Wednesday, October 19, 2011
Above the Lawhas a story about a study group of first year students who are charging classmates $20 to "tryout." Their poster says that they want to "suceed" but they don't know how to spell the word correctly. Have a look.
Hat tip to Juli Campagna.
International Law Weekend
The American Branch of the International Law Association (ABILA) and the International Law Students Association (ILSA) present:
Fordham University Law School
Friday, October 21, 2011, 10:45 a.m. to 12:15 p.m. [90 minutes]
Electronic communications have changed defamation laws in ways few would have anticipated. A defamatory statement posted on the internet may be read anywhere in the world. The legal consequences of that statement depend not on where the statement was made, but where it was downloaded or viewed.
This panel will review international developments under the defamation laws of the United States, the United Kingdom, Canada, and other countries. One of the panelists is a U.S.-based author who was sued for libel in the United Kingdom because of a book she wrote on financing terrorism. Her story prompted legislative protections at the state and federal level. The panel is sponsored by the ABILA Committee on Teaching International Law.
- Dr. Rachel Ehrenfeld, Director, American Center for Democracy
- Daniel J. Kornstein, Kornstein, Veisz, Wexler & Pollard LLP
- Steven M. Richman, Duane Morris
- Prof. Mark E. Wojcik, The John Marshall Law School
Tuesday, October 18, 2011
The US Supreme Court granted certiorari in two cases yesterday involving international law issues. The first is Kiobel v Royal Dutch Petroleum in which the Second Circuit Court of Appeals held that corporations are not liable for torts in violation of international law within the meaning of the Alien Tort Statute (ATS). Since that decision, two other federal circuits courts of appeal have issued decisions disagreeing with the Second Circuit-the DC Circuit in Doe and the Seventh Circuit in Flomo. The Supreme Court will now resolve this circuit split of authority.
The second case is Mohamad v Rajoub, a DC Circuit Court of Appeals decision which held that the Torture Victim Protection Act (TPVA) does not permit suits against non-natural persons. That case involves a suit by the family of a US citizen against a political organization, the Palestinian Liberation Organization (PLO), for torture allegedly committed by a PLO officer that resulted in the death of the US citizen.
The DC Court's decision to exclude liability for non-natural persons under the TPVA is on stronger ground than the Second Circuit's decision excluding corporate liability under the ATS just based on the text of the two statutes. The ATS permits suits by an alien for a tort in violation of international law. It says nothing about a proper or improper defendant. By contrast, the TPVA only permits suits against individuals who engage in torture or extrajudicial killing while acting under color of law. The use of the word individual can more easily be read to exclude non-natural persons such as political organizations or corporations. In addition, the ATS potentially covers a much broader range of tortious behavior where corporate liability may fit more easily than it does with respect to torture or extrajudicial killing.
Calling today’s exchange of prisoners by Israel and the Palestinian group Hamas a “significant humanitarian breakthrough,” Secretary-General Ban Ki-moon said he hoped it would have a far-reaching and positive impact on the stalled Middle East peace process. In a statement issued by his spokesperson, Mr. Ban noted that “he has long called for the end of unacceptable captivity of [Israeli soldier] Gilad Shalit and has also called for the release of Palestinian prisoners.” Hamas today released Mr. Shalit, who had been held captive since June 2006, in exchange for the release of more than 1,000 Palestinian prisoners by Israel. The first 477 of those prisoners were released today.
Responding to a reporter’s question in Geneva, Mr. Ban said he was very encouraged by today’s actions and voiced hope that the two parties will return to negotiations so they can realize the vision of two States, Israel and Palestine, living side by side in peace and security. In the statement Mr. Ban thanked Egypt and Germany for their contributions to the process that led to the prisoner exchange. “In the aftermath, the Secretary-General hopes that more far-reaching steps will be taken to end the closure of Gaza and enable reconstruction. He continues to call in the same context for an end to the smuggling of weapons and a sustained calm between Israel and Gaza.”
(UN Press Release)
A United Nations expert on torture today called on all countries to ban the solitary confinement of prisoners except in very exceptional circumstances and for as short a time as possible, with an absolute prohibition in the case of juveniles and people with mental disabilities. “Segregation, isolation, separation, cellular, lockdown, Supermax, the hole, Secure Housing Unit . . . whatever the name, solitary confinement should be banned by States as a punishment or extortion technique,” UN Special Rapporteur on torture Juan E. Méndez told the General Assembly’s third committee, which deals with social, humanitarian and cultural affairs, saying the practice could amount to torture. “Solitary confinement is a harsh measure which is contrary to rehabilitation, the aim of the penitentiary system,” he stressed in presenting his first interim report on the practice, calling it global in nature and subject to widespread abuse.
Indefinite and prolonged solitary confinement in excess of 15 days should also be subject to an absolute prohibition, he added, citing scientific studies that have established that some lasting mental damage is caused after a few days of social isolation. “Considering the severe mental pain or suffering solitary confinement may cause, it can amount to torture or cruel, inhuman or degrading treatment or punishment when used as a punishment, during pre-trial detention, indefinitely or for a prolonged period, for persons with mental disabilities or juveniles,” he warned. The practice should be used only in very exceptional circumstances and for as short a time as possible, he stressed. “In the exceptional circumstances in which its use is legitimate, procedural safeguards must be followed. I urge States to apply a set of guiding principles when using solitary confinement,” he said.
He told a later news conference these circumstances could include the protection of inmates in cases where they are gay, lesbian or bisexual or otherwise threatened by prison gangs. There is no universal definition for solitary confinement since the degree of social isolation varies with different practices, but Mr. Méndez defined it as any regime where an inmate is held in isolation from others, except guards, for at least 22 hours a day.
In his report he noted that in the United States an estimated 20,000 to 25,000 individuals are being held in isolation, while in Argentina a prevention of violent behaviour programme consists of isolation for at least nine months and, according to prison monitors, is frequently extended.
He warned of an increased risk of torture in these cases because of the absence of witnesses and said some detainees have been held in solitary confinement facilities for years, without any charge and without trial, as well as in secret detention centres.
Mr. Méndez told the news conference that he had been following the case of US soldier Bradley Manning, detained in connection with his alleged leaking of secret cables to the WikiLeaks website. Mr. Manning was held in solitary confinement for eight months but has now been moved and is no longer subject to the same restrictions, he noted, adding that he would release a report on the issue in a few weeks.
Examples he cited in his report from around the world included Kazakhstan where solitary confinement can last for more than two months, and the US terrorist detention centre in Guantánamo Bay, where experts found that although 30 days of isolation was the maximum period permissible, some detainees were returned to isolation after very short breaks over a period of up to 18 months.
Elsewhere, two prisoners are reported to have been held in solitary confinement in Louisiana, US, for 40 years after attempts for a judicial appeal of their conditions failed, he noted. In China an individual sentenced for “unlawfully supplying State secrets or intelligence to entities outside China” was allegedly held in solitary confinement for two years of her eight-year sentence.
“Social isolation is one of the harmful elements of solitary confinement and its main objective. It reduces meaningful social contact to an absolute minimum,” Mr. Méndez told the committee, noting that a significant number of individuals will experience serious health problems regardless of specific conditions of time, place, and pre-existing personal factors.
He called for an end to solitary confinement in pre-trial detention based solely on the seriousness of the alleged offence, as well as a complete ban on its use for juveniles and persons with mental disabilities.
Solitary confinement for shorter terms or for legitimate disciplinary reasons can amount to cruel, inhuman or degrading treatment or punishment in cases where the physical conditions of prisons, such as sanitation and access to food and water, violate the inherent dignity of the human person and cause severe mental and physical pain or suffering.
Today’s news conference also heard from Claudio Grossman, chair of the UN Committee against Torture, and Malcolm Evans, chair of the UN Subcommittee on the Prevention of Torture.
(UN Press Release)
A United Nations human rights expert has called on Thailand to amend laws that impose jail terms of three to 15 years on “whoever defames, insults or threatens” top members of the country’s royal family, stressing that their vagueness contravened international treaties.
“The recent spike in lèse majesté cases pursued by the police and the courts shows the urgency to amend them,” Special Rapporteur on the right to freedom of opinion and expression Frank La Rue said, using the legal term for offences or crimes against a State’s rulers or affronts to their dignity. Mr. La Rue cited section 112 of the Thai penal code, which states that “whoever defames, insults or threatens the King, the Queen, the Heir to the throne or the Regent shall be punished with imprisonment of three to 15 years,” and the Computer Crimes Act, which can impose jail terms of up to five years for any views on the monarchy made on the Internet that are deemed to threaten national security. He stressed that Thailand has been a party to the International Covenant on Civil and Political Rights (ICCPR) since 1996, which contains legally binding human rights obligations, including the obligation to fully guarantee the right of all individuals to seek, receive and impart information and ideas of all kinds.
“The threat of a long prison sentence and vagueness of what kinds of expression constitute defamation, insult, or threat to the monarchy, encourage self-censorship and stifle important debates on matters of public interest, thus putting in jeopardy the right to freedom of opinion and expression,” he said. “This is exacerbated by the fact that the charges can be brought by private individuals and trials are often closed to the public.”
While acknowledging that freedom of expression carries with it special responsibilities and that under certain exceptional circumstances it may be limited, including to protect the reputation of individuals and national security, he emphasized that laws limiting such freedom must be clear, unambiguous as to the specific type of banned expression, and proven to be necessary and proportionate, so as to prevent abuse for purposes beyond their intended purpose.
“The Thai penal code and the Computer Crimes Act do not meet these criteria,” said Mr. La Rue, who acts in an independent, unpaid capacity and reports to the Geneva-based UN Human Rights Council. “The laws are vague and overly broad, and the harsh criminal sanctions are neither necessary nor proportionate to protect the monarchy or national security.” He voiced concern that the Computer Crimes Act had been used by the Ministry of Information and Communication Technology, in cooperation with the army, to reportedly block hundreds of thousands of websites containing commentary on the Thai monarchy, and noted that countries had also raised concerns during the Human Rights Council’s universal periodic review of Thailand on Friday.
(Adapted from a UN Press Release) (mew)
The national co-investigating judge in the United Nations-backed Cambodian genocide tribunal yesterday affirmed that he will continue to fulfil his mandate independently and in compliance with the principles stipulated in the law, despite the resignation of his international colleague.
Judge Siegfried Blunk, the international co-investigating judge at the Extraordinary Chambers in the Courts of Cambodia (ECCC), submitted his resignation to Secretary-General Ban Ki-moon as of 8 October, citing repeated statements by Government officials regarding what are known as cases 003 and 004.
Case 003 reportedly involves two former senior members of the Khmer Rouge military suspected of being responsible for the deaths of thousands of people, while case 004 is believed to involve three other senior members.
“His resignation was very surprising to me,” said You Bunleng, the national co-investigating judge, in a statement. “In fact, the work relationship between the international co-investigating judge and myself as national co-investigating judge has so far developed in a smooth and responsible manner based on legal principles and the ECCC internal rules, although there have been some allegations through media speculations made by some outsiders of the Court.” He said judicial investigations with regard to cases 003 and 004 have been conducted by the office of the co-investigation judges “independently without any obstacle.”
“Although speculations have been made in various media reports with regard to the procedural measures and decisions of the co-investigating judges, the national co-investigating judge still affirms that he will continue to fulfil the works of the office of the co-investigating judges independently and in compliance with the principles stipulated in the law and the ECCC internal rules, and he is resolved to resist any attempt to interfere into his works from any source,” Judge Bunleng said in his statement.
Under an agreement signed by the UN and the Government, the ECCC was set up as an independent court using a mixture of Cambodian staff and judges and foreign personnel. It is designated to try those deemed most responsible for mass killings and other crimes committed under the Khmer Rouge three decades ago.
After his appointment as a co-investigating judge last year, Judge Blunk proceeded with investigations in cases 003 and 004 with the expectation that a previous statement reportedly made by the Cambodian Prime Minister to the Secretary-General that these cases “will not be allowed” did not reflect Government policy, according to a news release issued by the tribunal.
(mew)(Adapted from a UN Press Release)
The Security Council this week allowed one of the judges in the United Nations tribunal for the 1994 Rwandan genocide to work part-time and engage in another judicial occupation until the end of the year, under exceptional circumstances. In authorizing Judge Bakhtiyar Tuzmukhamedov of the International Criminal Tribunal for Rwanda (ICTR) to work part-time, the Council, in a resolution, took note of the fact that upon the completion of the cases to which they are assigned, four permanent judges will be redeployed from the trial chamber to the appeals chamber and two permanent judges will leave the tribunal. It also considered Judge Tuzmukhamedov’s commitment to ensuring timely delivery of judgment in the two cases in which he is currently involved.
The Security Council underscored that the exceptional authorization shall not be considered as establishing a precedent. In its resolution, the Security Council said that the President of the ICTR shall have the responsibility to ensure that this arrangement is compatible with the independence and impartiality of the judge, does not give rise to conflicts of interest and does not delay the delivery of the judgment.
The ICTR was set up by the Security Council in the wake of the genocide, in which it is estimated that more 800,000 ethnic Tutsis and Hutu moderates were killed, mainly by machete, during a period of about 100 days starting on 6 April 1994.
(Adapted from a UN Press Release)
A Cambodian draft law making registration of associations and non-governmental organizations (NGOs) mandatory and banning unregistered groups, risks breaching an international treaty, a United Nations rights expert warned this week, calling on the Government to review it.
“The current draft NGO law contains a set of problematic provisions, raising concerns over a potential negative impact on Cambodian citizens’ democratic participation in furthering the development of their country,” UN Special Rapporteur on the rights to freedom of peaceful assembly and of association Maina Kiai said in a news release, noting that it could violate the International Covenant on Civil and Political Rights (ICCPR)
The mandatory nature of the draft law “constitutes a clear infringement of the right to freedom of association. Having a recognized legal status may confer rights and benefits to organizations such as the ability to open bank accounts, but legal status is not necessary for the enjoyment of the right to freedom of association,” he added.
He welcomed a recent statement by Cambodia’s ambassador to the Geneva-based UN Human Rights Council promising “further consultations” and called on the authorities to review the draft law in open and meaningful discussions with associations and NGOs. By excluding refugees, stateless persons and other non-Cambodian residents from forming associations or domestic NGOs and limiting eligible founding members to Cambodian nationals, the draft further violates freedom of association, which should be enjoyed by all individuals within Cambodia’s territory, he noted.
Other concerns include the high minimum membership requirement; lack of clarity of the criteria for registration, suspension or termination; and the overly cumbersome and bureaucratic registration process for foreign NGOs, which could limit the scope of their activities and hamper their independence. “A legal framework to ensure freedom of association should facilitate, rather than control, individuals’ enjoyment of this right formally or informally,” Mr. Kiai said. “It should also emerge from an open, transparent process that engenders goodwill and confidence.”
Two other UN experts raised concerns over the effects of the draft law on human rights defenders. The Special Rapporteur on the right to freedom of opinion and expression, Frank La Rue, stressed that the draft could affect the defenders’ ability to exercise such rights.
The Special Rapporteur on the situation of human rights defenders Margaret Sekaggya said the free and full exercise of the right to freedom of association places a duty on States to create a favourable environment for defenders to act freely. “We urge the Cambodian authorities to fully take on board the legitimate concerns repeatedly raised by NGOs and associations during the announced further consultations,” the two said, noting that the Government has reviewed and revised the draft law numerous times.
Last month, the Special Rapporteur on the situation of human rights in Cambodia, Surya P. Subedi, urged the Government to review the draft and not proceed with it in its present form.
(Adapted from a UN Press Release)
The United Nations Legal Counsel will travel to Phnom Penh next week for meetings concerning the Cambodia genocide tribunal in the wake of the resignation of one of the judges. The tribunal, known officially as the Extraordinary Chambers in the Courts of Cambodia (ECCC), was set up under an agreement signed in 2003 by the UN and the Government. The independent court uses a mixture of Cambodian staff and judges and foreign personnel. It is tasked with trying those deemed most responsible for mass killings and other crimes committed under the Khmer Rouge between 1975 and 1979 during which as many as two million people are thought to have died.
The visit by Patricia O’Brien, the Under Secretary-General for Legal Affairs, follows the resignation earlier this week of Judge Siegfried Blunk, the international co-investigating judge at the ECCC. Judge Blunk cited repeated statements by senior Government officials opposing the progress of what are referred to as cases 003 and 004 – which concern senior members of the Khmer Rouge military suspected of being responsible for the deaths of thousands of people. Judge Blunk noted in his letter of resignation that these could be used to call into question his ability to perform his duties independently. This would call into doubt the integrity of the whole proceedings in these cases.
The UN has consistently stated that the ECCC must be permitted to proceed with its work without interference from any entity, including the Cambodian Government.
Ms. O’Brien will hold meetings with Government officials and others concerning the tribunal, UN spokesperson Martin Nesirky told reporters in New York. He will also adress other concerns raised about other aspects of the court’s work.
(mew) (Adapted from a UN Press Release)
Sunday, October 16, 2011
The Union Internationale des Avocats (UIA), the International Association of Lawyers, will hold its 55th annual Congress in Miami from October 31 to November 4, 2011. More than 1,200 lawyers from more than 70 countries around the world are expected to attend. Here's a link to a short promotional video for the event.
Friday, October 14, 2011
I am chairing a panel on “Libel Tourism” that will be held next Friday, October 21, 2011 at Fordham University School of Law during the “International Law Weekend.” The International Law Weekend ("ILW") is an annual conference jointly organized by the American Branch of the International Law Association (AmBranch or ABILA) and the International Law Students Association (ILSA). Our panel will be one of five concurrent sessions during the time slot from 10:45 a.m. to 12:15 p.m.
Wednesday, October 12, 2011
The U.S. Congress finally passed three bilateral free trade agreements today with South Korea, Panama and Colombia - one day before a visit by the South Korean President. The legislation also included a renewal of an aid program, called the Trade Adjustment Assistance program, for workers who have lost their jobs due to outsourcing. The free trade agreements were originally negotiated by the Bush administration but have been stalled since 2007. Experts disagree as to the potential impact on the U.S. economy. While U.S. exports are predicted to increase, some argue that U.S. jobs will be lost to foreign competition.
Tuesday, October 11, 2011
Last week, opposition leaders in Syria announced the formation of a Syrian National Council. Presumably, they hope the SNC will play a role in toppling the regime of Basher al-Assad in Syria and transitioning to a new government similar to the role played by the National Transitional Council of Libya (NTCL). No States have yet recognized the new SNC although reports suggest that opposition leaders are seeking recognition of the international community. Syria has threatened "strict measures" against any State that recognizes the "illegitimate council". Several States and other international organizations, such as the UN General Assembly, were fairly quick to recognize the NTCL. It may be difficult for
international community to justify treating
the SNC differently.
I am happy to see the James Crawford (University of Cambridge) and Martti Koskenniemi (University of Helsinki) are preparing "The Cambridge Companion to International Law." Publication is expected in February 2012. It is expected to come in at 300 pages with a list price of only $45.00. That's my kind of book. There is an impressive list of contributing authors as well.
Monday, October 10, 2011
This year's theme is "International Law and National Politics" A blue ribbon opening panel at 6:30 p.m. on Thursday night at the City Bar will address whether international law has seen "The Death of Sovereignty?" in an era of debt downgrades, seccesionist conflicts, and covert military operations -- and will be followed by a free wine and cheese reception.
Panels starting at 9 a.m. on Friday at Fordham will look at International Law and U.S. Grand Strategy, the Extraterritorial Reach of Anti-Bribery Legislation Libel Tourism, the UN Disabilities Convention, Sharia and U.S. Law, Developments in Commercial Arbitration, Access to Justice in the Middle East North Africa Region, Regulation of Private Military and Security Companeis, LGBT Rights in Africa, and the Impact of the European Union's Lisbon Treaty on National Politics. State Department Legal Adviser Harold Koh will give a keynote talk at 1:30 p.m. on Friday, after a free buffet lunch in the atrium, on "International Lawyering for the U.S. in an Age of Smart Power."
Panels starting at 9 a.m. on Saturday include Civilian Casualties in Modern War, Corporate Social Responsibility and Human Rights Law - Emerging Risks for Corporate Counsel, Private Litigation against Alleged Terrorist Sponsors, Intellectual Property Law, the New International Investment Arbitration Lawyer, Current Challenges for the International Criminal Court, Tribunal Procedures and Ethical Dilemmas for the Guantanamo Bay Military Tribunals, and Promoting Independence for Human Rights Lawyers Worldwide. Former Yugoslav Tribunal Prosecutor Richard Goldstone will give a keynote address at 4:15 p.m. on Saturday on "The Future of International Criminal Justice: The Crucial Role of the United States."
Admission is free for all students, all faculty, lawyers, and staff from co-sponsoring institutions, as well as all members of the American Branch of the International Law Association, the International Law Students Association, and the Association of the Bar of the City of New York. Staff members of the United Nations and Permanent Missions to the United Nations can also attend for free. The registration fee remains a modest $75 for the two days combined for all other practicing lawyers and members of the public.
Hat tip to Ruth Wedgewood
The Honorable Thomas Buergenthal, former Judge of the International Court of Justice and former President of the Inter-American Court of Human Rights, will speak in Chicago next Monday, October 17, 2011 on the subject of "The Lawmaking Role of International Tribunals."
The event will be held on Monday, October 17, 2011, from noon to 2:00 p.m. at The John Marshall Law School in Chicago. The program is free and open to the public -- arrive early to get a space. Register in advance by clicking here. The event is the Fred Herzog Memorial Lecture Series.
Sunday, October 9, 2011
More than one thousand lawyers have already registered for the massive lawyer flash mob that will be more properly known as the Fall Meeting of the American Bar Association Section of International Law. Section Chair Mike Burke -- whose name is suspiciously Irish -- is quite pleased with the turnout. We're in Belfast now at pre-meeting ILEX delegation. The group will today meet the Lord Mayor of Belfast and the Lord Chief Justice of Northern Ireland. Last night there was a splendid reception in the Throne Room of Hillsborough Castle and tonight there's a dinner in the Parliament Buildings.