Write On! Call for Papers: Human Rights Essay Award Competition

This installment of Write On!, our periodic compilation of calls for papers, includes a call for submissions to the upcoming Human Rights Essay Award Competition, as follows:

The Academy on Human Rights and Humanitarian Law at American University Washington College of Law is currently accepting submissions for the 2021 Human Rights Essay Award Competition. The topic of the 2021 competition is as follows: Human Rights and States of Emergency: Unexpected Crisis and New Challenges. Participants have the flexibility to choose any subject that directly relates to this topic, including international human rights law topics related to international humanitarian law and international criminal law.  The deadline to enter your submission to the Human Rights Essay Award competition is February 1, 2021. Please note that ONLY participants with a law degree are eligible to enter this competition. 

The Human Rights Essay Award will be awarded to two winners—one for a submission in English and one for a submission in Spanish—with a full scholarship (including lodging and transportation to and from Washington, D.C.) to complete the Certificate of Attendance or Diploma in the 2021 Program of Advanced Studies on Human Rights and Humanitarian Law which will take place from May 31 to June 18, 2021.

If you would like additional information or have any questions, please contact humanrightsessay@wcl.american.edu

Write On! Call For Papers


This installment of Write On!, our periodic compilation of calls for papers, includes a call to submit papers
to the Transnational Legal Theory Journal as follows:

► The Transnational Legal Theory Journal is publishing a special issue of articles on transnational legal feminism. They invite you to submit an abstract (due 15 December 2020) for consideration for the journal.  Selected authors will be invited to submit papers (subject to peer review) that will be published in the Transnational Legal Theory Journal and presented in a virtual conference to be held on March 25th and 26th, 2021 in collaboration with the London South Bank University and the Cornell Law School. 

Please submit an abstract of no more than 500 words, a short bio (max. 200 words), and your institutional affiliation to transnational_feminism@cornell.edu by 15 December 2020. Draft papers will be due to at the end of February 2021 with the final papers having to be submitted by the end of April 2021, after the Symposium.

► The virtual Transnational Legal Feminism Symposium, organized by London South Bank University and Cornell Law School’s India Law Center, will be held on March 25th and 26th, 2021, with Professor Chandra Talpade Mohanty (Syracuse University) as the keynote speaker.

The Symposium aims at bringing together scholars and activists working on the intersection of international law, particularly those working on Third World Approaches to International Law (TWAIL), transnational law, and feminist legal theories to exchange notes from both research and practice.In this context, the Symposium will particularly focus on the following themes:

  • Power struggles between the Global South and Global North regarding gender equality issue and international law, including critiques of dominant perspectives
  • Non-hegemonic feminist theories and activism
  • Contextualised approaches to cross-border feminist praxis that challenge notions of universality
  • The effects of increased transnational neoliberal policies on gender-related and feminist issues
  • The potential (risks) of transnational feminist solidarity movement
  • How does transnational legal feminism intersect with the body of literature called “transnational law”?
  • What could a new transnational legal feminist approach entail?

Contributions are invited from scholars and activists in the field of law, gender studies, feminist theory, international relations and other disciplines that consider the kinds of questions listed above.

China’s Liability for Uighur Genocide Under International Law- Part II

How can the ICC exercise jurisdiction over the matter?

If the International Criminal Court decides to launch an investigation against Beijing over Uighur genocide and prosecute the Chinese Communist Party, it would be the first attempt to hold Beijing accountable for its crimes against Uighur Muslims before the International law community. However, it will not be easy for ICC to investigate the Uighur genocide directly as China does not accept the jurisdiction of International Criminal Court.

Article 12 titled ‘Preconditions to the exercise of jurisdiction’ of the Rome Statute is relevant in this context. As per Article 12(2) (a) of the Rome Statute, the court’s exercise of jurisdiction as contained in Article 13 is limited to those states that are party to the statute or have accepted the state’s jurisdiction in accordance with paragraph 3 of Article 12. As China is not a party to the Rome Statute, this provision safeguards it against being brought before the International Criminal Court. Apart from that, Article 13(2) provides that the ICC can exercise jurisdiction over the crimes if UNSC refers the same to Prosecutor under Chapter VII of the United Nations Charter. However, this seems unlikely as China is a permanent UNSC member that possesses veto power and therefore won’t allow a prosecution against itself. However, this does not mean that the ICC cannot exercise jurisdiction over the alleged crimes at all.

In order to investigate the Uighur genocide, the ICC will need to take an indirect approach and find a way to establish jurisdiction over the matter. In furtherance of the same, the International law community has proposed exploring the possibility of using the precedent set by the ICC in the Myanmar case over Rohingya genocide. In 2018, a request had been submitted by prosecutor Fatou Bensouda to the ICC to exercise its jurisdiction over the crimes committed against the Rohingya Muslims during the course of their deportation from Myanmar to Bangladesh. It was put forward by the prosecutor that even though the crimes against Rohingya Muslims occurred in Myanmar’s territory, a state that does not accept the jurisdiction of ICC, the fact that crimes were committed against Rohingya Muslims when they were forced to move across border into Bangladesh, a territory that accepts the jurisdiction of ICC is enough to justify ICC’s jurisdiction over the matter. Her arguments were accepted by the Pre-Trial Chamber I of the court and it was decided the case fell within the jurisdiction of the court. In other words, crimes with regards to the ethnic Muslim minority community were partly committed in a nation state that is bound by the Rome State and this allowed the ICC to exercise jurisdiction over the matter.

Subsequently, in 2019, a request was submitted by the OTP to the Pre-Trial Chamber III with regards to authorizing  an investigation into the Rohingya genocide. This request was accepted by the court as it was based on the grounds that there was a reasonable evidence to believe that alleged crimes took place against the Rohingya Muslim community .The chamber clarified that “the Court may exercise jurisdiction over crimes when part of the criminal conduct takes place on the territory of a State Party”.

The complaint against Beijing over Uighur Genocide has been filed on similar grounds. It has been put forward that since the deportation of Uighur Muslims to Xinjiang took place from Tajikistan and Cambodia, two nations that accept the jurisdiction of the ICC, an investigation into Uighur genocide is legally valid. According to Rodney Dixon, who is heading the legal team representing the Uighur Activist groups- “There is now a clear legal pathway to justice for the millions of Uighurs who are allegedly being persecuted on mass by the Chinese authorities”. Indeed, the ICC has been presented with the unique opportunity of putting China on trial by utilizing the precedent set by the Myanmar case.

Conclusion

Though the Office of prosecutor has accepted the petition seeking an end to China’s impunity over Uighur genocide, it remains to be seen whether it will green-light an investigation into the matter. As of now, prosecutor Fatou Bensouda is in the process of collecting and analysing evidence to launch a formal investigation into the alleged crimes.  

One thing has become clear- if the International Criminal Court decides to prosecute People’s Republic of China for its alleged crimes against the Uighur Muslims; it will prove to be a turning point for the Uighur justice movement. In the past, China has consistently showed its aversion to international adjudication and refused to abide by international law. Owing to its economic, political and diplomatic prowess, it has been able to garner the support of several countries across the world. As a result, these countries have refrained from raising their voice against the plight of Uighur Muslims. However, in the current political scenario, the international community has come forward and criticised the state sponsored persecution of Uighur Muslims.

IntLawGrrls Fight Back Against Trump Administration Executive Order

On October 1, 2020, three women with deep connections to IntLawGrrls, Professors Diane Marie Amann (founder), Milena Sterio (editor), and Meg deGuzman (contributor), filed suit against the Trump Administration, challenging the legality of Executive Order 13,928 and its implementing regulations. Foley Hoag, LLP represents the plaintiffs, which also include Professor Gabor Rona and Open Society Justice Initiative. The complaint, filed in US District Court for the Southern District of New York, alleges the Executive Order and implementing regulations violate Plaintiffs’ constitutional rights, are ultra vires under the International Emergency Economic Powers Act (IEEPA), and violate the Administrative Procedure Act (APA).

In essence, Trump’s Executive Order empowers Secretary of State Mike Pompeo, in coordination with Treasury Secretary Steve Mnuchin and Attorney General William Barr, to designate and freeze the assets of “foreign persons” who have engaged in International Criminal Court efforts to investigate, arrest, detain or prosecute US personnel without US consent, or personnel of US allies without their consent, or who have “materially assisted” such persons or activities.  According to the complaint, those who interact in a prohibited manner with designated persons are themselves subject to designation, as well as to civil and criminal penalties under the IEEPA. 

The ICC is by no means a perfect institution, and many have raised legitimate concerns about its judges, procedures, and choices since its establishment, including multiple US administrations. Yet, as others have already explained, Trump’s order is deeply problematic on its merits for myriad reasons. (See previous IntLawGrrls and Opinio Juris posts.)  It is also consistent with the Trump Administration’s anti-pluralist and anti-institutionalist populist approach to international courts and tribunals. (See my forthcoming piece in the Maryland Journal of International Law.)  What the complaint now adds, is a clear demonstration of the Executive Order’s chilling effect on public debate about the ICC and critical engagement with its work, as well as its hindering of efforts to improve both the court and the quality of international justice. 

Following designation of ICC Prosecutor Fatou Bensouda and another high- level court official, Plaintiffs allege they reconsidered or abandoned activities like participating in initiatives to improve the ICC’s functioning, training civil society and victims’ rights groups on effective engagement with the Office of the Prosecutor and the ICC, providing advice to the Prosecutor on issues relevant to children and armed conflict, submitting amicus curiae briefs in cases involving alleged atrocities around the world, and attending conferences bringing together scholars and professionals on topics involving international justice and the ICC.  Further, their concerns about potential civil and criminal liability have kept them from signing statements critical of the US Administration’s stance toward the ICC, as well as writing or publicly commenting on the ICC’s work. Plaintiffs argue this chilling effect, on a remarkably broad range of activities, violates their First Amendment rights to free speech.

It is the Executive Order and implementing regulations’ ambiguities that are at fault. What does it mean to “materially assist” a designated person? Is providing advice about whether the detention and mistreatment of children during the war in Afghanistan constitutes a crime against humanity a violation of the Order? What about filing an amicus brief in a case involving a US ally? Is participating in a process to strengthen the technical capacity of the Office of the Prosecutor, or working with victims’ groups a violation of the Order?  And what exactly is a “foreign person”? Does it include dual nationals? Without further clarification, Plaintiffs – and the rest of us – are left in the dark about possible designation and subjection to civil and criminal penalties. They also result, Plaintiffs allege, in no notice as to what conduct is covered, permitting potentially arbitrary enforcement of the Executive Order, in violation of their Due Process rights under the Fifth Amendment.  

As remedies, Plaintiffs seek declaratory relief that the Executive Order and regulations violate the First and Fifth Amendments, are ultra vires to the IEEPA and violate the APA. They request preliminary and permanent injunctions prohibiting Defendants from designating them under the Executive Order or regulations, or enforcing the IEEPA’s civil and criminal penalties against them.

As IntLawGrrls readers undoubtedly know, this is not the first time that the Trump Administration has sought to undermine an international adjudicative body, rather than engaging in meaningful and substantive reform efforts.  Others include boycotting sessions of the Inter-American Commission on Human Rights, threats to defund it, and failing to support its own candidate for election,[1] as well as continuous blocking of appointment to the WTO Appellate Body’s Dispute Settlement Body Appellate Body, risking its collapse.[2]  What distinguishes this particular action is its chilling effect on free debate and discussion, through the possible use of civil and criminal penalties against academics, advocates, and non-governmental organizations.

We should all pay attention to what happens next.

 


[1] See Doug Cassel, “Human Rights, Diplomatic Wrongs,” Harv. Int’l L. J., https://harvardilj.org/2019/04/human-rights-diplomatic-wrongs/. Editorial Board, “An Abdication on Human Rights,” N.Y. Times (Mar. 27, 2017),
https://www.nytimes.com/2017/03/27/opinion/an-abdication-on-human-rights.html?searchResultPosition=5.

 [2] “United States Continues to Block New Appellate Body Members for the World Trade Organization, Risking the Collapse of the Appellate Process,” 133 Am. J. Int’l L. 822 (2019)

Go On! Climate Change and Cultural Extinction: A Human Rights Crisis

Photo credit: UNICEF/Akash

The negative impacts of climate change on the enjoyment of cultural rights — along with the positive potential of cultures to serve as critical tools in responding to the climate emergency — must be placed on the international agenda. A cultural rights perspective is a critical component of the holistic approach needed to respond to catastrophic climate change.

To address these issues, an inter-disciplinary panel will convene in a side event / webinar via Zoom on 21 October co-hosted by UN Special Rapporteur in the field of cultural rights Karima Bennoune and the Human Rights Program of the Roosevelt House Public Policy Institute at Hunter College in New York. The following day, the Special Rapporteur will present her pathbreaking new report on climate change and cultural rights to the UN General Assembly.

Date: 21 October 2020 Time: 1:15pm – 2:45pm EDT / 5:15pm – 6:45pm GMT

Advance registration required. Click here to register.

Panelists:

Mary Robinson, Chief of The Elders; Former President of Ireland, Former UN High Commissioner for Human Rights, and Former Special Envoy of the UN Secretary-General for Climate Change

Karima Bennoune, UN Special Rapporteur in the field of cultural rights

David Boyd, UN Special Rapporteur on human rights and the environment

Joshua Castellino, Executive Director, Minority Rights Group International

Noa Petueli Tapumanaia, Chief Librarian & Archivist, Tuvalu National Library and Archives Department; Tuvalu national librarian

Mohamed Hizyam, youth activist, Maldives (video message)

Moderated by Stephanie Farrior, Distinguished Lecturer, Human Rights Program, Hunter College

On the Job! American University LL.M Program

American University Washington College of Law is accepting applications for its Master’s in International Human Rights and Humanitarian Law. Applications for the Spring Semester will be open until December 1, 2020, and classes will begin in January 2021.

The LL.M. in International Human Rights and Humanitarian Law has three tracks: in-person, hybrid and online programs. Students will benefit from a flexible curriculum focused on over 20 human rights doctrinal courses offered every year and taught by human rights faculty and world renowned experts.

Additionally, this degree is also offered in a bilingual format (LL.M. en Derechos Humanos y Derecho Internacional Humanitario) for multi-lingual lawyers looking to receive formal training in both languages.

Click here to apply!

The Ambiguity Of “Scientific Purposes” In The Whaling In The Antarctic Case

 https://www.newscientist.com/article/2208394-japans-return-to-commercial-whaling-has-no-economic-or-cultural-case/

Though science and law might seem to be two different fields, there is nevertheless interaction between the two. The Whaling Case is an example of such interaction. The judgement rendered on 31 March 2014 by the International Court of Justice (“the court”) on the Whaling in the Antarctic Case (Australia v Japan; New Zealand intervening) raises the issue of scientific or technical matters in the proceedings before the court. In some instances, therefore, judges must analyse scientific evidence to reach a legal decision. This article is an attempt to understand how the court in the Whaling Case dealt with the science at the heart of the case. Specifically, the article tries to understand the method by which the court addressed the question of what “scientific purposes” could mean with regards to Japanese Whale Research Program under Special Permit in the Antarctic (“JARPA”) II. Under JARPA II, Japan’s purported research objective was to gather scientific data using lethal and non-lethal methods to institute a management regime for the sustainable usage of whale resources. In order to do so, the whales were killed using an explosive harpoon and their stomachs were opened and investigated to measure the quantity and the type of marine animals that they had eaten. Subsequently, the whales were sold and eaten.

Whaling “for the purposes of scientific research” is permitted by Article VIII, paragraph 1, of the International Convention for the Regulation of Whaling. The term “scientific research” has not been defined in the treaty. The main question before the court in the Whaling Case was whether the whaling activities under JARPA II by Japan were for “scientific research” or for other purposes, specifically commercial whaling. Thus, the court called on experts to help it to answer this question.

Relying on the expert opinion, the court did not find it necessary to provide its own definition of “scientific research”. While rejecting the four criteria for adjudging “scientific research” given by the Australian expert, the court also failed to explain “scientific research” and the grounds for its rejection (see para 74 here). The understanding of the term “scientific research” cannot merely depend on a State’s perception. Thus, the court has missed an opportunity to define “science research” and set a precedent for future cases.

As pointed out in the dissenting opinion by Judge Yusuf (see para 29 here), the court lacked a beginning point, i.e., the definition of “scientific research”. Consequently, the court, in its adoption of the two-step process for reviewing JARPA II, reached a contradictory position. The court stated that it would first review if the programme involves scientific research and if the method of scientific research used helped Japan in achieving the objectives of JARPA II. However, this two-step process led the court to a contradictory position – how can activities which the court found to be “scientific research” be carried out under special permits granted “not for purposes of scientific research”? (also see para 227 here).

While the court concluded that Japan’s hunting of whales was not for “scientific purposes”, it was careful not to go into the question of the actual purpose of Japan’s whale killing. It also did not address whether JARPA II was being utilised for commercial whaling in the guise of “scientific research”. 

On the one hand, it could be argued that the final decision of the court was correct, even if the court had to use convoluted reasoning in finding that the special permits under JARPA II did not fall within the provisions of the Whaling Convention. The court was nonetheless wrong in one facet of its decision. The court should have closed the possible loophole in the law by defining “scientific research”, thereby curbing future litigation on the matter. The implications of such a legal gap might allow countries like Japan with interest in commercial whaling to use “scientific research” dishonestly to mask their interests.

It is disturbing that intelligent and significant marine animals were killed in such a gruesome manner. The conclusion reached by the court pleases those who favour permitting the whales to live freely in their habitat.

Introducing Gnanavi Gummadi

It is our great pleasure to introduce our new IntLawGrrls contributor Gnanavi Gummadi. Gnanavi is a final year student at Jindal Global Law School, India. She is one of the founding members of the student-run blog Articulate Justice that publishes articles and cartoons on contemporary legal issues majorly surrounding the COVID-19 pandemic. At her university, she works at the Legal Aid Clinic and the Workers Welfare Society. She has previously held internships at the State Human Rights Council, Jammu and Kashmir Coalition of Civil Society (JKCCS), and various litigation firms. Currently, she is working on the intersection of the Black Lives Matter Movement and cartoons under her university professor. Her interests lie in studying and writing about Public International Law, especially the Law of Outer Space, and political and legal philosophy. She also loves exploring the relationship of law with visual culture. In her spare time, she enjoys drawing political cartoons and courtroom sketching.

Heartfelt welcome!

Using Open-Source Investigations to Protect and Preserve Cultural Heritage

For millennia, cultural heritage has been a target of war and conflict. Around AD 330, Emperor Constantine stole a bronze set of Greek horses to place in his new capital. Despite modern laws and international norms that protect cultural rights and prohibit their destruction and removal, cultural heritage continues to be a target in conflict. In 2015, ISIS destroyed the ancient city of Palmyra in Syria, including the main Temple of Bel.

Cultural heritage includes both tangible heritage, such as paintings, sculptures, monuments, and archaeological sites; and intangible heritage, such as traditions, rituals, and performing arts. The right to culture is protected in the Universal Declaration of Human Rights, the Rome Statute of the International Criminal Court, and the Hague Convention. As the UN Special Rapporteur in the field of cultural rights stated, “Cultural heritage is significant in the present, both as a message from the past and as a pathway to the future. Viewed from a human rights perspective, it is important not only in itself, but also in relation to its human dimension, in particular its significance for individuals and communities and their identity and development processes.”

In 2012, a jihadist group, Ansar Dine, targeted mosques, mausoleums and other cultural heritage sites in Mali in an attempt to rid the area of a Sufi-influenced form of Islam practiced in the region. The former UN Special Rapporteur in the field of cultural rights condemned this destruction, explaining the importance of cultural heritage: “‘The destruction of tombs of ancient Muslim saints in Timbuktu, a common heritage of humanity, is a loss for us all, but for the local population it also means the denial of their identity, their beliefs, their history and their dignity.’”

Holding the perpetrators of cultural heritage destruction accountable

The use of open source investigations to document and verify human rights abuses is becoming a common strategy in the human rights field. The process of identifying, collecting, and/or analyzing open source information as part of an investigative process includes both verifying and authenticating abuses, as well as documenting evidence of abuse. Open source investigations use news articles, blogs and websites, social media posts, satellite imagery, maps, statistical information, geolocation, reverse image searches, and other techniques to document and verify evidence of human rights abuses. For instance, in the case brought in the International Criminal Court against al Mahdi, a member of Ansar Dine, the prosecution provided evidence of videos of the destruction and a geolocation report. Al Mahdi ultimately pled guilty to the charges of “intentionally directing attacks against 10 buildings of a religious and historical character in Timbuktu, Mali.”

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Go On! American Society of International Law Midyear Meeting

The American Society of International Law announced open registration for its 2020 Midyear Meeting. The virtual conference will be held on Thursday and Friday, October 29-30. The meeting will host many events, including its Research Forum, which features cutting-edge international law scholarship by more than 70 authors. The meeting also has a Practitioner’s Forum, which will have a panel on “Global Issues Related to Arbitrating Data Breaches and Privacy Rights.” Participants will also be able to engage with each other, presenters, and discussants throughout the conference.

The virtual meeting is hosted by Case Western Reserve University Law School. Click here for details.