Saturday, May 18, 2013
UN General Assembly Puts French Polynesia Back on the List of UN Territories that Should be Decolonized
The United Nations General Assembly voted on Friday to place French Polynesia back on the UN list of territories that should be decolonized and requested the French Government to "facilitate rapid progress . . . towards a self-determination process."
Adopting a consensus resolution tabled by Nauru, Tuvalu, and Solomon Islands, the Assembly affirmed "the inalienable right of the people of French Polynesia to self-determination and independence" under the UN Charter, and declared that "an obligation exists [under the UN Charter] on the part of the Government of France, as the administering Power of the Territory, to transmit information on French Polynesia."
The General Assembly's action places French Polynesia back on the UN list of Non-Self-Governing Territories, bringing the number of inscriptions to 17. When the text was introduced, the delegate of the Solomon Islands recalled that French Polynesia was inscribed by France on the original UN list in 1946, together with New Caledonia. Yet the very next year, in 1947, "the General Assembly was no longer furnished with information on French Polynesia." He said that the subsequent list of Non-Self-Governing Territories published in 1963 "curiously omitted" the Territory, amounting to "the de-facto removal of French Polynesia and New Caledonia from UN oversight without the concurrence of a General Assembly resolution." He said that in June 2011, the Council of Ministers of French Polynesia adopted a resolution seeking self-determination within UN processes. The Territory's Assembly adopted the resolution in August of 2011. The current text, he added: "sends a simple message of peace and hope to the population that want to determine their future."
In that light, the resolution adopted by the 193-member UN General Assembly requests the UN Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples (known informally as the C-24) to consider the question of French Polynesia at its next session and to report to the General Assembly at its sixty-eighth session. It further requests the French Government, "as the Administering Power concerned, to intensify its dialogue with French Polynesia in order to facilitate rapid progress towards a fair and effective self-determination process, under which the terms and timelines for an act of self-determination will be agreed."
Through their statements in the Assembly, the United Kingdom, the United States, Germany, and the Netherlands all disassociated themselves from the consensus vote. According to news reports, the French delegation to the UN sent a letter to Member States on Thursday announcing that it would not be taking part in the Assembly meeting.
News reports also note that French Polynesia's pro-independence party asked for the territory to be put back on the UN list when it controlled the government in 2011. But that party lost an election this month and the government is now controlled by a party that backs the existing autonomy granted by France.
(Adapted from a UN Press Release)
Friday, May 17, 2013
May 17 is recognized as the International Day Against Homophobia, Biphobia and Transphobia (IDAHO). The day marks the anniversary of the day in 1990 on which the World Health Organization removed homosexuality from the International Classification of Diseases. Click here for more information about IDAHO Day. And here's a fairly amazing video from the United Nations -- including Navi Pillay and Ban Ki-moon -- about building a world that is free and equal.
We also note that France this week becomes the 14th country in the world to recognize same-sex marriage.
Thursday, May 16, 2013
At its biannual meeting in Sweden yesterday, the Arctic Council officially approved observer status for six new States including China, India, Italy, Japan, South Korea and Singapore. However, it deferred the application of the European Union (EU) to become a member (the deferral is attributed to a dispute between Canada and the EU over the seal fur trade). Certain non-Arctic European States are already members, including Germany, France, the Netherlands, Poland, Spain and the United Kingdom. These Observer States will participate overseeing the exploitation and conservation of the polar cap.
The regular voting members of the Arctic Council include Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden and the United States. Canada will take over the council chairmanship from Sweden on Wednesday.
Interest in the region is at an all time high as the ice melts and opens up new shipping routes and possibilities for exploration and exploitation of natural resources such as oil and gas. Environmental groups are concerned that the rush to exploit those resources will harm the environment. The Arctic Council is trying to balance those interests and yesterday signed a declaration stating it would aim to protect the environment and indigenous populations but also noting “the central role of business in the development of the Arctic.” U.S. Secretary of State Kerry emphasized in his remarks to the press that the United States recognizes its major role as an emission-producing country and is concerned about climate change and the impact on the Arctic environment. He pledged to do more at home and abroad in conjunction with other members of the Arctic Council to address those concerns.
Wednesday, May 15, 2013
Ok, we are secretly big fans of "Law School Memes," which you can find on Facebook. Here's a recent posting that has us laughing (and the comments too, that it is a trick question because the correct answer is always Commission v. Italy!).
The American Journal of International Law is calling for short submissions (maximum 3000 words, including footnotes) for a forthcoming agora on "Transnational Human Rights Litigation After Kiobel."
Contributions must not have been previously published in whole or in substantial part (on the web or elsewhere). Some of the chosen contributions will be published in the October 2013 issue of the Journal. Other selected contributions may be published electronically in a special ASIL online publication. All contributions must be submitted no later than June 15 in order to be considered.
Contributions on U.S. law issues, and on comparative and non-U.S. dimensions, are welcome. The editors aim to publish a set of distinctive contributions, rather than many making similar points. All selections for publication in AJIL or in the ASIL online publication will be peer reviewed by a committee of the AJIL editorial board consisting of Carlos Vázquez (chair), Curtis Bradley, and Ingrid Wuerth, in consultation with Co-Editors in Chief José Alvarez and Benedict Kingsbury. Decisions on publication (including requests for revisions) will be made on a rolling basis, but in any case no later than June 30. Submit contributions to [email protected] with "Kiobel Agora" in the subject line.
Tuesday, May 14, 2013
A Conviction for Genocide in Guatemala; First Country in World to Convict a Former Head of State for Genocide in its Own National Court
José Efraín Ríos Montt, Guatemala’s former de facto head of State, has been sentenced to 80 years in prison for genocide and crimes against humanity.
“Guatemala has made history by becoming the first country in the world to convict a former head of State for genocide in its own national court,” said UN High Commissioner for Human Rights, Navi Pillay, who added that the trial was of “monumental” national and global importance in the fight against impunity. “I salute the victims, relatives and survivors whose courage and perseverance made this possible against all odds, as well as the lawyers, prosecutors and judges who carried out their duties under exceptionally difficult circumstances in the face of serious threats and intimidation.”
Mr. Ríos Montt was sentenced last Friday to 80 years for his leading role in the killing of 1,771 people during his time in office between 1982 and 1983, as well as for the forced displacement, starvation, torture, and systematic rape and sexual assault that were deliberately inflicted on Guatemala’s Mayan Ixil communities. The Guatemalan court found that the crimes were committed in accordance with military plans intended to exterminate those who were considered “enemies,” which included not only guerrillas but also the civilian Ixil community that the authorities perceived to be supporting them.
The three-judge panel concluded that Mr. Ríos Montt had ordered the plans that led to the genocide, had full knowledge of the atrocities committed, and did nothing to stop them despite having the power to do so. In all, some 200,000 people – over 80 per cent of them of indigenous Mayan origin – were killed during the 36-year-long war, but the period of Ríos Montt’s rule is considered one of the bloodiest in the conflict.
“Despite all the obstacles, interruptions and numerous legal challenges which slowed down the trial, Guatemala has shown the world, and even more importantly its own people, that it is possible to address past crimes and bring justice,” Ms. Pillay said. “This historic verdict shows that no one is above the law, and that Guatemala’s institutions have the strength and solidity to carry this through – provided there is the will to do so.”
Ms. Pillay urged the Guatemalan authorities to continue to provide effective security for all those involved in the trial, including lawyers, prosecutors, victims, witnesses and human rights defenders. She also urged respect for the verdict and sentence and continued adherence to due process of law. “Guatemala can now truly begin to heal the wounds of the past, as the suffering of so many people has been formally recognised,” she said. “Now the country has shown that justice for serious international crimes can – and should – take place anywhere and everywhere that they occur. “This trial will bring encouragement to people all over the world struggling for justice for crimes committed thirty years ago, and for crimes being committed today. For this reason, the trial and conviction of Ríos Montt has been of monumental importance at the international as well as the national level.”
(Adapted from a UN Press Release)
Professor Michael Scharf of Case Western Reserve University School of Law produces a quarterly radio show, “Talking Foreign Policy,” that will host an expert panel to discuss plans for transitional justice for a post-Assad Syria on Thursday, May 16. The program can be accessed via a computer live stream from WCPN.org at 7:00 PM (US Eastern Standard Time -- 5 hours behind Greenwich Mean Time) on May 16.
The expert panel consists of Judge Raid Juhi al-Saedi, the Chief Investigative Judge of the Saddam Hussein Trial; David Crane, the founding Chief Prosecutor of the Special Court for Sierra Leone; Shannon French, Director of the Inamori International Center for Ethics and Excellence; and Paul Williams, President of the Public International Law & Policy Group, who recently returned from Istanbul where he chaired a meeting of leading transitional justice experts and members of the Syrian opposition.
If you miss the live broadcast, the archived version will be available in a couple of weeks for listening
anytime at: law.case.edu/TalkingForeignPolicy.
At a special meeting yesterday, the General Council of the World Trade Organization (WTO) approved the appointment of Ambassador Roberto Carvalho de Azevêdo (Brazil) as the next Director-General of the WTO. He begins his term of office on September 1, 2013. For more information, check out this WTO Press Release.
Monday, May 13, 2013
The Law Library and the Library’s African and Middle Eastern Division will host a panel discussion on the role and impact of Islamic law in the developing constitutions and laws of transitioning countries in the Middle East/North Africa region.
The panel, led by moderator Mary-Jane Deeb, Chief of the African and Middle Eastern Division, will discuss the role of Shari’a law in the recent and ongoing constitutional drafting processes of Egypt, Tunisia and Libya. The discussion will also concentrate on the broader impact of Islamic law on the legal systems of Arab Spring states, looking particularly at personal status issues. Other points of discussion will include the compatibility of Shari’a law and human rights, and some of the challenges facing women and minorities in transitioning Arab Spring countries.
The distinguished panel will include Nathan J. Brown, Professor of Political Science and International Affairs at the Elliot School of International Affairs at the George Washington University; Lama Abu-Odeh, Professor of Law at Georgetown University Law Center; and Issam Saliba, Senior Foreign Legal Specialist at the Law Library of Congress.
Saturday, May 11, 2013
Federal Appeals Court Upholds Injunction Against the Florida State Statute Known as the "Cuba Amendment"
The U.S. Court of Appeals for the Eleventh Circuit has upheld a lower court's injunction against the "Cuba Amendment," a Florida Statute that prohibits any company that does business with Cuba (or any company that is in any way related to a company that does business with Cuba) from binnding on state or local public contracts in the State of Florida. The federal appellate court agreed that that there was a substantial likelihood of showing that the Cuba Amendment violated the Supremacy Clause of the U.S. Constitution "under principles of conflict preemption." The court found that "[t]he Cuba Amendment conflicts directly with the extensive and highly calibrated federal regime of sanctions against Cuba promulgated by the legislative and executive branches over almost fifty years." Because the Cuba Amendment differs dramatically from federal law, it weakened the President's ability "to speak for the Nation with one voice in dealing" with Cuba. The opinion is 44 pages long and re-affims that individual states cannot have their own foreign policy when the federal government has spoken. The case is Odebrecht Construction, Inc. v. Secretary, Florida Department of Transportation, No. 12-13958 (May 6, 2013).
Brazil has become the 79th State Party to join the United Nations Convention on Contracts for the International Sale of Goods (CISG), Brazil becomes the 79th State Party to the Convention. The Convention will enter into force for Brazil on April 1, 2014.
The CISG provides an equitable and modern uniform framework for the contract of sale, which is the backbone of international trade in all countries, irrespective of their legal tradition or level of economic development. The CISG is considered to be one of the core conventions in international trade law. It establishes a comprehensive code of legal rules governing the formation of contracts for the international sale of goods, the obligations of the buyer and seller, remedies for breach of contract and other aspects of the contract.
From the UNCITRAL Website
Myanmar (Burma) Joins the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards
Myanmar has deposited its instrument of accession to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly known as the "New York Convention." With its accession, Myanmar becomes the 149th State party to the Convention. The Convention will enter into force for Myanmar on 15 July 2013. The New York Convention is widely recognized as a foundation instrument of international arbitration. It requires courts of contracting States to give effect to arbitration agreements and to recognize and enforce awards made in other States, subject to specific limited exceptions.
Friday, May 10, 2013
The Inter-American Human Rights Commission (IACHR) has referred several new cases to the Inter-American Court of Human Rights this spring. Two cases that may be of particular interest involve Venezuela and El Salvador.
In the case against Venezuela, the IACHR filed an application with the Court in Case No. 12.828, Marcel Granier et. al. RCTV. The facts revolve around the decision of the State of Venezuela not to renew the authorization to the frequency to Radio Caracas Television (RCTV). As a consequence of this decision, on May 28, 2007, RCTV stopped the transmission as an open television station.
In its Merits Report, the IACHR concluded that Venezuela's decision to not renew the license violated the right to freedom of expression, the right to equality and non-discrimination, and administrative due process. Although the formal objective declared by the State to support diversity and pluralism was indeed a legitimate public interest, the evidence of the case showed that the decision was based on the editorial line of the station. As a result, the IACHR found that the decision was incompatible with freedom of expression. In addition, RCTV was treated differently in comparison with other TV operators whose circumstances related to the concession were identical. The IACHR determined that the difference of treatment was not justified and thereby violated the rights to equal protection under the law and non-discrimination. The Commission also concluded that the process that led to the confiscation of property of RCTV violated administrative due process.
The IACHR referred the case to the Court on February 21, 2013, because the State did not inform the Commission in a timely manner of its efforts to comply with the recommendations contained in the Merits Report. According to an IACHR press release, "this case will allow the Court to analyze for the first time the effects on the right to freedom of expression, in its individual and social dimensions, as a consequence of the actions of the State related to the assignment of radio and television licenses. . . Additionally, this case will allow the Court to deepen its jurisprudence regarding the principle of equality and non-discrimination, especially when the States undertake a differential treatment based on the political opinion. The Court would have to establish the scrutiny that needs to be made in these cases, as well as the supporting parameters and the substantive criteria that must be followed to evaluate whether or not a differential treatment of this nature is compatible with the American Convention on Human Rights."
In a second case against El Salvador, the IACHR filed an application with the Court in Case No. 12.577, Rochac y otros. The facts of this case refer to the forced disappearance of the boys Jose Adrian Rochac Hernandez, Santo Ernesto Salinas, Manuel Antonio Bonilla Osorio and Ricardo Ayala Abarca, and the girl Emelinda Lorena Hernandez. These disappearances took place between 1980 and 1982, in circumstances with similar characteristics. More than 30 years after their disappearance, the destiny or whereabouts of any of the victims are still not known. Thus, according to the IACHR, these crimes remain in impunity, given that the State did not conduct a serious and diligent investigation, within a reasonable period, on the forced disappearance of the victims, as a mechanism to guarantee their rights and to ensure the rights to truth, justice and reparation of their family members. The IACHR also concluded that El Salvador violated the right to family and special protecton of the boys and the girl, as the State was responsible for the actions of its Armed Forces, which led to the separation of the victims from their families of origin, through their forced disappearance.
The IACHR sent the case to the Court on March 21, 2013, because the IACHR deemed that the State had not complied with the recommendations contained in the IACHR's Merits Report. In that report, the IACHR recommended the State to conduct a thorough, impartial, and effective investigation into the fate or whereabouts of the disappeared persons and, if they are found, make the necessary efforts to ensure family reunification. If it is established that any of them is not alive, the State is to take the measures necessary to deliver their remains to their next-of-kin; to conduct a thorough, impartial, and effective investigation into the facts to determine the responsibility and to punish all the perpetrators of the human rights violations to the detriment of the victims in the instant case, including the investigations necessary to determine the responsibility and punish the persons who participated in covering up the facts and in the denial of justice; to make adequate reparation to the victims of the instant case, including both the material and non-material aspect; among other measures.
More information regarding these cases may be found on the IACHR website.
General Efrain Rios Montt spent almost an hour denying the charges of genocide he is now facing in Guatemala. Montt ruled Guatemala for 17 months during 1982 and 1983, when the Guatemalan army killed many indigenous citizens while searching for leftist guerillas.
Montt's trial in Guatemala was suddenly suspended last month when another judge tried to annul the trial, leading to fears that Montt's supporters had found a way to influence the trial. But Guatemala's highest court issued a ruling that the trial judge (Yasmin Barrios) has interpreted to allow testimony to continue. The prosecution is seeking a sentence of 75 years for genocide and crimes against humanity. Montt is now 86 years old. Elisabeth Malkin, Ex-Dictator Denies Role in Guatemalan Massacres, N.Y. Times, May 10, 2013, at A10.
Amnesty International reported yesterday that Eritrea's government has imprisoned about 10,000 dissidents without charge or trial. Amnesty calls Eritrea one of the world's most repressive states, where detainees include "anyone who refuses to comply with the repressive system." Eritrea: Report Tallies Repression, N.Y. Times, May 10, 2013, at A8.
General Miguel Dalmao, who was a 23-year-old lieutenant in 1974, was convicted in Uruguay for human rights violations during the country's dictatorship. He was sentenced to 28 years in prison for the murder of a communist professor. Uruguay: General is Convicted, N.Y. Times, May 10, 2013, at A8.
Thursday, May 9, 2013
The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights took effect on May 5, 2013. It will allow individuals or groups to file a complaint with the United Nations if their rights are infringed by a Member State that is party to the Protocol.
In a statement celebrating the occasion as “a major advance,” UN High Commissioner for Human Rights, Navi Pillay, voiced hope that the Protocol would finally fill a long-time gap in international law. “Egregious violations of economic, social and cultural rights are occurring, often unnoticed, on a daily basis, which in the area of civil and political rights would have been immediately condemned,” said Ms. Pillay in a news release. “This Protocol will help to address this imbalance.”
According to the Protocol, citizens of signatory nations will be permitted to appeal to the UN’s Committee on Economic, Social and Cultural Rights on specific rights-related cases after they have exhausted all attempts to find justice in their respective country. The Protocol grants the Committee authorization to conduct inquiries if it receives reliable information indicating “grave or systematic violations by a State party of any of the rights covered by the Covenant.”
The Protocol took effect on May 5, 2013, three months after Uruguay became the required tenth country to ratify it. The parties to the Optional Protocol are:
- Bosnia and Herzegovina,
- El Salvador,
- Spain, and
Mark E. Wojcik (mew) (adapted from a UN Press Release)
Wednesday, May 8, 2013
The faciliators tasked with making recommendations regarding the next Director General of the World Trade Organization (WTO) announced their recommendation of Ambassador Roberto Carvalho de Azevêdo (Brazil) (pictured to the left) as the candidate who can gain consensus approval of WTO members. The announcement came at a Heads of Delegation meeting yesterday. The facilitators suggested that members approve Amb. Azevêdo as Director-General at the General Council meeting on 14 May 2013. The full statement by the Chair of the General Council regarding the announcement may be found here.