Friday, October 30, 2009
The blackmail tactic employed by Eurosceptic Czech President Klaus
proved effective to the extent that EU leaders of the 27 Members States agreed yesterday
that the Lisbon Treaty will be enriched by a new Protocol coming in
addition to the 2007 Protocol no. 30 on the Application of the EU Charter of Fundamental Rights to Poland
and to the United Kingdom.
According to the draft document made available on Euractiv’s website, this new Protocol simply states that Protocol no. 30 “shall apply to the Czech Republic” as well. In order not to reopen the ratification process, it was also decided that this new Protocol will be subject to national ratification procedures at the time of the conclusion of the next Accession Treaty, provided that the Lisbon Treaty enters into force (a roughly similar mechanism was devised in relation to the June 2009 Decision on the concerns of the Irish people on the Treaty of Lisbon: http://www.ejiltalk.org/the-european-unions-lisbon-treaty-some-thoughts-on-the-irish-legal-guarantees/)
The agreement on a new Protocol is somewhat surprising considering that Klaus
“only” demanded that a “footnote” be added to the Lisbon Treaty in order to
guarantee that the EU Charter could not be used against some ancient and
discriminatory Czech laws (the so-called Beneš decrees). This was a plainly ridiculous argument, among
other things, as it has always been
obvious that the EU Charter – or EU law for that matter – poses (unfortunately)
no threat to the Beneš decrees: see
Peer’s analysis. In any case, the solution adopted today goes much further than
that as it offers a full “opt-out” from the EU Charter.
Today’s agreement on the Czech Protocol also
sets an extremely bad precedent as it “rewards” a unilateral attempt by a constitutionally incompetent national authority to renegotiate a treaty previously
agreed and signed by the national government. It might be, however, that this new
Protocol is a small price to pay when considering the length of time and energy
spent on agreeing and ratifying a rather modest set of institutional reforms.
From a legal point of view, it may also be worth emphasizing that Protocol no. 30 does not in fact offer any general “opt-out” regime from the EU Charter of Fundamental Rights. Indeed, Protocol no. 30 rather clarifies “the application of the Charter in relation to the laws and administrative action of Poland and of the United Kingdom and of its justiciability within Poland and within the United Kingdom.” In other words, Protocol no. 30 does not render the Charter wholly inapplicable in the UK/Poland.
A brief look at the two
provisions contained in this Protocol appears to confirm that it was
essentially conceived as a PR exercise, whose main objective was to help the
British government deflecting unprincipled criticism from British tabloids (the
Polish twins only followed suit because of their personal obsession regarding
For instance, by
providing that the EU Charter does not extend the ability of the Court of
Justice, or any court or tribunal of the UK/Poland to find that UK/Polish legal
norms or administrative practices “are
inconsistent with the fundamental rights, freedoms and principles that it
reaffirms,” Article 1(1) merely restates what the Charter already provides.
Indeed, several of its provisions unambiguously indicate that the Charter does
not establish any new power or task for the Union. Article 1(1) does so,
however, in an incredibly awkward manner by referring to the puzzling notion of
“ability” rather than the traditional notion of jurisdiction. On the other
hand, Art 1(1) of the Protocol will not preclude the European Court of Justice
from ruling that UK/Polish legal norms or administrative practices are contrary
to EU fundamental rights which are guaranteed or further developed by other provisions
of EU law. Finally, one may be tempted to argue that there is a subtle
difference between extending the “ability” of the Court of Justice and denying
the “ability” of the Court to act. If one agrees that the Court of Justice
already has the “ability” to scrutinize UK/Polish laws or practices in light of
EU fundamental rights the new reservation obtained by the UK/Poland is rather
Paragraph 2 of Article 1 further states that “for the avoidance of doubt, nothing in Title IV of the Charter [the Solidarity’s title] creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.” This provision seems both superfluous and misleading. First of all, the Charter’s Title IV on Solidarity does not create justiciable rights but lists a series of principles. These principles must guide the legislative action of EU institutions and may guide the European Court of Justice when it has to review the legality of EU legislation. Secondly, the provision will be clearly ineffective with regard to the “solidarity” rights which are already guaranteed on the basis of current provisions of the EC Treaty and have been further developed by several European Regulations and Directives. Those socio-economic rights will continue to be exercised under the conditions and within the limits defined by EU law regardless of the entry into force of the Charter. And, as is well known, any provision of EU law which is clear, precise and unconditional must be given direct effect, i.e. must be justiciable. In other words, Article 1(2) of the Protocol should not be understood as giving the UK/Poland a license not to comply with its other obligations under the EU Treaties and EU law generally. In the situation where the Charter guarantees a solidarity right, which no other legally binding provision of EU law already guarantees or develops (e.g. the right to strike, a right of access to preventive healthcare), one may assume it is because the EU has not been granted the power to legislate in this particular area. The clarification obtained by the UK/Poland then serves no legal purpose since, by definition, the EU does not have the power to transform a “solidarity right” into a justiciable one by issuing more detailed legislation in order to give it a concrete meaning.
to Article 2 of Protocol no. 30, “To the extent that a provision of the Charter refers
to national laws and practices, it shall only apply to Poland or the United
Kingdom to the extent that the rights or principles that it contains are
recognised in the law or practices of Poland or of the United Kingdom.” On
British insistence, when the Charter was finalized in 2000, it was agreed that those
rights for which the EU has little or no competence will be guaranteed “in accordance with in the cases and under
the conditions provided for by Community law and national laws and practices”.
This wording was justified on the ground that it was critical to preserve the
current allocation of powers between the EU and the Member States and the
principle of subsidiarity. In practice, it means, for instance, that the right
to protection against unjustified dismissal, unless further developed by EU
legislation, must be interpreted and implemented in light of national law. The
additional clarification obtained in 2007, therefore and once again, only
restates the obvious.
The new Protocol will, therefore, merely enable the Czech Republic to rely on the “clarifying” and rather futile, if not embarrassing, provisions of Protocol no. 30. President Klaus must be proud. He secured a legally-binding yet meaningless guarantee to answer a non-existing problem. The cost? Serious damage to the Czech Republic’s reputation as a serious and reliable country.Laurent Pech
Following our story from yesterday about the new case filed by Honduras at the International Court of Justice, we have just received this news from the U.S. State Department:
Breakthrough in Honduras
Hillary Rodham Clinton
Secretary of StateIslamabad, PakistanOctober 30, 2009
I'm very pleased to announce that we've had a breakthrough in negotiations in Honduras.
I want to congratulate the people of Honduras as well as President Zelaya and Mr. Micheletti for reaching an historic agreement. I also congratulate Costa Rican President Oscar Arias for the important role he has played in fashioning the San Jose process and the OAS for its role in facilitating the successful round of talks.
As you know, I sent Assistant Secretary Tom Shannon and his deputy Craig Kelly and the White House NSC representative for the Western Hemisphere Dan Ristreppo to Honduras yesterday after speaking with both President Zelaya and Mr. Micheletti last Friday to urge them finally, once and for all to reach an agreement.I cannot think of another example of a country in Latin America that having suffered a rupture of its democratic and constitutional order overcame such a crisis through negotiation and dialogue.
This is a big step forward for the Inter-American system and its commitment to democracy as embodied in the Inter-American Democratic Charter. I'm very proud that I was part of the process, that the United States was instrumental in the process. But I'm mostly proud of the people of Honduras who have worked very hard to have this matter resolved peacefully.
We're looking forward to the elections that will be held on November 29, and working with the people and government of Honduras to realize the full return of democracy and a better future for the Honduran people.
Thursday, October 29, 2009
Yesterday, Honduras filed an application instituting proceedings at the International Court of Justice against Brazil alleging that Brazil is unlawfully interfering in matters that are essentially within the domestic jurisdiction of Honduras. More specifically, Honduras alleges that Brazil has been housing Mr. Zelaya, President of Honduras until his removal by the military in June 2009, in the Brazilian embassy in Tegucigalpa since September. Honduras further alleges that Brazil is allowing Zelaya and his followers to use the embassy as a platform to spread political propaganda that threatens the peace in Honduras, at a time when Honduras in preparing for presidential elections on November 29, 2009. The application also claims that the Brazilian embassy staff are allowing Mr. Zelaya to use the embassy premises and resources to evade the jurisdiction of the Brazilian authorities. Honduras requests that the Court find that Brazil does not have the right to allow the embassy premises to be used by Honduran citizens for illegal activities in violation of Article 2(7) of the United Nations Charter regarding the principle of nonintervention in the domestic affairs of another State and in violation of the 1961 Vienna Convention on Diplomatic Relations. Honduras has reserved the right to ask for provisional measures as well as damages for breach of Brazil's interntional obligations.
Wednesday, October 28, 2009
The International Court of Justice (ICJ) has announced that its President, H. E. Judge Hisashi Owada, will present the Report of the Court for the period from 1 August 2008 to 31 July 2009 to the United Nations General Assembly on Thursday 29 October 2009. President Owada’s address is due to start at 3 p.m. (EST). The address will be webcast live (and later on demand) on the website of the United Nations at www.un.org/webcast. The text of President Owada's address and the full written annual report will also be available beginning Friday, Oct. 30 on the ICJ website at www.icj-cij.org.
The Wall Street Journal reports this morning that a French court has found the Church of Scientology guilty of fraud and fined it 600,000 Euros ($890,000). The WSJ cites the plaintiff's lawyer (Olivier Morice) as saying that the ruling marks the first time that a court has held the Church of Scientology responsible for its fundraising methods. See Max Colchester, Paris Scientology Center Is Found Guilty of Fraud, Wall St. J., O. 28, 2009, at A16.
Tuesday, October 27, 2009
We received the following press release from the United Nations concerning the last judgment to be handed down the by Special Court for Sierra Leone in the nation of Sierra Leone. The trial of Charles Taylor continues, but in the Hague (in the same building as the International Criminal Court). Here is the press release:
The United Nations-backed Special Court for Sierra Leone upheld the convictions and sentences passed on three former rebels in the last judgment by the tribunal to be handed down in the West African nation.
The three former leaders of the rebel Revolutionary United Front (RUF) were convicted earlier this year for atrocities committed during Sierra Leone’s decade-long civil war.
The charges include forced marriage as a crime against humanity and attacks against UN peacekeepers – the first time that an international criminal tribunal has entered guilty verdicts for both charges.
The Court – which is based in the capital, Freetown – dismissed all the appeals of the defendants, except one regarding Augustine Gbao for the charge of collective punishment, which has been overturned. He will still have to serve the 25-year sentence originally imposed on him.
The other defendants, Issa Sesay and Morris Kallon, will serve 52 years and 40 years, respectively.
The acting Prosecutor of the Court, Joseph Kamara, welcomed today’s judgment, calling it “a final condemnation of one of the most brutal and notorious rebel groups in modern times.
“This judgment sends a signal that such tactics of warfare will not go unpunished. It may act as a deterrent against those who would use this strategy to further their own aims at the expense of the innocent,” he added in a news release.
With today’s judgment, the Court’s trial proceedings in Sierra Leone now complete. It has now delivered final judgements in all three of its Freetown-based trials, with eight accused persons convicted.
The remaining trial, involving former Liberian president Charles Taylor, is continuing at The Hague, where it was moved for security reasons.
The Special Court is an independent tribunal established jointly by the Sierra Leonean Government and the UN in 2002. It is mandated to try those who bear the greatest responsibility for atrocities committed in Sierra Leone after 30 November 1996.
The American Bar Association Section of International Law opened its Fall Meeting today in Miami, Florida. The fall and spring meetings of the section are its most important (and best attended) events of the year. Visit the section website for more information.
From our friends at George Washington University Scool of Law in Washington, D.C. . . .
The George Washington University International Law Review is now accepting submissions of book reviews for publication in Volumes 41 and 42. Book reviews should be written on a recent or forthcoming book discussing a timely issue in international law. Word count should not exceed 9000 words. Submissions must be in Microsoft Word (.doc) format and include a copy of the book-review author's curriculum vitae.
Please send submissions and any inquiries to Dana Parsons at dparsons [at] law.gwu.edu
Monday, October 26, 2009
Saudi Court Orders 60 Lashes for 22-Year-Old Female Journalist; King Abdullah Waives the Sentence After Intense International Media Attention
The Associated Press reported that a court in Jedda, Saudi Arabia sentenced Rozanna al-Yami, a 22-year-old female journalist, to 60 lashes after she was charged with promoting a television program in which a Saudi man talked about sex. Ms. Yami said that she had worked as a coordinator for the program "Bold Red Line" but had not worked on this particular episode. See 60 Lashes Ordered for Saudi Woman, N.Y. Times, Oct. 25, 2009, sec. 1, at 11. The prosecutor in that case had called for even harsher punishment. Click here to a link to Arab News (Middle East English Language Daily).
The man in that television show, Mazen Abdul-Jawad, was a divorced Saudi father of four children. He was sentenced to five years in prison and 1,000 lashes. He had described having an active sex life and showed sex toys, which the station blurred. The New York Times said that the program "scandalized this conservative country."
Three other men who appeared on the show were also convicted of discussing sex publicly and were reportedly sentenced to two years imprisonment and 300 lashes each.
The program in question was broadcast in July on the Lebanese Satellite Channel LBC. The Saudi government also closed down LBC's two offices in Saudi Arabia.
About 8 hours ago there were reports that King Abdullah had waived the sentence of 60 lashes. In November 2007, King Abdullah had waived a flogging sentence of 90 lashes that was imposed upon a rape victim who was alone in a car with an unrelated man shortly before the two were attacked.
Pace Law School has announced that it is sponsoring a symposium on Comparative Constitutional Law entitled "National Security Across the Globe" in conjunction with the Blaine Sloan Lecture on International Law: "After Gitmo: Obama Grapples with Preventive Detention." Scott Horton of Harper's Magazine is the keynote speaker. The symposium will be held on November 13, 2009. It is a day long discussion on the legal issues faced by various nations which must balance constitutional and civil rights with national security needs. The symposium will be comprised of a series of panel discussions and short lectures throughout the day. Participation in the symposium may entitle the attendee to six CLE credits. For more information and to register, click here.
As expected, Radavan Karadzic did not appear today at the opening of his trial at the International Criminal Tribunal for the Former Yugoslavia. Last week he requested a 10-month delay, claiming a need for additional time to prepare a defense to the 11 charges against him.
Michael Scharf (Case Western Reserve School of Law) has shared with us a link to a National Public Radio program that previews the trial. The program features Karadzic's lawyer (Peter Robinson), Mike Newton (who wrote "Enemy of the State" with Professor Scharf), and Michael Sharf. Click here.
Hat tip to Michael P. Scharf, the John Deaver Drinko-Baker & Hostetler Professor of Law and Director of the Frederick K. Cox International Law Center at the Case Western Reserve University School of Law
Here's some news from Majuro, capital of the Pacific island nation of Republic of the Marshall Islands. There is a new head of state. He is Jurelang Zedkaia, who was chosen on October 26, 2009 to replace former President Litokwa Tomeing, who lost a vote of confidence last Wednesday.
President Zedkaia was chosen by a 17-15 vote of the Nitjela (the parliament). He was the Nitijela Speaker and Iroij (traditional chief). He was Majuro senator and had been speaker of the parliament for less than two years. President Zedkaia was chosen over Kessai Note, who had previously served as RMI President from 2000 to 2007. Note had "led the charge in the No Confidence Vote against Tomeing."
Hat tip to the East-West Center in Honolulu.
Sunday, October 25, 2009
Over the weekend, several international law scholars made excellent and thought-provoking presentations on their current work at the Central States Law Schools Association (CSLSA) Conference at Capital Law School in Columbus, Ohio. Gregory Gordon, from the University of North Dakota Law School, spoke about the need for international criminal tribunals to adopt a clearer test for the crime of incitement. Allen Blair, from Hamline University Law School, proposed that adopting uniform interpretive methodologies will bring more use of the Convention on the International Sale of Goods, rather than focusing on uniform interpretive outcomes. Milena Sterio, of Cleveland-Marshall College of Law, posited that the international community needs to take piracy more seriously because pirates are sea-terrorists and may aid other terrorists by their acts, such as by supplying weapons seized from ships. This author, Cindy Buys of Southern Illinois University School of Law, suggested lessons for the current treatment of detainees rounded up in the fight against terrorism that can be learned from the story of Frederich Nottebohm, who was brought to the United States from Guatemala and interned here as an alien enemy during World War II. Many of these works can be found on the authors' SSRN and Bepress pages. Congrats to Danshera Cords and all the officers of CSLSA for a great conference.
The trial of Radovan Karadžić begins tomorrow (October 26, 2009) at the International Criminal Tribunal for the Former Yugoslavia (ICTY). He is not expected to attend on this first day (complaining that he has not had sufficient time or resources to prepare a defense). Here are some details about the charges against him (from the website of the ICTY):
The trial of Radovan Karadžić is scheduled to begin on Monday, 26 October 2009 at 9:00, in Courtroom I.
Karadžić, former President of Republika Srpska, head of the Serb Democratic Party (SDS) and Supreme Commander of the Bosnian Serb Army (VRS), is one of the highest ranking officials to be indicted by the Tribunal.
He is charged with two counts of genocide and a multitude of other crimes committed against Bosnian Muslim, Bosnian Croat and other non-Serb civilians in Bosnia and Herzegovina during the 1992-1995 war.
The indictment alleges that Karadžić committed genocide when forces under his command killed non-Serbs during and after attacks on towns in more than a dozen Bosnian municipalities in the early stages of the war. After these attacks, Bosnian Serb forces rounded up tens of thousands of non-Serbs and transferred them to more than 20 detention facilities. The indictment alleges that forces under Karadžić’s command tortured, mistreated, sexually assaulted and killed non-Serbs in these camps.
Karadžić also stands accused of genocide for the murder of more than 7,000 Bosnian Muslim men in Srebrenica in July 1995. The indictment states that on 8 March 1995, Karadžić instructed Bosnian Serb forces under his command to create an unbearable situation of total insecurity with no hope of further survival for the inhabitants of Srebrenica, amongst other places.
The indictment also charges Karadžić with responsibility for a protracted campaign of shelling and sniping of civilian areas of Sarajevo, killing and wounding thousands of civilians, including children and the elderly during the 44-month siege of the capital city.
The Prosecution alleges that Karadžić committed all of these crimes together with other members of a joint criminal enterprise with the aim to permanently remove Bosnian Muslim and Bosnian Croat inhabitants from the territories claimed to be a part of the so-called Serbian Republic.
Among other members of this criminal enterprise were Momčilo Krajišnik, Ratko Mladić, Slobodan Milošević, Biljana Plavšić, Nikola Koljević, Mićo Stanišić, Momčilo Mandić, Jovica Stanišić, Franko Simatović, Željko Ražnatović aka “Arkan” and Vojislav Šešelj.
Karadžić’s initial indictment was confirmed on 25 July 1995. He was arrested on 21 July 2008 in Serbia and transferred to the Tribunal, after more than 13 years on the run.
Since its inception 16 years ago, the Tribunal has indicted 161 persons for war crimes committed on the territory of the former Yugoslavia. The proceedings against 120 individuals have been completed.
Proceedings are currently open for 41 accused with 24 at trial stage, seven awaiting trial judgement and 14 before the Appeals chamber. Zdravko Tolimir is the only remaining Accused in custody, awaiting the commencement of trial. Two accused, Ratko Mladić and Goran Hadžić, are at large awaiting arrest and transfer to The Hague for trial.