Month: March 2013

Jayne Huckerby to Direct Duke’s New International Human Rights Law Clinic

/ Alexandra (Sasha) Filippova / Leave a comment

Photo of Jayne HuckerbyA heartfelt congratulations to Jayne Huckerby (right) (photo credit) on her appointment as Associate Professor of Clinical Law and director of a new international human rights law clinic at the Duke Law School!  Ms. Huckerby will bring to Duke a decade of cutting-edge human rights research and advocacy experience in the areas of gender and human rights, constitution-making, national security, human trafficking, transitional justice, and human rights in U.S. foreign policy.

Duke’s new clinic will offer students the opportunity to engage in four types of human rights projects: applying a human rights framework to domestic issues; advocating for human rights in foreign countries where human rights standards are nascent or absent; engaging with international institutions to advance human rights protections; and analyzing the human rights implications of U.S. foreign policy, including counter-terrorism initiatives that cause collateral gender-based harm.  The clinic will officially launch at the beginning of the spring 2014 term.

Congratulations!

The Kenyan Presidential Election and the ICC

/ Elizabeth Ludwin King / Leave a comment

On March 3, 2013, Kenyans went to the polls and elected Uhuru Kenyatta as President.

kenyatta

Kenyatta’s ability to perform the necessary duties may be called into question, however, given that he is due to stand trial at the International Criminal Court this summer on charges of crimes against humanity. The charges stem from his alleged role in funding and organizing the ethnic violence that led to the deaths of an estimated 1,200 people after the last presidential election in 2007. Kenyatta has said that he will cooperate with the ICC when it comes time for him to face the charges, but the very fact that he was elected president of a country in which he allegedly masterminded post-election violence in the past is concerning. (photo credit)

It is unclear exactly what role – if any – the ICC case had in the election, and how it may have influenced voters. Some reports, however, indicate that, far from leading people to vote against Kenyatta due to the charges against him, the ICC involvement may have led Kenyans to vote for him (see here and here.) Leading up to the elections, the United States and other countries warned of consequences should Kenyatta be elected. These statements, perhaps perceived as bullying, may have had the opposite of their intended effect. Indeed, where ICC involvement is considered interference in Kenya’s domestic affairs, a vote for Kenyatta may be a vote against the ICC and the international community.

On the other hand, the ICC charges against Kenyatta may not have had much effect at all on the election, given that voting was largely along ethnic lines and Kenyatta had plenty of resources to put toward his campaign. Regardless, it will be interesting to see how the world reacts to a Kenyatta presidency, and how Kenya – and Kenyatta – will react in July once the ICC proceedings start.

Prosecuting Conspiracy to Commit Piracy

/ Milena Sterio / 1 Comment

I have blogged several times in the past about legal issues related to the capture and prosecution of Somali pirates.  Today I will focus on the issue of prosecuting the crime of conspiracy to commit piracy- an issue that I have been asked to address at the upcoming United Nations Contact Group on Piracy off the Coast of Somalia, Working Group 2, meeting in Copenhagen, on April 10-11. 

Most detained and prosecuted pirates are foot soldiers: young men who are recruited in Somalia to engage in piracy attacks, in exchange for a relatively small financial gain (if the attack is successful).  While prosecuting piracy executioners may eventually lead to a small decrease in the number of pirate attacks, dismantling the Somali piracy business model requires judicially pursuing the kingpins – those who organize and finance the attacks.  The problem with prosecuting piracy financiers and organizers lies in the narrow definition of piracy.  Under Article 101(a) of the United Nations Convention on the Law of the Sea (UNCLOS), piracy is defined as a violent act on the high seas committed for private aims and involving two vessels (the aggressor and the victim vessels).  A person who finances or otherwise organizes a future piratical act does not, him or herself, commit a violent act, and does not act on the high seas; moreover, the act of financing or otherwise organizing a piratical act does not entail the involvement of two vessels.  Article 101(c) of UNCLOS outlaws the incitement and facilitation of piratical acts, but many scholars have argued that even such incitement and facilitation must be committed on the high seas, or must involve incitement or facilitation acts committed on the high seas before, or concurrent with, the piratical attack itself.  Many piracy financiers and organizes never set foot on the high seas and accomplish all of their “work” out of comfortable offices located in global financial centers.  The SUA Convention – another treaty outlawing acts of maritime violence that has been widely cited and used in the global fight against piracy – is of little help in this area, as this Convention does not criminalize acts falling short of actual maritime violence (SUA does outlaw aiding and abetting).  And many national laws define and criminalize piracy by either incorporating UNCLOS and its narrow view of piracy, or by referencing the “law of nations,” which is arguably identical, or very similar to UNCLOS, because the latter has been accepted as customary law.

Although piracy financiers and organizers may not be easily charged with piracy under  the prevailing view of this crime’s narrow definition, such financiers and organizers could be charged with the crime of conspiracy to commit piracy.  Conspiracy consists of an agreement between two or more individuals to carry out some illicit act, with intent or knowledge about the circumstances of the underlying offence.  According to the famous Pinkerton rule, “every conspirator is directly liable for all crimes committed by the rest of the conspirators in furtherance of the common plan, being irrelevant if he knew of the crimes or aided in their commission.”  Thus, if piracy financiers and organizers could be charged with conspiracy to commit piracy, they would be liable for the acts carried out by their co-conspirators (the piracy executioners), regardless of whether the financiers and organizers actually knew what the executioners were about to accomplish, as long as the illicit acts of piracy were reasonably foreseeable to the financiers and organizers. According to my reserach so far, the following states have criminalized conspiracy to commit piracy in their national penal codes: the United States (pirates have already been successfully convicted of conspiracy to commit piracy in U.S. v. Shibin, U.S. v. Ibrahim, and U.S. v. Muse); France, Argentina, Belgium, Cyprus, Israel, Norway, Poland, the Seychelles, Singapore, and New Zealand.  In addition, Denmark and Turkey conceive of conspiracy as a general mode of liability which can be extended to the crime of piracy.  Kenya and South Korea criminalize conspiracy to commit a ship hijacking – a crime with which piracy financiers and organizers could be charged just as easily.  Finally, many countries, such as Mauritius, Tanzania, Greece, Italy, and the Philippines, inter alia, criminalize the act of facilitation of piracy, leaving open the possibility that piracy financiers and organizers could be charged with this offense, if the act of facilitation is not interpreted as having to occur on the high seas. 

In sum, my so far incomplete and imperfect research indicates that many national legislations have the appropriate legal framework for the prosecution of conspiracy to commit piracy.  It is time that states begin to contribute to the global fight against piracy by actually charging the ringleaders and kingpins with the crime of conspiracy to commit piracy. 

Seeking generous support: all-woman team from Ethiopia looks to compete in Jessup

/ Diane Marie Amann / 1 Comment

For the 1st time in history, a team made up solely of women will represent Ethiopia in the final rounds of the Jessup International Law Moot Court competition, which begin this Sunday, March 31, in Washington, D.C.

Competing for Ethiopia will be 5 women, Adiam Zemenfes, Aklile Solomon, Liilnna Kifle, Maya Fresenay, Mintwab Afework, all of whom are students at the Addis Ababa University School of Law. They’re coached by a 6th woman, Blen Sahilu. The team is described in an ASIL Cable by New York Law School student Kienan D. Christianson, as follows:

‘These women are exceptional students and are ranked at the top of their class. Moreover, they are dedicated leaders and volunteers for the campaign ‘To End violence against Women’ known as the ‘Yellow Movement.'”

Jessup_cup_webMore than 500 law schools from 80 countries are expected to compete in this 54th annual competition. Its namesake, Philip C. Jessup (1896-1986), was a U.S. State Department diplomat, taught at Columbia Law, and served as a judge on the International Court of Justice (during which time he delivered the endowed Sibley Lecture at my own home institution, Georgia Law). It is that court, the ICJ, that student litigants address in this simulation contest. (credit for photo of winners’ trophy)

But there’s a hitch: The Jessup does not fund competitors, so the team has been fund-raising to assure its way to D.C. These women are still $4,000 short of their goal. If you’d like to support their efforts, please donate here, typing “Ethiopian Moot Court team” in the “on behalf of” box. I did.

(Cross-posted from Diane Marie Amann)

This week’s arguments may give glimpse of Supreme Court’s hand in marriage cases

/ Diane Marie Amann / Leave a comment

signIt seems like it was only yesterday that persons who favored marriage equality struggled for broad support. Even in the Left Coast bastion of Berkeley, we who planted “NO ON PROP 8” lawn signs awoke to find them taken, torn, or trashed. “Prop 8” was, of course,  Proposition 8, the ballot initiative that aimed to overturn a May 2008 state supreme court ruling that same-sex couples had a fundamental right to marry; in so doing, Prop 8 aimed to make a ban on such marriages part of the California Constitution. Six months after the initial ruling, on the same day in 2008 that Barack Obama was elected President, the same-sex marriage ban passed with 52% of the California vote. (photo credit)

But that was then, nearly 5 years ago. And now, as the U.S. Supreme Court takes up the constitutionality of Prop 8 and of the federal Defense of Marriage Act, America is in a very different place. Opposition to bans is ascendant in polls. Opponents are found on both sides of the political aisles – not only the lawyers trying the cases, but also the persons lending their names through amicus briefs or public statements. Notable in that last group are current President Obama, who’s moved to a position of support for gay marriage, and former President Bill Clinton, who’s repudiated DOMA though it was he who signed it into law back in 1996.

How these shifts will affect judicial deliberations is anyone’s guess, not the least because of the precise questions before the Court:

► Tomorrow morning,

Justices will hear Hollingsworth v. Perry, the challenge to California’s Prop 8. The original cert. petition presented this question:

‘ Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.’

► On Wednesday, the Court will hear argument in United States v. Windsor, concerning the federal DOMA. Here’s the question presented in the original petition for a writ of certiorari:

‘Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.’

But on granting review, the Court added a 2d question to each case. Paraphrased, here it is:

Given that the governments of the United States and of California have refused to support the legal bans in place, does the U.S. Constitution give standing to the litigants supporting the bans (in the 1st case, an entity called the Bipartisan Legal Advisory Group of the United States House of Representatives; in the 2d, a group of state legislators)?

An answer of “no” would leave untouched lower courts’ invalidations of both Prop 8 and DOMA on equal protection grounds (here, here, and here); however, it would also leave unmade any final determination of the ultimate question. Limited rulings also are possible, along the lines of the government’s brief in Windsor (prior post) or the “menu of options” that NYU Law Professor Kenji Yoshino explores in this SCOTUSblog post.

The arguments slated for this week have had folks lining up since Thursday to get into the Court’s Grand Chamber. Persons farther afield will be able to listen to/read transcripts of each argument by the afternoon of the same day. The Q&A promises to indicate whether the Justices are ready or not to reach the bottom-line issue before the Court:

What does the U.S. Constitution have to say about same-sex marriage?

(Cross-posted at Diane Marie Amann)

Introducing our student editors: Sasha Filippova, Beverly Mbu, and Maggie Spicer

/ Jaya Ramji-Nogales / Leave a comment
sasha

Sasha Filippova

One of the aspects of IntLawGrrls that I value the most is our focus on promoting junior scholars and bringing new voices to the fore.  In that spirit, I’d like to introduce our three fabulous student editors, who have been working hard to get the blog up and running and bring you a variety of posts!
Alexandra (Sasha) Filippova is finishing a dual degree in law and international relations (MSFS) at Georgetown. She is a Global Law Scholar and will graduate with a certificate in Refugees and Humanitarian Emergencies. During her graduate studies, Sasha successfully litigated an asylum claim as a student attorney at the Center for Applied Legal Studies and contributed to the fifth report submitted to the International Law Commission by the Special Rapporteur on the protection of persons in the event of disasters. She is currently working on a practicum project to analyze judicial and police practices directed at victims of sexual violence and to develop related litigation strategies. Sasha has interned with the Liberia Peacebuilding Office/UN Peacebuilding Fund Secretariat in Monrovia, Liberia, where she conducted a strategic review of Liberia’s conflict factors; the Cambodia Justice Initiative in Phnom Penh, Cambodia, where she helped to monitor the trials of former Khmer Rouge officials at the Extraordinary Chambers in the Courts of Cambodia; Shearman & Sterling, LLP, where she worked on a number of international arbitration, litigation, and pro bono matters; and the Office of the Legal Adviser at the U.S. Department of State, where she worked for the Office of African and Near Eastern Affairs. Sasha graduated Phi Beta Kappa from Stanford University in 2007.

beverly

Beverly Mbu

Beverley Mbu is currently a 3L at GW Law from Lagos, Nigeria by way of London, England. Her academic focus is in international law, women’s empowerment, and human rights with a particular interest in sub-Saharan Africa and the Southern Hemisphere more broadly. She was a member of GW’s Jessup team this spring and is a student attorney in GW’s Domestic Violence Clinic. When not consumed by law school she enjoys all kinds of eating activities (including cooking), watching independent films, and yoga.

maggie

Maggie Spicer

Margaret Spicer is a law student at the Florida State University College of Law focusing in International Law. Her undergraduate research was in state-sponsored torture, and she defended an Honors Thesis on the quantitative effects of political conflict on levels of human rights abuse. In 2010 she worked at the Center for Victims of Torture in Minneapolis, Minnesota as a Midwest Coalition for Human Rights Summer Fellow. Currently, she sits on the Executive Boards of the FSU College of Law Moot Court Team and the Journal of Transnational Law & Policy. She is also a contributor for the International Law Students Association Quarterly, writing court and country watch articles for their print and online editions.
Sasha and Beverly have been (wo)manning submissions and Maggie, our resident WordPress genius, has, among numerous other tasks, put together our “Contributors by Expertise” page.  Many thanks to the three of you, and we look forward to your posts!

Interfaces between International and National Legal Orders

/ Machiko Kanetake / 1 Comment

An intInterfaces logoernational seminar entitled “Interfaces between International and National Legal Orders: An International Rule of Law Perspective” was held on 14-15 March 2013 in Amsterdam. The seminar was organized by the Amsterdam Center for International Law (ACIL), where I am a researcher, and sponsored by the Hague Institute for the Internationalisation of Law (HiiL).

The seminar explored the evolving “interfaces” between international and national legal orders from the perspective of the international rule of law. The interfaces between international and national legal orders are the points where the actors, norms and procedures which form and maintain the two legal orders interact with one another. These interfaces have significantly evolved due to the extension of the subject matter of international law and its impact on domestic regulatory policies.

International legal scholarship has produced extensive studies to capture the inter-order interfaces primarily from the perspective of national rule of law. Much less recognized is the international perspective; namely, the impact of national law on the rule of law within the international legal order.

National Contestations & the International Rule of Law

The SeminaInternational Rule of Lawr’s “international” angle was a response to the critical need to situate the national legal order, not merely as the venue for implementation, but as the agent for the critical revision of the international rule of law and of the universality of policies behind it.

In the Seminar, Veronika Fikfak (University of Cambridge) presented the “strong” and “weak” review techniques employed by domestic courts, whereby the courts delicately elicit dialogues and responses from international institutions. Domestic courts’ contestation and international courts’ responses have been incrementally formalized and methodized, as Birgit Peters (University of Bremen) demonstrated within the context of the European Convention on Human Rights.

Mateja Steinbrück Platiše (Max Planck Institute for Comparative Public Law and International Law) eloquently argued that the challenges raised by domestic courts to the immunities of international organizations have incrementally invited  jurisprudential and political transitions on the part of international courts and organizations. The space for domestic reinterpretation and innovation was arguably preserved by international law, as Ingrid Wuerth (Vanderbilt University School of Law) highlighted within the context of the international law of jurisdictional immunities. “Judicial” contestations may need to be understood against broader political resistance against international law and institutions, as Prabhash Ranjan (National Law University) articulated with respect to the backlash against bilateral investment treaties (BITs).

Continue reading →

Losing Ieng Sary’s Assets

/ Jaya Ramji-Nogales / 1 Comment
ieng sary

Ieng Sary at a pre-trial detention hearing

Most IntLawGrrls readers have seen by now media reports of the death of Ieng Sary, the former foreign minister of the Khmer Rouge, last week.   Many of these articles express concern about justice-related consequences for his victims, given that Sary was in the midst of trial at the Extraordinary Chambers in the Courts of Cambodia.  The focus has been on the trial process itself, and the harm has been portrayed as a loss of justice as victims will not have the opportunity to see Sary held guilty.

Though those concerns are important, the victims in Cambodia have another concern: the loss of Ieng Sary’s assets.  Ieng Sary was a very rich man, and was reportedly responsible for the Khmer Rouge’s finances during and after the 1975-1979 period during which the regime controlled Cambodia.  After the fall of the Khmer Rouge in 1979, Sary also benefited from the proceeds of lucrative timber and gemstone sales in the northwest of Cambodia.  He reportedly had access to a Hong Kong bank account containing (at one point) $20 million that the Chinese government sent to the Khmer Rouge.   After Sary was pardoned by the Cambodian government in 1996, his Khmer Rouge colleagues denounced him for stealing $10 million dollars, likely from this account.  At his death, he owned luxurious homes in Phnom Penh and Banteay Meanchey province. Had Sary been convicted of the crimes charged, victims might have been able to seize his assets and use them for reparations.  With his wife Ieng Thirith having been declared unfit for trial, these assets will no longer be accessible through the ECCC process.

Were the Cambodian government to request assistance obtaining these assets, the World Bank and UN Office on Drugs and Crime’s Stolen Asset Recovery Initiative might be able to track them down.  But most observers are skeptical of the Cambodian government’s willingness to do so, or their ability to then distribute Sary’s ill-gotten wealth in a transparent and fair manner.

(credit for photo above right)

Creation of International Law: Exploring the International Law Components of Peace

/ Cecilia Marcela Bailliet / 5 Comments

 

Wisconsin International Law Journal Annual Symposium

April 4-5, 2014, University of Wisconsin Law School, USA

Call for Papers

 

We invite internationally acclaimed women scholars and advanced PhD candidates to the second conference on the Creation of International Law, to be hosted by the University of Wisconsin on April 4-5, 2014 as part of its Wisconsin International Law Journal annual symposium. The intention is to continue and expand the network of women scholars and practitioners that was launched in 2009 in Norway to support their engagement in public international law.  The theme of the second conference is: Exploring the International Law Components of Peace. The pursuit of peace remains a global challenge and there is a need for reflection as to how the current international public law institutional and normative structure functions and what are the gaps?

Scholars from across the globe are invited to present papers addressing challenges in relation to the creation of international law from theoretical, normative, or empirical perspectives.  We seek to bring together academic women to promote new research collaboration and strengthen their ability to influence the creation and elaboration of international law. The conference seeks to profile women as subjects of international public law development, both for students and researchers seeking recruitment to the law schools.  Papers selected for presentation at the symposium will be published in the Wisconsin International Law Journal.

The following are some suggested areas for papers, addressing issues relating to peace at the international level (state-state/international community) and at the domestic level (state-society/individual). Papers can address the tension between the notion of negative peace (prohibition of violence and aggression) and positive peace (elimination of structural violence, respect for human rights, and social justice ). However, the list is not exhaustive and we welcome other areas of international law related to international peace.

  • Public International Law: We welcome papers discussing the current divide on R2P, juxtaposing the principles of territorial integrity and state sovereignty against initiatives advocating intervention in response to massive violations of human rights, and the right to democracy.  We also welcome papers on reform of international and national institutions in order to improve the implementation and enforcement of peace.
  • International Human Rights:  Peace:  Is it a Human Right?  Is it an individual or collective right?   Who are the beneficiaries of this right and who are the duty-bearers? How should we move forward in terms of defining the scope of the right to peace and ensuring compliance?  Freedom of Expression- what is the scope of this right and its relation to peace?  The Rights to Non-Discrimination, Equality, Freedom of Expression, Food, Water, Housing, and Education- how do we measure progress?
  • International Humanitarian Law: We welcome papers on prohibition of nuclear weapons and weapons composed with nuclear byproducts, incendiary weapons, and autonomous weapons systems.  We also welcome papers addressing initiatives to regulate disarmament or regulate the arms trade.
  • International Environmental Law: We welcome papers on peace, sustainable development, and the interface between climate change and human rights/migration law
  • International Trade Law/Economic Law: We welcome papers addressing institutional and normative roots of structural violence, poverty, and global inequality/inequity.  We also seek papers addressing the marginalization of women and efforts to empower them.
  • Dispute Resolution: We welcome papers on mediation, conciliation, arbitration, commissions of inquiry, peace commissions, tribunals, and other non-violent mechanisms.  We also welcome papers addressing the participation of women in these forums.
  • Education: We welcome papers discussing the teachingof International Law- is there a bias towards topics addressing violence and use of force?  How can we improve the teaching of peace within the law school?

The deadline for submission of abstracts is October 1, 2013.  Scholars whose abstracts are selected for the symposium will be notified by November 1, 2013.  Complete papers from those selected are due on March 1, 2014.  Please email your abstracts of not more than 500 words including your institutional affiliation and contact details to Cecilia Marcela Bailliet (c.m.bailliet@jus.uio.no) and Sumudu Atapattu (saatapattu@wisc.edu) by the deadline.  Late submissions will not be accepted.

Citizens’ challenges to statutes said to strengthen French constitutional spirit

/ Diane Marie Amann / 1 Comment

usa_french_flag_image“‘It took us more than two centuries to admit that a law could be imperfect and the people’s representatives uninspired. That a government and its majority often act too hastily, with the result that the Constitution is mistreated. That protecting the Constitution promotes liberty. Two centuries to admit that, on this point, the American Revolution has been more just than the French.'”

Thus does LeMonde quote French law professors Guy Carcassone and Olivier Duhamel. (All translations from the French original mine.)  The quote appears in “Au ‘non’ de la loi,” reporter Patrick Roger’s fascinating analysis of how a 2010 law permitting private individuals to challenge the constitutionality of statutes has transformed both the theory and practice of separation of powers in France. (IntLawGrrl Naomi Norberg described the reform in this 2009 post.)

conseilAs Roger describes and constitutional comparatists well know, post-Revolutionary France relied on the view that statutes were the expression of “volonté générale,” the “general will” advanced by 18th C. political theorist Jean-Jacques Rousseau. Inroads into that “doctrine of the infallibility” of the Parlement français began with the establishment of a constitutional council, the Conseil constitutionnel, in France’s 1958 Constitution. In its 1st decades the Conseil hesitated to question laws; that changed in 1971, when the council determined that a law did not conform to the Constitution. In so doing, Roger reports, the Conseil referred not only to the 1958 document,

‘but also to the “fundamental principles” of the 1789 Declaration of the Rights of Man and the Citizen, reprised in the preamble of both the 1946 and the 1958 Constitutions. This “bloc of constitutionality” – that is, the ensemble of norms of constitutional stature – established the foundation on which the Conseil has constructed its jurisprudence.’

Added to this new foundation were statutory revisions that expanded the pool of potential plaintiffs, culminating in the 2010 reform. The result? Today the majority of statutes undergo review by the council; according to the LeMonde report, that fact has instilled in legislators a new awareness of their constitutional duties. Claims the Conseil‘s President, Jean-Louis Debré:

‘”The Constitution henceforth belongs to the citizenry.'”

(cross-posted from Diane Marie Amann)