Friday, February 29, 2008

The Rosy Future of International Law: Redux

It's that time of year again -- I'm in New York today for the Junior International Law Scholars' annual workshopping conference (generously hosted by the New York Law School Law Review and Center for International Law). Yet again, the conference is dominated by women; 22 of 35 participants are female. The panels, which are divided into four themes -- Bridging the Domestic/International Divide, International Security, International Human Rights, and Trade law -- break down to 9 female presenters and 3 male presenters, will all of the commentators being female (including our own Elena Baylis). The first and third panels are entirely female and the second has one male and three females. The balance runs the other way in the final panel (on trade), with two males, one female, and a female commentator. (We did let in two males to lead the lunchtime discussion on "engaged scholarship" but balance that with a session led by the two female organizers of the group, yours truly included). This breakdown does lend some credence to the theory that the dominance of women in the junior end of the field has to do with the ghettoizing of warm and fuzzy human rights issues as "female" -- a question we pondered about this time last year in posts here and here. But with women at this year's conference presenting articles such as "Protecting Rights Online: Access to Knowledge, Human Rights, and the International Regulation of the Internet," "Beyond Legality and Legitimacy: The Erosion of the Nonproliferation Norm," and "Deconstructing Overlaps Among Foreign Investment and Trade Regimes", there's a credible argument that we can do well more than just the "fluffy" stuff. In fact, I'd say that we're taking over the show . . .

'Nuff said

(Occasional item taking context-optional note of thought-provoking quotes.)

We’re beyond feminism. We’re into personism now.

-- Kathy DeLange, Texas-based 64-year-old retired school psychologist, interviewed by The New York Times

On this day

On February 29, ...
... 2008 (today), is celebrated Leap Year Day, the extra day squeezed into the calendar every 4 years "so that the calendar is in alignment with the earth's motion around the sun." Among traditions followed on this day is that which, in days long ago and as depicted in the 1908 postcard at right, gave a woman freedom to propose marriage rather than wait for a lagging bachelor to ask her. The arrival of a Leap Year also augurs the onset of 2 quadrennial events: a new U.S. Presidential election cycle and a new Summer Olympics, this year to be held, in Beijing, China.
... 1968 (40 years ago today) , the report of a bipartisan group appointed by U.S. President Lyndon Baines Johnson, formally titled the National Advisory Commission on Civil Disorders and known less formally as the Kerner Commission because its chair was Illinois Governor Otto Kerner, warned against the consequences of racism: "'Our nation is moving toward two societies, one black, one white -- separate and unequal.'" The commission contended that without immediate remedial change there'd be a "'continuing polarization of the American community and, ultimately, the destruction of basic democratic values.'"

Thursday, February 28, 2008

"The Politics of the Veil"

As recently reported by the New York Times and elsewhere, a debate is raging in Turkey about whether women should be banned from wearing headscarves (hijab) and other religious attire in public universities and other state institutions. (map credit)
Turkey imposed a ban to promote a vision of secular democracy that traces its broadest roots to the founding of the modern Turkish state by Mustafa Kemal Ataturk (below left) in the 1920s. (The law in question apparently does not single out women; certain types of beards and other forms of religious attire were also prohibited). Similar bans have been in place on and off since the days of Ataturk. In a departure from this long history, Turkey’s parliament recently backed constitutional amendments that would enable the lifting of the ban. These proposals have brought about protests in the streets seeking to maintain the ban and related protections for secularism (below right). (photo credit)
Such restrictions on religious expression implicate well-established international human rights protections. As in the 1st Amendment to the U.S. Constitution, many of the omnibus human instruments treaties include reference to the right to religion in conjunction with freedom of expression and thought. For example, the 1953 European Convention on Human Rights & Fundamental Freedoms (ECHR) at Article 9 articulates broad protections for freedom of thought, conscience, and religion that include the right to change one’s religion and to express it in community with others. The right to manifest one’s religion, however, is subject to a potent “clawback” clause at Article 9(2), which authorizes the state to prescribe limitations on the exercise of the right in certain circumstances. Article 9(2) reads:
Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society
► in the interests of public safety,
► for the protection of public order, health or morals, or
► for the protection of the rights and freedoms of others.

Similar language appears in the universal International Covenant on Civil and Political Rights (ICCPR), drafted more than a decade after the ECHR. Thus, the human rights treaties treat internal convictions differently than external religious manifestations: restrictions may be placed by the state on the latter so long as they are prescribed by law and necessary to achieve a legitimate, and enumerated, state aim.
Ironically, perhaps, the ban that Turkey is now considering lifting has already received the blessing of the European Court of Human Rights (below right).
That blessing came in response to a complaint by Leyla Şahin, a medical student at the University of Istanbul who was denied access to lectures, courses and two written exams because she was wearing a headscarf. Şahin alleged a violation of several articles of the ECHR and its Protocols: ECHR Articles 9 (freedom of thought, conscience and religion), 8 (right to respect for private and family life), 10 (freedom of expression), and 14 (prohibition of discrimination), and Article 2 of Protocol No. 1 (right to education). The case is Şahin v. Turkey.
In a judgment that was 5 years coming, the Grand Chamber (analogous to en banc review) rejected Şahin’s claims. While it ruled that the ban was an infringement on her rights of religious expression, the Chamber considered the restriction justified within the Turkish context. In particular, it ruled that Turkey was acting within its margin of appreciation when it considered the ban to be necessary to protect two legitimate state aims: the rights and freedoms of others and public order. With respect to the first articulated aim, the Chamber reasoned that that the headscarf is perceived by many as a compulsory religious duty. Allowing it to be worn in state institutions would impact the rights of others who chose not to wear it. (Here, the Court cited Dahlab v. Switzerland, in which the court held that a pre-school teacher wearing a headscarf may affect the freedom of conscience and religion of her very young charges). This, the Court reasoned, would threaten the right of gender equality that pervades the ECHR.
With respect to the second legitimate aim — the protection of public order — the Court ruled that the ban was justified in light of the danger posed by political Islam to the secular democratic state. The Court determined that Turkey was within its right to ban the headscarf in the face of extremist political movements that are seeking to dismantle the secular republic and impose their religious values on society as a whole. In this way, the Court accepted that the headscarf in Turkey had become a symbol of “political Islam” or “radical Islam” and that allowing women to wear the scarf is the equivalent of allowing political Islam to take root.
The Şahin decision turns largely on the concept of the margin of appreciation, a jurisprudential abstention that grants states some measure of discretion in implementing their human rights obligations in their unique historic, cultural, and social contexts. Similar to U.S. constitutional adjudication, the more fundamental the right and the more extreme the restriction, the narrower the margin of appreciation. In this case, Turkey was granted a wide margin of appreciation in light of the fact that the European Court could identify no European consensus on regulating religious symbols and thus declined to impose one on the rest of Europe. (This aspect of the ruling prompted a vigorous dissent from Françoise Tulkens, the Belgian judge, who lamented the lack of “European supervision” offered by the Court.) In addition, the Court noted that Turkey’s specific historical experience with fundamentalism and constitutional secularism justified the ban.
The Court did not independently consider Şahin’s other claims involving her right to education or privacy on the ground that those claims did not raise any issues separate from the claims under Article 9. The Court’s ruling considers the issues entirely in the abstract, even though there was no evidence in the record that the applicant sought to undermine the ethos of secularism (in fact there was testimony that she supported it), that there was any disruption at the university upon her wearing the scarf, that she subscribed to any extremist movements, or that her goal was to proselytise or attack the convictions of others. (An interview with Şahin is available here). Even in the abstract, the opinion lacks analytical rigor as to how the ban advanced the state’s legitimate goals of maintaining secularism and public order. This is the thrust of the lone dissent by Judge Françoise Tulkens (left). In her view, the principles of secularism, equality and liberty should harmonized, not weighed against each other. Furthermore, the sadly ironic result is that the European Court has disempowered women who choose the wear the headscarf out of religious conviction and ratified their exclusion from public universities — all in the guise of promoting gender equality. (It may also provoke a female “brain drain”; Şahin apparently now practices as a doctor in Vienna).
Although the case applies to just Turkey as a technical matter, the Court’s jurisprudence applies to all of Europe. This raises the question of how the Court would consider a similar ban in place elsewhere in Europe, such as the one in France (French tympanum with motto, below left). In 2004, France banned the wearing of “ostentatious” symbols symbols of religious affiliation in state institutions that on its face applies equally to Sikh turbans, Yarmulkes, headscarves, crosses, etc. In drafting a “neutral” statute the French Parliament claimed to be guided by the concept of laïcité, or state secularism, that purportedly undergirds the French state. And yet, the statute is inherently subjective, and the French majority practice will be taken as the standard against which all other practices will be compared. (In the U.S., this formulation would be immediately declared void for vagueness, because it allows for too much discretion in determining what constitutes “ostentatious.”) The French measure has been given judicial approval by the French Conseil Constitutionnel, which cited the Şahin case for support. (The best discussion of this issue, the French law, and the relevant decisions can be found in Joan Wallach Scott’s The Politics of the Veil (right), which inspired this post and its title.)
These concerns about the wearing of the headscarf create simplistic associations between religious traditions and Islamic fundamentalism, radicalism, and terrorism. This belies the fact that the headscarf and related articles of Islamic clothing (a useful guide may be found here) are in many ways unstable signifiers. Some who choose to wear the headscarf or other coverings find support—if not an obligation—for them in the Qur'an. In these circumstances, the headscarf and other coverings act as symbols of individual religious conviction, spiritual duty, and piety. In the “diaspora”—where the custom may not be mandated by religious edict, familiar pressure, or social norms—wearing the headscarf may express nostalgia for a homeland (perhaps never known), operate as a fashion statement or a form of adolescent rebellion against assimilationist parents, or assert an ethnic or religious identity against perceived cultural hegemony. Of course, how we dress is not devoid of political significance; religious fundamentalist movements have appropriated the headscarf and other coverings for political ends. In these contexts, mandating that women cover themselves can result in female subjugation by preventing women from fully participating in society. While ostensibly shielding women from the male gaze, the headscarf and other coverings may also operate to control and suppress women’s sexuality and sexual autonomy. As a symbol of chastity, the headscarf can also serve as a shaming symbol against others who resist the practice. The headscarf thus can be used as an expressive symbol by—and against women—depending on the context. Opinions like Şahin ascribed the headscarf with a monolithic meaning: the wearing of the headscarf signals ideological support for political Islam. In today’s context, this meaning has in many ways eclipsed the prior simplistic equation of the headscarf with women’s oppression.
Putting legal arguments to the side, such bans are flawed as a matter of policy. As Scott argues in her book, such ban simply reaffirm the status of Muslims as “outsiders” who inevitably pose a threat to mainstream culture and society. By outlawing the wearing of the headscarf, it inevitably becomes a symbol of resistance and an expressive act. At the same time, such bans conveniently give the illusion of action: they are easily implemented and compliance is easily verified. Such quick fixes are no substitute for the really hard work of genuine assimilation, which must involve the adaptation of the host culture to infusions of new cultures in the face of inevitable processes of globalization and migration. In any case, denying young women the right to a public education and to public employment is a perverse and counterproductive reaction to a practice with deep religious and cultural moorings.

On this day

On February 28, ...
... 1972, the week-long visit of Richard M. Nixon to the People's Republic of China, the 1st ever by a U.S. President, ended with the signing of the Shanghai Communiqué. In it Nixon and Chinese Premier Chou En-Lai set the groundwork for deeper relations between the 2 countries. During his visit the President also had met Chinese Communist Party Chairman Mao Tse-Tung; for a detailed account of the visit and all that preceded it, check out Nixon and Mao (2007) by Oxford historian Margaret MacMillan.
... 1971, the all-male electorate in Liechtenstein voted against women's suffrage in the principality, which is situated between Switzerland and Austria. The vote was 1,867 to 1,817. Women would win the right to vote in 1984. (map credit)

Wednesday, February 27, 2008

Write On! Transitional Justice & Development

(Write On! is an occasional item about notable calls for papers.) "Transitional Justice and Development" will be the theme of a forthcoming special issue of the International Journal of Transitional Justice. Editors seek papers for the issue, which, it's hoped, will help to "bridge the gap between the fields of transitional justice, development and peacebuilding" by publishing articles on a host of topics. Here's a sampling of some possible areas of focus:
► establishment of good governance through institutional reform post-conflict
► accountability of state and nonstate actors alike, for wrongdoing such as violations of economic and social rights and economic crimes
► gender, transitional justice, and development
► World Bank policies in post-conflict areas
► poverty and economic development programs as distributive justice or reparations
Deadline for submission, at the journal's website, is June 15, 2008. For further information, e-mail

On this day

On February 27, ...
... 1999, as many as 40 million voters thronged polling stations in Nigeria to elect a civilian as President. The election of Olusegun Obasanjo brought an end to 15 years of military rule in the African country whose flag's at right. Obasanjo, whose tenure has been marred by allegations of corruption, human rights violations, and environmental degradation (see example here), continues to rule as President to this day.
... 1992, in the anti-pornography case of R. v. Butler, 1 side of which had been argued by LEAF (logo below) -- the Women's Legal Education and Action Fund -- Canada's Supreme Court ruled that the country's law making the possession or distribution of obscene materials a crime would be unconstitutional if the basis for banning the materials were morality, but constitutional if the basis were promotion of equality of women and men.

Tuesday, February 26, 2008

What’s Wrong With NAFTA?

Several weeks ago, I noted presidential elections seldom turned on a candidate's trade policy (post). But this campaign is shaping up to be all about trade! One newspaper recently claimed “If there is a sleeper issue with the potential to catapult Barack Obama past Hillary Rodham Clinton in the remaining delegate-rich Rust Belt states, it is the North American Free Trade Agreement . . . ” I wish I could say the debate between Obama and Clinton was a substantive one, but sadly I cannot. In a campaign where the candidates’ policies admittedly are more similar than different, they seem to be drawing distinctions based on who dislikes NAFTA more. Clinton’s now infamous “shame on you, Barack Obama” speech was in response to Obama mailers claiming she once touted NAFTA as “a boon for the U.S. economy.” Despite the fact the agreement was implemented under her husband’s watch (though partly negotiated by the first Pres. Bush), Clinton now questions NAFTA’s benefits and has called for a "time out" on future trade agreements. Obama too has adopted an anti-NAFTA stance; he claims the regional trade agreement was oversold to the American people and that his administration would fix NAFTA. So, how did NAFTA become the political hot potato for the Democratic party? What’s so wrong with NAFTA?
First off, I must admit I generally prefer multilateral arrangements like the WTO Agreement to bilateral or even regional trade agreements (“RTAs”) like NAFTA. RTAs create trade diversion. An example will help illustrate the point: Imagine Belgium is the most efficient producer of chocolate bars, and it has traditionally been the top supplier to the U.S. market. The United States subsequently enters into a trade agreement with Canada, who also produces chocolate bars. Canadian bars are less efficiently produced and therefore more expensive, but under the new trade pact Canada receives a tariff preference not granted to Belgium (as would be required under a multilateral agreement). Once the pact is signed, the lower tariff means Canadian chocolates become cheaper in the U.S. market—not because of increased efficiencies on the part of Canadian producers, but exclusively because of the negotiated preference. So now, U.S. imports of chocolate bars are diverted from Belgium, the efficient producer, to Canada.
The WTO does recognize RTAs, but GATT Article XXIV calls for these regional arrangements to liberalize substantially all trade among members, a requirement that is rarely satisfied in practice; RTA members invariably set up “carve-outs,” or specific goods and services that will not be liberalized (or that will be liberalized very slooow-ly). Moreover, there is a great imbalance in bargaining power when smaller economies negotiate individual agreements with powerful trade players like the United States or the European Union. In my view, the best trade deals—best for the United States, the world economy, and developing countries—are those that arise from the give-and-take of multilateral negotiations. Indeed, U.S. trade policy for a long time disfavored these regional arrangements. When NAFTA was signed in 1994, the United States had only two other bilateral arrangements—with Israel and Canada, neither one of which caused the firestorm of protest NAFTA did. (U.S. policy has now taken a drastic turn in favor of these RTAS, and a confusing array of regional arrangements are concluded seemingly every other day. But I save that discussion for another day.)
Alas, the strong criticism and opposition leveled at NAFTA has little to do with a philosophical debate between multilateral vs. regional trade liberalization. In a word, opponents of NAFTA are primarily concerned with jobs—or job losses to be more precise. Ross Perot once promised NAFTA’s implementation would bring “the giant sucking sound” of good manufacturing jobs leaving the United States in pursuit of lower wages in Mexico. Opposition to NAFTA plays well in states like Ohio that have lost a significant number of such jobs in recent years. But is NAFTA’s reputation as a stinker among Democrats well-deserved? Are Obama and Clinton’s efforts to distance themselves from NAFTA—and to one-up each other on the anti-NAFTA rhetoric—justified?
Understanding that statistics are “lies, lies and damn lies,” it is hard to look exclusively to empirical evidence for an answer. It is a first step, however. The studies I have seen show that NAFTA’s impact on U.S. jobs has been relatively small. One study looked at 10 years of data and concluded NAFTA-related job losses in the United States amounted to an average of 37,000 per year; during the same period, the U.S. economy was creating over 200,000 jobs per month. Another concluded “NAFTA has had relatively small positive effects on the
U.S. economy
” (though it has had relatively large positive effects on Mexico). But NAFTA has created adjustment costs—and some argue those costs are disproportionately borne by certain industries and certain groups of Americans.
A report by the well-known Public Citizen (who is unabashedly anti-NAFTA) concluded that NAFTA-related job losses disproportionately affected Latinos. Citing U.S. government statistics, Public Citizen asserts “In 1999, an astounding 47 percent of the total number of workers who received federal assistance under a program for workers certified as having lost jobs as a direct result of NAFTA were Latino.” Apparently, Latinos are disproportionately represented in some of the industries most affected by NAFTA, such as textiles and apparel. But it has proved difficult to measure the specific effects of NAFTA on specific industries. There seems to be some general agreement that in addition to textiles and apparel, the automotive industry has experienced the greatest change in trade flows, which presumably has affected employment in those sectors. Some of those changes are due to events other than NAFTA, however—such as the Mexican devaluation of the peso. Undoubtedly, NAFTA has had both good and bad affects on the U.S. economy (and on Mexico’s economy, for that matter). But the mainstream studies indicate NAFTA’s impact in the United States has been relatively minor because trade with Mexico represents a small portion of U.S. GDP—less than 3 %. While some workers in some sectors have seen significant job losses, NAFTA contains two employment adjustment assistance programs meant to provide retraining to such workers. Of course no politician wants to tell her constituents that their good paying jobs are being exchanged for a social welfare program, but the long-feared “giant sucking sound” of massive job losses has yet to materialize.
What’s wrong with NAFTA? If we are expecting benefits without any burdens, then NAFTA—and the plethora of regional and bilateral agreements we have negotiated since—will prove a disappointment. There are costs to trade. We must determine whether those costs outweigh the benefits. It is too easy to set up NAFTA and free trade as the straw man upon which we heap all of our fears and anxieties, but trade has proved beneficial to the United States time and again. If the Democratic Presidential candidates are truly arguing that NAFTA’s costs outweigh its benefits, they would do well to provide substance and context to their arguments. The chest-thumping I-dislike-NAFTA-more approach does not serve the American people well.

Child LWOP report

Just received from Equal Justice Initiative, a Montgomery, Alabama, based nonprofit organization focusing on criminal justice and prisons systems, a report on an issue on which we posted here and here: child LWOP.
Cruel and Unusual : Sentencing 13- and 14-Year-Old Children to Die in Prison, is concise yet filled with data, photos, and nutshell profiles of these children who face incarceration for life.
Check it out.

On this day

On February 26, ...
... 1987, the leadership of the Church of England voted by a wide margin to work to permit permit women to become Anglican priests. That work took a while: it was not until March 12, 1994, that Angela Berners-Wilson (right) became the 1st woman to be ordained, in Bristol, England. And a survey conducted 4 years after that found that in 6 out of 44 dioceses, "many" ordained women "complained of bullying and even sexual harassment from male colleagues."
... 1993 (15 years ago today), a car bomb exploded in the garage beneath New York's World Trade Center, killing 6 persons and injuring 100. Another 50,000 workers were evacuated from the Center, which would, of course, be demolished in the attacks of September 11, 2001. Ramzi Yousef and others said to be responsible for the 1993 attack were tried in ordinary federal criminal courts, and in 2003 their convictions were affirmed by the U.S. Court of Appeals for the Second Circuit. The 1st incident is attributed to the "Islamic Group," an organization believed to have links with al Qaeda, the network to which the 2d attack's been attributed.

Monday, February 25, 2008

Secession & ethnicity in Kosovo

Following on my post last week about the legality of Kosovo’s declaration of independence, readers interested in this subject might want to take a look at these views of the legality debate from our colleagues at Opinio Juris. And to balance those relatively secession-friendly outlooks, consider this skeptical assessment of the legality of unilateral secession, written in the context of the Quebec Secession case.
In considering these questions, I am troubled by the history of deliberate manipulation of ethnic populations in Kosovo in light of the role that Kosovo's current ethnic composition plays in assessments of its independence claim. Of course, the Serbian attempt at ethnic cleansing of the Albanian population from Kosovo was one of the reasons for NATO’s intervention and UN administration of the province. But under the UN administration, other efforts at manipulation have continued. On the one hand, periodic riots and attacks on Serbian enclaves by Albanians have pushed out most of the few Serbs who stayed after 1999. On the other hand, Serbia has provided considerable support to the Serbian enclaves to persuade the Serbs there to remain within Kosovo. When a claim to self-determination depends on an ethnic group's claim to be a people in possession of a territory, there are strong and dangerous incentives for all concerned to try to shape the ethnic composition of that territory, and certainly those have been at work here.

(credit for 2005 map of Kosovo ethnic makeup, based on data from the Organization for Security and Co-operation in Europe)

Capacity for outrage: Irrevocably damaged?

That's the concern voiced in "The Harm Initiative," an excellent item by Slate law columnist Dahlia Lithwick (left). She recalls having been worried that the 2004 disclosure of the Abu Ghraib detainee abuse photos would prove to be "a sort of foot in the door for looser torture standards—a way to begin desensitizing the American people to the kinds of abuse that had been going on in secret." (We've posted similar concerns about the effect of depicting violence here and here.)
Congress' loosening of standards in the Military Commissions Act of 2006 went a long way to that end, Lithwick writes. She then moves to her current concern: that "just as those images paved the way to our broader torture policy," any further information of "the CIA torture tapes now stand to do the same thing for water-boarding in particular."

On this day

On February 25, ...
... 1986, in Manila, Corazon Aquino (left) was sworn in as the 1st woman President of the Philippines. The move culminated what was called the People Power Revolution, which sent into Hawaiian exile longtime dictator Ferdinand Marcos. He'd threatened to stage a ceremony swearing himself back into power; he changed course, however, after the United States withdrew its support of him. Aquino, who had entered politics after the 1983 killing of her husband Benigno, a dissident leader, held office until 1992. Litigation stemming from human rights violations during the Marcos regime continues; indeed, as we've posted, the U.S. Supreme Court will hear 1 such case. Argument in Republic of Philippines v. Pimentel is set for March 17, 2008.
... 1956, in an effort to dispel "the 'Stalin cult' that has held Soviet citizens in its thrall for 30 years," Soviet leader Nikita Khrushchev "denounced Joseph Stalin as a brutal despot" in a speech before the 20th Congress of the Communist Party.

Sunday, February 24, 2008

Dark days ahead in France

The French justice system is scraping bottom, according to former Justice Minister Robert Badinter (left).
On Thursday, the Conseil constitutionnel, France's constitutional court, approved the bill I discussed last month calling for life internment of perpetrators sentenced to at least 15 years in prison for crimes aggravés -- crimes committed with aggravating circumstances -- committed against minors. Stating that the measure constitutes “ni peine ni sanction”, i.e., neither a criminal penalty nor an administrative sanction, the “wise men”, as the constitutional judges are called, affirmed that a person who has served his or her term for a crime but is determined to still be dangerous may be interned for the rest of his or her life, as long as regular passages before psychiatrists confirm dangerousness. The doctors’ union, among others, opposed the law because, among other things, it confuses mental illness with criminal delinquency, standard practice in totalitarian societies: the state, rather than civil society, deals with social deviance (mental illness, political dissidence, or any other behavior or belief that can be labeled dangerous) as well as criminal delinquency. As first proposed, the law was to apply retroactively, another standard of totalitarian regimes that is contrary to general principles of criminal law and international human rights law. The Conseil d’Etat, the highest administrative court in France, nixed the retroactivity clause: internment could only apply if, at the time of sentencing, the judge tacked it on to the sentence. The lower house of parliament therefore approved the bill without the retroactivity clause. Under pressure from President Nicolas Sarkozy (left), his party’s majority in the Senate muscled through a version of the law with the retroactivity clause put back in. The Conseil constitutionnel took it out, thus limiting application until at least 2023, and added a further limitation: during their incarceration, persons subject to the provision must have been provided the psychological and other help necessary to their rehabilitation. The provision thus would, in theory, apply only to those who, despite such services, are determined to still be too dangerous to release. In a stunning challenge to the separation of powers dictated by the French Constitution, Sarkozy has asked the chief justice of the Cour de cassation how to get around the Conseil constitutionnel, saying "we can’t let the 'monsters' go free". One of the magistrates’ unions expressed “stupefaction”, and both unions are calling for resistance on the chief justice’s part as well as for demonstrations: art. 62 of the Constitution provides that the Conseil’s decisions are beyond all recourse, and are to be followed by all courts as well as the executive and the legislature. Standing by her man, so to speak, is the current Justice Minister, Rachida Dati (right), who says the law represents “significant progress” and that Sarkozy is justified in his challenge.
President and Justice Minister together against the Constitution. Remind you of anyone?

African Migration to Europe

President Geoge W. Bush’s trip to Africa last week (he visited Benin, Tanzania, Rwanda, Ghana, and Liberia) also stimulated some media attention on African migration to Europe. (At left, a 2007 photo of Bush with Liberian President Ellen Johnson-Sirleaf.)
African and European policymakers came together at an international conference in Accra, Ghana, to strategize on ways to prevent thousands of deaths and human rights abuses involved in irregular migration flows between the continents. (It's a problem about which IntLawGrrls previously posted here and here; also see report of a similar meeting held in Accra in 2005.)
Migration is not new, nor is it necessarily a “problem.” (See, e.g., a 2007 OECD Report arguing that migration can help improve economic standards in host countries as well as in countries of origin.) Scientists and historians attribute our ancestors' early migrations across Africa and beyond to survival strategies (in response to climate change, hunting patterns, or agricultural needs) and to the desire for conquest, trade, or exploration.
The reasons for contemporary African migrations are familiar: nomadic migrations to follow natural agricultural patterns or trading opportunities, displacement resulting from political persecution or instability, war, famine, or natural disaster.
The Accra conference also focuses on “irregular” economic migration to Europe and the loss of life and human rights abuses that accompany it. Intermittent news stories recount stories of overcrowded and rickety boats going down with dozens of African migrants; estimates put the number of such deaths at more than 1000 per year. Many migrants who arrive by boat come from North Africa. However, due in part to a previously liberal Libyan immigration policy and other recent events, migration from from sub-Saharan Africa is on the increase. Some make dangerous journeys across the Sahara in search of work in North Africa or to boat smugglers who will take them to islands off the mainland of Spain or Italy. More than 20,000 Africans made the boat passage to Italy in 2006 alone. The Migration Policy Institute estimates that 7 to 8 million African irregular migrants now live and work in Europe. No one really knows how many have died in the Sahara or on the seas.
Some migrants came from educational and economic backgrounds that allowed them (or their families) to save enough money for the trip. Others simply made their way the best they could.
Migration flows are often gendered in nature—based on the “push” from the home country and the “pull” from the host country. Women and children, for example, make up a large percentage of refugees escaping armed conflict. Male migration seems to predominate in the boat migration to Europe through North Africa.
The complexity of irregular migration status is often ignored by officials in host countries. “Economic migrants,” no matter how difficult their circumstances, are often disparaged and their economic and social rights marginalized. And many such “economic migrants” might also be political asylum seekers who have been persecuted in their home countries. According to the Oxford-based migration researcher Hein de Haas, human rights NGOs have criticized European and Libyan governments for violating the international legal principle of non-refoulement by returning asylum seekers to countries in which they might be tortured or persecuted.
Those who do make it become substantial economic supports for their own families and for home country economies. The World Bank estimates that remittances from African migrants (not all of whom leave the continent) can constitute a significant portion of a home country's GDP. (See World Bank Remittances Factbook 2008 and an article discussing the possibility of a World Bank sponsored Diaspora Remittance Investment Fund.
According to the BBC, the Accra conference prioritized two strategies:
1st, the policymakers plan to publicize the life-threatening risks of the migration itself as well as the alienating or abusive conditions many African migrants with irregular status experience while living and working abroad.
2d, conference delegates discussed proposals to increase legally authorized migration targets for African workers with specified skills. Instead of promoting the well-known “brain drain” in which the Global South exports nurses, doctors, and teachers to Europe and North America, some argued for ways to enhance “brain circulation” or “circular migration”—temporary labor migration of skilled workers. The latter approach is not based in altruism; some European countries face labor shortages in certain fields.
Publicizing the dangers is an important start. On the other hand, large-scale temporary work programs may be as controversial in Europe and Africa as they are in the United States. (See 2007 Council on Foreign Relations report on “circular migration.”) But such measures would not address the root causes of large-scale African migrations—the yawning economic and social development gap between Europe and Africa, political instability and the trade in small arms, as well as the human will to risk everything to ensure the survival of those we love.

(photo above right courtesy of Office of U.N. High Commissioner for Refugees)

On this day

On February 24, ...
... 1803 (205 years ago today), the U.S. Supreme Court for the 1st time held an Act of Congress unconstitutional, and thus established the power of judicial review over legislative and executive action. Chief Justice John Marshall wrote the landmark judgment in Marbury v. Madison (above) for a unanimous Court. Evidence of the decision's lasting and global significance is this article by James Crawford, a professor at England's University of Cambridge: Marbury v. Madison at the International Level, 36 George Washington International Law Revew 505 (2004).
... 1955, 5 countries signed the Pact of Mutual Cooperation Between the Kingdom of Iraq, the Republic of Turkey, the United Kingdom, the Dominion of Pakistan, and the Kingdom of Iran. Known as the "Baghdad Pact" in recognition of the Iraqi city in which it was signed, the treaty did not last long: as detailed in a BBC analysis, its failure "heralded the end of British influence in the Middle East."

Saturday, February 23, 2008

Commander in Chief, yes, but not of all of us

At Thursday's Democratic Presidential debate the candidates were asked about qualifications "to be commander in chief." Sen. Barack Obama's response hewed closely to military matters. In contrast, the response of Sen. Hillary Clinton ranged farther afield. She spoke of her role as wife of President Bill Clinton: of traveling to "80 countries," of "negotiat[ing] on matters such as opening borders for refugees during the war in Kosovo," and of "stand[ing] up for women's rights as human rights around the world." She spoke too of her role as U.S. Senator: of "serv[ing] on the Senate Armed Services Committee," of "work[ing] as one of the leaders in the Congress on behalf of Homeland Security."
Gotta problem with all that?
Well, the Constitution might. Here in full is the Commander in Chief Clause of Article II:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; ....

"Commander in Chief," therefore, is a term that relates to the military, to the use of the armed forces. "Commander in Chief" isn't a catchall for foreign policy, certainly not for diplomacy or what in international law is called the pacific settlement of disputes. The powers pertaining to those matters are more properly sited elsewhere in the Constitution -- in that part of Article 2 that lets the President "require the Opinion, in writing, of the principal Officer in each of the executive Departments," perhaps, or that which grants the President a portion of the powers to make treaties and name ambassadors. Then there're the grant of power to receive other states' ambassadors, and requirement that the President to "take Care that the Laws be faithfully executed ...."
As laudable as that act of as 1st Lady was, giving a speech on human rights is not an act to be subsumed within the Constitution's Commander in Chief Clause.
To ask for precision on this point is not to quibble. It is, rather, to underscore a distinction that makes a difference. Shoehorning all of the United States' foreign relations into the term "Commander in Chief" is a risky business. It increases the danger of jumping to military solutions for problems best resolved by other, less forcible measures. It tempts some politicians to obscure military inexperience with militaristic misadventure. It risks reinforcement of all-too-quick and oh-so-wrong assumptions that national security is something apart from, something at odds with, the security of human beings.
Criticizing the current President's misapprehension of the term was a superb op-ed that historian Garry Wills published a full year ago in The New York Times. He put the problem succinctly: "[T]he president is not our commander in chief. He certainly is not mine. I am not in the Army."
Wills proceeded to link misapprehension of that term to the Nixon-era firing of special prosecutors appointed to investigate Watergate and, more recently, to what he called the "fetishistic ... secrecy" that's enabled the current administration to obscure extraordinary renditions and other excesses of its post-September 11 campaign against terrorism. Wills wrote:

When Abraham Lincoln took actions based on military considerations, he gave himself the proper title, 'commander in chief of the Army and Navy of the United States.' That title is rarely — more like never — heard today. It is just 'commander in chief,' or even 'commander in chief of the United States.' This reflects the increasing militarization of our politics. The citizenry at large is now thought of as under military discipline.

That's wrongheaded thinking, Wills concluded:

The representative is accountable to citizens. Soldiers are accountable to their officer. The dynamics are different, and to blend them is to undermine the basic principles of our Constitution.

It's time for all who would be President to endeavor to honor these principles, in what they say and, should they win election, in what they do.

On this day

On February 23, ...
... 1898 (110 years ago today), following a 2-week trial, a court in Paris convicted renowned author Émile Zola of libel for J'Accuse (I Accuse) (right), the 4,000-word commentary, styled as an open letter to the President of France, in which he'd described as a "crime of high treason against humanity" the 1897 conviction by court-martial of Capt. Alfred Dreyfus, a result linked to anti-Semitism.
... 1944, Soviets acting on orders of leader Joseph Stalin began a 2-day operation in which "nearly half a million Chechens and Ingush were systematically gathered together ... and transported in freight trains" east to Siberia and to 2 Soviet Socialist Republics that today are the independent states of Kazakhstan and Kyrgyzstan. As a result of the cold, hunger, and disease they suffered, an estimated 50% of these peoples, whose homelands had been in the Caucasus region of the Soviet Union, perished within a year of this forced deportation.

Friday, February 22, 2008

This Month at the Khmer Rouge Tribunal

February has seen several interesting developments at the Extraordinary Chambers in the Courts of Cambodia (ECCC), which is finally beginning to look like a serious court, with hearings and investigations, and . . .
Defense Tactics
Just yesterday, Jacques Verges (aka the "Devil's Advocate") announced that his client Khieu Samphan, the president during the Khmer Rouge regime, will no longer cooperate with the court. Samphan is apparently refusing to speak to court officials until the thousands of pages of evidence against him -- presumably written in his native tongue, Khmer -- are translated into French, the language spoken by Verges. This is perhaps the ultimate irony from Samphan, the head of a regime that killed those who spoke a foreign language because such individuals were viewed as "class enemies." Moreover, Verges demanded a translation of the court documents, which are in English, into French, so that he can adequately defend his client.
Victim Participation
In a more heartening development, for the first time in any international criminal proceeding, victims participated as civil parties in the public hearing of the pre-trial detention of Nuon Chea, head of the Khmer Rouge security committee. Theary Seng (pictured at right), who at age 7, along with her 4-year-old brother, was "shackled and held under inhumane conditions in a Khmer Rouge prison", confronted Chea in court, asking him who was responsible for these abuses and the deaths of her parents. Under the ECCC's internal rules, civil parties have the right to participate in the investigation, be represented by a lawyer, call witnesses and question the accused at trial, and claim reparations. Victims can also participate in more traditional roles -- as witnesses and by providing the prosecutors with factual information. The court is currently processing over 500 complaints providing volumes of information for the investigatory phase of the trials.
Expanded Budget
But of course, with this progress comes the request for more funds. While capping the number of expected prosecutions at eight, the court has tripled its budget estimate, seeking to extend the lifespan of the court from December 2009 to March 2011 and to nearly double its staffing levels to 530 people. While the court seems to be moving past the delays that plagued its early years, it still suffers from past allegations of corruption, and additional funding proposals will need to provide thorough and convincing explanations of how the court will avoid such problems in the future.

'Nuff said

(Occasional item taking context-optional note of thought-provoking quotes.)

'I’m not surprised because girls are very creative,' she said, 'sometimes more creative than men. We’re spunky. And boys...' Her voice trailed off to laughter.

-- Martina Butler of Emo Girl Talk (pink logo above), a 17-year-old from San Francisco, on being told by the New York Times of a study showing that among today's teenagers, by margins of 10% of more, "the cyberpioneers of the moment are digitally effusive teenage girls."
Guess that means we IntLawGrrls're just a wee bit ahead of a generational curve?

On this day

On February 22, ...
... 1819, in Washington, D.C, U.S. Secretary of State John Quincy Adams and his Spanish counterpart, Luis de Onís, signed the "Treaty of Amity, Settlement and Limits Between the United States of America, and His Catholic Majesty," a pact better known by its signers' names. In the Adams-Onís Treaty (right), which helped to define what is now the U.S.-Mexico border, the United States purchased Florida, renounced any claim to Texas, and agreed to a fixed western boundary for lands it had obtained from France in the Louisiana Purchase of 1803. Spain kept not only Texas, but western territories that today comprise much of the states of Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming.
... 1774, in London, England, at the conclusion of 2-1/2 weeks of proceedings in the case captioned Donaldson v. Beckett but frequently known as The Question of Literary Property Case, the House of Lords "ended perpetual copyright, and established a limited copyright of fourteen years."

Thursday, February 21, 2008

...and counting...

(Occasional sobering thoughts.) Since we last took note of casualties in Iraq and Afghanistan 6 weeks ago, the New England Journal of Medicine released its own study of civilian deaths in Iraq, and came up with an estimate of 151,000 children, women, and men killed -- lower than the Lancet estimates on which we've posted (here and here), but still far more than the conservative Iraq Body Count on which we've relied in this "...and counting..." series. The NEJM study's conclusions cut to the chase:

Violence is a leading cause of death for Iraqi adults and was the main cause of death in men between the ages of 15 and 59 years during the first 3 years after the 2003 invasion. Although the estimated range is substantially lower than a recent survey-based estimate, it nonetheless points to a massive death toll, only one of the many health and human consequences of an ongoing humanitarian crisis.

As for the future, Iraqi cleric Moqtada al-Sadr's hinting that he may call an end to the 6-month ceasefire that's been observed by his Mehdi Army militia -- a ceasefire that no doubt has contributed to any ease-up of violence in Iraq this past half-year.
And though there's still a dearth of statistics on civilian casualties in Afghanistan, violence seems to be on the increase. Just this week, upwards of 150 Afghans have been killed in separate car-bombings, and some of the NATO partners with troops there are rethinking their commitment.
With those sobering thoughts, here's the casualty count:
According to Iraq Body Count, between 81,426 and 88,886 Iraqi women, children, and men had died in the conflict -- an increase of between 1,095 and 1,144 deaths in the last 6 weeks. Regarding servicemembers: by the U.S. Defense Department's figures, as of Sunday 3,967 American servicemembers had been killed in Iraq. Total coalition fatalities: 4,274 persons. (That's 56 servicemember deaths in 6 weeks, all of them Americans.) The Department stated that 29,662 servicemembers have been wounded, and that 8,791 of them required medical air transport. Military casualties in the conflict in Afghanistan stand at 483 Americans and 283 other coalition servicemembers, an increase of 7 and 5, respectively, in the last 6 weeks.

On this day

On February 21, ...
... 1999, Gertrude B. Elion (left), 81, died after collapsing while taking her daily walk in Chapel Hill, North Carolina. Born "in New York City on a cold January night" in 1918, to a father and mother who'd emigrated from Lithuania and Russia, respectively, she was by her own description "a child with an insatiable thirst for knowledge and remember enjoying all of my courses almost equally." She chose to pursue a career in biochemistry, and in 1988 Elion and 2 men shared the Nobel Prize in Physiology or Medicine in recognition of "their discoveries of important principles for drug treatment."
... 1848 (160 years ago today) , in London, Friedrich Engels and Karl Marx published Manifest der kommunistischen Partei, better known as the Communist Manifesto. The document (full text here) set forth a critique of contemporary Europe and a vision for leadership by the proletariat. It claimed inter alia that because of industrialization,
Differences of age and sex have no longer any distinctive social validity for the working class. All are instruments of labor, more or less expensive to use, according to their age and sex.

Wednesday, February 20, 2008

Guest blogger: Bernadette Atuahene

It's IntLawGrrls' great pleasure to announce today's guest appearance by Professor Bernadette Atuahene (left) of the Chicago-Kent College of Law in 2005, where she focuses her scholarship on confiscation and restitution of property. Before joining the Kent Law faculty she held a number of positions in law and international development: legal consultant for the World Bank; associate at New York's Cleary, Gottlieb, Steen & Hamilton; and human rights investigator for the Center for Economic and Social Rights. While at the last of these, Bernadette received Amnesty International’s Patrick Stewart Human Rights Award on account of her work with human rights organizations in South America. As a Fulbright Scholar, she served as a judicial clerk to Justices Tholie Madala and Sandile Ngcobo of the Constitutional Court of South Africa. Bernadette's just headed back to that country for several months' fieldwork.
In her guest post below, Bernadette presents her most recent work, From Reparation to Restoration.
Heartfelt welcome!

Toward restoration for the dispossessed

Thanks to IntLawGrrls for this giving me this opportunity to appear as a guest-blogger.
In this post I present what constitutes the 1st of a planned trilogy of articles on issues related to property dispossession. Entitled From Reparation to Restoration: Moving beyond Restoring Property Rights to Restoring Political and Economic Visibility, and just published in the Southern Methodist University Law Review, this article explores 2 important questions facing countries that decide to give communities and individuals compensation for property stolen in the past. The questions are:
► Who at minimum should be restored?
► How should the restorative process transpire?
As to the 1st question, I argue that, at minimum, the state has a moral obligation to compensate people who have been subjected to severe dehumanization as a result of an uncompensated property confiscation. My claim is that this confiscation of property results in property-induced invisibility; that is, people are removed from the social contract and made invisible. Instances of such property-induced invisibility can be seen throughout history among native peoples whose land was stolen through conquest. Also, Tutsi and moderate Hutu subjected to property confiscation during the Rwandan genocide. The dispossession of nonwhites during apartheid governments' incessant campaign of dehumanization would be yet another modern-day examples of property-induced invisibility.
As to the 2d question, I argue that societies must redirect their focus from the limited concept of reparations to restoration. When the concept of reparations is invoked, the goal is to secure compensation for past wrongs; however, the state does not allow the dispossessed to choose how they are compensated. Restoration, in contrast, is a larger project -- a project of restoring a dispossessed group or individual’s relationship to society, of including them in the social contract and thereby reversing the condition and effects of their property-induced invisibility. Restoration is accomplished through a bottom-up process that provides asset-based choices; that is, choices that both allow people to decide how they are to be made whole and give people viable options from which to make that decision. The options may vary according to what is possible; for example:
► return of property
► alternative property
► monetary compensation
► free higher education for 2 generations
► priority in an already established housing process
► highly subsidized access to credit
The article then moves to an evaluation of South Africa’s Land Restitution Program, as a means of testing the theoretical concepts of property-induced invisibility and restoration previously set forth. More specifically, I investigate whether, as a baseline, South Africans who were subjected to property-induced invisibility are benefiting from the Land Restitution Program. In addition, I offer recommendations on how the government can transform the Land Restitution Program from a reparations program to a restoration program.

(photo courtesy of South Africa's Commissions on Restitution of Land Rights)

On this day

On February 20, ...
... 1969, the International Court of Justice issued its judgment in North Sea Continental Shelf Case (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands). In deciding the dispute over boundaries in the region depicted at right the Court, by a vote of 11-6, the Court ruled that the equidistance principle set forth in Article 6 of the 1958 Geneva Convention on the Continental Shelf did not apply, for the reasons that Germany had not ratified that treaty and that the principle did not constitute customary international law. It preferred an equitable apportionment of the territory, and called upon the parties to negotiate in accordance with that guideline. (map credit)
... 1943, the 1st of Norman Rockwell's 4 paintings depicting the 4 Freedoms, which U.S. President Frankin D. Roosevelt had proclaimed in the January 1941 and about which we've posted, was published in the magazine Saturday Evening Post. Rockwell's "Freedom of Speech" soon was followed by "Freedom of Worship," "Freedom from Want," and "Freedom from Fear." The artists' offer to donate the paintings to the U.S. War Department had been rebuffed.