Tuesday, June 30, 2009

EPA grants California's Clean Air Act waiver

From the press release issued by the U.S. Environmental Protection Agency:

EPA is granting California’s waiver request enabling the state to enforce its greenhouse gas emissions standards for new motor vehicles, beginning with the current model year. Using the law and science as its guide, EPA has taken this action to tackle air pollution and protect human health.

“This decision puts the law and science first. After review of the scientific findings, and another comprehensive round of public engagement, I have decided this is the appropriate course under the law,” said EPA Administrator Lisa P. Jackson [left]. “This waiver is consistent with the Clean Air Act as it’s been used for the last 40 years and supports the prerogatives of the 13 states and the District of Columbia who have opted to follow California’s lead. More importantly, this decision reinforces the historic agreement on nationwide emissions standards developed by a broad coalition of industry, government and environmental stakeholders earlier this year.”

Although this resolution of the waiver dispute was expected and has a somewhat limited impact as the Obama administration brings federal standards in line with California ones, the dispute itself highlighted complex federalism issues at the heart of the Clean Air Act and efforts to regulate climate change. (Prior IntLawGrrls posts on California and climate change here, here, here, and here.) I have written about the dynamics of the waiver dispute as an example of what I term diagonal regulation (cross-cutting efforts that are simultaneously horizontal and vertical), and am currently working on an article attempting to operationalize the concept of diagonal regulation and explore its implications for the Obama administration through an in-depth analysis of motor vehicles emissions regulation.

(Cross-posted at Teaching Climate Change Law & Policy blog)

A blow to democracy & human rights

This week the armed forces of Honduras overthrew democratically elected President Manuel Zelaya (left), arresting him at home and bundling him off to Costa Rica in his pyjamas. The army then installed its own president, with the thin legal veneer of the Honduran Supreme Court's blessing. The Organization of American States, the Obama administration, and human rights groups protested and called for Zelaya's reinstatement.
The coup is a direct violation of the OAS's Santiago Commitment to Democracy and the Renewal of the Inter-American System. By adopting that Commitment during a 1991 meeting in Chile's capital, countries of the hemisphere established a mechanism for collective action in the case of a sudden or irregular interruption of the democratic political institutional process or of the legitimate exercise of power by the democratically elected government in any of the Organization's member states.
This commitment was reaffirmed in 2001, in the Inter-American Democratic Charter, which requires the suspension from the OAS of states where elected governments have been found to be illegally overturned.
So why did the Honduran armed forces, backed by the legislature and the supreme court, take what they knew would be a much-criticized action? The U.S. press has stressed the attempt by President Zelaya to change the rules on re-election and the close ties between Venezuela and Honduras.
But that's only a small piece of the story.
The re-election effort was part of a larger package. Its centerpiece was a call for a popular referendum on whether or not to call a Constitutional Convention. Had the referendum, which was supported by labor, peasant, environmental, and human rights groups, passed, Honduras would have joined Latin American countries including Colombia, Ecuador, and Bolivia, that had rewritten their constitutions after a broad-based (more or less) constitutional rewriting process.
These processes have been tumultuous and highly controversial elsewhere. But on the positive side, they have:
► Broken existing political logjams and dysfunction;
► Established broad rights for indigenous communities; and
► Set the stage for institutional reforms to protect land and the environment and to give the government greater control over resource policies, especially mining and forest projects. These projects, many sponsored by U.S. and Canadian companies, have affected water and other resources and generated widespread local opposition.
Indeed, there are movements afoot in other countries, like Chile, to use upcoming elections to push for a constitutional convention to remake the Pinochet-era constitution there (not to mention efforts in California to call a constitutional convention to remake our own dysfunctional, gridlocked and almost-broke system of government!).
That's what was at stake in Honduras, and why the powers supporting the status quo were willing to brave international criticism to try to derail a new constitution-building initiative.

Feeling Germany's pain

'Every time we fail to preserve a site, we share the pain of the state party.'
So said Dr. María Jesús San Segundo (left), Spain's Ambassador to the U.N. Educational, Scientific and Cultural Organization (and an economics professor at Madrid's Universidad Carlos III), respecting UNESCO's decision to remove Dresden from its list of World Heritage Sites.
¿Por qué?
Because the city has decided to go ahead with building the Waldschlösschenbrücke, a 4-lane bridge that opponents maintain "would be a blot on the unique Elbe valley and is sited in a particularly sensitive spot, near the old city, from where it could be seen." The decision makes the state party in question -- Germany -- the 1st country in Europe and only the 2d in the world to be removed from the list.

On June 30

On this day in ...
1984 (25 years ago today), Lillian Hellman (right) died in Tisbury, Massachusetts. The playwright's best-known works include The Children's Hour (1934), The Little Foxes (1941), and Toys in the Attic (1959). Throughout her career, Hellman openly held left-wing political views and was active in the campaign against the growth of fascism in Europe. As a result, she was subpoenaed to appear before the House Un-American Activities Committee in 1952. Pressured to reveal the names of associates in the theater who might have Communist associations, she refused:
'To hurt innocent people whom I knew many years ago in order to save myself is, to me, inhuman and indecent and dishonorable. I cannot and will not cut my conscience to fit this year's fashions, even though I long ago came to the conclusion that I was not a political person and could have no comfortable place in any political group.'
(credit for photo of paperback reissue of Hellman's 1969 memoir, An Unfinished Woman)
1992, Margaret Thatcher (below left) joined the House of Lords following the bestowal upon her of a life peerage. In 1959, Thatcher had been elected a Member of Parliament. She proceeded to become Britain's Prime Minister from 1979 to 1990 and a member of the House of Commons from 1990 to 1992. (photo credit) Thatcher used her appointment to the House of Lords to continue to make her views heard, particularly on European issues. In 1992, Thatcher called for the North Atlantic Treaty Organization to stop the Serbian assault on Goražde and Sarajevo as a means to end ethnic cleansing and to preserve the Bosnian state. She has also made a series of speeches criticizing the Maastricht Treaty.

(Prior June 30 posts are here and here.)

Monday, June 29, 2009

Guest Blogger: Michelle Oberman

It is a distinct pleasure to introduce my friend and Santa Clara Law colleague Michelle Oberman (left) as a guest blogger.
Michelle has a background in public health, and her research focuses on legal and ethical issues relating to adolescence, sexuality, pregnancy, and motherhood. In recent years, she has written about statutory rape, postpartum mental health issues and the law, filicide, substance abuse by pregnant women, and the fiduciary obligations of health care providers to their patients. In addition to teaching in the area of Health Law, Michelle teaches Criminal Law and Contracts.
In 2008 she co-authored When Mothers Kill: Interviews From Prison, depicted below right, with Dr. Cheryl L. Meyer, Professor of Professional Psychology at Wright State University in Dayton, Ohio. Their work won the Outstanding Book Award that year from the Academy of Criminal Justice Sciences. According to the ACJS,
The book was excellent and captured both the concrete circumstances and the complex morality of the women…

In her guest post below, Michelle recounts some of what she and I learned on our recent research trip to Costa Rica in connection with Santa Clara's summer program at the Inter-American Institute of Human Rights and the Inter-American Court of Human Rights.

Heartfelt welcome!

Rosita's Legacy

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

As my colleague, IntLawGrrl Beth Van Schaack, and I recently made the rounds of various women’s groups during our research trip to Costa Rica, attempting to get a sense of whether and how the world of international human rights might be employed to help to mobilize those working on behalf of women’s status in Central America, everyone spoke of “la Rosita.” They did so as if her case had happened only yesterday. In fact, it had been six years since the then-nine-year-old girl was found to be pregnant and was refused an abortion by the Costa Rican government’s health service on the grounds that the pregnancy did not threaten her life.
Rosita’s story is layered, and has unfolded over the interceding years in ways that are at once horrific and mundane.
In Costa Rica, doctors, lawyers and health advocates invoke it to illustrate any number of problems plaguing women’s autonomy in their region of the world. (One of her drawings, entitled "Rosita sad," is at left.) Rosita’s mother brought her daughter to the doctor when the girl began complaining of stomach pain. It took several days before they realized she was just over three months pregnant. When she was transferred to San José for care, doctors put her in the obstetrical ward of the women’s hospital rather than in the children’s hospital.
Somehow, the media learned of Rosita’s pregnancy, which allegedly resulted from her having been raped by an acquaintance. Costa Rican law permits therapeutic abortions when the pregnancy poses a danger to a woman’s life or physical health. Perhaps the publicity around her case shaped her doctors’ decision that Rosita did not qualify for such an exception to the general ban on abortion.
With the help of local activists, the family returned to their home state, Nicaragua, where three doctors verified, in accordance with the law at that time, that the pregnancy was in fact life-threatening. Rosita obtained an abortion, but by then, her case had become a cause célèbre around the world. Filmmakers made an award-winning documentary (trailer) telling of her plight. Narrated in part by Rosita's mother and stepfather (right), the film expresses the hope that the abortion had been a way to permit her to resume her childhood.
Meanwhile, anti-abortion advocates vowed to tighten the laws that had permitted her to obtain a legal abortion. Daniel Ortega was elected president of Nicaragua on a platform supporting a complete ban on abortion. In 2006, Nicaragua became one of 4 countries in the world to ban abortion under all circumstances, including when pregnancy poses a threat to the life of the mother.
In late 2005, Rosita, still a child, became pregnant again. This time she carried her baby to term, and DNA testing determined that Rosita had been impregnated by her stepfather. It is now widely accepted that he caused her earlier pregnancy as well. In November 2007, he was sentenced to 30 years in prison. Today, Rosita and her baby live in state custody.
The women with whom Beth and I spoke in Costa Rica were on the front line of the struggle to improve women’s lives in their country and in their region of the world. Each spoke of Rosita’s case, and yet her story only emerged in bits and pieces:
► Another recounted the manner in which Rosita’s mother’s initial ambivalence about abortion, coupled with the media attention the case received, left the doctors with no real alternative but to deny the abortion.
No one spoke about the manner in which Rosa initially became pregnant. No one talked about the fact that she became a mother two years later, while still a child. No one mentioned that the law had not managed to protect Rosa from her abuser.
Instead, we spoke of the grey space beneath the law in which girls and women presently struggle to find a safe path to walk through their lives. It became clear that the law is only part of what circumscribes women’s status in their country, as in our own. To speak of rights was to tell only a half-truth. And yet, to ignore rights language altogether was to invite in the resignation that accompanies oppression. It was to feel shamed and humiliated, rather than simply afraid.

On June 29

On this day in ...
1974 (35 years ago today), Isabel Martínez de Perón (right) was sworn in as the 1st woman President of Argentina. (photo credit) The previous President, her husband, Juan Perón, had delegated responsibility to her due to weak health; he died 2 days later. At 43 the youngest Latin American head of state at the time, she inherited a political and economic crisis. Her presidency lasted until 1976, when she was overthrown in a bloodless coup by a military junta. In January 2007, she was arrested under suspicion of having links to right-wing death squads that had abducted and murdered political opponents during her rule.
1861, Elizabeth Barrett Browning (left), among the most prominent poets of the Victorian era, died in Florence, Italy, 55 years after her birth in England. (image credit) During the 19th century no women poet was held in higher esteem in both the United States and England than she. Her poetry had an immense impact on the work of the American poet Emily Dickinson. American poet Edgar Allan Poe similarly was inspired by the Briton's poem Lady Geraldine's Courtship (1844), borrowing its meter for his own The Raven (1845). Barrett Browning's loathing of social injustices -- such as the slave trade in America, the oppression of the Italians by the Austrians, child labor in the mines and mills of England, and the restrictions placed upon women -- is manifested in many of her poems, including Casa Guidi Windows (1851) and Aurora Leigh (1857).

Prior June 29 posts are here and here.)

Sunday, June 28, 2009

Politics of the Veil bis

In his speech before the full French parliament on June 22, President Nicolas Sarkozy said
[the burqa] is not a religious problem, it is a problem of women's freedom and dignity. It is a sign of subjugation. . . . the burqa is not welcome in France.
Neither President Sarkozy nor the French government seem to have read either Beth Van Schaack's great post from last year, or the book that inspired its title, The Politics of the Veil (2007) by Joan Wallach Scott. As Beth mentioned, the French passed a law in 2004 banning the wearing of "ostentatious religious symbols" in public schools. The two arguments supporting the law were the French concept of laïcité, or separation of church & state, and the need to protect young women from being forced to wear fundamentalist religious garb. The law has the disparate effect it was designed to have on Muslim girls, who are forbidden to wear headscarves to school, and also affects Sikh boys. (In fact, many of Muslim parents also request that their daughters be excused from biology classes and mixed-sex swimming classes, for example. So while the law is limited to clothing, the underlying issue of mixing religion and public school is not.) Since most Orthodox Jewish children go to private schools, they are not affected by the 2004 law, which would? should? forbid boys wearing yamalkes, but perhaps not girls wearing tights, long sleeves and long skirts even on the hottest, muggiest days. They and other wearers of ostentious religious garb will also be unaffected by a new law President Sarkozy's government may table to ban the burqa (at least if it is imposed).
As I posted last August, France has denied citizenship to at least one woman on the grounds that she wears a niqab (face veil), which the Conseil d'État (supreme administrative court) considers incompatible with the essential values of the French community, notably with the principle of equality of the sexes. If the government actually does pass a law banning both the burqa (full body garment combined with hijab (head covering) and niqab (face veil)) and the niqab, it too will be upheld on the grounds that here in France, we prize dignity and transparency. It is argued that torturers and executioners cover their faces, that we can't have unidentifiable people picking up children from school, that we can't accept this obvious sign of female enslavement. Will forcing the few women who wear them (5% of France's Muslim population) to stay inside forever or move to a Muslim country save them from enslavement or give them dignity?

On June 28

On this day in ...
2004 (5 years ago today), the United States resumed direct diplomatic ties with Libya (flag at left) when it reopened a U.S. Liaison Office in the capital city of Tripoli. In December 1979, staff members had been withdrawn after a mob attacked and set fire to the U.S. embassy; the United States declared Libya a "state sponsor of terrorism." Relations between the 2 countries remained poor for decades. In 2003, Libya "accepted responsibility for the actions of its officials, renounced terrorism and arranged for payment of appropriate compensation for the families of the victims" of the bombings of a Berlin discotheque and two airliners, and also announced its decision to abandon its weapons of mass destruction programs. (image credit)
1969 (40 years ago today), a police raid in the early morning hours at the Stonewall Inn (right) in New York's Greenwich Village touched off the Stonewall riots, frequently cited as the first instance in U.S. history when gays and lesbians fought back against the persecution of homosexuals. Stonewall, in turn, sparked the gay rights movement in the United States and around the world. Today, gay pride events are held annually worldwide toward the end of June to mark the Stonewall riots. (photo credit)

(Prior June 28 posts are here and here.)

Saturday, June 27, 2009

Go On! Constance Baker Motley Symposium

(Go On! is an occasional item on symposia of interest) Professor Marilyn Ford advises readers to save the date 18 September 2009 for a symposium in tribute to the Honorable Constance Baker Motley (below right), an IntLawGrrls transnational foremother thanks to our own Amy Senier. (photo credit)
Senior U.S. District Court Judge Baker Motley (1921-2005) was, and is, a giant of the U.S. civil rights movement and legal profession. According to her autobiography, Equal Justice Under Law (1999), Baker Motley was galvanized to take action against racism early in life. (IntLawGrrls posts here.)
Born in New Haven, Connecticut, to immigrants from the Caribbean island of Nevis, Constance Baker was denied access to local public recreation areas as a teenager. She set out to become a civil rights attorney despite the many economic, racial, and gender barriers ahead of her.
Baker attended Fisk University and earned degrees from New York University and Columbia Law School. Judge Baker Motley was the first African-American woman appointed to the U.S. federal judiciary, the first African-American woman New York State Senator, and the first woman to serve as Manhattan Borough President.
The young Constance Baker is said to have shown her mother a “For Colored Persons Only” sign she had pulled down from a wall. She wryly noted that it had been reasonable for her to do so since the sign was evidently “for” people of color. She proceeded to break it in half, vowing to work against racial segregation and discrimination. U.S. Supreme Court Associate Justice Ruth Bader Ginsburg described Judge Baker Motley’s subsequent trailblazing career in a 2005 tribute, “Human Rights Hero”.
Co-sponsored by Quinnipiac University School of Law and by Yale Law School, the event, “Constance Baker Motley: A Symposium on Her Life and Work,” will take place on Quinnipiac’s campus.
Scheduled panelists include leading civil rights scholars, lawyers, judges, historians, and journalists such as Lani Guinier, Elaine Jones, Drew S. Days, James B. Farmer, William E. Forbath, Henry Louis Gates, Jr., Vernon E. Jordan, Jr. Charles J. Ogletree, and Juan Williams. For registration information contact Professor Ford with a cc to Lauren Carolla at Lauren.Carolla@quinnipiac.edu .
It's great to see a true human rights hero being recognized in this way.

An end to universal jurisdiction?

(Thanks to IntLawGrrls for giving me this opportunity to contribute another guest post.)

El Congreso de los Disputados (left), Spain's lower house of Parliament, has passed a bill that would limit the reach of universal jurisdiction and profoundly restrict Spain's ability to prosecute serious human rights crimes. (The legislative push was mentioned in this prior IntLawGrrls post.) The bill, available in English translation here, will go before the Spanish Senate for a final vote in the fall.
As is well known, the Spanish universal jurisdiction law was used to pursue former Chilean dictator Augusto Pinochet in 1998. Since then, the law has allowed Spanish courts to stand as a last resort for victims who cannot find justice at home:
► Using this law, Spanish courts have issued warrants for top Rwandan leaders and convicted an Argentine official for "dirty war" killings.
► The law also forms the basis for the Guatemala Genocide Case and the 1989 Jesuits Massacre Case in El Salvador, both now being litigated by the Center for Justice & Accountability, the San Francisco-based nongovernmental organization for which I am Executive Director.
As detailed here, the bill is flawed, yet there may well be constructive means by which the Spanish legislature can clarify the application of the universal jurisdiction law. For instance, the proposed bill correctly adds crimes against humanity to the list of admissible crimes. But the amendment will do nothing to streamline the legal process or to weed out spurious claims from the many legitimate human rights cases that have been brought. Worse still, this amendment may close the doors of Spanish justice to thousands of survivors of human rights abuses. This bill should not become law.
We'll continue to work with the Asociación Pro Derechos Humanos de España, and other partners around the world, to oppose this legislation as it stands and to seek reforms that will protect this powerful tool for human rights.

... and counting ...

(Occasional sobering thoughts.) With:
► bombings and other lethal violence on the increase in Iraq as the deadline nears for withdrawal of U.S. troops from the cities pursuant to a pact about which we've posted, and
► continuing concerns over civilian casualties in Afghanistan has just led the United States to restrict aerial strikes there,
here's the casualty count in the 5 weeks since our last post: Iraq Body Count reports that between 92,393 and 100,868 Iraqi women, children, and men have died in the conflict in Iraq since the U.S.-led invasion in March 2003, representing an increase of between 463 and 503 deaths in the last 5 weeks. According to the U.S. Defense Department, 4,314 American servicemembers have been killed in Iraq. Total coalition fatalities: 4,632 persons. That's 18 servicemember deaths in the last 5 weeks. As was the case in our last post, all servicemember casualties in this period were Americans.
As for the conflict in Afghanistan, military casualties in Afghanistan stand at 712 Americans and 486 other coalition servicemembers. That's an increase of 26 and 21, respectively, in the last 5 weeks, and a total servicemember casualty count of 1,198.

A count of a different sort

Sharp-eyed readers will note that we've moved to our righthand column the timer respecting the nomination of IntLawGrrls guest/alumna Dawn Johnsen to be Assistant Attorney General in charge of the Justice Department's Office of Legal Counsel.
Day 173. Still counting.

On June 27

On this day in ...
1831, Marie-Sophie Germain (right), French mathematician best known for her work in number theory, died in Paris. (image credit) Germain began teaching herself mathematics using her father's library when she was 13. Her parents felt that her interest was inappropriate and did all that they could to discourage her, though they relented in the face of her determination. Under the pseudonym M. LeBlanc, Sophie submitted a paper on analysis to Professor Joseph-Louis Lagrange of the École Polytechnique. Its originality and insight made Lagrange look for its author. When he discovered "M. LeBlanc" was a woman, his respect for her work remained, and he became her sponsor and mathematical counselor. In 1804, Germain began corresponding with the German mathematician, Carl Friedrich Gauss, whom she showed her work on a math problem known as Fermat's Last Theorem. Her work, the concept of the Sophie Germain prime, is arguably her greatest contribution to mathematics. In 1815, she won the prize for her entry for the Institut de France’s elasticity competition. Partly as a result, the French Academy of Sciences welcomed her as the first woman attendee who was not a member's wife.
2001, the International Court of Justice (the seat of which is the Peace Palace at The Hague, left) ruled against the United States in its judgment in the LaGrand Case. U.S. authorities had been required under the Vienna Convention on Consular Relations, of which the United States is a state party, to inform the defendants, foreign nationals, of their right to receive consular assistance from their government at the time of their arrest. They failed to do so and proceeded to carry out sentencing. The ICJ ruled that the United States had violated international law, stating additionally, for the first time in its history, that provisional measures issued by the Court were legally binding. (photo credit)

(Prior June 27 posts are here and here.)

Friday, June 26, 2009

The Gender Dimensions of the Financial Crisis

As reported in the Economist, the United Nations Standing Committee on Nutrition has released a short report on the financial crisis' impact on global nutrition. The news is grim: the number of people living in extreme poverty increased by over 130 million globally between 2005 and 2008 and is expected to increase by 53 million more in 2009. Food prices rose dramatically in response to the financial crisis, such that the work needed to feed a family of five increased by 10 to 20% in 2008 -- that's an additional 10 hours per week or more for breadwinners who may already be working 12 hours a day, 7 days a week. Combined with increasing unemployment, meaning a larger family to support, it has become nearly impossible for many families to meet basic subsistence needs.
So, between 2003-2005 and 2007, 75 million people were pushed into hunger, the most rapid rate since records of world hunger started; estimates suggest that an additional 40 million people were pushed into hunger in 2008. In some regions, food expenditures may now constitute 60% of household income. Poor households respond by cutting back on "first the diversity and quality, and then the quantity and safety of diets" -- with mothers normally the first to sacrifice their nutritional needs. If these mothers are pregnant, undernutrition will increase maternal and child mortality, and cause irreversible damage to their children's health, including stunting, wasting, behavioral problems, and high blood pressure and heart disease.
The Standing Committee recommends that states respond to the financial crisis with cash transfers and social services for the poor, including nutrition supplements for mothers and young children and treatment of severe acute malnutrition, as well as nutrition education programs for pregnant and lactating women linked to local food production. The report concludes:
maternal and child undernutrition indicators should be among the principal evaluative yard sticks for measuring the success of government led efforts to contain the negative impact of the financial crisis. This is especially true where new funding efforts are concerned, such as the World Bank proposed Vulnerability Fund, which should give special priority to funding these nutrition actions as essential elements of social protection programmes aimed at [mitigating the] effects of the financial crisis. . .

'Nuff said

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

[T]he Court ... simply applies T.L.O. to declare unconstitutional a strip search of a 13-year-old honors student that was based on a groundless suspicion that she might behiding medicine in her underwear. This is, in essence, a case in which clearly established law meets clearly outrageous conduct. I have long believed that "‘[i]t does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude.’"

-- U.S. Supreme Court Justice John Paul Stevens (above left), concurring in part and dissenting in part yesterday in Safford United School District #1 v. Redding (quoting his own 1985 concurrence/dissent in the case of New Jersey v. T.L.O.).
In the opinion Stevens, joined by Justice Ruth Bader Ginsburg (right), contended that their colleagues should have upheld a lower court's decision to let go forward the damages suit filed by the girl, an Arizona middle school student when searched in 2003. They failed to persuade the rest of the Court, however. Although 6 Justices agreed that the search violated the 4th Amendment, they ruled that this was not "clearly established" in 2003, so that school officials were immune from suit. (SCOTUSblog's Lyle Denniston explains that a prospective matter this ruling does expand student privacy somewhat.) The 9th Justice, Clarence Thomas, filed a concurrence/dissent inverse to that of Stevens and Ginsburg: Thomas agreed officials were immune, but disagreed that strip searching the teenager violated the Constitution.

On June 26

On this day in ...
1975, Indian Prime Minister Indira Gandhi (right) declared a state of emergency in India, granting herself extraordinary powers and launching a massive crackdown on civil liberties and political opposition. Her opponents had long made allegations that her party had indulged in electoral malpractice to win the 1971 elections. (image credit) After 1972, her popularity started decreasing due to mass poverty and corruption. By 1974, there was severe turmoil across India. In June 1975, a court found her guilty of electoral fraud, excessive election expenditure, and the use of government machinery and officials for party purposes. It ordered her removed from her seat in Parliament and banned from running for elections for an additional six years. Rather than face the charges, on this day Gandhi declared a state of emergency. Political foes were imprisoned, impending legislative assembly elections were indefinitely postponed, constitutional rights were abrogated, and the press was placed under strict censorship. With her approval, slum dwellings were ordered removed, and, in an attempt to curb India's growing population, a program of forced sterilization was initiated.
1949 (60 years ago today), Belgium (flag at left) lifted the restrictions on voting rights for women. Since 1919, all women who were not prostitutes could stand for election and vote in municipal elections; on this day in 1949, women were given the right to vote at all levels. Continued underrepresentation of women in parliament led to the introduction of the Smet-Tobback law in 1994, which forced parties to include no more than 2/3 of candidates of either sex on electoral lists. The rules were applied for the first time in the June 13, 1999 elections, leading to a virtual doubling of the number of women in the House.

(Prior June 26 posts are here and here.)

Thursday, June 25, 2009

On Day 94, Senate confirms Koh

Laura Rozen of Foreign Policy's blog reports that the U.S. Senate just confirmed Yale Law School Dean Harold Koh as the State Department's Legal Adviser in a roll call vote of 62 to 35.
By IntLawGrrls' count, the vote came on the 94th day since Koh (right) was tapped to become State's top international lawyer. Not a moment too soon.
Heartfelt congratulations!

Introducing Jocelyn Wolf

Eagle-eyed IntLawGrrls readers will have noticed a new byline gracing many of our "On This Day" posts this month. It belongs to Jocelyn Wolf (right), whom we're proud to welcome as the inaugural IntLawGrrls Legal Intern.
A member of the Class of 2011 at my own home institution, the University of California, Davis, School of Law (Martin Luther King, Jr. Hall), Jocelyn has an avid interest in international law, policy, and practice. Whetting her appetite was a semester abroad at the National University of Ireland-Galway in fall 2007. There she studied European Communities law with Dr. Laurent Pech, Jean Monnet Lecturer in EU Law and a contributing editors of International Law Prof Blog. (Jocelyn reports that she was fortunate to have used the used the EU Law textbook for which IntLawGrrl guest/alumna Gráinne de Búrca is a co-author.) Soon after, in spring 2008, Jocelyn earned her B.A. in International Relations and Linguistics from the University of California at Davis. This past semester, she was my student in Constitutional Law.
Jocelyn has chosen to dedicate her work on the blog to Benazir Bhutto (below left), the subject of many earlier IntLawGrrls posts. The U.N. General Assembly bestowed upon Bhutto a U.N. Prize in the Field of Human Rights in December 2008, a year after death ended her campaign to lead her native Pakistan once again. As stated in a 2008 account of that award:

An ardent advocate for democracy and for the human rights of the most vulnerable sections of society, particularly women, children and minority rights, Ms. Bhutto was twice elected prime minister of Pakistan. After returning to Pakistan late last year following years in exile, Ms. Bhutto was assassinated in an attack in Rawalpindi.
Today Bhutto -- whose assassination is currently the subject of a 6-month U.N. inquiry -- joins other IntLawGrrls transnational foremothers in the list just below the "visiting from ..." map at right.
Heartfelt welcome!

'Nuff said

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

'I believe we are finally starting to turn the page on this extremely unfortunate chapter of recent history, with counter-terrorism measures starting to move back in to line with international human rights standards. ... But there is still much to do before the Guantanamo chapter is truly brought to a close.'
-- U.N. High Commissioner for Human Rights Navanethem Pillay (right) yesterday, in what the Washington Post called "her most detailed statement on U.S. detention policy" to date. The full statement, which alluded to the issues of interrogation, torture, accountability for complicit lawyers and doctors, and proposed "prolonged" detention without trial, is available here.

On June 25

On this day in ...
1950, the Korean War began with the crossing of the 38th parallel into South Korea by North Korean troops. In 1945, the United States and the Soviet Union had decided to dismantle the Japanese colonial system on the peninsula by dividing it into 2 occupation zones, American and Soviet. It is said that U.S. intelligence judged that the north could not take over the south without Soviet assistance and that the Soviets would not provide such assistance. But North Korea's Kim Il-sung, who was committed to unifying the country under his rule,managed to secure assent to military action from Soviet leader Joseph Stalin. The war that followed would devastate Korea, lead to a large expansion of the U.S. armed forces and America’s military presence around the world, and frustrate many on both sides by ending in an armistice that left the peninsula still divided. As we have posted, this conflict remains in a state of ceasefire-without-final-peace-treaty. (credit for photo of South Korean and U.N. troops withdrawing behind the 38th parallel)
1954 (55 years ago today), Judge Sonia Sotomayor (left) of the U.S. Court of Appeals for the Second Circuit and, as we've posted, the nominee for appointment to the Supreme Court, was born in the Bronx, New York. (photo credit) If confirmed, she would be the Court's 111th justice, its 1st Latina and its 3d woman. At the age of 8, Sotomayor was diagnosed with Type 1 diabetes. Her father, a factory worker with a 3d-grade education who did not speak English, died a year later. Her mother raised her and her younger brother, Juan, now a physician. Her mother, a nurse who worked 6 days a week and whom the judge has described as her biggest inspiration, stressed the value of an education, buying Encyclopædia Britannica for her children.

(Prior June 25 posts are here and here.)

Wednesday, June 24, 2009

Koh Cloture Passes

I am delighted to report (from Foreign Policy's blog, passed along to me by our colleague Catherine Powell) that the cloture vote in the U.S. Senate on the nomination of Harold Hongju Koh to be the State Department's Legal Adviser has passed. The posting states:
'Cloture passed on a 65-31 vote,' a Congressional source relays at 11:30am. 'There was applause in the Senate gallery after the vote was announced. Republicans are threatening to exercise their right to use all 30 hours of floor debate before permitting a final vote, so Koh may not be formally confirmed until tomorrow.'

Until that final vote we IntLawGrrls, through our timer above, will keep on counting.

Guest Blogger: Gay McDougall

It's IntLawGrrls' immense honor to welcome Gay McDougall (right), the United Nations' Independent Expert on Minorities, as today's guest blogger.
Gay was appointed to serve in that post for a 6-year term in 2005. From 2006 until 2008, she also held an appointment as Distinguished Scholar in Residence at the Washington College of Law, American University, Washington, D.C. (home institution of IntLawGrrls). From 1994 to 2006, Gay was the Executive Director of the human rights advocacy group Global Rights, leading the development and implementation of programs in Africa, Asia, Eastern Europe and the Americas.
Gay was the 1st American to serve on the Committee on the Elimination of Racial Discrimination (CERD), the U.N. treaty body that oversees the International Convention on the Elimination of all Forms of Racial Discrimination. While in that position, she drafted and sponsored for adoption General Recommendation No. 25: Gender related dimensions of racial discrimination. From 1997 to 2000 she was a member of the U.N. Sub-Commission on the Promotion and Protection of Human Rights, and was U.N. Special Rapporteur on the issue of systematic rape, sexual slavery, and slavery-like practices in armed conflict. In the latter capacity she presented to the United Nations a then-groundbreaking study that called for international legal standards for the prosecution of acts of systematic rape and sexual slavery committed during armed conflict.
In 1994, she was appointed the only American member of the 16-member 1994 Electoral Commission of South Africa, which organized the process that resulted in the election of President Nelson Mandela. For the previous 14 years, she'd worked with South African lawyers for the release of thousands of political prisoners. Gay also founded the Commission on Independent Elections that monitored Namibia’s transition to democracy.
Gay earned her J.D. from Yale Law School in 1972 and her LL.M. from the London School of Economics and Political Science in 1978. She holds honorary Doctor of Laws degrees from Georgetown University Law Center and the City University of New York Law School.
Among her many honors is a 1999 MacArthur Foundation Fellowship, awarded on account of what the foundation called her “innovative” work in international human rights.
In her guest post below, Gay discusses her work as the United Nations' expert on minorities, about which IntLawGrrls earlier posted here, here, and here.
Heartfelt welcome!

The work of the U.N. minority issues expert

(My thanks to IntLawGrrls for this opportunity to contribute this guest post on my current work on behalf of the United Nations)

► This week I sent a letter, along with my colleagues who work on torture and arbitrary detention, to China. We challenged the Chinese government either to explain how its detention of two ethnic Uighurs complies with international law or to release the two urgently. China acknowledges having upwards of 40 different ethnic and religious minorities, in addition to the Tibetans, who face varying levels of oppression and repression.
► Next week I leave for a mission to Kazakhstan.
► Last year this time I was in Guyana, investigating the multi-layered relationships between the Indo-Guyanese (persons of East Indian descent), who currently control the government, and the Afro-Guyanese, who are almost the same percentage of the population but feel persecuted and grossly disadvantaged.
► In France, I saw a country that tourists never see. The lives of the “visible minorities” of France, persons who immigrate from North Africa, Asia, and the Caribbean to the shoddy, ghetto suburbs outside Paris, can’t been seen from the Eiffel Tower. They face discrimination at all levels. They are suspected and feared because of their religion. And even those who are second-generation citizens are never, ever considered “French.”
Since 2005, I have done this work in my capacity as U.N. Independent Expert on Minority Issues. I was appointed to the position by the High Commissioner for Human Rights with the consent of all governments that were members of the U.N. Human Rights Council (née Commission on Human Rights). There are over 40 individuals like myself, from all regions of the world, who are chosen to carry out this critical function for the chief human rights mechanism of the United Nations. Each has a mandate to focus on a specific human right. My mandate is to focus on the rights of minority populations. They are defined as groups that are distinct by ethnicity (race), religion or language and who have an inferior power relationship to other groups in the society. The relative numbers aren’t as meaningful as the subservient power status. So that:
► In South Africa during apartheid, my mandate would have been the protection of the African population, rather than the Afrikaners.
► In Brazil, I focus on the Afro-Brazilians even though the government now admits that they may be 55% or more of the population.
Furthermore, the U.N. resolution authorizing my work requires that I take “a gender perspective” in everything that I do. Each year I visit a number of countries where I am received at the level of a Cabinet Member or Minister of State. That gives me an unparalleled opportunity to engage the top officials in countries about their policies regarding minorities. And, of course, I am able to meet with minority communities, with academics who study these issues, and with civil societies more broadly. I present my findings, evaluations and detailed recommendations to the 47 governments that sit on the U.N. Human Rights Council. I also do thematic reports on issues that concern minorities across all regions of the world, like minorities and poverty or minorities and the right to education.
Of course, my mandate also includes minorities in the United States. Indeed, U.S. civil rights laws and my personal experiences as a minority in the United States have enriched my capacity to grapple with the complexities of discrimination as they present themselves in other cultures and countries. When I take on issues here in the United States, however, that home-grown expertise is rarely acknowledged.
An example: The U.N. Special Rapporteur on Housing and I intervened a while back when the City of New Orleans revealed a post-Hurricane Katrina plan to tear down much of the its remaining public housing. Our assessment was that to do that would violate the right to adequate housing that is guaranteed without discrimination by the Universal Declaration of Human Rights. The local response? New Orleans' daily newspaper, the Times-Picayune, accused me of being a meddling outsider “idiot from the U.N.”

On June 24

On this day in ...
2000, Vera Atkins (left), British Intelligence Officer during World War II, died in Hastings, England. Atkins worked in Section F, the French section, of the Special Operations Executive. The head of Section F's London Headquarters was a man holding the rank of major, but it is said that many considered Atkins the true leader. Atkins' remarkable efficiency and intelligence in all areas of the work relating to the recruits was accompanied by deep humanity and sense of responsibility to those 470 agents -- of whom 39 were women -- sent to possible death in France. After the war Atkins, a member of Britain's War Crimes Commission, set about tracing the fate of the 118 F section agents who had disappeared in enemy territory. She succeeded in every case except one. She was appointed a Commandant of the Legion of Honor in 1987. (photo credit)
1314 (695 years ago today), the Battle of Bannockburn, in which Scottish forces led by Robert the Bruce fought English forces led by King Edward II of England, resulted in English defeat. In the spring of 1314, the Scots laid siege to English-held Stirling Castle. Unable to make any significant progress, they struck a deal with the castle's commander that if the castle was not relieved by Midsummer Day -- today -- it would be surrendered to the Scots. Strategic superiority and a lack of organization in the English forces, increased by the sight of Edward II fleeing the field, contributed to Scottish victory. This victory led eventually to a period of Scottish independence. (image credit)

(Prior June 24 posts are
here and here.)

Tuesday, June 23, 2009

Why We All Should Care about Harold Koh's Confirmation

As Diane Amann and Chris Borgen have blogged, the cloture vote on Harold Koh's nomination to be Legal Advisor at the Department of State is scheduled for tomorrow. Although many of us have blogged about his qualifications for months, I want to reiterate in these final moments before the vote his tremendous qualifications and why we all should care about whether he is confirmed.
It is hard to imagine a career that could better prepare one for this job than the one that Harold Koh has had thus far. After receiving his education at Harvard and Oxford, he served as a law clerk at both the U.S. Court of Appeals for the D.C. Circuit and the U.S. Supreme Court. He then practiced law at the leading law firm Covington and Burling and worked at the Office of Legal Counsel at the Justice Department before becoming a professor at Yale Law School. He was previously unanimously confirmed as an Assistant Secretary of State, and has most recently served as Dean of Yale Law School. He is a leading expert on private and public international law, foreign affairs, and national security, with his published work including eight books and over 150 articles. He has argued before the U.S. Supreme Court and testified before Congress on over twenty occasions. His many honors include multiple honorary doctorates, medals, and awards, including the 2005 Louis B. Sohn Award from the International Law Section of the American Bar Association and the 2003 Wolfgang Friedmann Award for lifetime achievements in international law from Columbia Law School.
The reason we should care about his confirmation, however, goes beyond the fact that someone with his qualifications and record should be confirmed. Even brief glance at the week's news, with major developments in both Iran and Pakistan, shows how important it is for the United States to have its State Department working at top capacity. Someone like Harold Koh, with his wealth of expertise, could help us handle these situations in the best way possible. In the months that his nomination has been held up, our country has not had the benefit of his advice. Unless he is confirmed tomorrow, we can look forward to more months without the State Department having a legal advisor. These delays don't just hurt the Democratic Party and the Obama administration. They hurt our country. They make us less ready to take on difficult international challenges and make us look petty.
It is time to rise above partisanship and confirm Harold Koh. I urge anyone who has time today to call your Senators and encourage them to put the good of the country before political gamesmanship. For more details on what you can do, visit this bipartisan Facebook site supporting Harold Koh's nomination.

NEWS FLASH: Koh to full Senate tomorrow

About 18 hours after IntLawGrrls put up the running tab of how much time's lapsed since Harold Koh was tapped to be the State Department's Legal Adviser, Senate Majority Leader Harry Reid filed for cloture and set a full Senate vote. It's slated for tomorrow, Wednesday, June 24. But the fight is far from over:

All sides expect a contentious, tip-and-tuck vote, and Democrats are prepared for a debate that could last several days if outspoken opponents of the nomination such as Sen. Jim DeMint (R-S.C.) decide to drag out the process.

We at IntLawGrrls have detailed Koh's immense qualifications here. Yet robocalls against Koh are said already to be in full swing. Time for real humans to call Senators (contact info: here; here) and urge a "Yes on Koh" vote. 60 are needed for success.

Guns: The Kind of Trade Nobody Wants

Although we hardly talk about this issue in business circles, there is at least one area of trade between the U.S. and the Caribbean that is thriving: The trade in illicit arms. The problem made front page news recently when Mexico's drug war spilled out into U.S. territory. The cartels, fighting for dominance in the lucrative drug trade, are killing off anyone that gets in the way - -including police officers, lawyers and judges. Their reign of terror is supported by a seemingly unlimited supply of AK 47s and other "cop killer" arms that are de rigueur for drug lord wannabes. Mexican gun control laws are quite strict, thus almost all of the weapons are imported from the United States. But now that the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) has turned its attention to choking off that trade, entreprenuerial arms dealers are setting their sights elsewhere. Jamaica has become the new destination of choice for U.S. arms.
The guns stream into Jamaican ports tucked away in shipping containers storing legitimate cargo. They eventually make their way into the hands of Jamaican gang members who use them to terrorize and threaten the local population. Jamaican offiicals confiscate about 1,000 firearms a year, nearly 80 % of which are U.S. origin. Indeed, in 2007, Jamaican police confiscated one of their biggest prizes to date--a .45 colt pistol registered to the U.S. army. "We are at a loss for this one," admitted a Jamaican police official when asked to comment on how a U.S. army pistol found its way onto Jamaican shores.
The cost of the gun trade on the Jamaican people is nearly unbearable. Shortly after being robbed at gunpoint, one man poignantly wrote of these costs:

You can go into any inner-city community and beg, borrow or buy a gun. I overheard a group of children talking one day and they were knowledgable about the guns. They knew them by name. They could identify them by their sounds. It was frightening. These were children of war.
The network of guns-for-drugs traders is a sophisticated one that spans from the United States all the way to Central and South America -- with pit stops in Caribbean countries like Jamaica and Haiti. While some might argue gun running is a problem for domestic law enforcement, the Jamaican example demonstrates why this is also a trade concern. How do these guns make their way through these diverse countries? How do they end up in Jamaica's customs territory? Cargo manifest forms must be falsfied. Customs and other trade officials must be bribed. And the problems rest not just with Jamaican officials, but U.S. ones as well. If it is that easy for U.S. exporters to send arms into Jamaica, then our export control mechanisms are clearly inadequate. It does not bode well for our efforts to prevent sensitive U.S. technologies (both firearms and otherwise) from making their way into the hands of our enemies.
To effectively deal with the runaway gun problem, both the United States and its export partners must begin to address the issue in part as a trade problem. U.S. officials must go after the exporters; and we must also work with countries like Jamaica to strengthen their Customs capacity. Jamaican officials need the latest detection technology, faster boats, more training of personnel -- and of course will and determination -- to succeed against the gun runners. Currently, Jamaican Customs officials have confiscated just 100 guns coming into ports in the last five years. This number is simply inadequate.
Guns and the Second Amendment are hot-button issues in U.S. politics, to be sure. But we are not talking about domestic consumption. Our guns are leaking out into the wider world and causing havoc in communities ill-equipped to deal with it. It is time for us to act. We have an obligation to act.