December 24, 2011
Books We Like: A New Casebook on U.S. Customs Law
Carolina Academic Press seems to be the only major legal publisher in the United States that keeps its law school textbooks reasonably priced. (OK, I am probably biased because they published one of my books, but that's the one of the main reasons that I picked them as a publisher.) Carolina Academic Press is also aren't afraid to branch out into new courses not covered by other publishers. We have a new example of that here with a new law school textbook on U.S. Customs law, authored by Damon Pike and Larry Friedman, two customs attorneys (both of whom, like me, were former law clerks at the U.S. Court of International Trade). The subject is not yet taught at most U.S. law schools, in part because there hasn't been a book for professors to use. Here's a description of this new customs law book from the Carolina Academic Press website:
As the world’s largest economy, the Unites States imports and exports more merchandise than any other country. Customs Law covers the “nuts and bolts” of laws administered by U.S. Customs and Border Protection (“CBP”), the agency charged with regulating imports into the U.S. and collecting duties, import fees, and related taxes. Those laws and regulations center on the tariff classification of merchandise under the Harmonized System (as set forth in the Harmonized Tariff Schedule of the U.S.), the valuation of goods under the GATT (now WTO) Valuation Agreement, and the rules (both preferential and non-preferential) for determining “country of origin.” The book also covers the entry and recordkeeping process for imports, intellectual property protection, CBP’s penalty regime, the use of preferential trade programs (specifically examining the North American Free Trade Agreement and its attendant Rules of Origin and Regional Value Content calculations), marking requirements, and the relationship of income tax transfer pricing rules in determining how inter-company pricing impacts declared customs values and, thus, global corporate income taxes. The system of judicial review by the U.S. Court of International Trade and U.S. Court of Appeals for the Federal Circuit is also covered. Finally, the book summarizes the requirements of 47 other federal agencies that CBP is charged with administering and enforcing with respect to imported merchandise.
Although this book was designed as a law school text, it is likely a useful title for customs and international trade attorneys to have (and not just attorneys in the United States). And while other legal publishers have gone through the roof on pricing their books, this one is only $95.00 (and you can get a 10% discount off of that by going directly to the Carolina Academic Press website to order a copy). And if you're doing any last minute cyber shopping, this is likely a good text to recommend to customs brokers and CBP import specialists too!
Nicarague Files New ICJ Action Against Costa Rica
Nicaragua filed suit against Costa Rica at the International Court of Justice (ICJ), citing violations to national sovereignty and major environmental damages to its territory due to the construction of a new road along the banks of the San Juan River. Nicaragua contends that the construction work by Costa Rica along most of the border area between the two countries is resulting in grave environmental consequences.
Nicaragua argues that “Costa Rica’s unilateral actions . . . threaten to destroy the San Juan de Nicaragua River and its fragile ecosystem, including the adjacent biosphere reserves and internationally protected wetlands that depend upon the clean and uninterrupted flow of the river for their survival.” Among the damages listed by Nicaragua is the dumping of sediments in the river such as soil, uprooted vegetation and felled trees, which the Government says are a danger to water quality, aquatic life – including several endangered species – and to rare flora and fauna on both sides of the river bank. Nicaragua also states that the sediments will degrade the soil already devastated by deforestation due to agricultural and industrial developments in Costa Rica’s territory, adding that the impact if these is already being felt.
The Nicaraguan Government is requesting the court to declare that Costa Rica has breached its territorial integrity, as well as its obligation under international law and several environmental conventions to protect the environment and biodiversity in the region. It is also requesting that the court declare that Costa Rica must restore and pay for all the damages and not undertake any further developments in the area without a cross-border environmental impact assessment, which is presented to Nicaragua for analysis and reaction.
Nicaragua stated in its proceedings that Costa Rica has repeatedly refused to give it appropriate information on the construction work it is undertaking and has denied any obligation to prepare and provide it with an assessment of the environmental impact in the area, which would allow for an evaluation of the work. Nicaragua stressed that producing an assessment and presenting it to both governments is of utmost importance and added that it reserves the right to request provisional measures.
The two countries have had disputes over their borders before. In July 2009, the ICJ issued a ruling over what navigational and related rights Costa Rica has in the section of the San Juan River close to its mouth at the Caribbean Sea.
(Adapted from a UN Press Release)
December 22, 2011
U.N. General Assembly
From being increasing vocal on human rights to taking important decisions to tackle non-communicable diseases, the General Assembly has made great strides during its current session, its President said today, adding that efforts will continue on a range of vital issues next year. “This has been an eventful and demanding year for the United Nations, with several significant developments since I assumed the Presidency of the General Assembly,” Nassir Abdulaziz Al-Nasser told a year-end press conference at UN Headquarters. “In fact, the last three months have been among the most exciting of my two-decade experience of diplomatic service here at the United Nations,” he said, adding that the 66th session that began in September has achieved some “great strides” with certain key issues.
He pointed to the uprisings and popular protest movements that engulfed North Africa and the Middle East this year and led to the toppling of long-term regimes in Egypt, Libya, Tunisia and Yemen, which he referred to as the Arab Awakening. “These popular protests have generated a lot of concern for the needs and demands of people in the affected countries, especially in the areas of human rights and the rights of women and the youth. “The General Assembly is increasingly getting vocal on human rights issues,” he added. “There is growing consensus among Member States for the protection and promotion of human rights across the world, especially in the countries experiencing the Arab Awakening.”
Mr. Al-Nasser said that under his presidency, the Assembly remains active in galvanizing the necessary global partnership to assist the governments and people undergoing the Arab Awakening. The President also highlighted his close collaboration and joint initiatives with Secretary-General Ban Ki-moon, with whom he embarked on two significant joint visits, to Libya in November and Somalia in December. “We are demonstrating the UN working as one to achieve the best results for the benefit of groups and people in need around the world,” he stated.
Outlining some of the highlights of the Assembly session so far, Mr. Al-Nasser cited the political declaration adopted on the prevention and control of non-communicable diseases, which are now the biggest cause of death worldwide. “Millions of people in developing countries are increasingly becoming victims of this crisis,” he noted. “And this major declaration by Member States should help to deal with this issue fully and quickly.” The Assembly has also spoken with one voice against racism, racial discrimination, xenophobia and related intolerance, he said.
“Despite great gains made in the fight against racism too many people still suffer from racist attitudes and deep discrimination. We must do more to promote and ensure equality and non-discrimination across the world and for global prosperity and harmony.” In addition, Member States worked to restore the legitimate representation of the Libyan people at the UN, and witnessed an historic development at the UN with the application for UN membership by the Palestinian President, Mahmoud Abbas.
Looking ahead, he said efforts will continue on the four main areas of focus for the 66th session of the Assembly: the peaceful settlement of disputes; UN reform; improving disaster prevention and response; and sustainable development and global prosperity. The revitalization of the disarmament machinery is also a priority, he added.
High-level events and thematic debates on these issues are planned, as well as a retreat on Security Council reform, for next year. “We have about nine more months to go… And we will continue to tackle all the topical important issues on the international agenda,” said Mr. Al-Nasser.
(UN Press Release)
Kyrgyzstan Court Convicts Human RIghts Defender Despite Allegations of Torture
Judges in Kyrgyzstan must ensure that the civil rights of defendants are protected, a top United Nations official stressed today, after the Supreme Court upheld the conviction and life sentence of an activist who reported being tortured in detention and whose right to a fair trial was violated.
High Commissioner for Human Rights Navi Pillay voiced deep regret at the decision taken on Tuesday by the Kyrgyz Supreme Court in the case of human rights defender Azimjan Askarov. Mr. Askarov was sentenced to life imprisonment and confiscation of his pivate property in November 2010 for the murder of a police officer, participation and organization of mass riots and incitement to inter-ethnic hatred.
His arrest is believed to be related to his peaceful activities as a human rights defender, particularly his documentation of inter-ethnic violence in the Jalal-Abad region in June 2010, according to a news release issued by the High Commissioner’s office (OHCHR).
Since their arrest, Mr. Askarov and some of his seven co- defendants have reportedly been subjected to torture and inhuman and degrading treatment by police on several occasions. Mr. Askarov reported having been repeatedly and severely ill-treated, including inside the court building. The torture allegations were raised at all stages of the criminal proceedings but no investigation was initiated.
“It is particularly alarming that the judges failed to consider the defendants’ claims that confessions had been extracted under duress,” stated Ms. Pillay. “Judges in Kyrgyzstan must ensure that the civil rights of defendants are protected, particularly when there are allegations of torture,” she stressed.
Under international human rights law, allegations of torture must be promptly and impartially investigated by competent authorities, including judges and prosecutors. Evidence, including confessions, extracted through coercion, must be excluded by the court. OHCHR noted that there are “strong indications” that a significant number of defendants in cases relating to the June 2010 inter-ethnic violence in Kyrgyzstan were subjected to torture and ill-treatment to force confessions later admitted as evidence in court.
“The Supreme Court of Kyrgyzstan must ensure that in those cases where inadmissible evidence might have been used, verdicts rendered by lower courts are reversed and criminal cases are dismissed or sent for retrial,” said Ms. Pillay. “Criminal investigations should be conducted to hold the perpetrators of torture and ill-treatment accountable, and victims should be provided with adequate compensation.”
Mr. Askarov’s trial represents the serious problems with the administration of post-conflict justice in Kyrgyzstan following the June 2010 violence, OHCHR points out. More than 5,000 related criminal cases have been initiated, but most such trials monitored by the UN human rights office have failed to meet fair trial standards. Defendants have had inadequate access to lawyers and family members, while defence lawyers have been denied access to documents, undermining their ability to defend their clients. In addition, appeals court hearings have been marred by intimidating statements, including ethnicity-based obscenities targeted at defendants. In some cases, judges have allowed such statements to go unchallenged.
“Judges are the guarantors of the rule of law and I urge them to conduct their important work strictly in line with the Kyrgyz Constitution and applicable international human rights standards,” the High Commissioner stated.
(Adapted from a UN Press Release)
December 21, 2011
Robert H. McKinney School of Law
Indiana University School of Law—Indianapolis is changing its name to the Robert H. McKinney School of Law. Mr. McKinney gave $24 million to the law school, and matching funds brought the value of his gift to $31.5 million.
Details on Memorial Service for Professor Jon M. Van Dyke
We have now received details about the public memorial service for Professor Van Dyke. It will be held on January 14, 2012 at the Imin Center at the East-West Center, 1777 East-West Road, Honolulu, Hawaiʻi 96848. Visitation will begin at 10:00 a.m. and the service will begin at 11:30 a.m. Click here for more information.
Hat tip to Jon's friend, Jordan Paust.
December 20, 2011
Gao Zhisheng - Human Rights Lawyer in China
The United Nations human rights office expressed concern today at reports that a Chinese court has replaced the period of probation given to a human rights lawyer with a three-year prison sentence, saying the move is indicative of a trend of secret detentions in the Asian nation.
Rupert Colville, a spokesperson for the Office of the High Commissioner for Human Rights (OHCHR), told journalists in Geneva that the office was “very disturbed” by the reports in China’s State-run media about the treatment of Gao Zhisheng. “Just a few days before the five-year probation period expired, the court decided that Gao must now serve his full suspended sentence for violating the probation rules, with no credit for the time he has already spent under the control of the authorities,” he said.
Mr. Colville noted that for the past 20 months Mr. Gao has been subject to strict monitoring measures imposed by China’s Public Security Bureau, “in what appears to be a form of house arrest in an unknown location. “This case is illustrative of a trend of secret detention and disappearances of human rights defenders which the High Commissioner for Human Rights [Navi Pillay] and other UN human rights bodies have already criticized on several occasions in recent years.” Mr. Colville said Ms. Pillay had raised Mr. Gao’s specific case, along with other cases, with Chinese authorities this year.
The spokesperson also voiced concern about proposed amendments to China’s criminal law procedure that are currently under consideration by the National People’s Congress. Saying the amendments would permit the legalization of secret detention, Mr. Colville said they would “represent a major setback, running counter to a number of important efforts made over the past decade by the Government of China towards the ratification of the International Covenant on Civil and Political Rights (ICCPR).”
(UN Press Release)
The Commission of Inquiry on Libya
The Commission of Inquiry on Libya is a three-member panel tasked by the United Nations with probing human rights violations committed during the Libyan conflict. The Commission was set up by the UN Human Rights Council in February to probe serious violations committed in Libya, where pro-Government forces and rebels had fought for months after a pro-democracy movement emerged at the start of the year.
Judge Philippe Kirsch, a former president of the International Criminal Court, serves as the commission’s chairperson. He said that the Commission was “pleased to receive assurances of the Government’s continued commitment to human rights," and "encouraged by the initial steps the Government is taking to address the human rights violations that occurred during the recent conflict.” The team had just concluded the first part of its investigations, having visited the capital, Tripoli, from 31 November to 16 December.
During the visit, the panel met with the Chairman of the National Transitional Council (NTC) and other senior officials in the Government, as well as with representatives of non-governmental organizations (NGOs) and interviewed detainees at Matiga detention facility. The panel and investigators also visited a site where alleged extrajudicial killings were committed by forces loyal to former leader Muammar al-Qadhafi in Tripoli and received testimony about other serious violations. The commission will return to Libya next month to continue its investigations in Ajdabiya, Benghazi, Bani Walid, Brega, Misratah, Nalut, Sirte, Yefren and Zintan.
The panel, which also comprises Egyptian jurist and war crimes expert Professor Cherif Bassiouni (a law professor at the DePaul Univeristy College of Law in Chicago) and Jordanian-Palestinian lawyer Asma Khader, is scheduled to present its final report to the Geneva-based Council in March 2012. In a report presented in June, the commission said that both Government forces and the opposition have committed war crimes during the weeks of fighting following the uprising.
(mew) (adapted from a UN Press Release)
December 19, 2011
UN General Assembly Adopts Resolution on Human Rights Abuses in Iran
United Nations Member States today expressed deep concern at reports of human rights violations in Iran, including torture, the use of cruel punishments such as flogging and amputations and “pervasive gender inequality and violence against women,” and called on Tehran to strengthen its national human rights institutions.
In a resolution adopted in the General Assembly, Member States voiced deep concern at Iran’s “serious ongoing and recurring human rights violations,” including a dramatic increase in the use of the death penalty, particularly for crimes “lacking a precise and explicit definition,” and the “ongoing, systemic, and serious restrictions” of freedom of peaceful assembly and freedom of opinion and expression. The resolution received 89 votes in favour and 30 votes against. Sixty-four countries abstained.
The death penalty drew particular concern, with the General Assembly noting “the absence of internationally recognized safeguards,” the continued practice of public executions, the carrying out of secret group executions and the imposition of capital punishment against minors.
Member States also voiced deep concern at the practice of suspension strangulation as a method of execution, and the fact that prisoners continue to face sentences of execution by stoning, even though there has been a national directive against it.
In the resolution, Member States also called on the Government to immediately and unconditionally release any prisoners who have been arbitrarily arrested and detained “for simply exercising their right to peaceful assembly and participating in peaceful protests.” They also strongly encouraged Iran to discontinue the “systemic targeting” of human rights defenders and review the country’s “pervasive gender inequality.”
The text also noted Secretary-General Ban Ki-moon’s recent report highlighting the deteriorating rights situation in the country as well as the concern expressed by Ahmed Shaheed, Special Rapporteur on the situation of human rights in Iran, over the alleged targeting of minority groups by the Government. Arabs, Azeris, Baluchis and Kurds and their defenders have all faced rights violations that at times amount to persecution, according to the resolution, with religious minorities such as Christians, Jews, Sufis, Sunni Muslims, Zoroastrians and Bahá’ís.
The resolution expressed particular concern at Tehran’s failure to launch an investigation into the suspected electoral violations after the 2009 presidential vote and strongly urged the Government “to ensure free, fair, transparent and inclusive parliamentary elections in 2012 that reflect the will of the people.” Member States further called on Iran to consider ratifying or acceding to the international human rights treaties to which it is not already party while effectively implementing those human rights treaties which it has already ratified.
(UN Press Release)
ICTR Affirms Referral of Case to National Court System in Rwanda
The International Criminal Tribunal for Rwanda (ICTR) has dismissed an appeal by a former pastor accused of inciting attacks against Tutsi civilians, reaffirming its decision to refer him for trial in the national court system. The pastor is accused of inciting attacks against Tutsi civilians. The ICTR reaffirmed the decision to refer him for trial in the national court system.
On 28 June, the ICTR referred Mr. Uwinkindi’s case to Rwanda, marking the first time in the tribunal’s history it has done so.
Mr. Uwinkindi’s appeal was overturned on Friday as the tribunal judges said they were convinced that Rwanda possesses the ability to accept and prosecute the case. According to a news release issued by the tribunal, the ICTR dismissed the appeal “in all respects and affirmed the impugned decision.” But it placed Mr. Uwinkindi’s transfer to Rwanda on hold until the trial chamber accepts a corrected indictment, recalling that in a separate decision it had ordered one of the ICTR’s trial chambers to direct prosecutors to file a corrected indictment in the case to remedy several defects which had been identified.
The ICTR’s referral chamber expressed “its solemn hope that the Republic of Rwanda would actualize in practice the commitments it made in its filings about its good faith, capacity and willingness to enforce the highest standards of international justice.” It also requested that the registrar appoint representatives of the African Commission on Human and People’s Rights to monitor Mr. Uwinkindi’s trial in Rwanda and determined that the commission should bring to the ICTR’s attention any potential issues that may arise during the proceedings.
Mr. Uwinkindi was a former Pentecostal pastor in the Kigali Rural prefecture. He is accused of being responsible for attacks against Tutsis at Kayenzi church, in the Biyimana and Rwankeli administrative areas, and in Cyugaro’s swamps. He was arrested in Uganda in June 2010 and transferred to the UN detention facility in the city of Arusha, Tanzania, the following month.
(Adapted from a UN Press Release)
North Korea's "Dear Leader" Kim Jong-Il is Dead
Kim Jong-il died this past weekend. The DPRK leader reportedly died of a heart attack on December 17 at the age of 69 while travelling by train outside Pyongyang, the country’s capital. He had been in office since 1994, following the death of his father and former DPRK leader Kim Il-sung. The New York Times described Kim Jong-il as "the reclusive dictator who kept North Korea at the edge of starvation and collapse."
Here is a link to North Korean television footage of the reaction to his death in North Korea.
h/t Rex Wockner
WTO Approves New Members
Over the weekend, the World Trade Organization (WTO) approved the terms of entry for two new members: Montenegro and Samoa. Samoa will have until 15 June 2012 to ratify its accession package and Montenegro will have until 31 March 2012. Both countries will become full members of the WTO 30 days after they notify ratification of their respective accession packages to the organization.
Russia's membership in the WTO was approved last Friday, Dec. 16. Russia now has 220 days to ratify the accession package and will become a full member 30 days after that event.
There are currently 153 members of the WTO, so these three countries will bring the membership to 157. For more information regarding Montenegro and Serbia's accession to the WTO, visit the WTO website here.
Five Stages of Grading
Some years ago, when I was a fairly new law professor, I wrote a short essay on the Five Stages of Grading, which was published by The Law Teacher. If you are in the midst of grading, I thought you might enjoy taking a short break and reading the essay.
December 18, 2011
The New York Times reports that Vaclav Havel, the dissident playwright who later became the hero of Czechoslovakia's "Velvet Revolution" and then the country's president, has died at the age of 75. He oversaw the country's transition to democracy and its peaceful transition in 1993 into the nations of the Czech Republic and Slovakia.