Saturday, June 19, 2010
Friday, June 18, 2010
Several law students created what promises to be a very entertaining and informative blog for law students and pre-law students. Click here to visit the Law Street Journal. They welcome contributions from law professors as well -- see the blog for more information. Articles cover a wide range of topics from advice to personal experiences to current law news -- there is a great link there now about a law student whose efforts freed a woman who had wrongfully been in prison for almost 30 years.
Congratulations and welcome to the blogosphere!
Hat tip to the blog's creator, Allie Neil DeYoung
Armenian authorities must take steps to protect human rights defenders, who are often physically attacked, harassed or stigmatized as they try to carry out their work in the Caucasus nation, an independent United Nations expert said today.
Margaret Sekaggya, the UN Special Rapporteur on the situation of human rights defenders, also voiced concern about restraints on freedom of assembly in Armenia as she wrapped up a five-day fact-finding visit – the first visit to the country by a UN human rights envoy since 2000.
“I am worried by documented cases of ongoing violence, assaults, intimidation, harassment and stigmatization of defenders, in particular journalists,” she said in a statement issued in Yerevan, the capital.
“These cases would seem to illustrate an apparent culture of impunity in Armenia which impinges upon the work of human rights defenders. This impunity appears to be closely related to the deep-rooted problems within the police system as well as with the shortcomings of the justice system.”
She recommended that the Government implement a comprehensive reform of the police service, immediately take steps to tackle the problems in the justice system and set out an anti-corruption strategy for government.
Ms. Sekaggya, who met Prime Minister Tigran Sargsyan during her visit, urged Armenian authorities to “undertake prompt, thorough and transparent investigations of all human rights violations, in particular attacks against journalists, in order to create a safe and enabling environment in which human rights defenders can carry out their activities.”
She also called on Mr. Sargsyan to publicly acknowledge the important role that human rights defenders play in a pluralistic and democratic society.
Human rights defenders and civil society groups should be consulted and included in decision-making processes, Ms. Sekaggya said, adding the specific needs of women defenders and lesbian, gay, bisexual and transgender defenders must also be addressed.
In addition the Special Rapporteur spoke out against what she described as “significant constraints” on freedom of assembly within Armenia, nothing that the right to peaceful, open and public demonstrations should be available to all.
“I also add my voice to those who have already expressed serious concerns about the amendments to the Law on Television and Radio. If signed into law by the President of Armenia, these amendments will further restrict and seriously hamper the plurality of voices and opinions available to Armenian society.”
Ms. Sekaggya serves in an independent and unpaid capacity and reports to the UN Human Rights Council in Geneva. Her full report on the visit to Armenia will be presented to the Council in March next year.
(from a UN Press Release)
Dennis Byron, President of the International Criminal Tribunal for Rwanda ("ICTR"), told the U.N. Security Council that he welcomed the release of Professor Peter Erlinder, a United States citizen who was arrested when he went to Rwanda in late May to take up the case of an opposition politician taken into custody. Professor Erlinder was reportedly accused of denying the genocide.
Hassan Jallow, the ICTR prosecutor, told reporters at the UN headquarters in New York that Mr. Erlinder was released on health grounds.
In his address to the U.N. Security Council today Mr. Byron singled out staff departure to seek employment elsewhere as one of the main challenges to the tribunal’s efforts to complete its work on schedule. He also urged Member States to continue to cooperate with the ICTR as it sought fugitive genocide suspects, and singled out Kenya as a country that “continuously fails to comply with its cooperation obligations.”
Mr. Jallow later told reporters that Kenya had today invited him to visit the country in connection with continuing efforts to track and bring to justice fugitive genocide suspect Felicien Kabuga, whom the court has alleged is likely to be still hiding in Kenya.
He urged Member States to resettle those who had been acquitted by the tribunal, saying that three of those set free continued to live in the safe houses in the northern Tanzanian town of Arusha, where the ICTR is based, after their acquittal.
“Your government’s willingness to allow these lawfully acquitted men to settle in their territory would be a credible symbol of your countries’ commitment to international justice and rule of law,” Mr. Byron said.
For his part, the President of the International Criminal Tribunal for the former Yugoslavia ("ICTY"), Patrick Robinson, made an impassioned plea to the Council to help the tribunal retain experienced staff, saying they were leaving “in droves” after finding employment elsewhere because their contracts with ICTY, as currently structured, did not offer them the incentive to remain in the tribunal.
Mr. Byron also brought to the attention of the Council the need to provide victims of war crimes in the former Yugoslavia compensation to enable them rebuild their lives. “In order to contribute to lasting peace in the former Yugoslavia, justice must not only be retributive – it must be restorative,” he said.
Speaking to reporters, ICTY Prosecutor Serge Brammertz, said the arrest of Ratko Mladic and Goran Hadžic, two suspects who remain at large, was the highest priority for his office.
(Adapted from a UN Press Release)
Those of you in the Washington, D.C. area may be interested to know that on Monday, June 21, the George Washington University School of Law will be hosting the U.S. State Department's International Law Advisory Committee Meeting. The program will run all day from 9 am to 5:45 pm on the 5th Floor of the Michael K. Young Faculty Conference Center at 2000 H Street, Washington, D.C. Topics will include the recent International Criminal Court Review Conference and Ad Hoc Criminal Tribunals: Stock-Taking and Next Steps, Detention, Targeting, Prosecution and the Law of War: Reactions to Harold Koh's ASIL Speech, Current Topics in International Humanitarian Law: The Flotilla, International Responsibility of International Organizations: ILC Draft Articles, Nonproliferation: START, NPT Review Conference & Nuclear Security Summit, International Agreements vs. Non-Legally-Binding Arrangements: Examining Trends. There will be several speakers from the U.S. State Department, including the Legal Advisor, Harold Hongju Koh, attorneys from the Office of United Nations Affairs, and several academics.
In honor of World Refugee Day today, Friday, June 18, United Nations High Commissioner for Refugees Antonio Guterres announced that the UNHCR had reached a milestone in referring 100,000 Irqai refugees for resettlement from Middle Eastern countries since 2007.
"UNHCR's 2009 Global Trends report, released Tuesday, highlights the fact that Iraqis are one of the largest refugee groups in the world, with an estimated 1.8 million seeking shelter overseas, primarily in Syria, Jordan, Lebanon, Egypt and Turkey. The Syrian government estimates there are 1 million refugees in the country, the majority from Iraq. Voluntary repatriation worldwide in 2009 was at its lowest point in 20 years, with around 251,500 returns, of which only 38,000 were Iraqi."
"The growing resilience of conflict results in a larger proportion of refugees who are unable to return to their homes," said Guterres, noting that major conflicts in Afghanistan, southern Sudan and the Democratic Republic of Congo show no signs of being resolved, while "conflicts that we had hoped were on their way to being resolved are stagnating."
More information about World Refugee Day may be found on the UNHCR website, which states that there are 40 million persons worldwide currently uprooted from their homes. Many of these refugees have spent years living in limbo. Lengthy security checks and the time it has taken for state processing mechanisms to be established have led to considerable delays in the departure of refugees to their new homes. Thus, much more remains to be done.
Thursday, June 17, 2010
Governments, employers and workers meeting at the annual conference of the United Nations International Labour Organization (ILO) today adopted a new international standard on HIV and AIDS – the first international human rights instrument to focus specifically on the pandemic as a workplace issue.
Among its provisions, the new instrument stresses that measures to address HIV and AIDS in the workplace should be part of national development policies and programmes. It rejects discrimination against workers, job-seekers and applicants on the grounds of real or perceived HIV status, and accords “fundamental priority” to preventing all modes of HIV transmission.
The standard states that workers, their families and their dependents should enjoy protection of their privacy, including confidentiality related to HIV and AIDS, and that no workers should be required to undertake an HIV test or disclose their HIV status. The workplace is expected to facilitate the access, by workers, their families and dependants, to prevention, treatment, care and support.
Today’s action takes the form of an ILO Recommendation, which, unlike a Convention, does not require ratification. However, it must be communicated to national parliaments for discussion of how it might be implemented through national policies and legislation.
“With this new human rights instrument, we can harness the strength of the world of work and optimize workplace interventions to significantly improve access to prevention, treatment, care and support,” said Dr. Sophia Kisting, Director of ILO’s Programme on HIV and AIDS.
She added that the standard would provide “a major contribution to making the dream of an AIDS-free generation a reality.”
In support of the new standard, the ILO’s annual conference also adopted a resolution inviting the agency’s Governing Body to allocate greater resources to promoting it. It also asked that a global plan of action be established to achieve widespread implementation of the standard, including regular reporting from ILO member States on their actions to that end.
“We have no time to waste” in implementing this standard, said Thembi Nene-Shezi of South Africa, who chaired the debates leading to its adoption. “The engagement of those that have given birth to it – the governments, employers and workers – will be crucial to the development of national workplace policies anchored in human rights and directed at overcoming discrimination.”
(from a UN Press release)
UN Secretary-General Ban Ki-moon said today he hopes Israel’s announcement that it will ease the blockade on the Gaza Strip to allow more civilian goods to enter the territory will lead to an improvement in the lives of the 1.5 million Palestinians living there. “The Secretary-General is encouraged that the Israeli Government is reviewing its policy towards Gaza, and he hopes that today’s decision by the Israeli security cabinet is a real step towards meeting needs in Gaza,” his spokesperson said in a statement. Mr. Ban has asked Robert Serry, the UN Special Coordination for the Middle East Peace Process, to immediately engage the Israeli Government to learn more about the decision and the additional measures needed to implement it.
The UN chief has repeatedly called for ending the blockade, which Israel imposed on Gaza for what it called security reasons after Hamas, which does not recognize Israel’s right to exist, ousted the Fatah movement in the Strip in 2007. He did so most recently in the wake of the 31 May incident in which Israel raided a six-ship convoy that was carrying humanitarian goods and activists and heading for Gaza. The operation resulted in the deaths of nine civilians and the wounding of at least 30 others, and prompted renewed calls for Israel to end the blockade.
The UN, according to today’s statement, continues to seek “a fundamental change in policy” so that humanitarian assistance, commercial goods and people are able to flow through functioning open crossings, and reconstruction can take place.
Chris Gunness, spokesman for the UN agency that assists Palestinian refugees, known as UNRWA, reacted to Israel’s announcement by noting that anything that eases the humanitarian suffering in Gaza is a step in the right direction. for the West Bank and Gaza.
(from a UN Press Release)
According to Roger Alford over at Opinio Juris (http://opiniojuris.org/2010/06/16/joan-donoghue-to-fill-vacancy-at-the-icj/), the US National Group has tapped Joan Donoghue, the Principal Deputy Legal Adviser in the Department of State, as its nominee to the ICJ.
The vacancy was created in May by the retirement of ICJ Judge Thomas Buergenthal. Donoghue would serve out the remaining five years of Buergenthal's term.
As we reported earlier, the General Assembly and the Security Council will vote to fill the vacancy in early September.
According to Prof. Alford's brief biographical sketch:
Donoghue is a relative unknown outside government circles, but is very respected within the State Department. Indeed, in 2009 she was Acting Legal Adviser prior to Koh’s confirmation. In the early 1990s Donoghue wrote a handful of articles, most of them dealing with sovereign immunity, that have received some scholarly attention, but not much. She graduated from Berkeley Law School in 1981 and has been at the State Department since the early 1980s.
Professor Peter Erlinder, a member of the faculty of William Mitchell College and former president of the National Lawyers Guild, was freed from prison in Rwanda today based on medical needs.
Click here to read more.
Hat tip to Hazel Weiser of the Society of American Law Teachers
Wednesday, June 16, 2010
Honduras Becomes First Nation to Ratify U.N. Convention on the Use of Electronic Commincations in International Contracts
The United Nations Convention on the Use of Electronic Communications in International Contracts was aopted by the General Assembly in November 2005. The Convention aims to enhance legal certainty and commercial predictability where electronic communications are used in relation to international contracts. It addresses issues such as:
- the determination of a party's location in an electronic environment;
- the time and place of dispatch and receipt of electronic communications;
- the use of automated message systems for contract formation; and
- the criteria to be used for establishing functional equivalence between electronic communications and paper documents -- including "original" paper documents -- as well as between electronic authentication methods and hand-written signatures.
The Convention will enter into effect when three nations ratify it. So far 18 countries have signed it, including the People's Republic of China, South Korea, and Russia. This week, Honduras became the first nation to ratify the convention. Only two more nations need ratify it before it enters into effect. UNCITRAL has not even sent out a press release on this yet, so you heard about this here first!
Tuesday, June 15, 2010
After twelve years of investigation, the UK Bloody Sunday Inquiry today concluded that the killing of fourteen people by the British Army in 1972 was "unjustifiable."
The three-judge Panel of Inquiry, led by Lord Saville of Newdigate, first convened in April 1998. The panel was proposed by then-Prime Minister Tony Blair to review the findings of the original Panel of Inquiry, delivered in the Spring of 1972 after only eleven weeks of investigation.
According to the summary in today's Irish Times:
- “Despite the contrary evidence given by soldiers, we have concluded that none of them fired in response to attacks or threatened attacks by nail or petrol bombers.”
- The accounts of soldiers to the inquiry were rejected, with a number said to have “knowingly put forward false accounts”.
- Five soldiers fired in the belief that no-one in the area they were firing at posed a threat.
. . .
- “We consider it likely that Martin McGuinness was armed with a Thompson sub-machine gun on Bloody Sunday and we cannot eliminate the possibility that he fired this weapon after the soldiers had come into the Bogside”.
- Report concludes: “He did not engage in any activity that provided any of the soldiers with any justification for opening fire”.
Source: Main Findings of Bloody Sunday inquiry, Irishtimes.com, June 15, 2010.
Bloody Sunday is the common name for the events of January 30, 1972, during which the British Army shot into a crowd of civil rights demonstrators in Derry (Londonderry), killing 13 and injuring another 13 (one of whom died later).
The ten-volume, 5000+ page report is available online at http://report.bloody-sunday-inquiry.org/. The Panel's website, which contains a large amount of primary source material as well as commentary, is available at http://www.bloody-sunday-inquiry.org/.
There will be an International and Interdisciplinary conference in Kolkata, India from December 28 to 30, 2010 on the theme of "Meaning, Identity, and Culture: East and West." Abstracts of 150 words are requested to be sent by email to chandanachak [at] gmail.com and chakrabartic [at] dewv.edu
Subtopics on the theme include Cognitive Meaning, Emotive Meaning, Suggestive Meaning, Myth and Metaphor, Meaning as Universal, Meaning as Form, Universal and Particular, Structure and Identity, Personal Identity, Ethnic Identity and Culture, Cultural Anthropology, Culture and Consumption, Politicizing Consumer Culture ,Archaeological Approaches to Culture, Social Identification, Dynamics of Group Culture, Ethnic Boundaries, Constructing and Deconstructing Ethnic Identity, Evolution of Culture, Encountering Different Cultures, Indian Civilization and Culture, Cultural shock, Civilization and Effect of Colonization, Deconstruction, Indo-European Languages and Contacts of Civilizations, India and Europe, Death of a Civilization, Media and Culture, Pop culture and MTV, Cultural Transformation, Role of Culture and Religion, and Cultural Meaning. And I suppose anything else that you might think of that comes close to any of that (hey, it's a conference).
For more information, contact Dr. Chandana Chakrabarti,Dean of International Programs and
Director of the Center for Spirituality, Ethics and Global Awareness at Davis and Elkins College, Elkins, West Virginia 26241, USA (Tel. 304-637-1293).
The Chinese Uighurs who have been detained at Guantanamo Bay these past several years have lost another court case in their quest to be released from Gitmo into the United States. These Uighurs are pursuing habeas claims in U.S. courts and are seeking the right to enter the United States because they claim they would be persecuted or even tortured if returned to China and their continued detention constitutes unlawful indefinite executive detention.
Readers of this blog will likely recall that in March 2010, the U.S. Supreme Court remanded the case to the D.C. Circuit Court of Appeals to consider whether further proceedings are warranted in light of the fact that five of the Uighurs had been offered resettlement in third countries, but had rejected those offers (12 others accepted offers of resettlement). See Kiyemba v. Obama, 130 S.Ct. 1235 (March 1, 2010). The Uighurs claim a further remand to the trial court is necessary to determine whether the offers of settlement are "appropriate."
The D.C. Circuit Court of Appeals held that the Uighurs are not entitled to any further hearings, nor are they entitled to be released into the United States. See Kiyemba v. Obama, No. 08-5424 (May 28, 2010). The Court stated that it is for the political branches of government to control the borders of the United States and to decide who to admit to the country and who to exclude, as well as to determine whether any resettlement offers are appropriate. The Court pointed out that since its first opinion in Kiyemba in 2009, Congress had enacted seven different statutes prohibiting the expenditure of funds to bring persons to the United States from Gitmo. These statutes provide the Court with evidence of Congressional views on the matter. The Uighurs have no right to be admitted to the U.S. and their release from detention is within their control since they have the ability to accept an offer of resettlement.
The Court's opinion is consistent with precedent such as Mezei which also denied a noncitizen detained on Ellis Island entry to the United States. See Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953). Mezei's case was perhaps more compelling in that he had been a lawful permanent resident of the United States most of his life and was returning from a visit to Eastern Europe when he was detained. He was willing to go to another country, but could not find one that would take him. By contrast, the Uighurs have never lived in the United States and have had offers of resettlement from stable democratic countries such as Switzerland and Palau, which makes their demand to be resettled in the U.S. less sympathetic or pressing than it was prior to those offers of resettlement.
The United States and Cuba are scheduled to resume immigration talks on Friday, June 18 in Washington, D.C. for the first time since February. Fornally, these talks are intended to monitor the 16-year-old agreement between the U.S. and Cuba pursuant to which the U.S. issues 20,000 visas per year to Cubans. However, in the past, these talks have often been an opportunity to raise other topics besides immigration. Other informal talks between the U.S. and Cuba in the past few months have dealt with aid to Haiti and the Gulf oil spill.
In a positive sign, the Cuban government released Alan Sigler, an ailing political prisoner, last week after talks with the Catholic Church and transferred six other political prisoners to jails closer to their homes and families. From the U.S. side, one continuing sticking point is Cuba's detention since December of American contrator Alan Gross, whom the Cubans accuse of spying.
According to a press release from the International Criminal Court, a new search engine is now available, focusing on the work of the ICC, the ad hoc international criminal tribunals, and international criminal law at the national and transnational level.
The ICC Legal Tools Project (www.legal-tools.org) is a project of the ICC Office of the Prosecutor to develop a comprehensive, indexed, and easily-searchable database of primary and secondary source material in international (and internationalized) criminal law. This announcement marks the second generation of the Legal Tools project, which contains a robust amount of caselaw, statutory information, and commentary.
Institutional interest disclaimer - Two teams of WU Law students are among the corps of students and young lawyers doing the "grunt work" on this project. I'm receiving -- and WU is receiving -- no consideration for this shameless plug. All the same, I do think this is a neat and useful resource.
Monday, June 14, 2010
Just before the close of the Review Conference on the International Criminal Court (ICC) on Friday, the Review Conference voted to adopt an amendment to the Rome Statute defining the crime of aggression and identifying the jurisdictional requirements for prosecution of the crime. The crime of aggression has been part of Article 5 of the ICC Statute since its inception in 1998, but no one could be charged with the crime because the parties were unable to agree on its definitional and jurisdictional elements.
Under the new definition, the crime of aggression means "the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over the political or military action of a State, of an act of aggression, which, by its character, gravity and scale, constitutes a manifest violation of of the Charter of the United Nations. . . An "act of aggression" means the use of armed force by a State against the sovereignty, territorial integrity, or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations." The definition then goes on to list several specific acts that qualify as aggressive acts.
Under the new definition, the United Nations Security Council has the primary role in determining when a crime of aggression has occcured. This role for the UNSC is appropriate given that it is the body charged with maintaining and restoring international peace and security under the UN Charter. However, if the UNSC fails to act, the ICC prosecutor is authorized to commence an investigation on his or her own initiative or at the request of a State Party. The prosecutor must have the approval of a trial chamber. The UNSC can still block the investigation by passing a resolution, but the resolution must be renewed annually. In addition, the crime may only be pursued against states that have accepted the ICC's jurisdiction, a significant limitation. Some international scholars are already criticizing the amendment because the difficulty of charging a state with an action of aggression makes it unlikely such jurisdiction will ever be exercised.
The ICC will not have jurisdiction over any crimes of aggression until at least 2017. In addition, the amendment must first be adopted by the States Parties to the ICC.
The Palau Horizon reports that the Japanese government will sending an envoy to Palau this month to hold talks and explain to Palau government its current hunts of whale for research. Palau's President Johnson Toribiong had previously stated that his government wants to be consistent with its policies on the marine resources of the country and is reconsidering its position on whaling.
President Toribiong said that the Japanese Ambassador to Palau, Yoshiyuki Sadaoka, has informed him that a special envoy will be visiting Palau “to educate me on the Japanese policies and scientific research.” Earlier the president said that his government will review its current position on whaling to ensure the country does not contribute to the depletion and extinction of whales.
Palau is a member of the International Whaling Commission since 2002 and is one of the pro-whaling nations that supports Japan’s research program.
Australia, a donor country to Palau, has lodged a legal action in the International Court of Justice in the Netherlands to protest Japan’s whaling. Click here to read more about that case.
Japan is the largest donor to Palau after the United States. Palau had been a mandate to Japan under the League of Nations. The two countries have had a special relationship -- you might guess that just by looking at their two flags.
President Toribiong recently declared Palau as a shark sanctuary before the United Nations General Assembly. He says the country also needs to protect other marine species in Palau.
Hat tip to the East West Center