CONSISTENCY: The Most Urgent Action Against Climate Change

During the first two weeks of December, world leaders will lay the foundation for a new global agreement on climate change at the 20th Conference of the Parties (COP20) of the United Nations Framework Convention on Climate Change in Lima, Peru. Its focus will be creating a draft agreement that, at next year’s COP in Paris, will replace the 1997 Kyoto Protocol. This time, as stated by Manuel Pulgar-Vidal, Peru’s Environment Minister and next President of the Conference, “the world will not accept another failure.”

Not without reason. Each year we are both witnesses to and victims of the worsening impacts of climate change. And our role in the problem is conspicuous: “Human influence on the climate system is clear, and recent anthropogenic emissions of greenhouse gases are the highest in history,” the Intergovernmental Panel on Climate Change concluded in their fifth report.

With COP20 nearing and recognition of the problem growing, world leaders are increasingly giving speeches, promising action and making hopeful commitments. One recent example is the unprecedented agreement between China and the United States, which established limits and objectives for the reduction of emissions. In Latin America we, too, have taken effective steps to confront the greatest threat to the human race.

Despite this progress, however, there remain in practice many policies that both created the problem and make it worse. In particular, the reliance of our economies on fossil fuels, which generate 57 percent of the global emissions of carbon dioxide. In the search for alternatives, we have boosted hydroelectric power from large dams. But dams are not clean energy. They generate significant amounts of greenhouse gases, such as carbon dioxide and methane, particularly in tropical regions. These and the other negative impacts of dams are often ignored, resulting in rudimentary solutions to climate change.

Consistency, then, becomes critical. What follows are examples of the lack of it in our own countries. Let’s take them into account as an effort to make adjustments, align objectives, and not erase with one hand what was written by the other:

  • Brazil is a key player in the region, and has demonstrated its will to achieve positive results on climate change. Proof of this is the historic decline of deforestation in the country, 79 percent in the last decade, as announced by Brazil’s President at the Climate Summit. However, Brazil continues to focus its development on fossil fuels, mining and large dams, particularly in the Amazon Basin. Under the influence of Brazil, 254 new dams are either under construction or in planning phases in the Amazon Basin, including the massive Belo Monte Dam on the Xingú River.

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Introducing Astrid Puentes

Astrid Puentes AIDAIt’s our great pleasure today to welcome Astrid Puentes Riaño as an IntLawGrrls contributor. Originally from Colombia, Astrid holds an LL.M. in Comparative Law from the University of Florida, a Masters in Environmental Law from the University of the Basque Country, and a J.D. from the University of Los Andes, Colombia.  Astrid is a Co-Executive Director of AIDA, the Interamerican Association for Environmental Defense, responsible for the organization’s legal work in the Americas since 2003.  She has worked from AIDA’s office in Mexico City since 2004, overseeing the team’s attorneys and the development and implementation of legal strategies.

Astrid has significant experience with public interest litigation, especially in the field of human rights and the environment.  She is a highly regarded presenter and prolific author, providing critical legal analysis and strategic advice to communities, nations and international organizations.  Astrid taught a new seminar on human rights and the environment in Latin America at American University over the summer of 2014.

Astrid is active in the Environmental Law Alliance Worldwide and sits on the international advisory board for International Rivers and EarthRights International. Her first post will discuss the need for consistency in Latin American climate change policies. Heartfelt welcome!

Read On!: The Greening of European Business Under EU Law

Read On!:  The Greening of European Business Under EU Law

Beate Sjåfjell and Anja Wiesbrock have just published “The Greening of European Business under EU Law”

The relationship between environmentally sustainable development and company and business law has emerged in recent years as a matter of major concern for many scholars, policy-makers, businesses and nongovernmental organisations. This book offers a conceptual analysis of the principles of sustainable development and environmental integration in the EU legal system. It particularly focuses on Article 11 of the Treaty on the Functioning of the European Union (TFEU), which states that EU activities must integrate environmental protection requirements and emphasise the promotion of sustainable development.

The book gives an overview of the role played by the environmental integration principle in EU law, both at the level of European legislation and at the level of Member State practice. Contributors to the volume identify and analyse the main legal issues related to the importance of Article 11 TFEU in various policy areas of EU law affecting European businesses, such as company law, insurance and state aid. In drawing together these strands the book sets out the requirements of environmental integration and examines its impact on the regulation of business in the EU.

The book will be of great use and interest to students and researchers of business law, environment law, and EU law.

More information on the book is available here.

ICC Prosecutor on “Children and International Criminal Justice”

bensouda6_28oct14This silver anniversary of the Convention on the Rights of the Child seems a fitting day to report on the “Children & International Criminal Justice,” the conference that brought to Athens, Georgia, more than 2 dozen experts from as far away as Doha, Kinshasa, and The Hague.

The experts met on October 28 at my home institution, the University of Georgia School of Law, to discuss, in a plenary session and in workshops, the experiences of children during armed violence, as well as the treatment of children and children’s issues by international criminal justice mechanisms. (Prior post) The conference served as one of several consultations being undertaken by the International Criminal Court Office of the Prosecutor as part of its preparation of a Policy Paper on Children – a process I am honored to assist as ICC Prosecutor Fatou Bensouda‘s Special Adviser on Children in and affected by Armed Conflict.

A centerpiece of the day was the keynote speech delivered by Prosecutor Bensouda (above). She began with a quote from a renowned humanitarian:

The Great Nelson Mandela once said: ‘We owe our children, the most vulnerable citizens in our society, a life free of violence and fear.’

bensouda4_28oct14Bensouda then urged the assembly, which included hundreds of professors and students, members of her staff, and representatives of nongovernmental organizations and U.N. agencies:

We must indeed pool our efforts, expertise and energies to advance the rights of children and to shield them from harm in times of conflict.

She detailed the efforts of her Office on behalf of children – including the successful prosecution of former Congolese militia leader Thomas Lubanga Dyilo on child-soldiering charges, as well as the current prosecution of his erstwhile co-accused, Bosco Ntaganda, on additional charges of sexual violence against children in his militia. Conviction in the latter case, Bensouda said, would

represent an important, pioneering clarification of the protection international humanitarian law offers to children and the victims of sexual violence in situations of armed conflict.

wkshop_28oct14The Prosecutor underscored her Office’s commitment to the Children’s Convention’s 4 “guiding principles” when she said:

We are also committed of respecting the rights of children with whom we interact in the course of our investigative and prosecutorial work, including their right to be heard and to have their best interests treated as a primary consideration.

The transcript of her remarks as delivered is available here; the full speech is scheduled for publication next year, in Volume 43, issue 3, of the Georgia Journal of International & Comparative Law.

(Cross-posted from Diane Marie Amann)

Work On! iCourts in Copenhagen offering international PhD scholarships

The Danish National Research Foundation’s Centre of Excellence for International Courts (iCourts) in Copenhagen, Denmark, is now offering PhD Scholarships. iCourts welcomes applications oriented toward the study of international courts and dispute resolution with an empirical and interdisciplinary focus. In particular, candidates interested in the institutionalization of global courts, such as the ICC, ICJ, WTO AB and the ITLOS; in international commercial arbitration; and in the justificatory practices of international courts in philosophical context are encouraged to apply.

Contact: Associate Professor, Joanna Jemielniak, joanna.jemielniak@jur.ku.dk

For more information, please visit: http://jura.ku.dk/icourts/news/icourts-phd-scholarships-nov2014/

Interactive web forum with 3 leading Arab women human rights defenders Nov. 20

On Thursday, 20 November at 4 pm GMT (11 am ET), Front Line Defenders, the Association for Women’s Rights in Development (AWID) and the Women Human Rights Defenders International Coalition (WHRDIC) will present a live interactive web forum featuring three leading Arab women human rights defenders (WHRDs). The forum will feature leading Arab women human rights defenders Alaa Murabit (Libya), Sally Zohney (Egypt) and Atiaf Al-Wazir (Yemen).

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Join the conversation at the Arab WHRDs event page: http://www.spreecast.com/events/arab-whrds

Featuring:

unnamed-2Alaa Murabit (Libya) – Founder, The Voice of Libyan Women, and Advisor to UN Women, at age 21 Alaa was – in the midst of the Libyan Revolution – listed by the Gaddafi regime as one of the “most wanted” women due to her activities. The Voice of Libyan Women organized the first ever International Women’s Conference in Libya.

unnamedSally Zohney (Egypt) – Founding member of Baheya Ya Masr, an Egyptian women’s rights movement, Sally has been a active participant in Egyptian social movements since before 2011. Sally organises anti-sexual harrassment rallies and protests in Cairo, and was featured in a recent Front Line Defenders documentary on gender-based violence and harassment against Egyptian WHRDs.

unnamed-3Atiaf Al-Wazir (Yemen) – Co-Founder of the media advocacy group SupportYemen, Atiaf is a researcher and writer focusing on social movements in Yemen, gender dynamics, and the role of regional and international policy. Since the end of January 2011, she chronicled the Yemeni revolution on her blog with commentaries, videos, and photographs.

Viewers will be able to post questions to the panelists throughout the event. Following the broadcast, the video link will be available on the Front Line Defenders website (www.frontlinedefenders.org).

Mauritius Court Acquits Twelve Somali Piracy Suspects

To the disappointment of many involved in the global fight against Somali piracy, the Intermediate Court of Mauritius acquitted twelve Somali piracy suspects in a verdict delivered on November 6, 2014.  The twelve suspects had attempted to attack a Panama-flagged commercial vessel, MSC Jasmine, in early January 2013.  Shortly after the attempted attack against MSC Jasmine, the suspects were apprehended by joint European Naval Forces, and brought to Mauritius to stand trial pursuant to a transfer agreement which Mauritius had concluded with the European Union.  As I have previously blogged, similar transfer agreements exist between  capturing authorities and two other regional partner States, Kenya and the Seychelles.  While the latter two had already prosecuted numerous piracy suspects, this piracy trial was the first of its kind in Mauritius, and the acquittal appears surprising for both legal and political reasons.

First, the acquittal is legally bizarre, to say the least.  The Mauritian court reached its acquittal decision based on several grounds.  First, the court declared that the prosecution had not reached its burden of proof as to the identity of the suspects, and whether these twelve individuals were the same ones who actually fired shots against MSC Jasmine.  The facts are undisputed as to the following: the MSC Jasmine was attacked on January 5, 2013, by a small white skiff with six to eight men on board.  The attack was repelled by the armed security officers on board MSC Jasmine, after an exchange of fire which lasted approximately forty-five minutes.  The next day, on January 6, 2013, French authorities operating under the auspices of Operation Atalanta intervened and arrested twelve suspects, in the relative vicinity of the attempted attack against MSC Jasmine; the twelve suspects were on board a skiff and a larger whaler, which had been tracked and observed over the previous twenty-four hours.  The arresting authorities presumed that the whaler was the larger mother ship, and that the skiff was the one involved in the attack on MSC Jasmine.  The arresting authorities searched the whaler and the skiff; they found no obvious fishing equipment on board, but no weapons either.  The suspects were held on board the French ship, Surcouf, for several weeks, because it took about ten days for European Union authorities to decide against prosecuting these suspects, and it took Mauritius about fifteen days to accept jurisdiction pursuant to the above-mentioned transfer agreement.  The suspects arrived to Mauritius on January 25, 2013; they were advised of the charges against them (including piracy) and of their right to obtain the assistance of counsel.  During trial, most suspects denied that they had engaged in piracy and argued that they were fishermen who, for different reasons, did not have fishing equipment on board.  Moreover, the defense argued that the prosecution failed to establish that the twelve suspects were the same individuals who fired shots at MSC Jasmine the day before their arrest, because only six to eight individuals participated in the attack from the small skiff, whereas the arrested suspected numbered twelve.  The prosecution argued that these individuals were all involved in the piracy attack, that some had been on the skiff while others remained on board the mother ship/whaler, and that under the theory of common intention, used in the Seychelles piracy prosecutions, all suspects could be charged with the same act of piracy, regardless of their actual roles in the attack.  The court determined that while those present on the skiff could be prosecuted together under a variant of the common intention theory of liability, “The same conclusion cannot however be reached as regards the other four to six persons who were on the whaler at the material time, so that there clearly cannot be simultaneousness of the act of the co-authors and mutual assistance to an author of a crime in view of the significant distance between the skiff and the whaler. At best, they are accomplices….”

This conclusion led the court to determine that the issue of proper identification presents another hurdle in the prosecution’s case, because it is impossible to determine which of the twelve suspects were present on board the skiff during the attack, and which were merely accomplices waiting on the whaler/mother ship. “We find that it would be most unreasonable and unfair to find all twelve accused parties guilty as co-authors when we have clear evidence that not all of them formed part of the illegal act of violence, since some were in a whaler at significant distance from the skiff.”  The court thus concluded that the prosecution had failed to establish its case, beyond a reasonable doubt, as to the identity of the suspects.

This conclusion is unfortunate and in sharp contrast with other piracy prosecutions, including those in the Seychelles, which the prosecution had relied upon. While it is true that it may be difficult to determine which pirates had accomplished which roles in the piracy act, it is also true that many other courts have used “common intention” or “joint criminal enterprise” types of liability to prosecute groups of defendants, without having to determine the scope of their particular roles in the criminal endeavor.  This prosecutorial tool is a widely accepted mechanism for imposing criminal liability on joint perpetrators, which should be available in all piracy prosecutions, like in the Seychelles.  Otherwise, almost all piracy suspects will be able to shield themselves from liability by asserting that it is unclear which role each of them had played in a piracy attack.

In addition, the court determined that the prosecution had failed to establish that the alleged piracy act satisfied the “high seas” requirement under the Mauritius Piracy and Maritime Violence Act. Section 2 of this Act defines the “high seas” as ““high seas –(a) has the same meaning as in UNCLOS; and (b) includes the EEZ.”  In a bizarre twist of legal reasoning, the court determined that the term “EEZ” in Section 2 of the Piracy and Maritime Violence Act refers only to the Mauritian EEZ, so that the term “high seas” in Section 2, quoted above, only includes the Mauritian EEZ while excluding all other countries’ EEZs.  Because the attack against MSC Jasmine took place within the Somali EEZ, the court determined that the prosecution had failed to satisfy the “high seas” requirement under Mauritian law.  This conclusion is unfortunate and contrary to UNCLOS and many other national piracy laws.  UNCLOS clearly defines the high seas as including all EEZs and excluding only the coastal states’ territorial seas.  It is unclear how the Mauritian law can be interpreted differently, as it clearly states that the meaning of “high seas” is the same as in UNCLOS!

Finally, the court found that the twelve suspects had been detained illegally by the French authorities, because of the length of their detention (about three weeks) before they were transferred to Mauritius and charged with a particular crime (piracy). The court examined the issue of detention legality under French law, and thus also under the European Convention on Human Rights (because France was the flag state where these suspects were detained).  The court discussed multiple European Court of Human Rights cases to determine whether the length of detention in this case was reasonable, and ultimately decided that it was not, because the period of three weeks was excessive, because the piracy suspects may have been mistreated by the French authorities, and because they could have been airlifted as opposed to transported by boat to Mauritius.  “We do not find that the present matter was met with “wholly exceptional circumstances” which warranted the twelve accused parties being detained or retained, and therefore deprived of their liberty for such a long period on board of the Surcouf….This finding in itself is so grave that it would have warranted the stay of proceedings outright against all twelve Accused in view of a flagrant breach of a fundamental right of the highest importance in a democratic society.”

This conclusion is unfortunate as well, as it appears that a case of piracy truly represents “exceptional circumstances” (under the European Convention on Human Rights) warranting a longer delay before the suspects are transferred to competent prosecuting authorities. The suspects had been apprehended on the high seas, far from Mauritius, and it was unclear which State would accept jurisdiction and subject these suspects to trial.  Under such circumstances, a delay of three weeks appears more than reasonable, and it is unfortunate that the Mauritian court reached a different conclusion.  While respecting procedural rights of any criminal defendant is of utmost importance to all democratic nations, detaining piracy suspects on board a ship for three weeks while determining where to ultimately prosecute them does not rise to the level of a flagrant due process violation which would justify a court’s decision to dismiss.  It would have been far more beneficial, in light of the necessity to appropriately combat piracy on a judicial level, to convict these suspects, provided that the prosecution had established all the other elements of the offense of piracy.

Last but not least, the outcome of this case is surprising politically. Mauritius had benefitted financially from its transfer agreement and its decision to open court-house doors to piracy prosecutions.  In this particular case, the press had reported that Mauritius was paid the sum of 3 million Euros to accept these piracy suspects and to prosecute them in Mauritian courts.  It appears from reading this verdict that the Mauritian court somehow forgot about its country’s important role in the global fight against piracy, and engaged instead in dubious legal reasoning leading toward acquittal.  We can only hope that the case will be overturned on appeal.

Cross-posted on Communis Hostis Omnium.

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