Saturday, May 11, 2013
Federal Appeals Court Upholds Injunction Against the Florida State Statute Known as the "Cuba Amendment"
The U.S. Court of Appeals for the Eleventh Circuit has upheld a lower court's injunction against the "Cuba Amendment," a Florida Statute that prohibits any company that does business with Cuba (or any company that is in any way related to a company that does business with Cuba) from binnding on state or local public contracts in the State of Florida. The federal appellate court agreed that that there was a substantial likelihood of showing that the Cuba Amendment violated the Supremacy Clause of the U.S. Constitution "under principles of conflict preemption." The court found that "[t]he Cuba Amendment conflicts directly with the extensive and highly calibrated federal regime of sanctions against Cuba promulgated by the legislative and executive branches over almost fifty years." Because the Cuba Amendment differs dramatically from federal law, it weakened the President's ability "to speak for the Nation with one voice in dealing" with Cuba. The opinion is 44 pages long and re-affims that individual states cannot have their own foreign policy when the federal government has spoken. The case is Odebrecht Construction, Inc. v. Secretary, Florida Department of Transportation, No. 12-13958 (May 6, 2013).
Brazil has become the 79th State Party to join the United Nations Convention on Contracts for the International Sale of Goods (CISG), Brazil becomes the 79th State Party to the Convention. The Convention will enter into force for Brazil on April 1, 2014.
The CISG provides an equitable and modern uniform framework for the contract of sale, which is the backbone of international trade in all countries, irrespective of their legal tradition or level of economic development. The CISG is considered to be one of the core conventions in international trade law. It establishes a comprehensive code of legal rules governing the formation of contracts for the international sale of goods, the obligations of the buyer and seller, remedies for breach of contract and other aspects of the contract.
From the UNCITRAL Website
Myanmar (Burma) Joins the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards
Myanmar has deposited its instrument of accession to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly known as the "New York Convention." With its accession, Myanmar becomes the 149th State party to the Convention. The Convention will enter into force for Myanmar on 15 July 2013. The New York Convention is widely recognized as a foundation instrument of international arbitration. It requires courts of contracting States to give effect to arbitration agreements and to recognize and enforce awards made in other States, subject to specific limited exceptions.
Friday, May 10, 2013
The Inter-American Human Rights Commission (IACHR) has referred several new cases to the Inter-American Court of Human Rights this spring. Two cases that may be of particular interest involve Venezuela and El Salvador.
In the case against Venezuela, the IACHR filed an application with the Court in Case No. 12.828, Marcel Granier et. al. RCTV. The facts revolve around the decision of the State of Venezuela not to renew the authorization to the frequency to Radio Caracas Television (RCTV). As a consequence of this decision, on May 28, 2007, RCTV stopped the transmission as an open television station.
In its Merits Report, the IACHR concluded that Venezuela's decision to not renew the license violated the right to freedom of expression, the right to equality and non-discrimination, and administrative due process. Although the formal objective declared by the State to support diversity and pluralism was indeed a legitimate public interest, the evidence of the case showed that the decision was based on the editorial line of the station. As a result, the IACHR found that the decision was incompatible with freedom of expression. In addition, RCTV was treated differently in comparison with other TV operators whose circumstances related to the concession were identical. The IACHR determined that the difference of treatment was not justified and thereby violated the rights to equal protection under the law and non-discrimination. The Commission also concluded that the process that led to the confiscation of property of RCTV violated administrative due process.
The IACHR referred the case to the Court on February 21, 2013, because the State did not inform the Commission in a timely manner of its efforts to comply with the recommendations contained in the Merits Report. According to an IACHR press release, "this case will allow the Court to analyze for the first time the effects on the right to freedom of expression, in its individual and social dimensions, as a consequence of the actions of the State related to the assignment of radio and television licenses. . . Additionally, this case will allow the Court to deepen its jurisprudence regarding the principle of equality and non-discrimination, especially when the States undertake a differential treatment based on the political opinion. The Court would have to establish the scrutiny that needs to be made in these cases, as well as the supporting parameters and the substantive criteria that must be followed to evaluate whether or not a differential treatment of this nature is compatible with the American Convention on Human Rights."
In a second case against El Salvador, the IACHR filed an application with the Court in Case No. 12.577, Rochac y otros. The facts of this case refer to the forced disappearance of the boys Jose Adrian Rochac Hernandez, Santo Ernesto Salinas, Manuel Antonio Bonilla Osorio and Ricardo Ayala Abarca, and the girl Emelinda Lorena Hernandez. These disappearances took place between 1980 and 1982, in circumstances with similar characteristics. More than 30 years after their disappearance, the destiny or whereabouts of any of the victims are still not known. Thus, according to the IACHR, these crimes remain in impunity, given that the State did not conduct a serious and diligent investigation, within a reasonable period, on the forced disappearance of the victims, as a mechanism to guarantee their rights and to ensure the rights to truth, justice and reparation of their family members. The IACHR also concluded that El Salvador violated the right to family and special protecton of the boys and the girl, as the State was responsible for the actions of its Armed Forces, which led to the separation of the victims from their families of origin, through their forced disappearance.
The IACHR sent the case to the Court on March 21, 2013, because the IACHR deemed that the State had not complied with the recommendations contained in the IACHR's Merits Report. In that report, the IACHR recommended the State to conduct a thorough, impartial, and effective investigation into the fate or whereabouts of the disappeared persons and, if they are found, make the necessary efforts to ensure family reunification. If it is established that any of them is not alive, the State is to take the measures necessary to deliver their remains to their next-of-kin; to conduct a thorough, impartial, and effective investigation into the facts to determine the responsibility and to punish all the perpetrators of the human rights violations to the detriment of the victims in the instant case, including the investigations necessary to determine the responsibility and punish the persons who participated in covering up the facts and in the denial of justice; to make adequate reparation to the victims of the instant case, including both the material and non-material aspect; among other measures.
More information regarding these cases may be found on the IACHR website.
General Efrain Rios Montt spent almost an hour denying the charges of genocide he is now facing in Guatemala. Montt ruled Guatemala for 17 months during 1982 and 1983, when the Guatemalan army killed many indigenous citizens while searching for leftist guerillas.
Montt's trial in Guatemala was suddenly suspended last month when another judge tried to annul the trial, leading to fears that Montt's supporters had found a way to influence the trial. But Guatemala's highest court issued a ruling that the trial judge (Yasmin Barrios) has interpreted to allow testimony to continue. The prosecution is seeking a sentence of 75 years for genocide and crimes against humanity. Montt is now 86 years old. Elisabeth Malkin, Ex-Dictator Denies Role in Guatemalan Massacres, N.Y. Times, May 10, 2013, at A10.
Amnesty International reported yesterday that Eritrea's government has imprisoned about 10,000 dissidents without charge or trial. Amnesty calls Eritrea one of the world's most repressive states, where detainees include "anyone who refuses to comply with the repressive system." Eritrea: Report Tallies Repression, N.Y. Times, May 10, 2013, at A8.
General Miguel Dalmao, who was a 23-year-old lieutenant in 1974, was convicted in Uruguay for human rights violations during the country's dictatorship. He was sentenced to 28 years in prison for the murder of a communist professor. Uruguay: General is Convicted, N.Y. Times, May 10, 2013, at A8.
Thursday, May 9, 2013
The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights took effect on May 5, 2013. It will allow individuals or groups to file a complaint with the United Nations if their rights are infringed by a Member State that is party to the Protocol.
In a statement celebrating the occasion as “a major advance,” UN High Commissioner for Human Rights, Navi Pillay, voiced hope that the Protocol would finally fill a long-time gap in international law. “Egregious violations of economic, social and cultural rights are occurring, often unnoticed, on a daily basis, which in the area of civil and political rights would have been immediately condemned,” said Ms. Pillay in a news release. “This Protocol will help to address this imbalance.”
According to the Protocol, citizens of signatory nations will be permitted to appeal to the UN’s Committee on Economic, Social and Cultural Rights on specific rights-related cases after they have exhausted all attempts to find justice in their respective country. The Protocol grants the Committee authorization to conduct inquiries if it receives reliable information indicating “grave or systematic violations by a State party of any of the rights covered by the Covenant.”
The Protocol took effect on May 5, 2013, three months after Uruguay became the required tenth country to ratify it. The parties to the Optional Protocol are:
- Bosnia and Herzegovina,
- El Salvador,
- Spain, and
Mark E. Wojcik (mew) (adapted from a UN Press Release)
Wednesday, May 8, 2013
The faciliators tasked with making recommendations regarding the next Director General of the World Trade Organization (WTO) announced their recommendation of Ambassador Roberto Carvalho de Azevêdo (Brazil) (pictured to the left) as the candidate who can gain consensus approval of WTO members. The announcement came at a Heads of Delegation meeting yesterday. The facilitators suggested that members approve Amb. Azevêdo as Director-General at the General Council meeting on 14 May 2013. The full statement by the Chair of the General Council regarding the announcement may be found here.
Tuesday, May 7, 2013
The U.S. House of Representatives Foreign Affairs Subcommittee on Africa, Global Health, Global Human Rights and International Organizations will hold a hearing on parental child abduction issues on May 9, 2013 at 10:00 a.m. in Room 2172 Rayburn House Office Building.
Hat tip to the ABA Governmental Affairs Office
On May 2, Liechtenstein became the first World Trade Organization (WTO) member to ratify the amended version of the WTO Government Procurement Agreement (GPA) that was adopted on 30 March 2012. The Protocol of Amendment will come into effect upon its acceptance by two thirds of the 42 Member States party to the GPA. The Chairman of the Committee on Government Procurement, Mr. Bruce Christie of Canada, has urged the Parties to ratify the new agreement in time to be celebrated at the WTO Ministerial Conference to be held in Bali, in December of 2013.
The GPA is a plurilateral agreement within the WTO system which provides a framework for the progressive liberalization of markets for the procurement of goods, services and construction services by governments. Like the other WTO agreements, it is based on principles of non-discrimination, transparency and procedural fairness, and embodies a set of best practices in public procurement based on the experience of the participating governments. The existing version of the Agreement was developed as part of the Uruguay Round of multilateral trade negotiations. The revised text of the Agreement and expansion of related market access commitments attached to the Protocol were negotiated by the Parties over a period of more than ten years, which was concluded in March 2012.
As reported earlier on this blog (here and here), Senegal has created a special court called the Extraordinary African Chambers to investigate and try the former President of Chad, Hissene Habre, who is charged with war crimes and crimes against humanity during his 8-year reign from 1982-1990. On Friday, Chad and Senegal signed an agreement to allow Senegalese judges to conduct investigations in Chad in furtherance of the work of the Extraordinary Chambers. The agreement will allow the Senegalese judges to travel to Chad, speak with witnesses, visit former prisons and engage in othet activities necessary to investigate charges against Habre. The agreement is another welcome step forward in the long process to bring justice to the victims of Habre's rule.
Monday, May 6, 2013
A United Nations group of independent experts has drawn attention to discrimination against persons with albinism in Tanzania, where they are the victims of ritual attacks and are routinely mistreated. "They are regarded as ghosts and not human beings who can be wiped off the global map," said the group in a message marking Tanzania's National Albinism Day. "People living with albinism [are] the target of many false and harmful myths in several countries, especially in the African region."
Albinism is a rare, non-contagious, genetically inherited condition occurring in both genders regardless of ethnicity, in all countries of the world. It can happen to anyone if both father and mother carry the gene for it even if they do not have albinism themselves. Albinism results in a lack of pigmentation in the hair, skin and eyes, causing vulnerability to sun exposure and bright light.
In several African countries, it is believed that body parts of persons with albinism possess magical powers capable of bringing riches if used in potions produced by local witchdoctors. Some even believe that the witchcraft is more powerful if the victim screams during the amputation, so body parts are often cut from live victims.
Non-governmental organizations working in the field have documented 186 ritual attacks against people with albinism since 2000. Abductions and killings were recorded in 15 African states. "These are manifestations of the worst forms of cruel, inhuman or degrading treatment and can never be justified," the Special Rapporteur on torture, Juan E. Méndez, said. "Under international human rights law it is the duty of the State to afford protection to persons with albinism against such barbaric acts."
People with albinism are not only brutally mutilated and tortured, but also killed and often buried alive together with tribal chiefs so as not to leave them in the grave alone. "These acts must be stopped and the perpetrators must be brought to justice without delay," said Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns. "States bear full responsibility to undertake thorough, prompt and impartial investigations of all killings of persons with albinism, as well as to adopt the necessary measures to bring an end to impunity and prevent the recurrence of such killings," he added.
People living with albinism is that they are often rejected and abandoned by their own families due to pressure from society, the UN Independent Expert on minority issues, Rita Izsák, noted. "Their stigma, the lifelong social exclusion and general discrimination they face is a similar experience to those vulnerable racial minorities because of their different skin colour," she said.
While numbers vary, in North America and Europe it is estimated that 1 in every 20,000 people have some form of albinism. In Tanzania, and throughout East Africa, albinism is much more prevalent, with estimates of 1 in 2,000 people being affected. The Special Rapporteur on racism, Mutuma Ruteree underlined that Governments must ensure that persons living with albinism have the same opportunities as everyone else and that they are treated with the same dignity.
Almost all people with albinism are visually impaired. They may also have a shortened life span by lung disease or may develop life-threatening skin cancers. The Special Rapporteur on health, Anand Grover noted that they often do not receive the necessary health care, and urged authorities to assess their needs to increase their life chances. Educating children about albinism is also important to prevent discrimination against them, said the Special Rapporteur on the right to educations, Kishore Singh. "There are now several educational methodologies and guides to teachers that have proved efficient in the course of educating children with albinism. These must be widely promoted and applied."
The experts urged UN bodies such as Office of the High Commissioner for Human Rights (OHCHR) to study the root causes of discrimination and attacks on persons with albinism, and call on world governments to raise awareness and educate the public at large about the true nature of albinism. "Dedicated national days, such as it exists in Tanzania can provide a great opportunity to trigger more attention to and launch discussion on the plight and needs of people living with albinism," they said. "They are not ghosts; they are simply persons like you and us, but living with albinism."
(UN Press Release)