The Hague Conference’s Robust Family Law Agenda

The Hague Conference on Private International Law has been the proponent of numerous private international family law instruments since its founding in 1893.  For the last decade, its family law work focused primarily on three significant projects.  The first, to assemble a publication that provides guidance to judges, governments, attorneys, and practitioners in the application of Article 13(b) of the Hague Child Abduction Convention, concluded in early 2020.   The second involved findings of an Experts Group that has been exploring the cross-jurisdictional recognition and enforcement of agreements between parents in their disputes, specifically related to their children’s custody, relocation, child abduction, and child support.  The expectation is that this group will produce a publication by early 2022.  The third key project has been a long-standing discussion among experts on whether to propose a new treaty that addresses the issue of surrogacy and parentage for children in cross-border families.  Countries differ in their approaches to issues such as paternity establishment, assisted reproductive technologies, and surrogacy arrangements, with intended parents at times traveling to different countries to engage in processes to bear a child and then meeting the difficulty of repatriating that child to their home country and having their parentage recognized. 

With some of the Hague Conference’s seminal work product concluding in the coming year or two, it has the difficult, yet important, task of proposing new family law work, in line with its Member States’ direction. In late 2023, the Hague Conference will host its next Special Commission meeting for the exploration of work and discussions on the practical operation of the Hague Abduction Convention and the Hague Child Protection Convention. In preparation, the Permanent Bureau of the Hague Conference has already set forth a tentative agenda, presented to the Council on General Affairs and Policy at its annual meeting in March 2021.   To prepare for any Special Commission meeting, the Permanent Bureau circulates questionnaires to Member States and collects statistics to focus on the most relevant discussion topics. 

The Permanent Bureau has already begun pinpointing some focal points for discussion at its next Special Commission meeting.  Most importantly, the Special Commission meeting will include a discussion on the impact of the pandemic and court shutdowns, remote proceedings, and delays.  Child abduction cases were still routinely treated as “emergency” matters during the COVID-19 pandemic, and still addressed urgently, despite backlogs on court calendars. Nonetheless, there remain concerns about the impact of such a widespread international emergency on the safe movement of children across borders, and how the Hague Child Abduction weathered such an event.  Initially, lawyers were concerned that parents would use the pandemic to ignore existing obligations to return children to the other parent’s household.  When countries began closing international borders, and consulates stopped issuing visas for travel, matters became even more complicated.  In some countries, courts closed for a significant length of time, causing additional concern that when a parent retained a child overseas, there was no legal remedy available to the parent seeking the child’s return.  This topic will be vital to understanding how this 40+ year old treaty will function in an ever-changing world. 

Another topic of discussion included on the Hague Conference’s tentative agenda is the definition of “habitual residence” in the Hague Conference’s various treaties, specifically the Hague Child Abduction Convention.  In 2020, the U.S. Supreme Court, in Monasky v. Taglieri, 140 S.Ct. 719 (2020), finally gave clarity to this un-defined term by opening up pandora’s box with a “totality-of-the-circumstances” analysis.  Since the Supreme Court resolved the U.S. Circuit split on this key component of the Hague Abduction Convention, U.S. courts have been finding their footing in how to apply it to cases.  Some U.S. courts have continued to apply, or at least prioritize, the standard they previously used.  Other courts have distinguished Monasky, opining that it only applies when the parents have no agreement as to their child’s home. 

However, perhaps one of the more interesting issues on the Special Commission’s tentative agenda is hearing children’s voices in child abduction and child protection proceedings, including the appointment of lawyers to represent these children. The Hague Conference previously addressed this issue in Special Commission meetings, including the Sixth Special Commission in 2011, where it confirmed that there is no uniform approach to how a child’s views are taken into account, but that it is important to hear a child during proceedings. The tentative agenda for the Eighth Special Commission in 2023 is more specific, focusing not just on the child’s voice as it relates to a specific treaty, but giving that topic its own agenda item, and elaborating on it by having the Special Commission discuss the role of lawyers to represent children and afford them a voice.  Some countries consistently appoint lawyers to represent children to protect them and their voices and help minimize the negative impact of stressful litigation on the child.  Some countries simply have no ability to do that.  Others pick and choose when these lawyers will be provided or appointed.  There are no global standards, or even guidance on the role of these lawyers, and no training for these lawyers, either.  Given some recent literature on this issue, and some research done in a few European countries, this topic may present itself as one of the more prominently discussed in 2023. 

Introducing Melissa Kucinski

It is our great pleasure to introduce our new IntLawGrrls contributor.

Melissa Kucinski is an international family law expert with her principal office in Washington, D.C.  She owns the boutique international law firm of MK Family Law, PLLC.  She served as a consultant to the Hague Conference on Private International Law in 2013 and has written a dozen articles published in more than one language on international children’s issues and mediation of complex cross-border custody and child abduction cases. Melissa has presented at over 30 national and international conferences on international children’s issues and mediation. Melissa has traveled to Tokyo twice for meetings on the Hague Child Abduction Convention – first in 2014 as part of a U.S. delegation and again in 2019, at the invitation of the Japanese Ministry of Foreign Affairs.  Melissa has been a long-standing member of the U.S. Secretary of State’s Advisory Committee on Private International Law.  She served as a private sector advisor to the U.S. Delegation to the Hague’s Sixth Special Commission meeting in 2011 to review the practical operation of two international children’s treaties, and she attended the Seventh Special Commission meeting in 2017 with International Social Service (ISS).   She chaired ISS’s efforts to create a global network of international family mediation resources. 

Melissa has served in a variety of capacities within the American Bar Association (ABA), including past chair of an International Family Mediation Task Force, and chair of two separate international family law committees.  She is currently co-chair of the ABA International Family Law Committee and co-chair of the New York State Bar Association’s International Family Law Committee. Melissa has taught the International Family Law course at the George Washington University School of Law since 2010.  She is a fellow of the International Academy of Family Lawyers.  Her book, A Practical Handbook for the Child’s Attorney: Effectively Representing Children in Custody Cases, included a chapter on representing children in complex international abduction and relocation cases.  Her newest book, Family Law Across Borders: Cases and Comments was released in 2021 by West Academic.

Heartfelt welcome!

Current levels of representation of women in human rights organs and mechanisms: ensuring gender parity

Tune in on Tuesday, July 20th from 12-1:30PM (EDT) for an insightful panel discussion titled Current levels of representation of women in human rights organs and mechanisms: ensuring gender parityThe panel will discuss the recently-published report of the UN Human Rights Council Advisory Committee, which outlines findings on the current levels of representation of women in UN human rights bodies and puts forth recommendations on how to promote and implement gender balance in these organs. 

This important report identifies several causes of gender imbalance in international bodies, and affirms that the under-representation of women in international bodies infringes upon their rights to equality and non-discrimination, to equal participation in all spheres of life, and to equal opportunity in employment. Importantly, it concludes that lack of gender parity in UN human rights bodies affects not only women’s rights; it is also detrimental to these bodies themselves, as it hinders their impact, effectiveness, and legitimacy, while also leading them to overlook critical gender issues and perspectives. This report was requested by the UN Human Rights Council in its Resolution 41/6 of July 2019, entitled “Elimination of all forms of discrimination against women and girls”; its submission at the 47th Session of the Human Rights Council in June 2021 constitutes an important stepping stone towards greater representation and participation of women in key international institutions.   

The virtual event on July 20th will delve into the report’s findings, recommendations, and its implications with a distinguished panel, which will include: Prof. Jarpa Dawuni, Associate Professor of Political Science at Howard University & Executive Director of the Institute for African Women in Law; Prof. Nienke Grossman, Professor of Law & Co-Director of the Center for International and Comparative Law at the University of Baltimore; Viviana Krsticevic, Executive Director of the Center for Justice and International Law (CEJIL) and a Member of the Secretariat of the GQUAL Campaign; Elizabeth Salmón, Member of the UN Human Rights Council Advisory Committee & Professor of Law at the Pontifical Catholic University of Peru, and Liz Snodgrass, Partner at Three Crowns LLP. Professor Claudia Martin, Co-Director of the Academy and a member of the Secretariat of the GQUAL Campaign, will be moderating the conversation.

*This Panel is sponsored by the Academy on Human Rights and Humanitarian Law, ASIL’s Women In International Law Interest Group, GQUAL, and the Institute for African Women in Law.

This event is the Tenth panel discussion of the Academy on Human Rights and Humanitarian Law’s Human Rights Summer 2021 series, titled “Experts Speak Series: Addressing Human Rights in Times of Crisis.”

For details and registration, click here.

This promises to be an enriching conversation touching upon the current challenges facing women in international law and discussing the report’s proposed roadmap to achieve gender parity in human rights bodies, and we hope that you will join us!

Go On! Extraterritoriality in International Law

Go On! makes note of interesting conferences, lectures, and similar events.

Professor Ryngaert of Utrecht University and Professor Parrish of Indiana University Maurer School of Law announced open registration for Extraterritoriality in International Law, which is a three-day webinar that will be held September 15 – September 17, 2021, over Zoom. The conference is a prelude to an Elgar Research Handbook on Extraterritoriality in International Law to be published next year. Each speaker and panelist is writing a chapter for the edited volume, and attendees of the conference will be able to watch their discussions through a live webinar and contribute questions.

Click here for details and to register.

Go On! International Humanitarian Law Centre Training Series

Go On! makes note of interesting conferences, lectures, and similar events.

The Diakonia IHL Centre in Jerusalem announced open registration for an IHL Training Series, which will be begin on September 23, 2021, via online sessions. The series is intended to equip professionals working in or on the context of the occupied Palestinian territory with a foundational understanding of the international legal framework applicable in armed conflicts and situations of occupation. Participants of the series will gain a basic degree of literacy that should inform and enhance their protection, humanitarian, human rights, or reporting work. The series will consist of six sessions, and will be held biannually.

Applications for the Fall 2021 edition are due by August 10, 2021. Please click here for more details and to register.

Go On! Post-WWII Occupied Germany

Go On! makes note of interesting conferences, lectures, and similar events.

The Minerva Law Network Insert announced open registration for Post-WWII Occupied Germany: Examining The Effect of a Male Majority Military on the Political Power, Legal Rights, and Economic Opportunities of Women in a Female Majority Land, a public talk by Cornelia Weiss, which will be held on July 30, 2021. Professor Weiss, a former US colonel, seeks answers to end discrimination against women by illuminating barriers and excavating forgotten history

Click here for details and to register for the talk.

Prosecuting Environmental Crimes at the International Criminal Court – Is a Crime of Ecocide Necessary?

On the 22nd of June 2021 a group known as the ‘Independent Expert Panel for the Legal Definition of Ecocide’ officially launched what they described as a ‘practical and effective definition of the crime of ecocide.’ The twelve members – lawyers from around the world with backgrounds in criminal, environmental, and climate law – expressed their hope that the ‘proposed definition might serve as the basis of consideration for an amendment to the Rome Statute of the International Criminal Court.’ As they argued, ‘the time has come to extend the protections for serious environmental harm.’ Ecocide, as they envisioned it, would form a new distinct international crime, defined thus:

For the purpose of this Statute, “ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.

The work of the Independent Panel builds on years of campaigns to criminalise ecocide and their definition is not the first to be offered up as a possible addition to the Rome Statute. The framing of environmental harm as ‘ecocide’ can be traced to the 1970s, when it emerged in response to the environmental atrocities caused by the use of herbicides such as Agent Orange in the Vietnam War. Since then, notable attempts to respond to large-scale environmental destruction have included Professor Richard A. Falk’s draft of an International Convention on the Crime of Ecocide in 1973, debates over whether to criminalise environmental destruction in the Draft Codes of Crimes Against Peace and Security of Mankind in the 1990s, and Polly Higgins‘ proposal for a crime of ecocide to be added to the Rome Statute in 2010. While definitions have differed, proponents of a specific crime of ecocide have been united by a belief that existing criminal laws are insufficient as a framework for addressing environmental crimes.

Following the release of the Independent Expert Panel’s definition last week, commentators have been offering their initial reflections on its wording, its practicality and on whether such a crime is necessary. In his recent post on EJIL: Talk, Kai Ambos opined:

it is doubtful whether a new, stand-alone core crime is needed to better protect the environment. It is arguably more sensible, especially from a practical point of view, to further develop in case law those elements in the existing international core crimes which have an environmental ingredient…

Given the likely political challenges associated with actually introducing and implementing a new crime to the ICC’s mandate, Ambos’s second point is fair. It is not straightforward to amend the Rome Statute. As I have explored elsewhere, it makes sense to work with the tools we have. In fact, there have been previous signs that the ICC’s Office of the Prosecutor (OTP) might be willing to use the existing core crimes (genocide, crimes against humanity, war crimes and the crime of aggression) to prosecute environmental harm. Policy Papers released in 2013 and 2016 indicated that ‘environmental damage,’ ‘the destruction of the environment’ and ‘illegal exploitation of land’ could be relevant considerations when conducing preliminary examinations and selecting cases.

However, while there are certainly possibilities for prosecuting environmental harms under the existing core crimes, Ambos’s latter point does not prove the former. Before dismissing the necessity of a new crime of ecocide, is worth reviewing the extent to which the core crimes can be considered as having an ‘environmental ingredient’, and where gaps in environmental protection emerge.

War Crimes

Only one of the four existing core crimes refers directly to the natural environment. Dubbed as the first ecocentric war crime, Article 8(2)(b)(iv) prohibits:

intentionally launching an attack in the knowledge that such attack will cause… widespread, long-term and severe damage to the non-human environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.

Commentators have flagged four key issues regarding the practicality of this Article. First, commentators have noted that the ‘operative core’ of the Article imposes a triple and cumulative standard of ‘widespread, long-term and severe’ that must be met before environmental damage is prohibited (it is notable that the Independent Panel of Experts adopted this language but removed the cumulative standard in their definition of ecocide). Second, the reference to damage that is ‘clearly excessive in relation to the concrete and direct overall military advantage anticipated’ introduces an expansive proportionality test, determined on the basis of the information available to the perpetrator at the time of launching the attack. Third, the mens rea requires that the potential offender had the intent to commit the attack in the knowledge that it would cause ‘widespread, long-term and severe damage.’ Fourth, the Article is only applicable to crimes perpetrated in the context of an international armed conflict. As argued by one commentator, the provision cannot therefore be applied, ‘neatly and directly, to many of the worst assaults on the natural environment – whether degradation of forests, poisoning of rivers, or extinction of animal species,’ most of which occur in peacetime. These issues limit the usefulness of Article 8(2)(b)(iv) – indeed, to date no successful prosecutions have been brought using this crime.

Genocide

It is certainly possible to envision environmental destruction being prosecuted under the rubric of genocide – many scholars have explored the frequently interconnected perpetration of ecocide and genocide (or the ‘genocide-ecocide nexus‘). There is even some limited precedent for this – in 2008 the ICC prosecution charged Omar Al-Bashir with genocide under Article 6(c), noting the connection between genocide and the deliberate destruction of the environment by systematically destroying properties, vegetation and water sources and repeatedly destroying, polluting or poisoning communal wells or other communal water sources by the militia and Janjaweed in Darfur.

Nonetheless, the limits of genocide as a means of protecting the environment arise from its anthropocentric focus – by definition, genocide involves ‘acts committed with the intent to destroy, in whole or in part, a national, racial or religious group.’ As such, this crime is applicable only to the extent that environmental destruction can be linked to the specific intent to perpetrate harm against a group of human beings.

Crimes Against Humanity

While none of the acts listed in the Elements of Crimes contain an ‘environmental ingredient’, it is possible that crimes against the environment could fall within four categories of acts that constitute crime against humanity. First, the prohibition of ‘extermination, or intentional infliction of conditions of life…calculated to bring about the destruction of part of the population’. Second, the deportation or forcible transfer of a population. Third, persecution through the intentional and severe deprivation of fundamental rights contrary to international law. And fourth, it could be considered an example of ‘other inhumane acts’, provided the destruction occurred ‘as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.’ Again, in the situation of Darfur referenced above, the OTP found that the same behaviour highlighted above in the context of genocide, which also incorporated the forcible displacement of populations, could constitute a basis for crimes against humanity charges.

However, we come up against the limits of a crime centred around human suffering – crimes against humanity must be directed at a civilian population, and the framing of crimes against humanity has been accurately described as ‘anthropocentric, putting mankind centre stage.’

The Crime of Aggression

Finally, it is theoretically possible to frame environmental crimes as a crime of aggression, or the ‘use of armed force by a State against the sovereign territorial integrity or political independence of another State.’ There is again some limited precedent – the initial inquiry into NATO’s bombing campaign against Serbian military positions in 1999 examined aggression-related environmental harm, although no criminal case against followed.

Although not anthropocentric in quite the same way as genocide and crimes against humanity (i.e. explicitly based on human suffering), the crime of aggression is nonetheless based on the harms humans perpetrate against each other – in this case acts carried out by senior political and military state actors against another state. This focus on state sovereignty, territorial integrity and inter-state conflict again limits the scope of this crime as a means of addressing environmental destruction.

Is a Crime of Ecocide Necessary?

While there are certainly opportunities to prosecute environmental harms using the existing core crimes contained within the Rome Statute, it is arguable that the anthropocentric limitations of the existing crimes create a gap in international criminal accountability. The addition of a crime of ecocide to the ICC’s mandate might address this gap. Notably, the definition offered by the Independent Panel enables ecocide to be prosecuted in times of peace, a significant shift away from the limits of Article 2(b)(iv) and recognition of the fact that the devastation sown by some human activities under the cover of ‘peace’ is often far greater than that caused in ‘war’. It does not require a connection to the destruction of a group, nor an attack on a civilian population, nor an act against the territorial integrity of a state. While the Independent Panel did not manage to divorce themselves from anthropocentrism entirely (see this critique by Kevin Jon Heller), the proposed crime recognises that environmental harm, in itself, is worthy of being classified as a crime that ‘shocks the conscience of humanity’.

There are certainly theoretical and practical issues with the definition offered by the Independent Panel that require further consideration, and as I mentioned above, it is not an easy process to introduce a new crime to the Rome Statute. Furthermore, it would be a mistake to assume that criminalisation will offer a meaningful response to environmental destruction by itself. As I have argued previously, too great a focus on individual responsibility risks diverting energy away from the reforms and systemic changes that are essential to protecting and repairing the natural world.

Nonetheless, I would argue that rather than dismissing the crime as ‘not needed’, the introduction of a crime of ecocide should be seen as an an opportunity for the ICC State Parties to make a strong declarative statement that harm against the environment is one of the ‘most serious crimes of concern’ to the international community. In doing so, they would be contributing to a growing consciousness of the need to rethink our relationship with nature and meaningfully address the harms already perpetrated against the natural world. Indeed, the urgent environmental challenges facing our planet, the failure of environmental regulation to prevent widespread destruction, and the normative expressive value of prohibiting the loss of ecosystems all make the call for a crime against the environment compelling.

ICC Experts’ Seminar- June 30th

American Branch of the International Law Association ICC Committee, with the N.Y.U. Center for Global Affairs, Washington University in St. Louis School of Law, and the University of Illinois College of Law, is co-sponsoring the ICC Experts’ Seminar on Wednesday, June 30th, from 10:00 a.m. to 3:00 p.m. For registration information, please see the conference website. The conference agenda is included below:

AGENDA

10:00 – 10:30 a.m.  Welcome and Opening Keynote Address

  • Ambassador David J. Scheffer, Northwestern University Pritzker School of Law

10:30 – 10:45 a.m.  Break

10:45 a.m. – 12:15 p.m.  Teaching International Law in a Sometimes Challenging Environment

  • Moderator: Leila Sadat, Washington University in St. Louis School of Law
  • Patrick Keenan, University of Illinois College of Law
  • Saira Mohamed, University of California Berkeley School of Law
  • Milena Sterio, Cleveland-Marshall College of Law

12:15 – 12:45 p.m.  Break

12:45 – 1:00 p.m.  ICC Outreach Materials

  • Violeta Willemsen-Curic, Outreach Unit, International Criminal Court

1:00 – 2:30 p.m.  US/ICC Advocacy in a Sometimes Challenging Environment

  • Moderator: Jennifer Trahan, N.Y.U. Center for Global Affairs
  • Elizabeth Evenson, Human Rights Watch
  • Katie Gallagher, Center for Constitutional Rights
  • Rebecca Shoot, Washington Working Group on the ICC
  • Kristin Smith, Atrocity Crimes Initiative, ABA Criminal Justice Section & Center for Human Rights

2:30 – 2:40 p.m.  Break

2:40 – 3:00 p.m.  Concluding Keynote Address

  • Beth Van Schaack, Stanford University

WRITE ON! Northern Ireland Legal Quarterly Call for Submissions

This installment of Write On!, our periodic compilation of calls for papers, includes calls to contribute to Northern Ireland Legal Quarterly, as follows:

Northern Ireland Legal Quarterly, a peer-reviewed journal published by the School of Law at Queen’s University Belfast, has announced a call for contribution submissions. There is no submission deadline. Articles should not normally exceed 12,000 words. Please see ‘For authors‘ section for further details. The journal regularly publishes special issues in all areas of law and socio-legal studies. If you would like to discuss your idea for a special issue, please contact the editor.
For further questions/queries contact the International Editor, Dr Yassin Brunger y.brunger@qub.ac.uk 

ON THE JOB! Job opportunities within the School of Law, Queen’s University Belfast

Queen's University Belfast - School Of Law - #WeAreFreeMovers

On the Job! compiles interesting vacancy notices, as follows:

► Applications are welcome from the School of Law, Queen’s University Belfast for seven positions advertised for new Lectureship posts, including five Lectureships (Research and Education) and two Lectureships (Education). These are full time, permanent positions, located in Belfast. Deadline for all posts is July 19, 2021; Further details can be found: 5 Lectureships (Research and Education): here 2 Lectureships (Education):  here