March 14, 2009
"New" Justice Department's view on the legal authority for detaining terror suspects
In a declaration filed in federal court by U.S. Attorney General Eric Holder yesterday, the Department of Justice submitted a new standard for the government’s authority to hold detainees at the Guantanamo Bay Detention Facility. It was also decided that the US will stop labelling terror suspects as "enemy combatants."
For more information, see today's article in The New York Times, which also offers a link to the legal brief explaining the new policy. For further discussion of the term "enemy combatant" see IntLawGrrls.
March 13, 2009
American Society of International Law
Going to the ASIL Annual Meeting in Washington, DC? Still thinking about it? Click here to see the program. It's less than two weeks away . . . .
International Tribunal for the Law of the Sea (ITLOS)
Mr Jin-Hyun Paik (Republic of Korea) will be sworn in as a member of the International Tribunal for the Law of the Sea (ITLOS) at a ceremony in Hamburg, Germany on March 16, 2009. Judge Paik was elected on 6 March 2009 at a Special Meeting of States Parties to the United Nations Convention on the Law of the Sea to fill the vacancy created by the death of Judge Choon-Ho Park (Republic of Korea). Judge Paik will serve the remainder of his predecessor's nine-year term, which expires on 30 September 2014. The curriculum vitae of Judge Paik may be found by clicking here.
If you happen to be a Hamburger (someone who lives in Hamburg), you might stop by to watch the swearing in, which will be at 11:00 a.m. on March 16.
March 12, 2009
ICJ Finishes Public Hearing on the Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua)
The International Court of Justice has finished listening to the arguments in the Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua). Here's an ICJ press release with details on the closing submissions of the parties.
Foreign Travel Makes U.S. Professors More Likely to Include International and Comparative Perspectives in their Teaching and Scholarship
American professors who spend time abroad as adults are more likely to incorporate international perspectives into their teaching and research. But professors from countries like Mexico and Australia are more likely than U.S. professors to incorporate international and global perspectives into their teaching and research. Those are some of the findings of a new (and still unpublished) paper by researchers at Seton Hall University, as described in an article in The Chronicle of Higher Education. Karin Fischer, U.S. Faculty Members Lag on Global Engagement, Chronicle of Higher Education, Feb. 13, 2009, at A37. We look forward to seeing the paper when it is published.
ICJ to Hold Hearing on Request for Provisional Measures (Belgium v. Senegal)
The International Court of Justice will hold three days of public hearings on the request for the indication of provisional measures in the proceedings that the Kingdom of Belgium brought against the Republic of Senegal. The public hearings will be held from 6 to 8 April 2009 at the Peace Palace in The Hague.
On February 19, Belgium instituted proceedings against Senegal at the ICJ alleging that Senegal breached its obligation to prosecute the former President of Chad, Hissene Habre, or to extradite him to Begium for criminal proceedings on allegations of torture and crimes against humanity. Belgium also requested the indication of provisional measures. Habre has been living in exile in Chad since 1990. Belgium claims that Senegal's duty to prosecute or extradite arises under both the Convention Against Torture (CAT) and customary international law. Belgium asserts jurisdiction on the basis of the parties' respective declarations accepting the Court's compulsory jurisdiction under Article 36 of the Statute of the Court and the dispute resolution clause of CAT. With respect to provisional measures, Belgium requests the Court order Senegal to take appropriate measures to keep Habre under its control and surveillance until the international legal issues are resolved.
(mew and cgb)
March 11, 2009
Report of the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism
Prof. Martin Scheinin, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, recently submitted its report to the Human Rights Council.
The British press has generally presented the report as a severe rebuke to the UK government.
In truth, the Special Rapporteur contends that several countries, including the UK, hid illegal acts and breached basic human rights of detainees in US rendition programs.
For instance, Prof. Scheinin first notes that credible reports suggest that at least until May 2007 a number of States, including the UK, “facilitated extraordinary renditions in various ways” (para. 51) before writing that “evidence proves that Australian, British and United States intelligence personnel have themselves interviewed detainees who were held incommunicado by the Pakistani ISI in so-called safe houses, where they were being tortured” (para. 54, fn. 63).
He subsequently – and rightly in our view – expresses his worries as regards “the increasing use of State secrecy provisions and public interest immunities for instance by Germany, Italy, Poland, Romania, the former Yugoslav Republic of Macedonia, the United Kingdom or the United States to conceal illegal acts from oversight bodies or judicial authorities, or to protect itself from criticism, embarrassment and - most importantly – liability” (para. 59).
Generally speaking, this UN Report is worth reading in full. One may only hope that democratic governments will come clean about the extent of their past criminal policies and actions, pay due attention to the report’s conclusions and implement its sensible recommendations.
50th Anniversary of the Jessup International Law Moot Court Competition
The 50th Anniversary of the Philip C. Jessup International Moot Court Competition is being celebrated on March 27, 2009 in Washington D.C. The featured speakers are two former presidents of the International Court of Justice: Dame Rosalyn Higgins of the United Kingdom and Judge Stephen M. Schwebel of the United States. A reception and dinner at the Ronald Reagan Building and International Trade Center begins at 6:30 p.m. Tickets ($125 per person) may be purchased through this Friday. Click here or send an email to events [at] ilsa.org to purchase a ticket or to make a donation to support the International Law Students Association (ILSA), which administers this global moot court competiton.
Should WTO Be the "Women's Trade Organization?"
World Trade Organization Deputy Director-General Valentine Sendanyoye Rugwabiza said in a press statement on 10 March 2009 that “women urgently need a gender-specific component built into responses to the international financial crisis to ensure they are not further left out of the shrinking credit pool." Read more here. Empowering women is often an overlooked or misunderstood element of sustainable development.
Presidential Signing Statements
U.S. President Obama has issued an important statement on Presidential signing statements. Click here to read a post about it by Steve Schwinn of The John Marshall Law School on the Constitutional Law Prof Blog.
March 10, 2009
UN Working Group on Enforced or Involuntary Disappearances
Over 300 new missing-persons cases suspected to be forced disappearances will be reviewed in the current session of a dedicated United Nations unit meeting in Geneva, a UN spokesperson said today. The UN Working Group on Enforced or Involuntary Disappearances plans to review 326 newly submitted cases of enforced disappearances as well new information on previously accepted cases from 32 countries during the first of three annual sessions from 9 to 13 March 2009.
The Working Group, made up of five independent experts, was created by the UN Commission on Human Rights in 1980 to assist families in determining the fate and whereabouts of disappeared relatives and has dealt with 52,952 cases transmitted to it since then, according to the Group’s press release. It endeavours to establish a channel of communication between families of the disappeared and the Governments concerned to ensure that individual cases are investigated. What the Group calls “clarification” occurs when the fate or whereabouts of the disappeared person is clearly established, it says, adding that it continues to address cases of disappearances until they are resolved. It will present its 2008 annual report to the 10th Session of the U.N. Human Rights Council.
Research Grants at Harvard
The Arthur and Elizabeth Schlesinger Library on the History of Women in America invites scholars whose research requires use of the library's collections to apply for research support. Applications will be evaluated on the significance of the research and the project's potential contribution to the advancement of knowledge as well as its creativity in drawing on the library's holdings. Grants of up to $3,000 will be given on a competitive basis to cover travel expenses, living expenses, photocopying, and other incidental research expenses, but not the purchase of durable equipment). Deadline: Applications must be received by Friday, April 3, 2009. Awards will be announced by the end of May 2009, to be used for research at the library from July 2009 through June 30, 2010. Click here for more information. The library is part of Harvard University's Radcliffe Institute for Advanced Study.
Environmental Law Grants for Work in the Dominican Republic, Guatemala, and Nicaragua
Applications for a grant from Higher Education for Development in Cooperation with the U.S. Agency for International Development are due March 11, 2009. The grants are for environmental law work in the Dominican Republic, Guatemala, and Nicaragua. Click here for more information.
Application Deadline Approaching for Program in Israel
Applications for the Foundation for the Defense of Democracies' Fellowship Program for university professors are due March 27 for a program being held in Israel from May 30 to June 10, 2009. Click here for more information.
"Please Repeat the Question" -- A Music Video from NYU Law Students on Web Surfing in Class
The debate on laptops in the classroom has raised many thoughts, but none as WONDERFULLY expressed as in this music video made by students at New York University School of Law. (I went there for an LLM, but I don't remember the movie-making class!) The video is called Please Repeat the Question and promotes the school's law revue show. You will enjoy it.
Hat tip to my colleague Kim Chanponbin at The John Marshall Law School in Chicago, and thanks to the super-creative students at NYU who came up with the song and the video.
March 8, 2009
European Court of Justice
In a few words, the question was whether the UK requirement violated Directive 2000/78/EC which prohibits discrimination on grounds of age as regards employment and occupation. However, this Directive provides, by way of exception, that certain differences of treatment on grounds of age do not constitute discrimination if they are objectively and reasonably justified by legitimate aims, such as those related to employment policy, the labour market or vocational training. Furthermore, the means of achieving that aim must be appropriate and necessary. The directive lists certain differences of treatment which may be justified.
The United Kingdom regulations which transpose the directive provide that employees who have reached their employer’s normal retirement age or, if the employer does not have a normal retirement age, age 65, may be dismissed for reason of retirement without such treatment being regarded as discriminatory.
In Case C-388/07, the Court notes that the aims which may be considered ‘legitimate’ by the directive, and, consequently, appropriate for the purposes of justifying derogation from the principle prohibiting discrimination on grounds of age, are social policy objectives (e.g. employment policy, the labour market or vocational training). By their public interest nature, those legitimate aims are distinguishable from purely individual reasons particular to the employer’s situation, such as cost reduction or improving competitiveness. As the Court often does, it held that it is for the national court to ascertain, first, whether the UK legislation reflects such a legitimate aim and, second, whether the means chosen were appropriate and necessary to achieve it.
In non-EU law jargon, this means that the UK is not breaking EU law for forcing people to retire at the age of 65 provided the requirement is justified by social policy considerations.
(mew and lp)
President of Sudan Expells 11 Aid Agencies in Retaliation for His Indictment by the International Criminal Court
Responding to his indictment by the International Criminal Court, President Omar al-Bashir of Sudan has expelled 11 international aid agencies, including
- International Rescue Committee
- Doctors Without Borders
- Care International
- Save the Children
- Action Contre le Faim
These expulsions will harm up to two million people who were being served by those agencies. How should the international community respond to these expulsions? Are these expulsions a new crime against humanity?
The United States, for its part, should support the ICC at this critical hour. The United States should repeal laws that may prevent assisting the ICC in any of its investigations. The United States should also ratify the Rome Statute that established the ICC. The ICC has proven itself in the short time of its existence, and it is time for the United States to become a party to the ICC.
EULEX’s first war crimes trial
On March 4, a Kosovo court, consisting of one national judge and two judges from the EU Rule of Law Mission in Kosovo (EULEX), sentenced a Kosovo Albanian to 17 years in jail for murder, attempted murder and grievous bodily harm. This represents a milestone as it is the first war crimes trial to be held under the auspices of EULEX.
EULEX, the largest civilian mission ever launched under the European Security and Defence Policy (see Title V of the Treaty on European Union) was established by Council Joint Action 2008/124/CFSP of 4 February 2008 and works under the general framework of United Nations Security Resolution 1244. I should note, in passing, that the EU Joint Action provides that third States may be invited to contribute to EULEX on the condition “that they bear the cost of the staff seconded by them” and contribute to the running costs of EULEX as appropriate (Article 13). It is on this basis that an agreement between the EU and the US on the participation of the US in EULEX was signed in October 2008.
According to Article 2, EULEX’s main task is to “assist the Kosovo institutions, judicial authorities and law enforcement agencies in their progress towards sustainability and accountability and in further developing and strengthening an independent multi-ethnic justice system and multi-ethnic police and customs service…”
With respect to EULEX’s competence to exercise judicial power in conjunction with national officials, see Article 3(d) which provides that EULEX shall “ensure that cases of war crimes, terrorism, organised crime, … and other serious crimes are properly investigated, prosecuted, adjudicated and enforced, according to the applicable law, including, where appropriate, by international investigators, prosecutors and judges jointly with Kosovo investigators, prosecutors and judges or independently, and by measures including, as appropriate, the creation of cooperation and coordination structures between police and prosecution authorities.”
The association of national and international judges is not an entirely new phenomenon in post-conflict countries in Europe. For instance, the Constitutional Court of Bosnia and Herzegovina consists of six “national” judges (in practice, two Croats, two Bosniaks and two Serbs) and three “international” judges. These international judges are selected by the President of the European Court of Human Rights after consultation with the Presidency of Bosnia and Herzegovina. It may be worth mentioning that the Constitution of Bosnia was in effect drafted by the United States (see the 1995 Dayton Agreement). In my experience, this innovative idea of associating national and international judges proved, in practice, highly positive as far as Bosnia is concerned (I had the privilege to clerk for Prof. Favoreu when he served as one of the three international judges between 1996 and 2002). To put it briefly, the presence of “external observers” exercised a "peer pressure" effect which led national judges to tackle the most sensitive cases in pure legal terms. It also added prestige and authority to the Court’s judgments and made political pressures on the Court less likely to succeed.
Regional Trade Agreements and the WTO: Free Program in New York City on March 11, 2009
On Wednesday, March 11, 2009, the New York City Bar Association International Trade Committee will host an event, co-sponsored by the Customs and International Trade Bar Association, entitled “Regional Trade Agreements and the WTO: Impetus or Impediment?”
A panel of prominent international trade professors, practitioners and former government officials will discuss regional trade agreements (RTAs) and seek to answer the important question of whether the growing popularity of RTAs will stimulate progress in the multilateral framework of the World Trade Organization, or whether they have in fact undermined the WTO’s Doha Round.
The panel will also address the future of trade liberalization and what the most beneficial approach might be. The panel will consist of Professors Jagdish Bhagwati and Merit Janow of Columbia University Law School, trade policy expert Gary Hufbauer of the Peterson Institute for International Economics, Canadian professor Chios Carmody of the University of Western Ontario, and Ambassador John K. Veroneau, former Deputy U.S. Trade Representative, now with Covington and Burling. International Trade Committee member Professor Andreas Lowenfeld of NYU Law School may provide additional commentary.
The Open Forum will be from 6-9 pm on March 11 at the Association’s headquarters at 42 West 44th Street in Manhattan. This event is open to the public and attendance will be free of charge; however please RSVP to Committee Secretary Natasha Woodland.
International Women's Day
We wish all of our readers a happy International Women's Day today, March 8th.