Saturday, July 4, 2009
Thursday, July 2, 2009
The International Law Students Association (which organizes the Philip C. Jessup International Law Moot Court Competition), has posted a five-minute excerpt from the video of the 2009 Final Round: THE CASE CONCERNING "OPERATION PROVIDE SHELTER."
This final round features Universidad de los Andes (Colombia) against the University College London (United Kingdom). The judges on this panel are Justice Bruno Simma (of the International Court of Justice) and law professors Ruth Wedgwood and Jose Alvarez. The video clip shows Top Oralist Sebastian Machado of the World Champion team from Universidad de los Andes (Colombia).
A DVD showing the entire final round is available for purchase from the merchandise page of International Law Students Association website, on which you can buy other Jessup-related items. DVDs are also available for earlier years by clicking here. These DVDs are really essential training tools for any teams competing in Jessup (or in another international law moot court competition).
Here is a link to the DVD excerpt. The link is at http://www.youtube.com/watch?v=b7Kx8jBeyWI:
Hat tip to ILSA. Click here for more information about the International Law Students Association (ILSA) and the Jessup Competition. The problem for the 2010 Jessup Competition will address the right to self-determination and the lawfulness of measures to protect a nation's economic resources.
A New Era for the International Court of Justice
Excerpts from the Landmark Ruling from the Delhi High Court, and a Link to the Full 105-Page Decision
With a big thank you to journalist Rex Wockner of San Diego, we are able to bring you these excerpts and a link to the full text of today's landmark ruling from the Delhi High Court. The court found that India's sodomy law violated sections 14, 15, and 21 of the Indian Constitution.
Here are some excerpts (followed by a link where you can read the entire decision).
Section 377 [of the Indian Penal Code ("IPC")] targets the homosexual community as a class and is motivated by an animus towards this vulnerable class of people. . . .
The criminalisation of private sexual relations between consenting adults absent any evidence of serious harm deems the provision's objective both arbitrary and unreasonable. The state interest "must be legitimate and relevant" for the legislation to be non-arbitrary and must be proportionate towards achieving the state interest. If the objective is irrational, unjust and unfair, necessarily classification will have to be held as unreasonable. The nature of the provision of Section 377 IPC and its purpose is to criminalise private conduct of consenting adults which causes no harm to anyone else. It has no other purpose than to criminalise conduct which fails to conform with the moral or religious views of a section of society. The discrimination severely affects the rights and interests of homosexuals and deeply impairs their dignity. . . .
Section 377 IPC has the effect of viewing all gay men as criminals. When everything associated with homosexuality is treated as bent, queer, repugnant, the whole gay and lesbian community is marked with deviance and perversity. They are subject to extensive prejudice because what they are or what they are perceived to be, not because of what they do. The result is that a significant group of the population is, because of its sexual non-conformity, persecuted, marginalised and turned in on itself. . . .
The inevitable conclusion is that the discrimination caused to MSM [men who have sex with men] and gay community is unfair and unreasonable and, therefore, in breach of Article 14 of the Constitution of India. . . .
We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. . . .
The impugned provision in Section 377 IPC criminalises the acts of sexual minorities particularly men who have sex with men and gay men. It disproportionately impacts them solely on the basis of their sexual orientation. The provision runs counter to the constitutional values and the notion of human dignity which is considered to be the cornerstone of our Constitution. Section 377 IPC in its application to sexual acts of consenting adults in privacy discriminates a section of people solely on the ground of their sexual orientation which is analogous to prohibited ground of sex. A provision of law branding one section of people as criminal based wholly on the State's moral disapproval of that class goes counter to the equality guaranteed under Articles 14 and 15 under any standard of review. . . .
In the present case, the two constitutional rights relied upon i.e. 'right to personal liberty' and 'right to equality' are fundamental human rights which belong to individuals simply by virtue of their humanity, independent of any utilitarian consideration. A Bill of Rights does not 'confer' fundamental human rights. It confirms their existence and accords them protection. . . .
129. The notion of equality in the Indian Constitution flows from the 'Objective Resolution' moved by Pandit Jawaharlal Nehru on December 13, 1946. Nehru, in his speech, moving this Resolution wished that the House should consider the Resolution not in a spirit of narrow legal wording, but rather look at the spirit behind that Resolution. He said, 'Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation's passion . . . .
130. If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of 'inclusiveness'. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as "deviants" or 'different' are not on that score excluded or ostracised.
131. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non- discrimination. This was the 'spirit behind the Resolution' of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.
132. We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality. We allow the writ petition in the above terms.
Click here to read the full decision. Download Delhi High Court Ruling on Penal Code Section 377
Hat tip to Rex Wockner and congratulations to the lawyers in India who brought this case.
The Delhi High Court today reached a long-awaited decision on India's sodomy law. The court "read down" Section 377 of the Indian Penal Code so that it no longer criminalizes sex between consenting adults. Here is further information from a press release issued by the Queer Media Collective (QMC) in India:
Section 377 has been used to criminalise homosexuals in India, and by removing consenting adults from its purview the Delhi High Court has made a powerful statement on the importance of respecting basic human rights of queer people in India.
By making this decision the Delhi High Court has also acted to correct historical injustice. Section 377 of the Indian Penal Code was imposed by the British on the historically tolerant attitudes to sexuality that have always existed in India. The law has continued to exist in India long after the British changed their laws in the UK.
Because this law continued to exist in India thousands of people have suffered harassment, discrimination and blackmail simply because they chose to love someone of their same sex. Lesbian couples have been forced to commit suicide, gay men have been blackmailed and forced into marriages that damage both themselves and their wives, and transgendered people have suffered continual violence - for none of which they have had recourse because under Section 377 they all were criminals just for being who they were. . . .
Now with this decision of the Delhi High Court India has taken the first step towards this much needed change. We call on the Indian government to support this decision. We call on other courts to take note of this judgement. We call on the police to stop any harassment of queer people. And we call on all people, in India and abroad, to welcome this verdict as a victory for basic common sense and basic human rights.
See an additional post on this blog today for a copy of the court decision.
Hat tip to Rex Wockner
The International Criminal Court for Rwanda (ICTR) was established under Chapter VII of the U.N. Charter to try those responsible for the worst crimes committed during the Rwandan genocide in 1994. The ICTR announced today that nine prisoners have been transferred from the U.N. detention facility in Tanzania to the nation of Benin, where the prisoners will serve the remainder of their jail sentences.
The nine convicted criminals – nearly all of whom were given lengthy sentences – are Georges Rutaganda, Gerard Ntakirutimana, Juvenal Kajelijeli, Emmanuel Ndindabahizi, Jean-Bosco Barayagwiza, Aloys Simba, Juvenal Rugambarara, Athanase Seromba and François Karera.
Mr. Rutaganda, Mr. Ndindabahizi, Mr. Seromba and Mr. Karera are all serving life terms for their crimes, while Mr. Kajelijeli was sentenced to 45 years in prison and Mr. Barayagwiza to 32 years. Both Mr. Ntakirutimana and Mr. Simba were given 25-year jail terms, while Mr. Rugambarara is serving an 11-year sentence.
The ICTR was set up by the Security Council in the wake of the genocide, in which an estimated 800,000 ethnic Tutsis and Hutu moderates were killed, mainly by machete, during a period of less than 100 days starting in early April 1994.
Tuesday, June 30, 2009
The U.N. General Assembly today condemned this weekend’s coup d’état in Honduras, calling for the restoration of the democratically-elected President and constitutional Government. President José Manuel Zelaya Rosales was ousted by the military on Sunday, hours before a referendum was slated to be held on changing the Honduran constitution.
The General Assembly resolution was adopted today acclamation. It deplored the coup, which it stated has “interrupted the democratic and constitutional order and the legitimate exercise of power in Honduras.” The resolution – sponsored by Bolivia, Venezuela, Mexico and the United States, among dozens of Member States – also stressed that it will not recognize any Government other than that of Mr. Zelaya’s.
The case that most directly involves international law is Abbott v. Abbott, Docket No. 08-645. This case is a family law matter from Texas involving an interpretation of the Hague Convention on Civil Aspects of International Child Abduction. The issue is whether a "no exeat" order entered by a Chilean court that prohibits one parent from removing the couple's minor child from Chile without the other parent's consent confers "rights of custody" on either parent within the meaning of the Hague Convention. The issue is important because under the Hague Convention, the remedy of the child's return to Chile is only available if there is a violation of custody rights. A noncustodial parent has only a right of access, but not a right to have the child returned to a particular country. In the Abbott case, the U.S. District Court refused to order the return of the child to Chile after the custodial parent (the mother) had removed the child to the United States, despite the fact that the removal from Chile frustrated the noncustodial father's visitation rights and was contrary to the no exeat order of the Chilean court.
A second case that has the potential to raise international law issues is Graham v. Florida, Docket No. 08-7412. The issue in that case is whether the imposition of a life sentence without the possiblity of parole on a juvenile is a violation of the Eighth Amendment's prohibition on cruel and unusual punishment. In past Eighth Amendment cases involving the death penalty, such as Atkins and Roper, the U.S. Supreme Court has looked to foreign and international law to inform its understanding of what constitutes cruel and unusual punishment within the meaning of the Eighth Amendment as part of its determination of "evolving standards of decency." In Graham, the petitioner argued that his life sentence violates international human rights norms, including the International Covenant on Civil and Political Rights. Specifically, Graham argued that only 14 nations officially allow juveniles to be sentenced for life and only 3 nations do so in practice. The Florida State Court agreed that international opinion frowns on the imposition of life sentences on juveniles, but ultimately upheld the sentence out of deference to the Florida legislature.
Program in Los Angeles to Mark the 11th Anniversary of the Rome Treaty of the International Criminal Court
Southwestern Law School in Los Angeles will hold a program on Friday, July 17, 2009, from 4:00 to 7:30 p.m. to mark the eleventh anniversary of the Rome Treaty of the International Criminal Court, which was signed on July 17, 1998. The ICC is the world's first permanent international criminal tribunal. Click here for information about speakers and how to let them know that you plan to attend.
The program is being presented in cooperation with a number of entities, including the American Bar Association Section of International Law, the American Branch of the International Law Association, and the International Criminal Court Alliance.
Hat tips to Yee Wah Chin and T Sean Butler
Click here to see some photos from the Presidential Palace in Honduras on the day following the military coup there. The link is to the slide show on the New York Times webpage. Click here for our earlier post about the coup.
According to a statement released by the United Nations, he plans to highlight key issues such as the need to release all political prisoners, including Nobel Peace Prize laureate and opposition leader Aung San Suu Kyi. The statement also said that the Secretary General believes that the issues of political prisoners, the resumption of dialogue between the Government and opposition to achieve national reconciliation, and setting the stage for credible elections “cannot be left unaddressed at this juncture of the country’s political process.”
Mr. Ban last visited Myanmar last May after the devastating Cyclone Nargis last May. That cyclone killed nearly 150,000 people.
Monday, June 29, 2009
Iran has arrested at least eight members of the British embassy staff in Iran, accusing them of stoking the recent protests against the Iranian elections. (Some news reports put the number arrested at nine.) Specifically, the Iranian Intelligence Minister claims to have video showing that the embassy staffers mingled with the protesters to encourage them. The British government has strongly denied the allegations and demanded their immediate release. Five persons have since been released; the rest are still being interrogated. The European Union has joined with Britian in denouncing Iran's actions. Because the staffers were local hires, they do not enjoy full diplomatic immunity under the Vienna Convention on Diplomatic Relations. The staffers specific titles and positions have not been released. As a result, it is unclear what protection they may be entitled to under international laws of diplomacy. Britian and Iran had already expelled diplomats in tit-for-tat moves last week.
The democratically-elected President of Honduras, Jose Manuel Zelaya, was ousted from the Presidential palace yesterday in a military coup orchestrated by Honduran General Romeo Vasquez. (General Vasquez is a graduate of the infamous "School of the Americas.") The military stormed the Presidential Palace Sunday morning at 5 a.m. The military forced President Zelaya onto a plane that flew to Costa Rica, where he is now. Later on Sunday, the right-wing Honduran Congress voted the head of Congress, Roberto Michelleti, as the new President.
U.N. Secretary General Ban Ki Moon issued a statement about the coup. Here is an excerpt from the U.N. press release:
Secretary-General Ban Ki-moon has expressed his deep concern over the reported coup in Honduras, voicing his strong support for the nation’s democratic institutions and speaking out against the arrest of its constitutional President.
According to media reports, President José Manuel Zelaya Rosales was overthrown yesterday, when a referendum was slated to be held on changing the Honduran constitution.
Mr. Ban “urges the reinstatement of the democratically elected representatives of the country and full respect for human rights, including safeguards for the security of President Zelaya, members of his family and his government,” according to a statement issued yesterday by his spokesperson. He also urged all Hondurans to resolve their difference peacefully and “in the spirit of reconciliation.”
The statement noted that the Secretary-General welcomes the prompt diplomatic efforts undertaken by the Organization of American States (OAS), whose Permanent Council has held a special meeting on the matter.
We also have for you this link to the U.S. State Department Background Briefing on the situation in Honduras. That link gives some insight into negotiations now taking place for an OAS resolution.
The European Humanities University was located in Minsk, Belarus, until the Belorussian dictator Alexander Lukashenko shut it down -- or tried to -- in July 2004. I remember reading about the protest organized by students who simply sat down in front of the building and spent the day reading their books (if they had done more than that they all risked arrest). Lukashenko also threw out all foreign NGOs who were previously working in Belarus, including for example the American Bar Association Rule of Law Initiative (then called the Central and Eastern European Law Initiative).
Instead of closing its doors, the European Humanities University left Belarus and moved to neighboring Lithuania, where they are educating students to lead Belarus afterLukashenko is removed from office(he is sometimes described now as the last dictator in Europe).
A short article (and a short video) talk more about the current situation at the European Humanities University. Click here to read more.
Sunday, June 28, 2009
Professor Elizabeth Burleson of the University of South Dakota has just put up on SSRN her new article that synthesizes the current state of international law on climate change. Click here to read the abstract and download the article. The article is forthcoming in the William and Mary Environmental Law and Policy Review.
This New York Times article is one you might want to use in an international law class or seminar. It would be a good springboard for class discussions on what international law can accomplish, differences between conventional and customary international law, and different national philosophies about international law instruments and the enforcement of international law norms.
President Obama will visit Russia next week, and one of the subjects expected to be discussed there (and again at the U.N. General Assembly in November) is whether there should be a treaty to counter cyberwar attacks that wreak havoc on computers and the Internet.
Russia wants a treaty. The United States thinks a treaty is unnecessary. Click here to read more.
The East-West Center in Honolulu, Hawaii, offers a wide variety of short-term and long-term programs for students, researchers, educators, policy makers, journalists, and professionals. A complete list of programs can be found by clicking here.