Friday, February 24, 2017
Journalists from the New York Times, CNN, and Politico were prohibited from attending a White House Press Briefing today by President Trump’s press secretary, Sean M. Spicer. Aides to Mr. Spicer allowed in reporters from only a handpicked group of mostly conservative news organizations.
Wednesday, February 22, 2017
The International Criminal Court (ICC) had a better week this past week. Following the announcements this past fall by a few African States that they intend to withdraw from the Court, more recently, Gambia's newly elected government announced that it would not leave the Court after all. Then today, South Africa's High Court ruled that the South African government's decision to withdraw from the ICC was unconstitutional because the government had failed to seek approval from the South African Parliament. This decision does not mean that South Africa cannot leave the ICC eventually, only that it will take more time and the withdrawal must follow a different procedure. It also may give the ICC more time to show that the charges against it of bias are not well founded.
A major milestone for the global trading system was reached today when the first multilateral deal concluded in the 21-year history of the World Trade Organization (WTO) entered into force. In receiving four more ratifications from Rwanda, Oman, Chad and Jordan for the Trade Facilitation Agreement (TFA), the WTO has obtained the two-thirds acceptance of the agreement from its 164 members needed to bring the TFA into force. For more information, see the WTO website.
ICC Revised Arbitration Rules Go Into Effect on March 1st; Changes Include Expedited Procedures for Disputes Under US$2 million
The International Court of Arbitration of the International Chamber of Commerce (ICC Court) announced important amendments to the ICC Rules of Arbitration (the "Rules") to increase the efficiency and transparency of ICC arbitrations.
The revised rules enter into effect on March 1, 2017. They provide that expedited procedure rules will automatically apply to all arbitrations with amounts in dispute below US$2 million and to cases involving higher amounts on an opt-in basis.
Features of the Expedited Rules
Under the Expedited Procedure Rules, the ICC Court will normally appoint a sole arbitrator, irrespective of any contrary term of the arbitration agreement. Awards must be made in six months from the case management conference. Extensions will be granted only in limited and justified circumstances.
Under the Rules there will be no Terms of Reference and the tribunal will have discretion to decide the case on documents only, with no hearing, no requests to produce documents and no examination of witnesses. The quality control on awards -- performed by the ICC Court and its Secretariat through the scrutiny of the award -- will however be maintained at its long-established highest level. Finally, a scale providing for significantly reduced fees will apply under the Expedited Procedure Rules.
ICC Court President Alexis Mourre said: "This is an entirely new offer to our users. Disputes will now be resolved on a very expeditious and cost-effective manner, providing an effective answer to the legitimate concerns of the business community as to time and costs. These new rules will not only be effective for disputes of a limited value, but also for larger cases if the parties so agree."
Reflecting a string of new measures and amendments to ICC practice notes introduced in 2016, the ICC also introduced a number of other changes to its Rules. They reduce from two months to one month the time-limit to establish Terms of Reference in order to streamline the initial phases of the proceedings.
The Rules have also been amended to allow the ICC Court to provide reasons for its decisions made on challenges, as well as for other decisions, such as prima facie jurisdictional decisions and consolidations, without having to seek consent of all parties, as under the previous Rules. Mr Mourre said: "Any party will now be in a position to ask the ICC Court to provide reasons for its decisions. This is an increased measure of transparency and accountability to our users.
The amendments to the Rules were proposed in May 2016 by the ICC Court and the Governing Body for Dispute Resolution Services. They were presented to the ICC Commission on Arbitration and ADR at its Washington session in September 2016 and finally approved by the ICC Executive Board in Bangkok in October 2016.
(Adapted from an ICC Press Release).
OSCE Tells UN Security Council that Multilateral Cooperation is the Only Way to Achieve Peace, Security, and Stability
Multilateral cooperation is the only way to achieve peace, security and stability, and there is no alternative to it, Austria’s Foreign Minister told the United Nations Security Council today, underscoring the work of his country in its role as the Chair of the Organization for Security and Co-operation in Europe (OSCE).
“As you can imagine, chairing OSCE is not an easy task,” said Sebastian Kurz, Federal Minister for Europe, Integration and Foreign Affairs of Austria, citing the difficulty in finding consensus among the regional body’s 57 States. “Austria has taken over the OSCE chairmanship at a critical moment. Everywhere we look, there are grave threats to peace and security,” he added. He said that the Austrian chairmanship will seek to contribute to defusing existing conflicts, create a platform to assists States in their efforts to combat radicalization and violent extremism, and help rebuild trust between the OSCE States.
On the crisis in and around Ukraine, he said the OSCE has demonstrated its crucial role in brokering a ceasefire and its special monitoring mission has helped prevent a worsening of the situation. However, support is need to increase the number of monitors on the ground, improve the technical equipment for monitoring and extend the operating hours along the contact line between Government and non-Government armed forces, he said.
Austria will also support all efforts to achieve progress on other conflict situations, including those in Transnistria, Georgia and Nagorno-Karabakh.
Turning to radicalization and terrorism, he said more than 10,000 people from the OSCE area have joined the Islamic State of Iraq and the Levant (ISIL/Da’esh). The most vulnerable group to be radicalized is youth, Mr. Kurz said, adding that he has appointed Peter Neumann, an expert on terrorism, as his special representative on radicalisation.
The Austrian chairmanship will also try to resume discussions on conventional arms control in Europe, and seek to launch a structured dialogue on current and future challenges and risks to security in the OSCE area.
Cyber security and social and economic cooperation – two issues discussed in Vienna recently - are areas where everybody stands to gain from more cooperation, and success in these areas will lead to more trust, he stressed. “The same is true for human rights, the rule of law and democracy. Together we can strengthen the cohesiveness and resilience of our societies to better counter threats to our security,” he said.
(Adapted from a UN Press Release). Photo: Austria’s Foreign Minister Sebastian Kurz, in his role as the chair of the Organization for Security and Co-operation in Europe (OSCE), addresses the Security Council. (UN Photo/Eskinder Debebe)
Monday, February 20, 2017
Reuters News Service reports that the Mexican Minister of Agriculture will lead a business delegation from Mexico to Argentina and Brazil to buy yellow corn. The move is part of a plan to lessen Mexico's dependence on U.S. exports because of threats from the current U.S. President to disrupt a long-standing free trade agreement between the United States and Mexico and to impose taxes on products on Mexico.
Mexico currently imports $2.3 billion of yellow corn annually from the United States. Mexico is the largest foreign buyer of corn from the United States.
Mexico will now look increasingly to Argentina, Brazil, and other countries to decrease its dependence on the United States. Click here to read more.
Additionally, a Mexican Senator reportedly has promised to introduce a bill that would require Mexico to import corn from Argentina and Brazil instead of the United States. Click here to read more.
Sunday, February 19, 2017
Monday, February 13, 2017
In 1988, the U.S. Court of International Trade was faced with a tariff classification dispute as to whether G.I. Joe "Action Figures" were classifiable under the Tariff Schedules of the United States as "other dolls" dutiable at various rates depending upon the date of importation, or whether they could be imported duty free under the Generalized System of Preferences as "toy figures of animate objects."
The Court of International Trade ruled that the plain meaning of the word "doll" covered all distinctive representations of human figures with which children play. After describing each of the figures in some (pretty humorous) detail, the court ruled that the G.I. Joe figures were classifiable as dolls and were subject to customs duty.
In reaching that decision, the Court of International Trade said:
for what it is worth, the Court notes that this [tariff] classification does not in any way detract from the respect which these figures deserve in the never-ending struggle between good and evil. Henceforth, each and every one of these figures must accept the fact that, for tariff purposes and by judicial decision, they must face the world as "real American dolls." Hopefully, they will meet this decision as to their tariff classification with courage and pride.
Hasbro Industries, Inc. v. United States, 703 F. Supp. 941, 946 (Ct. Int'l Trade 1988). The decision was upheld on appeal to the U.S. Court of Appeals for the Federal Circuit.
Thursday, February 9, 2017
The Philip C. Jessup International Law Moot Court Competition is the world's largest moot court competition. This year more than 2,000 law students at over 600 law schools in 90 countries around the world are competing in the Jessup.
The competition involves teams of law students who compete against one another through the presentation of oral and written pleadings to address timely issues of public international law in the context of a hypothetical legal dispute between nations. Each team prepares two written memorials and two 45-minute oral presentations, one for each party to the dispute (the “Applicant” and the “Respondent”). Teams argue alternately as Applicant and Respondent against competing teams before a panel of judges, simulating a proceeding before the International Court of Justice.
Qualifying Rounds have already been held in Afghanistan, Belarus, Chile, Ghana, India, Iran, and Russia.
Other countries with rounds happening right now or in the coming weeks include Armenia, Australia, Bangladesh, Belgium, Bulgaria, Canada, China, Chinese Taipei, Czech Republic, France, Greece, Hong Kong, Indonesia, Iraq, Ireland, Italy, Japan, Kenya, Malaysia, the Netherlands, Nigeria, Pakistan, Palestine, the Philippines, Poland, Singapore, South Korea, Spain, Turkey, Ukraine, and the United Kingdom. Winners of the national rounds and regional qualifying rounds will travel to Washington D.C. to compete in the International Rounds.
Regional rounds are also starting in the United States, with competitions this weekend in Chicago and New York. Here are some photos from the opening team meeting in Chicago, being hosted at Loyola University of Chicago Law School.
The Jessup Competition is administered by the International Law Students Association (ILSA), a non-profit organization now based in Washington, D.C.
If you're a former Jessuper, you know the importance of this competition. Please consider helping ILSA with a small financial donation. Visit www.ilsa.org for more information about ILSA and the Jessup Competition.
The John Marshall Law School, Chicago, Illinois
The Planning Committee for the Second Biennial Moot Court Conference invites proposals from participants on any topic of interest to those who coach moot court teams and teach appellate advocacy. The committee invites individual and collaborative proposals.
- Name(s) and contact information
- Title of presentation
- Brief summary (one paragraph description)
- Time needed (25 minutes or 50 minutes)
- Technology needed.
In the email subject line, please state: Moot Court 2017 Proposal – [Name].
The LWI Moot Court Conference Planning Committee hopes to make its selections by February 27, 2017.
Hat tips to Ardath Hamann and Rob Sherwin.
Tuesday, February 7, 2017
The setting up of the International Criminal Court (ICC) was a “reckoning” for those who had long disregarded the lives and dignity of their people, the United Nations Special Adviser on the Prevention of Genocide has said and warned that withdrawing from the tribunal could have grave implications for victims seeking redress for serious human rights violations.
“The establishment of the Court signified a global commitment to protect victims, when national judicial mechanisms lacked the capacity, willingness or jurisdiction to prosecute those responsible for the most serious crimes,” wrote Special Adviser Adama Dieng in an opinion piece published in The East African.
Since the adoption of the Rome Statute in 1998, more than half of the world’s States have joined the Court, 34 among them are African nations – the biggest regional block to date . In July this year, the Court’s founding Statue will mark the 15th anniversary of its entry into force.
Highlighting the significance of the Court, Mr. Dieng said that the fact that most of the cases in the continent were submitted by African States themselves, reaffirming their belief that it would strengthen the rule of law and respect for the fundamental rights and freedoms of the African people.
However, he added that despite the ICC’s achievements, it is increasingly coming under threat, with recent announcements by Burundi, South Africa and the Gambia to withdraw from the Rome Statute. “Other States have threatened to do so, if certain conditions are not met,” he wrote, noting that key among the concerns raised by these countries included the “lack of fairness in the prosecution decisions of the Court, perceived by some to disproportionately target African leaders.”
A candid dialogue will enhance mutual trust and cooperation
Noting the need for a candid conversation between all stakeholders, in particular member States and the Court to identify and address legitimate concerns, he said: “Doing this will enhance mutual trust and cooperation and strengthen the capability of the Court to fulfil its mandate.” He added that the States that want to withdraw from the Rome Statute have made little, if any, effort to present their grievances through the established forums, such as the Assembly of States Parties – the management oversight and legislative body of the Court, composed of representatives of the States that have ratified and acceded to the Rome Statute.
“To have done so would have presented an opportunity to have an open and frank dialogue, and discuss how to make the Court a better institution, one that is capable of responding effectively to the challenges it was established to address,” he emphasized, and “engaging and advocating for reforms should serve the interests of all stakeholders of the Court.”
Reaffirm the commitment to ensure accountability for appalling crimes
Drawing attention to the ongoing atrocities in Syria, Yemen, Iraq, South Sudan and in other parts of the world, he underlined that the time is not right to abandon the Court.
“Rather, States and non-State members should reaffirm their commitment to strengthen the Rome Statute and ensure accountability for these horrendous crimes,” Mr. Dieng said, appealing urging for them to work collectively to ensure the Court can effectively administer international criminal justice without fear or favour, contribute to the fight against impunity, and promote respect for the rule of law and human rights. “As someone who witnessed first-hand the horrors in Rwanda, the Former Yugoslavia, Sierra Leone and elsewhere, and who has been closely involved in the delivery of international justice at the International Criminal Tribunal for Rwanda, I know too well the consequences when the international community undermines the efforts of international justice,” he said.
“We owe it to the victims of these horrendous crimes to strengthen rather than undermine the International Criminal Court, and to reaffirm our commitment to the Rome Statute to ‘put an end to impunity for the perpetrators of these crimes and thus contribute to their prevention’.”
(Adapted from a UN Press Release)
The ABA House of Delegates, the policy-making arm of the American Bar Association, voted yesterday to urge the United States to ratify and implement the 2013 Arms Trade Treaty ("ATT").
As noted in Report 104 to the ABA House of Delegates, the ATT aims to prevent and eradicate the illicit trade in conventional arms and prevent their diversion. G.A. Res. 64/48, art. 1, U.N. Doc. A/RES/64/48, (Dec. 2, 2009). The report urged that ratification "presents an opportunity for the United States to curb illicit international weapons transfers to war-torn countries, terrorist organizations, and murderous regimes" and that this was "a benefit not only to international peace and security but also to U.S. interests."
The Future of U.S.-Russia Relations under the Trump Administration: Heading for a Reset or an Overload?
The ABA Section of International Law will present a teleconference on Monday, February 27, 2017, from 12:00 p.m.-1:00 p.m. ET on the Future of U.S. relations with Russia.
As a candidate, President Trump repeatedly made comments suggesting that he would take a different approach to dealing with Russia than his predecessor. In addition to praising President Putin, Mr. Trump suggested that he would consider recognizing Crimea as Russian territory and lifting sanctions against Russia, support Russia’s involvement in Syria, and reduce U.S. support for NATO. President Putin, in turn, expressed hope to work together with Mr. Trump toward “removing Russian-American relations from their crisis state."
Although these statements raise a possibility of a rapprochement, whether and how they will translate into actual policies remains unclear. At the same time, the reports that Russia meddled in the U.S. elections to help Mr. Trump raise serious national security concerns and further questions about the future of bilateral relations.
As the new administration is taking control, our panel of distinguished policy experts will discuss what the future might hold for the U.S.-Russia relations in the areas of national security, foreign policy, and economic matters. They will also discuss how the Trump administration might respond to the continuing pressures on a civil society in Russia in light of a possible reset in the relations.
- Michael Shapiro, Bazelon Less & Feldman, P.C., Co-Chair of Russia and Eurasia Committee
- Angela Stent, Professor at Georgetown University, Director of the Center for Eurasian, Russian & East European Studies
- William Burke-White, Professor at the University of Pennsylvania Law School, Director of Perry World House
- Carroll Colley, Principal at Highgate Consulting LLC, former Director of Research at Eurasia Group
Section of International Law Member Teleconference: $15
Non-Section of International Law Member Teleconference: $25
Contact the ABA Section of International Law for more information.
ICJ Decides it Has Jurisdiction in Case of Maritime Delimitation in the Indian Ocean (Somalia v. Kenya)
The International Court of Justice ruled to admit an application submitted by the Federal Republic of Somalia against the Republic of Kenya over the maritime delimitation between it and Kenya in the Indian Ocean.
In its final judgement and without appeal, the Court rejected objections raised by Kenya which referred to a memorandum of understanding and the UN Convention on the Law of the Sea, and found that it has jurisdiction to entertain Somalia's application and that the application is admissible.
In August 2014, Somalia had approached the Court, requesting it to determine, on the basis of international law, the complete course of the single maritime boundary dividing all the maritime areas appertaining to Somalia and to Kenya in the Indian Ocean, including the continental shelf beyond 200 nautical miles (370.4 kilometres or 230.156 miles).
According to media reports, Somalia believes that the seabed area under contention could hold possible oil or natural gas reserves.
As basis for the Court's jurisdiction, Somalia invoked the declarations recognizing the Court's jurisdiction as compulsory made by the two States.
Kenya, however, raised two preliminary objections.
The first concerned the jurisdiction of the Court: Kenya argued that the Court lacked the jurisdiction as a result of one of the reservations to its declaration accepting the compulsory jurisdiction of the Court, which excludes disputes in regard to which the parties have agreed “to have recourse to some other method or methods of settlement”.
Kenya asserted that the memorandum of understanding constituted an agreement to have recourse to another method of settlement. It added that the relevant provisions of Convention on the Law of the Sea on dispute settlement also amounted to an agreement on the method of settlement.
In the second objection, concerning the admissibility of the application, Kenya argued that the two countries had agreed in the Memorandum of Understanding (MOU) to delimit their boundary by negotiation only after the completion of the Commission on the Limits of the Continental Shelf (CLCS) review of their submissions.
Kenya also contended that Somalia's withdrawal of its consent to the consideration by the CLCS of its submission was in breach of the MOU.
The Court concluded that the MOU did not constitute an agreement “to have recourse to some other method or methods of settlement” within the meaning of Kenya's reservation and consequently the case did not, by virtue of the memorandum of understanding, fall outside the scope of Kenya's consent to the Court's jurisdiction.
It further concluded that neither the memorandum of understanding nor the relevant part of the of UN Convention on the Law of the Sea fell within the scope of the reservation to Kenya's optional clause declaration and rejected Kenya's preliminary objection to the jurisdiction of the Court, also having previously found that the memorandum of understanding did not contain an agreement as stated by Kenya, the Court rejected that aspect of Kenya's second preliminary objection.
Lastly, the Court also rejected the preliminary objection to the admissibility of Somalia's application given its objection to CLCS consideration of Kenya's submission, finding that it did not render the application inadmissible.
(Adapted from a UN Press Release)
Lèse-Majesté: Royal Criminal Defamation Law in Thailand -- Student Imprisoned for Posting a Link to a BBC News Article on His Facebook Page
As a student activist awaits trial in detention for posting a news article about the new monarchy on social media, an independent United Nations expert today called on Thai authorities to stop using royal defamation laws to stifle free speech.
At issue is the concept of lèse-majesté – the defaming, insulting or threatening of the royal family – which in Thailand carries a penalty of up to 15 years in prison.
“Lesè-majesté provisions have no place in a democratic country,” said David Kaye, the UN Special Rapporteur on the promotion of freedom of opinion and expression. “The lèse-majesté provision of the Thai Criminal Code is incompatible with international human rights law.”
The expert underlined that public figures, including those exercising the highest political authority, may be subject to criticism. “The fact that some forms of expression are considered to be insulting to a public figure is not sufficient to justify restrictions or penalties,” he stressed.
The comments were sparked by a case against Jatupat Boonpatararaksa, a student activist, who shared a BBC news article on the new King, Maha Vajiralongkorn Bodindradebayavarangkun, on his private Facebook page. Mr. Boonpatararaksa is being held in detention after an appeals court revoked his bail on 27 December, reportedly justified by the case's sensitive matter and on public order and national security grounds. He is expected back before a judge on 10 February.
In 2015, three people were sentenced to decades in prison for criticizing the monarchy on Facebook.
Mr. Kaye has repeatedly urged the Thai Government to allow free speech, including in July of last year when authorities clamped down on public and social media expressions ahead of a constitutional referendum later in the year.
Special Rapporteurs and independent experts are appointed by the Geneva-based UN Human Rights Council to examine and report back on a specific human rights theme or a country situation. The positions are honorary and the experts are not UN staff, nor are they paid for their work.
(UN Press Release)
Israeli Legislation Allowing Israeli Settlements on Privately-Owned Palestinian Land Said to Contravene International Law
United Nations Secretary-General António Guterres today deeply regretted the adoption by Israel’s legislative body, the Knesset, of the so called “Regularisation bill,” saying the measure contravenes international law and will have “far-reaching legal consequences” for the country.
A statement from the UN spokesperson noted that the bill, adopted yesterday, reportedly provides immunity to settlements and outposts in the occupied West Bank that were built on privately-owned Palestinian land. “The Secretary-General insists on the need to avoid any actions that would derail the two-state solution,” the statement said, adding that all core issues should be resolved between the parties through direct negotiations on the basis of relevant Security Council resolutions and mutual agreements. “The United Nations stands ready to support this process,” it concluded.
(UN Press Release)
The International Court of Justice has fixed December 18, 2017 as the due date for the Republic of Kenya to file its Counter-Memorial in the case concerning Maritime Delimitation in the Indian Ocean (Somalia v. Kenya). The order setting the briefing schedule was delivered after the International Court of Justice found that it had jurisdiction to adjudicate the dispute between the Federal Republic of Somalia and the Republic of Kenya concerning maritime delimitation of the Indian Ocean and that Somalia's Application was admissible.
Monday, February 6, 2017
The American Bar Association urged President Donald Trump today to withdraw the executive order “Protecting the Nation from Foreign Terrorist Entry into the United States,” which restricts immigration from seven Muslim-majority countries, suspends all refugee admission for 120 days and indefinitely suspends the entry of Syrian refugees.
By voice vote, the ABA House of Delegates, the association’s policy-making body, adopted resolution 10C calling on the executive branch to ensure full, prompt, and uniform compliance with court orders addressing the executive order.
The House––made up of 589 members representing state and local bar associations, ABA entities and ABA-affiliated organizations––also urged the administration to take care that all executive orders regarding border security, immigration enforcement and terrorism:
- respect the bounds of the U.S. Constitution and due process rights;
- not use religion or nationality as a basis for barring an otherwise eligible individual from admission to the United States;
- adhere to the U.S.’s international law obligations relating to the status of refugees and to the principle of non-refoulement; and
- facilitate a transparent, accessible, fair and efficient system of administering the immigration laws and policies of the United States and ensure protection for refugees, asylum seekers, torture victims and others deserving of humanitarian refuge;
In Resolution 10B, the House also reaffirmed the ABA’s support of legal protection for refugees, asylum seekers, torture victims, and others deserving of humanitarian refuge. It urged Congress to adopt additional legislation to appropriate funds for refugee applications and processing, and mandate that refugees receive an appropriate individualized assessment in a timely fashion that excludes national origin and religion as the basis for making such determination.
The association’s policy-making body discussion took place at the James L. Knight Center of the Hyatt Regency Miami. The session concluded the 2017 ABA Midyear Meeting, which began Feb. 1.