Friday, September 24, 2010
Once again, it's that time of year - the Central States Law Schools Association (CSLSA) annual conference. This year, the conference is being hosted at University of North Dakota School of Law. There's a great lineup of international and comparative law professors, including:
H. Allen Blair (Hamline), The Value of Standards in International Sales Law
Robert Brown (John Marshall, Atlanta), All that Glitters is Not Gold: the Limits of Exporting Securitization Reform in the United States to International Financial Markets
Cindy Buys (Southern Illinois), Strangers in a Strange Land: The Importance of Better Compliance with Consular Notification Rights
Shahram Dana (John Marshall), Beyond Retroactivity to Realizing Justice: A Theory on the Principle of Legality in International Criminal Law Sentencing
Gregory Gordon (North Dakota), Peter von Hagenbach and the Twilight Zone Pre-History of International Criminal Law
Virginia Harper Ho (Kansas), Exploring Interactive Corporate Compliance Beyond Democracy: The Puzzling Case of China
William Johnson (North Dakota), Understanding Exclusion of the CISG: A New Paradigm of Determining Party Intent
Andrew Jurs (Florida Coastal), Balancing Legal Process with Scientific Expertise: A Comparative Assessment of Expert Witness Methodology in Five Nations and Suggestions for Reform of Post-Daubert U.S. Reliability Determinations
Milena Sterio (Cleveland-Marshall), A Grotian Moment: Changes in the Legal Theory of Statehood
More information about the conference and abstracts for these papers can be found on the CSLSA website.
Thursday, September 23, 2010
On Friday, November 12, 2010, Southwestern Law School in Los Angeles, California is hosting a symposium titled Beyond Borders: Extraterritoriality in American Law.
This one-day symposium will bring together leading legal figures from throughout the country to analyze critical issues related to transnational litigation and extraterritorial regulation. Questions to be examined at the symposium include: Do U.S. laws stop at the border? If not, when do they – or when should they – govern the conduct of people abroad? From the controversial extraterritorial application of U.S. domestic law, to the contentious uses of universal jurisdiction in the human rights context, to debates over the extent to which the U.S. Constitution applies outside U.S. territory, a flurry of recent scholarship has involved disputes over the geographic reach of domestic law. The symposium will bring together leading scholars to discuss the history, doctrine, and current issues related to extraterritoriality. The proceedings will be published in the Southwestern Law Review and distributed widely.
The registration deadline is November 5, 2010. For more information, contact the Law Review Office at 213-738-6744 or the Student Affairs Office at 213-738-6716.
The American Bar Association Section of International Law is holding its fall meeting in Paris in November. The early bird rate has been extended until tomorrow (Friday). In a change from previous years, the registration fee includes the spectacular evening networking events instead of changing for those separately. Click here for more details about the meeting and registration.
You may remember that Fiji had a military coup and is operating under an interim regime. The interim Prime Minister told the Fiji Broadcasting Corporation that in the absence of the president, the country’s Australian chief justice is the acting head of state.
Interim Prime Minister, Commodore Frank Bainimarama, said that Justice Anthony Gates has assumed the role of President Ratu Epeli Nailatikau, who is on a 16-day tour that includes a nine-day visit to the People's Republic of China. Commodore Bainimarama says he is yet to appoint an acting prime minister and an acting military commander before he heads to the United Nations in New York later this week. The interim foreign minister, Ratu Inoke Kubuabola, is already in the US.
Gabon this week acceded to:(1) the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; and (2) the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition.
The former is the first global legally-binding instrument with an agreed definition on trafficking in persons. It also seeks to protect and assist victims of trafficking, with full respect for their human rights. The latter is the first pact to be adopted at the global level on the illicit trade in firearms, and countries that ratify it commit to adopt a series of crime-control measures. The two protocols are among dozens of treaties that address human rights, disarmament, environmental protection, biodiversity, desertification and climate change, terrorism and crime, and the safety of UN and associated personnel that are open for signature, ratification or accession during the annual treaty event that coincides with the high-level segment of the General Assembly.
Other countries that took action with regard to treaties this week were Panama, Lesotho, Bulgaria and Armenia.
(adapted from a UN press release)
General Assembly President Joseph Deiss acknowledged Madagascar’s commitment to achieving the Millennium Development Goals as the African nation announced its decision to not take the podium at a high-level gathering on the eight anti-poverty targets. Mr. Deiss said in a statement that Madagascar, on a “voluntary and sovereign basis,” decided not to speak at the Millenium Delevopment Goals debate.
He expressed his “appreciation to all African Member States, including Madagascar, for their support to the objective of achieving the Millennium Development Goals and the wider objective of reducing poverty, including on the African continent.”
During last year’s high-level segment of the Assembly’s 64th session, the 192-member body barred a delegation from Madagascar, where violent political unrest led to the ousting of the president, from addressing the event.
President Marc Ravalomanana resigned in early March 2009 amid a dispute with Andry Rajoelina, mayor of the capital, Antananarivo, who now leads the country..
(from a UN Press Release)
Tuesday, September 21, 2010
The latest countries to join the United Nations Convention on Contracts for the International Sale of Goods (CISG) are the Dominican Republic and Turkey, which became the 75th and 76th State Parties to the Convention. The CISG will enter into force for the Dominican Republic on July 1, 2011 and for Turkey on August 1, 2011.
Monday, September 20, 2010
On behalf of President Obama and the people of the United States, I congratulate the people of Belize on 29 years of independence this September 21.
As we commemorate this month’s historic events – the Battle of St. George’s Caye and your proclamation of independence – we also join in honoring the rich heritage that has shaped Belize into the country it is today. Your commitment to democracy, security, and prosperity for all Belizeans is an inspiration to people throughout the region, and the foundation for a strong partnership between our nations. The United States and Belize enjoy a vibrant exchange of people that fosters cultural ties, and our collaborative efforts to improve citizen safety through the Central America Regional Security Initiative are enhancing economic and social opportunities for people throughout the region.On this festive occasion, I wish all Belizeans a happy independence day and reaffirm our dedication to strengthening the bonds of friendship between our countries.
“This document is intended to serve as a unified basis for peace in Darfur to be presented to all parties without exception, and it shall be the basis for talks to reach an agreement on a comprehensive and final solution,” AU-UN Joint Chief Mediator Djibril Bassolé and Sudanese Minister of State for Foreign Affairs Ahmed Bin Abdullah Al-Mahmoud said in a joint statement after receiving the document from the committee. No details were released.
Government forces have clashed with members of JEM in recent months, contributing to a deterioration in the overall security situation in Darfur where fighting erupted in 2003 between Government forces, allied Janjaweed militiamen and rebel groups. All three have been accused of grave human rights violations. JEM withdrew from the Doha talks as the fighting resumed and has yet to re-engage. The Government and the LJM have agreed to resume their negotiations on 29 September in Doha, today’s statement said.
(from a UN Press release)
Recent news reports regarding a dispute over a Chinese ship captain arrested by Japan have echos of the Lotus case from 1927. International law scholars will recall that the Lotus case involved a collision between a French vessel and a Turkish vessel on the high seas. The French vessel took the survivors to Turkey. During an investigation of the matter, the Turkish officials arrested the officer in charge of the French vessel, Lt. Demons. France protested Turkey's assertion of jurisdiction over its citizen. The Permanent Court of International Justice held that there was no rule of international law that prevented Turkey's assertion of jurisdiction.
The present case involves the collision of a Chinese fishing vessel with a Japanese Coast Guard vessel in the East China Sea. Both China and Japan have claims to the waters where the collision occurred. Japan arrested the captain of the Chinese vessel and China has vehement protested the arrest and detention of its citizen. The lawfulness of Japan's arrest is not clearly decided by the Lotus case, however, because the waters where the collision occurred are not considered highs seas (although the status of those waters is in dispute) and because there are more well-developed treaty rules (e.g., the UN Convention on the Law of the Sea) governing collisions today than existed at the time of the Lotus case. So the outcome of this matter remains to be seen.
The Oversight and Government Reform Committee of the U.S. House of Representatives will hold a hearing on “Transition in Iraq: Is the State Department Prepared to Take the Lead?” on September 23, 2010 at 10:00 a.m. in Room HVC-210 of the Capitol Building.
Hat tip to the ABA Government Affairs Office
The United Nations today called on the international community to increase aid to the Central African Republic (CAR) to prevent a resumption of conflict in an impoverished country that is a prime target of UN efforts to consolidate peace in once violence-torn nations.
The CAR has been “a kind of forgotten country,” Secretary-General Ban Ki-moon’s Special Representative for CAR Sahle-Work Zewde told reporters ahead of a high-level event at UN Headquarters in New York on the margins of a development summit.
“So this kind of event will definitely bring the CAR on the radar screen. It’s a post-conflict country with daunting challenges,” she said, citing delayed elections, now scheduled for next year, and the Disarmament, Demobilization and Reintegration (DDR) progress that seeks to consolidate peace in a country that has been torn by civil war, ethnic fighting and political crises. “At this juncture it’s very important to have a renewed international interest.”
For the past two years CAR, which has seen significant ethnic conflict in its north as well as an overflow of violence from neighbouring Chad and Sudan’s war-torn Darfur region, has been on the agenda of the UN Peacebuilding Commission, an intergovernmental advisory body of UN entities and Member States, international financial institutions and others set up in 2006 to coordinate the world community’s aid in post-conflict countries.
It has received tens of millions of dollars from the Commission’s Peacebuilding Fund to support security sector reform, economic revitalization and the rule of law.
“I think it has the potential of becoming a good story,” Ambassador Jan Grauls of Belgium, head of the Commission’s efforts for CAR, told reporters. “Up to a couple of years ago, nobody talked about the CAR, it is as if it had been erased from the map. It had become a kind of forgotten emergency.” But then peace accords were signed between the warring parties.
“The Central African Republic deserves to be looked at with other eyes,” he said. “It’s not the Central African Republic any more [that] it used to be, that’s in our memories, but it’s changing and it’s changing for the better, and it deserves the support of the international community.”
If the elections and the DDR are completed successfully, a donors’ conference will be held next spring, he added.
Those attending today’s event include Mr. Ban, CAR President François Bozizé, and high-level representatives of the World Bank, existing and potential donor countries, and regional organization.
(UN Press Release)
Top United Nations officials last week appealed to all countries that criminalize people on the basis of their sexual orientation or gender identity to reform such laws and to ensure the protection of basic human rights for all.
“No doubt deeply-rooted cultural sensitivities can be aroused when we talk about sexual orientation. Social attitudes run deep and take time to change. But cultural considerations should not stand in the way of basic human rights,” said Secretary-General Ban Ki-moon.
In a message to a panel discussion in Geneva on ending violence and criminal sanctions based on sexual orientation and gender identity, which was delivered by UN High Commissioner Navi Pillay, Mr. Ban noted that the responsibilities of the UN and the obligations of States are clear.
“No one, regardless of their sexual orientation or gender identity, should be subjected to torture or to cruel, inhuman or degrading treatment. No one should be prosecuted for their ideas or beliefs. No one should be punished for exercising their right to freedom of expression.”
In May, during a visit to Malawi, the Secretary-General called for laws criminalizing people on the grounds of sexual orientation and gender identity to be reformed worldwide. Such laws, he noted, fuel violence, help to legitimize homophobia and contribute to a climate of hate.
While in Malawi, he had also lauded the “courageous” decision by the country’s leader to pardon a gay couple who had been sentenced to 14 years in prison, voicing hope that the African nation will update its laws to reflect international standards.
Ms. Pillay noted in her own remarks that, despite significant progress made in a number of States, there is still no region in the world today where people who are gay, lesbian, bisexual transgender or intersex (LGBTI) can live entirely free from discrimination or from the threat of harassment and physical attack.
“But in 78 countries, individuals still face criminal sanctions on the basis of their sexual orientation or gender identity,” she told the event, which was held on the sidelines of the 15th regular session of the UN Human Rights Council.
“We should be looking for ways to ensure that everyone enjoys the full protection of international human rights law, not for grounds to justify excluding certain individuals.”
She said the first priority should be decriminalization worldwide, which should be accompanied by greater efforts to counter discrimination and homophobia, including both legislative and educational initiatives.
“If we are all entitled to the full range of human rights and to equal protection of the law then, I believe, it can never be acceptable to deprive certain individuals of their rights, indeed to impose criminal sanctions on those individuals, not because they have inflicted harm on others or pose a threat to the well-being of others, but simply for being who they are, for being born with a particular sexual orientation or gender identity.
“To do so is deliberately to exclude a whole lot of people from the protection of international human rights law. It is, in short, an affront to the very principles of human rights and non-discrimination,” she stated.
(UN Press Release)
The U.S. Court of Appeals for the Eleventh Circuit has upheld a Florida state law that restricts students, faculty, and researchers at state colleges and universities from traveling to Cuba and any other country on the U.S. government list of states that support terrorism. Those countries are Iran, North Korea, Sudan, and Syria. Click here for a copy of the ruling. The Faculty Senate at Florida International University had challenged the law (with the help of the ACLU) on first amendment grounds.
Sunday, September 19, 2010
On October 21-23, 2010, the American Branch of the International Law Association and the International Law Students Association will present the annual International Law Weekend (“ILW”) in New York, in conjunction with the 89th annual meeting of the American Branch.
ILW 2010 brings together hundreds of practitioners, professors, members of the governmental and non-governmental sectors and students. It will feature numerous panels, distinguished speakers, receptions, and the Branch’s annual meeting. ILW 2010 will take place at the Association of the Bar of the City of New York on October 21, 2010, and at Fordham University School of Law on October 22 and 23. The overall theme of ILW 2010 is “International Law and Institutions: Advancing Justice, Security and Prosperity.”
At the request of the participants in the dispute “Australia — Measures Affecting the Importation of Apples from New Zealand” (WT/DS367/R), the WTO Appellate Division has decided to open the oral hearing on 11-12 October 11-12, 2010 to public observation by WTO Members and the general public via simultaneous closed-circuit broadcast to a separate viewing room. Click here for more information.
In June 2009, we reported on this blog that Royal Dutch Shell had reach a multi-million dollar settlement in a lawsuit alleging that its Nigerian subsidiary colluded with the former military government in Nigeria to silence environmental and human rights activists who protested the construction of a pipeline in the Ogoni region of Nigeria. That post can be fround here. The suit was brought by family members of the victims in U.S. District Court in New York under the Alien Tort Statute (ATS), 28 U.S.C. sec. 1350.
That settlement did not end all the litigation, however, On Friday, the U.S. Court of Appeals for the Second Circuit affirmed a decision by the lower district court that corporate entities are not liable under customary international law for tortious behavior. Kiobel et al. v. Royal Dutch Shell, Docket Nos. 06-4800-CV, 06-4876-CV (Sept. 17, 2010). In response to plaintiffs' claims that defendant corporations may be held liable for aiding and abetting in violations of the law of nations, the Second Circuit stated:
"We hold, under the precedents of the Supreme Court and our own Court over the past three decades, that in ATS suits alleging violations of customary international law, the scope of liability—who is liable for what—is determined by customary international law itself. Because customary international law consists of only those norms that are specific, universal, and obligatory in the relations of States inter se, and because no corporation has ever been subject to any form of liability (whether civil or criminal) under the customary international law of human rights, we hold that corporate liability is not a discernable—much less universally recognized—norm of customary international law that we may apply pursuant to the ATS. Accordingly, plaintiffs’ ATS claims must be dismissed for lack of subject matter jurisdiction."
The Court's holding certainly deals a significant blow to a number of ATS suits brought against corporations. It also does not help to advance the development of international law with respect to non-state parties. However, the Court is probably correct that there is not a rule of customary international law that is well accepted and defined within the meaning of the U.S. Supreme Court's decision in Sosa v. Alvarez-Machain that imposes liability on corporations for collusion in tortious behavior under international law. Corporations are certainly liable for their behavior under many domestic laws. And, the Court pointed out, it may be possible to hold individual directors, officers and employees of the corporation liable for any tortious behavior in which they personally engaged (depending upon domestic laws shielding directors and officers from corporate liability).
On the other hand, it may be argued that the Court's analysis fails to separate the tortious behavior from the actor that engages in the behavior. The ATS says nothing about who commits the tort. It only requires that a tort in violation of the law of nations is committed. Thus, if the Court were to find that the alleged behavior constitutes a tort in violation of the law of nations, the ATS leaves open the possiblity that a corporate entity may be held liable for that tort. Resolution of this issue may await a decision by the U.S.Supreme Court.
The court's decision is perhaps a call for international action. While there are several non-binding codes of corporate responsibility, most human rights treaties and other documents do not speficially address the role and responsibilities of corporate entities. Multinational corporations use and are subject to customary international law every day. In fact, the laws of international business and trade grew out of customary law of merchants. If corporations can take advantage of international law to aid in the development and growth of their business, they should also be subject to international law in other respects, including respect for human rights obligations. Corporate responsibility under international law is an area of law where much work remains to be done.
The U.S. Court of Appeals for the Eleventh Circuit dismissed a lawsuit brought by representatives of an Israeli lawyer who was gunned down in 2002 while driving in the Gaza Strip. The representatives sought to sue the Palestinian Authority or the Palestine Liberation Organization under the Alien Tort Statute.
The federal appellate court held that an act of murder, committed by a private individual with no state involvement, did not violate the international norms that the ATS is meant to uphold. The court stated: “A single murder, even of the most brutal sort, has never been accorded the status of a violation of the law of nations, and wrongs of this kind assuredly were not ‘on [the] minds of the men who drafted the ATS with its reference to tort,' ” the court said. Allowing such claims would effectively open U.S. courts to “every incident of violence in every unstable region of the world.”