November 20, 2009
ASIL Explains the Current ICJ Litigation Between Germany and Italy
The American Society of International Law publishes a series of short articles to explain current issues in international law. The latest is "Germany Sues Italy at the International Court of Justice on Foreign Sovereign Immunity – Legal Underpinnings and Implications for U.S. Law." Click here to read it.
Hat tip to Sheila Ward.
Election Results for EU President and High Representative for Foreign Affairs and Security Policy
Baroness Catherine Ashton of the United Kingdom was elected as the first EU High Representative for Foreign Affairs and Security Policy.
November 19, 2009
World Toilet Day
OK, we don't make these things up. The UN has designated World Toilet Day. The underlying idea is sound (about providing proper sanitation for prisoners and others) but gosh, I think they need a new name for this day. Then again, it would make for an interesting line of greeting cards. Here's the press release from the UN.
The United Nations today marked World Toilet Day, stressing access to proper sanitation as a human right due to all, with a particular focus on “forgotten” prisoners and detainees in state institutions.
“With 2.5 billion people worldwide without access to proper sanitation, which leads to 1.8 million deaths a year, access to sanitation itself is clearly a human rights issue,” three UN human rights experts – on water and sanitation, health, and torture – said in a joint statement.
“States must ensure that everyone, including people in detention, have access to safe sanitation. Without it, detention conditions are inhumane, and contrary to the basic human dignity which underpins all human rights,” they added.
The Special Rapporteur on torture and other forms of cruel, inhuman or degrading treatment, Manfred Nowak, noted that in too many places detainees in prisons, migrant detention centers, juvenile institutions, psychiatric hospitals and other State-run institutions, are forgotten. “The conditions of detention in these places are frequently dismal, including a complete lack of access to sanitation,” he said.
Independent Expert on human rights related to safe drinking water and sanitation Catarina de Albuquerque called access to sanitation fundamental for a life in dignity to which all people are entitled. “The State has a particular obligation to ensure fulfillment of this right for all those held in detention, whether legitimate or not. Even those convicted of heinous crimes must enjoy such basic rights,” she said.
Anand Grover, the Special Rapporteur on the right to the highest attainable standard of health, stressed that unsanitary conditions, especially human contact with fecal matter, directly cause many diseases rife in places of detention. “This denial of the right to health is as unacceptable as other forms of cruel and inhuman treatment,” he said.
Mr. Nowak noted that in his country visits he has found that detainees are forced to defecate into plastic bags due to lack of functioning toilets or latrines. In other cases, prisoners use buckets, which they must ‘slop out’ themselves every morning, with no opportunity to protect hygiene and cleanliness.
“In situations of overcrowding, which is all too often the case, people must defecate in front of other prisoners,” he said. “It is impossible for detainees to maintain their dignity in such demeaning circumstances.”
Although people think detainees are either criminals or political prisoners, most are ordinary people from the poorest, most disadvantaged sectors of society, including children deprived of a family environment, persons with disabilities, drug users, foreigners and members of ethnic and religious minorities or indigenous communities, the experts stressed.
“International human rights law demands that all persons deprived of their liberty be treated with humanity and with respect for the inherent dignity of the human person,” they said, noting that “sanitation itself is increasingly recognized as a human right, which should be enjoyed without discrimination, in all settings, including detention.”
EU’s New “President” and “Foreign Minister” finally appointedThe 27 EU Heads of State and Government, after much horse-trading, have finally unanimously agreed on two names: The Belgian prime minister Herman Van Rompuy has been appointed as the first ever permanent EU “President” while Baroness Cathy Ashton, currently EU Trade Commissioner, has been appointed as the EU’s “Foreign Minister.”
The creation of the posts of President of the European Council and High Representative of the Union for Foreign Affairs and Security Policy is one of the 2007 Lisbon Treaty’s main institutional innovations. Yet a quick look at the Treaty makes one wonder if journalists have not given too much importance to the EU “top jobs” race.
the powers and responsibilities of these two new figures are rather limited.
And according to Article 18 of the EU Treaty, again as amended by the Lisbon Treaty, the High Representative is (a) to conduct the EU’s foreign and security policy and the EU’s defence policy, as mandated by the Council (i.e. the Member States), (b) to represent the Union in political dialogue with third countries and (c) to express the Union’s position in international organizations.
History will tell whether
those now arguing that “the
EU will soon have a president and a foreign minister, comparable in
world affairs with the president and the secretary of state in the
USA,” were prescient or guilty of wishful thinking.
New WTO Appellate Body Member Sworn In
Mr. Peter Van den Bossche (European Communities) was sworn in as the newest member of the World Trade Organization (WTO) Appellate Body today. He takes the place of Mr. Sacerdoti who is stepping down after eight years of service to the WTO. Mr. Van den Bossche is a Professor of International Trade at the University of Maastricht, Amsterdam. From 1997 to 2001, he was Counsellor to the Appellate Body of the WTO and in 2001, he served as Acting Director of the Appellate Body Secretariat.
The WTO Appellate Body is responsible for hearing appeals from WTO dispute settlement panels. The Appellate Body has seven members who are appointed by the WTO Dispute Settlement Body for four-year terms. The members must be persons of recognized authority with demonstrated expertise in law and international trade. They also must not be affiliated with any government and must broadly represent the membership of the WTO.
November 18, 2009
U.N. Security Council Extends the EU Stabilization Force in Bosnia and Herzigovina for Another YearThe United Nations Security Council today extended for another year the European Union stabilization force (EUFOR) entrusted with ensuring continued compliance by all sides in Bosnia and Herzegovina with the 1995 Dayton Peace Agreement that ended the ethnic war there.
In a unanimous resolution adopted a day after a UN human rights expert reported that political disputes were still impeding the return of over 117,000 people displaced by the fighting, the 15-member body stressed that “a comprehensive and coordinated return of refugees and displaced persons throughout the region continues to be crucial to lasting peace.”
EUFOR assumed peacekeeping responsibilities in 2004 from a stabilization force led by the North Atlantic Treaty Organization (NATO) and the resolution welcomed the EU’s increased engagement in Bosnia and Herzegovina as well as NATO’s continued engagement.
“The primary responsibility for the further successful implementation of the Peace Agreement lies with the authorities in Bosnia and Herzegovina themselves,” the Council said, stressing that the continued willingness of the international community and major donors to help politically, militarily and economically in reconstruction efforts depended on the parties’ compliance.
It authorized Member States to take all measures to defend the EUFOR and NATO presence and to assist both organizations in carrying out their missions. It also recognized the right of both EUFOR and the NATO presence to defend themselves from attack or threat of attack.
The Council also underlined the need for the parties’ full cooperation with the International Criminal Tribunal for the former Yugoslavia (ICTY), which is trying the alleged perpetrators of the Balkan conflicts of the 1990s on charges of war crimes, including genocide and crimes against humanity.
November 17, 2009
U.S. Announces it will participate in ICC Conference
The United States has taken a first step toward reengagement with the International Criminal Court (ICC). U.S. Ambassador-at-Large for War Crimes Issues Stephen Rapp annnounced yesterday in Nairobi, Kenya that the U.S. would participate as an observer in the Eighth Session of the ICC's Assembly of States from November 18-26 in The Hague. This will be the first time the U.S. has participated in ICC meetings since 2001. According to a press release by the United Nations Association (UNA):
"State Department Spokesman Ian Kelly confirmed the decision and specified that "there will be an interagency delegation comprising of State Department and Defense Department officials, which will allow us to advance, use and engage all the delegations in various matters of interest to the U.S." This week's session is an important preparatory meeting for next year's Review Conference which will deal with important issues of interest to the US, including possible amendments dealing with war crimes and activating the Court's jurisdiction over the crime of aggression. If the US had not decided to attend, it would have missed out on an important opportunity to share its views and shape the agenda for the Review Conference."
Albania moves one step closer to EU membership
The European Union (EU) Foreign Ministers voted yesterday in favor of Albania's request for official candidate status, following a similar vote by the 27 EU ambassadors at a meeting in Brussels last week. Next, the European Commission must decide whether Albania is ready to begin membership talks. Some of the concerns to be addressed are corruption, drug trafficking, organized crime and money laundering, as well as the need for a more independent judiciary and freedom of the press. Membership negotiations are likely to take several years and will require substantial economic and political reforms.
U.S. Judge Has Harsh Words for Nicaraguan Court System
Recently, U.S. District Court Judge Huck of the Southern District for Florida rejected an action to enforce a $97 million judgment against Dow Chemical Co. and Dole Food Co. obtained from a Nicaraguan court in the case of Sanchez Osorio v. Dole Food Co., S.D. Fla., No. 07-22693-CIV (10/20/09). The suit had been filed by 150 Nicaraguan agricultural workers who alleged that their exposure to the pesticide dibromochloropropane left them sterile. In reaching its decision, the District Court had unusally strong words about the lack of due process and independence in Nicaraguan courts. The Court described the special Nicaraguan law enacted specifically for plaintiffs' claims as providing: "disparate treatment of defendants [which] is fatally unfair and discriminatory, fails to provide the minimum level of due process to which all foreign defendants are entitled, and is, therefore, incompatible with the requirements of due process of law under theunder the Florida Recognition Act." The Court further held that the legal regime set up by Nicaraguan law in this case "does not comport with the “basic fairness” that the “international concept of due process” requires. . . It does not even come close. “Civilized nations” do not typically require defendants to pay out millions of dollars without proof that they are responsible for the alleged injuries. . .Civilized nations do not target and discriminate against a handful of foreign companies and subject them to minimum damages so dramatically out of proportion with damage awards against resident defendants.” In conclusion, the Court stated: The evidence before the Court is that the judgment in this case did not arise out of proceedings that comported with the international concept of due process. It arose out of proceedings that the Nicaraguan trial court did not have jurisdiction to conduct. During those proceedings, the court applied a law that unfairly discriminates against a handful of foreign defendants with extraordinary procedures and presumptions found nowhere else in Nicaraguan law. . .As a result, the law under which this case was tried stripped Defendants of their basic right in any adversarial proceeding to produce evidence in their favor and rebut the plaintiffs' claims. Finally, the judgment was rendered under a system in which political strongmen exert their control over a weak and corrupt judiciary, such that Nicaragua does not posses a “system of jurisprudence likely to secure an impartial administration of justice.”
Special Court for Sierra Leone
The Special Court for Sierra Leone transferred its detention center to the Sierra Leone National Prison Service this week. The handover of the detention center in Freetown is the latest step in the completion of the mandate of the Special Court for Sierra Leone, which delivered its last judgment inside the country in October. Last month, the eight prisoners convicted and held by the SCSL were transferred to Rwanda to serve their sentences. The remaining trial, involving former Liberian president Charles Taylor, continues at The Hague, where it was moved for security reasons. That trial is taking place in the same building as the International Criminal Court.
The Special Court for Sierra Leone 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.
Pascal Lamy Sees Opportunities at the Upcoming WTO Ministerial Conference
In his report to the General Council on 17 November 2009, WTO Director-General Pascal Lamy said that the upcoming WTO Ministerial Conference would not be a negotiating session but would be “a platform for ministers to review the functioning of this house,” including the Doha Round, and an occasion “to send a number of strong signals to the world with respect to the entire WTO waterfront of issues - from monitoring and surveillance to disputes, accessions, Aid for Trade, technical assistance and international governance." Click here to read more.
November 16, 2009
The United States, International Law and the Struggle Against Terrorism
Pace Law School Professor of Law, Thomas McDonnell, has just published a timely new book entitled, "The United States, International Law, and the Struggle Against Terrorism." The book discusses a variety of critical legal issues that arise out of the United States' response to international terrorism. It analyzes actions taken by the Bush Administration during the "war on terror" for compliance with international law. Different chapters highlight specific topics of interest such as torture, indefinite detention, habeas corpus, the right to a fair trial, racial profiling, and the conflicts in Iraq and Afghanistan. Professor McDonnell addresses the tension that all modern democracies face in trying to balance national security with respect for individual rights and demonstrates why the United States' responses to terrorism thus far must be rejected and new approaches adopted that are consistent with international law.
The book is published by Routledge. For more information or to order the book, click here.
The Somali Government and the African Union force in the country need more help on land to fight piracy in the waters, Secretary-General Ban Ki-moon says in a new report to the U.N. Security Council. Mr. Ban noted that the expanding maritime presence by Member States is playing a critical role in stabilizing the situation in the Gulf of Aden. But at the same time, he calls for an integrated approach that would strengthen the capacities of the Somali Transitional Federal Government (TFG) and the African Union Mission in Somalia (AMISOM) on land. The approach should include further development of law and security institutions to complement the ongoing peace process in the strife-torn nation, including for the investigation and prosecution of those suspected of acts of piracy and armed robbery at sea.
(Adapted from a UN Press Release)
(Adapted from a UN Press Release)
Space and Telecommunications Law Conference (in Washington DC)
The American Branch of the International Law Association (ABILA) is cosponsoring the University of Nebraska College of Law's Second Annual Space and Telecommunications Law Conference on November 19-20, 2009. The theme for this year's conference is "Space, Telecommunications, & Cyber Law in the Transatlantic Arena: Comparison, Competition, & Cooperation."
This conference will be held at the Washington Court Hotel, 525 New Jersey Avenue in Washington, D.C.The first day of the conference (Nov. 19) will focus on telecommunications law issues and the second day of the conference (Nov. 20) will focus on space law.
For more information, contact Virginia Uzendoski (vuzendoski2 [at] unl.edu)
Hat tip to Houston Putnam Lowry