Saturday, May 31, 2008
Convention Against Torture: Deliberate Indifference and Gross Negligence are Not Found to be Torture
The U.S. Court of Appeals for the Ninth Circuit as ruled that because "torture" requires a specific intent to inflict harm, deliberate indifference and historical gross negligence are not enough to constitute torture. The court accordingly denied an asylum application from a Mexican national who was bipolar and who claimed that because he could not afford to pay for medications, he would be confined in the Mexican mental health system if removed. The court found that the poor conditions in Mexico's mental health system were not a deliberate intent to inflict harm, but because officials did not understand the nature of psychiatric illness. The case is Villegas v. Mukasey, 2008 WL 1808390 (9th Cir. 2008).
The Academy of European Law is offering six summer courses on EU law in late June and early July. Courses will cover
- Constitutional Law
- Company Law
- Criminal Justice
- Competition Law
- Private Law
Click here for more information on the course dates and registration information.
Here's a press release sent to me by the attorneys for Ecuador in a new case filed at the International Court of Justice.
The Republic of Ecuador has filed suit at the International Court of Justice in The Hague, the Netherlands, against the government of Colombia, in an effort to stop or restrict aerial anti-coca spraying that has allegedly sickened people on the Ecuadorean side of the border and harmed livestock, farmland, and sensitive, ecologically diverse jungle areas.
Ecuador’s legal team is led by Paul S. Reichler, a partner in the Washington, DC, office of law firm Foley Hoag LLP who specializes in public international law, which governs relations among sovereign nations.
The suit follows seven years of persistent but ultimately unsuccessful diplomatic efforts on Ecuador’s part to convince its neighbor to the north to establish a 10-kilometer no-spray zone along their shared border. Since spraying began in 2000, Colombia has consistently refused to consider such measures, the suit asserts; instead, its herbicide-loaded planes and helicopters have flown right up to and sometimes directly over the border, releasing chemicals specifically designed to eradicate all forms of plant life.
Inevitably, the spray has drifted to the Ecuadorean side, where villagers have reported feeling the mist settle on to their skin. People in Ecuadorean border communities, many of them poor subsistence farmers or those raising small cash crops, have suffered symptoms such as skin lesions and rashes, burning eyes, nausea, dizziness, respiratory problems, and intestinal bleeding; some have died.
Ecuador also alleges that the spraying has killed livestock and crops, forcing the abandonment of villages, while harming ecologically sensitive areas of high biodiversity. (Nearly one third of the country’s territory is protected or park land, and Ecuador is estimated to have the highest average biological diversity of any nation on earth.)
According to the suit, Colombia has steadfastly refused to even disclose the exact makeup of the herbicide it uses, though the active ingredient is known to be glyphosate (N-phosphonomethyl), an indiscriminate killer of plant life. The active ingredient is reportedly combined with other chemicals to make aerial sprays more potent.
In a press conference announcing the suit, Ecuadorean Foreign Minister María Isabel Salvador said, “With the purpose of establishing the existence and dimensions of the afflictions suffered by Ecuador as a result of these and past fumigations, last year President Rafael Correa created the Ecuadorian Scientific Commission, comprised of eminent scientists from our country. The results of the commission’s work have been crucial to reaching the irrefutable conclusion that Colombian aerial fumigations have had noxious effects on our people and our environment.
She continued, “There is no doubt that the fumigations conducted by the Government of Colombia constitute a grave violation of the sovereignty of Ecuador and of the most basic principles of international law, which prohibits a State from causing harm to the population, land and well-being of a neighboring State.”
Ecuador protested the violation of its territory as soon as spraying began in 2000, and has consistently sought to resolve the countries’ dispute through negotiation and diplomacy. As a last resort, it submits its argument to the International Court of Justice, whose jurisdiction is confirmed by the American Treaty for the Peaceful Settlement of Disputes, also known as the Pact of Bogotá, to which both Ecuador and Colombia are parties.
Specifically, Ecuador’s suit seeks three things: a) a declaration by the court that Colombia has violated Ecuador’s sovereignty and territorial integrity in the manner in which it has sprayed herbicides; b) an order by the court that Colombia no longer spray in a manner that affects Ecuadorean territory; and c) an order that Colombia pay reparations to Ecuador for damage caused by the spraying.
(The filing of Ecuador’s suit is unrelated to the cross-border attack undertaken by Colombia on March 1, which killed a commander of the Revolutionary Armed Forces of Colombia, or FARC, the anti-government guerrilla group that had taken refuge in the hinterlands of Ecuador. The raid was condemned in resolutions by the Organization of American States and by the Rio Group, an organization of Latin American states. Colombia apologized in both resolutions, and promised not to violate Ecuadorean sovereignty again.)
Although resorting to litigation, Ecuador confirms its role as a partner against the cultivation and trafficking of illegal drugs. It is the only Andean country with virtually no coca crop. Ironically, Colombian government officials have come to agree with recent reports by the International Crisis Group that aerial spraying against coca plants is largely ineffective – yet Colombia still refuses to alter its spraying practices along the border with Ecuador.
As part of its case before the ICJ, Ecuador has appointed as its agent Diego Cordovez, former Assistant Secretary General of the United Nations and former Ecuadorean foreign minister. Leading the legal team is Mr. Reichler, along with prominent international law experts Prof. Pierre-Marie Dupuy, of the European International University, in Florence; Prof. Philippe Sands Q.C., of University College, London; Prof. Alan Boyle of the University of Edinburgh; and Prof. Iñigo Salvador, of Pontifical Catholic University in Quito, Ecuador.
Click here to read a post from the Contracts Law Prof Blog on whether the Convention on the International Sale of Goods is affected by the U.S. Supreme Court decision in Medellin v. Texas, 128 S. Ct. 1346 (2008). In Medellin the Court found that the decision of the International Court of Justice in Avena was not directly enforceable as domestic law in the United States in the absence of implementing legislation.
The Medellin case has inadvertently called into doubt the enforceability of many other treaties. The American Bar Association Section of International Law and the American Society of International Law are among the groups devoting special efforts now to study the issue.
Friday, May 30, 2008
Professor Steven Schwinn, a colleague of mine at The John Marshall Law School in Chicago, has just won a trade adjustment assistance appeal before the U.S. Court of International Trade in New York. He was assisted in the case by Clayton P. Solomon, who is listed as co-counsel on the decision and who appeared with the consent of the court pursuant to the U.S. Court of International Trade Order 06-01.
The case is T.R.W. Inc. v. U.S. Secretary of Agriculture, Slip Op. 08-59 (May 29, 2008), involving an appeal from the denial by the U.S. Department of Agriculture for cash benefits under the statute that authorizes trade adjustment assistance (TAA) for farmers, 19 U.S.C. 2401e. Click here to see the decision.
The plaintiff was a family-owned shrimping company operating off the Texas Gulf Coast since the early 1970s. The plaintiff alleged that its business has been suffering since 1984 because of increased competition from imports. In 2003, the Texas Shrimp Association successfully petitioned the U.S. Department of Agriculture for TAA cash benefits as authorized by the statute. That certification was renewed in 2004. The plaintiff did not apply for TAA benefits under the original certification, but it did apply under the recertification. In support of its application, the plaintiff submitted financial documentation and its tax returns -- but the taxable years were different and did not show that the plaintiff's net income declined over the applicable periods of eligibility. After a voluntary remand in which the Department considered additional financial information, the application for benefits was again denied. The plaintiff alleged that the department failed to review tax returns from consecutive years and failed to look beyond net income as reported in the tax returns.
The Court of International Trade found that the department's regulations authorized financial comparisons that were not authorized in the trade adjustment assistance statute. The court also reminded the agency that the determination of net income is not to be made solely on the basis of tax return information if other information is relevant in determining net income from all sources. The court remanded the decision to the U.S. Department of Agriculture. Under the court's order, remand results are due on or before August 26, 2008. The decision was issued by Judge Richard K. Eaton of the U.S. Court of International Trade.
The National Immigrant Justice Center (NIJC) will hold its Midwest Light of Human Rights Award Dinner on June 10, 2008. The speark will be Dean Harold Koh of Yale University, who will speak on restoring America's reputation in the field of international human rights. Click here for more information.
Thursday, May 29, 2008
The New York Times and other papers reported that the Federal Supreme Court of Ethiopia sentenced to death the country's former dictator, Mengistu Haile Mariam. He had last year received a sentence of life imprisonment, but the court agreed with the prosecution that the life sentence was not sufficient for the genocide and other crimes committed during his 14-year rule. He has been in exile in Zimbabwe since 1991. The New York Times noted that he would likely not be returned to Ethiopia if President Robert Mugabe wins a runoff election next month in Zimbabwe.
The IAEA submitted a report to the U.N. Security Council stating that Iran's suspected nuclear weapons research remained "a matter of serious concern." Click here for more information, including links to the U.N. Security Council resolution requesting the report.
This blog won't take political positions, but we have to note that the Save Darfur Coalition reported this week that all three of the U.S. Senators running to be U.S. President have signed on to the following joint statement on the crisis in Sudan.
WE STAND UNITED ON SUDAN
As we campaign for President of the United States over the next several months, we expect there to be significant focus on the many differences between us. After all, elections are about choices in a free society. We have had a spirited contest so far and fully expect a robust debate about issues foreign and domestic right up to Election Day.
As we engage in this process, we are fully aware that friend and foe around the globe are watching and sometimes reacting based on their own analysis of the latest developments in the campaign.
It is with this awareness that we are taking the uncommon step of issuing a joint statement about an issue.
After more than five years of genocide, the Sudanese government and its proxies continue to commit atrocities against civilians in Darfur. This is unacceptable to the American people and to the world community.
We deplore all violence against the people of Darfur. There can be no doubt that the Sudanese government is chiefly responsible for the violence and is able to end it. We condemn the Sudanese government’s consistent efforts to undermine peace and security, including its repeated attacks against its own people and the multiple barriers it has put up to the swift and effective deployment of the United Nations-African Union peacekeeping force. We further condemn the Sudanese government’s refusal to adhere to the terms of the Comprehensive Peace Agreement (CPA) that ended the conflict in southern Sudan.
Today, we wish to make clear to the Sudanese government that on this moral issue of tremendous importance, there is no divide between us. We stand united and demand that the genocide and violence in Darfur be brought to an end and that the CPA be fully implemented. Even as we campaign for the presidency, we will use our standing as Senators to press for the steps needed to ensure that the United States honors, in practice and in deed, its commitment to the cause of peace and protection of Darfur’s innocent citizenry. We will continue to keep a close watch on events in Sudan and speak out for its marginalized peoples. It would be a huge mistake for the Khartoum regime to think that it will benefit by running out the clock on the Bush Administration. If peace and security for the people of Sudan are not in place when one of us is inaugurated as President on January 20, 2009, we pledge that the next Administration will pursue these goals with unstinting resolve.
Reports from Chile say that nearly 100 former soldiers and secret police officers have been arrested this week. The crimes stem from the period of the Pinochet dictatorship, which lasted from 1973 to 1990, and some of those arrested worked for the intelligence service that ran torture centers where hundreds of people were killed or disappeared.
Several newspapers reported this week that the British charity Save the Children UK said that it had discovered evidence of sexual abuse of children by U.N. peacekeepers and international aid workers from 23 organizations. The findings are reportedly based on field research in Sudan, the Ivory Coast, and Haiti, and show that efforts to rein in abuse need to be intensified.
The Illinois State Bar Association sponsors an international trip each year, led by the ISBA president. This year the ISBA will be going to Austria and Switzerland. Travel dates are September 6-14, 2008. Contact the Illinois State Bar Association for more information. Unfortunately there is not a CLE component to the trip, but that can also be an advantage -- you will force yourself to enjoy two beautiful countries.
"The Rights of Older Persons: A Collection of International Documents," is a new book edited by Prof. Israel Doron (Haifa University) and Prof. Kate Mewhinney (Wake Forest University). Kate is the former chair of the Association of American Law Schools Section on Disability Law; she chaired that section during the year that I was chair of the AALS Section on International Human Rights Law. We cosponsored a panel with that section during the last AALS meeting in New York.
Her book holds a unique collection of all the main international documents relating to the rights of older persons. The book provides a broad and comprehensive picture of the worldwide activities in the field of international law and ageing. Click here for details,
From 26 to 28 May 2008, in Buenos Aires, the International Tribunal for the Law of the Sea (ITLOS) has just concluded a regional workshop in Buenos Aires on the role of the Tribunal in the settlement of law of the sea-related disputes. The workshop was organized in cooperation with the Argentine Ministry of Foreign Affairs, International Trade and Worship and was attended by representatives of Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Paraguay, Peru, Uruguay and Venezuela.
The workshop allowed representatives of the Ministry of Foreign Affairs and of the Tribunal to exchange views on ways to enhance the Tribunal’s role in dispute settlement. During these exchanges, it was agreed that, whenever proceedings before a special chamber of the Tribunal involved States from the region, the parties to the proceedings and the special chamber might find it appropriate to hold
meetings at a suitable city in the region.
Argentina expressed its willingness to provide the necessary facilities in the event
the Tribunal and the parties consider it desirable for a special chamber of
the Tribunal to sit, or otherwise exercise its functions, in Buenos Aires. It was agreed that any assistance given to the Tribunal by the Argentine Government in such a case would be subject to an arrangement containing provisions consistent with the Agreement on the Privileges and Immunities of the International Tribunal for the Law of the Sea, adopted on 23 May 1997.
The press releases of the International Tribunal for the Law of the Sea are available on the Tribunal’s websites: www.itlos.org and www.tidm.org