Wednesday, June 30, 2010
The United Nations (UN) General Assembly and the Security Council have elected Ms. Xue Hanqin of China to be the newest member of the International Court of Justice (ICJ). Ms. Hanqui succeeds Mr. Shi Jiuyong of China, who resigned on May 28, and will complete his term which ends in February 2012. Ms. Hanqin was educated both in China at Beijing University and at Columbia University School of Law in New York. She has a distinguished career in international law as an ambassador, academic, member of the UN International Law Commission and state representative in many treaty negotiations. More information can be found on the ICJ website.
In her testimony before the Senate Judiciary Committee yesterday, Senator Charles Grassley asked U.S. Supreme Court nominee Elena Kagan about her views on the role of foreign law in interpreting the U.S. Constitution. Ms. Kagan responded in an unsurprising and very appropriate manner that foreign law is useful "for getting good ideas" when interpreting the Constitution, but of course is not binding on the Court.
Tuesday, June 29, 2010
JMLS Professor William Mock Takes Over as Chair of ISBA Section Council on International and Immigration Law
At the annual meeting of the Illinois State Bar Association (ISBA) on Saturday, law professor Bill Mock from the John Marshall Law School in Chicago became the new Chair of the International and Immigration Law Section Council of the ISBA. In recent years, this Section Council has sponsored several continuing legal education programs on various aspects of international and immigration law, has regularly published a high quality newsletter called The Globe, and has done important legal reform work on implementation of treaty obligations such as the World Trade Organization Agreement, the Vienna Convention on Consular Relations, and the Convention the Elimination of Discrimination Against Women. Kudos to Bill and best wishes for a great year ahead!
Monday, June 28, 2010
In honor of the start of confirmation hearings today for U.S. Supreme Court nominee, Elena Kagan, this post rounds up what we know or think we know about Elena Kagan's views on the role of international law in the U.S. legal system.
A search of her scholarship available electronically did not reveal any discussion of international and foreign law principles. However, she did make a couple of relevant statements when being confirmed as as U.S. Solicitor General and as Harvard Law School Dean.
When being confirmed as U.S. Solicitor General in 2009, Elena Kagan was asked: "In your view, is it ever proper for judges to rely on contemporary foreign or international laws or decisions in determining the meaning of provisions of the Constitution?" Ms. Kagan replied:"This set of questions appears different when viewed from the perspective of an advocate than when viewed from the perspective of a judge. At least some members of the Court find foreign law relevant in at least some contexts. When this is the case, I think the Solicitor General’s office should offer reasonable foreign law arguments to attract these Justices’ support for the positions that the office is taking. Even the Justices most sympathetic to the use of foreign law would agree that the degree of its relevance depends on the constitutional provision at issue. A number of the Justices have considered foreign law in the Eighth Amendment context, where the Court’s inquiry often focuses on “evolving standards of decency” and then on the level of consensus favoring or disfavoring certain practices. By contrast, none of the Justices relied on other nations’ restrictions on gun rights in their opinions in District of Columbia v. Heller, 554 U.S. ___ (2008), and the grounded historical approach adopted in that case (and echoed even in the dissents) would grant no relevance to arguments from comparative law in defining the scope of the Second Amendment right."
In reponse to a later question regarding whether international law prohibits federal and state governments from broadening the application of the death penalty, she replied:
"I do not believe that international law (assuming it has not been incorporated into domestic federal law) can prevent federal and state governments from broadening the application of the death penalty should they wish to do so. In a case like Kennedy v. Louisiana, 128 S. Ct. 2641 (2008) [finding use of the death penalty unconstitutional for rape], the appropriate question is whether the Eighth Amendment of the U.S. Constitution forbids the application of the death penalty to a particular kind of crime, not whether international law does so."
Finally, as dean at Harvard Law School, Elena Kagan was in charge of some major curricular reforms, which included a much greater emphasis on the teaching of international and comparative law, including a required international and comparative law course in the first year curriculum. Interestingly, while some knowledge of international law is now required at Harvard, students are not required to study U.S. constitutional law to receive their JD degree. Harvard's graduation requirements may be found here.
Thus, as Dean, Elena Kagan encouraged law students to gain more exposure to international and comparative law. But, as Solicitor General, she behaved in a politically saavy manner, and confined her statements to reviewing how the Supreme Court has already used international and foreign law in its Eighth Amendment jurisprudence. Her own personal views may thus be more open to influence by an international or comparative perspective, but she also has demonstrated the ability and willingness to defend her clients position when arguing the government's cases before the Court.
The Obama Administration has not been particularly supportive of free trade agreements, but that may have changed with at least the proposed free trade agreement between the United States and South Korea. The news comes after the G20 meeting in Canada. The next G20 meeting will be in South Korea in November. Not surprising, the Obama administration said that it hopes to wrap up a renegotiation of the KORUS FTA by the time of that meeting in South Korea.
In the words of the Wall Street Journal, voters in Kyrgyzstan "decisively endorsed" yesterday a new constitution for that country, reducing the previously autocratic power of the chief executive. Here is a U.N. Press Release about yesterday's vote:
U.N. Secretary-General Ban Ki-moon and his special envoy for Kyrgyzstan have welcomed the peaceful and orderly conduct of the constitutional referendum held yesterday in the Central Asian nation, noting the good turnout for the poll despite the recent violence.
Miroslav Jenca, who is head of the UN Regional Centre for Preventive Diplomacy for Central Asia ("UNRCCA"), was in Kyrgyzstan during the vote, which was held in the wake of the clashes between ethnic Kyrgyz and Uzbeks that erupted in the southern cities of Osh and Jalalabad and other towns earlier this month.
The violence displaced at least 300,000 people within Kyrgyzstan and sent an estimated 100,000 others across the border to neighbouring Uzbekistan. Many of the refugees and internally displaced persons (IDPs) have reportedly begun to return to their places of origin last week.
The recent clashes are the latest unrest to hit the country following the violent uprising in April that ousted former president Kurmanbek Bakiyev.
At a meeting with Interim President Rosa Otunbayeva, Mr. Jenca appreciated that the referendum was conducted “smoothly and without major incidents in such difficult conditions,” according to a statement released to the press.
He took note of the preliminary assessment of international and local observers who have stated that despite certain shortcomings the process was largely transparent.
Sunday, June 27, 2010
A United Nations human rights working group has urged Member States to back a global pact aimed at protecting people from enforced disappearances that is just two ratifications shy of the number needed to bring it into force.
The International Convention on the Protection of All Persons from Enforced Disappearances, which was adopted by the General Assembly in 2006, has been signed by 83 countries and ratified by 18 so far.
The UN Working Group on Enforced or Involuntary Disappearance wrapped up its latest session today, which took place in Bosnia and Herzegovina, by calling on “all other States to ratify the convention and accept the State and individual complaint process under the convention.”
The treaty defines an enforced disappearance as the arrest, detention, abduction or other form of deprivation of liberty by the State followed by a refusal to acknowledge the deprivation of liberty or the concealment of the whereabouts of the disappeared person.
The working group also called on the UN to proclaim 30 August as the International Day of the Disappeared.
During its current session, which began on Tuesday, the working group examined 10 cases reported under its urgent action procedure, as well as 170 newly submitted cases of enforced disappearances and information on previously accepted cases.
“Enforced disappearances remain a global problem,” said Jeremy Sarkin, the group’s Chairman and Rapporteur. “Cases continue to be reported from all corners of the world. The fact that so many cases are reported under our urgent action procedure, that allows cases to be dealt with swiftly where they have occurred within 90 days of being reported, indicates that more needs to be done by all stakeholders to prevent and eradicate the practice.”
Since its creation in 1980, the working group – which aims to assist families in determining the fate and whereabouts of disappeared relatives – has dealt with more than 50,000 cases in 80 countries. By opening channels of communication between the families and governments concerned, it seeks to ensure that individual cases are investigated and to clarify the whereabouts of persons who having disappeared
The working group continues to address cases of disappearances until they are resolved. Its five expert members serve in their individual capacities, and not as representatives of their governments.
This week the experts reviewed cases dealing with Bahrain, Bangladesh, Chile, China, Colombia, the Democratic People’s Republic of Korea (DPRK), the Dominican Republic, Ecuador, Egypt, Georgia, Greece, India, Iraq, Libya, Morocco, Myanmar, Pakistan, Russia, Rwanda, Sudan, Syria, the United Arab Emirates (UAE), Ukraine, Uruguay, Venezuela and Yemen.
The current members of the working group are: Mr. Sarkin, of South Africa; Santiago Corcuera, of Mexico; Jasminka Dzumhur, of Bosnia and Herzegovina; Olivier de Frouville, of France; and Osman El-Hajjé, of Lebanon.
(From a UN Press Release)
The United Nations Office on Drugs and Crime (UNODC) and Kenya, the country currently holding the highest number of piracy suspects, this week opened a new high-security courtroom to try suspects in the port town of Mombasa. The new courtroom – intended to increase trial efficiency in the system and provide a secure, modern environment suitable for piracy cases – was built by UNODC’s Counter-Piracy Programme with contributions from Australia, Canada, the European Union (EU), France, Germany and the United States. It is designed to hear cases of maritime piracy and other serious criminal offences.
The courtroom is one part of international efforts through UNODC to improve conditions in Kenya and improve capacity of the country’s justice system “so that as many pirates as possible can be given as good a trial as possible without any additional load on the Government of Kenya.” Some 123 suspected pirates have been held in Kenya, of which 18 have been convicted and 105 remain on trial. The majority were arrested in the Indian Ocean, off the coast of Somalia, where the fragile Transitional Federal Government (TFG) is unable to securely hold and try them.
In April, the Security Council put forward the possibility of establishing international tribunals to try pirates, with members calling for tougher legislation to prosecute and jail suspects. There are also plans to create a regional trial centre in the Seychelles, which is currently holding 31 suspects apprehended by the EU Naval Force Somalia – Operation (EU NAVFOR).
Over the four years until 2009, there was a seven-fold increase in piracy incidents off the coast of East Africa, and a global jump in incidents from 100 in 2008 to 406 in 2009, according to UN International Maritime Organization ("IMO") global figures.
(adapted from a UN Press Release)
Friday, June 25, 2010
Prosecutors at the International Criminal Court stressed today that there must be no impunity for any serious crimes committed during the 2008 conflict in South Ossetia, Georgia, after they wrapped up an official visit to the Caucasus country. A delegation from the ICC prosecutor’s office spent three days in Georgia this week as part of their preliminary examination to determine whether a formal investigation should be opened into the conflict, which pitted Georgian forces against South Ossetian and Russian forces. The fighting in August 2008 killed hundreds of soldiers and civilians and displaced an estimated 160,000 people from their homes.
Georgia is a State Party to the Rome Statute that created the ICC, and as such the Court potentially has jurisdiction over crimes committed on Georgian territory, including the forced displacement of civilians, the killing of peacekeepers and attacks targeting civilians.
In a statement issued today from The Hague, ICC Prosecutor Luis Moreno-Ocampo stressed that the Rome Statute “ensures the end of impunity.” He added that States maintain the primary responsibility to investigate and prosecute serious war crimes, with the ICC only stepping in if there are no genuine proceedings in the domestic court system.
The prosecution delegation received briefings while in Georgia on the progress of national investigations into the conflict. They met the country’s chief prosecutor, the head of the Supreme Court, senior Government ministers and representatives of non-governmental organizations (NGOs). This was the second visit to Georgia by ICC prosecutors, who have also travelled previously to Russia to obtain information on national investigations in that country.
A preliminary examination serves as the first phase in the ICC process and is conducted to assess whether a formal investigation should be opened. The ICC currently has investigations open in five situations: the Democratic Republic of the Congo (DRC), northern Uganda, Sudan’s Darfur region, the Central African Republic (CAR) and Kenya.
(from a UN press release)
On Tuesday of this week, UN Secretary General Ban Ki Moon announced the appointment of a panel of experts to investigate human rights abuses alleged to have been committed by both the Sri Lankan government and the opposition forces of the Liberation Tigers of Tamil Eelam (LTTE) during the final months of Sri Lanka's recent civil war. Sri Lanka rejected the need for an independent investigation and announced yesterday that it will deny visas to the members of the UN panel. Sri Lanka has appointed its own internal panel to investigate, which it claims will be sufficient. Sri Lanka's refusal to cooperate with an independent international body is disheartening and will likely further undermine efforts to restore peace in the country and to gain credibility and acceptance of the Sri Lankan government.
Thursday, June 24, 2010
The American Bar Association is sponsoring a new Internet-based project that is aimed at countering political and cultural traditions that support the oppression of women around the world. The International Models Project on Women's Rights (IMPOWR) will create an online database to collect information on gender-related legal issues, laws and reform efforts in 100 countries. In country experts and outside experts will be able to contribute information. The database will also include links to resources and other materials that can be accessed through the database. The project started earlier this year with a prototype online database involving only Bangladesh and focusing on acid attacks against women. It is scheduled to be fully operational by the end of the year. While it is being sponsored by the ABA, the organizers hope that many legal experts, lawyers and women's advocates from around the world will contribute information so that the database will be truly international.
At the meeting of the World Trade Organization's Dispute Settlement Body on June 22, 2010, the United States blocked Indonesia’s first-time request for a panel to examine its complaint concerning US measures on clove cigarettes. Click here for details.
Aaron Zelinsky notes a strange source of some of the lastest attacks on U.S. Supreme Court Associate Justice nominee Elena Kagan: her praise in 2006 for Aharon Barak, Israel's former Chief Justice. Zelinsky says that this line of attack is as baseless as it is unsound:
In her 2006 remarks, Dean Kagan wasn't sending a dog-whistle to the International-Cabal-of-Judicial-Activists that she would be a mini-Barak. She was declaring that she respected Barak and the values of democracy and human rights he represented. Moreover, the Right's attempt to fit Barak's career and philosophy as an Israeli jurist into the simple lexicon of America's modern political debate is fundamentally misguided.
Hat tip to Aaron Zelinsky
Wednesday, June 23, 2010
A ten minute excerpt of the 2010 Final Round in the Philip C. Jessup International Law Moot Court Competition is available on the website for the International Law Students Association (ILSA). The excerpt stars Sarah Lynch pleading as the second respondent for the 2010 World Champions, Australian National University. Click here to view that video and to visit the ILSA Web Page.
Judge Marilyn J. Kaman of Minnesota is the Publications Officer of the American Bar Association Section of International Law. In November 2002 Judge Kaman was one of the first four American jurists to be selected by the United Nations to serve as an international judge abroad for that organization. Judge Kaman's mission assignment was in Kosovo (Serbia-Montenegro) and involved hearing cases of war crimes, organized crime, ethnically-motivated disputes and trafficking of human beings. Judge Kaman returned to her judicial duties from her unpaid leave of absence in July 2003.
On June 18, 2010, Judge Kaman was elected by the U.N General Assembly to a one-year term as an ad litem judge of the U.N. Dispute Tribunal, a in-house body created within the United Nations in 2007 to strengthen the U.N. system of dealing with internal grievances and disciplinary cases.
She joins Jean-Francois Cousin of France and Nkemdilim Amelia Izuako of Nigeria on the Tribunal. Their terms of office were extended by one year at an earlier meeting of the U.N. General Assembly. All of their one-year terms begin on July 1, 2010.
The General Assembly decided to appoint the three judges for a one-year term to address a backlog of cases being transferred from the old system to the new U.N. Dispute Tribunal. Click here to read more about Judge Kaman's election.
Congratulations to Judge Kaman on her election.
The U.S. Supreme Court issued its decision in Holder v. Humanitarian Law Project, 561 U.S. ___ (June 21, 2010) earlier this week, rejecting 6-3 plaintiffs' claims that U.S. law prohibiting the knowing provision of "material support or resources" to foreign organizations that engage in terrorist activity consitutes an infringement on free speech and association rights under the First Amendment to the U.S. Constitution, among other constitutional claims. While the case has more to do with U.S. law than international law, it certainly does have implications for international law and lawyers and international efforts to resolve disputes peacefully.
The U.S. statute at issue defines "material support or resources" in pertinent part to mean "any property, tangible or intangible, or service, including . . . expert advice or assistance." 18 U.S.C. sec. 2339B. While the litigation was pending, Congress further clarified these terms. It defined "training" to mean instruction or teaching designed to impart a specific skill, as opposed to general knowledge, and "expert advice or assistance" to be advice or assistance that derived from scientific, technical or other specialized knowledge. The U.S. Secretary of State is given the authority to designate an entity a "foreign terrorist organization." In this regard, in 1997, the Secretary of State designated the Kurdistan Workers' Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE) as terrorist organizations within the meaning of the statute. U.S. courts have upheld that designation because both groups have engaged in terrorist attacks, although both groups also engage in political and humanitarian activities.
Plaintiff Humanitarian Law Project (HLP) is a human rights organization with consultative status at the United Nations. HLP claims that it seeks to facilitate only the lawful, nonviolent purposes of the PKK and LTTE by providing monetary contributions, other tangible aid, legal training and political advocacy, but cannot do so for fear of prosecution under 18 U.S.C. sec. 2339B. More specifically, HLP would like to train members of these organizations how to use humanitarian and international law to peacefully resolve disputes and to obtain relief from international bodies and engage in political advocacy on behalf of Kurds in Turkey and Tamils in Sri Lanka.
The U.S. Supreme Court stated that HLP's proposed activities would be prohibited by the statute because they involve the provision of expert advice and training that imparts a specific skill. The Court further stated that HLP is free to engage in independent advocacy, i.e., "to say anything they wish on any topic . . [and to] speak and write freely about the PKK and the LTTE, the governments of Turkey and Sri Lanka, human rights and international law." Congress has not suppressed pure political speech. What HLP cannot do is engage in speech under the direction of or in coordination with foreign terrorist organizations. The Court held that HLP may not train these organizations to use international law to peacefully resolve disputes or provide advice regarding the petitioning of the UN for aid relief.
The Court rejected HLP's argument that its support for these groups would advance only legitimate activities, not terrorism. In so doing, the Court quoted a Congressional finding that "[F]oreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct." Any support provided by HLP "frees up other resources within the organization that may be put to violent ends. It also importantly helps lend legitimacy to foreign terrorist groups." The Court also relied on an affidavit from the Executive Branch strongly supporting that Congressional finding. In response, the dissent charged that the majority did not adequately examine whether provision of the kind of expert and advice at issue would really facilitate the groups illegitimate activities.
While the Court is correct that money is fungible and Congress may certainly prohibit the provision of monetary and other tangible material support to foreign terrorist organizations, its holding prohibiting the provision of expert legal advice and assistance should be troubling to all lawyers, but especially those who practice international law and who work for the peaceful resolution of international disputes. For a democracy to function and individuals' rights to be protected, persons must be able to seek and obtain legal advice and assistance without government interference. If the international community wants to end international conflicts and civil wars, we must be willing to allow the parties to the conflict to avail themselves of advice and assistance regarding how to use international processes to peacefully end disputes.
The Court's holding can probably best be explained by its context - the fight against terrorism, which the Court refers to as "an urgent objective of the highest order," and by the Court's traditional deference to the political branches when it comes to "sensitive and weightly interests of national security and foreign affairs." However, this author is disappointed that the Court did not find a way to protect a form of speech aimed at faciliating the peaceful resolution of disputes, while still allowing the government to protect against terrorism.
In an update to previous posts, human rights lawyer and law professor Peter Erlinder is back in the United States after spending 21 days in a Rwandan jail on charges of denying the 1994 Rwandan genocide. Mr. Erlinder denies the charges, claiming only to have been preparing a defense for presidential opposition candidate Umuhoza. Mr. Erlinder was released on bail due to medical issues. He has now returned to St. Paul Minnesota where he teaches at the William Mitchell College of Law.
In an interview upon his return to the United States, Mr. Erlinder stated his belief that his insistence on contacting the U.S. embassy during a search of his hotel room prevented his "disappearance" and led to his official arrest instead. Whether or not he is correct, his statement does lend support to the importance of consular notification rights for all foreigners arrested or detained abroad and the need for law enforcement officials in the United States to do a better job of honoring those rights so that Americans may continue to avail themselves of consular notification rights when traveling outside the country.
Tuesday, June 22, 2010
Secretary-General Ban Ki-moon today appointed a panel of experts to advise him on accountability issues relating to alleged violations of international human rights and humanitarian law during the final stages of the conflict in Sri Lanka that ended last year. The three-member panel will advise Mr. Ban on implementing the commitment on human rights accountability made in the Joint Statement issued by the Secretary-General and Sri Lankan President Mahinda Rajapaksa after the UN chief visited the island country in May 2009.
Indonesia’s Marzuki Darusman will serve as the chair of the expert panel, and the other two members are Yasmin Sooka of South Africa and Steven Ratner of the United States. The panel is expected to wrap up its responsibilities within four months of starting work. The experts will examine “the modalities, applicable international standards and comparative experience with regard to accountability processes, taking into account the nature and scope of any alleged violations in Sri Lanka,” according to a statement issued by Mr. Ban’s spokesperson.
Government forces declared victory over the rebel Liberation Tigers of Tamil Eelam (LTTE) last year after a conflict that had raged on and off for nearly three decades and killed thousands of people. The conflict ended with large numbers of Sri Lankans living as internally displaced persons (IDPs), especially in the north.
Today’s statement stressed that Mr. Ban “remains convinced that accountability is an essential foundation for durable peace and reconciliation in Sri Lanka. Through the panel the Secretary-General expects to enable the UN to make a constructive contribution in this regard.”
Last week B. Lynn Pascoe, the Under-Secretary-General for Political Affairs, visited Sri Lanka and held talks with Mr. Rajapaksa, senior Government officials, Opposition leaders and representatives of the Tamil and Muslim communities and civil society groups. He also visited conflict-affected areas where IDPs are being resettled. Mr. Pascoe said that political solutions that tackle the underlying grievances which fuelled the conflict are necessary to heal the wounds left by the civil war.
(from a UN Press Release)