Monday, December 1, 2014
On Friday, the United States filed an appeal of the World Trade Organization (WTO) compliance panel's report in “US – Certain Country of Origin Labelling (COOL) Requirements (Article 21.5 – Canada and Mexico)” (WT/DS384, WT/DS386). This dispute was originally filed against the United States by Canada and concerns a requirement in the U.S. Agricultural Marketing Act, as amended, that determines how a product's country of origin is to be determined and disclosed to consumers.
In 2011, a WTO dispute settlement panel found that the U.S. rules were inconsistent with the United States' WTO obligations in part because they do not fulfill the legitimate objective of providing consumers with information on origin. In 2012, the WTO Appellate Body upheld the panel's finding that the U.S. measure violates the Agreement on Technical Barriers to Trade (TBT), but for different reasons.
The United States notified the WTO of its intent to comply with the ruling, but requested a reasonable period of time to implement the decision. In 2013, the United States issued a new final rule to comply with the WTO decision; however, Canada disputed whether the amended rule is compliant with WTO obligations. Accordingly, Canada requested the establishment of a compliance panel. That compliance panel agreed with Canada that the amended COOL regulation also violates the TBT Agreement. It is this decision that the United States is now appealing. The WTO Appellate Body will now consider this latest development in this long-running dispute.
Friday, November 28, 2014
Finland Gets Same-Sex Marriage Following a Citizens' Initiative to Upgrade Civil Partnerships to Marriage
The Finnish Parliament today approved (by a vote of 105-92) a citizen's initiative to legalize same-sex marriage. The law will end the distinction between same-sex registered partnerships and opposite-sex marriages and will give couples the opportunity to share a surname and to adopt children. Same-sex couples in Finland could enter into registered partnerships since 2002, but it was the only Nordic country without same-sex marriage. Finland is now the 12th European state to do so, and the first one by a citizen initiative. Click here to read more.
Thursday, November 27, 2014
In his address before the United Nations General Assembly in 2013, the President of The Gambia, Yahya Jammeh, named homosexuality as one of the three biggest problems facing the world (along with greed and nuclear weapons).
The Gambia this year amended its Criminal Code to create a broad and vague offence of “aggravated homosexuality” punishable by life imprisonment. The amendment was signed into law on October 9, 2014. There are also increasing reports of arbitrary arrests and detention of LGBT persons in The Gambia.
“This law violates fundamental human rights – among them the right to privacy, to freedom from discrimination, and freedom from arbitrary arrest and detention,” said the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, in a statement issued by his office in Geneva this morning. “It adds to the stigma and abuses that lesbian, gay, bisexual and transgender (LGBT) people already face in The Gambia,” he stressed.
Mr. Zeid said the new law replicates a section of the Ugandan Anti-Homosexuality Act denounced by the former High Commissioner for Human Rights, the Secretary-General, and the African Commission Special Rapporteur on Human Rights Defenders.
“Governments have a duty to protect people from prejudice, not to add to it. Public hostility towards gay and lesbian people can never justify violating their fundamental human rights. Instead, it requires increased measures to protect them against human rights violations,” Mr. Zeid said. “This has been reaffirmed by UN human rights mechanisms and the African Commission on Human and Peoples’ Rights,” he added.
Since the new law was approved, representatives of The Gambia’s National Intelligence Agency have been reportedly conducting door-to-door enquiries to identify, arrest, and detain individuals believed to be homosexual. Some of those detained have allegedly also been subjected to violent attacks and mistreatment, Mr. Zeid said. In other countries, similar laws have also led to an increase in violence against members of the LGBT community, including mob attacks.
“I call on The Gambia to fulfil its international obligations to promote and protect the human rights of all persons without discrimination, to repeal all provisions of the Criminal Code that criminalize relations between consenting adults and to put in place an immediate moratorium on arrests on the basis of such laws,” the High Commissioner said.
(mew) (adapted from UN press releases)
Legislators in Uganda previously passed an Anti-Homosexuality Act that the Uganda Constitutional Court nullified in August 2014 because that bill had been passed during a parliamentary session that lacked a quorum. Before that law was nullified, several countries had cut off or redirected financial assistance to Uganda because of that anti-gay law. Ban Ki-Moon, Secretary General of the United Nations, welcomed the decision of the Constitutional Court at the time and called for efforts to decriminalize same-sex relationships and address the stigma and discrimination against LGBT persons in Uganda. He also noted that the African Commission on Human and People's Rights had adopted a resolution on protecting LGBT persons from violence on the basis of their actual or perceived sexual orientation or gender identity.
Instead of moving on to other issues, some lawmakers in Uganda have been drafting new legislation that they reportedly want to introduce for debate before the end of the year to punish the promotion of homosexuality.
The President of Uganda, Yoweri Museveni, has said that anti-gay legislation threatens Uganda's economic ties with other nations.
Scott Lively, an American citizen living in Massachusetts, has been sued in the United States under the Alien Tort Act for his role in promoting antigay laws in Uganda.
Vitaly Cherkasov, a human rights lawyer defending an LGBT activist, said he was attacked after leaving a St. Petersburg court. He identified one of the assailants as Anatoly Artyukh, an Orthodox activist and aide to Vitaly Milonov, a local anti-gay lawmaker. During the court hearing, anti-gay activists shouted insults at attorney Cherkasov and his client.
In August 2014, the American Bar Association House of Delegates adopted a policy that in part calls upon bar associations and attorneys in jurisdictions (like Russia) where there are discriminatory LGBT laws "to defend victims of anti-LGBT discrimination or conduct, and to recognize and support their colleagues who take these cases as human rights advocates . . . ."
Germany's coalition government passed a law yesterday that will require large corporations to ensure that at least 30% of supervisory positions on the Board of Directors are held by women by 2016. The law is expected to be approved by Angela Merkel's cabinet on Dec. 11. Currently, between 80-85% of corporate board positions in Germany are held by men. The law is expected to affect approximately 100 publicly listed companies. In the future, another 3,500 companies will be required to adopt gender equity targets. Similar measures are being considered in the Netherlands, Norway and Italy.
Women also lag behind men in positions on corporate boards in the United States. According to Catalyst, women occupy approximately 16.9% of board positions in the United States. However, it may be difficult for a similar measure to pass constitutional muster in the U.S. The U.S. Supreme Court typically examines gender-based discrimination using intermediate scrutiny, which begins with a presumption that the law is invalid. To overcome the presumption, the proponent of the law must demonstrate that the gender quota is substantially related to an important government interest.
Tuesday, November 25, 2014
The decision by a Grand Jury in Missouri to absolve a police officer for the fatal shooting of an African-American teenager has spotlighted broader concerns about institutionalized discrimination across the United States, the top United Nations human rights official said today.
“I am deeply concerned at the disproportionate number of young African Americans who die in encounters with police officers, as well as the disproportionate number of African Americans in US prisons and the disproportionate number of African Americans on Death Row,” said UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, in a statement issued by his office in Geneva this morning.
“It is clear that, at least among some sectors of the population, there is a deep and festering lack of confidence in the fairness of the justice and law enforcement systems,” Mr. Zeid continued. “I urge the US authorities to conduct in-depth examinations into how race-related issues are affecting law enforcement and the administration of justice, both at the federal and state levels.”
Michael Brown was shot by a white police officer in the US town of Ferguson, in Missouri on 9 August, sparking protests around the country and enflaming the debate surrounding the treatment of African-American men by US law enforcement.
The High Commissioner explained that without knowing the specific details of the evidence laid before the state of Missouri Grand Jury, he remained unable to comment on whether or not the verdict itself conformed to international law. However, he said, continuing reports of deadly encounters between police officers and members of the African-American community had repeatedly prompted concerns among respected national bodies and by UN bodies monitoring the implementation of international human rights treaties.
Mr. Zeid noted that just two weeks ago, Mr. Brown’s parents had addressed the UN Committee against Torture, which is currently reviewing the US application of its obligations under the relevant Convention.
The Grand Jury’s decision last night to not charge the officer, Darren Wilson, comes just three days after another African-American, Tamir Rice, was shot dead by police in Cleveland, in the State of Ohio, because he was holding a non-lethal replica gun. Tamir Rice was 12 years-old.
Mr. Zeid noted that Tamir Rice’s killing not only reiterated the racial disparity in deaths at the hands of US police officers but also placed the issue of gun-related deaths in the US back into focus.
“In many countries, where real guns are not so easily available, police tend to view boys playing with replica guns as precisely what they are, rather than as a danger to be neutralized,” he stated.
Pointing to Article 9 of the UN’s Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Mr. Zeid confirmed that law enforcement officials were called upon to “not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury.”
“In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life,” the High Commissioner concluded.
(UN Press Release) Photo: Protestors gather in New York City to demonstrate against the police shooting of Michael Brown (August 2014). Photographer: Louey Felipe
The United Nations Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, today warned that the audit of the justice sector and the dismissal of all international judicial personnel from Timor-Leste puts at risk the independence of the judiciary in the country.
“I am troubled that the decision may have been taken in retaliation for court judgments which displeased members of the Government and the Parliament,” Ms. Knaul said, adding that she had already raised the issue with the authorities and urged them to reconsider their decision.
In two separate resolutions dated 24 October, the Timor-Leste Parliament and Government called for an audit of the courts and the immediate contract termination of all international judicial personnel and advisers working in the justice sector.
In another resolution dated 31 October, the Government singled out eight international staff – five judges, two prosecutors and one adviser – and ordered them to leave the country within 48 hours.
“The resolutions represent a serious interference in the independence of the judiciary,” Ms. Knaul said, stressing that the immediate dismissal of international judicial personnel could undermine the proper administration of justice in Timor-Leste, including access to justice and due process guarantees.
“It may also have a chilling effect on national members of the judiciary, affecting their independence,” she warned.
Ms. Knaul also cautioned that this situation may further result in the suspension of trials in cases of crimes against humanity and other serious crimes committed in 1999, as the law requires that the panels set up to consider these crimes comprise of two international judges.
Admittedly, Timor-Leste has made great progress in building its judicial institutions over the past decade, she said, highlighting the essential role played by international judicial personnel in the national capacity-building process.
While the reduction of the number of international judges, prosecutors and other legal professionals is a legitimate path to follow, it should be a process implemented in full conformity with international human rights law and standards, as well as national laws and procedures.
“I urge both Parliament and Government to reconsider their decisions and initiate a dialogue with the relevant partners, including the UN, to address this serious situation and map an appropriate way forward in compliance with Timor-Leste’s international human rights obligations,” she added.
Independent experts or special rapporteurs are appointed by the Geneva-based Council to examine and report back on a country situation or a specific human rights theme. The positions are honorary and the experts are not UN staff, nor are they paid for their work.
(UN Press Release)
Monday, November 24, 2014
The Association of American Law Schools (AALS) Section on International Law is pleased to sponsor two programs at the AALS Annual Meeting in Washington D.C. from January 3-4, 2015.
The first program is called “Adding Foreign and Comparative Law to Your Courses: Guidelines, Materials, and Practical Advice for Law Professors.” Using comparative and international materials can enrich teaching of almost any course and can better prepare law students for the transnational contexts of their future legal work. This panel will provide practical examples, materials, and advice on how to integrate foreign and international law materials in basic first-year courses, as well as some upper-level courses. It will be held on Saturday, January 3, 2015 from 5:15-6:30 pm. Audience participation in sharing ideas is strongly encouraged, but the program will be led by:
- Professor Cindy G. Buys, Southern Illinois University School of Law (constitutional law)
- Professor Matthew Charity, Western New England School of Law (contracts)
- Professor Milena Sterio, Cleveland-Marshall College of Law (criminal law/civil procedure)
- Professor Mark E. Wojcik, The John Marshall Law School – Chicago (torts)
The second program is titled “The Influence of International Law on U.S. Government Decision-Making” and will be held on Sunday, January 4 from 10:30 am -12:15 pm. This panel will explore the role that international law plays in informing the policy outcomes arrived at by U.S. government decision-makers. It will examine questions such as: To what extent is international law determinative or even influential, and to what extent does the policy area, the branch of government, or the ideological orientation of the decision-maker matter? As a more practical matter, at what stage in the decision-making process is international law taken into account and who are the most influential actors? How can academics be most influential in that process?
- Mary McLeod, Principal Deputy Legal Advisor, Office of the Legal Advisor, U.S. Department of State
- Sandra Hodgkinson, Vice President of Planning and Chief of Staff at Finmeccanica, North America and DRS Technologies. Ms. Hodgkinson formerly served as Assistant Secretary of Defense for Detainee Affairs and as Deputy to the Ambassador-at-Large for War Crimes Issues. She also worked for the Coalition Provisional Authority in Iraq as Director of the Office of Human Rights and Transitional Justice from 2003-04.
- Ralph Steinhardt, Professor of Law & Arthur Selwyn Miller Research Professor of Law, George Washington University Law School. Professor Steinhardt is the winner of the Section’s Call for Papers and will present his paper, “International Law and the Administrative State.”
The panel discussion will be moderated by the Section Chair, Professor Cindy G. Buys, from Southern Illinois University School of Law.
We hope to see you there!
Wednesday, November 19, 2014
The Law Library of Congress has organized a magnificent exhibit of the Magna Carta for the 800th Anniversary of that document. If you're going to the annual meeting of the Association of American Law Schools, plan to get over to the Jefferson Building to see that exhibit. Connected to the exhibit are many side events at the Law Library of Congress, including this conversation with David Mao (the Law Librarian of Congress), Chief Justice John Roberts of the U.S. Supreme Court, and the recently-retired Lord Chief Justice of England and Wales, The Right Honourable The Lord Judge.
Hat tip to the Law Library of Congress
Tuesday, November 18, 2014
The U.N. General Assembly and Security Council have elected Mr. Patrick Lipton Robinson of Jamaica as a member of the International Court of Justice. He will serve a nine-year term that begins on February 6, 2015.
Mr. Robinson is the former President of the International Criminal Tribunal for the Former Yugoslavia (ICTY), a position he held from 2008-2011. He was first elected to the ICTY in 1998 and was re-elected twice. In 2004, he presided over the trial of Slobodan Milošević, the former Yugoslav president and the first former head of state to be tried for war crimes.
Mr. Robinson had been a candidate for the slot at the International Court of Justice along with Ms. Ruis Cerutti of Argentina. Ms. Cerutti withdrew her candidacy a few days ago, clearing the way for Mr. Robinson's election by the General Assembly and Security Council. Click here to read more.
Human Rights Watch Urges U.N. Security Council to Refer North Korea to the International Criminal Court
The United Nations Security Council should act on a historic General Assembly resolution by referring the situation in North Korea to the International Criminal Court, Human Rights Watch said today. On November 18, 2014, the General Assembly endorsed a recent UN Commission of Inquiry report detailing crimes against humanity in North Korea and recommended that the Security Council discuss the report and consider an ICC referral.
“Today’s General Assembly resolution affirms the need for a tribunal to address the North Korean government’s unspeakable crimes,” said Kenneth Roth, executive director of Human Rights Watch. “The Security Council should follow up by referring North Korea to the International Criminal Court to investigate the long list of crimes against humanity.”
The North Korea resolution passed by a vote of 111 to 19, with 55 abstentions. China and Russia, longtime supporters of the North Korean government, voted against the resolution. (A separate draft text tabled by Cuba, without key passages endorsing the Commission of Inquiry report and recommending debate in the Security Council, was defeated by a vote of 40 to 77, with 50 abstentions).
While the resolution passed overwhelmingly, several countries that are members of the International Criminal Court, including Senegal, Bangladesh, and Nicaragua, abstained on the vote. North Korea had made recent diplomatic overtures seemingly to try to affect the vote, such as by offering for the first time to engage with the UN human rights rapporteur on North Korea and participating in the Universal Periodic Review process at the UN Human Rights Council.
The Commission of Inquiry report, issued in February 2014, documented massive crimes against humanity in North Korea, including deliberate starvation, forced labor, executions, torture, rape, and infanticide, among other crimes – most of them committed in North Korea’s political prison camp systems. The 400-page report concluded that the bulk of the crimes against humanity were committed “pursuant to policies set at the highest levels of the state.” It recommended that the international community take action to ensure accountability, including through possible referral to the International Criminal Court. The report noted that the gravity, scale, and nature of ongoing abuses were “without parallel in the contemporary world.”
Many UN member countries have become more active on human rights violations in North Korea since the Commission of Inquiry report shed light on the human face of the government’s egregious abuses. The report contains numerous accounts from survivors and escapees of North Korea’s prison system of government atrocities.
While North Korea’s new diplomatic efforts are important, they do not begin to address the scope of the government’s human rights violations that fill the Commission of Inquiry report, Human Rights Watch said. The North Korean government continues to deny the findings of the Commission of Inquiry, and has issued its own human rights report which declared that North Koreans “feel proud of the world’s most advantageous human rights system.”
“No Security Council country, including China, can deny the horror endured by so many North Koreans,” Roth said. “Decades of impunity have only reinforced North Korea’s unparalleled repression. The time has come for justice.”
(Press release from Human Rights Watch)
Monday, November 17, 2014
In 2012, Viet Nam initated the dispute settlement process against the United States at the World Trade Organization (WTO) with respect to a number of US anti-dumping measures on certain frozen warmwater shrimp from Vietnam. Vietnam alleged that the United States violated WTO rules in two administrative reviews and the five-year “sunset review,” as well as with respect to several US laws, regulations, administrative proceedings and practices, including zeroing. The WTO Dispute Settlement Body (DSB) established the panel in February 2013. Earlier today, the WTO panel circulated its report, in which if finds that certain of the measures challenged by Vietnam are inconsistent with the GATT 1994 and the Anti-Dumping (AD) Agreement, and recommends that the United States bring the relevant measures into conformity with its obligations under these Agreements.
More specifically, and unsurprisingly in light of earlier WTO findings on this issue, the panel found that the United States had violated its WTO obligations in its use of zeroing to calcuate dumping margins for individually examined Vietnamese producers/exporters in the three administrative reviews at issue. The panel further found that the non-market-entity or NME rate applied to the NME-wide entity was inconsistent with Article 9.4 of the AD Agreement. Likewise, the panel found that the US had improperly used the zeroing methodology in the sunset review. Finally, the panel found that the United States had improperly rejected certain requests by Vietnamese producers/exporters for revocation in contravention of article 11.2.
On the other hand, the panel rejected Vietnam's allegation that section 129(c)(1) of the Uruguary Round Agreement Act, which implements the United States' WTO obligations in domestic law, prevents the United States from implementing its WTO obligations with respect to prior unliquidated entries.
Sunday, November 16, 2014
CERD: How Independent Civic Groups' Reports Apply the Convention on the Elimination of Racial Discrimination to Japan's Controversy Over Hate Speech Aimed at Ethnic Koreans
We are pleased to share this guest blog post from Andrew Macas of Chicago, who describes research on hate speech against Koreans in Japan.
How Independent Civic Groups' Reports Apply CERD to Japan's Controversy Over Hate Speech Aimed at Ethnic Koreans
Japan became a party to the International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, 660 U.N.T.S. 195 (“CERD”) on December 15, 1995.1 Japan made a reservation to CERD's Art. 4(a) and (b) prohibitions against “propaganda activities” and “incitement to racial discrimination[.]”2 The reservation limits Art. 4(a) and (b)s' application “to the extent that fulfillment of the obligations is compatible with the guarantee of the rights to freedom of assembly, association and expression and other rights under the Constitution of Japan[.]”3
The Committee on the Elimination of Racial Discrimination monitors implementation of CERD.4 Japan must periodically report on measures it takes to comply with CERD.5 Japan's reporting data and documentation for CERD is available on the UN's human rights website.6
NGOs on both sides of the hate speech issue chime in on the Japanese Government's role in the issue.
Arguments for Koreans Needing More Protection from Hate Speech
1. The Japan Federation of Bar Associations (JFBA)
JFBA provides several examples of the need for more protection.7 This need for protection arises out of, inter alia, North Korea's missle launches and Nuclear testing in recent years.8 JFBA first brings up the Japanese Government's failure to engage in “awareness-raising activities to prevent the occurrence of harassment against Korean schoolchildren and students in Japan.”9 The Government did not even provide “details of the content and scale of 'enlightenment activities' stated in the [7-9 State Party's Report]” or study data for counseling it provides to Koreans.10 JFBA then lists several instances of violence aimed at Korean schools:
Immediately after it was reported that [North Korea] had a missile-launching test on July 5, 2006, Korean schools received a large number of threatening and silent phone calls, and derogatory e-mails only within the three weeks from July 5 to July 26. One of the threatening calls made such remarks as 'I am going to throw a firebomb into your school' and 'five high school students will be killed within a week.' There was also such harassment as marks in red paint on the entrance gates. There were 121 cases in total only which the schools reported to the central headquarters of the teachers’ union for [North Korea] residents in Japan. In some cases, defamatory bills were posted on the street. In Osaka, a boy in the second grade at elementary school was beaten by Japanese, and also in Aichi, a boy in junior high school was beaten.11
JFBA also provides an example of violent protesting and police inaction at a Korean elementary school:
The group interfered with the school’s educational activities on that date, and committed assaults such as throwing the platform for the morning assembly, which resulted in the arrest of four people for crimes such as forcible obstruction of business. Despite witnessing the apparent insults and forcible obstruction of business, the police at the scene did not arrest the group members on the spot, and even failed to deter them from such crimes. … [T]he police did not promptly prevent the group from committing the crime or arrest them. Partly because of not being immediately arrested, the same activist group once again intruded into the Kyoto No.1 Korean Elementary School in January 2010 to unleash a torrent of abuse.12
For these reasons, JFBA recommended that the Government study these violent situations in order to find solutions and “implement more decisive and effective measures to eliminate them, including criminal punishment of assailants.”13
2. The Committee on the Protection of Human Rights of the Central Head Office of the Korean Residents Union in Japan (MINDAN)
MINDAN also called on the Japanese Government to do more to prevent hate speech.14 “[MINDAN] was founded in October 1946 as an autonomous organization for Korean residents in Japan who were coercively or semi-coercively brought to Japan due to the Japanese colonial rule of Korea . . . and [who] were unable to return to Korea after WWII.”15 MINDAN list seventeen “examples of hate speech[,]” such as:
1) August 25, 2012 Shin-Okubo, Tokyo
- - Rally name: 'Subjugating the Koreans: Citizens' March in Shin-okubo'
- - Main hate speech
- 'Kill them all!' 'We're gonna kill you!' 'Burn them alive!' 'Death to Koreans'
2) October 27, 2012 Uguisudani, Tokyo
- - Rally name: 'Immediately Drive Out the 50,000 Modern Koreans and Comfort Women! Citizens' March in Uguisudani'
- - Main hate speech
- 'Beat them to death!' 'Choke them to death!' 'Kill all Koreans!'
3) February 9, 2013 Shin-Okubo, Tokyo
- - Rally name: 'Drive Out the Lawless Koreans! Rally to Eradicate Korean Influence in Shin-Okubo'
- - Main hate speech
- 'Massacre them all!' 'Hang the Koreans! Poison them! Let them jump off a building!'
- 'Good or Bad Koreans, it doesn't matter, kill them all!' ….
5) February 24/March 31, 2013 Tsuruhashi, Osaka
- A junior high school female student gives a speech in the street, and says, 'Forget about the Nanjing Massacre! Do a Tsuruhashi Massacre!'; 'We're going to massacre the Koreans!'16
MINDAN insists that this speech which crosses the line of “'Koreans must leave Japan!'” and “call[s] stridently for ethnic massacres” poses special dangers when it occurs in heavily Korean-populated neighborhoods.17 This situation creates “a pressing need to  employ human rights education in public institutions and teach the importance of creating a society in which human rights violations do not take place and people can mutually co-exist.” Two reasons for doing so are to reduce “the potential [of] escalat[ing ]violence in the future” and to protect Japan's image for the upcoming 2020 Olympics.18
MINDAN also called on the Japanese Government to retract its Article 4(a) and (b) reservations and to implement “[s]trict legal regulations . . . to protect Japan's foreign minorities, children, youth and the democratic society here[ in Japan.]”19
Arguments for Koreans Needing Less Protection from Hate Speech
1. The Nadeshiko Action Japanese Women for Justice and Peace Group (JWJP, hereinafter, “Nadeshiko”)
Nadeshiko challenged the need for protecting Koreans.20 Nadeshiko asserts that “Korean residents in Japan have enjoyed their privileges [more] compared to other foreign residents and even to [those of] Japanese nationality.”21 Nadeshiko frames the issue as (1) "a racial privilege rather than as hate speech” and (2) “[t]he racial privileges given to the Korean residents in Japan is a kind of racism guaranteed by the state.”22
Nadeshiko defends the demonstrations of the Zaitokukai, “an association protesting privileges of Korean residents[,]” civic group.23
The very important thing is that radical or not, the legal demonstration under permission of the authorities is the right of liberty of expression or of the freedom of assembly [sic], the basic human rights guaranteed by the [Japanese] Constitution.
Some groups, which defend their privileges, attack these legal demonstrations under the pretext of 'Hate speech', obstructing with a kind of violence and violating the right of liberty of expression. It's these groups which do hate speeches masquerading as anti-hate speech.24
Nadeshiko cites two protest incidents, a racially-motivated knife attack by a Korean resident of Japan, a Youtube video, and eight photos in support of these propositions.25 The Youtube link, “http://youtu.be/aRPAe9yapwU” [sic], leads to a slightly different URL with the same video described in the Nadeshiko Report.26 The Video shows several segmented and often low-resolution clips of counter protesters as seen from the street.27
Nadeshiko finally calls for the Committee to recommend both “[t]aking measures to prevent violence against legal demonstrations or assembly guaranteed by the [Japanese] Constitution” and “[r]eview[ing] the privilege given to Korean residents in Japan [and] considering it as a kind of racism.”28
2. The Civic Activity [sic] for Appealing to Abolish The Privileges of Koreans in Japan (Zaitokukai)
Zaitokukai contests the “special rights” of Korean residents of Japan on the basis of Article 1(4) of CERD.29 That Article provides that:
4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.30
Zaitokukai first recommends heavily regulating pachinko gaming because of both its negative health effects and because it provides “funding for the North Korean criminal groups that have caused hundreds of abductions.”31 It contests allegations of hate speech at its rallies because “the aggressive phrases like 'Kill Koreans,' 'Cockroaches,” etc. were expressed by some participants of the demonstrations, and therefore not the appeal points of the demonstrations [sic].”32 It casts the blame for violence at its rallies on the “violent obstructions by the counter action groups.”33 It accuses the Chosan and MINDAN civic groups, which represent Koreans, of “handl[ing] violent men like the current counter action members as mentioned above, in order to force their opinions on Koreans in Japan.”34
Zaitokukai finally recommends registering Korean permanent residents of Japan “as citizens of South Korea within three years” so that “they do not need the current privileges” that they have in Japan.35
Even one issue such as the hate speech here may have many parties with a stake in how treaties and the law are interpreted.
1https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&lang=en (hereinafter, “CERD List”) (listing Japan's accession to CERD and status as of “13-11-2014 12:06:05 EDT) (last visited Nov. 13, 2014).
2CERD List (listing Japan's reservation to CERD), Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, 660 U.N.T.S. 195 (hereinafter, “CERD”), Art. 4(a), (b).
4Monitoring the core international human rights treaties, http://www.ohchr.org/EN/HRBodies/Pages/TreatyBodies.aspx (last visited Nov. 13, 2014).
5CERD, Art. 9(1).
6http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx (hereinafter, “Reporting List”) (providing a list of treaties Japan participates in and reporting documents after selecting “Japan” from the “Please select a country” drop-down menu) (last visited Nov. 13, 2014).
7 Japan Federation of Bar Associations Report on Response to the Seventh, Eighth and ninth Report of the Japanese Government of the International Convention on Elimination of All Forms of Racial Discrimination, JFBA/36/14 (Jul. 14, 2014) (hereinafter, “JFBA Report”) (available in English athttp://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=INT%2fCERD%2fNGO%2fJPN%2f17649&Lang=en) (last visited Nov. 15, 2014).
8JFBA Report, p. 17-18.
9JFBA Report, p. 17-18, CERD/C/JPN/7-9, Reports submitted by States parties under article 9 of the Convention Seventh to ninth periodic reports of States parties due in 2013 Japan (Jan. 14, 2013) (hereinafter, “7-9 State Party's Report”) (available in four languages including English at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD%2fC%2fJPN%2f7-9&Lang=ensymbolno=CERD%2fC%2fJPN%2f7-9&Lang=en) (last visited Nov. 13, 2014).
10JFBA Report, p. 18; See 7-9 State Party's Report.
11JFBA Report, p. 18.
12JFBA Report, p. 18-19.
13JFBA Report, p. 20.
14Report on The Issue of Racism and Hate Speech in Japan (Jul. 18, 2014) (hereinafter, “MINDAN Report”) (available in English at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=INT%2fCERD%2fNGO%2fJPN%2f17699&Lang=en) (last visited Nov. 15, 2014).
15MINDAN Report, p. 2.
16MINDAN Report, p. 5-7.
17MINDAN Report, p. 9-10.
18MINDAN Report, p. 10.
19MINDAN Report, p. 22-23.
20Comment on The Issue of Hate Speech Masquerading as Anti-Hate speech by Privileged Korean Residents in Japan for 85th session (11 to 29 August 2014) in The International Convention on Elimination of All Forms of Racial Discrimination (Jul. 24, 2014) (hereinafter, “Nadeshiko Report”) (available in English at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=INT%2fCERD%2fNGO%2fJPN%2f17777&Lang=en) (last visited Nov. 15, 2014).
21Nadeshiko Report, p. 3.
22Nadeshiko Report, p. 4-5.
23Nadeshiko Report, p. 3.
24Nadeshiko Report, p. 3.
25Nadeshiko Report, p. 4, 6.
26Nadeshiko Report, p. 6, CH True Japan, Hate Speech Masquerading as Anti-Hate Speech, (hereinafter, “Video”) (available at https://www.youtube.com/watch?v=aRPAe9yapwU&feature=youtu.be) (last visited Nov. 15, 2014).
28Nadeshiko Report, p. 5.
29Report on The Privileges of Koreans in Japan, p. 2 (submission and publication dates unavailable) (hereinafter, “Zaitokukai Report”) (available in English at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=INT%2fCERD%2fNGO%2fJPN%2f17756&Lang=en) (last visited Nov. 15, 2014), CERD, Art. 1(4).
30CERD, Art. 1(4) (emphasis added).
31Zaitokukai Report, p. 2-3.
32Zaitokukai Report, p. 5.
33Zaitokukai Report, p. 5.
34Zaitokukai Report, p. 7.
35Zaitokukai Report, p. 9.
Click here to visit the website of the United Nations High Commissioner for Human Rights.
We are pleased to share this guest post from Djenita Svinjar of Chicago:
On November 9th, the world celebrated the 25th anniversary since the fall of the Berlin Wall. This event is undoubtedly one of the most significant events in German, and world history, in commemorating the removal of the barrier that had divided a country between democracy and communism. Yet, the anniversary of this significant event seemed to be overshadowed by grave remarks made by former USSR leader Mikhail Gorbachev a mere day beforehand.
Gorbachev, who had been the president of the USSR until 1991 (notably the last leader of the Soviet Union), raised concerns about current Middle East issues and European conflicts. He specifically honed in on the Ukraine crisis, and Western countries and Russia casting the blame on the other party in "old ways" of thinking. However, Gorbachev attributed the blame to the US, stating that following the fall of the USSR, the US had taken part in "triumphalism" which contributed to the inability to cope with extreme international conflicts, as seen in the former Yugoslavia, the Middle East, and most recently, Ukraine. Gorbachev seems to fear that a new Cold War has already begun, with tensions at an all time high, and seems to be urging the US and Western powers to ease tensions by lifting sanctions on Russia and taking part in peaceful talks. However, one may question whether these acts, if undertaken, would serve any purpose?
Russia seems to be flaunting its military muscle and hardheaded thinking when it comes to NATO and Western powers. Most recently, the country snubbed UN support for the extension of the EURFOR military mission in Bosnia and Herzegovina, which was voted in by other members of the UN security council earlier this past Monday. Russia abstaining from voting for the extension was the first time in the 14 year installation of the program that a member declined to support it. It seems that Russia appears to be defying any possible control or part that Western powers have in Eastern Europe, particularly when considering that just last week, Great Britain and Germany undertook a new initiative (with US support) on Bosnia with hopes to progress EU membership, given that Bosnian politicians would sign on to, and support political reforms within the nation.
Sadly, Russia's ambivalence and defiance seem to shed some light on Gorbachev's warnings.
Saturday, November 15, 2014
We're pleased to share a guest blog post from Victor Cerda of Chicago:
There is little room to doubt that racial relations, which continue to cause social unrest within the United States, have been historically strained. The events occurring in Ferguson, Missouri highlight how volatile the social implication of difference in skin color has been for centuries. The series of protests reveals a need for a national discussion on how to resolve this generational issue.
While a need for discussion is necessary, one must discuss the approach taken by the family of the victim. The parents of Mike Brown, the young man shot to death by police, are in Geneva, Switzerland, testifying before the United Nations Committee Against Toture. The U.N. Convention Against Torture came into force in 1987. The United States signed and subsequently ratified the treaty in 1994, meaning, as a nation, we have an obligation to uphold the treaty.
So, what exactly are the obligations under the treaty? Article 1 defines torture as:
Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
— Convention Against Torture, Article 1.1
A team of legal professionals has drafted a document complaining of the United States’ compliance with the convention. In that document, the drafters cite CAT article 1, but fail to emphasis the final sentence which adds that torture does not include “pain or suffering arising only from, inherent in or incidental to lawful sanctions.” Each state within the United States, and the United States as a whole, has sanctioned lawful use of force by officers. We have authorized officers to decide when, where, and how to apply the use of force in the heat of the moment, in the line of duty. The decision to legitimize such authority has brought a relatively peaceful country under a rule of law.
I do not mean to imply that racial profiling does not occur. I am not suggesting that racism is not alive. What I am stating is that the disproportionate and systematic use of force by law enforcement is a domestic issue, and not one that amounts to torture, as defined by the convention.
The international community must be hesitant to allow such a broad application to the definition of the torture. The bright side, however, is that the international community’s attention could influence the United States to address the demographic discrepancies in law and punishment. Reform is necessary, but the world should pressure the United States to comply with the law, not change the law to comply with the facts.
Tuesday, November 11, 2014
On the heels of an announcement yesterday that the records of the United Nations War Crimes Commission were made open to the public for the first time in 70 years, a panel discussion examining the historical significance and potential use of the records was held this afternoon at UN Headquarters in New York.
Yesterday, the records of the UN War Crimes Commission, which was operational between 1943 and 1948 and played a vital role in preparations for the war crimes trials that followed the Second World War, were made open to the public at the United States Holocaust Memorial Museum in Washington, D.C.
Copies of the Commission’s records were provided to the museum this past July, although they were not freely available to the public until now.
Speaking at the panel discussion, United Nations War Crimes Commission Records (1943-1949): Past, Present and Future, Adama Dieng, UN Special Adviser on the Prevention of Genocide, underscored the importance of acknowledging the Commission’s legacy in terms of dealing with war crimes today. “The United Nations War Crimes Commission was an important international justice initiative, but its work has largely remained in the darkness,” Mr. Dieng said.
Noting the significance of getting nations to agree so many years ago on setting up a central authority to investigate and make recommendations on war crimes, Mr. Dieng said the release of the archives to the public also represents a significant reminder of the importance of gathering and keeping records and bringing perpetrators of war crimes to justice.
“The failure to hold those accountable can break down the social fabrics of society and perpetrate mistrust,” he said, adding: “A fragmented or frustrated society is a society that is more likely to return to violence.”
The archives of the War Crimes Commission contain evidence submitted by 17 Member States, including lists of alleged war criminals, files of charges brought against them, minutes of meetings, reports, correspondence, trial transcripts, and related documentation about the activities of the Commission, its committees, and individuals identified as alleged war criminals, including evidence compiled against them and records related to their prosecution by national tribunals.
Although some of the information in the documents has long been known to investigators and historians, prior to the Commission’s records being made available to the Museum, the public was unable to view the documents. Researchers at the UN, for instance, must petition for access through their governments.
In an interview with UN Radio, one of the panellists of today’s roundtable, Bridget Sisk, Chief of the UN Archives and Records Management Section, underscored the significance of ensuring that a record of what occurred during the Commission’s time of operation is kept.
“We hope that the interest that’s been generated in the archives of the War Crimes Commission will stimulate greater research in the UN’s archives,” she stressed.
“We have archives spanning 108 years of history. But we also hope that it stimulates some momentum in the Organization among stakeholders to make sure that the digital records that the Organization is creating today of bodies such as the Commission are created and managed appropriately,” she added.
Speaking during the roundtable, Ms. Sisk highlighted that most of the charges discussed in the Commission’s records have never been subjected to judicial review.
She also noted that the rules regarding access to the records were not seriously challenged until 1986, when “intense pressure” led the Secretariat to a review of the policy following allegations that Kurt Waldheim, who served as UN Secretary-General from 1972 to 1981, had himself committed atrocities during the Second World War.
Even today, Mr. Sisk said, the number of requests to the UN for access to the Commission’s records is “strikingly low,” averaging five or fewer per year.
Opening the roundtable, Hua Jiang, Officer-in-Charge of the UN Department of Public Information, provided a history of the Commission and underscored the importance of the event.
“Our goal today is to examine the Commission and to discuss the value of its records, not just from historical and legal points of view, but also in regards to their potential use by researchers, editors, and students,” she noted.
The event’s keynote speaker was Ambassador Asoke Kumar Mukerji, Permanent Representative of India to the UN, who noted that the Commission was a “unique endeavour,” and that the UN did not exist when the Commission was established.
Other panellists at the roundtable included Patrick J. Treanor, former member of the Office of Special Investigations of the US Department of Justice; Dan Plesch, Director of the Centre for Diplomatic Studies and Diplomacy of the University of London, who was among those who initiated the call in 2007 for the release of the archives; and Henry Mayer, Senior Adviser on Archives of the United States Holocaust Memorial Museum.
The discussion, which was moderated by Edith Lederer, chief correspondent for the Associated Press at the UN, forms part of a series of events marking the 70th anniversary of the end of the Second World War and the founding of the UN.
The event took place in accordance with General Assembly resolution 60/7, which was adopted on 1 November 2005 and deals with Holocaust remembrance. The roundtable was organized by the Holocaust and the United Nations Outreach Programme of the UN Department of Public Information.
(UN Press Release)
Sunday, November 9, 2014
Join the Association of American Law Schools Section on Graduate Programs for Non-U.S. Lawyers at its business meeting on Friday, January 2, 2015 at 6:30 p.m. That's the first night of the conference when the Registration Area opens.
Professor George Edwards of Indiana University is the current chair. Professor Mark E. Wojcik of The John Marshall Law School in Chicago is the Chair-Elect and will become Section Chair at the end of that AALS Annual meeting.
When you book your flight or train to DC, please plan to arrive in time to attend the 6:30 p.m. business meeting and to share your ideas on graduate legal education for international lawyers.
Friday, November 7, 2014
Anne Marie Slaughter on State Realism versus Human Realism: The Individualization of International Law
Anne Marie Slaughter, former Director of Policy Planning at the US Dept. of State and Professor of Law at Princeton, (now at New America) was the Keynote Speaker at the American Society of International Law (ASIL) this evening. She suggested that international law has traditionally focused on state to state relations and activities, but that today, international law should focus equally on the actions of individuals. She asked the audience to consider an amendment to UN Charter article 2(4) that would make both states and individual actors liable for any use of force against civilians. A lively discussion ensued regarding how the international community can hold individuals responsible for crimes against humanity and other violations of international law.
At the opening reception and program for the Midyear Meeting of the American Society of International Law (ASIL), a distinguished panel (below) discussed a number of legal issues relating to responsibility for the downing of Malaysian Flight MH 17 over Ukrainian territory in July. The panel consisted of Larissa van den Herik from the University of Leiden Law School, Ruth Wedgewood from John Hopkins, Barry Kellman from Depaul, and was moderated by Michael Morkin of Baker & McKenzie. Larissa van den Herik stated that the investigation is the largest criminal investigation in Dutch history and that its purpose is to determine the cause of the crash, not to determine liability. She stated that access to the crime scene has been poor and that the bodies have not been treated with dignity. She raised the issue of a state's duty to investigate and prosecute in the context of ongoing hostilities and stated that the Netherlands is more willing and able to undertake investigations than many other interested states.
Ruth Wedgewood spoke next about the possibility of using various national courts of the victims' home countries for any legal actions taken in relation to the flight. She pointed out that Ukraine is a party to the 1973 Convention on Suppression of Unlawful Acts Against the Safety of Civil Aviation, which calls for dispute resolution at the International Court of Justice (ICJ). However, because of the ICJ's limited fact-finding capability, it may not be the best forum for legal action. She also suggested the International Criminal Court (ICC) as an alternative and pointed out that article 12(3) of the ICC's statute regarding retrospective jurisdiction could be invoked. Finally, she talked about legal norms making a state responsible for the acts of its protegee.
Barry Kellman suggested that the international community needs to take action to keep anti-aircraft missiles out of the hands of nonstate actors. He suggests the international community adopt a clear prohibition on the transfer of weapons of mass destruction, including anti-aircraft missiles, to nonstate actors; that states be required to provide protection for aviation; that the Arms Trade Treaty be given some teeth and that it be used to restrict access to weapons technology; that global destruction programs be implemented for anti-aircraft weapons; and that the international community create rules for state responsibility for supplying weapons of this type.
The panel raised a variety of interesting and topical legal issues and got the ASIL Midyear meeting off to a great start!