Saturday, January 31, 2009

A "New Deal" for Human Rights in the Global Economy

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
--Universal Declaration of Human Rights, Art. 25(1)

Times of great crisis also represent moments of opportunity and innovation. They can signal significant paradigm shifts. That’s the best that can be said about the worsening world economic crisis at the moment.
The old neo-liberal Washington Consensus, financial and banking deregulation, and dependence on our unbridled individual and collective consumerism, have been abject failures in providing an adequate standard of living for the vast majority of the world’s peoples. The situation requires alternative approaches to global and local economic policies.
The Human Rights Implications
The global economic crisis may well exacerbate violations of civil and political rights. Massive poverty and socio-economic dislocation, and competition over scarce resources historically served as a trigger for violent conflict, discrimination and scape-goating of racial or ethnic minorities, and government crack-downs on civil liberties as social unrest rises.
But the current crisis, and the neglect of socio-economic justice that preceded it, already have had devastating economic and social human rights effects. The problems are well-known: malnutrition and lack of access to affordable food and clean water, homelessness, lack of access to primary health care, and educational inequality. Such human rights violations are all associated with the poverty, land insecurity, and unemployment that are spreading throughout even “developed” countries. (Photo: UN Independent Expert on Human Rights and Extreme Poverty, Magdalena Sepulveda.)
The accepted wisdom has been thrown open to challenge. It is time for new ideas, as well as renewed urgency in efforts to generate the political will necessary to put some “old” good ideas into practice.
Among those ideas and priorities are
sustainable development that includes human development (see, for example, the Millennium Development Goals);
►the interdependence of civil and political rights and economic, social, and cultural rights; and
►the need for mandatory and voluntary mechanisms to ensure the responsibility and accountability of private business and financial enterprises.
Sustainability and a “Green New Deal”
In a speech at the gloomy (previously opulent and celebratory) World Economic Forum in Davos, Switzerland this week, UN Secretary-General Ban Ki-moon called for what might be one such new-old approach. He advocated for a “Green New Deal” that would attempt to address the “truly existential crisis” of global climate change through international, governmental, and private sector strategies. Positive action on climate change, he hopes, would also stimulate the world economy and slow the global recession.
Domestic and Global Observance of Economic, Social, and Cultural Rights
Some African and European leaders reminded increasingly inward-looking representatives from the Global North that it is the poor in both North and South who will suffer the worst effects of economic and environmental crises.
If we’ve learned nothing else in recent years, we should now know that seemingly far-away poverty, political and social oppression, health crises, and environmental devastation, can be directly linked in cause or impact to the backyards and kitchen tables of the Global North. The negative effects of poverty, labor abuses, environmental toxins, and insufficient public health services have a way of crossing borders.
Attention to international co-operation in economic and social development is, therefore, not only a matter of international human rights law, it is also a moral commitment and a matter of domestic national security interest for many nations.
Similarly, government obligations to respect, protect, and fulfill international economic and social human rights cannot simply be abandoned in times of economic difficulty.
The International Covenant on Economic, Social, and Cultural Rights, for example, requires even the poorest states parties to take steps to fulfill their obligations “to the maximum of available resources” (Art. 2(2)). The UN Committee on Economic, Social, and Cultural Rights (CESCR) issued instructive interpretive guidelines with regard to non-discrimination and minimum core obligations for states hoping to protect rights while managing economic challenges. (See, e.g., General Comment No. 3 on “The Nature of State Obligations” and the influential Maastricht Guidelines on Violations of Economic, Social, and Cultural Rights).
Non-discrimination: A fundamental human right under all major international treaties, the prohibition on discrimination on the basis of race, color, sex, national origin, class, or other status can and should be implemented immediately even by poor states or states in economic crisis.
Any stimulus packages, therefore, should not, in intention or effect, discriminate on such prohibited bases. For example, if massive infusions will be spent on bringing physical infrastructure up to code or improving it, will the jobs created in construction and engineering include racial, ethnic, and religious minorities and women? To the extent that they have been previously excluded from those jobs, attention must be paid to targeted “special measures” such as recruitment and training.
Minimum Core Obligations: Fundamental human rights necessary for an adequate standard of living include the right to food (and water), housing, education, the supports necessary for physical and mental health, and work at a living wage and under safe conditions.
The initial reaction to the continuing call for economic and social rights in an economic crisis is to charge that they are “too expensive” or “luxuries” to be considered in a time of prosperity. Ironically, of course, very few placed priority on such rights and conditions even during times of the false prosperity and economic growth some countries previously enjoyed. Now may be the best time to pressure the global community to finally take such rights seriously.
As indicated in an earlier post (Financing Human Rights), fulfilling our legal and moral obligations does take money. Nevertheless, if there is still serious debate in the U.S. over whether the billions of dollars in bonuses paid to executives working for bailed-out financial institutions are appropriate, perhaps we can afford to seriously debate whether addressing the basic needs of billions of poor people should also be considered an economic incentive and stimulus.
International human rights law recognizes that the economic resources available to a country may be limited. However, each state can make a start by respecting, protecting, and fulfilling minimum core obligations with regard to human rights. The CESCR and leading international policymakers, development experts, and legal scholars have outlined criteria by which to elaborate such obligations and measure progress. (See, e.g., Human Rights and the Global Marketplace: Economic, Social, and Cultural Dimensions (Jeanne M. Woods & Hope Lewis, eds.).
Corporate Responsibility and Accountability
Secretary-General Ban’s “Green New Deal” speech also was directed to the private sector. Recalling former Secretary-General Kofi Annan’s “UN Global Compact,” Ban called for a “Global Compact 2.0.” The reconceptualization is supposed to integrate corporate responsibility and technological innovation to address global climate change that would also ameliorate economic recession.
In another move, a press release issued by Professor John Ruggie, the Special Representative of the Secretary-General on Business and Human Rights, announced a new initiative on corporate law and human rights. Leading corporate law firms agreed to work with the UN to explore “whether and how national corporate law principles and practices currently foster corporate cultures respectful of human rights.”
It remains to be seen whether business actors will step up to the plate when many seem to be desperately casting about for their own survival.
“Developing” Toward What, and For Whom?
Economists and budget analysts can and do assess the positive economic impact of investing in public health and preventive health initiatives, early childhood education, environmentally sustainable housing, living wages, and safe working conditions.
The central motive of the human rights movement, however, is the belief that these rights are core human values whether or not they are always economically efficient. Still, isn’t such a truly developed society one in which we all would wish to live?

'Nuff said

(Taking context-optional note of thought-provoking quotes)

A simple primer on the state of the world: women do most of the good stuff and get most of the bad. No whine, just fact. They harvest food and raise children, tend to the aged and the ill. Yet according to the Global Fund for Women, two thirds of the world's uneducated children are girls, and, naturally, two thirds of the world's poorest people are female. Not coincidentally, women make up only about 16 percent of parliament members worldwide. Simple mathematics dictates that if we are interested in promoting prosperity, education and good government, the United States must focus on the welfare of women.

-- Newsweek contributing editor Anna Quindlen (left), in a column celebrating the newly sworn-in Secretary of State, Hillary Clinton, and the President, Barack Obama (above right), as a team that can pursue a goal of the women's conference held in 1995 in Beijing: "for nations to prosper" by "pay[ing] attention to women's rights, women's welfare and women's concerns."

On January 31

On this day in ...
... 1946, a new Constitution proclaimed the Federal People's Republic of Yugoslavia. States in the West "recognized the new government, although it was clear that the regime was pro-Soviet." The document created a federal system comprising 6 constituent republics -- Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia, and Slovenia -- plus 2 autonomous provinces -- Vojvodina and Kosovo. (map credit)
... 1945, the International Air Transit Services Agreement entered into force. Typically called the Chicago Convention in recognition of the city where it'd been signed a year earlier, the Agreement establishes the rights of nation-states over their territorial airspace and their civil aircraft. It has 129 states parties, the United States among them.

Friday, January 30, 2009

Empiricizing Transitional Justice

The Human Rights Center at UC Berkeley released this month "a population-based survey on attitudes about social reconciliation and the Extraordinary Chambers in the Courts of Cambodia" entitled So We Will Never Forget. Of the several surveys of the Cambodian public on accountability for the Khmer Rouge that have been completed in the past decade (including one by yours truly), this is the most scientifically planned and executed, with rigorous methodology and a wide sampling of the Cambodian population.
There's much of interest in this report for those participating in accountability efforts. First, the report underscores the need for a serious public education effort around the tribunal. Of the respondents who did not live under the Khmer Rouge regime, 81% described their knowledge of that period as poor or very poor. Given that 68% of Cambodia's population has been born since the Khmer Rouge left power, that's a very concerning statistic. Moreover, 39% of those surveyed had no knowledge of the Extraordinary Chambers and 46% had only limited knowledge. The court and non-governmental organizations have a great deal of headway to make in educating the Cambodian public about the ECCC and the Khmer Rouge era.
Second, the survey results question the appropriateness of trials as the sole accountability mechanism in Cambodia. While 86% of those surveyed believed that it was necessary to establish the truth about what happened under the Khmer Rouge regime, 45% of respondents said they didn't know which mechanisms would be appropriate to do so, and only 14% recommended trials. On the other hand, 9 out of 10 respondents believed it important to hold accountable those responsible for the atrocities of the Khmer Rouge regime, and almost 50% said that perpetrators should be put on trial. This disparity may reflect the difficulty of designing survey questions, particularly in cross-cultural contexts, that are not leading. On the other hand, it may illustrate a perceived distinction between truth and accountability, in which case it would have been useful to know which goal the respondents valued more given limited resources. Were truth the priority, a truth commission or other mechanism that can paint a broader picture of history might have been a better choice than trials.
Finally, the report queries the priorities of the international community and the Cambodian government in allocating so many resources (currently an estimated $135.4 million through the end of 2010) to the Extraordinary Chambers rather than to social reconstruction. Only 1% of those surveyed listed justice as a priority while 83% listed jobs as a priority. Interestingly, the importance of justice grew as survey respondents were focused on the ECCC. Only 76% of Cambodians said it was more important to focus on problems faced in their daily lives than to address the crimes of the Khmer Rouge, and just 53% would rather spend the money on something other than the ECCC. In any case, that's still a majority of respondents who think the funding for the Extraordinary Chambers would have been better spent elsewhere.
Despite its possible flaws, this quantitative study is of great value in assessing and directing transitional justice mechanisms in Cambodia. If transitional justice is to be responsive to the needs of local populations, rather than a top-down mandate from the international community, such studies should be undertaken as a matter of course, preferably before selecting and designing accountability mechanisms and allocating limited resources.

Cross-posted on Concurring Opinions.

On January 30

On this day in ...

... 1929 (80 years ago today), Dr. Lucille Teasdale-Corti (right) was born in Montreal. After completing her medical training in Canada and France, she and her husband, also a physician, spent their lives working to improve health care in Uganda. The couple practiced surgery, established a nursing school, trained surgical residents, and treated victims and combatants harmed in the country's civil war. Teasdale-Corti contracted AIDS while performing an operation in 1982, and she died from that disease in 1996. (photo credit)

... 2003, a U.S. judge sentenced Briton Richard Reid to life-plus-110-years in prison. Dubbed the "shoe bomber" "after he tried to blow up a transatlantic flight from Paris to Miami," Reid is serving his post-conviction incarceration at the U.S. "Supermax" prison in Colorado (left). Meanwhile, nearly every non-U.S. citizen held at the U.S. naval station at Guantánamo Bay, Cuba, on suspicion of terrorism has yet to stand trial. (photo credit)

Thursday, January 29, 2009

Anti-Regulatory Climate Change Litigation

Much of the news on climate change since Inauguration has been of moves to increase federal regulatory efforts. However, a lawsuit filed today by Indek Energy serves as a reminder that litigation remains a powerful regulatory tool. As reported by the New York Times, Indeck Energy filed a challenge in New York county court to the legitimacy of the Regional Greenhouse Gas Initiative, an effort by Northeastern states to establish a cap-and-trade schema. The suit claims that New York lacks the authority to join without legislative approval, and that the scheme requires Congressional approval.
Whether or not the lawsuit succeeds, it becomes part of the state-corporate regulatory dynamic regarding climate change. As I have explored in depth in recent articles, climate change litigation either focuses on the appropriate extent of government regulation or directly targets major emitters. I have argued that new federal Congressional or Executive action should not preclude such litigation because it serves as an important lever in the overall regulatory scheme. Although this suit pushes against regulation, other claims pressure the government to regulate in ways that it would not otherwise have done or encourage major emitters to take needed steps.

Change & United States' global health policy

Nothing more than too-much-to-do accounts for our not yet mentioning changes to the United States' foreign policy on family planning this past week.
Included in a a flurry of executive action, about which we've posted here and here and here, was President Barack Obama's restoration of U.S. funding for global organizations whose health-care activities include counseling about, advocacy for, or performance of abortions. U.S. Agency for International Development funds had been halted as soon as George W. Bush assumed the Presidency in 2001 -- having previously been reinstated by new President Bill Clinton in 1993, after having 1st been cut off by President Ronald Reagan in 1984.
Reactions?
As might be expected, anti-abortion groups are not happy; contrarily, as the Washington Post reported:
Obama's decision was praised by family planning groups, women's health advocates and others for allowing the U.S. Agency for International Development to once again provide millions of dollars to programs offering medical services, birth control, HIV prevention and other care.
Also undone, the so-called "global gag rule." We print Obama's rescission order, styled as a memo to new Secretary of State Hillary Clinton, in full:
MEMORANDUM FOR THE SECRETARY OF STATE
THE ADMINISTRATOR OF THE UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT
SUBJECT: Mexico City Policy and Assistance for Voluntary Population Planning
The Foreign Assistance Act of 1961 (22 U.S.C. 2151b(f)(1)), prohibits nongovernmental organizations (NGOs) that receive Federal funds from using those funds "to pay for the performance of abortions as a method of family planning, or to motivate or coerce any person to practice abortions." The August 1984 announcement by President Reagan of what has become known as the "Mexico City Policy" directed the United States Agency for International Development (USAID) to expand this limitation and withhold USAID funds from NGOs that use non-USAID funds to engage in a wide range of activities, including providing advice, counseling, or information regarding abortion, or lobbying a foreign government to legalize or make abortion available. The Mexico City Policy was in effect from 1985 until 1993, when it was rescinded by President Clinton. President George W. Bush reinstated the policy in 2001, implementing it through conditions in USAID grant awards, and subsequently extended the policy to "voluntary population planning" assistance provided by the Department of State.
These excessively broad conditions on grants and assistance awards are unwarranted. Moreover, they have undermined efforts to promote safe and effective voluntary family planning programs in foreign nations. Accordingly, I hereby revoke the Presidential memorandum of January 22, 2001, for the Administrator of USAID (Restoration of the Mexico City Policy), the Presidential memorandum of March 28, 2001, for the Administrator of USAID (Restoration of the Mexico City Policy), and the Presidential memorandum of August 29, 2003, for the Secretary of State (Assistance for Voluntary Population Planning). In addition, I direct the Secretary of State and the Administrator of USAID to take the following actions with respect to conditions in voluntary population planning assistance and USAID grants that were imposed pursuant to either the 2001 or 2003 memoranda and that are not required by the Foreign Assistance Act or any other law: (1) immediately waive such conditions in any current grants, and (2) notify current grantees, as soon as possible, that these conditions have been waived. I further direct that the Department of State and USAID immediately cease imposing these conditions in any future grants.
This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
The Secretary of State is authorized and directed to publish this memorandum in the Federal Register.
BARACK OBAMA
THE WHITE HOUSE, January 23, 2009.

On January 29


... 1959 (50 year ago today), Disney released Sleeping Beauty, a full-length animated version of a very old fairy tale. It featured 2 very different women: Aurora, a careless wool-spinning princess, and the aptly named Maleficent (right), a snubbed sorceress who shapeshifts into a frightening dragon in a final effort to exact revenge. Subsequently released in theaters in more than 2 dozen countries -- most recently Russia, just 2 months ago -- the film remains a fantasy favorite a half-century later.

... 1982, Britain's House of Lords refused Canadian Indians permission to take their case, which sought greater entrenchment of their rights in Canada's new constitution.

Wednesday, January 28, 2009

Governing Women

A new UN Publication called Governing Women is out and looks very interesting:
Though the proportion of women in national assemblies still barely scrapes 16% on average, the striking outliers-Rwanda with 49% of its assembly female, Argentina with 35%, Liberia and Chile with new women presidents this year-have raised expectations that there is an upward trend in women's representation from which we may expect big changes in the quality of governance. But getting into public office is just the first step in the challenge of creating governance and accountability systems that respond to women's needs and protect the rights. Using case studies from around the world, the essays in this volume, edited by Anne Marie Goetz, consider the conditions for effective connections between women in civil society and women in politics, for the evolution of political party platforms responsive to women's interests, for local government arrangements that enable women to engage effectively, and for accountability mechanisms that answer to women. The book's argument is that good governance from a gender perspective requires more than women in politics. It requires fundamental incentive changes to orient public action and policy to support gender equality.
Interestingly, the case studies all come from the global south, except for the chapter on Women and Political Engagement ni East-Central Europe. Of concern to all those interested in good governance as well as women's involvement in it and its possibilities for securing greater protection of human rights.

On January 28


... 1909 (100 years ago today), at Havana (left), U.S. officials who'd been governing Cuba withdrew upon the noon-hour inauguration of a new President of the "restored Cuban Republic." Evacuation by April 1 was planned for all the U.S. troops that'd been on the island since the Spanish-American War, the New York Times reported -- "save for a permanent force at the American naval station at Guantanamo." As loyal readers know, we IntLawGrrls have posted frequently on current affairs at that naval base. (credit for 1909 map)

... 1947, Jeanne Shaheen (right), who was sworn in this month as U.S. Senator for New Hampshire, and who'd served as that state's Governor from 1997 to 2003, was born in Saint Charles, Missouri. A Democrat, she's is the 1st woman ever to have held both of these offices.

Tuesday, January 27, 2009

When I Am An Old Woman I Shall Wear Purple

President Obama's inauguration is a week behind us today, but this clip, which captures the reactions of several eloquent centenarians to his swearing-in, is still worth watching to remind us of the enormity of the step we've taken as a nation.



'Nuff said.

On January 27

On this day in ...

... 1914 (95 years ago today), "Lacking any military support," Haiti's civilian President, Port-au-Prince lawyer and Senator Michel Oreste, resigned and went into exile aboard a German ship. At once Marines from Germany, France, and the United States landed in Haiti's capital city. A Haitian military leader was installed as President, but his reign also would be short-lived. (map credit)

... 1904 (105 years ago today), in Paris, France, a son was born to an expatriate couple who in a little over a decade would go on to become icons in the Irish revolutionary movement: Irish-born Major John MacBride, whom the British would execute for his role in the 1916 Easter Rising, and his wife Maud Gonne, described as "an English-born Irish revolutionary, feminist and actress, best remembered for her turbulent relationship with William Butler Yeats." (Had this IntLawGrrl not chosen a certain 16th C. Irishwoman as her transnational foremother, the nod well might've gone to Gonne, ally of IntLawGrrl Fiona de Londras' foremother Countess Markievicz, and the subject of a superb biography by Dr. Margaret Ward.) The couple divorced; their son, Seán Mac Bride, went on to a distinguished global career. Among his achievements: Ireland's Minister of External Affairs and President of the Council of Europe Committee of Ministers from 1949 to 1950, a position from which he spearheaded adoption of the European Convention on Human Rights; a cofounder of Amnesty International; Secretary-General of the International Commission of Jurists; a drafter of the Constitution of the Organization of African Unity; and co-recipient of the 1974 Nobel Peace Prize. Following his death in 1988, he was buried in Dublin cemetery near his wife and son -- and his mother. (credit for mid-20th C. photo of Maud Gonne and Seán MacBride)

Monday, January 26, 2009

Guantánamo Update

On January 22, 2009 -- exactly 7 years and 11 days after the first detainee was brought to Guantánamo -- President Barack Obama signed an Executive Order which requires the closure of the Guantánamo Detention Center within one year. The Order also:
► Calls for the participation of the heads of several agencies to cooperate in reviewing every detainee's case on an individual basis to determine whether the detainee can be released, transferred, or prosecuted pursuant to an Article III court.
► Allows for the determination of an "other disposition"; that is:
With respect to any individuals currently detained at Guantánamo whose
disposition is not achieved [by release, transfer or prosecution], the Review shall select lawful means, consistent with the national security and foreign policy intersts of the United States and the interests of justice, for the disposition of such individuals.

► Specifically calls for "humane standards of confinement" under applicable law, including Common Article 3 of the Geneva Conventions, for the individuals detained at Guantánamo.
In anticipation of the Executive Order, on January 21, Judge Reggie B. Walton of the U.S. District Court for the District of Columbia stayed the habeas proceedings in the case of three Guantánamo detainees who are before him. Walton did so at the request of the Government, which had stated that it needed time to figure out how to proceed.
Other district court judges with detainee habeas proceedings, however, are moving forward.
On the same day the Executive Order was issued, Judge John D. Bates invited the new administration to revise the government's position regarding the appropriate defintion of "enemy combatant" to be used in the habeas proceedings and, in another case, ordered the government to state whether it had audio or video recordings, or transcripts of statements made by the detainee, or contemporaneous notes taken during interrogations. (At left, images from the interrogation of Omar Khadr.)
Similarly, Judge Gladys Kessler gave both petitioner and the government a January 29th deadline for their submissions on the definition of "enemy combatant." In another habeas case, Kessler ordered discovery to proceed with certain disclosures from the government due on February 6.



(More on effects of the President's order below.)


RTF?

Last week's Executive Order to close the Guantánamo detention camp by this time next year -- about which IntLawGrrl Kristine A. Huskey's posted above -- has touched off a flurry of debate in government and the media. Particularly noted is a resurgence of a phenomenon here labeled RTF, for "returned to the fight."
There've been occasional allegations over the years that a smattering of the 500 or so men freed from Guantánamo subsequently "returned to the fight." It was scarcely a surprise that such allegations intensified just as President Barack Obama made good on his campaign promise and set in motion closure of the camp.
Page 1 of Friday's New York Times thus told of an RTF-er now said to be an al Qaeda deputy in Yemen. The story appeared about a week after release of at of a pre-inauguration Pentagon report classifying fully 11% of all men and boys freed from GTMO as RTF.
But as CNN reported this weekend, "security experts" are "skeptical." (Video of a segment of the Rachel Maddow show, in which Seton Hall Law Professor Mark Denbeaux debunks the Pentagon's numbers, is here.) And though the head of the Pentagon -- Defense Secretary Robert Gates, the only holdover from the prior Cabinet -- did not dispute the numbers, CNN reported that he saw no cause for alarm:
'It's not as big a number if you're talking about 700 or a thousand or however many have been through Guantanamo.'
But these responses overlook a more fundamental problem at play in all RTF reports.
As my New York Times' Room for Debate blog post details, resort to the RTF catchphrase requires acceptance not only that a former detainee's now in the fight, but also that he was a fighter before his capture. All agree that was not the case with all GTMO detainees. (image credit)
Here's hoping that the new administration follows through on its commitment to undertaking a careful and concrete case-by-case analysis, rather than casting easy yet overbroad aspersions on a diverse detainee population.


(To GTMOre news, check out
Karen J. Greenberg's Washington Post op-ed on how, in the early days of detention, Pentagon civilians thwarted uniformed military lawyers' efforts to operate within the bounds of legal due process.)


On January 26

On this day in ...

... 2004, "in a ceremony at the foreign ministry in Kabul in front of ministers, ambassadors and military officers," Hamid Karzai signed the new Constitution of Afghanistan, to which a loya jirga, an assembly of regional representatives, ad agreed earlier in the month. Karzai then headed the transitional government in post-Taliban Afghanistan. He would be elected President in October 2004. (credit for photo of Karzai, far right, with former king Zahir Shah)

... 1973, the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, often called the Montreal Convention in recognition of the city where it was signed in 1971, entered into force. Today this antiterrorism convention has 187 states parties, including the United States.

Sunday, January 25, 2009

California Greenhouse Gas Waiver

The New York Times reports that Obama is poised to grant California's waiver under the Clean Air Act that will allow it to regulate motor vehicle emissions more stringently than the federal government does. This action will have a major impact because at least thirteen other states plan to follow California's standards if the waiver is granted. The Obama campaign had said that they would take this action, and this announcement will be part of a number of environmental actions planned for Monday. As I have analyzed in depth in a forthcoming article, the California waiver dispute provides an interesting example of the battles over the scale of climate regulation and the diagonal regulatory role that climate change litigation can play.


'Nuff said

(Taking context-optional note of thought-provoking quotes)

What we need now are guiding principles that set priorities for water. Water is a public trust that belongs to the Earth and all species. It is a basic human right. Yes, there is a commercial dimension to water. But the only possible path to a water secure future is based on the twin foundations of conservation and justice. All water use, public and private, must now serve these goals.

-- Maude Barlow (left), board chair for the D.C.-based nongovernmental organization Food & Water Watch, senior advisor on water to U.N. General Assembly President Miguel d'Escoto Brockmann, and author of Blue Covenant: The Global Water Crisis and the Coming Battle for the Right to Water (2007), in a recent San Francisco Chronicle op-ed about the right to water, an issue on which IntLawGrrls also have posted.


On January 25

On this day in ...
... 1919 (90 years ago today), meeting in plenary session, delegates of the Paris Peace Conference gave quick, unanimous approval of plan to set up a League of Nations. Coming in the wake of the devastation of World War II, the concept of an international organization designed to channel states' warlike impulses into processes of pacific dispute settlement was much praised: among those writing favorable commentaries that month were, in the New York Times, Charles Warren (op-ed here), who'd served as an Assistant U.S. Attorney General and would go on to become a Harvard law professor noted for his works of legal history, and, in The Atlantic, noted British author H.G. Wells (essay here). (credit for photo of hall in which conference took place)
... 2006, in what were " the first Palestinian legislative elections in a decade," the Islamist party Hamas "won a large share of votes," thus "depriving the more secular Fatah party of its longstanding monopoly on power," the New York Times reported. This last several weeks Hamas and Israel have been in armed struggle in Gaza -- a struggle on which IntLawGrrls have posted here, here, and here. (map credit)


Saturday, January 24, 2009

On the Job! LGBT rights officer

(On the Job! pays occasional notice to interesting intlaw job notices) The Geneva-based International Commission of Jurists, a network of judges and lawyers that works to promote international law, the rule of law, and human rights, is seeking applications for the position of Senior Legal Officer for Sexual Orientation and Gender Identity in its International Law & Protection Programme.
Particularly sought is "a senior international human rights lawyer" who is fluent in English and, preferably, proficient in Spanish or French, and who has "a comprehensive knowledge of international human rights, as well as practical experience of human rights legal advocacy and litigation, particularly on equality and non-discrimination issues." The Officer's duties will include:
► "Provid[ing] legal and advocacy expertise and leading the ICJ's work on sexual orientation and gender identity";
► "Develop]ing] and implement[ing] advocacy strategies on human rights violations on the grounds of sexual orientation and gender identity, including strengthening the use of international law and obtaining recognition by UN and regional political bodies that such abuses are violations of human rights and seeking action by these bodies";
► "Lead[ing] ICJ's advocacy for human rights law and machinery to provide both the conceptual and practical framework to address discrimination and other human rights violations that take place on the grounds of sexual orientation and gender identity";
► "Support[ing] the ICJ's global network of Commissioners, Honorary Members, National Sections and Affiliated Organizations and other non-governmental organizations working on sexual orientation and gender identity issues in framing their claims in human rights terms and advancing issues through the use of international law";
► "Research[ing] and writ[ing] ICJ reports, legal submissions, statements and publications," including amicus briefs and legislative reform proposals;
► Advise and assist in integrating human rights violations on the grounds of sexual orientation.
Details here. Applications must be submitted no later than February 27, 2009, by e-mail to recruitment@icj.org or by post to the International Commission of Jurists, P.O. Box 91, 1211 Geneva 8, Switzerland.


On January 24

On this day in ...

... 1924 (85 years ago today), the opening ceremony of the 1st-ever Winter Olympics took place in Chamonix, France. The Games -- featuring 291 athletes, from 16 countries, competing in 16 events in 9 sports -- would run from January 26 to February 4. Of the 291 athletes only 13 were women. (IntLawGrrls' prior posts on women Olympians are here and here.) Among them was the Games' youngest competitor, 11-year-old Sonja Henie (right) of Norway, who placed last that year but "would later become the greatest women’s figure skater ever," not to mention a highly paid Hollywood star. Henie was also an all-time favorite of this IntLawGrrl's mother.

... 1984 (25 years ago today), Apple introduced the Macintosh computer, "starting the second major revolution in the personal computer industry." This was in part because this original Mac (left) in part because it came with a device designed to aid user navigation of cyberspace: the mouse. Nostalgic MacHeads can see video of the rollout here. (photo credit)


Friday, January 23, 2009

Courting Genocide?

This week, Peter Spiro and I hosted Jide Nzelibe (pictured below left) at Temple's International Law Colloquium. Jide presented his work-in-progress, Courting Genocide: The Unintended Effects of Humanitarian Intervention, on which Kristen Boon (pictured below right) provided commentary. While I had several smaller quibbles and a few larger criticisms of the paper, it moves the scholarship on humanitarian intervention a step forward, as Kristen noted, by examining the motivations of all of the actors involved and suggesting that the effects of humanitarian intervention may not always be benign. Jide's basic thesis is as follows:
because humanitarian interventions tend to increase the chance that rebel or victim group leaders are going to achieve their preferred political objectives, such leaders might have an incentive to engage in the kinds of provocative actions that make atrocities against their followers more likely in the first place.
Ambitious in scope and provocative in intent, the paper's descriptive portion is compelling in generalities but more troubling in specifics. Jide's point that “[t]he threat of humanitarian intervention influence[s] the calculus of both rebel leaders and perpetrators in complex and unpredictable ways” is powerful; the idea that humanitarian intervention influences rebels to subject their followers to the risks of genocidal violence is much more of a stretch. It seems more likely that rebel groups have imperfect information about both the risk of genocide and the chance of humanitarian intervention, which may surely influence their actions, but in perhaps less predictable and nefarious ways.
As Jide himself concedes, the prescriptive portion of the paper presents solutions that may be difficult to implement in the real world. He suggests two options for addressing rebel leaders who engaged in provocative behavior against dominant groups who then perpetrated atrocities against their kin: first, applying a comparative fault framework to reduce economic and political benefits to these leaders, and second, absolving perpetrators from international criminal law sanctions through the defense of provocation. Both approaches troubled me most for their paternalism; the first because it's unclear who should decide and how they should decide when behavior has been sufficiently provocative to warrant a reduction in benefits, and the second because it's simply too close to the "she asked for it" defense. In my mind, provocation is no justification for the types of atrocities Jide discusses in his paper. A better normative outcome might instead be more even-handed prosecution of all players who commit atrocities, not just those responsible for the worst atrocities. In any case, despite these quibbles, the paper's worth a read for its thought-provoking approach to a timely and important issue.

Cross-posted on Concurring Opinions.

On January 23

On this day in ...
... 1849 (160 years ago today), as described on the website of the U.S. National Library of Medicine:
On the morning of Tuesday, January 23, 1849, a young woman ascended the platform of the Presbyterian church in Geneva, N.Y., and received from the hands of the President of Geneva Medical College a diploma conferring upon her the degree of Doctor of Medicine. Thus, after many years of determined effort, Elizabeth Blackwell became the first woman to complete a course of study at a medical college and receive the M.D. degree.
Blackwell, who'd been born February 3, 1821, in England, was featured as Immigrant of the Day in this ImmigrationProf Blog post. (credit for circa 1850 photo of Blackwell)

... 1835, the 1st volume of 1 of the great political travelogues of all times, De la démocratie en Amérique, was published in Paris. The author, of course, was the Frenchman Alexis de Tocqueville (right), who'd go on to publish a 2d volume in 1840. Known to English speakers as Democracy in America, it is a chief component of a lifework "largely devoted to reconciling the principles of equality and freedom."

Thursday, January 22, 2009

Go On! International Law Weekend-West

(Go on! is an occasional item on symposia of interest) For a decade now we intlawyers on the West Coast having been making a biennial treak to International Law Weekend-West, a free 2-day conference on all aspects of law organized by American Branch of the International Law Association. Time to put the next one on our schedule:
The 5th biennial ILW-W is set for March 6 and 7, 2009, at Willamette University College of Law in Salem, Oregon.
Featured are addresses on “International Criminal Justice: Does It Work?”, by Judge Theodor Meron of the International Criminal Tribunal for the Former Yugoslavia, and on “The American Law Institute Goes Global,” by Columbia Law Professor George Bermann. Topics for panels include:
► Prosecution of international war crimes in the United States
► Taming capital markets
► Water resources
► Detention and other treatment of refugees
► NAFTA
► Life cycle of an international technology transaction
► Empirical approaches to developments in international humanitarian law
► Law of the sea and the environment
► Intellectual property rights
► International and foreign law in immigration law practice
Special features of the conference will be a:
► Commemoration of the 400th anniversary of Mare Liberum (Freedom of the Seas), a masterwork by Hugo Grotius, the Dutch legal theorist whose 425th birthday IntLawGrrls marked last year; and a
► Tribute to the late international law scholar Louis Sohn.
Details are available here or by contacting our colleague James A.R. Nafziger at jnafziger@willamette.edu.

On January 22

On this day in ...
... 1690, 80 sachems, or Native American leaders, met at Onondaga, in what is now upstate New York, and ratified a treaty of peace with the British and against the French. (credit for photo of Onondaga Lake)
... 1990, Soviet President Mikhail Gorbachev went on television and stated that "he had no choice but to order his troops" to enter Baku, the capital of Azerbaijan, in order, in the words of the BBC, "to try and end the undeclared conflict between Muslim Azeris and Christian Armenians, and put down a separatist insurrection by Azerbaijani nationalists." As many as 60 persons already had died since the tanks arrived. Azerbaijan, in orange at right, gained independence a year later; ethnic unrest lingers.


Wednesday, January 21, 2009

A D.C. inauguration story

video

The video above tells all about how this IntLawGrrl witnessed the swearing-in of the 44th President of the United States: by radio, the same medium by which Americans heard Calvin Coolidge take the oath 8 decades ago.
It wasn't supposed to have been quite like that.
The day began in pitchblack morning (right), when IntLawGrrl Stephanie Farrior and I hopped the Red Line toward the Mall. Stephanie got off at Metro Center to find a place close to a Jumbotron. I got off at Judiciary Square as instructed by the purple ticket (left) I possessed. All "purple people," as we came to call ourselves, were steered into a tunnel (below). There thousands of us spent more than 3 hours, emerging only to find that the purple gate had not opened and none of us would get in. We could see little more than the spire of the Capitol, and could hear nothing.
Thank goodness for the 1 among us who'd had the good sense to bring a transistor. Clustered around her at the intersection of Louisiana and C, we heard a musical interlude, then the oath that Chief Justice John G. Roberts Jr. administered to Barack Hussein Obama, and then the speech. The sounds alone brought smiles even to the faces of the purple dispossessed.

Obama seeks GTMO suspension


News flash: Under orders from the Obama Administration, prosecutors reportedly were ordered yesterday to seek a 120-day stay of proceedings before the military commissions at Guantánamo. Peter Finn's Washington Post story is here.

On January 21

On this day in ...

... 2004 (5 years ago today), the Royal Canadian Mounted Police "search[ed] the home and office of an Ottawa Citizen reporter who has written about the Maher Arar case, looking for evidence of a possible breach of the Security of Information Act," the Toronto Globe and Mail reported. Juliet O'Neill (left) had been covering the story of Arar, who, as we've posted, was transported to Syria after he stopped at a New York airport on his way back home to Canada. In October 2006, citing the Canadian Charter of Rights and Freedoms, Superior Court of Ontario Judge Lynn Ratushny invalidated section 4 of the Act, on which the raid relied as "overbroad vague and open to misuse," "infring[ing] upon O’Neill’s Charter rights to freedom of “expression, including freedom of the press." (Decision here.) There was no appeal of that ruling. (photo credit)

... 1919 (90 years ago today), in Dublin, members of the Dáil Éireann (right), the lower house of Ireland's parliament, met for the 1st time. In 2 short hours, "the Dáil adopted a Constitution," which would take effect in April of the same year, "and approved the Declaration of Independence." (photo credit)


Tuesday, January 20, 2009

Guest Blogger: L. Song Richardson

It's IntLawGrrls' great pleasure to welcome L. Song Richardson (right) as today's guest blogger.
A specialist in criminal law, criminal procedure, and prosecutorial ethics, Song is an Assistant Professor at DePaul University College of Law, and this semester she's a visiting professor at Boston College Law School. Song earned her J.D. from Yale Law School, where she was on the board of the Yale Journal of International Law, and her B.A. in psychology from Harvard College. While at Harvard she earned distinction for her classical piano performances, which included performances with the Boston Symphony Orchestra. Before entering academia, Song was a Skadden Arps Public Interest Fellow with the National Immigration Law Center, assistant counsel at the NAACP Legal Defense and Educational Fund, Inc. As a state and federal public defender and private practitioner of criminal defense, she represented defendants in numerous white collar, serious felony, and capital cases. That expertise is evident in Song's guest post below, which exposes a defect in foreign evidence-gathering mechanisms and proposes a solution to the problem.
Song dedicates her post to Shirley Anita St. Hill Chisholm (1924-2005) who, as Song writes,
in 1968, became the first African American woman elected to serve in the U.S. House of Representatives. She became an international figure as a vocal critic of the war in Vietnam and, throughout her career, tirelessly championed numerous issues including civil rights, women’s rights and the rights of the urban poor.
In addition, as prior IntLawGrrls posts have noted, Chisholm ran for the highest office in the United States. In her most concerted campaign she entered several Presidential primaries (below left), and received 151.95 delegate votes at the 1972 Democratic National Convention. In 1984 Chisholm was trounced in a bid for the Democratic nomination for Vice President by another woman, Geraldine A. Ferraro. Chisholm was not the 1st African American person nominated for President at a major-party convention. As we've posted, that milestone was reached in 1888 by Frederick Douglass, who'd also run for Vice President in 1872 on a minor-party ticket headed by a woman, Presidential candidate Victoria Claflin Woodhull. Nor was Chisholm the 1st woman nominated for President at a major-party convention; as we've also posted, 8 years earlier Margaret Chase Smith had made an unsuccessful bid for the Republican Presidential nod. Nonetheless, the placement in IntLawGrrls' foremothers list at right of this 1st African American woman to have her name placed in nomination is especially apt on this day of the inauguration of Barack Obama as the 44th President of the United States.
Heartfelt welcome!

Toward parity in foreign evidence gathering

Many thanks to IntLawGrrls for inviting me to contribute this guest post on my article recently published in the Berkeley Journal of International Law, entitled “Convicting the Innocent in Transnational Criminal Cases: A Comparative Institutional Analysis Approach to the Problem.” The article examines how the fair adjudication of transnational criminal cases in the United States is negatively affected by Mutual Legal Assistance Treaties, typically called MLATs.
MLATs are bilateral treaties negotiated by the United States -- treaties that require foreign nations to provide U.S. prosecutors with evidence located within their jurisdictions upon U.S. government request. When it negotiated the treaties, the United States included language that explicitly prevents defendants from obtaining foreign evidence under the treaties. Thus, MLATs create transnational compulsory process solely for prosecutors.
Inequities in evidence-gathering capabilities affect the accuracy of criminal trials. Without parity in compulsory process accuracy and fairness norms -- norms like punishing the guilty and freeing the innocent -- can be illusory.
Resolution of this disparity in foreign evidence gathering is difficult in light of Congress' relative indifference and the lasting reverberations of the terrorist attacks of September 11, 2001. Nonetheless, the danger of inaccurate verdicts and wrongful convictions that may result highlights the need to resolve this flawed transnational adjudication process -- specifically, its evidentiary method. Failure to do so results in cognizable deprivations to our system of criminal justice in general and to defendants in particular.
In the article, I utilize a comparative institutional analysis framework to identify the domestic institution best suited to achieve the norm of parity in transnational cases. When I began the project, I believed that a strong right to compulsion parity would best protect the twin goals of accuracy and fairness in transnational criminal adjudications. However, applying the framework revealed a potentially counterintuitive, negative result from this seemingly attractive option. Strong compulsory process rights could undermine accuracy norms, because under that approach, the executive would be forced to renegotiate existing MLATs to include explicit compulsion parity between defendants and prosecutors. If foreign nations objected, however, the parties would be left to rely upon the evidence-gathering market that had existed prior to MLATs. This market provided neither side reliable access to material and relevant evidence from foreign nations.
Surprisingly, then, provision of a strong right to compulsory process could make prosecution of the guilty more difficult and thus increase the risk that an innocent person would be wrongfully convicted.
Ultimately I conclude that a moderate right to compulsion parity would provide the best solution to remedy the compulsion disparity in transnational evidence gathering. Under this approach, courts would make case-by-case determinations on whether to order the government to request defense evidence utilizing an MLAT. A moderate right would leave MLATs intact, thereby avoiding serious foreign policy concerns, and it also would provide the best safeguard for protecting the innocent and convicting the guilty in transnational criminal cases. My hope is that courts will adopt the moderate rights approach, a framework for which I've set out in “Due Process for the Global Crime Age: A Proposal,” recently published in the Cornell International Law Journal.

(credit for May 2006 photo of ceremony in which Molly Bordonaro, then U.S. Ambassador to Malta, and Charles Deguara, Malta's Permanent Secretary of the Ministry of Justice and Home Affairs, signed the U.S.-Malta MLAT, which the U.S. Senate approved this past September)