ICJ anti-whaling judgment appears to have whetted Japan opponents’ appetites

IWC latest logo 210x64Some lawmakers and lobbyists in Japan displayed their distaste for whaling bans this week with a whale-meat eat-in in Tokyo. The Japan Daily Press reported:

‘In an act of defiance against a recent ruling by the International Court of Justice (ICJ) halting the nation’s whale hunts, pro-whaling legislators and lobby group gathered on Tuesday to eat whale meat while pledging to continue what they call one of the country’s centuries-old traditions.’

Stoking these opponents’ appetite was the March 31 judgment in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). (Prior posts here and here.) The Hague-based court held 12-to-4 that Japan had violated the 1946 International Convention on the Regulation of Whaling by granting permits to harvest 3 species of whales areasin an area of the seas known as the Southern Ocean Sanctuary. (In yellow on map at right; see p. 3 here.) Japan asserted that a scientific research exception to the Convention’s whaling ban justified the hunts. But a majority of the ICJ disagreed, in a ruling that Rutgers Professor Cymie Payne analyzed in a recent ASIL Insight. (credit for above logo of the International Whaling Commission, which monitors compliance with the Convention)

Yesterday, the Japan Times reported, Japan’s government announced that it would still engage in what it calls research whaling, albeit at a reduced rate and in regions other than the area of concern to the ICJ case. The report indicated that the decision to go forward marked a victory for Japan’s Fisheries Ministry and a defeat for its Foreign Ministry.

Particularly vocal among the opponents of the ICJ’s ruling has been the man who’s served as Fisheries Minister since last December: Yoshimasa Hayashi, a Harvard Kennedy School graduate. Hayashi spoke at the Tokyo banquet on Tuesday. And in a February interview with Japan Times, he explained his position:

‘Japan is an island nation surrounded by the sea, so taking some good protein from the ocean is very important. For food security, I think it’s very important … We have never said everybody should eat whale, but we have a long tradition and culture of whaling. So why don’t we at least agree to disagree? We have this culture and you don’t have that culture.’

Payne’s Insight agreed that, notwithstanding the March 31 issuance of the ICJ’s opinion, resolution of “fundamental cultural conflict[s]” awaits another day.

(Cross-posted from Diane Marie Amann)

Complaint Mechanism of Child Rights Treaty Enters Into Force

The treaty establishing a complaint mechanism for the Convention on the Rights of the Child (“OP3”) entered into force on 14 April 2014. Costa Rica brought the number of ratifications of this Optional Protocol to the required ten, with all but Costa Rica also entering declarations accepting the Article 13 inquiry procedure.  An additional 37 states have signed the protocol but not yet completed the ratification process. States parties to the Optional Protocol thus far:

Albania, Bolivia, Gabon, Germany, Montenegro, Portugal, Spain, Thailand, Slovakia and Costa Rica

Under the treaty, the Committee on the Rights of the Child may hear complaints from individual children, groups of children, or their representatives against a state party to OP3 for a violation of the Convention on the Rights of the Child, and for a violation of the Convention’s other two protocols if ratified by that state.

Domestic remedies must have been exhausted or shown to be “unreasonably prolonged or unlikely to bring effective relief.”  The complaint must be submitted within one year of the exhaustion of domestic remedies unless it is shown it was not possible to bring the complaint within that time limit.  The treaty also contains a follow-up procedure, an opt-in inquiry procedure for “grave or systematic violations,” and an opt-in inter-state complaint procedure.

The treaty specifies that in developing its rules of procedure the Committee on the Rights of the Child is to “guarantee child-sensitive procedures” and include “safeguards to prevent the manipulation of the child by those acting on his or her behalf.” In addition, the committee “may decline to examine any communication that it considers not to be in the child’s best interests.”  OP3 Rules of Procedure  here.

For a comparison of this OP with the complaint procedures of the other UN human rights treaties, see this comparison chart developed by the Child Rights International Network (CRIN). For additional resources on OP3, see this toolkit and annotated guide.

Sharing in joy at annual WILIG luncheon

wiliguseWASHINGTON – The President of the International Court of Justice spoke for a banquet room full of women and men yesterday when he said, “I am just here to share in the joy of my colleagues.” The colleagues of whom ICJ President Peter Tomka spoke were Judges Joan E. Donoghue, Julie Sebutinde, and Xue Hanqin. The three women received the Prominent Women in International Law Award during the Women in International Law Interest Group luncheon, a highlight of every American Society of International Law annual meeting. As a special treat, retired U.S. Supreme Court Justice Sandra Day O’Connor dropped in to congratulate what she called “the women’s division” of the World Court bench.

Each of the honored judges made brief but inspiring comments.

Judge Donoghue, a career U.S. State Department lawyer before she joined the ICJ in September 2010, focused her comments on gender disparity in international law. In a recent three-year period, “93 percent of the arguments judges of the ICJ heard came from men,” Donoghue said, citing “A Study of Lawyers Appearing before the International Court of Justice, 1999-2012,” a forthcoming European Journal of International Law article by Cecily Rose, an IntLawGrrls contributor, and Shashank Kumar. In calling for greater diversity, Donoghue reasoned:

‘We are a world court, and international law in the main is for the world.’

Flashing a broad smile, Judge Xue said, “Indeed, this is a great honor and privilege to receive this award. It’s really like an higgOscar.” Xue, a former diplomat and law professor in China, is senior to Donoghue on the court by a few months. She recalled two women who had preceded both of them – Dame Rosalyn Higgins (right), whose service from 1995 to 2009 included abastid term as the ICJ’s President, and Suzanne Bastid (left), an ad hoc judge in the 1980s. Xue said:

‘Today we have so many women on the court not because today women are so much more intelligent, but because many international lawyers, men and women – I want to stress, men and women – have fought so hard for women’s rights.’

She accepted her award “as a tribute to all women legal professionals working in the field of international law, in recognition of their dedication to international peace and development.”

Having three women on the bench, Judge Sebutinde said, “is indeed a pinch-yourself moment for me.” Sebutinde’s pre-ICJ career included service as a judge in her homeland of Uganda and on the Special Court for Sierra Leone. Sebutinde thanked her colleagues Donoghue and Xue, stating, “I don’t think I would even have had the courage to apply if they were not there.” Sebutinde urged the court to increase public outreach. It is particularly important in her own region: “It is no secret I come from eastern Africa where there has been a lot of conflict for decades. The first thing that nations think of for settling their differences is war. It is never the International Court of Justice. So it’s a great responsibility, especially for judges who come from Africa, to sell the court to our part of the world.”

Adding their own words were audience members  – judges, law students, law professors, law librarians, and practicing lawyers – who took part in WILIG’s introduce-yourself tradition. Among them was International Criminal Court Prosecutor Fatou Bensouda, who recalled that as a young girl in Gambia, she had felt “helpless” after trying in vain to get police to protect a relative who was suffering domestic violence. “That is why I went to law school,” said Bensouda, another IntLawGrrls contributor. With reference to her current work, she added, “There must be accountability for those crimes, those who perpetrate those crimes. There must be rule of law.” Meanwhile, Washington-based attorneys Lucinda Low and Jennifer A. Hillman (a former member of the World Trade Organization Appellate Body) urged “constant vigilance” to ensure that once earned, gains in women’s participation are maintained.

A University of California-Davis Law student who hails from Kazakhstan summed up the celebratory spirit. Aigerim Dyussenova, known to her new WILIG friends as Aika, proclaimed:

‘This is the happiest day of my life.’

(In photo at top by IntLawGrrl Fionnuala Ní Aoláin, , IntLawGrrls and WILIG Co-Chairs Clara Brillembourg – a cardboard cutout of foremother Eleanor Roosevelt behind her – and Christie Edwards address the luncheon audience. Looking on are, from left, Judges Xue Hanqin, Joan E. Donoghue, and Sebutinde, along with Justice O’Connor. Cross-posted at Diane Marie Amann and ASIL Cables.)

New tool for US judges & litigants: ASIL Benchbook on International Law

bbIt’s my great pleasure to announce the publication of the American Society of International Law Benchbook on International Law (2014). This represents the culmination of several years of hard work by 4 dozen contributors, international law scholars and practitioners alike (including, of course, many IntLawGrrls; see below). We’ve benefited greatly from advice of the ASIL Judicial Advisory Board, composed of one member from each federal circuit and several state supreme courts, chaired by U.S. Supreme Court Justice Ruth Bader Ginsburg. It has been an honor to serve as the Benchbook‘s Editor-in-Chief.

As detailed in the Preface, the Benchbook is intended as an aid to judges and litigants when foreign or international law (including treaties and customary norms) forms a part of the case before them.

It will be demonstrated at the joint meeting of ASIL and the International Law Association this week in Washington, D.C. — to be precise, as part of ASIL’s Annual General Meeting, which begins at 2:30 p.m. Thursday, April 10, in Polaris Room A/B at the Ronald Reagan Building & International Trade Center, on Pennsylvania Avenue a few blocks from the White House. (Full meeting program here.) We will give a brief demonstration and extend heartfelt thanks to all who contributed; all are welcome to attend.

The Benchbook appears online here. Readers will find the Preface and, by clicking the Table of Contents tab, the contents of this 2014 edition. Included are our dedication to the memory of David J. Bederman, followed by these units:

► Primer (International Law Defined; Sources and Evidence of International Law; Uses of International Law in U.S. Courts)

► Preliminaries (Jurisdiction; Immunities and Other Preliminary Considerations; Discovery and Other Procedures)

► Specific Topics (International Arbitration; International Law Pertaining to Families and Children; International Sale of Goods; International Air Transportation; Human Rights, comprising Alien Tort Statute, Torture Victim Protection Act, Human Trafficking, and Non-refoulement or Nonreturn; Criminal Justice; and Environment)

► Resources (Judicial Interpretation of International or Foreign Instruments; Research Resources)

Clicking on any of the above chapters will give you the pdf version of that segment of the Benchbook. If you would like to access and download the 356-page Benchbook as a whole, you may do so here.

In order to make the volume as user-friendly as possible (until our eventual transfer to html with hypertexting), we have cross-referenced throughout all chapters, and further provided several means to locate information:

Summary Table of Contents

Detailed Table of Contents

Tables of Treaties, Cases, Laws, and Scholarly Writings, along with a Keyword Index

You will see toward the end that the Benchbook includes a list with short biographies of each contributor. IntLawGrrls on the project, in addition to yours truly, include Elizabeth “Betsy” Andersen, Kaitlin M. Ball, Kathleen A. Doty, Chimène Keitner, Hari M. Osofsky, Cymie Payne, Jaya Ramji-Nogales, Lucy Reed, Barbara Stark, and Beth Van Schaack. (The book benefited as well from the help of my colleagues and students at the University of Georgia School of Law  – not only Kaitlin M. Ball, but also Kent Barnett, Harlan Cohen, Erika Furlong, and the super staff at the Alexander King Campbell Law Library.)

The book also includes acknowledgments. These cannot begin to express our deep thanks to all of you for ASIL members’ support of this multiyear project. Going forward, we hope to keep the Benchbook current with periodic updating, and also to make it a hands-on training tool for judges and their staffs. We welcome members’ help in those endeavors.

(Cross-posted from Diane Marie Amann)

LA Times OpEd Distorts Both Archaeology and the Law

iStock_000003539805SmallAn op-ed on cultural patrimony laws in today’s Los Angeles Times has done a great disservice to the public by misrepresenting the purpose, history, impact, and very definition of such legislation.

In “The Archaeology Paradox: More Laws, Less Treasure,” Adam Wallwork argues that “tight restrictions on export and ownership of artifacts is leaving the world a poorer place.” Mr. Wallwork is not the first to call for a return to “the age of piracy,” in which tomb raiders could plunder archaeological sites with abandon (to borrow a phrase from Thomas Hoving, the Metropolitan Museum’s former director).  But he is the first, at least in a leading publication, to use this argument:

I surveyed 90 countries with one or more archaeological sites on UNESCO‘s World Heritage Site list, and my study shows that in most cases the number of discovered sites diminishes sharply after a country passes a cultural property law. There are 222 archaeological sites listed for those 90 countries. When you look into the history of the sites, you see that all but 21 were discovered before the passage of cultural property laws.

On average in art-rich countries, discoveries that landed on UNESCO’s list diminished by 90% after these laws were passed. To illustrate: Italy has seven archaeological sites on the World Heritage list; five were discovered before its 1909 cultural property law, but only two after.

Many variables may cause a drop-off in archaeological discoveries country by country, but statistically speaking, it’s nearly impossible that the decline shown in the data isn’t also related to the passage of cultural property laws.

This is a textbook case of mistaking correlation for causation. Yes, there are fewer archaeological discoveries in today’s world, especially of major ancient sites. However, there are fewer and fewer blank spaces on the map, too. And in fact, who can say that anyone ever “discovered” the Pyramids at Giza, the Acropolis in Athens, the Great Wall of China, or the vast majority of World Heritage nominations?

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Introducing Emily Cumberland

Emily Cumberland
It’s our great pleasure today to welcome Emily Cumberland as a new IntLawGrrls contributor. Emily serves as the Publications Manager for the American Society of International Law (ASIL), primarily overseeing the American Journal of International Law. She also manages ASIL’s new electronic publication and blog AJIL Unbound. She joined ASIL  in 2013.
Prior to joining ASIL, Emily was a Presidential Management Fellow with the U.S. Department of Health and Human Services and the U.S. Small Business Administration’s Office of the General Counsel. She holds a juris doctor from the George Washington University Law School, where she was a legal fellow in the Small Business and Community Economic Development Legal Clinic and research assistant to constitutional law professor David Fontana.
Emily received her bachelor of arts, cum laude, from Georgetown University. Fluent in Spanish and proficient in Italian, she volunteered with Proyecto de Educación Alternativa Caminando Unidos while studying abroad in Cuernavaca, México and later studied abroad at Villa le Balze in Fiesole, Italy.
Emily’s introductory post discusses the launch of ASIL’s AJIL Unbound.
Heartfelt welcome!

Introducing Rashmi Raman

RashmiIt’s our great pleasure today to welcome Rashmi Raman as an IntLawGrrls contributor. Rashmi is Assistant Professor and Assistant Director, Centre for International Legal Studies at the Jindal Global Law School where she teaches public international law.  She earned her first degree in law from the National University of Juridical Sciences in Kolkata and went on to study International Law at the New York University School of Law and the National University of Singapore, earning LLMs from both universities.

Her career spans several positions with international organizations. She was awarded the NYU International Law Fellowship upon completion of her LL.M and worked at the International Law Commission in Geneva. She has worked for the International Criminal Tribunal for Yugoslavia at The Hague and interned with the United Nations Assistance to the Khmer Rouge Trials in Phnom Penh, Cambodia. Rashmi has also interned as law clerk for the Appeals Chamber of the International Criminal Court at The Hague and clerked for a Supreme Court judge in India. Further, she has worked in India in public interest litigation and refugee law with a senior advocate of the Supreme Court.

Prior to entering into academics, Rashmi was a Legal Researcher at the United Nations International Criminal Tribunal for Rwanda in Arusha, Tanzania, where she worked in Chambers. Her research interest is in the area of international criminal law, especially in the context of international criminal justice, transitional justice, global administrative law, post-conflict constitutional theory and the rule of law in state building.

Heartfelt welcome!

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