June 12, 2009
U.N. Security Council Resolution 1874 on North Korea Condemns Nuclear Tests
The U.N. Security Council unanimously adopted Resolution 1874 to tighten sanctions that will target North Korea's nuclear and missile development programs. The Security Council condemned the 25 May nuclear test conducted in “violation and flagrant disregard” of relevant Council resolutions, particularly 1695 (2006) and 1718 (2006). It also demanded that the DPRK “not conduct any further nuclear test or any launch using ballistic missile technology.”
The Security Council imposed a series of measures on the DPRK that encourage tougher inspections of cargo suspected of containing banned items related to the country’s nuclear and ballistic missile activities, a tighter arms embargo (with the exception of light weapons), and new financial restrictions.
The New York Times reports that China and Russia were heavily involved in drafting the Security Council resolution during the nearly three weeks since North Korea's May 25 underground nuclear test, but they resisted making the measures mandatory. The text of U.N. Security Council Resolution 1874 will be available here.
More News About Sending 17 Guantanamo Detainees to Palau . . . 4 of them are in Bermuda!
The People's Republic of China has asked that the 17 Chinese nationals who were to be transferred to Palau be instead returned to China. A Chinese Foreign Ministry Spokesman, Qin Gang, is reported to have said that China is demanding that the United States live up to its international anti-terrorism obligations, stop the transfer of these suspects to any third country, and repatriate them to China. Click here to read more. Meanwhile,other reports suggest that four of the detainees have already been transferred to Bermuda. Clickhere for an additional report on their arrival in Bermuda.
Meanwhile, in Palau, the President of Palau denied reports that Palau would be paid to accept the detainees. Click here to read more. Palau maintains diplomatic relations with Taiwan rather than mainland China, which presents an additional factor to consider in deciding whether to send the detainees to Palau.
Recent European Elections Cast Doubt on Turkey's Speedy Accession to EU
Over the past week, elections were held across Europe, including for seats in the European Parliament (EP). Center right parties gained many seats in the EP, as well as in national elections, in the recent voting, which has caused concerns that Turkey's bid to join the EU in the near future may be further delayed. Parties gaining ground include those of Angela Merkel and Nicolas Sarkozy, both of whom have expressed doubts about Turkey's readiness to join the EU. The EP has expressed concern that Turkey has not made sufficient progress in certain areas, most particularly in the area of human rights. For its part, Turkey says that its bid for accession remains on course and that it is continuing to make progress towards the necessary reforms.
Teach Business Law in Iraq
The new University of Kurdistan-Hawler is looking to fill up to nine academic appointments at Senior Lecturer, Lecturer A and B grades (Assistant and Associate Professor equivalent) on a minimum three-year contract in the Department of Business and Management Sciences (Business and Management and Economics) with teaching and research experience in one or more of the following subject, or related, fields:
·The Political Economy of Development
·Economics of Globalisation
·Accounting and Budgeting
·Organisational Behaviour and Analysis
·Managing small businesses and agri-business
All teaching and the business of the University are conducted in English; an English Language Teaching unit supports the academic enterprise. Candidates for these posts will also be considered for appointment to Head of Department. Application forms are available by clicking here and when completed in full should be returned electronically to Ms Tavga Safi, Managing Director, info [at] ukh.ac, tel. 00964 (0) 750 4459789. Closing date for applications is 30 June 2009
Lisbon Treaty Still in Doubt
For awhile, it appeared that the Irish were ready to vote "yes" in a second referendum on the Lisbon Treaty, also referred to at the EU Constitution, which would clear the way for the Treaty to go forward for the rest of the EU. There was talk that the referendum would be held in October and polls showed a majority of Irish in favor this time. However, the "yes" vote is conditional on changes in the language of the Treaty in three areas. Ireland is looking for guarantees on ethical issues, such as the ability to prohibit abortion, tax sovereignty, that is, the ability to keep its low corporate tax rate, and the ability to maintain its neutral status in the face of closer cooperation between EU Member States in the area of foreign policy. However, the language of those guarantees has not been finalized despite the fact that the EU ambassadors began meeting yesterday to consider and vote on those changes. There is concern among EU Member States that the changes may reopen debate on certain issues and jeopardize the approval for the Treaty that has already been given by some Member States. The EU representatives are scheduled to continue meeting until next Tuesday, so there is still time for a deal to be reached
June 11, 2009
More News from Fiji, Where the Military Goverment Abrogated the Constitution Last April
We have been sharing news from Fiji, where the constitution was abrogated on April 10th and where lawyers and judges have been targeted for wanting to uphold the rule of law. The latest news is that the military government is appointing new judges that are more to its liking. Click here to read more.
Hat tips to the East-West Center.
U.S. Says Deal to Send 17 Guantanamo Detainees to Palau is Not Finalized
We shared here news that the Republic of Palau had agreed to accept 17 detainees from Guanatamo. In that earlier post (which also included a link to the exchange of diplomatic notes between Palau and the United States), we shared an observation from the President of Palau that he was not sure that the U.S. would send the detainees to Palau. It seems he was right (at least for now), because the U.S. has now said that the deal has not been finalized. Click here to read more.
WHO Declares H1N1 to be a Pandemic
WORLD FACING GLOBAL A(H1N1) FLU PANDEMIC, ANNOUNCES UN HEALTH AGENCY
The A(H1N1) influenza outbreak has officially reached global pandemic levels, the public health arm of the United Nations announced today, as it raised its warning system to Phase 6.
The World Health Organization (WHO) stressed that Phase 6, the highest level on its pandemic alert scale, refers to the spread of the virus and not its severity.
The upgrade to Phase 6 means that sustained human-to-human transmission of the virus has spread beyond North America, where it was concentrated, with WHO reporting 28,774 verified cases of the infection in 74 countries, including 144 deaths, as of this morning.
“The world is now at the start of the 2009 influenza pandemic,” WHO Director-General Margaret Chan told reporters in Geneva, adding that the spread of the virus is unstoppable.
“On present evidence, the overwhelming majority of patients experience mild symptoms,” said Dr. Chan, and WHO does “not expect to see a dramatic jump in the number of severe or fatal infections.”
She noted that the virus tends to infect younger people with the majority of cases, in areas with widespread outbreaks, occurring in people under 25 years of age, and around 2 per cent of cases have suffered very severe symptoms, such as life-threatening pneumonia.
Dr. Chan added that the most severe and fatal infections have been in adults between the ages of 30 and 50 years, a significantly different pattern to epidemics of regular seasonal flu which generally claims frail, elderly people.
“Of greatest concern,” said Dr. Chan. “We do not know how this virus will behave under conditions typically found in the developing world.”
People in the developing world are particularly vulnerable to severe reactions to the infection, as more than 99 per cent of maternal deaths occur in poor countries, and around 85 per cent of the burden of chronic diseases is concentrated in low- and middle-income countries, said Dr. Chan.
“It is prudent to anticipate a bleaker picture as the virus spreads to areas with limited resources, poor health care and high prevalence of underlying medical problems.”
Countries where outbreaks appear to have peaked should prepare for a second wave of infection, warned Dr. Chan, adding that countries with no reported cases or only a few infections should remain vigilant.
“I understand that production of vaccines for seasonal influenza will be completed soon, and that full capacity will be available to ensure the largest possible supply of pandemic vaccine in the months to come.”
WHO recommends no restrictions on travel or border closures, said Dr. Chan. “We are all in this together and we will all get through this together,” she stated.
Speaking at his monthly news conference in New York today, Secretary-General Ban Ki-moon stressed the need for preparedness, especially in the wake of WHO’s announcement.
“We must be watchful. We do not know what picture will emerge in the coming months,” he stated. “The virus has hit mainly developed countries. That is likely to soon change – and it will have consequences.
“We must therefore be prepared. Our best response is a firm demonstration of global solidarity,” Mr. Ban said, adding that he will convene a meeting of the Influenza Steering Committee in New York on Monday to “map out our immediate next steps.”
Transitional Justice and Post-Conflict Human Rights
The East-West Center is sponsoring a program in Bali, Indonesia from June 22 to July 3, 2009 on the subject of Transitional Justice and Post-Conflict Human Rights. Click here for more information.
FYROM and Greece to Talk About the "Name" Issue
The U.N. Secretary General has announced that talks between Greece and the former Yugoslav Republic of Macedonia (FYROM) are slated for later this month to continue discussions on the name of the former Yugloslav Repulic of Macedonia. The two countries will meet at the U.N in Geneva on June 22, after which the U.N. Secretary General's Personal Envoy, Matthew Nimetz, will travel to the capitals, Skopje and Athens, to meet with government officials. The Interim Accord of 13 September 1995, which the UN brokered, detailed the difference between the two countries on the issued obligated both countries to continue negotiations under the auspices of the UN Secretary-General.
Shell Settles Nigerian Lawsuit Alleging Human Rights Violations
Earlier this week, oil giant Shell announced that it has agreed to a $9.6 million settlement to end a lawsuit alleging that its Nigerian subsidiary colluded with the former military government in Nigeria to silence environmental and human rights activists who protested the construction of a pipeline in the Ogoni region of Nigeria. In particular, the lawsuit also alleged that Shell helped the Nigerian government capture and hang six activists in 1995. The suit was brought in U.S. District Court in New York under the Alien Tort Statute. The money from the settlement will be used to compensate the families of the alleged victims, pay legal fees, and set up a trust that will invest in social programs in the country, including educational endowments, agricultural development, support for small enterprise and adult literacy schemes. While $9.6 million may seem like a lot of money to persons from the Ogoni region in Nigeria, it represents less than one-hundredth of one per cent of Shell's annual revenue and, thus, is unlikely to have any significant impact on Shell's shareholders.
US Firms Moving from Bermuda to Ireland
According to the Irish Times this week, U.S. electrical manufacturer, Cooper Industries, is seeking shareholder approval to move its place of incorporation from Bermuda to Ireland. This move follows closely on the heels of a similar move last month by health care group, Covidien, an offshoot of Tyco International, which also moved from Bermuda to Dublin. The moves appear to be prompted by an announcement from the Obama Administration that it intends to crack down on the use of tax havens such as Bermuda. Ingersoll-Rand, maker of refrigeration equipment, also has received shareholder approval to move from Bermuda to Ireland. Why Ireland? It has a relatively low corporate tax rate at 12.5%. The U.S. government has identified Ireland as one of three locations where U.S. multinationals make a large proportion of their overseas profits. Coopers also stated that it chose Ireland because of its stable business, legal, and regulatory environment, its membership in the EU, its history of international invesment, and its solid network of tax treaties. Ireland could certainly use the boost in foreign investment - it has been particularly hard hit by the global economic downturn with unemployment expected to reach 15% this year.
See WTO Dispute Resolution in Action
The World Trade Organization (WTO) continues to experiment with increased transparency, announcing that it will once again open a dispute resolution proceeding to public viewing at the WTO headquarters in Geneva, Switzerland. The decision came at the request of the parties in European Communities and its Member States - Tariff Treatment of Certain Information Technology Products. The dispute involves a complaint by the United States, Japan, and Chinese Taipei that the European Communities and its Member States are not according certain information technology products the duty free treatment to which they are entitled under the Information Technology Agreement. The public viewing will be of the panel's second hearing with the parties, which is scheduled for 10 am on July 9, 2009. For more information and to reserve a seat in the viewing room, click here. Registration has also begun for public viewing of the WTO Appellate Body's June 29-30 oral hearing in United States-Measures relating to Zeroing and Sunset Reviews-Recourse to Article 21.5 of the DSU by Japan. To obtain more information or to register to see that dispute, click here.
International Law, Kosovo, and the ICTY
The American Society of International Law has published it latest Insight, entitled Ten Years After the War in Kosovo: International Law, Kosovo and the International Criminal Tribunal for the Former Yugoslavia,
The American Society of International Law has published it latest Insight, entitled Ten Years After the War in Kosovo: International Law, Kosovo and the International Criminal Tribunal for the Former Yugoslavia,
This Insight briefly examines how the International Criminal Tribunal for the Former Yugoslavia (ICTY) has addressed war crimes and crimes against humanity alleged to have been committed in Kosovo during the conflict and how its cases have advanced the cause of international criminal justice. The author, Linda Strite Murnane, served as a Senior Legal Officer for ICTY from 2006 - 2008. She is currently the Senior Civilian Attorney with the Defense Institute for International Legal Studies in Newport, Rhode Island. Click here to read the Insight on Kosovo, ICTY, and International Law .
Insights are electronically published articles produced periodically by the American Society of International Law (ASIL) and written by legal experts on timely issues dealing with international law. They make good supplemental reading assignments for students in international law classes (and are also helpful for your own lecture notes). You can find past Insights on a variety of topics by clicking here.
Hat tip to Sheila Ward at ASIL.
June 10, 2009
The Rule of Law Still in Danger in Fiji - Coup Leaders Continue "Emergency" Regulations
The sad situation for the rule of law continues in Fiji. We have reported previously on developments relating to the Fiji Law Society and lawyers in Fiji. Click here to read that post. We've now just received this news from the East-West Center.
FIJI EMERGENCY REGULATIONS EXTENDED FOR THIRD MONTH:
Decision made after assessing ‘security situation’
WELLINGTON, New Zealand (Radio New Zealand International, June 9, 2009) – Fiji’s interim government has extended public emergency regulations -- including censorship of the country’s media -- for a third month after April’s abrogation of the constitution. Interim government spokesman, Lieutenant Colonel Neumi Leweni, says the decision to prolong the emergency regulations was made by the defence ministry following an assessment of the security situation. Fiji Times online also says this was confirmed in a decree signed by Ratu Josefa Iloilo yesterday. The regulations have been extended for another month. Under the censorship rules, media have been barred from publishing or broadcasting anything negative about the interim government led by Frank Bainimarama, who led a coup against the elected government in December 2006.The emergency regulations were initially introduced by Commodore Bainimarama following the abrogation of the constitution and the sacking of the judiciary.
We have links to other stories about the situation in Fiji.
Click here to read a report about attempts to force the Methodist Church to sach two of its former presidents to supposedly remove "politics" from the church.
Hat tips to the East-West Center, and, more importantly, the brave lawyers and journalists of Fiji who are fighting to restore the rule of law.
Republic of Palau Offers to Accept 17 Guantanamo Bay Detainees
The Republic of Palau has agreed to accept 17 Chinese Muslim detainees now being held at Guantanamo Bay. President Johnson Toribiong said Palau’s decision to accept the temporary resettlement of the detainees “is a humanitarian gesture intended to help them be freed from any further unnecessary incarceration and to restart their lives anew in a normal fashion.” The decision to accept the detainees was made in consultation with Palau's traditional high chiefs. Click here to read the U.S. Diplomatic Note to Palau from U.S. Secretary of State Hillary Clinton, followed by a Press Release from the Republic of Palau Ministry of State.
Palau was previously a U.N. Strategic Trust Territory administered by the United States. It became an independent country in 2004 and has excellent relations with the United States. Palau has received a great deal of money from the United States over the years as well, and there may be additional payments involved here with accepting the detainees in Palau. Associated Press is reporting that "two U.S. officials, who spoke on condition of anonymity, said the U.S. was prepared to give Palau up to $200 million in development, budget support and other assistance in return for accepting the Uighurs and as part of a mutual defense and cooperation treaty that is due to be renegotiated this year."
The new President of Palau, Johnson Toribiong, is a well-respected attorney. He said that he did not know if the United States would actually transfer the detainees to Palau. Click here to read more.
Hat tips to the East-West Center, the Palau Horizon, the Pacific News Center, and Associated Press,
June 8, 2009
U.S. Supreme Court Holds that the Republic of Iraq is No Longer Subject to Suit in U.S. Federal Courts
The U.S. Supreme Court issued its decision today in Republic of Iraq v. Beaty, a case it consolidated with Republic of Iraq v. Simon. Justice Scalia authored the opinion for a unanimous Supreme Court, which reversed the federal appellate court and held that the Republic of Iraq is no longer subject to suit in U.S. federal courts. Here’s the summary of the decision from the U.S. Supreme Court, includinig references to specific pages of the decision. Click here for the U.S. Supreme Court decision itself.
The Foreign Sovereign Immunities Act of 1976 (FSIA) prohibits suits against other countries in American courts, 28 U. S. C. §1604, with certain exceptions. One exception, §1605(a)(7) (now repealed), stripped a foreign state of immunity in any suit arising from certain acts of terrorism that occurred when the state was designated as a sponsor of terrorism under §6(j) of the Export Administration Act of 1979 or §620A of the Foreign Assistance Act of 1961.
Iraq was designated as a sponsor of terrorism in 1990, but in 2003, following the American-led invasion of Iraq, Congress enacted the Emergency Wartime Supplemental Appropriations Act (EWSAA), §1503 of which included a proviso clause (the second in a series of eight) authorizing the President to “make inapplicable with respect to Iraq [§]620A of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported terrorism.” Although President Bush exercised that authority, the D. C. Circuit held in its 2004 Acree decision that the EWSAA did not permit the President to waive §1605(a)(7), and thereby restore Iraq’s sovereign immunity, for claims arising from actions Iraq took while designated as a sponsor of terrorism.
Thereafter, Congress repealed §1605(a)(7) in §1083(b)(1)(A)(iii) of the National Defense Authorization Act for Fiscal Year 2008 (NDAA) and replaced it with a new, roughly similar exception, §1083(a). The NDAA also declared that nothing in EWSAA “ever authorized, directly or indirectly, the making inapplicable of any provision of [the FSIA] or the removal of the jurisdiction of any court” (thus purporting to ratify Acree), §1083(c)(4); and authorized the President to waive “any provision of this section with respect to Iraq” under certain conditions, §1083(d). On the same day the President signed the NDAA into law he also waived all of §1083’s provisions as to Iraq.
Respondents filed these suits against Iraq in early 2003, alleging mistreatment by Iraqi officials during and after the 1991 Gulf War. Under Acree, the courts below refused to dismiss either case on jurisdictional grounds. The D.C. Circuit also rejected Iraq’s alternative argument that even if §1605(a)(7)’s application to it survived the President’s EWSAA waiver, the provision was repealed by NDAA §1083(b)(1)(A)(iii); and that the President had waived NDAA §1083(a)’s new exception with respect to Iraq under his §1083(d) authority. The court held instead that it retained jurisdiction over cases pending against Iraq when the NDAA was enacted.
Held: Iraq is no longer subject to suit in federal court. Pp. 6–17.
(a) The District Court lost jurisdiction over both suits in May 2003, when the President exercised his EWSAA authority to make §1605(a)(7) “inapplicable with respect to Iraq.” Pp. 6–13.
(i) Iraq’s (and the United States’) reading of EWSAA §1503’s second proviso as sweeping in §1605(a)(7)’s terrorism exception to foreign sovereign immunity is straightforward. In the proviso’s terms, the exception is a “provision of law” (indisputably) that “applies to” (strips immunity from) “countries that have supported terrorism” (as designated pursuant to certain statutory provisions). Because he exercised his waiver authority with respect to “all” provisions of law encompassed by the second proviso, his actions made §1605(a)(7) “inapplicable” to Iraq. Pp. 6–7.
(ii) Acree’s resistance to the above construction was based on a sophisticated attempt to construe EWSAA §1503’s second proviso as limiting that section’s principal clause, which authorized suspension of “any provision of the Iraq Sanctions Act of 1990.” While a proviso’s “general office … is to except something from the enacting clause, or to qualify and restrain its generality,” United States v. Morrow, 266 U. S. 531 , another recognized use is “to introduce independent legislation,” id., at 535, which was the function of the proviso here. In any event, §1605(a)(7) falls within the scope of the proviso even accepting the narrower interpretation adopted by the Acree decision. Pp. 7–11.
(iii) Respondents’ other objections to the straightforward interpretation of EWSAA §1503’s proviso are rejected. Pp. 11–12.
(iv) Nothing in the NDAA changes the above analysis. Although NDAA §1083(c)(4) appears to ratify Acree, this Court need not decide whether such a ratification is effective because §1083(d)(1) authorized the President to “waive any provision of this section with respect to Iraq,” and he waived “all” such provisions, including §1083(c)(4). Pp. 12–13.
(b) The Court rejects the argument that §1605(a)(7)’s inapplicability does not bar claims arising from Iraq’s conduct prior to the President’s waiver. In order to exercise jurisdiction over these cases, the District Court had to “apply” §1605(a)(7) with respect to Iraq, but the President’s waiver made that provision “inapplicable.” No retroactivity problem is posed by this construction, if only because the primary conduct by Iraq that forms the basis for these suits actually occurred before §1605(a)(7)’s enactment. Pp. 13–16.
(c) Respondents also argue that EWSAA §1503’s sunset clause—under which “the authorities contained in [that] section” expired in 2005—revived §1605(a)(7) and restored jurisdiction as of the sunset date. But expiration of the §1503 authorities is not the same as cancellation of the effect of the prior valid exercise of those authorities. Pp. 16–17.
Happy World Oceans Day
Pascal Lamy, the Director General of the World Trade Organization (WTO) used the first UN World Oceans Day to note that some species are at risk of extinction due to overfishing and that government subsidies for fisherman are partly to blame. According to Lamy, governments have subsidized the fisheries sector to the tune of $16 billion annually, which keeps more boats on the water and fewer fish in the sea. U.S. Trade Representative Ron Kirk echoed Lamy's statements, saying that the United States is working with the WTO to to create stronger rules against harmful fish subsidies that contribute to overcapacity and overfishing. According to the UN Food and Agricultural Organization (FAO), 80% of the world's fisheries are under pressure due to overfishing and environmental hazards, such as carbon dioxide emissions.
(mew and cgb)