Sunday, May 31, 2009

ICC complementarity to be revisited

Tomorrow, Monday, June 1, Pre-Trial Chamber II of the International Criminal Court will hear argument on a defense motion in Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, challenging the admissibility of the proceedings against defendant Katanga (right) on the ground that the proceedings violate the principle of complementarity. The complementarity principle is set forth in Article 17(1) of the Rome Statute, which states that a case is inadmissible if it

is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.

Katanga, alleged commander of the Patriotic Resistance Force in Ituri, and Ngudjolo, alleged leader of the Nationalist Integrationist Front, have been charged with war crimes and crimes against humanity arising largely from their forces’ joint attack on the village of Bogoro, in northeastern Democratic Republic of the Congo, on February 24, 2003. During the attack, the defendants’ forces allegedly intended to annihilate the village’s civilian population in order to gain control of a key transit route. Charged crimes include the murder of nearly 200 civilians, sexual enslavement of women and girls, and conscription of child soldiers.
The February 10, 2009, defense motion (a redacted version of which was made public on March 11), Katanga’s counsel distinguished the ICC from the International Criminal Tribunals for Rwanda and the former Yugoslavia by asserting that, unlike those ad hoc tribunals, the ICC has a subsidiary role that is triggered only when national investigations fail to occur or are somehow “defective.” The submission outlines state concerns, expressed during the negotiations leading to the Rome Statute, that ICC proceedings could infringe upon national sovereignty and argues that the Court’s current practice has only justified those fears by asserting "nothing less than primacy of the ICC over national courts."
The defense motion noted that, at the time Katanga’s arrest warrant was issued, he was being prosecuted in the DRC for identical charges — crimes against humanity in Bogoro — and his case is thus inadmissible under Article 17.
While distinguishing its case from that of another DRC defendant currently on trial, Thomas Lubanga, the defense criticized the iCC’s treatment of complementarity in that case. Specifically, in Prosecutor v. Thomas Lubanga Dyilo, Pre-Trial Chamber I upheld the arrest warrant against the defendant despite his investigation by DRC authorities, on the ground that the national investigation focused on crimes other than those charged by the ICC’s Office of the Prosecutor. The Katanga defense criticized this "same-conduct test," which was applied subsequently in the decisions reviewing the arrest warrants of Katanga, of his co-defendant Ngudjolo, and, in the matter regarding Darfur, Sudan, of Ali Kushayb, on a variety of grounds:

► The scope of inquiry regarding the conduct at issue is unsettled, the defense argued, adding that this leaves parties to question the factual inquiry that pre-trial chambers employ in determining whether the conduct investigated by national authorities is similar to that investigated by the prosecution.
► The "same-conduct test" is tantamount to ICC primacy, and thus subverts the principle of complementarity, the defense further argued. It reasoned that the decision whether to deploy scarce national resources vis-à-vis broad international crimes necessarily entails some degree of selection at the domestic level, and this fact opens the door for international prosecutors to assert ICC jurisdiction on the basis of little more than resource gaps or national prosecutorial discretion. Scholars such as William A. Schabas have criticized the ICC's interpretation of complementarity.
The defense proposed that rather than applying the "same-conduct test," the ICC should apply 1 or both of the following when considering the admissibility of a case for complementarity purposes:

► A "comparative-gravity test," which holds that when the need for investigation “significantly exceeds” that undertaken by a national authority, a case may be deemed admissible by the ICC.
► A "comprehensive-conduct test,: which holds that when the factual basis of an international investigation "is significantly more comprehensive" than that of a domestic prosecutor, a case likewise may be admissible.
The defense argued, however, that even under the "same-conduct test" Katanga’s case is inadmissible given that he was charged with crimes against humanity arising out of the attack on Bogoro, and there is no evidence that the DRC is unwilling or unable to pursue a corresponding investigation and possible prosecution.
The hearing will be available on livestream webcast here. It is scheduled to begin at 9:30 a.m. (3:30 a.m. Eastern time) Monday at the ICC courthouse at The Hague (left).

SPEED Trust trains women to drive rickshaws

SPEED: Slum People Education and Economic Development, an NGO in Chennai (ex-Madras) has so far trained 10 of the 20 woman rickshaw drivers -- of the 40-50,000 rickshaw drivers in Chennai. The SPEED trust is located in a Gandhi Nagar bidonville located under a highway near the central train station. A rectangle measuring 1 kilometre (1.5 miles) by 150 metres (.6-.7 miles), 18,000 people call it home. Like taxi driving, rickshaw driving in India is reserved to men (but see my earlier post on women taxi drivers on Mumbai). But the SPEED trust has begun to help women with "particularly heavy pasts" gain autonomy by becoming rickshaw drivers. SPEED pays for the license and the rickshaw (about 2000 euros (3000 USD) each) and the women pay them back over 3-4 years. The first woman to benefit from the program was Jayanthi, who had been sold for prostitution when she was 11. Married at 16, she was the widowed mother of 3 at 19 earning less than 5 (7.50 USD) euros per month cleaning houses. Today she earns the same amount per day driving a rickshaw like the ones above (credit).
In a country where women tend to be destined for marriage and motherhood, widows lose their social standing. They are often rejected by the families they left upon marrying as well as by their in-laws, who may blame them for their husband's death. These women often go into debt at usurious rates to pay for their husband's funerals and, for those who have daughters, to provide for the traditional puberty celebration and a dowry. To break the cycle of debt, SPEED is providing women the means to earn a living, be it a rickshaw or a sewing machine, and has even opened a nursery so that the rickshaw drivers can go to work worry-free.

On May 31

On this day in ...
... 1991, at the Portuguese Foreign Ministry in Lisbon, an accord ending 16 years of civil war in Angola was signed by the country's President, Jose Eduardo dos Santos, and Jonas Savimbi, leader of the rebel National Union for the Total Independence of Angola, known by its acronym UNITA. The New York Times reported that the signing "fits in with ... efforts to resolve regional rivalries" of the Soviet Union, which had supported Angola's government, and the United States, 1 of 2 countries from which "rebels took their aid and their cue." The other, according to The Times, was South Africa.
... 1971, Sandra Ellen Oxner, who'd received LL.B and LL.M degrees from Dalhousie Law School in Halifax, was appointed a judge of the Nova Scotia Magistrate's Court. Then 29 years of age, she became the 1st woman to be appointed to the judiciary in that Canadian Province. She's the founding Chair of a nongovernmental organization located at Dalhousie, the Commonwealth Judicial Education Institute, which provides educational programs for members of courts and tribunals. She's also a consultant on judicial education and reform in places as varied as Ukraine, Russia, Yemen, West Bank Gaza, Uganda, Sierra Leone, Trinidad, and Bangladesh.

(Prior May 31 posts are here and here.)

Saturday, May 30, 2009

Write On! International Law in A Time of Change

The 104th American Society of International Law Annual Meeting will convene on 24-27 March 2010 in Washington, DC. The program committee welcomes suggestions for innovative panels, round-tables, and debates from ASIL members on the theme “International Law in a Time of Change.” The committee also calls for “New Voices” paper proposals.
Suggestions and proposals should be in by the rapidly approaching deadline of June 19, 2009. Click here for full details and the submission form for panel suggestions. Click here for details and submission forms for “New Voices” paper proposals.
Hari Osofsky co-chairs the program committee (click here for her IntLawGrrls information), along with Russ LaMotte, and Allen S. Weiner.
The Annual Meeting theme addresses significant new or resurgent uncertainties, challenges, and possibilities facing the discipline. Perhaps there's really “nothing new under the sun,” but it feels as if there have never been so many issues of global scope in which law, law-making, legal institutions, and legal interpretation are so inextricably involved. I'll name just a few:
Global Climate Change (and the regulation of energy production, emissions, and toxic waste disposal);
The Implementation of Human Rights for All (an old problem, but one that now raises new questions about new duty-bearers (businesses, other non-state actors) as well as actual or perceived tensions with other state priorities);
Global Poverty (and new approaches to the role of law in the allocation of food, housing, healthcare, education, and other resources);
Armed Conflict and Terrorism (state abuses of civil rights or civil liberties in response to actual or purported security threats and the efficacy of existing legal norms and institutions in preventing the production, proliferation, threat, or use of nuclear, biological, and chemical weapons by state and non-state actors);
A Global Financial Crisis (and the need to rethink state, transnational, or private regulatory and governance mechanisms);
New Pandemics and other global threats to health (and the legal norms relevant to public health and security);
Global Discrimination (how law responds to contemporary forms of race, ethnicity, gender, national origin, age, sexual orientation, religion, and class-based discrimination and related violence);
The Internet (and related privacy, speech, intellectual property, security, accessibility, and information transfer legal issues).
ASIL’s meeting description indicates interest in a broad range of perspectives on these and other issues:

[T]he 2010 Annual Meeting will consider the extent to which this time of change … does and should impact the nature of international lawmaking. How, if at all, can the model of sovereign and equal nation states consenting to law encompass the increasing roles of subnational, nongovernmental, and corporate actors and the networks interconnecting them? In what ways should the making of treaties and customary international law include new actors and approaches? Which existing and new fora should be available to them? What new international institutions or institutional reforms do contemporary challenges demand? How will the embrace of new institutions and actors – or the failure to embrace them –affect the legitimacy of international law? What dangers or challenges to the international legal system do new approaches to international lawmaking present? Above all, what new substantive norms are required, and how should they be achieved?
IntLawGrrls have had a great deal to say on such issues, so we are likely to be well-represented at the meeting!


Ebadi on the death penalty

We have been observing a constant deterioration of the human rights situation since 2005. In 2008, for example, we saw that there had been a 300% increase in executions in the prior 3 years! Speaking proportionally, Iran has surpassed even China: there were 355 executions in Iran, a country of 70 million inhabitants; in China, 2,200 executions and 1.3 billion inhabitants. Do the math ....

-- Shirin Ebadi (right), Nobel Peace Prizewinner, in a telephone interview with Le Monde. The Iranian human rights attorney also spoke of the government's closure of her human rights center and harassment of her staff; of the repression in Iran of religious and ethnic minorities such as Bahais, Sunni Muslims, and Kurds; and of how democracy is being "maltreated" in the runup to next month's Presidential election.
With regard to capital punishment, Ebadi not only pointed to overall numbers in the last 3 years, but also to the executions of 26 juveniles and the death row confinement of another 138, 5 of whom are girls. She expressed little hope for reform on this front:

I remain pessimistic, how can I be anything else? We've just learned that last week a couple was sentenced to death by stoning. Anyway, on December 18, 2008, when the U.N. General Assembly adopted a resolution seeking a moratorium on the death penalty, only 46 countries out of 192 voted against it. Among them was Iran ....

As detailed on page 17 of this record of the vote in the General Assembly (above left), also among the countries opposing a death penalty moratorium was China. And the United States.

On May 30

On this day ...
... 1967, Nigerian leader Yakubu Gowon, a military officer who'd taken control following a coup, decreed for the country as whole a new, federal administration. The announcement led 3 days later to the declaration of the independent state of Biafra (flag at right) in the southeast portion of Nigeria. Civil war raged for 30 months. At the end Biafra remained part of Nigeria, but at the cost of between 1 and 3 million lives.
... 1982, Spain became the 16th member of NATO, the North Atlantic Treaty Organization. The accession of post-Franco Spain (flag below left) marked the 1st addition to the NATO treaty regime since 1955, when the Federal Republic of Germany joined. Division within Spain continued even after accession, so that the question was put to a referendum in 1986. "With almost 60 percent of the electorate participating, 52.6 percent of the voters supported Spain's continued membership in NATO, while 39.8 percent opposed it"; thus Spain to this day remains a member of the alliance.

(Prior May 30 posts are here and here.)

Friday, May 29, 2009

In passing: Thomas Franck

Renowned international jurist Thomas Franck (left) passed away Wednesday after a struggle against cancer.
Others surely will recount Tom's lifework, already noted at the websites of New York University School of Law, where he was Murry and Ida Becker Professor of Law Emeritus, and the American Society of International Law, for which he served both as President and as Editor-in-Chief of the American Journal of International Law. (photo credit) Permit me to sound a more personal note.
I first was introduced to Tom in February 2004, when I had the privilege of commenting, along with several others, on a paper regarding the use of force that he gave at the University of California, Hastings College of the Law, in San Francisco. Tom was visiting at Hastings that semester, and so a week or two later we met for lunch. Topics of our most enjoyable conversation ranged from the war in Iraq then just a year old, to the round-the-clock marriage ceremonies then under way across the street at City Hall, to the fondness we two North Americans shared for the land and people of Ireland.
In the 5 years since, I welcomed the all-too-few opportunities I had to visit with Tom. A warm person, supportive mentor, and inspiring colleague, he will be missed.

On May 29

On this day in ...
... 1990, Canada's House of Commons (right) passed Bill C-43, new abortion legislation, by a vote of 140 to 131. (photo credit) The bill, which continued the criminal proscription of abortion but allowed exceptions from that prohibition " as long as a doctor believes the physical or mental health of the woman is endangered," was sent to Canada's Senate for debate. There it would fail by a tie vote in 1991.
... 1999 (10 years ago today), Olusegun Obasanjo (left) was sworn in as President of Nigeria following his election, bringing an end to 15 "years of adventurism and brigandage under military rule," as The Nation put it. (photo credit) The 8-year tenure of Obasanjo, who himself had been a military ruler of Nigeria from 1976 to 1979, was marred by charges of corruption and repression. Last December Obasanjo was appointed the U.N. Special Envoy on the Great Lakes Region, tasked to aid "dialogue between the leaders of Democratic Republic of Congo and Rwanda," by Secretary-General Ban Ki-moon.

(Prior May 29 posts are here and here.)

Thursday, May 28, 2009

On Clinton's appointment as UN envoy to Haiti

Haiti is one of those countries with a long last name. No one ever refers to the Caribbean country that shares an island with the Dominican Republic as simply "Haiti," but rather Haiti-the-poorest-country-in-the-Western-Hemisphere. In truth, the poverty is hard to miss. When I drove through the capital Port-au-Prince last fall, I was almost undone by the look of it, the smell of it, the sense of it. Poverty is a living, breathing, frightening thing that walks the streets and shadows Haiti's young. And with poverty comes the familiar evils of crime, political instability, slavery, malnutrition, discrimination and a general feeling of hopelessness.
Into this complex quagmire comes Bill Clinton, the recently appointed UN envoy to Haiti. Clinton's specific duties are as yet undefined, but when Secretary General Ban Ki-moon announced the appointment he said very simply "It is important to help this country." And it is. Is Bill Clinton the right person for the job?
Clinton has had a long history with Haiti. He is popular among Haitians for having aided the democratically-elected President Jean Bertrand Aristide when Aristide was ousted by reactionary forces in 1991. (But some Haitians--and Aristide himself--also blame the United States for the 2004 coup that ousted Aristide for good.) The Clinton Foundation sponsors much-needed projects on AIDS, health care and environmental issues in Haiti. And Clinton has been instrumental in lobbying the international community to provide monetary and other relief to Haiti. Indeed, Prime Minister Michele Pierre-Louis praised Clinton as "a great friend of Haiti," and claimed he was instrumental in helping the country secure $324 milliion in new aid from international donors.
Clinton comes to his post with a great deal of goodwill from the Haitian people. Let's hope he is able to harness that energy to help Haiti achieve something wonderful -- something beyond its current title as "the poorest country in the Western Hemisphere."

Judge Sotomayor and International Law

For those interested in the views of Judge Sonia Sotomayor (right) on the place of international law in American courts, a few tidbits. (See also yesterday's IntLawGrrls post on her nomination.)
The New York Times has gathered some of Judge Sotomayor’s notable opinions for the U.S. Court of Appeals for the 2d Circuit and made them available online. Among those collected are two that address issues relating to international law; in each, she presents a crisp analysis of the relevant demands of international law and foreign relations:
► Her dissenting opinion in Croll v. Croll (2000), arguing for an interpretation of the Hague Convention on the Civil Aspects of International Child Abduction that accords with its object and purpose (the classic method of treaty interpretation in international law). Specifically, she takes the position that
[w]hile traditional American notions of custody rights are certainly relevant to our interpretation of the Convention, the construction of an international treaty requires that we look beyond parochial definitions to the broader meaning of the Convention, and assess the ‘ordinary meaning to be given to the terms of the treaty in their context and in light of [the Convention’s] object and purpose.’

(quoting the Vienna Convention on the Law of Treaties)
► Her dissent from the denial of rehearing en banc in Koehler v. Bank of Bermuda (2000), contending that the appellate panel should not have adopted an understanding of what it means to be a “citizen or subject of a foreign state” that would leave residents of Bermuda and other similarly situated territories of the United Kingdom effectively stateless and outside the alienage jurisdiction of the federal courts. She describes this conclusion as “flawed and internationally troublesome,” noting its deleterious effect on “our relations with foreign nations, and the access of foreign entities and individuals to our courts.”
Judge Sotomayor also wrote a brief foreword for The International Judge: An Introduction to the Men and Women Who Decide the World's Cases (2007), a book based on interviews with 32 judges on international tribunals. Here, she carefully elides the hot-button question of “the appropriate role that international and foreign law should play in American constitutional adjudication” for an alternative query:
how much we have to learn from international courts and from their male and female judges about the process of judging and the factors outside of the law that influence our decisions.

In considering this question, she draws parallels between the challenges faced by the international judges described in the book and those that she and her colleagues on the federal appellate bench must likewise address, noting particularly the difficult necessity of remaining impartial in “cases that touch our passions deeply.”
She also offers some insight into her view of the mechanism by which judges fulfill their role:
[A]ll courts… are in large part the product of their membership and their judges’ ability to think through and across their own intellectual and professional backgrounds, to reach some juncture of consensus and cooperation in which a common language is used to articulate the rules and norms that bind their communities.

Congrats to IntLawGrrl Kathleen Doty

Am honored to announce the appointment of IntLawGrrl Kathleen Doty (left) as the inaugural Fellow of the California International Law Center at King Hall (CILC), University of California, Davis, School of Law.
Author of yesterday's post on the California Supreme Court's ruling on Proposition 8, as well as other posts concentrating on human rights and global health policy, Kathleen will begin her fellowship this fall after finishing her clerkship with a judge on the Hawai`i Intermediate Court of Appeals.
As the CILC Fellow she will give invaluable scholarly and administrative help to the Center, launched this past February with yours truly as founding Director (prior posts). CILC aims to foster the work of California-Davis faculty, students, and alumni in international, comparative, and transnational law, through speakers’ series and conferences, curricular and career development. Key components are our partnerships, among them our Darfur Project undertaken with the Robert F. Kennedy Center for Justice and Human Rights.
Kathleen is eminently qualified for the position, having excelled in international legal studies while in law school. In 2008, the same year she earned her J.D. from California-Davis, she:
► served as both coach and advocate for the Jessup International Moot Court Team, which advanced to international rounds in Washington, D.C.; and
► was honored as 1st runner-up in the National Lesbian and Gay Law Association Michael Greenberg Student Writing Competition for an article just published as From Fretté to E.B.: The European Court of Human Rights on Gay and Lesbian Adoption, 18 Law & Sexuality 121 (2009), at "Global Arc of Justice: Sexual Orientation Law Around the World," a conference convened by the Williams Institute at UCLA School of Law and the International Lesbian and Gay Law Association.
She was graduated cum laude from Smith College with a major in Latin American Studies and a minor in Film Studies. Fluent in Spanish and proficient in French, she worked with community organizations in the Hispanic and French Caribbean, and studied abroad at La Universidad de la Habana in Cuba. She is a founding member of the Hawai’i Lesbian and Gay Legal Association.
Heartfelt congratulations!

On May 28

On this day in ...
... 1959 (50 years ago today) , 2 females became "the first living creatures to survive a space flight." Both were monkeys -- Able, a 7-pound rhesus monkey, and Baker, a 1-pound squirrel monkey (left). (photo credit) They traveled at speeds of up to 10,000 mph during a flight that sent them 300 miles into space in a Jupiter missile. It began at Florida's Cape Canaveral and and ended 15 minutes later in the Atlantic Ocean near Puerto Rico. Another female, a dog named Laika, had died during a 1957 flight launched by the Soviet Union (right). (credit for photo of Bulgarian stamp)
... 1964 (45 years ago today), at a meeting held by the Palestinian National Congress at the Inter-Continental Hotel in Jerusalem, the Palestinian Liberation Organization was formed. (image credit)

(Prior May 28 posts are here and here.)

Wednesday, May 27, 2009

Read On! Interesting New Book on the Transatlantic GMO Debate

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

I will review the book after I have read it. For now, I will just whet your appetite with OUP's description of the book:

The transatlantic dispute over genetically modified organisms (GMOs) has brought into conflict the United States and the European Union, two long-time allies and economically interdependent democracies with a long record of successful cooperation. Yet the dispute - pitting a largely acceptant US against an EU deeply suspicious of GMOs - has developed into one of the most bitter and intractable transatlantic and global conflicts, resisting efforts at negotiated resolution and resulting in a bitterly contested legal battle before the World Trade Organization. Professors Pollack and Shaffer investigate the obstacles to reconciling regulatory differences among nations through international cooperation, through the lens of the GMO dispute. The book addresses the dynamic interactions of domestic law and politics, transnational networks, international regimes, and global markets, through a theoretically grounded and empirically comprehensive analysis of the governance of GM foods and crops. They demonstrate that the deeply politicized, entrenched and path-dependent nature of the regulation of GMOs in the US and the EU has fundamentally shaped negotiations and decision-making at the international level, limiting the prospects for deliberation and providing incentives for both sides to engage in hard bargaining and to "shop" for favorable international forums. They then assess the impacts, and the limits, of international pressures on domestic US and European law, politics and business practice, which have remained strikingly resistant to change. International cooperation in areas like GMO regulation, the authors conclude, must overcome multiple obstacles, legal and political, domestic and international. Any effective response to this persistent dispute, they argue, must recognize both the obstacles to successful cooperation, and the options that remain for each side when cooperation fails.

D-Day: California's Proposition 8

In this case, D is for decision. And yesterday morning, the California Supreme Court made a big one: it ruled that Prop 8, the voter-approved initiative limiting marriage to a man and a woman, was a valid change to the California Constitution. (Prior IntLawGrrls posts available here.)(photo credit). While activists and disappointed LGBT people are taking to the streets in their hometowns and blowing up the social networking sites, it is worth pointing out that there is still hope after Strauss v. Horton.
Positively, the court held that:
► The fundamental constitutional rights of same-sex couples as previously announced by the court in In re Marriage Cases remained unchanged by Prop 8, which was narrow in that it only restricted the use of the term "marriage" to opposite sex couples.
► Prop 8 only applies prospectively; the 18,000 marriages that occurred prior to November 5, 2008, remain valid.
► The court did not decide whether same-sex couples that were lawfully married in other states would have their marriages recognized by the State of California.
In the aftermath of the otherwise disappointing decision, the key is to remember that this case was about "the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process." The issue was not whether same-sex marriage should be legal in California. Of course, common sense says the two issues can hardly be separated, yet with our legal blinders, we can, and must separate such issues.
Ultimately, the decision is not fatal to same-sex marriage in California; it punts the issue back to the voters to decide whether to repeal Prop 8 in the same way it was passed, via ballot initiative, in the coming years. It also opens the door for a federal challenge, which is reportedly already underway. And for many Californians, it begs the question whether a clear revision to the state Constitution should be considered that would modify the state's initiative system.

Legal realism renewal

"Experience," not "change," was the password in the announcement of Court of Appeals Judge Sonia Sotomayor (left) as nominee to be the next Justice of the U.S. Supreme Court.
Both the judge and President Barack Obama focused on the 1st word during yesterday's announcement (video clips below; Obama's remarks here; our colleague Tom Goldstein's superb analysis of the hearings to come here). (photo credit)
No need, really, to talk about the 2d word, change. All knew the media would not be able to resist shoehorning Sotomayor into identity niches -- stressing that if confirmed she'll be the 1st Latina and the 3d woman ever on the Court. (The media are less likely to mention the no-change aspects of her nomination -- she'd become the 9th former federal appeals judge, the 8th Ivy Leaguer, the 7th Eastern Seaboarder, and 6th Roman Catholic on the current Court.)
And so the emphasis is on experience. Experience includes Sotomayor's service on the 2d Circuit since 1998 (prior IntLawGrrls post), on the U.S. District Court in Manhattan from 1992 to 1998. And it also includes her gripping life experience as one who, raised by a widowed mother in a Bronx housing project, went on to a summa career at Princeton and Yale Law and in the public- and private-sector practice of law. Thus Obama invoked a legal axiom:

For as Supreme Court Justice Oliver Wendell Holmes once said, 'The life of the law has not been logic; it has been experience.' Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers. It is experience that can give a person a common touch and a sense of compassion; an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of justice we need on the Supreme Court.
The quoted line comes, of course, from the 3d sentence of Holmes' 1880 Harvard lecture on liability, published as The Common Law a year later. The line distills much of what's come to be called legal realism, the view that judging entails something more than unvarnished adherence to formal law. Holmes' lecture thus proceeded:

The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.
For decades this reasoning had much currency in American legal circles. Then, in the late 20th century, formalism revived. Prized were judges who professed to apply the law only as it was -- to paraphrase the proclamation of then-nominee John G. Roberts Jr., to put aside Holmesian "prejudices" and call 'em as they saw 'em.
No less than Roberts had in 2005, yesterday Sotomayor pledged allegiance to the rule of law:

I firmly believe in the rule of law as the foundation for all of our basic rights.
No surprise there. Nothing less ought to be expected of a Justice. What was different was this: Sotomayor coupled that pledge with another,

to 'never forget the real-world consequences of my decisions on individuals, businesses and government.'

These confirmation hearings augur a return to a richer understanding of the rule of law.



On May 27

On this day in ...
... 1952, leaders of Belgium, France, Germany, Italy, Luxembourg, and the Netherlands signed the Treaty instituting the European Defence Community (EDC) in Paris. But the treaty never entered into force: the National Assembly of France, whose government had spearheaded the idea in 1950, refused to ratify the 1952 treaty, finding it "an attack on French sovereignty in the domain of national defense." Thus did the August 1954 political cartoon above depict U.S. President Dwight D. Eisenhower and other supporters in a motorboat watching "EDC" attempt to swim ashore past the tentacles of "French Germanophobia." (credit) Eventually efforts were abadoned in favor of creation of the Western European Union, with more members, including England.
... 1992, Leneen Forde (below right) was appointed Governor of Queensland (according to this link; another puts the date later in the same year), making her the 1st women to lead a state in Australia. She would hold the post until 1997. Born Leneen Kavanagh in Ottawa, Canada, in 1935, she worked as a medical lab technician before she moved Down Under, married, and earned a law degree at the University of Queensland. From 1998-99 Forde was Chairperson of the Commission of Inquiry into Abuse of Children in Queensland Institutions. Since 2000 she's served as Chancellor of Griffith University in Queensland.

(Prior May 27 posts are here and here.)

Tuesday, May 26, 2009

Guest Blogger: Vivian Tan

Welcome to Vivian Tan (2L Santa Clara University School of Law), who today contributes the guest post below on the 2008 Cluster Munitions Convention.
Vivian (right) discovered the importance of international law while working on anti-sweatshop campaigns in rural China four years ago. Realizing the strong ties between economic disadvantage and the international legal system, Vivian hopes to bring positive change in the world through ethical business and legal practices. She believes humanitarian law and human rights law are fundamental to the alleviation of poverty.
Vivian is currently pursuing her J.D. at the Santa Clara University School of Law. She represented her school in this year's Jean Pictet Competition held in Evian-les-Bains, France. (Her team was one of only four U.S. teams to compete, along with the Air Force Academy, the Military Academy at West Point, and New York University). Her blog on the competition is available here.
Santa Clara team members Ann Marie Ursini (far left), John List (center) and Vivian Tan (far right) are depicted at left with members of the University of Amsterdam team.


Critique of the Cluster Munitions Convention

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Since their introduction in World War II, cluster munitions have evolved into one of the most effective and devastating weapons used in warfare around the world. Despite their military value, the indiscriminate effects of cluster bombs run afoul of the principles of distinction, proportionality, and military necessity fundamental to international humanitarian law. The high failure rate of cluster bombs imperils civilians who come into contact with unexploded submunitions long after conflicts end. Children face even greater danger as they often mistake the brightly colored submunitions for toys. And yet, until recently, codified international humanitarian law did not fully address the dangers posed by cluster bombs.
Although the Convention on Certain Conventional Weapons was amended in 2003 to include an additional Protocol requiring the clearance of explosive weapons of war, the treaty inadequately addresses the urgent threats posed by cluster munitions due to procedural and substantive defects. First, few developing countries are represented at meetings of the monitoring body for this weapons convention, and many states affected by cluster munitions are not party to the treaty at all. Since states only need to adopt two out of five protocols to become signatories, adherence to the Conventional Weapons Convention varies substantially. The obligation to clear explosive remnants of war cannot be applied retroactively to resolve problems caused by cluster munitions already deployed. Further improvements to this multilateral treaty cannot be made without consensus among the parties. The result is a slow, inefficient process that is incapable of handling pressing humanitarian issues in a timely manner. The rising numbers of post-conflict civilian casualties caused by cluster munitions clearly show that international humanitarian law has so far been ineffective.
The consistent pattern of humanitarian harm caused by cluster bombs demanded action from the international community, prompting the creation of a new dedicated treaty that would address the most critical issues. The 2008 Convention on Cluster Munitions, adopted last summer in Dublin, Ireland (prior IntLawGrrls post), is a necessary addition to international humanitarian law because it fills the gaps in existing weapons regimes and sets out explicit prohibitions and obligations not covered in the conventional weapons treaty.
The general prohibition in the Cluster Munitions Convention against the production, use, stockpiling, and transfer of cluster munitions represents a significant improvement upon the vague standards of the older Conventional Weapons Convention. The later treaty's mandate for the destruction of stockpiles is particularly important, as many countries have retained old cluster bombs dating as far back as the Cold War that have become highly unstable with age. As of 2007, at least seventy-five states were stockpiling cluster munitions, containing billions of explosive submunitions. By prohibiting the transfer of cluster munitions, the Cluster Munitions Convention guards against exportation as a means of reducing stockpiles. This new treaty also sets specific deadlines for bomb clearance and destruction.
In addition, the Cluster Munitions Convention addresses victims already injured. States parties are obligated to develop national plans to assist all victims affected by cluster bombs without discrimination. The treaty also urges international cooperation, providing that state parties with the capabilities to do so “shall provide technical, material and financial assistance” to other state parties to accelerate and facilitate the processes.
Also laudable are transparency measures and requirements for thorough reporting. Within 180 days after the treaty enters into force for a state party, the state must disclose to the United Nations information such as a description of its current stockpile, bomb clearance and destruction programs, known areas of contamination, and proposed plans to achieve the goals of the Cluster Munitions Convention. State parties are also obligated to provide thorough status reports when requesting extensions on deadlines. The convention's flexible amendment process also allows shortcomings to be rectified swiftly. The United Nations may convene an Amendment Conference as quickly as the majority of state parties deems necessary, and a two-thirds vote by the state parties present passes the amendment.
Despite these important contributions, the Cluster Munitions Convention contains several significant flaws, such as the conflicting definitions of cluster munitions. First, the treaty only addresses cluster bombs dispensed by aircraft, leaving out those launched by submarines or on land. At the same time, the treaty gives a generic definition of cluster munitions that may result in an over-inclusive ban on more sophisticated models that do not cause the devastating humanitarian harm associated with the antiquated types. Only particular cluster munitions meeting specific requirements, including the ability to self-destruct, self-deactivate, and detect and engage a single target object, are allowed. According to cluster munitions experts, however, accuracy and self-destruction mechanisms have not proven to be effective or reliable.
Disparity among the state parties' capacities and ill-defined standards are also critical drawbacks. Where there exist no relevant international regulations, the Cluster Munitions Convention requires state parties to apply “any necessary national law” to achieve its goals and penalize non-compliance. This may result in significant inconsistencies in enforcement among state parties. The treaty is also unclear on who should monitor its implementation, such the use of trust funds or mediation of dispute settlements between state parties. While the dispute provisions offer recourse to the annual Meeting of the Parties, this suggests that pressing issues cannot effectively be addressed in the interim. State parties are also obligated to bear the costs incurred by the United Nations in enforcing transparency and compliance measures. The heavier burden will fall upon poorer nations, who may not have the resources to keep up with the strict compliance standards in the first place.
The Cluster Munitions Convention has met resistance from major stockpilers like the United States, Russia, and China, because it does not take into account the military value of cluster munitions or the expensive nature of their clearance and destruction. The key players' refusal to adopt the treaty diminishes other states' incentives to join.
The treaty nevertheless establishes a solid framework for the orderly elimination of cluster munitions and their lingering effects. Going forward, the international community should monitor the systems developed under the Cluster Munitions Convention and focus on setting uniform implementation standards. In addition, ambiguous provisions should be amended when more data becomes available. Amendments might include model policies and procedures for carrying out the treaty's goals and financial assistance plans to encourage more states to join.

On May 26

On this day in ...
... 1969 (40 years ago today), in Colombia, diplomats from that country plus Bolivia, Ecuador, Peru, and Venezuela signed the Cartagena Agreement (formally titled the Andean Subregional Integration Agreement) "in order to jointly improve their peoples’ standard of living through integration and economic and social cooperation." Today the subregional organization established by this and related agreements, la Comunidad Andina/the Andean Community (flag at right), has 4 members: Bolivia, Colombia, Ecuador, and Peru. Chile withdrew in 1976, and Venezuela, which had joined in 1973, withdrew in 2006.
... 2001, the Constitutive Act of the African Union entered into force. The agreement, by which the 53-state-party-member African Union (flag at left) replaced the 38-year-old Organization of African Unity as the primary regional organization for the continent, had been adopted at Lomé, Togo, on July 11, 2000.

(Prior May 26 posts are here and here.)

Monday, May 25, 2009

Memorial Day










As in years past, IntLawGrrls marks this day of remembrance with images of Memorial Day. These may provoke thought about the use of female images in representations of this woman-started holiday.













(credit for 1937 Works Progress Administration poster)

On May 25

On this day in ...
... 2005, Dr. Ruth Wijdenbosch was re-elected to the Parliament of Surinam. She was brought to IntLawGrrls' attention last summer by a comment that told how Wijdenbosch (right) was instrumental in securing Surinam's accession to the Rome Statute, making it the 107th state party to the International Criminal Court. On the 10th anniversary of the Rome Statute in 2008, Wijdenbosch delivered a speech in which she: told of her record as a human rights convener in Suriname's post-dictatorship era; spoke of the need for a permanent international court "to protect individuals and groups if the national judicial systems are not able or willing to do so"; and expressed her opposition to Bush Administration efforts to secure for the United States bilateral immunity agreements. (photo credit)
... 1961, in a speech broadcast nationally on radio and TV, U.S. President John F. Kennedy declared:
'I believe that this nation should commit itself to achieving the goal, before this decade is out, of landing a man on the Moon and returning him safely to Earth.'

Thus began a multibillion-dollar space program that would culminate in the also-televised July 20, 1969, moonwalk of NASA astronaut Neil Armstrong, depicted in the video below.







(Prior May 25 posts are here and here.)

Sunday, May 24, 2009

Québec court finds Rwandan Désiré Munyaneza guilty

In the first-ever application of Canada's Crimes Against Humanity and War Crimes Act (2000), the Cour supérieure of Québec found Désiré Munyaneza (left, credit) guilty of all 7 counts pending against him since 2005: genocide (intentional murder and serious bodily or mental harm), crimes against humanity (intentional murder and sexual violence) and war crimes (intentional murder, sexual violence and pillage). The charges stem from acts committed between 06 April and 04 July 1994 in Rwanda. The Crimes Against Humanity and War Crimes Act implements the Rome Statute establishing the International Criminal Court and the Québec court's decision, delivered by Judge André Denis, addresses an international audience, abundantly citing case law from the international criminal tribunals for Rwanda and the former Yugoslavia.
Commentators are saying this may be just the beginning of further such trials. Indeed, one of the major obstacles in transnational trials was overcome here: almost all the witnesses hailed from beyond Canada and spoke a foreign language (Kinyarwanda). The judge's "unshakable faith" in their testimony apparently surprised the defense, which has has already made its intention to appeal known.The decision is available here.

On May 24

On this day in ...
... 1930, Amy Johnson (right), a 26-year-old British typist, landed in Darwin, making her the 1st woman ever to fly solo nonstop between England and Australia. The 14,000-kilometer, 19-1/2-day flight in a biplane won her a £10,000 newspaper prize and instant international celebrity, the latter evident in this video clip of her subsequent stop in Brisbane -- a clip described as "possibly one of the earliest examples of celebrity mobbing recorded on an Australian newsreel." Following this feat Johnson became a commercial pilot. When World War II broke out in 1939, Johnson, ineligible to serve in the Royal Air Force because of her sex, joined its support service, the British Air Transport Auxiliary. On January 5, 1941, during a routine flight ferrying aircraft from factory airstrips to RAF bases, Johnson's plane crashed into an estuary of the Thames River, and she was drowned.
... 1994 (15 years ago today), the 4 men convicted of the 1993 bombing of the World Trade Center received terms of 240 years each, without parole, from the U.S. District Court in Manhattan. The car bomb had damaged an underground garage (left), killed 6 persons and injured a thousand more. (photo credit)

(Prior May 24 posts are here and here.)

Saturday, May 23, 2009

Go On! African Great Lakes Pact








(Go on is an occasional item on symposia of interest) The London School of Economics will be the site May 29-30, 2009, for The Great Lakes Pact Two Years On: Issues of Implementation and Enforcement, a symposium that follows up on a 2007 conference that had focused on the content of the 2006 Pact and its protocols.
Under review are efforts by the International Conference on the Great Lakes Region, established by these 11 states in Central Africa: Angola, Burundi, Central African Republic, Republic of Congo, Democratic Republic of Congo (see too post below), Kenya, Rwanda, Sudan, Tanzania, Uganda, and Zambia. The Conference endeavors to provide a forum for resolving armed conflict, maintaining peace, security, stability, and laying the foundation for postconflict reconstruction in the region.
Confirmed speakers include Kenyan Foreign Minister Moses Wetang'ula, Ambassador Liberata Mulamula of Tanzania (above right), former Mission of the United Nations in Congo advisor Lt. Col. Michael Gibson, Pascal Turlan of the International Criminal Court prosecutor's office, Isabell Kempt of the Office of the U.N. High Commissioner on Human Rights, Anneke Van Woudenburg of Human Rights Watch, and LSE Senior Lecturer Chaloka Beyani.
Registration form available here for the event, which is sponsored by LSE's International Humanitarian Law Project.

'Nuff said

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

Is it that coltan, the mineral that keeps our cell phones and computers in play, is more important than Congolese girls?

-- playwright-activist Eve Ensler (right), asking why so little's been done about brutalities and killings suffered by women in the last dozen years in the Democratic Republic of Congo. She posits unsettling answers in her Huffington Post op-ed, "War on Women in Congo."


On May 23

On this day in ...
... 1889 (120 years ago today), a daughter and only child was born to a couple in a "'little one-room shack'" in Woodsdale, Kansas. As detailed in this superb biographical paper, the family then moved to Missouri then took part in the Oklahoma land rush, and then moved to Michigan. They made their living as printers, newspaper publishers, and farmers, among other occupations. The daughter at 1st was home-schooled, then completed a 2dary school. She began teaching, marrying the principal at a school where she taught. The couple moved to Los Angeles. The marriage collapsed. In 1916 Mabel Walker Willebrandt (left) earned her law degree from the University of Southern California. At age 32 she became the 2d woman U.S. Assistant Attorney General, holding the post from 1922 to 1929. She served with zeal during the period that the 18th Amendment banned alcoholic drinks, and so earned nicknames such as "Prohibition Portia." She died in 1963.
... 1929 (80 years ago today), during the height of popular fascination with aviation, Canada's first airborne wedding ceremony took place, in a biplane over Regina, Saskatchewan.
... 1950, U.S. Rep. Dina Titus (D-Nev.) was born in Thomasville, Georgia. She'd taught political science at the University of Nevada-Las Vegas for 30 years, and served in the state Senate for 20, before being elected to Congress in November 2008.

(Prior May 23 posts are here and here.)

Friday, May 22, 2009

Measuring Gender Discrimination

I'm normally a fan of the statistical reports produced by the OECD, so was surprised to find myself in disagreement with the methodology of their recently-created Social Institutions and Gender Index (SIGI). The idea behind SIGI is a good one -- to get at the root of gender discrimination by examining traditions and social norms that impede women's empowerment. To this end, SIGI assesses twelve variables in 102 non-OECD countries and then ranks these countries based on their "performance in social institutions." The selection and evaluation problems with their study highlight the difficulty of empirically measuring and ranking intangible phenomena such as social norms.
My first concern with the study is that the twelve variables that SIGI has chosen to measure social institutions and their contributions to gender inequality appear to suffer from selection bias. Their model does include variables that impact women's advancement globally, such as access to land and property and inheritance laws. However, given the relatively small number of variables examined, it was surprising to see the inclusion of discriminatory traditions and social norms practiced only in a limited number of regions, such as female genital mutilation, restrictions on freedom of dress and "missing women" (gender-selected abortion or infanticide) as stand-alone variables. To be sure, these forms of hidden discrimination are of concern, but if it's to include traditions and social norms that impede women's progress only in certain regions, the study should be as comprehensive as possible, including a broad range of regionally specific discriminatory norms (such as very limited access to contraception and abortion in much of Latin America). Alternatively, the study could be limited to variables that exist in nearly every country studied, with regionally specific norms as a subset but not a stand-alone variable (examining FGM as one manifestation of violence against women, for example). The study's current approach inappropriately weights these variables and thus leads to odd results in the rankings -- India, for example, is ranked 96 of 102 countries, just below Iran. While there's no disputing that India has its fair share of hidden forms of gender discrimination, a claim that Indian women face more discriminatory norms than Iranian women is difficult to defend.
The study also appears to contain evaluation problems in that it relies on the law on the books to measure social norms without closely examining whether this law is applied in practice. So, for example, I was surprised to see El Salvador ranked number 8, with a mention of violence against women as a "serious problem" but nonetheless receiving an extremely high score for physical integrity. In contrast, the U.S. State Department's 2008 Human Rights Report denotes violence against women as one of the top human rights problems in El Salvador, with over 6000 reports of domestic violence and only 12 prosecutions and 4 convictions last year. Again, it's hard to take seriously an index that ranks highly a country with social norms that widely condone violence against women.
While the authors of the study are correct in their claims that these traditions and social norms often impede progress towards equality for women, it is extremely hard to quantify such intangible phenomena. Social norms and traditions that impede women's empowerment take different forms throughout the world, and do not lend themselves easily to comparative assessment. More importantly, I'm not sure where the value lies in "ranking" hidden forms of gender discrimination. How should these rankings be used? To determine which countries should be prioritized in efforts to ameliorate gender discriminatory norms? As a shaming sanction against those at the bottom of the list? While it's undoubtedly important to examine and elucidate these norms in order to redress them, it seems less worthwhile to measure and sort them, as if eliminating gender inequality were simply a numbers game. And as SIGI's pitfalls illustrate, such a study should be performed by researchers familiar with the societies and cultures in question and should not rely on laws on the books as an adequate proxy for social norms. Moreover, any such study should rigorously select and weight quantitative or qualitative measures of discriminatory norms to avoid culturally biased and unreliable results.

Cross-posted on Concurring Opinions.