permitted with respect to piracy under Article 100 et seq. of the United Nations Convention on the Law of the Sea signed in Montego Bay on 10 December 1982 (hereinafter referred to as ‘the United Nations Convention on the Law of the Sea’) and by means, in particular, of commitments made with third States, hereinafter called ‘Atalanta’ in order to contribute to:
— the protection of vessels of the WFP delivering food aid to displaced persons in Somalia, in accordance with the mandate laid down in UNSC Resolution 1814 (2008),
— the protection of vulnerable vessels cruising off the Somali coast, and the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast, in accordance with the mandate laid down in UNSC Resolution 1816 (2008)”
(2) The Council Decision 2008/918/CFSP of 8 Dec. 2008 on the launch of a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (Atalanta). Text available here.
This decision follows up on the previous Joint Action and in particular, its Article 5, which called for the adoption of a decision to launch the EU military operation. Accordingly, the Council approves here the launch of “Operation Atalanta”.
An interesting political and legal development occurred on March 6, 2009. The EU and Kenya signed in Nairobi the agreement on the conditions of transfer of suspected pirates to Kenya. This agreement is said to be the first of its kind between the EU and a country in the region as it defines the modalities for the transfer of persons detained in the course of counter-piracy operations by the EUNAVFOR Atalanta to Kenya for prosecution. The Press release contends that “by enabling EUNAVFOR to bring pirates to justice, this agreement will enhance the deterrence effect of the operation.” It appears that some EU Member States were concerned that if their ships brought the pirates back to the EU, the pirates might be tempted to apply for asylum there.
This agreement enables EU participating countries to set aside Article 12(1) of Council Joint Action 2008/851 CFSP previously cited and according to which “persons having committed, or suspected of having committed, acts of piracy or armed robbery in Somali territorial waters or on the high seas, who are arrested and detained, with a view to their prosecution, and property used to carry out such acts, shall be transferred: — to the competent authorities of the flag Member State or of the third State participating in the operation, of the vessel which took them captive, or — if this State cannot, or does not wish to, exercise its jurisdiction, to a Member States or any third State which wishes to exercise its jurisdiction over the aforementioned persons and property.”
One interesting question, however, is whether EU Member States can trust Kenya to comply with the conditions mentioned in Article 12(2): “No persons referred to in paragraphs 1 and 2 may be transferred to a third State unless the conditions for the transfer have been agreed with that third State in a manner consistent with relevant international law, notably international law on human rights, in order to guarantee in particular that no one shall be subjected to the death penalty, to torture or to any cruel, inhuman or degrading treatment.”
In Kenya, a Human Rights Advocate is Assassinated After Meeting with the UN Expert Investigating Police Killings
The founder of a Kenyan human rights organization was gunned down one week after meeting with an independent UN expert investigating police killings in Kenya. Oscar Kamau Kingara, founder of the Oscar Foundation Free Legal Aid Clinic, was killed along with a co-worker near Nairobi University in Kenya’s capital. According to Rupert Colville of the Office of the UN High Commissioner for Human Rights (OHCHR), they were going to meet with staff of the Kenyan National Commission on Human Rights.
The Teaching International Law Interest Group (TILIG) of the American Society of International Law (ASIL) will be holding a program on "Teaching Using Simulations" at the ASIL Annual Meeting on Thursday, March 26, 2009 from 3-4:30 pm in the Executive Forum at the Fairmont Hotel in Washington, D.C. Participants are invited to bring examples of simulation exercises they use in their international law classes with them to the program to share. We will also hold our annual business meeting at that time. More information will be posted on this blog and on the ASIL website at a later date.
Friday, March 6, 2009
The American Society of International Law's Transitional Justice and Rule of Law Interest Group;
The International Law Committee, Association of the Bar of the City of New York; The United States Institute of Peace, International Network to Promote the Rule of Law (INPROL); and Lawyers without Borders present a program on U.S. Response to Rule-of-Law Challenges in Countries in Crisis
The main speaker is Ambassador John E. Herbst, The U.S. Secretary of State's Coordinator for Reconstruction and Stabilization, who will discuss lessons learned through past U.S. Reconstruction & Stabilization engagements and the newly established Civilian Response Corps, a U.S. Government-established and trained corps of civilian volunteers for reconstruction and stabilization efforts abroad.
Bruce C. Swartz, U.S. Department of Justice Deputy Assistant Attorney General for the Criminal Division
The Honorable Victor Marrero, Judge of the U. S. District Court, Southern District of New York; former U.S. Ambassador on the Economic and Social Council of the United Nations; and U.S. Ambassador/Permanent Representative of the U.S. to the Organization of American States
The Honorable Phillip Rapoza, Chief Justice of the Massachusetts Appeals Court and former Chief Judge of the United Nations' Special Panels for Serious Crimes for East Timor
Ms. Melanne Civic, Co-Chair of the ASIL Transitional Justice and Rule of Law Interest Group and Rule of Law Advisor in the U.S. Department of State's Office of the Coordinator for Reconstruction & Stabilization
Wednesday, March 11, 2009, 6:30 p.m. – 8:00 p.m. q5 The Association of the Bar of the City of New York, 42 West 44th Street, New York, NY 10036. This program will examine challenges to the rule of law and the judicial system in nations in crisis and the U.S. government's response to these challenges through the Office of the Coordinator for Reconstruction & Stabilization and the newly established Civilian Response Corps. RSVP to David Cinotti
Save the dates! The fourth Global Legal Skills Conference will be held at Georgetown University Law Center on June 4-6, 2009 in Washington D.C. for those who teach legal writing and skills to lawyers and law students in other countries or who speak English as a Second Language. Contact Professor Mark E. Wojcik at The John Marshall Law School-Chicago or Professor Craig Hoffman at Georgetown University Law Center.
Thursday, March 5, 2009
Christopher Nugent, an attorney with the Washington, D.C. firm of Holland and Knight, was the Lesar Lecturer at the Southern Illinois University School of Law yesterday. Mr. Nugent spoke about his involvement with Iraqi refugees who are seeking to be resettled in the United States due to their fear of persecution in Iraq. Many Iraqis who assisted the U.S. government in Iraq are now targeted by insurgents and must flee for their lives. Mr. Nugent works with The List Project and other law firms and law schools to provide pro bono assistance to Iraqi refugees to help them document their cases and navigate the lengthy interview process required before being accepted for resettlement in the United States. To read more about this work or to find out how you can get involved, go to www.thelistproject.org.
The World Trade Organization (WTO) has decided to open its March 23-24, 2009 oral hearing to Members of the WTO and the general public via simultaneous closed-circuit broadcast to a separate viewing room. This decision was made at the request of the parties in the case of United States - Law, Regulations and Methodology in Calculating Dumping Margins ("Zeroing")-Recourse to Article 21.5 of the DSU by the European Communities. The hearing will be held at the WTO headquarters in Geneva, Switzerland and seating is on a first come, first serve basis.
By way of background, the EC requested consulations with the United States in 2003 with respect to the EC's allegations that the United States' practice of zeroing when calculating dumping margins was not consistent with GATT 1994 and the Anti-Dumping Agreement. The EC obtained a favorable decision from the WTO Appellate Body in April 2006, but does not believe the United States has taken adequate measures to implement that decision within a reasonable time period. The purpose of the Article 21.5 hearing is to consider compliance issues. The issue of zeroing has been raised in multiple trade disputes and several Members of the WTO have participated in the dispute as interested third parties.
Wednesday, March 4, 2009
The International Criminal Court (ICC) has just issued a warrant to arrest Omar Al-Bashir, the President of Sudan and the first sitting Head of State to be indicted by the Court. The ICC Prosecutor, Luis Moreno-Ocampo, had presented evidence to the ICC against President Al-Bashir for alleged war crimes in Darfur. An estimated 300,000 people have died in Darfur over the past five years in Darfur. The ICC pre-trial chamber found that there was not enough evidence to charge President Al-Bashir with genocide, but it allowed his indictment on two counts of war crimes and five counts of crimes against humanity.
One of the year’s most important events for international lawyers and law professors is the Spring Meeting of the American Bar Association Section of International Law, which will be held in Washington, DC, April 14-18, 2009. More than 1,200 participants from over 50 countries will attend 80 world-class, substantive, programs: three full days of programming in 8 program tracks covering all practice areas of international law:
- Corporate Counsel/Transactional;
- Dispute Resolution/Litigation;
- International Trade/Customs;
- Public International Law/Rule of Law;
- Young Lawyers;
- Taxation; and
- Environmental Law/Climate Change.
Registrants may earn up to 24 Continuing Legal Education (CLE) credits (also including Ethics) by attending the three full days of programming. Register now to get the early bird rates. There are also INCREDIBLE discounts for law professors, as well as NGO and Government lawyers, and law students.
Special Events include:
- a special opportunity to meet with senior staff of the House and Senate committees with jurisdiction over issues important to Section members. Representatives of the chairs and ranking members of these key committees will discuss their international priorities for the coming year. Attendees will also have the opportunity to ask questions about upcoming legislation.
- an opening WIN/SIN/GIN/YIN Outreach Reception at The Fairmont, Washington, DC;
- Reception and Committee Dinners at The John F. Kennedy Center for the Performing Arts;
- a closing Ambassadorial Reception in the Diplomatic Rooms of the U.S. Department of State,
- two award luncheons with prominent speakers including Former Congressman Michael Oxley (Sarbanes-Oxley), Vice Chairman, The Nasdaq Group Inc. and Counsel, Baker & Hostetler LLP and Abbe David Lowell, Former Counsel to the U.S. House of Representatives;
- Swearing-in Ceremony: U.S. Court of International Trade and U.S. Court of Appeals for the Federal Circuit
- a special luncheon for committee members, new and old, at a reduced price, and
- a meeting of the prestigious Council of the Section preceded by remarks by Ambassador Hans Corell, Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations, upon whom will be conferred the World Order Under Law Award
You can register online by visiting the website for the ABA Section of International Law.
Hat tip to Aaron Schildhaus
Radovan Karadzic, the former Bosnian-Serb leader, refused on Tuesday to enter a plea on new charges filed against him (two charges of genocide and nine other counts of crimes against humanity and war crimes). He reportedly told the International Criminal Tribunal for the Former Yugoslavia that it did not have the right to try him. The presiding judge entered pleas of not guilty on his behalf.
Tuesday, March 3, 2009
Based on Scientific Evidence, Swiss Court is First to Quash a Criminal Conviction for Exposing Someone to HIV
In the first ruling of its kind in the world, a court in Geneva, Switzerland has quashed an 18-month prison sentence given to a 34-year-old HIV-positive African migrant who was convicted by a lower court of exposing a partner to HIV. Click here to read more.
The opening of the special tribunal to investigate and prosecute the perpetrators of a massive car bomb blast that killed former Lebanese Prime Minister Rafiq Hariri and 22 others is a watershed moment in the fight against impunity in the Middle-Eastern country, the United Nations Legal Counsel said.
The Special Tribunal for Lebanon, an independent and impartial institution located in The Hague, took over from the Beirut-based International Independent Investigation Commission (IIIC) on Sunday, Patricia O’Brien, Under-Secretary-General for Legal Affairs, told reporters in New York. The investigation of the murders continues under the guidance of Prosecutor Daniel Bellemare, who also headed the probe while the case rested with the IIIC, and a trial will take place when he has sufficient evidence in place.
“The international community believes that justice is needed for lasting peace,” Ms. O’Brien said, underscoring the importance of the tribunal as a strong signal that political assassinations and other terrorist acts will not be tolerated and that impunity cannot be allowed. “A key element for the success of the Tribunal is not only that justice be done but that also justice must be seen to be done,” she added.
Safeguards to guarantee the court’s independence and impartiality are built into its founding statute, including provision for a transparent and thorough appointment process for its 11 judges and its prosecutor, as well as the protection of the rights of the accused, she said. Because the Special Tribunal seat is located outside Lebanon, bringing the activities of the Special Tribunal closer to the population of Lebanon and its region is a priority, Ms. O’Brien maintained.
Perhaps you are planning a trip to Switzerland or perhaps you are already doing business there. Whatever your interest in Switzerland (or in internatioanl and comparative business law) may be, you should take advantage of this opportunity. Send an email to Dr. Florian S. Jörg and ask him to send you his (very easy to read) update on recent developments in Swiss business law.
Charles D. Cramton, Assistant Dean for Graduate Legal Studies at Cornell Law School, invites LL.M. students to present papers at an LL.M. conference at the end of the month. Have a look at this document for more details. Download Call_for_Papers__02-03-09.pdf Because the announcement is going out late, the deadline has been extended).
United Nations Secretary-General Ban Ki-moon strongly condemned the killing of the president of Guinea-Bissau and his chief of staff, calling on the national authorities to maintain the rule of law and bring those responsible to justice.
“The Secretary-General is deeply saddened and dismayed by the assassinations of President João Bernardo Vieira and his Chief of General Staff, General Batista Tagme Na Waie,” Mr. Ban said in a statement released by his spokesperson. The Secretary-General’s statement noted that the assassinations occurred soon after successful legislative elections which “paved the way for enhanced UN support to the country’s peacebuilding efforts.”
Guinea-Bissau is one of a handful of States on the agenda of the United Nations Peacebuilding Commission, which aims to help poor countries avoid sliding back into war or chaos. The West African country has struggled to combat drug trafficking and organized crime, and also to sustain economic growth and political stability amid a series of civil conflicts, coups d’état and uprisings in recent decades. This past November, renegade military elements attacked the residence of President Vieira but he survived the attack, which occurred just one week after legislative elections were staged in a peaceful and orderly manner. At that time, Secretary-General Ban Ki-moon and the Security Council both condemned the failed assassination attempt and urged all political groups to resolve their differences peacefully.