Thursday, September 13, 2012
A United Nations independent expert today urged world governments to work to achieve an equitable and democratic international order in which law is applied uniformly among countries. “An international order in which only a few powerful players take all the decisions, often disregarding the consequences for the less powerful, is hardly democratic,” said the Special Rapporteur on the promotion of a democratic and equitable international order, Alfred de Zayas.
Presenting his first report to the UN Human Rights Council in Geneva, Mr. de Zayas added that countries must refrain from the threat or the use of force and promote a culture of dialogue to address current disparities in the international system. “This vision can be achieved by respecting the United Nations Charter as the World Constitution, by applying international law uniformly and not à la carte,” he said. “An international democratic order is one where all peoples have the opportunity to participate in global decision-making. We must build on the principles of self-determination, sovereignty, and respect for national identities and universal human dignity.”
In his report, Mr. de Zayas proposed reforms in the international arena, including in the UN Security Council and the General Assembly, while also stressing that the riches of the planet must be equally shared and not controlled by a few countries or cartels. “Fair trade is possible, as are transfer of knowledge and technical cooperation based on mutual benefit,” he said.
The Special Rapporteur pointed to the international financial crisis as an indicator of inequality in the international order, and called for transparency and accountability in the markets, emphasizing that markets cannot be the “private playground of financial bankers”, and instead need to understand their role as “a public responsibility.” In addition, Mr. de Zayas underlined that a more equitable and democratic international order requires not only international efforts but also domestic reforms which promote social justice and narrow the gap between rich and poor, strengthen the rule of law, and encourage freedom of expression. “Progress in democratization at the domestic level is necessary to ensure a correlation between the true wishes of the people and the governmental measures, including foreign policy, that affects them,” he said.
Current obstacles to achieve a more humanistic international order include “the status quo mentality and general inertia” as well as “vested interests and privilege,” Mr. de Zaya noted, adding that a change of paradigm away from short-term economics is needed along with a rethinking of values and human rights.
Independent experts, or special rapporteurs like Mr. de Zaya, are appointed by the Geneva-based UN Human Rights Council to examine and report back, in an unpaid capacity, on specific human rights themes.
(UN Press Release)
Wednesday, September 12, 2012
Yesterday’s attack on the American diplomatic presence in Benghazi, Libya, which killed the United States ambassador and three other diplomats, was a “sobering reminder” of the serious security challenges that persisted even as the country made steady progress toward democracy, the United Nations’ top political official told the Security Council today. “This horrific and tragic attack, together with a spate of assassinations of security personnel in Benghazi, a series of explosive devices in Tripoli, and attacks on Sufi shrines, further emphasizes the security challenge facing the authorities in Libya,” the UN Under-Secretary-General for Political Affairs, Jeffrey Feltman, told the 15-member body at a meeting on th4e situation in Libya. Mr. Feltman strongly condemned the attack as he introduced Secretary-General Ban Ki-moon’s latest report on the UN Support Mission in Libya (UNSMIL), while also signalling Mr. Ban’s appointment of a new Special Representative, Tarik Mitri, replacing Ian Martin, who helped establish the Mission last year.
The US ambassador to Libya, Christopher Stevens, and three other diplomats were killed when suspected Libyan religious extremists stormed the US Consulate in Benghazi late Tuesday. The extremists reportedly attacked the location in protest against an anti-Islamic video produced by an American-Israeli real-estate developer.
In his remarks to the Council, Mr. Feltman welcomed statements by the Libyan authorities to bring to justice those responsible for the Benghazi attacks. He said that Secretary-General Ban reminded Libyan authorities of their obligations to protect diplomatic facilities and personnel.
In his report – written before Tuesday’s attack in Benghazi – Mr. Ban says that Libya’s General National Congress elections, held on 7 July, marked a major milestone in the country’s transition toward a modern democratic State, after decades of autocratic rule and toppling of the regime of Muammar al-Qadhafi. Colonel Qadhafi ruled the North African country for more than 40 years until a pro-democracy uprising last year – similar to the protests in other countries in the Middle East and North Africa – led to civil war and the end of his regime.
Mr. Feltman underlined the importance of the 8 August transfer of authority from the National Transitional Council, which emerged from the civil war, to the 200-member General National Congress, that quickly and transparently elected a President and two Vice-Presidents in accordance with the country’s Constitutional Declaration. “For the first time in over four decades, Libya now has a democratically elected body,” he said, noting that today, its Congress will vote to appoint a Prime Minister following lengthy deliberations and public presentation of candidates, setting “new standards for the region.” However, he added, the General National Congress now needs to address several urgent governance priorities, including the initiation of a national reconciliation dialogue, providing oversight over all levels of government, tackling decentralization and fighting corruption.
UNSMIL and the United Nations Development Programme (UNDP) provided technical assistance and parliamentary training in preparation for the transfer of authority from the National Transitional Council to the General National Congress, Mr. Feltman said.
Foremost among the challenges facing the Libyan people is security, as yesterday’s attack showed, the UN official said, pointing to arms outside state control, lack of clarity and competition over security responsibilities between and within relevant institutions and the continued prevalence of armed brigades. In addition to these concerns, Mr. Feltman said border security remains a top national priority to combat the smuggling of arms, drugs, human trafficking and illegal migration, as well as the spread of transnational organized crime.
The urgency with which security needs to be addressed was also highlighted by the spate of attacks on Sufi shrines in Libya over the past few weeks, in Zliten, Tripoli, Benghazi and Misrata – all of which had been condemned by the Government.
According to media reports, ultra-conservative Islamists were responsible for the damage, reportedly with the acquiescence of members of the security forces. The sites are revered by Sufis, a branch of Islam known for its moderation but considered heretical by some branches of the Islamic faith.
UNSMIL was assisting the Government to address its acknowledged shortcomings in all key security areas in an integrated manner, Mr. Feltman said, as well as strengthening international coordination to support security sector governance. Addressing the issue of detainees held since the civil war, over which the UN chief expressed deep concern in his report, Mr. Feltman said that while such prisoners were gradually being brought under the authority of Libya’s Ministry of Justice, as well as being screened, a more systematic and accelerated approach was needed.
UNSMIL, he said, continued to urge Libyan authorities to prevent and investigate torture and other mistreatment of detainees, and was working closely with authorities on judicial and penal reform essential for bringing about due process for all detainees.
(Adapted from a UN Press Release)
United Nations Secretary-General Ban Ki-moon and the Security Council today condemned “in the strongest terms” yesterday’s attack against the United States Consulate in Benghazi, Libya, which resulted in the deaths of four US diplomats, as well as Libyan employees of the Consulate. “The Secretary-General condemns this attack in the strongest terms,” Mr. Ban’s spokesperson said in a statement, which noted that the UN chief is “saddened” by the attack and extends his condolences to the US Government and to the bereaved Libyan and American families.
In a press statement, the members of the Security Council echoed the Secretary-General’s reaction and expressed their deep sympathy and sincere condolences to the victims of “this heinous act” and to their families.
The US ambassador to Libya, Christopher Stevens, and three other diplomats were killed, and others injured or killed, when suspected Libyan religious extremists stormed the US Consulate in the eastern Libyan town late Tuesday. Ambassador Stevens was reportedly paying a short visit to the city when the consulate came under attack, and the extremists are said to have attacked the location in protest against an anti-Islamic video produced by an American-Israeli real-estate developer.
“The United Nations rejects defamation of religion in all forms. At the same time, nothing justifies the brutal violence which occurred in Benghazi yesterday,” Mr. Ban’s spokesperson said. “The Secretary-General reminds the Libyan authorities of their obligations to protect diplomatic facilities and personnel.”
Citing the fundamental principle of the inviolability of diplomatic and consular premises, and the obligations on host Governments – including under the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations – the Council members called on authorities to protect diplomatic and consular property and personnel, and to respect their international obligations in this regard. “The members of the Security Council reaffirmed that such acts are unjustifiable regardless of their motivations, whenever and by whomsoever committed,” the Council statement read, while also mentioning that the Council members condemned “in the strongest terms” an attack on the US Embassy in Cairo, Egypt, which took place on Tuesday.
In addition, the Council members underlined the need to bring the perpetrators of these acts to justice, and, according to his spokesperson, the Secretary-General welcomes statements by Libyan authorities that they will bring those responsible for the attack to justice.
(Adapted from a UN Press Release)
United Nations Secretary-General Ban Ki-moon has welcomed the General Assembly’s adoption of a resolution on human security, describing it as “both timely and significant,” and marking “an important milestone in a common understanding of human security at the United Nations.”
“Today’s complex and interrelated threats – natural disasters, violent conflicts, crises in the food, health and economic sectors – pose enormous challenges to the survival, livelihood and dignity of millions of people across the globe,” the Secretary-General added in a statement issued on Tuesday night. “With adoption of this resolution we have reached a common understanding of human security from which we can further strengthen our activities and extend the reach of human security to all,” he noted.
At a meeting on Monday, the General Assembly adopted, by consensus, the resolution on human security. At that meeting, Jordan’s representative, who introduced a second draft of the document – on behalf of the other main co-sponsor, Japan, and the so-called Human Security Network – said that the text made clear that human security was distinct from the principle known as responsibility to protect although it entrusted Governments with the primary role of ensuring its citizens’ survival, livelihood and dignity.
Sometimes known as ‘R2P,’ the principle of the responsibility to protect holds States responsible for shielding their own populations from genocide, war crimes, ethnic cleansing, and related crimes against humanity and requires the international community to step in if this obligation is not met.
“Guided by the principles of the United Nations Charter, human security brings together the three pillars of the Organization and seeks to promote greater coherence in our response to various challenges facing people worldwide,” the UN chief said. He also commended Member States and the meeting’s co-facilitators for their efforts and collaborative spirit in reaching agreement on human security. “We must seize this opportunity to advance the application of human security at the field level and expand collaboration at the international, regional and national levels,” he added.
(Adapted from a UN Press Release)
The Security Council has strongly condemned the wave of terrorist attacks that occurred across Iraq over the weekend and which caused numerous deaths and injuries and damages to the French honorary consulate premises in Nasiriyah. The attacks, which took place on 8 and 9 September, reportedly targeted Iraqi security forces, police recruits and markets, and left more than 50 people dead and more than 200 others injured.
In a statement issued to the press, the 15-member body expressed its deep sympathy and sincere condolences to the victims of these “heinous” acts and to their families, and to the people and the Government of Iraq. “The members of the Security Council reaffirmed that terrorism in all its forms and manifestations constitutes one of the most serious threats to international peace and security, and that any acts of terrorism are criminal and unjustifiable, regardless of their motivation, wherever, whenever and by whomsoever committed,” the statement added. The Council also reminded States that they must ensure that measures taken to combat terrorism comply with all their obligations under international law, particularly international human rights, refugee and humanitarian law.
(Adapted from a UN Press Release)
The United Nations-backed genocide tribunal in Cambodia trying cases of mass murder and other crimes committed under the Khmer Rouge regime has ordered that more than 1,700 confidential documents, including victims’ ‘confessions’ and witness statements, be made public. The decision came after the Supreme Court Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) reviewed more than 12,000 confidential and strictly confidential documents in the case file of Case 0001, in which the former head of a notorious detention camp, Kaing Guek Eav, alias Duch, was the defendant.
The ECCC is a hybrid court set up after a 2003 agreement between the UN and the Cambodian Government with the aim of trying those accused of the worst crimes during the Khmer Rouge regime. As many as two million people are thought to have died during the rule of the Khmer Rouge between 1975 and 1979, which was then followed by a protracted period of civil war in the South-East Asian country. In a news release, the tribunal stated that the reclassification process had been conducted in accordance to previously specified guidelines and in broad consultation with ECCC offices, such as the Trial Chamber, the Office of the Co-Prosecutors and the Victims Support Section, amongst others.
“The Supreme Court Chamber sought to strike a reasonable balance between the demand for transparency deriving from the fundamental principles that govern the procedure before the ECCC and the needs for confidentiality dictated by the protection of privacy for victims and witnesses and the preservation of the integrity of on-going proceedings,” according to the news release. “In this regard, it has considered that wide dissemination of material concerning the Court’s proceedings would support the ECCC’s mandate to contribute to national reconciliation and provide documentary support to the progressive quest for historical truth,” it added. “The Chamber hopes that wide access to documentation in the case file for the general public, researchers and journalists will promote a genuine public discussion of Cambodia’s tragic past based on firm evidence.”
In addition to victims’ ‘confessions’ and witness statements, the 1,749 released documents include victims’ biographies, transcripts of hearings and rogatory letters. The remaining documents will be reviewed for reclassification at the end of the proceeding with they concurrently pertain, the tribunal said.
In February this year, the ECCC’s appeals chamber sentenced Kaing Guek Eav to life in prison, upholding an earlier conviction and extending the existing jail term of 35 years. Mr. Kaing headed the S-21 security prison in the capital, Phnom Penh, where numerous Cambodians were unlawfully detained, subjected to inhumane conditions and forced labour, tortured and executed in the late 1970s.
(Adapted from a UN Press Release)
Secretary-General Ban Ki-moon announced today the appointment of Tarek Mitri of Lebanon as his new Special Representative and Head of the United Nations Support Mission in Libya (UNSMIL), according to the UN chief’s spokesperson. Mr. Mitri will succeed Ian Martin who will complete his assignment on 14 October this year. “The Secretary-General is grateful to Mr. Martin for his dedicated service during his tenure in UNSMIL over the past year,” Mr. Ban’s spokesperson said in a statement.
Mr. Mitri hails from an academic background and has held several ministerial portfolios with the Government of Lebanon between 2005 and 2011. Most recently, Mr. Mitri held the UN Educational, Scientific and Cultural Organization (UNESCO) Chair on Dialogue at Saint Joseph University in Beirut, and served as a Senior Fellow at the American University of Beirut, Fares Center for Public Policy and International Affairs. Prior to joining the Lebanese Government, Mr. Mitri also spent time working with the World Council of Churches in Geneva and the Middle East Council of Churches.
In July, some 2.7 million Libyans headed to the polls to vote for members of the North African country’s new National Congress. Over 3,000 candidates ran for office, including more than 600 women. The election was conducted in a largely peaceful manner, receiving praise from international observers and the Security Council.
The polls were the first free elections in decades in Libya, where Muammar al-Qadhafi ruled for more than 40 years until a pro-democracy uprising last year – similar to the protests in other countries in the Middle East and North Africa – led to civil war and the end of his regime.
(UN Press Release)
The Security Council today extended until the end of March 2013 the United Nations mission assisting Sierra Leone with peacebuilding and long-term development, and called on all actors to ensure that upcoming elections are held in a peaceful, inclusive and credible manner. The West African nation is scheduled to hold four elections, namely presidential, parliamentary, local council and mayoral, on 17 November – a crucial test for a country that is rebuilding after a vicious civil war that ended in 2002.
In a unanimously adopted resolution, the Council extended the mandate of the UN Integrated Peacebuilding Office in Sierra Leone (UNIPSIL) and requested the mission, along with the UN country team and the international community, to provide assistance to the Government and its electoral, democratic and security institutions in the preparation and conduct of the polls. It also called on the Government, all political parties and the people of Sierra Leone “to continue to foster an environment that is conducive to the holding of peaceful, inclusive and credible elections, including through open, genuine and inclusive dialogue to address possible differences, and to respect the outcome of the elections.”
Yesterday, the top UN envoy in Sierra Leone, Jens Anders Toyberg-Frandzen, reported to the Council that the major electoral arrangements, with technical assistance from the UN, are on track as is the training of the police and the provision of the necessary logistics. Mr. Toyberg-Frandzen, the Secretary-General’s Executive Representative and head of UNIPSIL, added that the polls are an opportunity to further consolidate peace and the achievements of the past decade. “The successful conduct of elections will demonstrate the maturity of Sierra Leone’s political leadership and institutions, as well as the consolidation of the democratic process in the country,” he stated.
(UN Press Release)
The Government of Egypt must quickly investigate allegations of torture in its courts and discontinue the trials of those whose testimonies were obtained under duress, an independent United Nations expert urged today. In a statement referring to Egypt’s 2006 Supreme State Security Emergency Court trial which was allegedly plagued by severe irregularities, the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Mendez, voiced his deep concern over the special court’s use of confessions elicited from three men who had reportedly been tortured. The men were subsequently sentenced to death based on the evidence.
“A State’s obligation to ensure that any statement made as a result of torture should not be used as evidence in any proceedings, must apply in all circumstances, including in the context of military courts,” Mr. Mendez said. “The Egyptian authorities should proceed to a prompt and impartial investigation of the allegations of torture claimed by the three defendants,” he added.
In February 2011, the African Commission on Human and Peoples’ Rights condemned the Egyptian court’s trial, conviction and sentencing of the three men on the grounds of having violated the African Charter’s prohibition of torture and cruel, inhuman and degrading treatment and failing to ensure that evidence obtained through torture was not admitted at trial, according to a news release from the Office of the UN High Commissioner for Human Rights (OHCHR).
While the Government of Egypt complied with the African Commission’s request to not carry out sentencing pending a full examination of the cases, Mr. Mendez noted with concern that the review of the cases had been sent to a different panel of the same security court which had tried the men in the first place. “It is of deep concern that the cases have nevertheless been resubmitted to a different panel of the same state security court,” Mr. Mendez said, adding that the move showed the “inability and unwillingness of a state security court to address complaints of torture with the seriousness they deserve.”
The new hearing of the three cases is scheduled to take place on 12 September 2012.
Independent experts, or special rapporteurs like Mr. Mendez, are appointed by the Geneva-based Human Rights Council to examine and report back, in an unpaid capacity, on specific human rights themes.
(UN Press Release)
On Friday, October 12, 2012, St. John's University in New York is hosting a all day symposium on The Revolution in the Regulation of Financial Advice: The U.S., the U.K. and Australia.
Recently, Australia and the U.K. have been carrying out radical reforms in compensation practices for investment advice to retail customers. These reforms contrast sharply with the normal U.S. practices of transparency and increased disclosure requirements. The Symposium will feature panelists from the U.S., Australia and the U.K. exploring recent developments in the regulatory regimes of those countries. Specifically, panelists will discuss the future of investment adviser regulation after Dodd-Frank in the U.S., the Future of Financial Advice in Australia and the Retail Distribution Review in the U.K. The Symposium will also examine the benefits of different regulatory plans ranging from mandatory disclosure to more substantive regulation preventing conflicts of interest.
Brian Shea, Chief Executive Officer, Pershing LLC, a BNY Mellon Company
Phyllis C. Borzi, Assistant Secretary of Labor, Employee Benefits Security
- The Future of Fiduciary Duties for Financial Advice
- The Structure of Regulation for Investment Advisers: A Self-Regulatory Organization or Not?
- International Issues in the Regulation of Financial Advice
CLE credit is available. There is no fee to attend the symposium, but registration is required. For more information, visit the symposium website.
Tuesday, September 11, 2012
Secretary-General Ban Ki-moon yesterday lauded Switzerland’s devotion to cooperation, compassion and the relief of poverty, noting that the country’s commitment to human rights reflected the spirit and mission of the United Nations. “Switzerland is the global home for health and human rights, for refugee assistance and disaster preparedness, for labour rights and fair trade and so much else,” Mr. Ban told the Swiss Parliament in an address marking the 10th anniversary of Switzerland’s accession to the UN and the first by any UN Secretary-General to the Swiss national legislature. “Your devotion to the relief of poverty and suffering around the world is so powerful that it has been incorporated into the Federal Constitution,” he continued, adding that the Latin inscription written on the Parliament’s ceiling signifying ‘One for all, and all for one’ also encapsulated “the spirit of the United Nations.”
The UN chief thanked the Swiss parliamentarians for their rapid approval of a financial donation for the renovation of the Palais des Nations – the UN headquarters in the country and the second largest UN centre after the Organization’s Headquarters in New York. “The Palais des Nations is itself a monument to the ideals that the United Nations and Switzerland share – a living monument where thousands of staff bring those ideals to life,” the UN chief stated. “The United Nations highly values your commitment to preserving our history while making the complex a model of sustainability and energy use in serving new generations.”
Shifting to a number of topical issues confronting the Organization – such as the situation in Syria and meeting sustainable development goals – the Secretary-General also urged the Swiss legislature to continue helping the UN tackle the world’s most critical concerns. “The bonds between Switzerland and the United Nations are strong and growing stronger,” Mr. Ban said. “At this time of uncertainty and unease, it is good to know that the United Nations can count on your support, on your friendship, on your commitment and on your leadership of Switzerland.”
During his visit, Mr. Ban also met with the President of the Swiss Confederation, Eveline Widmer-Schlumpf, to whom he expressed appreciation for Switzerland’s significant contributions to the UN’s work. At the same time, he underlined that much had yet to be done on a host of issues including the achievement of the anti-poverty targets known as the Millennium Development Goals (MDGs) by the 2015 deadline, the fight against climate change and ridding the world of nuclear weapons. “I think we will have to go a long way to realize all of these goals and objectives, realizing sustainable political stability all around the world, particularly in the Arab countries that are in transition,” the Secretary-General said in a joint press conference following his meeting with President Widmer-Schlumpf. “I think these are a common commitment and I think these are a common collective responsibility that we can and we should work together [on] in the years to come,” he added.
(Adapted from a UN Press Release)
Monday, September 10, 2012
New Scholarship on Proposed Statutes that Try to Prohibit State Court Judges from Citing Foreign or International Law
Dr. David L. Nersessian has written an article on “How State Legislative Bans on Foreign and International Law Obstruct the Practice and Regulation of American Lawyers.” It will be published in the Arizona State Law Journal, but you can read the paper now by clicking here. It's a good piece of scholarship and will likely be an often-referenced source of information on the initiatives that states have promulgated to try to prohibit the citation of foreign or international law in state judicial decisions. Here's the abstract of his article:
Thirty-three state legislatures have introduced (and five have enacted) “blocking” initiatives that prohibit foreign or international law in state judicial decisions. Some states, such as Oklahoma, extend this ban to religious tenets, notably Sharia law. Scholarly discourse to date has focused principally upon how such legislation discriminates against minority religious groups. The academic community has yet to consider the serious collateral (and apparently unintended) impact of such laws on the American legal profession itself, which is the subject of this article.
Blocking laws make it all but impossible for practicing lawyers to fulfill their ethical obligations in legal matters abroad, which forces them either to decline legal work overseas or to risk violating foreign laws. Blocking initiatives also create uncertainty about ethical duties at home whenever domestic legal work includes a transnational dimension. Such laws resurrect the “double deontology” problem (where inconsistent ethical duties apply simultaneously) that the revised ABA Model Rules intended to solve. They also eviscerate the Rules’ safe harbor protection on difficult choice of law questions.
Blocking measures also interfere with wider regulatory structures. They infringe unconstitutionally on the power of state judiciaries to prescribe substantive ethical rules and to regulate lawyer conduct abroad. They also disrupt reciprocal discipline between American states and relationships between state judiciaries and federal courts. But this confluence of negative outcomes is completely unnecessary because judges have sufficient tools already to guard against potential abuses in the application of foreign or international law.
Apart from invalidating existing laws as unconstitutional, there should be a concerted effort by American lawyers, state judiciaries, and bar organizations to oppose such initiatives becoming law in the first place. There certainly is room for spirited disagreement over the proper role of foreign and international law in American courts. But this requires a genuine debate, not legislative ultimatums that foreclose all further consideration. Blocking laws essentially require American lawyers (not to mention judges – members of co-equal branches of state government) to pretend that foreign and international law do not exist. Such proposals are neither workable nor wise, and they amount to little more than misguided hope that certain global legal realities – if sufficiently ignored – might simply go away.
The Central States Law Schools Association (CSLSA) Annual Scholarship Conference is scheduled for October 19-20, 2012 at Cleveland-Marshall College of Law. Law faculty are invited to submit proposals to present papers at the conference. Abstracts of no more than 500 words should be submitted by September 15, 2012.
For more information about how to submit an abstract or updates on the conference, visit the CSLSA website.