Monday, June 30, 2008

Write On! New Voices in Human Rights

(Write On! is an occasional item about notable calls for papers.)The International Human Rights Law Section of the Association of American Law Schools (AALS) will repeat its popular "New Voices" program at the 2009 Annual Meeting. This panel provides an important opportunity for faculty members and other scholars who have not previously had an opportunity to present a scholarly paper at an AALS annual meeting to share their work. The program will be held on Wednesday, January 7, 2009.
Individuals interested in being considered for the "New Voices" panel should submit an abstract of no more than two pages describing their work by August 15, 2008 to IntLawGrrl and Section Chair-Elect, Christiana Ochoa, at the Indiana University School of Law. The full call for papers can be found within the Section newsletter.

On June 30

On this day in ...
... 1864, President Abraham Lincoln signed the Yosemite Land Grant, which "provided California with 39,000 acres of the Yosemite Valley and the nearby Mariposa Big Tree Grove 'upon the express conditions that the premises shall be held for public use, resort, and recreation.'" The area (above) would become a national park 1890. (photo credit)
... 1969, Nigeria halted flights of food to Biafra, a southern, breakaway state at war with the federal government. The International Committee of the Red Cross was forbidden from continuing to coordinate aid. International pressure would persuade Nigeria to let airlifts resume, albeit under the country's rules. A half-year later rebels were defeated. The BBC reports that "it is estimated at least 500,000 -- possibly millions -- of people died of starvation and disease as a result of the war in Biafra."
(map credit)

Sunday, June 29, 2008

Write On!

(Write On! is an occasional item about notable calls for papers.) Just a note to highlight Cambridge Press's journal International Theory, an important source for topflight interdisciplinary and theoretical international law scholarship.
In the Journal's words:
International Theory (IT) promotes theoretical scholarship about the positive, legal, and normative aspects of world politics respectively. IT is open to theory of absolutely all varieties and from all disciplines, provided it addresses problems of politics, broadly defined and pertains to the international. IT welcomes scholarship that uses evidence from the real world to advance theoretical arguments. However, IT is intended as a forum where scholars can develop theoretical arguments in depth without an expectation of extensive empirical analysis. IT’s over-arching goal is to promote communication and engagement across theoretical and disciplinary traditions. IT puts a premium on contributors’ ability to reach as broad an audience as possible, both in the questions they engage and in their accessibility to other approaches. This might be done by addressing problems that can only be understood by combining multiple disciplinary discourses, like institutional design, or practical ethics; or by addressing phenomena that have broad ramifications, like civilizing processes in world politics, or the evolution of environmental norms. IT is also open to work that remains within one scholarly tradition, although in that case authors must make clear the horizon of their arguments in relation to other theoretical
approaches.

All articles will be anonymously peer-reviewed by a stellar list of editors.

So, get busy, IntLawGrrls!

In Mothers' Paradise, no men allowed

The mayor of Teheran has created "Mothers' Paradise," a park strictly for women. With an astute disposition of broad-canopied trees and surrounded by a a fence covered in green and orange canvas, the park protects women from the gaze of men on the ground and even in airplanes flying overhead. Inside the park, women are thus free to engage in sports like cycling or jogging without being encumbered by the head coverings they are otherwise required to wear. This is not the first such park in Iran, nor the first woman-only installation: before becoming Iran's president, Mahmoud Ahmadinejad was mayor of Teheran. There, he introduced sex-segregated elevators, taxis and hospitals where female patients are treated only by female "medical workers." While many women are happy to be able to move about freely in parks like Mothers' Paradise, women's rights activists like Teheran-based lawyer Nasrin Sotoudeh point out that such parks are further instances of discrimination against women that violate international conventions. Riders on Mexico City's pink bus about which we've blogged might welcome a Mothers' Paradise or even Sotoudeh's extreme scenario of sex-segregated districts or entire cities (remember Christine de Pisan's City of Ladies?), but what women everywhere really want is not to have to exclude men, but to be free and equal in their company.

On June 29


... 2007, Marie-Noëlle Thémereau resigned as President of Nouvelle-Calédonie, 3 years after Thémereau (top left) and her Vice President, Dewe Gorodey (bottom left), had made history by becoming the 1st women to serve in those positions in the South Pacific territory of France, known in English as New Caledonia. Dewe Gorodey still holds the Vice Presidency, and also serves as Minister for Culture, Women’s Affairs and Citizenship.

... 1949, Anne Veneman (top right) was born in Modesto, California. She is the Executive Director of UNICEF, having assumed that position in 2005 upon the resignation of Carol Bellamy (bottom right). Veneman practiced law and worked in California state government before serving from 2001 to 2005 as U.S. Secretary of Agriculture, the 1st woman to hold the post.

Saturday, June 28, 2008

Human Rights For All

(Part I of a series on disability human rights)

The entry into force on 3 May 2008 of the Convention on the Rights of Persons with Disabilities and its Optional Protocol is a landmark event for the estimated 650 million persons with disabilities (PWD) around the world. Described by UN Enable as signalling a “paradigm shift” in approaches to PWD, the new treaty is also a promising development in the promotion of human rights culture for all.

“We the Peoples of the United Nations”
International human rights instruments are sometimes criticized as top-down rhetorical statements created by diplomatic elites who rarely engage with those most affected. Reflecting a trend toward partnerships among international organizations, states, and civil society, the new disability convention was negotiated and drafted with the significant input of the International Disability Caucus on the Convention (a coalition of disability rights NGOs) as well as governmental representatives.
The process involved the usual political and strategic tensions associated with creating a “universal” instrument. The IDC and the government negotiators had to address the different political, economic, cultural, racial, and gender dynamics among and within states and NGOs. Representatives also contended with the hierarchies and divisions that can exist even among PWD who have different disabilities and different approaches to disability status, accommodations, and even terminology.
Those with intellectual or emotional disabilities are subject to different forms of discrimination than those with physical disabilities. Some who are blind, vision-impaired, deaf, or hearing-impaired may regard themselves as belonging to a different linguistic and social culture in which Braille or American Sign Language is to be considered a language like any other rather than a “special” intervention.
Nevertheless, the disability rights advocates, who used the theme “nothing about us, without us,” developed a collaborative process in which those disability constituencies most directly affected by a specific provision could take the lead in providing input, suggested draft language, and strategy. (See panel discussions on process at an American University Washington College of Law conference in April 2007.)
The report helped set the stage for the convention by outlining the relevance and applicability of international human rights standards to PWD and the need for instruments that more directly addressed their needs.
PWD were among the NGO representatives and state representatives who participated. Ironically, their presence often revealed the degree to which even a venue like the UN headquarters building in New York was not fully accessible—a lesson even the most well-intentioned actors can fail to learn unless they engage directly with those living with disabilities.

A Multidimensional Approach
The treaty emphasizes that all of the previously recognized fundamental human rights in the core human rights treaties fully apply to persons with disabilities. Like race, ethnicity, gender, nationality, religion, sexual orientation, class, and migration status, disability is one more aspect of the complex and shifting dimensions that help form our individual identities, but which does not separate us from our common humanity. It was therefore necessary first to make persons with disabilities “visible” to the international community as human beings with the same inherent rights that are recognized for others.

The Convention (CRPWD) sets forth 8 guiding principles:
► Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons
► Non-discrimination
► Full and effective participation and inclusion in society
► Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity
► Equality of opportunity
► Accessibility
► Equality between men and women
► Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
As the guidelines indicate, advocates moved beyond the universals to argue successfully for provisions that focused on the specific human rights issues that affect persons with disabilities, such as accessibility and personal autonomy. The treaty also recognizes the rights and needs linked to specific disability and intersectional status, such as the rights of children with disabilities and the rights of women with disabilities. As in all core human rights treaties, the CRPWD prohibits discrimination, including on the basis of race or ethnicity.
Rapid Recognition
The CRPWD, negotiated between 2002 and 2006, was the most quickly adopted of the major human rights treaties. As a member of a Jamaican-American family, I was also proud to see that Jamaica was the first country to ratify the new treaty on the first day it was opened for signature (see Diane Marie Amann’s post on the treaty’s adoption here).
The CRPWD entered into force only a little more than a year after being opened for signature. According to the UN Enable website,
the main treaty has now been signed by 129 states and ratified by 28. The Optional Protocol, which provides for individual or group complaints, has been signed by 71 countries and ratified by 17. One can only hope that continued activism will lead to equally rapid efforts to implement the treaty’s provisions.

No surprise, the United States, relying on domestic law (such as the Americans with Disabilities Act) refused to sign or ratify the treaty. Nevertheless, U.S. State Department officials cooperated in and contributed to some aspects of the drafting process. (For a Department of State list of web resources click here.)
As Amann reports, the recent favorable federal court decision on accessible currency in American Council of the Blind v. Paulson, may help expand the domestic civil rights of PWD in the U.S.

(Forthcoming in Part II of this series: Disability Human Rights: Only a “First World” Concern?)

International Principal

Kudos to our colleague, Dr. Louise Richardson (right), just appointed to lead the University of St. Andrews, a top Scottish institution north of Edinburgh.
Richardson will hold the title of Principal and Vice Chancellor; that is, President. She'll thus become the 1st woman to head 1 of Scotland's "ancient universities" (St. Andrews was founded in the 1400s).
As posted last year in our review of her book, What Terrorists Want (2006), Louise is an expert on the causes of terrorism and counterterrorist strategies. She's served most recently as Executive Dean at the Radcliffe Institute for Advanced Study at Harvard University, where she has also been a member of the political science faculty and from which she earned her Ph.D. Following graduation from Trinity College Dublin, the native of Tramore, County Waterford, Ireland, began her postgraduate studies at UCLA's Political Science Department, from which she earned an M.A. (credit for photo by Corinne Pickering)

Heartfelt congratulations and best of luck with this venture!

On June 28

On this day in ...

... 1838 (170 years ago today) , the Briton who'd been born Princess Alexandrina Victoria 19 years earlier was crowned Queen Victoria (right), a year and a week after she'd assumed the throne upon the death of her uncle William IV. Her reign, the longest in British history, lasted until her death on January 22, 1901. (credit for 1842 portrait)

... 2006, the international community gained its newest member when the General Assembly admitted the Republic of Montenegro as the 192d state in the United Nations. (map credit)

Friday, June 27, 2008

Read On! The Definitive Filártiga

(Read On! ... occasional posts on writing we're reading)

Every once in awhile, a case comes along that changes everything. Filártiga v. Peña-Irala (2d. Cir. 1980) was one of those cases. The Filártiga plaintiffs made an audacious assertion: that Paraguayan victims of human rights violations could bring suit in a U.S. federal court against a Paraguayan perpetrator for acts of torture and extrajudicial killing committed in violation of international law in Paraguay. (Plaintiffs were the sister and father of Joelito Filártiga, below left). The case established many firsts: that the Alien Tort Statute supports assertions of extraterritorial jurisdiction, that long articulated but rarely enforced human rights norms are justiciable, that the individual is front and center in international law as victim and perpetrator, and that ensuring a robust system of accountability is consistent with the interests of the United States. Filártiga empowered hundreds of additional victims to mobilize the U.S. legal system against human rights abusers who would otherwise find safe haven in the United States. Before Guantánamo and its repercussions, the United States boasted the most vibrant system of civil domestic human rights enforcement in the world. Professor William Aceves’s engaging new volume, The Anatomy of Torture: A Documentary History of Filártiga v. Peña-Irala (2007), tells the story of how we got here through a rich account of the Filártiga case and its progeny. (A fuller review is forthcoming in Human Rights Quarterly).

Aceves’s project joins the “law stories” movement in legal pedagogy exemplified by Foundation Press’s excellent series of course supplements. (Indeed, the Filártiga case is also featured in Foundation’s equally great Law Stories text on international law, in a chapter by Yale Law Dean Harold Hongju Koh: "Filártiga v. Peña-Irala: Judicial Internalization into Domestic Law of the Customary International Law Norm Against Torture" in International Law Stories (John E. Noyes et al. eds. 2007)). Aceves offers a definitive account of Filártiga’s procedural history—with an emphasis on the pleadings, defensive strategies, choice of law questions, the applicability of the “political” defenses (act of state, political question), legal and administrative remedies, appellate practice, and methods of enforcement. This exhaustive treatment of a single case provides a valuable window into the transnational legal process.

Yet, Aceves’s volume is more than a stereoscopic treatment of a single case and its impact. The text also includes a fascinating and exhaustive documentary history compiled from a variety of governmental and non-governmental sources within the United States and Paraguay. The mix of legal and political artifacts—complete with pleadings and opinions, embassy cable traffic, and transcripts of key hearings—enables a more complete understanding of the litigation process from pre-filing investigation to final judgment and all the hurdles in between. Indeed, Aceves was able to uncover intriguing information about the case that is not at all part of the official record from a variety of sources, including through recourse to the Freedom of Information Act. (The drawings below are by Dr. Joel Filártiga, one of the plaintiffs and also an accomplished artist).
Aceves’s book offers a compelling read for anyone interested in international human rights and their enforcement. With its more technical emphasis on the evolution of legal doctrines essential to ATS litigation, the book is geared more toward lawyers, academics, and students than toward laypersons. (A more dramatized account of the case is provided by Richard Alan White, Breaking Silence: The Case that Changed the Face of Human Rights (2004). White was a friend of the Filártigas who spent time with the family in the immediate aftermath of Joelito’s death. HBO produced a docudrama on the case entitled One Man’s War (1991), in which Anthony Hopkins plays Dr. Filártiga (left)). For the legal community, the book will undoubtedly serve many purposes. For one, its discussion of key precedents provides essential reading and an invaluable reference tool for practitioners of ATS litigation. From the perspective of legal pedagogy, the book has the potential to be a wonderful teaching tool for courses on the international legal process, transnational civil procedure, and human rights theory and practice. For students enrolled in law school human rights clinics, the book will provide a great introduction to the ebb and flow of human rights litigation.

The author (right) is uniquely well suited to undertake this study of transnational human rights litigation. Aceves teaches international human rights, foreign affairs law, and civil procedure at California Western School of Law, where he serves as the Director of the School’s International Legal Studies Program. In addition to his scholarly pursuits in these areas, Aceves has participated actively in a number of cases in the Filártiga tradition as litigation advisor and “friend of the court.” Aceves is also on the board of the Center for Justice & Accountability, one of the primary human rights organizations devoted to ATS litigation, and works regularly with Amnesty International. Given his insider’s perspective, it is no surprise that his book is a definitive account of this seminal case and its impact.

A fascinating chapter of this procedural story concerns the role of the Carter Administration, which eventually filed an amicus curiae brief in the case at the invitation of the Second Circuit. (Plaintiffs appealed the district court’s dismissal of the case on the ground that international law did not regulate the interactions between individuals within a single state, even when state action was involved). Aceves’s book provides a rare “behind the scenes” look at some of the inter-departmental and inter-branch negotiations between the Department of Justice, the Solicitor General, the Department of State, members of Congress, and even plaintiffs' counsel that preceded the filing of the brief. The final brief soundly rejected the district court’s approach to international law by confirming that the universal and fundamental prohibition against torture protected individuals from their own governments. A key feature of the brief is its dynamic view of the evolution of international law and the cognizability of customary international law. The brief confirmed that where a norm is well-established, such as the prohibition against torture, there is little concern that its private enforcement would undermine U.S. foreign policy interests. Rather, the brief opined, the failure to recognize a cause of action for acts of torture might undermine the credibility of this nation’s commitment to international human rights and its ability to exert influence on states with poor human rights records.

These are stirring ideas in the current climate, which has witnessed the re-emergence of a debate about the legality, propriety, and utility of torture and cruel treatment as means of interrogation; has occasioned government lawyers drafting legal memoranda that provide a blueprint for insulating U.S. officials from legal responsibility for unlawful interrogation techniques; and has resulted in the bipartisan passage of legislation stripping the courts of jurisdiction over claims by individuals who allege that they have been mistreated by agents of the U.S. government. The Carter Administration’s brief, with its unalloyed support for accountability and the civil enforcement of international human rights norms, is a striking contrast to official positions taken by the Bush Administration in the war on terror and in current ATS litigation.

The Second Circuit’s landmark opinion bespeaks a more hopeful and self-assured time. It is indeed startling to revisit this case in this historical moment. The United States, once a beacon of human rights values, is now subject to worldwide criticism for having turned its back on the human rights edifice. Likewise, its credibility as a champion of human rights worldwide and its ability to exercise global leadership on this score have been indelibly stained. In these unfortunate times of moral relativism, it is instructive to recall the uncompromising words issued by the Second Circuit in reinstating the Filártiga case:

In the twentieth century the international community has come to recognize the common danger posed by the flagrant disregard of basic human rights and particularly the right to be free from torture. … In the modern age, humanitarian and practical considerations have combined to lead the nations of the world to recognize that respect for fundamental human rights is in their individual and collective interest. Among the rights universally proclaimed by all nations … is the right to be free from physical torture. Indeed, … the torturer has become like the pirate and the slave trader before him hostis humani generis, an enemy of all mankind.
These words—while somewhat muffled by the discourse of the day—still ring true and must be reaffirmed.

On June 27

On this day in ...

... 1888 (120 years ago today), Antoinette Perry (right) was born in Denver, Colorado. In 1905 she began a career on stage, then retired for a while after marriage. Eventually she moved into stage production and direction; among the plays she mounted was Harvey (1944), Mary Chase's Pulitzer Prizewinning tale of a man and his imaginary rabbit friend, later made into a movie. Perry was a founder and leader of the American Theater Wing, which operated Stage Door Canteens for servicemembers during World War II. Broadway's Tony Awards were launched in Perry's honor a year after her death in 1946.

... 1942, the arrest in the United States of 8 alleged Nazi saboteurs was announced by the FBI. The New York Times wrote that the men,

highly trained by direction of the German High Command at a special school for sabotage near Berlin, carrying cases of powerful explosives and nearly $150,000
in cash, were landed on the Long Island and the Florida coasts from submarines in the last fortnight with orders to blow up certain key plants and to cause panics in large cities ...

They were tried, convicted, and sentenced to death by military commission in short order, a result that the Supreme Court affirmed in Quirin (1942). That judgment has been much under discussion in the current debate on law and terrorism, in part because 1 of those executed as what the Court called an "unlawful combatant," 22-year-old former ROTC cadet Herbert Hans Haupt (left), was believed to hold U.S. citizenship. (photo credit)

Thursday, June 26, 2008

Guest blogger Amy Senier and IntLawGrrl Beth Van Schaack in dialogue on U.N. development

It's our great pleasure to feature a dialogue between today's guest blogger, Amy Senier (left), and IntLawGrrl Beth Van Schaack. The topic of the 1st and 2d posts? The Security Council's adoption of a reasolution on sexual violence and war.
Amy's a recent graduate of 2 Boston institutions: Northeastern University School of Law in Boston, home to another IntLawGrrl, Hope Lewis, and the Fletcher School of Law and Diplomacy at Tufts University, where she concentrated on international human rights and on law and development. During her legal studies, she interned at the Legal Resources Centre in Johannesburg, South Africa, the International Criminal Court, and the International Criminal Tribunal for the former Yugoslavia. Amy was a participant in the 2006 Sherman and Sterling International Rounds of the Jessup International Moot Court Competition and has volunteered for the Massachusetts-based NGO Physicians for Human Rights and for the Brennan Center for Justice at New York University School of Law. Prior to attending law school, Amy was a Peace Corps volunteer in Namibia.
She writes in honor of Constance Baker Motley (below right), the African-American attorney and civil rights advocate who earlier was the subject of an IntLawGrrls profile here. Motley, who litigated before the U.S. Supreme Court and other tribunals, became the 1st African-American woman on the federal bench when she was appointed to the U.S. District Court for the Southern District of New York in 1966. She served on that court for nearly 40 years; for 4 of them, she served as the 1st African-American woman Chief Judge. Motley, who today joins other IntLawGrrls transnational foremothers listed in the righthand column just below the "visiting from ..." map, died in 2005 at at 84.

Heartfelt welcome!

Security Council: rape is a “weapon of war”

The U.N. Security Council has unanimously adopted a resolution declaring rape to be a weapon of war, a development it's my honor to feature in this guest post, as part of a dialogue today with IntLawGrrl Beth Van Schaack.
The resolution was passed a week ago today, during a session chaired by Condoleezza Rice (right), U.S. Secretary of State, and attended by several other women government officials -- including Rama Yade (top left), France's Minister for Foreign Affairs and Human Rights, and Rt. Hon. Baroness Patricia Scotland (below right), the United Kingdom's Attorney General.
The move comes in response to reports that thousands of women are being raped and sexually abused amid conflicts from Burma to Sudan. Last year, the Security Council rejected a similar measure after several states -- including China and Russia -- argued that rape was a lamentable by-product of war that fell short of constituting a threat to international peace and security.
Notable characteristics of last week’s Resolution 1820 include:
►Recognition of rape and other forms of sexual violence as a war crime, an acknowledgement of several important international criminal law precedents.
►Recognition of sexual violence amid armed conflict as an impediment to the restoration of “international peace and security.” This could lay the groundwork for future Security Council response to widespread rape and sexual violence under Chapter VII of the U.N Charter.
►“Zero tolerance” for sexual violence perpetrated by U.N. peacekeepers.
►Recognition of the under-representation of women in peacebuilding operations and urging of the Secretary General and Special Envoys to “facilitate the equal and full participation of women at decision-making levels.” Out of the UN’s 17 active peacekeeping operations, only one is headed by a woman: Ellen Margrethe Løj of Denmark, Special Representative of the Secretary General to the UN Mission in Liberia (left).
While much more political will and donor commitment are needed to realize the goals of Resolution 1820, it represents a step forward in the push to eradicate the endemic rape and sexual violence that accompanies modern-day conflict.

The Security Council Gets It

At the end of last week, the U.N. Security Council (left and below right) unanimously adopted Resolution 1820, an historic resolution addressed to women, peace & security. As guest blogger Amy Senier describes above, this initiative was sponsored and chaired by U.S. Secretary of State Condoleezza Rice (below right). The last time the Security Council comprehensively addressed women, peace and security was eight years ago, with Security Council Resolution 1325. That resolution, for the first time, systematically considered how conflict affects women and children, recognized women's role in preventing and resolving conflict, called for the equal participation and full involvement of women in efforts to maintain peace and security, and advocated a gender perspective in peacekeeping. Resolution 1820 reiterates and expands upon these concerns.

The Resolution recounts how violence against women in situations of armed conflict has reached pandemic proportions and “appalling levels of brutality.” Indeed, Maj. Gen. Patrick Cammaert, a former U.N. peacekeeping commander, testified before the Council that


It has probably become more dangerous to be a woman than a soldier in an armed conflict.


For example, a World Health Organization survey of women in Liberia has revealed that 75 percent of women surveyed had been raped during the country’s civil war. (Photo below left is a clinic for women in Liberia that regularly sees rape victims--photo credit).
For most of human history, the rape and sexual abuse of women associated with the enemy was an expected spoil, inevitable by-product, or legitimate tactic of war. Even today, when such conduct is clearly unlawful under international humanitarian law, violence against women is often employed as a deliberate “tactic of war to humiliate, dominate, instil fear in, disperse and/or forcibly relocate civilian members of a community or ethnic group,” as noted by the Resolution. The presence of peacekeepers may actually increase the danger to women, and the Council's Resolution specifically condemned abuses and exploitation of women by U.N. peacekeeping forces.


A key observation contained in the resolution confirmed that sexual violence against women

can significantly exacerbate situations of armed conflict and may impede the restoration of international peace and security.

Accordingly, the Council acknowledged that

effective steps to prevent and respond to such acts of sexual violence can significantly contribute to the maintenance of international peace and security.

Notwithstanding these key observations, China, Russia, Indonesia and Vietnam apparently all raised the question of whether sexual violence in armed conflict is a matter for the Security Council, whose mandate is to address threats to and breaches of international peace.
As has been demonstrated by such landmark cases as Akayesu (ICTR), Furundžija (ICTY), and Kunarac (ICTY), rape and other forms of sexual violence can constitute a war crime, a crime against humanity, and a predicate act of genocide. The Security Council stressed the importance of ending impunity for such acts and ensuring women and children equal protection under the law and equal access to justice. To this end, the Council called on states to exclude sexual violence crimes from any amnesty provisions promulgated in conflict resolution processes. The Council also encouraged states to structure their judicial and health systems to provide sustainable support to victims of sexual violence in armed conflict and post-conflict situations. The Council threatened to consider "targeted and graduated measures" in its sanctions regimes against parties employing sexual violence in situations of armed conflict.

It may be tempting to critique the Resolution as just one more example of toothless rhetoric emerging from the United Nations. It has the potential, however, to have real consequences when it comes to ensuring that acts of sexual violence are prosecuted before the International Criminal Court and other international and domestic tribunals. The ICC Statute in particular contains a number of "gravity" clauses that could be invoked to limit the jurisdiction of the Court or influence prosecutorial discretion. For example, Article 1 indicates that the Court is empowered to exercise its jurisdiction over persons for "the most serious crimes of international concern." Likewise, Article 8(1) indicates the Court has jurisdiction over war crimes "in particular when committed as part of a plan or policy or a part of a large-scale commission of such crimes." To convict an individual for war crimes for criminal acts committed during a time of war, the prosecutor must demonstrate some nexus with the armed conflict.
By recognizing that acts of sexual violence are serious, exacerbate armed conflict, and are often the result of a deliberate policy to subjugate an enemy community, Resolution 1820 will dispel arguments that sexual violence is a private or peripheral matter, unconnected to public events of international importance.

Resolution 1820 also requests the Secretary-General to submit a report a year from now on the implementation of this resolution in the context of situations on the Council's agenda.
So, stay tuned...

On June 26

On this day in ...
... 2003 (5 years ago today), in Lawrence v. Texas, the U.S. Supreme Court, by a vote of 6 to 3, overruled 17-year-old precedent to hold that The Constitution's guarantee of due process forbade criminal punishment of petitioners, Tyron Garner and John Geddes Lawrence (left), for same-sex sodomy. The majority opinion by Justice Anthony M. Kennedy relied in part on foreign law -- especially, legal developments in Britain and in the European Court of Human Rights -- a feature about which I've written here. (photo credit)
... 1963 (45 years ago today), after "cheering crowds lined every foot" his motorcade passed, and before 120,000 persons in the plaza of the Schöneberg Rathaus, or city hall, at right, U.S. President John F. Kennedy "made a ground-breaking speech in Berlin offering American solidarity to the citizens of West Germany." The speech (full text here) contained these now-famous words:

All free men, wherever they may live, are citizens of Berlin, and therefore, as a free man, I take pride in the words, 'Ich bin ein Berliner.'

Wednesday, June 25, 2008

Gitmo & the Inter-American Commission

The central question facing the U.S. Supreme Court (left) in Boumediene was:
To what extent does the privilege of the writ of habeas corpus extend to foreign nationals detained within the unique jurisdictional circumstances of Guantánamo?
This question is situated within a larger inquiry about the extent to which various provisions of the Constitution apply extraterritorially as exemplified by such cases as United States v. Verdugo-Urquídez (1990) (finding that the warrant clause of the 4th Amendment does not apply extraterritorially). In Boumediene, the Court answered the genus question regarding habeas rights, which no doubt will shed light on the larger question in future cases.
One key factor underlying the Court’s ruling in Boumediene that petitioners are entitled to enjoy the privilege of habeas corpus was the degree of control exercised by the United States over Guantánamo (below left & right). The Court determined that although “ultimate sovereignty” over Guantánamo continues to reside in Cuba, the United States exercises “complete jurisdiction and control” (Slip Op. 23 & 25). This control is “absolute” and “indefinite” (Slip Op. 38), such that Guantánamo is within the “constant jurisdiction” of the United States (Slip Op. 39). It was also dispositive that no other law applies on Guantánamo: “[n]o Cuban court has jurisdiction to hear these petitioners’ claims, and no law other than the laws of the United States applies at the naval station” (Slip Op. 21). Indeed, the Court was confident that an order from a federal court would be obeyed at Guantánamo. In so holding, the Court rejected the Government’s contention that “de jure sovereignty is the touchstone of habeas corpus jurisdiction” (Slip Op. 25).
In focusing not on “the formal legal status” of Guantánamo, but rather on “the objective degree of control the United States asserted over it” (Slip Op. 24), the Court’s reasoning mirrored the functional approach adopted by many human rights tribunals that have addressed similar questions of the extraterritorial application of their constitutive treaties. In particular, the Court’s ruling largely vindicated the determinations made by the Inter-American Commission on Human Rights in an ongoing proceeding against the United States. (The Inter-American Commission on of Human Rights has jurisdiction over the United States by virtue of its membership in the Organization of American States (below right) for violations of the American Declaration of the Rights and Duties of Man.)
In these proceedings, petitioners—Guantánamo detainees represented by the Center for Constitutional Rights—had sought precautionary measures (a protective mechanism like a preliminary injunction employed to preclude the imminent perpetration of human rights violations) against the United States. Employing the lexicon from Article 5 of the Geneva Conventions, the detainees sought in particular a determination from a “competent tribunal” of their legal status, as well as of the rights and protections to which they are entitled under U.S. domestic and international law. The Commission determined that a state’s responsibility for violations of international human rights committed against a particular individual
turns not on that individual’s nationality or presence within a particular geographic area, but rather on whether, under the specific circumstances, that person fell within the state’s authority and control.

The Commission determined that because doubt existed as to the detainees’ prisoner-of-war status, they should be accorded access to a competent tribunal to determine their legal rights.
These precautionary measures were reiterated several times as new information emerged about:
► detainee mistreatment;
► the potential use of evidence extracted by torture in legal proceedings before military commissions; and
► instances of refoulement to places where detainees risked further mistreatment.
Eventually, the Commission amplified the precautionary measures when it urged the U.S. to
take all necessary steps to conduct independent, impartial and effective investigations into the allegations of the torture or cruel, infamous and unusual treatment of detainees under its custody and control, and, where such treatment is found to have occurred, to prosecute those responsible, including those who may be implicated through the doctrine of superior responsibility.

In a subsequent communication, the Commission determined that the proceedings before the Combatant Status Review Tribunals (CSRTs) and the Administrative Review Boards (ARBs) did not adequately respond to the concerns underlying the Commission’s request for precautionary measures.
In finding that the United States’ obligations under the American Declaration apply wherever it exercises "authority and control,” the Commission echoed the findings of other human rights institutions to consider the question of extraterritorial application of treaty obligations.
With the exception of a short foray into the multifaceted nature of state sovereignty, the Boumediene majority opinion is devoid of any reference to international law, as the questions presented were fully able to be resolved through a determination of the constitutional reach of the privilege of habeas corpus. Indeed, the Boumediene opinion provides a definitive history of the writ of habeas corpus—its origins (Magna Carta, left), profound purpose, vulnerabilities, and safeguards. Nonetheless, there are openings in the Court’s opinion where the universal human right to judicial review might have entered the Court’s consideration. In particular, the Court eschewed a purely originalist or historical approach to understanding the contemporary reach of habeas rights by noting the potential for the protections of the Suspension Clause to expand along with post-1789 developments (Slip Op. 15-16). The codification of rights to habeas corpus and its equivalents (e.g., amparo) in the omnibus human rights treaties represents one important modern development that provides international law fortification to the Court’s ruling. The Supreme Court's ruling demonstrates a high degree of convergence with rulings from international human rights institutions as they have grappled with similar questions about the extraterritorial reach of human rights treaties, as I have elaborated upon here.

(Partially cross-posted and expanded on Jurist's hotline.)

On June 25

On this day in ....

.. 1993 (15 years ago today), Kim Campbell was sworn in as Canada's 1st woman Prime Minister. "Facing a series of formidable tasks, including reducing a yawning federal budget deficit, balancing demands of Quebec- and English-speaking provinces and preserving national health and other social programs," the New York Times wrote of Campbell's government-reduction and other cost-cutting measures, the new Prime Minister said her Cabinet heralds 'a new approach to government and a new generation of leaders for Canadians.'" She did not last a year, resigning from her post and retiring from electoral politics in December 1993. (credit for Merna Forster's 2004 photograph of Campbell unveiling her official portrait)

... 1950, the U.N. Security Council denounced North Korea's invasion of South Korea. By Resolution No. 82, it labeled the action a breach of the peace and called for an immediate end to fighting.

Tuesday, June 24, 2008

Is Obama "Backtracking" on NAFTA?

"I will make sure that we renegotiate [NAFTA]"
--Barack Obama (Feb. 26, 2008)

The Talking Heads are buzzing over a Fortune magazine interview with Barack Obama. What's all the excitement about? During the democratic primaries, Obama famously called North American Free Trade Agreement "devastating" and "a big mistake," and he promised to renegotiate the agreement. But in the Fortune interview, Obama allegedly said "Sometimes during campaigns the rhetoric gets overheated and amplified . . . Politicians are always guilty of that, and I don't exempt myself."

So is the presumptive Democratic nominee backtracking on his anti-NAFTA stance? You would think so from the hue and cry coming from the left. The Nation immediately published a story proclaiming "Obama Goes Soft on Free Trade." Columnist John Nichols wrote "All that is required is that Barack Obama campaign as a critic of the North American Free Trade Agreement and other deals that have battered workers, farmers, communities and the environment ... Unfortunately, [Obama], who sent so many smart signals on trade issues when he was competing with Hillary Clinton . . . appears to now be backtracking toward the insider territory occupied by McCain."

I'm not sure how a comment that politicians sometimes indulge in hyperbole (big surprise!) somehow translates into a wholesale rethinking of trade policy, but if it is true that Obama is backtracking I for one would applaud the move. In an op-ed published a few months ago, I noted Obama's (and Clinton's) I-hate-NAFTA-more rhetoric is dangerous. It is dangerous for precisely this reason. Once a candidate flirts with the radical edge of the anti-free trade camp, it is really hard to come back to the middle path without being accused of "backtracking."

I had always found Obama's claim that he would renegotiate NAFTA suspect. Having been involved in a number of trade deals while I was at the Office of the U.S. Trade Representative, I know first-hand that negotiating an agreement as complex as NAFTA is no easy task. There are constituencies from all possible sides: those who want us to get greater concessions from our partners so they can export more goods; those who want fewer restrictions so they can import more goods; those who want an agreement vastly different from what's on the table; those who want no agreement at all; and those who just want to be ornery. And what about our trading partners--do you think maybe they might have a thing or two they would like to renegotiate if the opportunity arose? Satisfying those competing interests is next to impossible, and once you finally get a deal that everyone can sign on to (even if no one is optimally happy), you don't go opening up the same can of worms again.

Besides, Obama has never styled himself a true anti-free trade crusader. He has on a number of occasions noted there are both costs and benefits to free trade. Even in the language I quoted above, Obama did not call for a wholesale dismantling of NAFTA but rather advocated that "we should use the hammer of a potential opt-out as leverage to ensure that we actually get labor and environmental standards that are enforced."

Both Obama and economic advisor Austan Goolsbee were ridiculed in the press when Goolsbee went to the Canadians shortly after the Cleveland debate to reassure them that his boss' rhetoric was "more reflective of political maneuvering than policy." Perhaps I am a cynic, but I was surprised that so many failed to make a distinction between political speeches and trade policy. Trade policy is a dirty job of political maneuvering, horse trading, and rejoicing in incremental achievements. But like planting seeds in a vegetable garden, the end result of all that dirty work is lots of edible goodies, which are mostly good for you (although they are sometimes bitter).

If Candidate Obama is doing a bit of shuffling in order to return to middle ground, all I can say is "Shuffle on!"

(Cross-posted at Trade Voices.Com)

On June 24

On this day in ...

... 1983 (25 years ago today), astronaut Dr. Sally K. Ride (left), the United States' 1st woman in space, returned to Earth after completing a 6-day flight in the Challenger space shuttle. The 32-year-old Ride, the 3d woman ever to travel in space, is a former tennis champion. Ride received a Ph.D. in physics from Stanford University in 1978, the same year she entered NASA's training program. Among her books is To Space and Back (1989), written with Susan Okie.

... 1859, French and Sardinian troops fought Austrian troops in the Battle of Solferino, the carnage of which inspired establishment of the International Committee of the Red Cross. More than 6,000 persons were killed and 40,000 wounded in a day; those of the latter who could headed to Castiglione, the village nearest the battlefield, in what is now northern Italy. There the Geneva, Switzerland-born Jean Henri Dunant, also known as "Henry Dunant, helped by local women, cared for the wounded and dying for three days and three nights." Dunant recounted the experience in A Memory of Solferino, 1st published in 1862. He would win the 1901 Nobel Peace Prize.