February 15, 2013
Inter-American Commission on Human Rights Proposing Changes to Rules of Procedure
At joint meetings with the Inter-American Court of Human Rights in Costa Rica this past week, the Inter-American Commission on Human Rights (IACHR) made significant progress on proposed changes to its Rules of Procedure, policies and practices. The purpose of the proposed reforms is to strengthen the Inter-American System of Human Rights. The IACHR will now be publishing those proposed changes and seeking public comment over a two-week period. For more information, see this IACHR press release.
US Files New WTO Dispute Against India Involving Solar Panels
Earlier this week, the United States initiated dispute settlement proceedings at the World Trade Organization (WTO) in connection with alleged unfair trade practices involving solar panels from India. Accoding to a WTO press release, the United States alleges that "India requires solar power developers to buy and use domestic solar cells and solar modules in order to benefit from participating in the Jawaharlal Nehru [National Solar Mission] (NSM) programme and to enter into contracts under the NSM programme or with the National Power Company. According to the United States, the benefits for solar power developers, contingent on their purchase and use of domestic solar cells and solar modules, would include subsidies through guaranteed, long-term electricity rates."
As a result, the United States requested consultations with India, the first step in the WTO dispute resolution process. If consulations fail to resolve the matter within 60 days, the United States may request the establishment of a dispute resolution panel. The matter has been assigned number WT/DS456/1.
In other WTO news this past week, Japan and the European Union (EU) both filed cross-appeals of panel decisions. Japan filed a cross appeal in the dispute involving “Canada — Renewable Energy” (WT/DS412) and the EU filed a cross appeal in the dispute involving “Canada — Feed-in Tariff Program” (WT/DS426). Canada had filed appeals of these reports on February 5, 2013.
Former President of Maldives Has Sought Refuge in the Indian High Commission
The former President of the Maldives, Mohamed Nasheed, has sought refuge in the Indian High Commission, and is urging all parties to work towards conditions conducive for the upcoming elections in line with the country’s Constitution. Mr. Nasheed has been inside the Indian High Commission in the capital city of Malé since February 13, 2013, when police attempted to arrest him in a case relating to accusations that he illegally detained a judge during the last days of his rule, according to media reports.
The former leader was elected in 2008 in the first multi-party presidential elections in the country in three decades. He resigned in February of last year in contested circumstances, succeeded by his former deputy, Mohammed Waheed Hassan.
The Government set up a National Commission of Inquiry to probe the events leading to the regime change, with the Commission presenting its findings in August. His supporters say the legal case against Mr. Nasheed is meant to bar him from running in the presidential elections, scheduled for September 7, 2013.
Last night, U.N. Secretary-General Ban Ki-Moon urged all political actors “to exercise restraint, renew their commitment to the Constitution and work toward creating conducive conditions for fair, peaceful and inclusive elections.” He added that all parties should field the candidates of their choice “in accordance with the rule of law and the Constitution.”
(adapted from a UN Press Release)
Venezuela Must Release Judge
A group of United Nations experts has urged Venezuela to immediately release Judge María Lourdes Afiuni, who has been in detention for the past three years and was the victim of sexual violence and aggression during the time she was incarcerated. “It is unacceptable that Venezuelan authorities are not acting with due diligence to investigate the acts perpetrated against Judge Afiuni in an immediate and impartial manner, and severely punish those responsible,” said the Special Rapporteur on violence against women, Rashida Manjoo.
Ms. Afiuni was imprisoned in December 2009 after she allowed the release of a businessman charged with subverting currency controls. She said that the man, Eligio Cedeño, had been held in prison while awaiting trial longer than Venezuelan law generally permitted, and that her ruling complied with a recommendation by a UN human rights organ. Since then, Ms. Afiuni has been held in pre-trial detention. According to her lawyer, Ms. Afiuni was raped while in prison and consequently had an abortion. Last year, she was granted house arrest in Caracas, the capital, due to medical problems.
“Judge Afiuni’s situation is an emblematic case of reprisal for having cooperated with one of the UN’s human rights organs,” said the Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya. “Allowing reprisals against a judge for having applied a recommendation by the Working Group on Arbitrary Detention and keeping her detained awaiting a trial for more than three years has opened the door for many more abuses, and has an effect of intimidation,” stressed the head of the Working Group, Hadji Malick Sow.
In December, Ms. Afiuni’s lawyer requested she be freed, but this was denied by the Government in January.
Special Rapporteur on torture Juan E. Méndez underlined that the rape and other acts of grave sexual violence by State officials not only amount to torture but also create stigma surrounding the victim. In addition, the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, said the decision to release Mr. Cedeño was in accordance with Venezuelan law and under the mandate of Ms. Afiuni.
The experts called on the Government to investigate the acts of violence and offer adequate compensation to Ms. Afiuni. They also urged authorities to prevent and abstain from any acts of intimidation or reprisals against those who try to cooperate or have cooperated with the UN human rights mechanisms in the past.
(Adapted from a UN Press Release)
Freedom of Religion and Freedom of Association in Indonesia
A group of United Nations independent experts has called on the Government of Indonesia to amend a bill that requires new organizations to adhere to the official State philosophy that supports the belief in only one God and imposes restrictions on the types of activities they can carry out.
“The State must ensure that any restriction on the rights to freedom of association, expression, and religion is necessary in a democratic society, proportionate to the aim pursued, and does not harm the principles of pluralism, tolerance and broadmindedness,” said the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai.
Under the Bill on Mass Organizations, new associations must not be in contradiction with Pancasila – the official State philosophy that consecrates the belief ‘in the One and Only God’. It also stipulates that organizations have the duty to maintain religious values.
Mr. Kiai noted that the bill runs contrary to the significant progress towards democratization made by Indonesia over the past decade, which has paved the way for a flourishing civil society.
The Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt, said the legislation violates these freedoms and clarified that freedom of religion also applies to non-theistic and atheistic convictions.
The bill also restricts the types of activities that associations can carry out, and bans those activities which ‘endanger the unity and safety’ of Indonesia, as well as those which are the duty of law enforcers and Government. This last one could prevent organizations from uncovering instances of bad governance, such as corruption cases.
“Associations should be free to determine their statutes, structures and activities and to make decisions without State interference,” Mr. Kiai pointed out, warning that the bill threatens associations with burdensome administrative requirements.
If the bill is passed, the Government will be able to oversee the administration of associations through an information system. Foreign organizations will face the same restrictions, but will also need to obtain a permit to operate in the country, and foreign nationals who want to start an association will have to have lived in the country for at least seven consecutive years and place over $1 million of their personal wealth in the association.
The bill, which is due to be voted on soon, also stipulates that the Government may suspend associations without obtaining a prior court order. “Let me stress that suspension of associations should only be sanctioned by an impartial and independent court in case of a clear and imminent danger resulting in a flagrant violation of domestic laws, in compliance with international human rights law,” stated Mr. Kiai.
(Adapted from a UN Press Release)
Human Rights in the Transnistrian Region (Between Moldova and Ukraine, it Declared Independence in 1990 but is Politically Unrecognized)
Human rights transcend borders and abuses require swift and effective action, a top United Nations official said yesterday, following the first published report on the situation in the politically unrecognized Transnistrian region.
“Human rights do not have any borders. It is vital to address underlying human rights issues in disputed territories, regardless of the political recognition or the legal status of a territory,” High Commissioner for Human Rights Navi Pillay said in a press release. “We should neither forget nor neglect the human rights of people who live in areas which, for various reasons, are controlled by de facto authorities,” she added, calling on the international community to support the deployment of human rights experts to disputed territories.
The Transnistrian region, settled between Moldova and Ukraine, declared independence in 1990 and witnessed months of fighting in 1992. The region has not been under the effective control of the Government of Moldova since 1992.
“People living in disputed territories, where legitimacy of control over a territory, security, development and humanitarian concerns are frequent, often lack or have very limited access to effective legal remedies,” said Ms. Pillay.
The report’s author – independent expert Thomas Hammarberg – visited the region three times between May and November 2012. He recommended a thorough reform of the penitentiary system in the Transnistrian region, including a review of the number of prisoners and an abolition of inhuman disciplinary measures. “The human rights expert also asked the de facto authorities to give high priority to measures against trafficking of human beings and its root causes,” stated the news release from Ms. Pillay’s office (OHCHR). The report also urges a review of the local laws for consistency with international human rights law and calls on the de facto government to develop a plan of action to address the recommendations.
Ms. Pillay visited Moldova and the Transnistrian region in November 2011. During that time, she held meetings with the de facto authorities on issues concerning violations of minimum international standards relating to conditions in places of detention, as well as persistent allegations of arbitrary detention, torture and ill-treatment in custody. The High Commissioner praised Mr. Hammarberg’s report for being apolitical. “Mr. Hammarberg’s research in the Transnistrian region clearly demonstrates how the deployment of technical human rights experts can truly benefit people on the ground, without having a bearing on issues of political recognition or the legal status of a territory.”
(adapted from a UN Press Release)
February 13, 2013
Changes to the I-9 Employment Verification Form
There's a CLE program today on changes to the I-9 Employment Verification Form used in the United States to verify eligibility for employment. The program, from the Illinois State Bar Association, has great materials, and is being recorded in case you miss today's live presentation. Get more details by clicking here or search the Illinois State Bar Association website for the February 13, 2013 program called "Changes to the Employment Eligibility Verification Form I-9: Is Your Business Client in Compliance?" I get to serve as the moderator -- the others participating are Juliet Boyd (Boyd & Kummer LLC, Chicago), Y. Judd Azulay (Chicago), Patrick M. Kinnally (Kinnally Flaherty Krentz & Loran PC, Aurora, Illinois), and Scott D. Pollock (Chicago).
February 12, 2013
New Book: Transnational Legal Processes and Human Rights
Ashgate Publishing is about to release "Transnational Legal Processes and Human Rights." The book was edited by Kryiaki Topidi and Lauren Fielder (both of the University of Lucerne Faculty of Law in Switzerland). Dr. Topidi teaches courses and researches on religious rights and has a research background in minority protection and EU law. Professor Fielder teaches African Law, Protection of Vulnerable Groups, and Transnational Litigation at the University of Lucerne, where she is the assistant director of the Transnational Legal Studies Program. She writes and speaks about human rights issues in Africa.
There are twelve chapters on the topic, including these:
- Ruth Hargrove (California Western School of Law) and Roberta Thyfault (California Western School of Law), The Impact of, and Resistance to, the Use of Foreign Law on Juvenile Punishment in the United States
- Mark E. Wojcik (The John Marshall Law School-Chicago), Legislative Attempts to Prohibit the Use of International Law and Islamic Law in U.S. Courts
- Lauren Fielder (University of Lucerne Faculty of Law), African Courts and African Values: Harmonizing International Human RIghts and Customary Law
- Kyriaki Topidi (University of Lucerne Faculty of Law), Exercising Religious Rights in European Classrooms: Value Conflicts between the National, the Supranational, and the Transnational
- Ehsanul Haque, Universal Human Rights and Cultural Relativity: Conflict or Reconciliation?
- Angelica Anatolie Tsarkiridis, Corporate Responsibility and Human Rights in the Context of an International Constitutional Legal Framework
- Ali Abid, Combating Religious Defamation: An Exploration of Blasphemy in Islamic Thought and International Practice
Expanding the Executive’s Power to Kill: The U.S. Justice Department’s Memo
Guest blogger, Professor Thomas McDonnell of Pace University School of Law, prepared the following comments on the recently released U.S. Justice Department legal memorandum authorizing drones strikes:
"The Justice Department’s legal memorandum authorizing drone strikes to kill American citizens in foreign countries establishes vague and overbroad standards and creates a dangerous precedent for unchecked executive power. The memo impliedly approves hit lists, including targeting American citizens, whom “an informed, high level official of the U.S. government” concludes to be “a senior operational leader of al-Qa’ida or an associated force.” “An informed, high level official” presumably may include a senior official in the Central Intelligence Agency—which has carried out over 300 drone attacks in the Pakistan tribal areas since 2004, not to mention attacks in Yemen and Somalia.
Written by the Justice Department’s Office of Legal Counsel, the memo implicitly adopts the questionable global-war-on-terrorism theory, contending that the exceptional law of war regime applies outside of armed conflict to any foreign state on the planet if that state is unable or unwilling to “suppress” (arrest, capture or kill) individuals whom the executive believes to be terrorists. (The exceptional law of war regime permits deliberately killing (1) combatants, (2) civilians who directly participate in hostilities, and (3) non-combatants—civilians who fall into the expansive category of collateral damage—as long as the requirements of military necessity are met.)
Under international law, the exceptional law of war regime only applies to war zones—areas of armed conflict, like Afghanistan and possibly to a neighboring state like the Pakistan tribal areas from which attacks are launched with impunity, but the law of war regime does not by extension apply to the entire world. International human rights law (rather than the law of war) has plenary authority in areas not subject to armed conflict and permits the use of deadly force only where an individual threatens imminent serious bodily harm or death to another (like Jimmy Lee Dykes who imminently threatened to take the life of a five year old Alabama boy he had kidnapped).
The Justice Department memo stretches “imminency” far beyond its plain meaning. Once an “informed, high level [governmental] official” determines the American citizen to be a high level member of al-Qa’ida or an “associated force,” that American citizen is conclusively presumed always to be posing an imminent threat even if he or she is not plotting or in the process of carrying out any attacks against the United States whatsoever. According to the memo, such an American citizen may at all times be targeted by a weaponized drone in any country anywhere in the world that an "informed, high level [U.S. governmental] official” decides is unable or unwilling to arrest, capture or kill.
Significantly, the Justice Department memo deals only with targeting American citizens. Presumably, the administration’s standard for targeting non-citizens is considerably lower. September 11 demonstrates the danger that transnational terrorist organizations pose and the special danger
of foreign states providing safe havens for terrorists. Outside of areas of armed conflict, that threat should be met through the United Nations, or, in the event of Security Council paralysis because of a permanent Security Council Member veto, by a wide coalition of states. When acting unilaterally in such areas, the United States should strictly follow international human rights law.
Furthermore, the Justice Department should recognize that the broad executive discretion it asserts will be used not just by this administration, but by future administrations and that this broad authority to kill virtually anywhere on the globe will be exploited not just by the United States, but by other nations, possibly including Russia, China, Iran, Sudan, and North Korea. If the United States refused to surrender to Russia a Chechen whom the Russians regarded as a terrorist leader, should Russia implicitly be authorized to send a drone (or a special operations assassination team) into the United States to kill the Chechen on the ground that the United States is unwilling to capture or arrest that individual? More commonly, the United States example might encourage other powerful countries to use such authority to carry out military operations, including drone “targeted killing” strikes, in weaker countries. Is such a policy and practice likely to make the world safer and less violent?
There is another dimension to this question. A drone attack can be launched two continents away by a drone “pilot” sitting in the comfort of a control room without the slightest possibility of suffering any injury whatsoever, let alone risking his or her life. It is the ultimate in unchivalrous combat. The Reaper Drone can carry four Hellfire missiles, plus two 500 pound bombs. A single Hellfire missile can destroy a tank (or a house). We are employing this high tech weaponry against the Taliban, al Qa’ida and their allies, religious zealots who have adopted the ultimate low tech weapon, the suicide bomber. There is growing evidence that the drone attacks in Yemen have led to increased recruitment by extreme Islamic terror organizations and that drone attacks in Pakistan have led to a popular outcry against the United States in Pakistan and sharper criticism in the greater Muslim world. The tactical success of drone attacks killing over 50 Taliban and al Qa’ida leaders thus runs the substantial risk of being a strategic failure.
One would have hoped that after the so-called infamous torture memos, the Justice Department’s Office of Legal Counsel would have tread more conservatively, would have erred on the side of putting limits on executive power and would have adhered to the spirit as well as to the letter of both the international law of war and international human rights law. Given the deadly nature of al Qa’ida and its allies, one can understand the argument in favor of much more flexible legal rules on the use of force. Yet strictly applying both law of war and human rights law will better ensure the moral authority of the United States, will better promote world public order and international cooperation, and is more likely to provide a firmer path towards eliminating the threat of transnational terrorism."
Professor McDonnell is the author of "The United States, International Law, and the Struggle against Terrorism" (Rutledge 2010) as well as numerous articles, including his most recent, Sow What You Reap? Using Predator and Reaper Drones to Carry Out Assassinations or Targeted Killings of Suspected Islamic Terrorists” which was recently published by the George Washington International Law Review (44 Geo. Int'l L. Rev. 243 (2012)).
February 11, 2013
Globe Law and Business
The British publisher Globe Law and Business has just come out with its 2013 catalogue of titles. I'm impressed: they have some nice titles of interest to internatioanl practitioners (and international law professors), including these titles:
- World Trade Law in Practice
- International Franchising
- International Copyright Law
- International Design Protection
- International Patent Litigation
- International Advertising Law
- Internatioanl Public Procurement
- Cross-Border Involency: A Commentary on the UNCITRAL Model Law
- Doing Business in the BRICs
There are many other titles, as you might expect. If you would like more information on any of these titles (or if you would like a copy of their catalogue), contact publisher Sian O'Neill at soneill [at] gbp.co.uk or go all Twitter and reach her at @GlobeLaw. Or click on the link above, which is probably the easiest thing to do. Globe Law and Business offers a money-back guarantee within 14 days, something not done by other publishers.
Torture in Afghanistan
The United Nations Mission in Afghanistan (UNAMA) today welcomed the announcement of recommendations by the Government to stem torture, ill-treatment and prolonged illegal detention in the country. “UNAMA welcomes the Government’s attention and increased efforts to address this serious problem in Afghan detention facilities,” the Mission stated in a press release, noting the announcement of the main findings of a fact-finding delegation on the issue tasked by Afghan President Hamid Karzai, pending release of the full report. Click here to read more.
The delegation’s work followed the release last month of a UNAMA report that found that more than half of detainees that were interviewed between October 2011 and October 2012 experienced torture or other ill-treatment. The report expressed particular concern over facilities run by the national police and the National Directorate of Security, or NDS. “UNAMA looks forward to receiving and reviewing the delegation’s report and providing follow-up suggestions to improve detention policies and practices,” the Mission stated, noting that the delegation’s findings, as reported, recognized the prevalence of torture in Afghan facilities.
In October 2012, following new reports of torture at several NDS and police facilities, including locations where the UN-mandated International Security Assistance Force (ISAF) had transferred detainees, the Force suspended transfers for a second time. ISAF subsequently stopped transferring detainees to several Afghan facilities and implemented a process limiting transfer to a reduced number of Afghan facilities and increasing monitoring and accountability.
In its January report, UNAMA stated that its findings reinforce the urgent and long-term need for reforms in the judiciary, prosecution and law enforcement sectors and offered 64 recommendations to the Government and international partners. UNAMA also recommended the creation of an independent national preventive mechanism on torture described in the Optional Protocol to the Convention against Torture.
(adapted from a UN Press Release)