Sunday, November 8, 2015
Hart Publishing has a new book on jus cogens -- that special kind of rule of law that is simply so important and fundamental that the international community will reject any derogation from it. Although the international community agrees on the effect of a jus cogens rule, there's always been a question about what is or isn't a rule of jus cogens.
This new book by Professor Robert Kolb (University of Geneva) is called "Peremptory International Law: Jus Cogens," and it may help scholars and advocates who need a deeper understanding of the jus cogens. The book begins with a section that defines jus cogens and its functions, followed by critiques of the doctrine (for example, a political argument that "Jus Cogens is dangerous for international law and is a tool for political manipulation."). That section is followed by others that discuss theories of jus cogens, legal construction, special issues, sources of jus cogens, effects of jus cogens, and conflicts between norms of jus cogens.
I've had a chance to see only the table of contents for this book, but its treatment and coverage seem to add something to our understanding of jus cogens. I can imagine the delight of moot court teams competing in the Philip C. Jessup International Law Moot Court competition when they discover this title.
Further information about the book can be found by clicking here. And if you have a chance to see the book, let us know your thoughts about it in the comment section.
Saturday, November 7, 2015
On November 5, 2015, the U.S. House Foreign Affairs Committee approved the following bills:
- HR 2241, the Global Health Innovation Act of 2015;
- HR 2845, the African Growth and Opportunity Act Enhancement Act of 2015; and
- HR 3766, the Foreign Aid Transparency and Accountability Act of 2015.
The Senate Foreign Relations Committee will mark up foreign aid legislation and tax treaties on November 10, 2015 at 9:45 am, 419 Dirksen Senate Office Building.
Hat tip to the ABA Governmental Affairs Office
Friday, November 6, 2015
A passionate advocate for interdisciplinary scholarship in law, literature, and language, Penelope J. Pether was Professor of Law at Villanova University School of Law and former Professor of Law and Director of Legal Rhetoric at the American University Washington College of Law. Her own scholarship focused not only on law, literature, and language, but also on constitutional and comparative constitutional law; legal theory, including constitutional theory; common law legal institutions, judging practices, and professional subject formation.
Beginning in November 2013, the Penny Pether Award for Law and Language Scholarship has been given annually to an article or essay published during the preceding year (September 1 to September 1) that exemplifies Penny’s commitment to law and language scholarship and pedagogy.
The Committee selecting award recipients from among the articles and essays nominated will look for scholarship that not only embodies Penny’s passion and spirit but also has some or all of the following characteristics:
1. “[S]cholarship concerning itself with the unique or distinctive insights that might emerge from interdisciplinary inquiries into ‘law’ grounded in the work of influential theorists of language and discourse.”
2. Scholarship that “attempts to think through the relations among subject formation, language, and law.”
3. Scholarship that provides “accounts of—and linguistic interventions in—acute and yet abiding crises in law, its institutions and discourses.”
4. Scholarship and pedagogy, including work addressing injustices in legal-academic institutions and practices, that is “[c]arefully theorized and situated, insisting on engaging politics and law, [and that] charts ways for law and its subjects to use power, do justice.”
More explanations and descriptions of these characteristics can be found in Penny’s chapter from which these quotations are drawn: Language, in Law and the Humanities: An Introduction (Austin Sarat et al. eds., Cambridge U. Press 2010).
Nominations should be sent by November 13, 2015 to Jeremy Mullem at email@example.com. You are free to nominate more than one work and to nominate work you’ve written. Please provide a citation for each work you nominate.
The Selection Committee includes Linda Berger, David Caudill, Amy Dillard, Bruce Hay, Ian Gallacher, Melissa Marlow, Jeremy Mullem, Nancy Modesitt, and Terry Pollman. Members of the Selection Committee are not eligible for the award.
Hat tip to Professor Jeremy Mullem of Duke University Law School in Durham, North Carolina
Representative Rohrabacher (Republican of California) has introduced HR 3942 to recognize that Christians and Yazidis in Iraq, Syria, Pakistan, Iran, Egypt, and Libya are targets of genocide, and to provide for the expedited processing of immigrant and refugee visas for such individuals. The bill was sent to the Judiciary and Foreign Affairs Committees. CR 11/5/15, H8150.
Hat tip to the ABA Governmental Affairs Office.
LCIL Friday Lecture 'Judicial Law-Making at the International Criminal Courts: Experimenting with General Principles of Law' by Dr Neha Jain, Friday, 13 November 2015 - 1:00pm
Dr. Neha Jain, a professor at the University of Minnesota, will speak on how reliance on general principles of law as the primary gap-filling mechanism in the arsenal of international criminal courts is deeply problematic. Far from yielding a consistent, clear rule, the interpretation and application of general principles has been fitful, contradictory, and often misguided. She will argue that reliance on comparative surveys of municipal legal rules to derive general principles is incoherent and does not satisfy the criteria of formal or material validity. She will urge tribunals to pay greater attention to other sources of international criminal law, especially treaties, to help alleviate the problem of gaps in international criminal law.
The event is at the Lauterpacht Centre for International Law at the University of Cambridge. Call 01223 335 358 for more information about how to attend the program.
TRIPS Council Agrees to Extend Flexibilty for Least-Developed Countries on Pharmaceutical Product for At Least 18 More Years
Least-developed country (LDC) members of the World Trade Organization will be allowed to maintain maximum flexibility in their approach to patenting pharmaceutical products until at least 2033, following a decision taken on November 6th by the WTO’s Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS).
Thursday, November 5, 2015
On November 2, 2015, the U.S. Consumer Financial Protection Bureau announced a Policy Guidance relating to its Joint Statement of Principles on Student Loan Servicing, released in conjunction with the Department of the Treasury and the Department of Education. FR67389
Hat tip to the ABA Governmental Affairs Office.
Federal legislation was introduced to establish in the United States Agency for International Development an entity to be known as the United States Global Development Lab. The bill [HR 3924 (Castro, D-TX)] was assigned to the House Foreign Affairs Committee. Cong. Rec. H7741 (Nov. 4, 2015).
Hat tip to the ABA Governmental Affairs Office.
Ashgate has published a new book called "Litigating the Right to Health in Africa: Challenges and Prospects," edited by Ebenezer Durojave of the University of the Western Cape, South Africa. Here's a description of the book from the publisher:
Health rights litigation is still an emerging phenomenon in Africa, despite the constitutions of many African countries having provisions to advance the right to health. Litigation can provide a powerful tool not only to hold governments accountable for failure to realise the right to health, but also to empower the people to seek redress for the violation of this essential right.
With contributions from activists and scholars across Africa, the collection includes a diverse range of case studies throughout the region, demonstrating that even in jurisdictions where the right to health has not been explicitly guaranteed, attempts have been made to litigate on this right. The collection focusses on understanding the legal framework for the recognition of the right to health, the challenges people encounter in litigating health rights issues and prospects of litigating future health rights cases in Africa. The book also takes a comparative approach to litigating the right to health before regional human rights bodies.
After two introductory chapters the book has individual cases studies from Malawi, South Africa, Uganda, Nigeria, Mauritius, Kenya, and Mozambique. It finishes with two chapters on comparative health law, "Litigation as a Strategy to Concretise the Right to Health in Africa" and "The Protection of the Right to Health through Individual Petitions before the Inter-American System of Human Rights."
Wednesday, November 4, 2015
Ashgate has published a new book on "Arbitration Concerning the South China Sea," a topic of recent interest now that the Permanent Court of International Arbitration has ruled that it has jurisdiction to hear a dispute between the Philippines and China (even if China elects not to participate in those proceedings." The book is 259 pages long and was edited by Shicum Wu (National Institute for the South China Sea Studies, China) and Keyuan Zou (Lancashire Law School of the University of Central Lancashire, United Kingdom). Here's a description of the book from the publisher's website:
On 22 January 2013, the Republic of the Philippines instituted arbitral proceedings against the People’s Republic of China (PRC) under the United Nations Convention on the Law of the Sea (UNCLOS) with regard to disputes between the two countries in the South China Sea. The South China Sea Arbitration is a landmark case in international law because of the parties involved, the legal questions to be decided and the absence of one of the parties. As revealed in its official statements, the PRC will neither accept nor participate in this arbitration nor present written and oral arguments in the tribunal room. Such default of appearance makes applicable certain procedural rules. According to Article 9 of Annex VII, the Tribunal, before making its Award, is obligated to satisfy itself not only that it has jurisdiction over the dispute, but also that the claims brought by the Philippines are well-founded in fact and law. Therefore, it is necessary for the Tribunal to look into all the claims brought forward by the Philippines and all the disputes constituted by the claims in the procedural phase. The possible arguments the PRC could make should be explored during this process.
This book brings together chapters selected from well-established scholars in Asia, Europe and North America addressing the issues arising from the South China Sea Arbitration. It contains five easy to read parts: origin and development of the South China Sea dispute; the jurisdiction and admissibility of the case; international adjudication and dispute settlement; legal issues arising from the case such as the legal status of the U-shaped line and islands, rocks and low-tide elevations; and the Arbitration case and its impact on regional maritime security.
The University of Pennsylvania Press has published a book by Alicia W. Peters on "Responding to Human Trafficking: Sex, Gender, and Culture in the Law." We are told that this 272-page book provides useful insights into the Trafficking Victims Protection Act (a U.S. federal statute).
Monday, November 2, 2015
The 77th Biennial Conference of the International Law Association will take place from August 7- 11, 2016 in Johannesburg, South Africa. The conference theme will be 'International Law and State Practice: Is there a North/South Divide?' The official conference website address is www.ila2016.com.
Hat tip to the South African Branch of the International Law Association (SABILA)
The Association of American Law Schools Section on International Law has organized an impressive lineup of presenters for its one-day field trip to the United Nations on Thursday, January 7, 2016 as part of the AALS Annual Meeting. The event is open to all law professors attending the AALS Annual Meeting and you need not be a member of the AALS Section on International Law (although if you're a U.S. law professor reading this blog, why wouldn't you be a member of that section?).
The day-long program includes a briefing, a luncheon, a tour of the United Nations, and time to visit the U.N. bookstore and gift shop.
Speakers for the program have just been announced. It is an impressive lineup organized by Dean Claudio Grossman of the Washington College of Law at American University. The speakers are:
- His Excellency Cristian Barros, Ambassador and Permanent Representative of Chile to the United Nations, speaking on challenges facing the U.N. Security Council.
- Andrew Gilmour (to be confirmed), Director of the Political, Peacekeeping, Humanitarian, and Human Rights Unit of the Executive Office of the Secretary-General (EOSG). Topic: “Peace, Security, and the Secretary General’s Human Rights Up Front Initiative to Prevent and Respond to Serious Human Rights Violations.”
- Claudio Grossman (confirmed), Chair, United Nations Committee Against Torture and Dean of the American University Washington College of Law. Topic: “The Human Rights Treaty Bodies of the United Nations – Challenges for the Future”
- Katarina Mansson (confirmed), Human Rights Treaties Division, United Nations Office of the High Commissioner for Human Rights (OHCHR). Topic: “Partnering for Peace and Rights: The Evolving Relationship Between the United Nations and Regional Organizations.”
- Craig Mokhiber (confirmed), Research and Right to Development Division, United Nations Office of the High Commissioner for Human Rights (OHCHR). Topic: “Development and the Post-2015 Development Agenda.”
- Salil Shetty (to be confirmed), Secretary-General, Amnesty International. Topic: “Amnesty International’s Efforts”
- Moderator: Prof. Mark E. Wojcik (The John Marshall Law School--Chicago)
When you register for the AALS annual meeting, you can select the field trip as a separate option. The cost for the day-long event is $90.00, which includes the luncheon and tour. The number of tickets is limited.
Thursday, October 29, 2015
To mark the 20th anniversary of the World Trade Organization (WTO), the WTO has published an electronic version of International Trade Statistics 2015 which looks back at world trade from 1995 to the end of 2014. The publication features a variety of charts to highlight the most noteworthy trends in world trade over the past 20 years. Numerous tables provide more detailed data while a chapter on methodology explains how the data are compiled. A print version to follow in mid-November.
The WTO also released new annual editions of three other key statistical publications: Trade Profiles, World Tariff Profiles and Services Profiles. Together, the four publications provide detailed breakdowns of the latest data on world trade. More information may be found on the WTO website.
Saturday, October 24, 2015
The American Bar Association Section of International Law held its highly successful Fall Meeting in Montréal, Canada. From left to right in the Front Row: Dr. Orsolya Görgényi of Hungary (President of the Association Internationale des Jeunes Avocats); Sara P. Sandford (Chair-Elect of the ABA Section of International Law; Steven Richman (Vice Chair of the ABA Section of International Law); Janet M. Fuhrer (President of the Canadian Bar Association); Lisa J. Savitt (Chair of the ABA Section of International Law); the Right Honourable Beverley McLachlin (Chief Justice of Canada); and Professor William B.T. Mock, Jr. of The John Marshall Law School in Chicago (Budget Officer of the ABA Section of International Law).
Friday, October 23, 2015
The United Nations Security Council this week expressed its deep concern about the recent upsurge of violence and instability in the Central African Republic (CAR), and reiterated its decision to apply an asset freeze and travel ban to those engaging in or providing support for acts that undermine the peace, stability or security of the country.
In a presidential statement adopted by the Council, members condemned the violence, including all attacks against civilians, intercommunal violence, targeted violence against women and children, lootings of humanitarian premises and attacks against United Nations peacekeepers.
“The Security Council emphasizes that some of these attacks may constitute war crimes and that those responsible for all abuses and violations of human rights and violations of international humanitarian law must be held accountable,” the statement stressed.
Meanwhile, the 15-member body reiterated its support for the Transitional Authorities, under the leadership of Catherine Samba-Panza as the Transitional Head of State, and called on all stakeholders in the CAR to commit to peace and reconciliation through the implementation of the agreements adopted at the Bangui Forum in May 2015.
The Council also took note of the “significant progress” achieved in the voters’ registration process, with an unprecedented number of citizens registered to date, highlighting the “critical importance and urgency” of holding the constitutional referendum and first rounds of presidential and legislative elections by the end of 2015, “in a free, fair, transparent manner.”
Emphasizing the continued role of the region, the Security Council encouraged countries to further use their leverage and regional meetings to encourage progress on the transition and towards these elections, and to prevent spoilers from attempting to disrupt these processes.
In addition, it called upon countries that contribute troops and police to the UN Multidimensional Integrated Stabilization Mission in CAR (MINUSCA) to expedite the upgrading of their capabilities, and urged others to provide the necessary support to enable them to reach UN standards without any further delay.
MINUSCA, which was set up in April 2014 to help bring peace after a breakdown of governmental authority and vicious intercommunal fighting between mainly the Muslim Séléka group and the mainly Christian anti-Balaka movement, currently maintains nearly 11,000 uniformed personnel in the country.
The recent crisis was sparked in the capital, Bangui, on 26 September, when according to the UN Office for the Coordination of Humanitarian Affairs (OCHA) violent clashes erupted between the residents of PK5 in Bangui’s 3rd district and the 5th district after the death of a young Muslim taxi motorcyclist. The violence left dozens of people dead and several injured. Houses were looted in other neighbourhoods and many burned. Thousands of people have fled the areas with heightened tension to seek refuge mostly with host families and in displacement sites.
(Adapted from a UN Press Release)
Photo: The St Michel church and adjacent priest’s house were torched during protests in Bangui sparked by the killing of a Muslim man. UN Photo by Crispin Dembassa-Ketter IRIN
One of the afternoon panels on Friday was on the subject of medical travel, considering the legal issues that arise when patients travel across borders to seek medical care. Each year, an increasing number of individuals travel outside their home countries for a variety of healthcare treatments ranging from dental care, cosmetic surgery, sex-change operations, cancer treatments, and other procedures that are either not available in their home jurisdictions or that are available at much cheaper prices abroad.
International healthcare consumers are challenging healthcare providers, governments, and other service providers to deliver high-quality, cost-effective medical care in a safe environment. As patients travel across borders, they expose a number of legal, medical, and ethical issues. The panel discussed some of these emerging issues relating to medical travel. Speaking on the panel (pictured, from left to right) were Maureen Bennett (Jones Day, Boston), Stephen M. Weiner (Chair of the Health Law Practice Group at Mintz Levin, Boston), and Elizabeth Ziemba (President of Medical Tourism Training, Inc., Newport, Rhode Island).
Some particular points of interest from the panel:
- Some patients travel for lower-cost treatments while others travel to obtain treatments not available in their home country, including treatments not approved by licensing agencies such as the Food and Drug Administration.
- Medical malpractice is a civil action in the United States but in other countries (such as Mexico and the United Arab Emirates) it is a criminal action.
- To reduce risks in medical travel, the facilitators who arrange for medical travel must know about health care (and not just how to make travel arrangements) and clearly communicate with patients the scope of services that the facilitator will be providing. The patient should acknowledge the limits on what is being provided, that medical records are correct, and that if problems arise the patient may need to sue in the foreign jurisdiction rather than in the patient's home jurisdiction.
- Facilitators should suggest more than one health care provider to ensure that providers can provide high-quality care. Suggesting more than one provider also allows facilitators to avoid endorsing a particular health care providers.
The program is being filmed and will be available on Periscope.
Mark E. Wojcik (mew)
The Hague Choice of Court Convention entered into force in 28 States (Mexico and all Members of the European Union, except Denmark) on October 1, 2015. This results from Mexico's accession to the Convention in 2007 and the recent approval of the Convention by the European Union as a regional organization able to bind its member states.
The United States and Singapore have signed the Choice of Court Convention but have not yet ratified it. The entry into force for the Convention should encourage other States that are considering joining it.
The Convention has been designed to provide more legal certainty and predictability in relation to choice of court agreements between parties to international commercial contracts.
The Convention essentially allows three things.
- First, it allows parties to a contract to pick a court that is not necessarily the site of a buyer or a seller in a contract.
- Second, it gives exclusive jurisdiction to the court chosen; other courts must decline jurisdiction.
- And third, the judgment rendered by the chosen court must be recognized and enforced in other Contracting States.
As judges, practitioners, and other key players within the international legal community recognize, the application of the Choice of Court Convention will deliver adequate responses to the increasingly pressing need in international transactions for enforceable choice of court agreements and their resulting judgments.
And now that the Convention has entered into force, the United States should ratify the Hague Choice of Convention.
(mew)(adapted in part from a press release from the Hague Conference on Private International Law)
Speaking this morning on a panel on "The Enforceability of Form Contract Choice of Law and Jurisdiction Clauses in Cross-Border Transactions" are Andrew M. Danas (USA), Luis Augusto Roux Azevedo (Brazil), Gordon Hearn (Canada), Marco Remiorz (Germany), and Pradnya Desh (USA).