BOOK LAUNCH ~~~ INTERNATIONAL COURTS AND THE AFRICAN WOMAN JUDGE: UNVEILED NARRATIVES (ROUTLEDGE, 2018)

 

The Institute for African Women in Law and the Wilson Center Women in Public Service Project jointly launched the book, International Courts and the African Woman Judge: Unveiled Narratives (Routledge, 2018) edited by Dr. Josephine Jarpa Dawuni and Hon. Judge Akua Kuenyehia (Former Judge of the International Criminal Court), with a foreword by Hon. Judge Gabrielle Kirk McDonald (Former Judge/President of the ICTY and Former Arbitrator, Iran-US Claims Tribunal). 

Gwen Young, Director of the Wilson Center Women in Public Service Project introduced the panel.

Dr. Josephine Jarpa Dawuni opened the discussion, highlighting her motivations for editing this volume, noting among others the importance of drawing on the theories of postcolonial feminism, legal narratives and feminist institutionalism to analyze the place of women from the continent of Africa on international courts. She noted, “Why are we looking at African women judges? Why not the fact that she is a judge, she is qualified, she can do it. Legal Narratives help us understand their trajectory to the international bench.”

 

 

Prof. Nienke Grossman discussed the work of International Court of Justice Judge Julia Sebutinde (Chapter 3 below).

 

Prof. Rachel Ellett’s chapter focused  on Judge Kellelo Mafoso-Guni of the African Court of Human and Peoples’ Rights (ACtHPR) (Chapter 7 below).

Counsellor Christiana Tah, Former Minister of Justice, Republic of Liberia, provided remarks as a discussant. She noted;

“We [women] want to participate, we want to be a part of the process.”

“It’s important to uplift African women, but it’s not all about race, it’s about uplifting all women.”

“One of the things I always think about when discussing Africa and the judiciary is that you have to look at it as a dichotomy because of the history of colonization. How do you harmonize the two?

                                          Other Chapters in the Book Include

Chapter 1: Introduction: Challenging Gender Universalism and Unveiling the Silenced Narratives of the African Woman Judge

By Josephine Jarpa Dawuni

This chapter provides the theoretical and conceptual framework around which the book is developed. By engaging in an overview and analysis of existing scholarship on gender and judging, it questions the gaps in existing theoretical perspectives and exposes questions on gender diversity which have not been addressed. It discusses the method and structure of the book.

 

 Chapter 2: Women Judges in International Courts and Tribunals: The  Quest for Equal Opportunities

 By Judge Florence Ndepele Mwanchande Mumba

This chapter is a personal reflection on the life and journey of Justice Florence Ndepele Mwachande Mumba. The chapter traces her life growing up in Zambia, attaining a legal education and becoming the first woman High Court Judge in the Zambia. In 1997, Judge Mumba was elected to the United Nations International Criminal Tribunal for the former Yugoslavia.  She served as a Trial Judge for six years. She presided over, the Prosecutor vs Anto Furundzija, IT-95-17/1; the Prosecutor vs Kunarac  et al, IT-96-23-T; the Prosecutor vs Simic et al. IT-95-9/T. Convictions in these cases included torture as a violation of laws or customs of war, outrages upon human dignity, rape as torture, enslavement, and crimes against humanity for persecution, cruel and inhumane treatment and beatings.  These were among the first convictions for ICTY where rape and sexual violence were pronounced as crimes against humanity, war crimes and torture. Judge Mumba presided over two guilty pleas, The Prosecutor vs Drazen Erdemovic, IT-96-22 and the Prosecutor vs Milan Simic, IT-95-9/2. Judge Mumba’s view is that international crimes trials must be held in the territories where atrocities were committed for the benefit of indicted persons and the community. Statutory provisions for gender balance in international courts and tribunals are essential.

Chapter 3: Julia Sebutinde: An Unbreakable Cloth

By Nienke Grossman

This Chapter discusses the life story of International Court of Justice Judge Julia Sebutinde.  It highlights her determination and strength of character, while raising questions about gender, geographical background, race, ethnicity and judging, and international judicial selection procedures.  After detailing her biography before becoming an international judge, the Chapter turns to her selection to, experiences on and contributions to the Special Court for Sierra Leone, and subsequently, the International Court of Justice.  The Chapter contains a section on her advice to future generations, an analysis of why her story is significant, and finally, it suggests avenues for further academic research.

Chapter 4:  Akua Kuenyehia : Leaving a Mark Along the Journey for Human  Rights

 By Josephine Jarpa Dawuni

This chapter chronicles the life and journey of Justice Akua Kuenyehia, an academic, women’s rights activist and an international court judge. Using legal narratives as a tool for centering her experiences, the chapter presents monumental developments in her life as presented sometimes in her voice and situated within existing discourse on women, gender and feminist engagement with international law.

Chapter 5: Fatoumata Dembélé Diarra : Trajectory of a Malian Magistrate and Civil Society Advocate to the International Criminal Court

 By Sara Dezalay

A high-level magistrate and prominent civil society advocate in Mali, Judge Fatou Dembélé Diarra featured among the historic first bench of judges elected to the International Criminal Court (ICC) in 2003. This chapter gives prominence to the voice of Diarra herself, as an exceptional individual with an acute degree of reflexivity over her own trajectory, the options she had and the professional strategies she pursued, and further, that of her own country’s post-colonial history. In so doing, however, it strives to reconstruct the structural conditions that can help explain her path, in what was still a French colony, in 1949, to the ICC. It underlines, meanwhile, how Diarra’s trajectory can prove a powerful entry-point to account for the position of legal elites in post-colonial Mali, and further, the role played by her appointment to the ICC, as a woman and as an African, in fostering the authority of the court over time. 

Chapter 6: Judge Sophia Akuffo: Balancing the Equities

By Kuukuwa Andam and Sena Dei-Tutu

Justice Sophia was sworn in as the 13th Chief Justice of Ghana on June 19, 2017. Prior to this, Akuffo had served as the first female President of the African Court on Human and People’s Rights (ACtHPR) in 2012, as Vice-President of the ACtHPR in 2008 and as a Justice of the Supreme Court of Ghana since 1995. This chapter tracks Akuffo’s career from her birth in Akropong-Akuapem, in the Eastern Region of Ghana, to her appointment as the second female Chief Justice of Ghana. In particular, a selection of cases that Akuffo delivered judgments in will be analyzed as a means of contextualizing Akuffo’s legal philosophy. Additionally, this chapter will examine some of the challenges Akuffo faced as well as the lessons learnt during her legal career. In identifying the barriers that Akuffo encountered, this chapter considers the similarities between Akuffo’s experience and the experiences of thousands of female lawyers and judges working on the African continent; with a mind to highlighting avenues for increasing the participation of African women on International Courts. The chapter concludes with some observations and future research questions. 

Chapter 7: Justina Kellelo Mafoso-Guni: The Gendering of Judicial Appointment Processes in African Courts

By Rachel Ellett

Representation of women in domestic and international courts is essential to the legitimacy of those institutions. Over the last decade low representation of women judges has begun to be addressed through reform of appointment processes. However, reforming formal appointment mechanisms does not eliminate the gendered informal structures of judicial appointments. Justice Mafoso-Guni’s biography – first woman to the Lesotho High Court and the African Court of Human and People’s Rights (ACtHPR) – illustrates the pervasiveness of informal gendered institutions as an obstacle to women reaching the bench; both in Lesotho and the ACtHPR. Utilizing diachronic analysis, this chapter reveals the arch of Mafoso-Guni’s career trajectory and pauses to offer more in-depth analysis on her appointment challenges in Lesotho and to the ACtHPR.  Placing Mafoso-Guni’s appointment challenges in the broader context of increasing numbers of women to the bench more generally; her story highlights both the limitations and the gendering of individual agency in light of weak formal institutional commitments to gender parity. It further reveals the gendered power asymmetries present in the informal institutional mechanisms of both domestic and international judicial appointments. Judicial appointments perfectly illustrate the gendered institutional context in which women seek to carve a pathway to the bench.

Chapter 8: Elsie Nwanwuri Thompson: The Trajectory of a Noble Passion

By Rebecca Emiene Badejogbin

This chapter explores the trajectory of Judge Elsie Thompson from her background, to the Nigerian judiciary and onward as a Judge and eventually a Vice President of the African Court of Human and People’s Rights. It reveals the distinctiveness of her experiences and trail blazing paths, and is a demonstration of the impact of various factors such as socio-economic and political, as well as cultural location, education, contextual experiences, institutional opportunities and personal agency on the ascendancy of African women to transnational courts, and according to her, divine providence. The narration and analysis of these experiences engage a convergence of theories that touch on the impact of institutional arrangements on women, and the lingering effects of political, economic and cultural factors on women’s access to political appointments in a post-colonial context. While her experiences generally agree with literature on the subject of women’s ascendancy to these courts, this chapter closely interrogates her ascent as an African woman to a transnational court and states that not only does her presence in the court create judicial diversity, she has made ‘valuable contributions to jurisprudence and the development’ of regional laws.

 Chapter 9: Conclusion: International Courts and the African Woman Judge– Unlocking Doors, Leaving a Legacy

By Josephine Jarpa Dawuni and Akua Kuenyehia

This chapter provides a recap of the goals of this project. It summarizes the key findings, amplifies questions yet to be explored and sets an agenda for the development of future research on women and judging in Africa. It also sets a plan for maintaining the momentum made with African women’s access to international courts and tribunals.

 Copies of the book can be purchased on Amazon.com 

For speaking engagements, email: info@africanwomeninlaw.com

 

Advertisements

Nationwide Class Action in the U.S. Protects the Right to Seek Asylum

A Seattle-based federal court has stepped in to protect the right to seek asylum, deciding in favor of a nationwide class constituting thousands of asylum-seekers in a case with important implications for the Trump administration’s recently-announced quota policy for U.S. Immigration Courts. On March 29, 2018, Chief U.S. District Judge for the Western District of Washington Ricardo S. Martinez issued an 18-page order granting the plaintiffs’ motion for summary judgment in the Mendez Rojas v. DHS case. Judge Martinez’s forceful decision shores up the due process rights of asylum-seekers under the Fifth Amendment to the U.S. Constitution and statutory rights grounded in the federal Immigration and Naturalization Act and Administrative Procedure Act, as well as protections enshrined in international refugee law more broadly.

The named plaintiffs in the suit are asylum seekers from Guatemala, Honduras, Mexico, and the Dominican Republic. Collectively, they stand in for two classes of individuals certified by the Court last year, those who declared a fear of return to their home countries and have undergone a credible fear interview and been released to pursue their asylum claims, and, second, those released without first undergoing the credible fear interview. None of the named plaintiffs received notice of the one-year filing deadline or a meaningful mechanism to timely file their asylum applications. Asylum seekers must file their asylum applications within one year in order to receive asylum protection.

The class action lawsuit, brought by counsel from the American Immigration Council, Northwest Immigrants Rights Project, and Dobrin & Han, PC, included asylum seekers released from detention who are in removal proceedings in immigration court and who have yet to be placed into removal proceedings and who were not given notice of the one-year filing deadline to apply for asylum.

The Court agreed with the plaintiffs that the lack of notice to asylum seekers violates the congressional intent behind the one-year filing deadline. Created by Congress in 1996, the one-year filing deadline was ostensibly designed to guard against fraudulent asylum claims. The law’s most ardent supporters, however, made clear that the implementation of the deadline should not impede protection for genuine asylum-seekers. During discussions on the Senate floor, for instance, Sen. Orrin Hatch (R-Utah) stated:

Like you, I am committed to ensuring that those with legitimate claims of asylum are not returned to persecution, particularly for technical deficiencies. If the time limit is not implemented fairly, or cannot be implemented fairly, I will be prepared to revisit this issue in a later Congress.

The Court also relied on U.S. Supreme Court precedent, specifically Mullanenoting that procedural due process requires that notice be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” In this case, the Court found that the publically available DHS documents discussing the one-year filing deadline were not reasonably calculated to provide adequate notice to the asylum-seeking plaintiffs. The Court note that some of the asylum seekers in the class believed they had actually applied for asylum by virtue of undergoing a credible fear interview, in which they explained their fear of return to their home country in great detail to a USCIS asylum officer.

The Court also highlighted the problems caused by informing someone that they will be instructed on how to apply for asylum in court in the future, while the court dates referenced often take place well beyond the one-year filing deadline imposed. My 2016 article in the Wisconsin Law Reviewexamines the problems at the intersection of our burgeoning immigration court backlog and the one-year filing deadline in greater detail.

Judge Martinez signaled his sympathy regarding the extreme vulnerability of asylum-seekers, grounding his decision in the fact that “many class members have suffered severe trauma, do not speak English, are unfamiliar with the United States’ complicated immigration legal system, and do not have access to counsel.”He went on to conclude that DHS’ failure to provide adequate notice is a violation of the Due Process Clause of the U.S. Constitution.

Responding to DHS’ argument that the Court owed deference to agency “procedure,” the Court stated simply, “no deference is owed to procedures that violate a statute or the Constitution.” Currently, there is a ping pong back and forth between the agencies overseeing the asylum process. Until a Notice to Appear is filed with U.S. Immigration Court, the court will not accept an asylum application. If a case appears likely to be headed for a court appearance, however, USCIS, which includes the asylum office, routinely denies jurisdiction. There is currently no actual deadline for ICE to file a Notice to Appear with immigration court, leaving asylum-seekers and attorneys in limbo and unable to meet the deadline–a “technical deficiency” in the purest sense.

Importantly, while declining to reach the constitutional argument for a meaningful application mechanism, the Court found that defendants’ failure to provide a uniform mechanism by which an asylum-seeker could actually timely apply for asylum, assuming she gained knowledge of the deadline, violated the asylum statute and the Administrative Procedure Act. The Court concluded by ordering DHS to provide notice of the one-year filing deadline to class members who have already been released. Further, Judge Martinez ordered that DHS give notice to future asylum-seekers prior to or at the time of release them from detention. DHS is also required to adopt and publicize uniform procedural mechanisms to ensure class members can timely file their asylum applications. Implementation and the reception from immigration judges nationwide to the decision remains to be seen. Already, advocates shared a report of a judge at the Arlington immigration court refusing to enter the Mendez Rojas decision into the record because he stated that the Executive Office for Immigration Review is not bound by the Administrative Procedure Act.

Assuming implementation is successful, this decision represents a win for asylum-seekers and brings greater clarity and organization to an already-overwhelmed and backlogged immigration court system. Judge Martinez’s order represents yet another instance in which the federal courts have intervened in administrative confusion to ensure constitutional due process and justice for immigrants. The decision is a step forward in upholding American values and adhering to our domestic and international legal obligations to protect refugees from return to countries where they would face a threat to their life or freedom.

Go On! The New York International Law Review’s 30th Anniversary Symposium

Description

The Symposium & Dinner celebrate the 30th Anniversary of the New York International Law Review (NYILR) by examining the unique role of New York State in international legal practice. This Symposium will bring together the lawyers, judges, scholars, arbitrators, policy makers and activists who engage in this global practice of law in New York. These experts will address how New York leads in these areas of international practice – where it succeeds, where it falls short and what trends in international practice we are likely to see in the decades ahead.

You may register for either or both events. Dinner is $125. The symposium is free, however registration is required.

Thursday, April 12 Dinner ($125)

Dinner will be held at the New York Athletic Club on Thursday, April 12, 2018 beginning at 6:30 pm. Space is limited. Please RSVP early.

6:30 p.m.— Cocktail Reception (President’s Room)

7:30 p.m.-10:30 p.m. — Dinner (Olympic Suites 1-5)

Dinner Speaker: D. Stephen Mathias, Assistant Secretary-General for Legal Affairs at United Nations

Friday, April 13 Symposium (Free)

The Symposium will be held on Friday, April 13, 2018 at St. John’s University School of Law, 8000 Utopia Parkway, Queens, NY.

The entire day’s program will also qualify for 4.5 non-transitional practice CLE credits with an additional $75 payment. If you want CLE credit, please 1. Register on this site and 2. Download and return the CLE form. (St. John’s University School of Law has been certified by the New York State Continuing Legal Education Board as an Accredited Provider of Continuing Legal Education in the State of New York.)

8:30 a.m.- 9:15 a.m. — Registration and Continental Breakfast

9:15 a.m. — Introductory Remarks

Professor Peggy McGuinness, Director of LL.M. in Transnational Legal Practice Program &
Co-Director of St. John’s Center for International and Comparative Law

9:30 a.m.- 11:10 a.m. — Panel One: New York and Cross-Border Dispute Resolution

This panel will address the ways in which New York law has become the standard law to apply to international commercial contracts – how New York courts and, increasingly, New York mediation and arbitration providers have become leaders in cross-border dispute resolution.

Moderator: Nancy M. Thevenin, Esq., Chair of the New York State Bar Association International Section & Adjunct Professor of Law at St. John’s University School of Law

Panelists: E. Alexandra Dosman, Dosman Law & New York International Arbitration Center; James P. Duffy IV, Esq., Partner, Baker & McKenzie, New York, NY; Anibal Martin Sabater, Esq., Partner, Chaffetz & Lindsey LLP, New York, NY; Yasuhiro Saito, Esq., Partner at Saito Law Group PLLC, New York, NY

11:20 a.m.-1:00 p.m. — Panel Two: International Deals and Investment in New York

Panelists will discuss how New York serves as the center of international deal making, including cross-border mergers and acquisitions, real estate development and investment, and international licensing of intellectual property. Panelists will also address challenges to New York legal primacy from other financial centers in Europe, China and elsewhere.

Moderator: Professor Christopher J. Borgen, Co-Director of St. John’s Center for International and Comparative Law

Panelists: Richard F. Hans, Esq., Managing Partner and Global Co-Chairman of Financial Services Sector DLA Piper, New York, NY; Mark A. Meyer, Esq., Member, Herzfeld & Rubin, P.C., New York, NY; Christina Tsesmelis, Esq., Head of Global Anti-Corruption and AML, Privacy Officer at Neuberger Berman; Amanda Rottermund, Esq., Withersworldwide, New York, NY

1:15 p.m.-2:25 p.m. — Lunch

Lunch Speaker and Recipient of Award for Distinction in International Law and Affairs: Judge Iris Yassmin Barrios Aguilar, President, Guatemala High Risk Court

2:30 p.m.- 4:10 p.m. — Panel Three: Global Politics and Public International Law in New York

Panelists will discuss New York’s participation and influences in global problems and how solutions are reached through international cooperation and international law, particularly in the areas of efforts to address environmental harms, human rights, and terrorism.

Moderator: Professor Peggy McGuinness, Director of LL.M. in Transnational Legal Practice Program & Co-Director of St. John’s Center for International and Comparative Law

Panelists: Anil Kalhan, Esq., Associate Professor of Law at Drexel University Thomas R. Kline School of Law & Chair of International Human Rights Committee at New York City Bar Association; Sarah Friedman, Esq., General Counsel for the Mayor’s Office for International Affairs; JoAnn Kamuf Ward, Esq., Director of the Institute’s Human Rights in the US Projector at Columbia Law School

4:15 p.m-5:30 p.m. — Cocktail Reception

You may register here.

ECOWAS Court clarifies its human rights jurisdiction: no time limit barring human rights complaints and continuing violations are recognised

ECOWASToday, the ECOWAS Community Court of Justice clarified a long-outstanding point of contention: there is no time limit for filing complaints concerning human rights violations. This was held in the case of FAJ and Others v. The Gambia. The Court also clarified that it accepted the doctrine of continuing human rights violations. Judgment was read in court, with the full written judgment expected to be published next week.

Whether or not the ECOWAS Court had a time limit that could bar its jurisdiction over human rights claims brought before it had been unclear for some time. In the case of Femi Falana & Anor. v. The Republic of Benin & 2 Ors. the Court looked at Article 9 of the Court’s Supplementary Protocol to determine whether an application filed in October 2007 regarding an alleged human rights violation that had taken place in April 2004 was admissible. Article 9 sets out the Court’s jurisdiction, specifying in 9(1) and (2) its jurisdiction regarding the interpretation and application of the Community Treaty, directives, and regulations, and acts or omissions by its officials. This is followed by Article 9(3), which read as follows:

“3. Any action by or against a Community Institution or any Member of the Community shall be statute barred after three (3) years from the date when the right of action arose.”

This is then followed by Article 9(4), which sets out the Court’s jurisdiction in human rights matters:

“4. The Court has jurisdiction to determine case of violation of human rights that occur in any Member State.”

No specific indication regarding the time limit in human rights matters – as is present regarding actions brought against the Community or its members – is included in the Protocol. In the Femi Falana case, however, the Court interpreted the time limitation in Article 9(3) as applying to human rights claims as well. As freedom of movement did not constitute a “gross violation of human rights”, in which case no statute of limitation could have applied in accordance with UN GA Resolution 60/147.

The Court clarified today that, for interpretation purposes, the French version of the Supplementary Protocol is the preferred version. It reads as follows:

“L’action en responsabilite contre la Communauté ou celle de la Communauté contre des tiers ou ses agents se prescrivent par trois (3) ans à compter de la réalisation des dommages.”

Accordingly, the Court said, claims for the enforcement of human rights against Member States cannot be barred by the limitation period stated in the Supplementary Protocol. The Court explicitly stated that any previous decisions stating the contrary had hereby  been overruled.

The Court also took the opportunity to address the issue of continuing violations, which so far had never been clarified explicitly by the Court. While in the case of Alade v. Federal Republic of Nigeria the Court considered on the merits a case filed in 2011 by a Nigerian citizen who had been imprisoned since 2003, the issue of continuing violations was not expressly considered in the judgment.  A similar approach was taken in the case of Hydara v. The Gambia.

The Court cleared up any doubts today, when it stated that it recognised the concept of a “continuing harm” in relation to the applicants who had brought a claim concerning their existence in exile from The Gambia – the Court relied on the case of Randolph v. Togo, decided by the UN Human Rights Committee, to reach the conclusion that forced exile was a human rights violation of a continuing nature.

With this decision, the ECOWAS Court establishes itself as currently the most progressive human rights court in Africa when it comes to temporal jurisdiction. Within the region, the East African Court of Justice – which does not have explicit human rights jurisdiction, but can consider complaints about a violation of the East African Community Treaty and also concern human rights – is the most strict. The Court maintains a time limit of 2 months after the violation occurred for filing a claim before it (Article 32 of the Treaty Establishing the East African Community) and in the case of Emmanuel Mwakisha Mjawasi and Others v. The Attorney General of Kenya explicitly rejected the concept of continuing human rights violations. The African Court on Human and Peoples Rights’ rules do not impose an explicit time bar to human rights claims, but do state that applications should be filed “within a reasonable time from the date local remedies were exhausted” (Rule 40 of the Court’s Rules of Procedure). In Mtikila v. Tanzania, the African Court confirmed its recognition of the doctrine of continuing violations.

Looking further afield, the Inter-American Commission of Human Rights, which can refer cases on to the Inter-American Court maintains a time limit of 6 months (Article 32 of the Rules of Procedure). The European Court of Human Rights’ time limit to receive applications is 6 months upon exhaustion of (effective) domestic remedies (Article 35(2) of the European Convention), which will be shortened to 4 months when Protocol No. 15 to the European Convention enters into force.

The ECOWAS Court’s judgment helps in furthering its firm establishment as a human rights court. The Court reportedly ruled on around 249 cases since it commenced its activities in 2001. While statistics on the exact number of human rights applications and rulings are not available, the Court’s human rights mandate has, in the Court’s own words “become the centerpiece of its judicial activities.”

Nani Jansen Reventlow is the former Legal Director of the Media Legal Defence Initiative, one of the parties representing the applicants in this case, and was involved in litigating the case until her departure from MLDI in June 2016.

Opportunity to Advance a Development Dimension to Investment Facilitation

The Joint Ministerial Statement on Investment Facilitation for Development adopted on the last day of the 11th World Trade Organization (WTO) Ministerial Conference (for our discussion on the Ministerial click here), signals an opportunity to advance a development dimension to investment facilitation. The Joint Ministerial Statement called for the start of structured discussions with the aim of developing a multilateral framework for facilitating foreign direct investments (FDI).

The 70 WTO Member States that endorsed the Joint Ministerial Statement agreed to begin discussions early in 2018 to develop the elements of the framework to:

  • improve the transparency and predictability of investment measures;
  • streamline and speed up administrative procedures and requirements;
  • enhance international cooperation, information sharing, the exchange of best practices, and relations with relevant stakeholders, including dispute prevention; and
  • seek to clarify the framework’s relationship and interaction with existing WTO provisions, with current investment commitments among Members, and with the investment facilitation work of other international organizations.

The overall goal is to create a more “transparent, efficient, and predictable environment” for facilitating cross-border investment. These outlined elements appear to focus on creating a platform that will address the “resource curse” – the high levels of poverty and inequality present in many oil-rich countries and other developing/emerging economies with the “greatest natural resource endowments”.

The underlying assumption is that the framework is needed to provide greater accountability and transparency. We believe this is only a partial solution to the challenges that developing countries face with regards to FDI. These discussions provide an opportunity to advance a development dimension to investment facilitation by also providing rules of engagement to enhance development-oriented and sustainable outcomes for FDI.

FDI & Developing Countries

The majority of developing countries need foreign direct investment to foster economic growth and development. FDI can be a valuable tool to exploit resources and build production facilities while creating jobs and infrastructure in these countries. At the same time, because for the most part this investment is introduced and controlled by private companies, there is a tension that can, and often does, arise between the goals of private international capital and a country’s development needs.

In an earlier post, we discussed the PBS documentary, The Big Men, which tells the story of the discovery of the first commercial oil field in Ghana’s history. As events unfold, the Texan-based venture capitalists who bore all the financial risk butt heads with a newly-elected government whose officials refuse to endorse the initial agreement allocating to the investors the overwhelming majority of the profits. Juxtaposed with these events is the story and images from Nigeria’s Niger Delta where the “resource curse” is plain for all to see. The dire poverty, environmental degradation and the violence in that oil-rich region add poignancy to the position of the Ghanian officials, even as one wonders about their real motives.

For the Texan-based investors (which included a Ghanian who had initially discovered the resource but lacked the capital to fully exploit it) the issue was couched in the language of risk, adequate return on their investment, as well as respect for the initial contract signed with the Ghanian government. For the Ghanians, the issue was discussed in terms of their need to be able to use the resources located on their sovereign land to properly house, feed, and educate the populace.

The events that unfold in Ghana illustrate the tensions that can exist between the goals of private international capital and a country’s development needs. On the one hand, we have the private venture capitalists who invested where no one else would probably have. Ghana was not known for its oil resources. In return, however, they demanded a hefty return on their investment. But, does any government have the right to sell a country’s birthright to these investors? Yet, of what use to the country is the oil, or the diamond, or the gold left unmined?

How does the framework provide an opportunity to advance a development dimension to investment facilitation?

The Framework’s Development Dimension

The Joint Ministerial Statement recognizes the “dynamic links between investment, trade and development”. The Members also agreed that “facilitating greater developing and least-developed Members’ participation in global investment flows should constitute a core objective of the framework”.

To this end, the Members will seek to assess the needs of developing and least developed country Members to implement the multilateral framework so that technical assistance and capacity building support can be made available to address these identified needs. An integral part of the framework will be the right of Members to meet their policy objectives.

The policy objectives of responsible governments include helping their citizens gain access to jobs, decent housing, roads, education and other social services. Rich-oil countries with energy-deprived citizens is an untenable outcome. So are hotels built with foreign capital and by workers who live in shacks across the street.

Rules are needed to provide guidelines to help honest governments and fair-minded investors determine an equitable distribution of profits derived from exploitation of a country’s resources. These rules should provide tools to help countries negotiate fair deals. These rules should provide a pathway towards more development-oriented and sustainable outcomes for FDI.

These rules can and should be incorporated within the elements of the multilateral framework for facilitating foreign direct investments.

(Cross-posted from DevelopTradeLaw blog)

Dubious negotiations in New York: Did France and the UK come to blow it up?

IMG_3792

From 4 to 14 December 2017, the States Parties to the International Criminal Court (ICC) met in New York City to activate the Court’s jurisdiction over the crime of aggression. This marks a crucial step for international criminal justice. Since Nuremberg, no international criminal tribunal has been empowered to prosecute aggressive war-making. The activation was expected to be comparable to a mere turning on of lights, as the most controversial issues, such as the definition of the crime, were already settled at the 2010 Kampala Conference. Seven years later, however, this expectation turned out to be a naïve dream. It is regrettable that especially those states that sat in judgment in Nuremberg were the fiercest opponents to the activation of the Court’s jurisdiction over the crime of aggression. This article aims to reveal the dubious attempts by France and the UK to hamper the decision-making process at the 16th Assembly of States Parties (ASP) in New York.

Negotiating position in conflict with the genesis of the Kampala compromise

States Parties, including France, emphasized in their opening statements that they did not want to reopen negotiations. In the end, they failed to keep that promise. France and the UK brought back to the negotiating table what had been rejected in Kampala. Both states pushed for the adoption of a jurisdictional opt-in system for state referrals or proprio motu investigations. Hence, the ICC shall exercise jurisdiction over nationals of a State Party or on its territory only if that state opts in by accepting or ratifying the aggression amendments. Seven years ago, the final compromise between the opt-in supporters and defenders of the existing no-consent regime of Article 12(2)(a) ICC Statute was reached by establishing an opt-out system in Article 15bis(4). Accordingly, the ICC may exercise jurisdiction over a crime of aggression, arising from an act of aggression of a State Party, unless that state has made an opt-out declaration. Nothing in Article 15bis(4) suggests, however, that a prior ratification by the aggressor state is required. Such an interpretation rather conflicts with the described genesis of the Kampala compromise. Unfortunately, historical interpretation is a strong argument only as long as people can remember the genesis of a norm. The time lapse was a key advantage for strengthening the France/UK position. They could make a second attempt to push the compromise toward their preferred jurisdictional regime. This time, the opt-in regime finally found its way into the adopted resolution. Except for Security Council referrals, the ICC can prosecute crimes of aggression only where committed in conflicts between ratifying States Parties.

No intention to compromise until the very end

The opt-in regime was adopted because France and the UK had no intention to compromise while States Parties overall were committed to reach consensus. Consensus is the way to strengthen the Court, they said. In the end, consensus was the way to give the minority, France and the UK, a de facto veto right. Due to the constant resistance by France and the UK, supporters of the opt-out camp even offered a pragmatic proposal that undermined the rationale of the opt-out system. In Kampala, the idea behind forcing states to formally opt out was to raise the political barrier. In contrast, the pragmatic proposal would have established a softer opt-out regime with various ways to avoid prosecutions without losing face. To illustrate that point, the proposal exempted from declaring an opt-out those states that had previously expressed their position of non-acceptance in the Report on the Facilitation. Thus, there was no need for the firm defenders of the opt-in regime (France, UK, Canada, Colombia, Norway) to make any embarrassing statement in the future. Moreover, the proposal allowed simple statements of non-acceptance upon adoption or after one year of consideration without the moderating spirit (or peer pressure) of these international get-togethers. Despite these concessions, France and the UK struck out all pragmatic provisions from the draft resolution and replaced them with their opt-in regime on the very last day of the ASP. Criticizing other proposals for being one-sided is one thing. Bringing up a proposal based on one’s initial position after nine days of intensive negotiations is simply hypocritical. But France and the UK were probably aware of their stronger negotiating position. As long as others strived for consensual activation, they could come up with exaggerated claims.

Against the reaffirmation of judicial independence

Although both proposals, the pragmatic proposal as well as the pure France/UK one, eventually failed to reach consensus, France and the UK continued to play the game. When the Vice-President of the ASP made one last attempt and presented a draft resolution that was supposed to be acceptable for all sides, France and the UK were presumptuous enough to request “minor changes”. Why? Even though the draft was based on their preferred opt-in system, it contained a shocking operative paragraph: A paragraph that reaffirmed the judicial independence of the Court. Montesquieu would have been proud of his home country. To highlight the absurd discussions on removing this paragraph, even South Africa, a state that had previously reiterated its intention to leave the Court, spoke up for the judicial independence of the ICC. In the face of strong opposition from other states, France and the UK had to cave in on that point.  Yet given that this draft resolution was not open to negotiations, merely suggesting any modifications could have jeopardized the activation. Hence, one may wonder whether France and the UK were truly committed to activating the jurisdiction over the crime of aggression.  Throughout the ASP, they ignored what had been agreed on in Kampala, they were unwilling to compromise and pushed the limits of their de facto veto right. Fortunately, states still managed to achieve activation, but it came at a price. The ICC will be limited to prosecuting crimes of aggression committed in conflicts between the 35 ratifying states. None of them is known for its current interest in perpetrating acts of aggression towards other states.

 

“Mind the Gap”- ICC ASP Side Event on Progress in Drafting a Convention on the Prevention and Punishment of Crimes against Humanity

1

Participants attending the Side Event.

On December 11, 2017, the Harris Institute hosted a well-attended Side Event entitled “Progress in Drafting a Convention on the Prevention and Punishment of Crimes against Humanity” at the Sixteenth Session of the Assembly of States Parties of the International Criminal Court. The side event was co-sponsored by the Republic of Chile, the Federal Republic of Germany, the Hashemite Kingdom of Jordan, the Republic of Korea, and the Republic of Sierra Leone at UN Headquarters in New York.

Picture1

Side Event Panelists (left to right): Judge O-Gon Kwon, Professor Sean Murphy, Professor Leila Sadat, Professor Charles Jalloh, Professor Claus Kress, and Mr. Solomon Sacco.

The panel featured Special Rapporteur Sean Murphy, Professor Charles Jalloh, Professor Claus KressPresident-Elect of the ASP Judge O-Gon Kwon, Solomon Sacco from Amnesty  International, and Professor Leila Nadya Sadat. The side event provided a briefing by the Special Rapporteur on the preamble, draft articles and annex adopted by the UN International Law Commission (ILC) in 2017 on the proposed crimes against humanity (CAH) convention. Then expert panelists commented briefly on the Commission’s work from their perspectives, followed by interventions from the audience.

Professor Sean Murphy began by providing a summary of the Commission’s work since the project was launched in 2014. The draft articles adopted by the Commission on its first reading fall into five general areas: prevention of CAH (articles 2, 4, and 5); investigation and prevention of CAH (articles 3 and 6); rights of the alleged offender and rights of victims, witnesses, and others (articles 11 and 12); inter-state cooperation (articles 13, 14, and the annex on mutual legal assistance); and inter-state dispute settlement (article 15).

s

Professor Charles Jalloh

Professor Charles Jalloh, also a member of the ILC, noted the tremendous progress of the Commission on this significant project. He noted that the legal text has the potential to become a treaty which is significant for the international community. He discussed the pressing need to have a CAH convention to “mind the gap” in international criminal law. Genocide, CAH, and war crimes are all considered international core crimes; however, while we have a Genocide Convention and the 1949 Geneva Conventions covering war crimes, the world still lacks a convention on preventing and punishing CAH.

d

Professor Claus Kress

Professor Claus Kress suggested that the provisions in the draft convention could enhance the coherency of international criminal law. With this draft convention, Bosnia and Herzegovina v. Serbia and Montenegro could have been decided differently because the Court would have been able to analyze the situation in a more legally comprehensive manner. He also noted the possibility of the draft convention having a positive spill-over, an inspirational effect.

f

Left to right: Professor Sean Murphy, Judge O-Gon Kwon, and Professor Leila Sadat.

 

ASP President-Elect Judge O-Gon Kwon gave his full support to the ILC’s work, noting the need to enhance the complementarity regime of the International Criminal Court.

g

Mr. Solomon Sacco

 

Solomon Sacco of Amnesty International observed that the draft was a good start but found room for improvement, in particular as regards to the non-refoulement, mutual legal assistance, and rights of victims provisions. He specifically advocated for a clause prohibiting amnesties, the use of military tribunals, and reservations.

Continue reading