Tuesday, September 30, 2008

JFK's Trade Legacy

This year marks the 45th anniversary of JFK's assassination in Dallas, Texas. To commemorate the occasion, and to celebrate the President's historic visit to the University of North Dakota shortly before his death, UND held an exciting interdisciplinary conference entitled "John F. Kennedy: History, Memory, Legacy."

Attendees included such luminaries as Ted Sorenson, the President's speechwriter, and Richard Reeves, the noted former New York Times columnist. Also in attendance was my colleague Brian Landsberg who began working at the Justice Department's Civil Rights division in 1964. Over his 30 year tenure at Justice, Brian litigated many of the landmark civil rights cases of the last century--including cases on school desegregation and voting rights. I was privileged to have also been invited to the conference to discuss Kennedy's trade legacy.

Although few outside of trade circles recognize it, Kennedy has had a powerful influence on the modern trading system. He managed to get Congress to pass the Trade Expansion Act of 1962 at a difficult time both domestically and internationally. On the domestic front, a powerful oil lobby oppossed trade liberalization, the U.S. economy was in a recession, American workers feared the impact of a trade deal on their jobs, and a fairly isolationist general public was suspicious and resistant to a new trade deal. Internationally, JFK had to confront a newly-expanding European Community, the struggle for the hearts and minds of developing countries, and of course The Cold War. Despite these many competing interests, Kennedy recognized the needs of the United States was best served by a trade deal that provided greater economic opportunity for all. He masterfully worked with competing constituencies to ensure passage of the Act.

As a result of his efforts, the Kennedy Round of international trade negotiations was launched at the GATT (the precursor to the WTO). Although he would not live to see the launch of the Round, Kennedy's legacy was historic. When concluded, the Kennedy Round changed the face of international trade, shifting from a primary focus on tariff reductions to the important work of providing a legal structure for trade.

Kennedy was neither a fierce supporter or opponent of free trade. Rather, he recognized that, properly managed, free trade provided more benefits than detriments. He was ultimately a pragmatist, and both the country and the world was better of for it. I hope the next president studies and emulates Kennedy's successful trade policies.

Free! Treaties

News to delight anyone who's seen her online treaty research screech to a halt with a "subscribers only" screen:
The United Nations Treaty Collection is new, improved -- and free.
To find texts, ratification/accession status, photos, and other information, in English and French, on all the multilateral treaties that are deposited with the U.N. Secretary-General and/or registered with the U.N. Secretariat, click here. (To ease access for all IntLawGrrls readers, we've added the site to our "connections" list at right.)
Heartfelt thanks to the Treaty Section of the U.N. Office of Legal Affairs for this innovation!

On September 30

On this day in ...
... 1938 (70 years ago today), in Germany, leaders of that country as well as Britain, France, and Italy concluded the Munich Pact, which took the Sudetenland (below right, in red) from Czechoslovakia and gave it to Germany. Though applauded by some at the time, the effort to avert further German aggression failed so miserably that critics' contemporary description of the Pact -- "appeasement" -- retains pejorative power to this day. (credit for German postcard above, which depicts Pact signers, left to right, Neville Chamberlain of Britain, Édouard Daladier of France, Benito Mussolini of Italy, and Adolf Hitler of Germany)
... 1938 (70 years ago today), the League of Nations unanimously approved a resolution on the Protection of Civilian Populations Against Bombing From the Air in Case of War, which maintained that:
► "The intentional bombing of civilian populations is illegal";
► "Objectives aimed at from the air must be legitimate military objectives and must be identifiable"; and
► "Any attack on legitimate military objectives must be carried out in such a way that civilian populations in the neighbourhood are not bombed through negligence".
As was the case with many other acts by the League, this did little to deter massive aerial bombardment of civilians, by both Allied and Axis Powers, in the World War II years that followed.

Monday, September 29, 2008

France giveth to the ICC, but ...

... taketh France away as well?
Better late than never comes news that this summer France now fully accepts the jurisdiction of the International Criminal Court, even as to allegations that war crimes were committed by its nationals or on its territory. It joined the ICC in 2000 during the Presidency of Jacques Chirac (below, at far left). At that time France -- alone among all states parties so far -- invoked Article 124 of the Rome Statute of the ICC in order to put a 7-year hold on war crimes jurisdiction. The switch of positions is largely cosmetic given that France's "hold-on-a-minute" declaration would have expired on its own in mid-2009. (Other "interpretive declarations" by France, detailed here, apparently remain intact.) Still, withdrawal of the declaration operates as an endorsement of the ICC, and that has to be a good thing.
Less clear: whether France's behavior in the interim several months will prove an equally good thing.
In mid-September IntLawGrrls posted on machinations at the U.N. Security Council in reaction to the request for a head-of-state warrant in connection with the war his government is waging in the western Sudan region of Darfur. Debate concerns whether to defer the case for a year by invocation of Article 16 (inapt, at least 1 Rome Statute negotiator argues). Though there's been much focus on resistance by 1 member of the Council's Permanent Five -- China -- others in the P-5 also may favor deferral.
A trial balloon floated into public view on September 19, when Agence France-Presse reported the indication by an unnamed aide to France's current President, Nicolas Sarkozy, that
France is not hostile to a suspension of the ICC proceedings targeting Sudanese President Omar al-Bashir, accused by the prosecutor of genocide in Darfur, on the condition that Khartoum make a 'gesture.'

Asked what "gesture" might suffice, the aide demurred, noting only that the ICC prosecutor already had targeted 2 other Sudanese -- neither of whom Khartoum has turned over to The Hague. (credit for above AP photo of Bashir with Chirac, at 2007 summit in Cannes)
Last week reports surfaced that Sarkozy himself confirmed the position while in New York for the opening of the U.N. General Assembly. According to Reuters,

Sarkozy announced that if Sudan changes its behavior and actively supports growing international calls for peace in Darfur, Paris would back suspending any indictments the International Criminal Court (ICC) issues against Sudanese President Omar Hassan al-Bashir.
Sarkozy made clear there would be strings attached. In a speech to the U.N. General Assembly, the French leader said Sudan would have to 'radically' alter its policy towards Darfur, where international experts say at least 200,000 people have died since 2003. It would have to remove a cabinet minister indicted for war crimes in Darfur from the Khartoum government and stop delaying the deployment of international peacekeepers.

Curiously, the official French government account of the speech says only that Sarkozy mentioned Darfur only once -- that he opened his U.N. address by declaring:

'On ne peut pas attendre pour faire la paix et mettre fin à la tragédie du Darfour.'
that is,

'We cannot wait to make peace and put an end to tragedy in Darfur.'

But other accounts (here and here) affirm that Sarkozy called for "radically" changing Sudanese policies at a press conference during the same GA session; indeed, with these words he made such change a Sudanese sine qua non:
'Things must be clear, there will be no recourse to Article 16 unless there is radical and immediate change in Sudan’s policies.'

Perhaps in keeping with that claim, France last week helped broker a 6-month extension of the mandate of the U.N. Human Rights Council's Special Rapporteur on Sudan -- an extension secured notwithstanding that Sudan's diplomat "violently attacked" the "extremely critical" report delivered by that rapporteur, Sima Samar (right), who's served in Cabinet posts in Afghanistan and heads the Afghanistan Independent Human Rights Commission.
Now we must wait, to see how France and others in the P-5 next move through the Sudan/Darfur/ICC mess.

On September 29

On this day in ...
... 1988 (20 years ago today), in Oslo, Norway, the Nobel committee announced its decision to award the 1988 Nobel Peace Prize to the United Nations' peacekeeping forces. These troops nicknamed "blue helmets," the committee wrote, "represent the manifest will of the community of nations to achieve peace through negotiations"; moreover, "the forces have, by their presence, made a decisive contribution towards the initiation of actual peace negotiations."
... 1908 (100 years ago today), in Lucerne, Switzerland, a Conférence internationale pour la protection du travail -- that is, International Conference for the Protection of Labor -- convened in order to ban night-time industrial work for children under age 14. (photo credit)

Sunday, September 28, 2008

"Technology Transfer": Assistive Technology and Disability Rights

(Part of a series on disability human rights.) Friends know that I’ve been experimenting lately with new assistive technology for low-vision or blind users. (Click on the following links for an especially helpful list of U.S. government, non-profit, private vendor, and grassroots blind user resources maintained by the Perkins School for the Blind as well as lists of device and software descriptions from the National Federation of the Blind and the American Foundation for the Blind
I can enter into such adventures more easily than most as a privileged law professor who lives in the Global North, but challenges remain even for those with the highest level of practical access.
The internet is a treasure-trove of useful information as well as a wildly effective organizing tool, including for persons with disabilities (PWD). On the other hand, the technology and training required to make the internet accessible can be out of reach for many of the estimated 650 million people with disabilities (PWD) around the world. (Photo above: Students in technology training class, Carroll Center for the Blind, (c) 2008).
Web designers may forget to offer accessibility options. Some unscrupulous vendors overcharge PWD, state agencies, or their employers for technology otherwise easily available in mainstream contexts. Mainstream vendors or service providers may head for the hills when PWD ask to speak with their (often non-existent) “accessibility coordinator” about the best way to configure equipment or software.
The many reputable professionals at agencies, non-profits, and vendors who do care passionately about serving their clients have to constantly justify the unique benefits of their services or products in helping people achieve their potential. And, as in all aspects of mainstream information services, assistive technology is constantly and rapidly changing. “It’s a small, specialized market,” some say, so there’s just no incentive to pay attention to the needs or goals of PWD in this area.
All this despite the fact that assistive technologies originally developed for consumers with disabilities often become mainstream For example, my computer was “talking” and I was reading audiobooks and scanned materials long before they became part of everyday popular culture for the non-disabled. Physicians and lawyers now routinely use voice recognition software to dictate medical records and briefs, while cellphone users use it to tell their devices to "call home."
And it is simply untrue that the “market” is small. In reality, the market depends much more on who is defined to be “mainstream” (an aging baby-boomer who needs reading glasses?) and the low expectations we have about who will use assistive technology and why. Why, some asked a decade ago, would people in poor rural villages use cellphones or laptops? Turns out, they do use them, for everything from checking on distant relatives, to figuring out market prices for farm goods and teaching children to read.
The reasonable accommodations necessary to ensure access to information, cultural exchange, and scientific advancement are human rights. They are also crucial if PWD are to remain full participants in building a sustainable and equitable global economy. Yet such access all too often remains hard to come by.

A Better World is Possible
The knowledge and talents evidenced by farmers, musicians, doctors, nurses, lawyers, teachers, activists, computer programmers, parents, shopkeepers and small business owners, athletes, and, yes, even politicians and bankers don’t disappear if they develop a disability. Similarly, children born with disabilities can and should aspire to reach their dreams just as strongly as non-disabled children. (Photo at left: Participants in Vision 5K Run, Carroll Center for the Blind (c) 2008)
An inclusive society can also be a flourishing society when all its members are treated with respect and enabled to reach their potential.
By contrast, we all know what happens when millions are denied basic needs, socially marginalized, and subjected to violence and poverty.
International conventions and national laws cannot solve all the challenges facing those with disabilities.
But they can help educate policymakers and judges, set standards, and provide a supportive tool for litigation and political strategies. The right to access to information and reasonable accommodations are an important aspect of that struggle in today’s rocky global economy.

Go On! ASIL Leadership California Tour

(Go On! is an occasional item on symposia of interest.) California international lawyers will be treated this week to visits from two leaders of the century-old, D.C.-based American Society of International Law: President Lucy Reed (below left), a partner at the New York office of the Freshfields law firm, member of the Eritrea-Ethiopia Claims Commission, and IntLawGrrl, and Executive Director Elizabeth Andersen (below right). Coordinating the events is ASIL-West, the regional pilot project of which yours truly's a co-chair. Here's the itinerary:

Wednesday, October 1: Sacramento/Davis area
12 noon: Networking International Law, a lunchtime discussion with Lucy Reed and Betsy Andersen at the University of California Davis, School of Law (Martin Luther King, Jr. Hall). Cosponsored by the King Hall International Law Society.
6 p.m.: New Types of International Courts and Tribunals, dinner and discussion featuring Lucy Reed, Betsy Andersen, and Pacific McGeorge Law Professor Stephen C. McCaffrey; moderated by California-Davis Law Professor Andrea K. Bjorklund. At the University of California Davis, School of Law (Martin Luther King, Jr. Hall).

Thursday, October 2: San Francisco Bay Area
12:30 p.m.: Contemporary International Tribunals: From Investment Disputes to War Crimes, lunch discussion featuring Lucy Reed, at Stanford Law School, Palo Alto.

4:30 p.m.: Vice Presidential Debate Party. Begins with pre-debate foreign policy/international law panel featuring Lucy Reed, Betsy Andersen, and 3 former State Department officials now based in the Bay Area: William D. Kissinger, Abraham D. Sofaer, and Allen S. Weiner. Followed by dinner and viewing of debate between Joe Biden and Sarah Palin, respectively, the GOP and Democratic nominees for Vice President. At Munger Tolles Olson law firm in San Francisco. Registration (required) here.

Friday, October 3: Los Angeles
11 a.m.: International Criminal Justice: Does It Work? Public lecture by Judge Theodor Meron of the International Criminal Tribunals for the former Yugoslavia, with commentary by General Wesley K. Clark (ret.), former Supreme Allied Commander of NATO, moderated by UCLA Law School's David Kaye, at that law school.

Saturday, October 4: Orange County
6 p.m.: Debating International Law Since 9/11: Principled & Pragmatic Controversies, lecture by Richard Falk, Betty & Wylie Distinguished Visiting Professor of Law, Chapman University School of Law, at that law school, located in Orange.

'Nuff said

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


The pirates are highly organized. They work in teams. There is even a pirate spokesman (who could not be reached for comment on Friday).

-- Jeffrey Gettleman, in a New York Times article about 21st C. piracy, a phenomenon on which IntLawGrrls often has posted.
Think my 16th C. transnational foremother had her own advance team?


On September 28

On this day in ...

... 1958 (50 years ago today), French voters approved the Constitution of the Fifth Republic. The change occurred in the wake of May 1958 "[r]ioting in Algiers by the French population of Algeria," which had "led to the fall of the last government of the Fourth Republic." Still in effect today (albeit recently altered, as IntLawGrrl Naomi Norberg posted), the 1958 Constitution expanded the powers of the President.

... 1945, U.S. President Harry S. Truman proclaimed the "Policy of the United States With Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf":

Having concern for the urgency of conserving and prudently utilizing its natural resources, the Government of the United States regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control. In cases where the continental shelf extends to the shores of another State, or is shared with an adjacent State, the boundary shall be determined by the United States and the State concerned in accordance with equitable principles. The character as high seas of the waters above the continental shelf and the right to their free and unimpeded navigation are in no way thus affected.

Truman's proclamation, which had the effect of extending U.S. boundaries as depicted above left, "soon became the trend setter and was immediately followed by similar unilateral declarations"; these led to the formation of customary international law giving coastal States rights" that were, in turn, "universally accepted by the 1958 Geneva Convention on the Continental Shelf."


Saturday, September 27, 2008

Humans charge rhino

The 1st lesson of Journalism 101, on news judgment, goes something like this: "'Dog bites man' is not news. 'Man bites dog,' now that's news!"
The headline above is in much the same vein.
Popular culture paints the image of the madbull rhino charging hapless humans. But these days the real threat operates in reverse.
In Zimbabwe, poaching of the rhino, an endangered species, has spiked. There've been 70 rhino-poaching deaths in Zimbabwe since 2000, compared with zero the prior 7 years. Not surprisingly, the spike's paralleled a "breakdown" in enforcement of laws forbidding poaching, a lucrative practice on account of the profit possible in illegal smuggling of the ivory of rhino tusks. Exemplifying this breakdown:
the recent release of a gang of four Zimbabwean rhino poachers who admitted to killing 18 rhinos in five different areas of central Zimbabwe, including a semi-tame group of black rhinos slaughtered in their pens at Imire Safari Ranch.
One of several NGOs at work on this issue is the World Wildlife Federation-International. In the words of Dr. Susan Lieberman (below), Director of WWF's Species Programme:
The lack of enforcement and increased poaching pressure in Zimbabwe now threaten to reverse the excellent trends in rhino populations of recent years. WWF calls on the authorities in Zimbabwe to take much stronger action against the internal poaching networks or the recent progress made in rhino conservation in Zimbabwe will be lost.
Full story here.

On September 27

On this day in ...
... 1998 (10 years ago today), Google was born; that is, the California-based enterprise -- the websearch engine that IntLawGrrls (among many others) cannot do without -- incorporated as a privately held corporation.
... 1993 (15 years ago today), following a bloody 11-day siege, "separatist rebels in the northwestern region of Abkhazia," Georgia, "captured the Abkhazian capital Sukhumi." An October 1993 Time article recapping events contained passages whose prescience is apparent now that violence between Russian and Georgian troops has flared not only in Abkazia, but also in another would-be breakaway region of Georgia, South Ossetia -- and now that Russia's declared its recognition of Abkhazia and South Ossetia as states:
The revolt in Abkhazia, where a small minority of ethnic separatists want an independent state, has put the fate of Georgia on the line.

and
Ironically, the principal architects of Georgia's predicament may be the same Russian military commanders who are supposed to be enforcing the U.N.-sanctioned cease-fire.
and
What is happening to Georgia today could be repeated all along the fringes of the old Soviet empire tomorrow.

Meanwhile, an article published in Thursday's LeMonde indicates that the tension caused by the Georgia-Russia standoff may be spilling over into other areas -- such as the Russian cancellation of a planned interstate meeting this week, and, "notably, the question of Iran's nuclear program?" (credit for map showing Abkhazia in yellow, the rest of Georgia in pink, and Russia in brown)


Friday, September 26, 2008

Mukasey Mops Up

Attorney General Michael Mukasey may be starting to make some headway into the mess that Ashcroft and Gonzales made of our asylum system. First, on Monday, he vacated and remanded the Board of Immigration Appeals' A-T- decision (about which I first posted here). A-T-, a young woman from Mali, applied for withholding of removal (a status similar to asylum but requiring a higher standard of proof and providing fewer benefits) on various grounds, namely that she had been forced to undergo female genital mutilation (FGM) as a young girl, that she didn't want her daughter to be subject to FGM, and that she feared forced marriage to her cousin were she to return to Mali. The immigration judge in her case held that because A-T- couldn't remember the mutilation, she had not suffered past persecution. The Board of Immigration Appeals, the immigration system's administrative review body, decided that because A-T- had suffered FGM in the past, she could not be subjected to FGM in the future, and therefore could not have a well-founded fear of future persecution. Mukasey, thankfully, understood the errors in the Board's reasoning, and explained in his opinion that FGM can be and often is inflicted numerous times on the same woman. Moreover, he underscored that future persecution need not take the exact form of past persecution -- asylum law requires only that the harm be inflicted for the same reason as it was in the past. While Prof. Kevin Johnson over at ImmigrationProf Blog may be right that this is just a cynical election-year ploy, there's still plenty of room to celebrate for A-T-, women who've suffered FGM, and their daughters.
And on Wednesday, Mukasey decided not to reconsider the Board's decision affirming an immigration judge's grant of asylum in the Nadarajah case (which I've written about here). Almost seven years ago, at the age of 20, Ahilan Nadarajah fled Sri Lanka, where he had been horribly tortured, to seek asylum in the United States. In the words of his lawyer:
He was detained for four and a half of those nearly seven years, based on false secret evidence that he was a threat to national security. Even after we won his habeas, the government continued to subject him to electronic monitoring and a curfew until we sued to have those conditions removed. Even then, his immigration case continued to sit undecided before the AG, until yesterday.
While this victory is again great cause for celebration, it should give us all pause that our government locked up an innocent man who sought no more than his freedom in the United States, based on overblown and unverified rumors about his national security status. Here's hoping that Mukasey mops up a few more messes before he's done.

... and counting ...

(Occasional sobering thoughts.) Where to start in reviewing war news since our last post on August 21? As we await a planned 1st Presidential debate this evening -- the focus of which is supposed to be foreign policy/national security -- a review of events seems very much in order.

Pakistan
Begin, perhaps, with what appears to be the uncovering of a 3d front for armed conflict involving the United States. It's in Pakistan, where, as IntLawGrrl Naomi Norberg posted on Sunday, a terrorist bomb so devastated part of downtown Islamabad that media there were calling it the country's 9/11. (Excellent posts on same may be found at Steve Coll's blog at The New Yorker website, which I've just discovered. Coll, as IntLawGrrls posted a while back, is the Pulitzer Prizewinning author of a masterful book on U.S.-Pakistan operations pre-9/11.). Today's news from that troubled part of the world, courtesy of the Los Angeles Times: "U.S., Pakistan troops exchange fire on Afghanistan border. The Pentagon calls it a misunderstanding and denies that U.S. helicopters crossed the border into Pakistan's tribal regions." One fears the need soon for a website chronicling casualties there.
(Must say, too, that the man who replaced Pervez Musharraf does not instill confidence that things in Pakistan will improve. This week's flirting by President Asif Ali Zardari -- widower of the assassinated Benazir Bhutto -- with GOP VP candidate Sarah Palin was beyond creepy. (photo credit))

Afghanistan
Move, then, to Afghanistan. A core concern of this recurring feature, civilian casualties, continue to mount:
This year is on pace to be the deadliest for civilians since the Taliban were toppled by the American-led invasion in 2001. More than 1,445 civilians have been killed so far in 2008, and slightly more than half of those deaths, tallied by the United Nations, are attributed to insurgent forces.
This month Robert Gates, U.S. Secretary of Defense, "express[ed] his 'sincere condolences'" to the Afghan people "and promis[ed] speedier compensation and investigation after such casualties." The apology came not long after Afghan leaders demanded a SOFA, or status of forces agreement, spelling out troops' responsibilities. They called for an end to aerial attacks as well. As for average Afghans, it's reported that "As Crime Increases in Kabul, So Does Nostalgia for Taliban." And in Washington, a U.S. National Intelligence Estimate in the works is said to be so "grim" on prospects in Afghanistan that the government plans to keep it secret till after the November 4 election.

Iraq
Shift to Iraq. Violence is by no means over, yet remains less than before. In the United States mainstream media attribute this to "the surge" of added U.S. troops. We've posted in the past that events before the surge might be the major cause. A newly released UCLA study supports that view, "suggesting that ethnic cleansing by rival Shiites may have been largely responsible for the decrease in violence for which the U.S. military has claimed credit." At the negotiating table, meanwhile, it seemed that the United States had reached an agreement that would allow its troops to remain with the Iraqis' OK -- on the condition that plans for eventual withdrawal be included in the agreement. That's stalled, however. Yesterday U.S. officials blamed Iran for the impasse in its talks with Iraq.

The Count
With this news in mind, we move, finally, to the casualty count. According to Iraq Body Count, between 87,643 and 95,664 Iraqi women, children, and men have died in the conflict in Iraq since the U.S.-led invasion in March 2003. That's an increase of between 982 and 1,107 deaths in the last 4 weeks. According to the U.S. Defense Department, 4,172 American servicemembers have been killed in Iraq. Total coalition fatalities: 4,486 persons. That's 27 servicemember deaths in the last 4 weeks, all but 1 of them Americans. On the other established front, military casualties in Afghanistan stand at 605 Americans and 376 other coalition servicemembers. That's an increase of 27 and 16, respectively, in the last 3 weeks, and a total servicemember casualty count just shy of 1,000.

On September 26

On this day in ...
... 1946, Christine Todd Whitman (left) was born in New Jersey. She was that state's Governor from 1996 to 2001, resigning to serve 2 years as Administrator of the Environmental Protection Agency. The author of It's My Party Too (2005), Whitman now leads a consulting firm and is founding co-chair of the Republican Leadership Council, the goal of which "is to support fiscally conservative, socially tolerant candidates and to reclaim the word Republican."
... 2000, thousands of anti-globalization protesters confronted riot police in Prague, Czech Republic, during an International Monetary Fund/World Bank summit. The international meeting would be cut short a day. (photo credit)

Thursday, September 25, 2008

Welcome guest bloggers Alessandra Arcuri and Rosa Castro Bernieri

It's IntLawGrrls' great pleasure to welcome Dr. Alessandra Arcuri (below right) and Rosa Castro Bernieri (below middle) as today's guest bloggers.
Alessandra is an Assistant Professor of Law and Economics and International Economic Law at Erasmus Universiteit Rotterdam, the Netherlands, from which she earned her Ph.D. in 2005. She earned her law degree with honors from La Sapienza University, Rome, Italy; an LL.M. in Law and Economics with honors from Utrecht Universiteit, the Netherlands. Alessandra has been a Global Research Fellow at New York University School of Law and a Marie Curie Fellow at Hamburg University in Germany. Her scholarship concentrates on on risk law, law and economics and international economic law.
Rosa is a Ph.D. researcher in law and economics at the Università di Bologna in Italy. She earned a law degree and tax law diploma from Andres Bello Catholic University in Caracas, Venezuela, where she practiced law for several years before moving to Europe and earning an LL.M. from Hamburg University in Germany. Her scholarship focuses on international issues related to intellectual property.
Their guest post below is based on a paper presented at this year's inaugural conference of the Society of International Economic Law. In it they analyze the implications of the recent judgment in which the High Court of India rebuffed a pharmaceutical company's international-law-grounded challenge to national law limiting the scope of items that may be protected by patents in that country.
Heartfelt welcome!


WTO law and India's patent limitations

Thanks for giving us the opportunity to guest post on our research concerning the relationship between free trade and intellectual property rights, set forth in our paper entitled How Innovative is Innovative Enough? Reflections on the Interpretation of Article 27 TRIPS from Novartis v. Union of India. The case studied is relevant, first, for understanding how developing countries can implement the law of the World Trade Organization (logo below right) in a way that is not harmful to their economies; second and more generally, to defy the misconception that WTO law demands the implementation of ‘pro-patents’ patentability standards.
In 2006, a major lawsuit was initiated by the Swiss pharmaceutical company Novartis AG. It targeted Section 3(d) of India's Patents Act. As amended in 2005, states:

(3) The following are not inventions within the meaning of this Act, --
(d) The mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.

In its lawsuit Novartis petitioned the High Court of Madras (left) to declare that Section 3(d) did not comply with the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights, better known as the TRIPS Agreement. On August 6, 2007, all the petitioner's requests were rejected by the High Court of Madras. The Court did not enter into the merits of the compatibility question, however, as it ruled that it had no jurisdiction on that issue.
Our analysis begins where the verdict of the High Court of Madras ends, as we study the compatibility question in substantive terms. The core of the question relates to the interpretation of Article 27 of TRIPS, which sets out the criteria for patentability (i.e. an invention should be non-obvious, novel and useful). Section 3(d) of India's Patents Act, which identifies cases of inventions that are non-patentable, can be conceptualized as a rule establishing heightened patentability standards. This makes it more difficult for a patent applicant to be granted patents.
Are the standards endorsed by Section 3(d), we ask, compatible with Article 27 TRIPS?
We conclude that they probably are. Our conclusions are derived from the analysis of the economic effects of the disputed rule. This analysis is due because the TRIPS Agreement lists among its purposes the promotion of social and economic welfare (Article 7 ). Customary rules of interpretation of public international law provide that the purposes of the Agreement are to be taken into account in order to clarify the wording of ambiguous rules; in this case the rule set out in TRIPS Article 27.
To assess whether Section 3(d) may contribute in achieving greater welfare, we reviewed a number of economic studies. Some focused on the general effects of a heightened nonobviousness standard; others, on the more contingent issue of the welfare effects of stringent patent regimes on the post-2005 Indian market for pharmaceuticals. Most of these studies suggest that Section 3(d) may contribute to promote welfare. Accordingly, it is likely to be compatible with the TRIPS Agreement.
Our analysis has a number of interesting implications. Most crucially for a general understanding of Article 27 TRIPS, we have shown that the degree of stringency of the patentability standards is far from obvious! ‘Pro-patents’ patentability standards do not necessarily enhance innovation; to the contrary, in many circumstances they can stifle it. This means that the belief that in the post-2005 regime India ought to adopt ‘pro-patents’ patentability standards is misguided. The standard carved into Section 3(d) appears legitimate, therefore; other developing countries may decide to follow suit.

(More WTO news below)


And for more on the WTO ...

... check out this ASIL Insight on the latest development in the trade battle over cotton prices.
That battle began in the last decade, explains the author, Professor Karen Halverson Cross (left) of Chicago’s John Marshall Law School. Brazil complained that subsidies the United States paid its cotton farmers had violated 2 World Trade Organization pacts; in particular, the Agreement on Agriculture. A WTO compliance panel agreed. Cross published on earlier steps in the litigation here; her Insight focuses on the June ruling in which the WTO Appellate Body sustained the compliance panel.
The ruling is unlikely to end the dispute at this time, when broader trade talks have failed, Cross writes. Brazil is expected to resume arbitration in an effort to secure countermeasures – that is, payment in the billions of dollars on account of the United States’ violation – and may even seek to retaliate.
Stay tuned.

'Nuff said

'It's not based on any particular data point. We just wanted to choose a really large number.'


-- An unnamed U.S. "Treasury spokeswoman" explaining how the government arrived at the $700 billion price tag for the proposed bailout to stem economic crisis (on which IntLawGrrls posted here and here), as quoted by Brian Wingfield and Josh Zumbrun, reporters for Forbes.com business magazine.


(credit for image of really big numbers)

On September 25

On this day in ...
... 1995, Dr. Bessie Delany (left), died at age 104 at her home in Mount Vernon, New York. She and her elder sister, daughters of emancipated slaves, had moved "from Jim Crow-era North Carolina" to New York during World War I; in 1923 she earned her DDS from Columbia University, the only African-American woman, and 1 of only 11 women, in the class. "Dr. Bessie" became a fixture in Harlem, a dentist who "treated the rich and poor equally." Late in life the sisters published a popular memoir, Having Our Say: The Delany Sisters' First 100 Years (co-authored with Amy Hill Hearth and Emily Mann, 1992). Her sister Sadie Delany (above right), an accomplished schoolteacher, would die 4 years later, at age 109.
... 1983 (25 years ago today), 38 Irish prisoners escaped from an "H"-block of a prison outside Belfast, Northern Ireland, that was variously known as Long Kesh or the Maze -- a prison that British authorities had called the continent's most secure. A prison officer was killed in the mass breakout. Half the escapers were soon caught; a few remain at large to this day. Several were found in California in the 1990s. Among them was Jimmy Smyth, whom I helped to represent in extradition proceedings. Smyth won in the federal district court, but lost in the Court of Appeals. (My essay on the case begins at page 622 here.) Closure of the prison (right) occurred in 2000 as a result of the 1998 Good Friday peace accords.

Wednesday, September 24, 2008

Write On! Global Sexual Orientation Law

(Write On! is an occasional item about notable calls for papers.) “The Global Arc of Justice: Sexual Orientation Law Around the World” is the upcoming topic of the fourth conference of the International Lesbian and Gay Law Association (logo below right). Co-sponsored by UCLA law school's Williams Institute on Sexual Orientation Law and Public Policy, the conference organizers seek papers and presentations on a wide range of topics, including (but not limited to):
►national or regional discussions of GLBTIQ legal developments on issues such as violence, criminalization of sexuality, couples recognition, parenting rights, transgender rights/gender identity and expression rights, employment discrimination, military policy, youth and education issues, etc.;
►comparative law or international human rights law analyses of these issues;
►legal, political, or social theories about how GLBTIQ rights are advanced;
►discussion of recent national and international court cases using arguments based on equality, dignity, liberty, etc.;
►the globalization of human rights (Yogyakarta Principles, etc.);
►challenges created by the diverse ways of conceptualizing sexual/gender identities for universal rights projects;
►the migration of GLBTIQ people including interjurisdictional recognition of rights and relationships;
►the effects of the demise of welfare states on GLBTIQ people;
►the effects of war and the war on terrorism on GLBTIQ people; and
►HIV/AIDS and human rights.
The conference will take place in Los Angeles and West Hollywood, California, from March 11 – 14, 2009. Proposals are due 5:00 pm PST on Saturday, November 15, 2008. For complete submission details, click here.

Bagaragaza Update: A Plea Saves the Day

We blogged earlier on the surreal scenario involving Michel Bagaragaza (left), an International Criminal Tribunal for Rwanda (ICTR) indictee. (Bagaragaza voluntarily submitted himself to the ICTR in connection with an agreement to cooperate with the prosecution; his cooperation apparently placed his life in danger, so he spent some time in detention in the Yugoslavia tribunal.)
Twice, Bagaragaza was slated for transfer for prosecution before European courts pursuant to Rule of Procedure and Evidence 11bis, an element of the tribunals' Security Council-mandated Completion Strategies. These two attempts failed as a result of flaws or gaps in the proposed venue's domestic law. As a result, Bagaragaza languished in pre-trial detention.
After his world tour, Bagaragaza was transferred back to the ICTR. He subsequently entered a confidential plea agreement with the prosecution in June 2008, making him the ninth defendant to plead guilty of genocide in Rwanda.
The most important guilty plea to emerge from the ICTR was that of Jean Kambanda (right), the former Rwandan Prime Minister. Kambanda received a life sentence even after pleading guilty and admitting that his government planned and implemented a genocidal campaign to eradicate Tutsi citizens.
As far as I can tell, Bagaragaza's plea remains confidential, as it might exonerate another accused. (His docket is available here.) Stay tuned...

On September 24

On this day in ...
... 1973 (135 years ago today), a movement begun 17 years earlier culminated in the African Party for the Independence of Guinea and Cape Verde unilaterally declaring Guinea-Bissau and Cape Verde independent from Portugal. De jure independence was achieved a year later for the each states -- Guinea-Bissau (top flag), located on the mainland of West Africa, and Cape Verde (bottom flag), a group of islands off the West African coast.
... 1852, Mercedes de Velilla (left) was born into a literary family in Sevilla, Spain. She herself would become an acclaimed poet; her principal works were published in collections entitled Ráfagas (1873) and Poesías, the latter published soon after her death in 1918.

Tuesday, September 23, 2008

Bhagwati Defends Globalization

These days, it is difficult to find an unadulterated defense of globalization. Given the state of our credit markets, it is perhaps not surprising. When you realize the current global economic crisis can be traced directly back to the greed of a few U.S.-based mortgage-backed lending institutions, it is difficult to mount a wholehearted defense of the all-for-one-and-one-for-all mentality of globalization. But the maverick Jagdish Bhagwati (right), famed economist and professor at Columbia University, does exactly that. In a recent interview entitled "Why the Critics of Globalization are Wrong", Bhagwati had this to say to protesters and naysayers:

Globalization is the target of many critics today. The young see it as a malign force in regard to social agendas. The workers see it as a pernicious force in regard to their economic well-being. But both sets of fears, and resulting opposition to (economic) globalization, especially via trade and multinationals, are mistaken.

Mistaken? Strong words in the face of this current economic crisis. But Bhagwati is adament that on balance, trade has been good not only for the rich but also for the poor. He argues that the global movement for gender parity, for example, owes much to the fact that "industries competing in the world economy face fierce competition and cannot afford to indulge their prejudice against women." As companies compete for labor in order to meet export demand, they are forced to offer women the same (or similar) wages and benefits to attract strong talent. Thus, the economic impact of globalization filters into a nation's social consciousness.
Bhagwati could not resist taking a jab at his equally famous colleague, the Nobel Prize-winning economist Joseph Stiglitz, whom Diane metioned in a post yesterday. Stiglitiz has claimed free trade provides little benefit to developing countries, an assertion Bhagwati dismisses as "nonsense."
Strong words for tough times.

On the Job! UNDP, ADR & equality in Pakistan

(On the Job! pays occasional notice to interesting intlaw job notices) The American Bar Association-U.N. Development Program International Legal Resource Center is seeking applicants for a UNDP program aimed at achieving gender equality in Pakistan via mechanisms of alternative dispute resolution (ADR).
The 30-day project's set to be go forward this fall; application deadline's this Friday, September 26. Any ADR expert should send c.v. and cover letter "express[ing] your interest in the position and outlin[ing] why your background is suitable" to gichingj@staff.abanet.org.