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)