International Law Prof Blog

Law Student Essay Contest: “What International Legal issues will President Barack Obama face in his first year as President of the United States?”

The American Bar Association Section of International Law is sponsoring a law student essay competition on the subject "What International Legal issues will President Barack Obama face in his first year as President of the United States?"  The deadline for submissions is February 16, 2009.  Click here for more information about the competition.  Winners get $1000 and a trip to the section's spring meeting in Washington D.C.  In a first for any writing competition that I know of, one winner will be chosen from the United States and one from a non U.S. law school.

(mew)

EU Enlargement and the National Right to Veto EU Membership Bid

As is well known, the Treaties of Rome (1957) were originally signed by six countries (Belgium, Germany,France,Italy,Luxembourg and the Netherlands). Six successive “enlargements” later (1973, 1981, 1986, 1995, 2004, 2007), today’s European Union consists of 27 Member States. Accession negotiations have been opened withTurkey and Croatia and and should soon start with Macedonia. The EU is also committed to eventually offer EU membership to Albania, Bosnia, Montenegro,Serbia and Kosovo (these countries are all known as “potential candidate countries”). Last but not least, it has been recently suggested that Iceland could win early membership even though the EU accession procession usually requires several years of negotiations (I will get back to this question in my next post).

What is less well known is that once “in” each EU Member State is entitled to “veto” any candidate country. Indeed, according to Article 49(2) of the EU Treaty, “The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.”

This means that it is up to each EU Member State to decide on how to ratify the “accession treaty”. Most Member States do so by means of parliamentary ratification but in some Member States, a referendum may also be used.

A recent episode brought this issue back to the fore. Slovenia, being an EU member since 2004, is trying to force Croatia to settle a long-standing border dispute under the threat of vetoing its membership bid by calling for a national referendum over Croatia’s EU accession. This childish blackmail is so contrary to the ideals on which the EU is founded that it should be condemned in the strongest terms by Slovenia’s EU partners. It is as if history has not taught the Slovenian government the perils of igniting nationalist passions.

Unfortunately, this is not the first time a current EU Member State is acting as a negative and obstructionist force. On the irrational – some may say laughable – ground that the name “Macedonia” could lead the country bearing this name (population: 2 million) to make territorial claims over Greece’s northern province of the same name, Greece has demanded and – sadly – obtained from its EU partners that Macedonia be referred to as the former Yugoslav Republic of Macedonia. Adding insult to injury, the resolution of the name dispute with Greece has become a precondition for further progress on Macedonia ’s EU membership bid.

These sad examples offer additional evidence that the EU should move away from the unanimity requirement when it comes to ratifying amending and accession treaties.

LP

UN Secretary General Proposes Three Pillars to Implement the Responsibility to Protect

From the United Nations:

Secretary-General Ban Ki-moon has outlined in a new report a three-pronged approach to implement the ‘responsibility to protect,’ a doctrine that holds States responsible for shielding their own populations from genocide and other major human rights abuses and requires the international community to step in if this obligation is not met.

At the 2005 World Summit, Heads of State and Government unanimously affirmed that each State has the ‘responsibility to protect,’ or ‘R2P.’

To thwart States from misusing this doctrine, it is crucial to develop a United Nations strategy, standards, processes and practices, Mr. Ban said in the report to the General Assembly.

To this end, he proposed a three-pillar strategy that centres on prevention, and if that fails, of “early and flexible response tailored to the specific circumstances of each case.”

The first pillar encompasses the protection responsibilities of the State because “prevention begins at home and the protection of populations is a defining attribute of sovereignty and statehood in the twenty-first century,” the report explained.

The second entails the international community providing assistance to States to carry out the R2P through measures such as confidential or public persuasion, education and training.

“Those contemplating the incitement or perpetration of crimes and violations relating to the responsibility to protect need to be made to understand both the costs of pursuing that path and the potential benefits of seeking peaceful reconciliation and development,” the Secretary-General wrote.

In the last pillar, the UN and other organizations would focus on saving lives through “timely and decisive action,” instead of on “arbitrary, sequential or graduated policy ladders that prize procedure over substance and process over results,” he added.

Mr. Ban called on the Assembly to take the first step by assess the strategy to implement R2P by finding ways to develop partnerships between States and the international community as well as to consider whether and how to conduct a periodic review what nations have done to implement the doctrine.

The "Nuts and Bolts" of International Arbitration

The ABA Section of International Law and the ABA Section on Dispute Resolution will present a program on the“Nuts & Bolts” of International Arbitration on February 9, 2009, from 2:00 p.m. - 3:30 p.m. in Washington, DC.  The cost of the program is extremely modest -- $5.00 for law students, $50.00 for ABA members, and $60.00 for non-members.  Contact Tally White at the ABA Section of International Law for more information.

(mew)

Nine Nations Pledge Cooperation in Fighting Pirates

From the United Nations:

Indian Ocean and Red Sea countries have pledged to cooperate in seizing, investigating and prosecuting pirates off the coast of war-ravaged Somalia in a stepped-up campaign to curb a scourge that has wrought havoc with international shipping, including United Nations delivery of emergency food aid.

“The adoption of this instrument shows that countries in the region are willing to act concertedly and together, contributing to the ongoing efforts of the broader international community to fight the scourge of piracy and armed robbery against ships in the area,” UN International Maritime Organization  Secretary-General Efthimios E. Mitropoulos said of the Code of Conduct adopted yesterday at a high-level meeting in Djibouti convened by his agency.

Nine countries – Djibouti, Ethiopia, Kenya, Madagascar, Maldives, Seychelles, Somalia, Tanzania and Yemen – have already signed the Code, which calls for shared operations, such as nominating law enforcement or other authorized officials to embark in the patrol ships or aircraft of another signatory.

The meeting was attended by ministers and senior officials from Comoros, Djibouti, Egypt, Ethiopia, France, Jordan, Kenya, Madagascar, Maldives, Oman, Saudi Arabia, Seychelles, Somalia, South Africa, Sudan, Tanzania and Yemen, as well as observers from other IMO members, UN specialized agencies and international and regional inter-governmental and non-governmental organizations. The Code is open for signature by the 21 countries in the region.

“Like the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against ships in Asia (RECAAP), which was concluded in November 2004 by 16 countries in Asia, I have every faith that the Code of Conduct will prove to be the starting point for successful cooperation and coordination in the region, which will bear fruit in the suppression of piracy and armed robbery against ships,” Mr. Mitropoulos said.

Representatives of States that have sent naval forces to protect shipping off Somalia, including China, France, Italy, Japan, Russia and United Kingdom, also attended the four-day meeting, as did the UN World Food Programme, whose chartered food aid ships have been hijacked on several occasions.

Mr. Mitropoulos stressed that the contributing alliances of Governments, organizations and individual countries such as the European Union, the North Atlantic Treaty Organization (NATO) and China, India, Russia and Saudi Arabia had done their duty in seeking to protect shipping and the time had now come for regional States to add their own contribution.

But he stressed that that while the contribution of regional States was hugely important, the long-term solution to the problem still lay onshore, within Somalia itself, which has not had a functioning central Government since 1991 and is riven by warring factions.

In December, the UN Security Council unanimously called on countries and regional bodies with the necessary capacity to deploy naval ships and military aircraft off the Somali coast to fight piracy, including possible action against pirate bases on land.

Apart from chartered WFP ships, recent seizures by pirates have included a Saudi oil tanker and a Ukrainian ship with arms on board.

100 Decisions from the ICJ

The International Court of Justice will issue its 100th decision on February 3, 2009.  This is more than a curiosity -- it marks 100 instances where nations have come together in a neutral international forum to settle their differences.  The track record on compliance with ICJ decisions and orders has been largely good (with some recent notable exceptions), and the ICJ is now faced with its largest and busiest docket ever.  Perhaps this international law thing is catching on?

Hat tip to the ICJ's Information Department.

(mew)

50 Years of Jessup - Special Dinner on March 27, 2009

Hundreds of international legal practitioners, judges, scholars, and government leaders will celebrate the Jessup 50th Anniversary Celebration on Friday, March 27, 2009 at a special reception and dinner in Washington, D.C.  The International Law Students Association (ILSA) and the American Society of International Law (ASIL) will present this spectacular evening celebrating the Jessup Competition’s contributions to international law.

Featured guests include President Rosalyn Higgins and Judge Stephen M. Schwebel. Rosalyn Higgins is the President of the International Court of Justice. President Higgins was the first female judge to be appointed to the ICJ, and was elected its President in 2006. Judge Schwebel served as a Judge at the ICJ from 1981-2000, ICJ President from 1997-2000, and authored the inaugural Jessup Competition Problem in 1959. For more information, click here.   

Contributions from individuals, firms, schools and organizations are also invited to support the next fifty yeas of the Jessup Program, including providing critical support to many Jessup teams where legal education is still in its infancy, and to students who lack the financial resources to participate in the Competition. If you would like to make a donation or if you have any questions, please click here or visit the ILSA website.   

Sri Lankan Military Says the Red Cross is "Naive"

Reports are that the situation is rapidly deteriorating for some 250,000 civilians who find themselves trapped in war-torn northern Sri Lanka.  The International Committee for the Red Cross (ICRC) has helped evacate some wounded civilians.  The Sri Lankan Ministry of Defense, Public Security, Law and Order has posted a message on its website calling the ICRC "naive" because it asked "both sides" to allow the evacuation of civilians.  The ICRC must remain neutral when trying to operate in conflicts such as this. 

(mew)

United Nations Compensation Commission

The United Nations Compensation Commission (UNCC), which settles damage claims from Iraq’s 1990 invasion of Kuwait, announced that $460 million was made available this week to 12 successful claimants.  The announcement brought the total compensation made available to individuals, corporations, governments and international organizations to $26.9 billion. The UNCC was established in 1991 as a subsidiary organ of the Security Council. The UNCC has received nearly 3 million claims, including from close to 100 governments for themselves, their nationals or their corporations. The UNCC has identified six categories of claims: four categories are for individuals’ claims, one category is for corporations, and one category is for governments and international organizations (a category that includes claims for environmental damage).  Most of the money made available to pay claims has come from the sale of Iraqi petroleum under the so-called Oil-for-Food programme (which ended in 2003) and later within arrangements made under Security Council resolutions.

Click here for more information on the United Nations Compensation Commission.

(mew)

Troubling Protectionist Provisions in Stimulus Package

According to a Washington Post article today, the financial stimulus package passed by the U.S. House of Representatives yesterday contained a Buy American provision that will require stimulus dollars for infrastructure products to be spent on domestic iron and steel.  In addition to keeping stimulus dollars in the U.S., the Buy American rider is intended to protect American jobs.  While these are worthy goals, there are serious long-term negative economic consequences that are likely to result from such an action.  In addition to potentially violating our trade commitments under the World Trade Organization (WTO) agreements and various bilateral trade treaties, this action raises concerns about a return to protectionist policies that many economists agree significantly contributed to the worsening of the Great Depression in the 1930s.  Ironically. the International Monetary Fund reported yesterday that the world economy already is growing at the slowest pace since that time.  If the United States enacts these types of restrictionist policies, other countries are likely to follow suit, causing American companies to have difficulties selling their products abroad.  And, under WTO rules, any retaliatory measures imposed for violations of WTO obligations do not have to be limited to the industry sector that is the subject of the violation.  Many American companies that would benefit from the Buy American rider, such as General Electric and Catepillar, are objecting because of the threat to their ability to sell their products abroad.  Such a policy will also make these infrastructure projects more expensive for U.S. taxpayers by requiring the U.S. government to pay more for these products and materials to less competitive American manufacturers rather than being able to accept the lowest bid, regardless of the nationality of the bidder.

(cgb)

EUSA Conference 2009: Los Angeles

The European Union Studies Association (EUSA) is a scholarly and professional association focusing on the EU, the ongoing integration process, and transatlantic relations. 

Its eleventh biennial meeting of EU specialists will take place next April (23-25) at the Marriott Marina Del Rey in Los Angeles, CA.

A draft program (40p. long) is available here.

LP

Somalia

The new president of Somalia is expected to take office on January 31, 2009, appoint a prime minister, and form a government of national unity, to help bring stability to a country that has not had a functioning central government since 1991. 

(mew)

EU Terror List (no. 2): Another Victory for the Rule of Law

In a previous post, I mentioned a recent judgment of the EU Court of First Instance annulling the decision of the Council of the EU to include the People's Mujahideen Organisation of Iran (PMOI) in the EU list of banned terrorist groups (the French Republic has regrettably decided to appeal this judgment).

The Council, i.e. the national governments of the Member States, reluctantly agreed last Monday to remove this organization from the list. “What we are doing today is abiding by the resolution of the European court,” said EU foreign policy chief Javier Solana.  

It is widely believed that the PMOI’s inclusion in the EU Terror list was a “carrot” offered to Teheran - the PMOI is Iran's main opposition group - to persuade it to be more “flexible” in the negotiations surrounding its nuclear program. Regardless of the reasons behind the initial inclusion of the PMOI in the EU Terror list, it is simply unbelievable that EU national governments thought they could get away with a system that so clearly makes it impossible for the persons accused of terrorist activities to effectively challenge decisions affecting so dramatically their rights and interests.

In legal terms, the Council’s decision to delist the PMOI took the form of a new a common position 2009/931/CFSP updating common position 2001/931/CFSP on the application of specific measures to combat terrorism and of a new Council decision 2009/62/EC implementing article 2(3) of regulation 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism. For non-experts, it is virtually impossible to realize that the PMOI has been delisted. Indeed, recital 5 of Council decision 2009/62/EC merely indicates that “[f]ollowing the judgment of the Court of First Instance of 4 December 2008 in Case T-284/08, one group has not been included in the list of persons, groups and entities to which Regulation (EC) No 2580/2001 applies."

For those who are not rebutted by EU legalese, you can find the full-text of these two acts in the EU Official Journal (27.1.2009, L 23/25 and L 23/37). The lists of the persons, groups and entities subject to the measures are annexed to the common position and to the Council decision. It may be worth noting that the two lists are not entirely identical. The list annexed to the Common position 2009/931/CFSP refers to 59 persons and 47 groups while the list annexed to the Council decision 2009/62/EC includes 28 persons and 29 groups which are already included in the Common position’s list. As I understand it, the Council decision only mentions those who are subject to “specific restrictive measures” as provided for in Regulation 2580/2001. Among the most widely known entities subject to those restrictive measures, one may mention Hamas, the Kurdistan Worker’s Party and the “Shining Path”. 

LP

 

WTO Finds China has violated its obligations under TRIPS

The World Trade Organization (WTO) dispute resolution panel issued its report yesterday in United States-China: Measures Affecting the Protection and Enforcement of Intellectual Property Rights.  The United States had alleged that Chinese Copyright and Customs Laws were insufficient to protect intellectual property rights provided for in the Agreement on Trade Related Aspects of Intellectual Property or TRIPS, one of the WTO agreements.  The panel agreed with the United States that China had violated its obligations under TRIPS.  More specifically, the panel found that China's Copyright Law in particular is inconsistent with its obligations under Article 5 of the Berne Convention, which is incorporated into TRIPS, and Article 41 of TRIPS. 

Under Article 3.8 of the WTO Dispute Settlement Understanding, when there is an infringment of obligations under a WTO Agreement, a  presumption of nullification or impairment of benefits is raised.  China failed to rebut that presumption.  Accordingly, the panel found that the United States' expected benefits under TRIPS had been nullified or impaired.  The panel recommended that China bring its Copyright and Customs Laws into conformity with the Agreements.   More information can be found on the WTO website: http://www.wto.org/english/news_e/news09_e/362r_e.htm

(cgb)

Jessup Moot Court Judges Needed for U.S. Regional Rounds

Regional rounds of the Philip C. Jessup International Law Moot Court Competition are fast approaching in the United States.  If you can judge one of these regional rounds in the United States, please contact the Administrator listed below.  CLE credit may be available for judging moot court (it is for attorneys licensed in Illinois, for example).  This year marks the 50th anniversary of the Jessup Competition as well (please consider making a donation to the International Law Students Association to help them celebrate and to keep them going strong).  (I just donated some money myself on-line a few minutes ago to celebrate the 50th anniversary of Jessup -- if you are a former Jessup competitor -- or even if you're not -- I encourage you to do likewise to support them.)

13-15 February 2009

• Midwest Super Regional (hosted in Chicago at the Chicago-Kent College of Law): Contact Ashley Walker.
• Northeast Super Regional (New York, Shearman & Sterling): Contact Jeffrey Brooks.
• Southwest Super Regional (Houston, U. of Houston Law Center: Contact Antonio Riva Palacio Lavin. 

20-22 February 2009

• Mid-Atlantic Super Regional (Washington, D.C., GWU Law School):  Contact Rachel Olander.
• Southeast Super Regional (Miami, U. of Miami School of Law): Contact Jeffrey Rendin.

27 February – 1 March 2009

• Pacific Super Regional (Portland, Lewis & Clark Law School): Contact Asif Sayani.

(mew)

Judge National Regional Rounds (in Countries All Around the World)

National rounds of the Philip C. Jessup International Law Moot Court Competition are being held in countries all around the world (this month and next month).  Please refer to the National Rounds Schedule for the dates and venues of these qualifying tournaments.  If you are interested in judging at a particular competition, please contact the Administrator listed in the schedule.

(mew)

Judge the Jessup International Rounds in Washington D.C. (March 22-28, 2009)

The International Law Students Association (ILSA) informs us that registration is now open for judging the Shearman & Sterling International Rounds of the Philip C. Jessup International Law Moot Court Competition.

The Jessup International Law Moot Court Competition is the oldest, largest, most important, and most celebrated international law moot court competition held on this or any other planet.

The International Rounds will take place March 22-28, 2009 at the Fairmont Hotel in Washington, D.C.  If you would like to serve as a memorial or oral rounds judge, please complete and submit the Volunteer Judge Application Form by clicking here.  ILSA reminds you to provide all requested information, including your email address and the dates and times when you can judge. 

ILSA expects a large number of judge volunteers this year, which marks the 50th Anniversary Year of the Jessup Moot Court.  Scheduling will be subject to availability of rounds, and judges can also volunteer to as back-up judges who are frequently called upon because of last-minute cancellations and team conflicts.  Schedules will be sent out in early February.

Although volunteers come to Jessup because it is the right thing to do, judging moot court competitions does qualify for CLE credit in some states (such as Illinois).  Check the rules for the states where you are licensed if you need CLE credit.

For more information about ILSA and the Jessup Competition, click here.  For information on how to donate a few bucks to help ILSA in this anniversary year, contact Amity Boye, Executive Director at ILSA.

(mew) 

Unprecedented Use of Video in International Criminal Court Trial of Lubanga

The ICC's trial of the former Congolese military leader, Lubanga, begins today.  Not only is it the first ever trial at the International Criminal Court, it also has already made unprecedented use of video to show the perspectives of victims.  The human rights group, WITNESS, interviewed the children and young women who had been conscripted into the army allegedly by Lubanga and his associates and videotaped their stories.  This work resulted in two films, excepts of which can be seen here and here.  A Duty to Protect was shown several times at the ICC before the ICC announced the indictment of Lubanga.  The ICC has arranged for it to be shown in the Democratic Republic of the Congo this week during the trial.  Hat tip to Chris Michael.

(cgb)

Preventing Genocide - A Report for Law Makers

A report by the U.S. Institute of Peace on Preventing Genocide provides 34 recommendations for U.S. law makers (and law makers in other countries too), including early warning mechanisms, early action to prevent crises, timely diplomatic responses, greater preparedness to employ military options, and strengthening global norms and institutions.  Click here to read more about the report on the Law Librarian Blog.

Hat tip to Ron Jones at the Law Librarian Blog.

(mew)

Annual “State of the [European] Union Address” by Irish Minister of Foreign Affairs

The Treaty of Lisbon was unanimously signed by the Heads of State or Government of the 27 EU Member States in December 2007. Unlike the defunct “Constitutional Treaty,” it “merely” amends the 1992 Treaty on European Union and the 1957 EC Treaty rather than replace them with a new single text. As is well known, Ireland is the only country to have rejected the Treaty of Lisbon by referendum in June 2008. Its political significance notwithstanding, the Irish “No” is legally problematic because EU treaties cannot enter into force unless they are ratified by all the Member States in accordance with their respective constitutional requirements. The Irish government, however, agreed last month to hold a second ballot after it secured some guarantees as regards the impact of the Lisbon Treaty (or rather lack of) on Ireland’s taxation policies, its military neutrality and ethical issues such as abortion.

Speaking recently at the annual "State of the Union" address to the Institute of International and European Affairs in Dublin, Minister Micheál Martin made clear that the Irish government continues to view the Lisbon Treaty as an indispensable adjustment of the Union’s rules so as to allow a larger EU to act in a more effective and accountable manner. He also confirmed that the Irish government is committed to organizing another referendum before the end of this year.

For a summary of my views on the Irish referendum debacle, see the editorial Prof. Dermot Cahill and I wrote with for the latest issue of the Irish Journal of European Law.

LP