Wednesday, June 30, 2010

"Our strong support for ratification of CEDAW"

Our commitment to the rule of law is also reflected in our strong support for ratification of the Convention on the Elimination of All Forms of Discrimination Against Women and our signing of the UN Convention on the Rights of Persons With Disabilities — the first new human rights convention of the 21st century.

-- Remarks by Mary McLeod, Legal Adviser, U.S. Mission to the United Nations, at a UN Security Council Debate on Justice and the Rule of Law, 29 June 2010. Full text of remarks here.

Q: What are the seven UN member states that have not ratified CEDAW?
A: Iran, Nauru, Palau, Somalia, Sudan, Tonga, United States of America.

CEDAW was included in the treaty priority list sent by the Obama administration to the Senate in May 2009, and administration statements supporting ratification continue. The opening quote in this post and Secretary of State Hillary Clinton's remarks at the United Nations on 12 March 2010 (text and video here) are but a few examples.
But Senators need to hear from their constituents that ratification is a priority if CEDAW is to move forward. A list of Senators with their contact information is available here; Senate Foreign Relations Committee members are listed here.

'Nuff said

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

She genuinely sees her party as a vehicle for good and her pragmatism is not the least bit cynical. She is the most powerful woman in the country, the most fearless person on Capitol Hill and on track to be one of the most productive speakers in history.
-- New York Times columnist Gail Collins, extolling achievements of Nancy Pelosi, Speaker of the U.S. House of Representatives. Pelosi, a Baltimore-born San Francisco Democrat, became Speaker in January 2007, the 1st woman ever to hold that congressional leadership position. (credit for 2009 photo)

On June 30

On this day in ...
... 1860 (50 years ago today), a famous debate over evolution took place at the natural history museum in Oxford, England (right). Opposing ideas set forth in the just-published The Origin of Species by Means of Natural Selection by Charles Darwin, an Anglican bishop
ended his speech by archly asking one of Darwin's biggest supporters, Thomas Huxley, if it was his grandmother or his grandfather who was descended from an ape.

As re-enacted in this National Public Radio broadcast, biologist Huxley replied:
If I had to choose between being descended from an ape or from a man who would use his great powers of rhetoric to crush an argument, I should prefer the former.

(Prior June 30 posts are here, here, and here.)

Tuesday, June 29, 2010

Developing Countries Confront Global Economic Crisis

The global economic meltdown was so yesterday. Seldom does the crisis make it on to the front pages of any of the major newspapers anymore, but the struggle for recovery continues in the shadows. Already, fissures are appearing in the once-unified front of the developed countries. European governments such as Germany are calling for a greater focus on controlling deficit spending, while President Obama has called for more spending to shore up flagging economies. But while the North struggles over the various modes of recovery, the developing world must deal with the fallout. This week, for the first time the World Trade Organization is set to discuss the impact of the financial crisis on those countries. A powerful coalition of developing countries, including India, South Africa, Argentina and Ecuador, had lobbied vigorously for such a discussion because in their view the North's massive bailouts amounted to illegal subsidies that have adversely impacted financial markets in the developing world. Can these bailouts prompt a WTO dispute brought on by developing countries?

Hamid Mamdouh, director of the WTO's services division, is reported to have said "There is a legal cover for situations where members might deviate from their legal commitments and obligations" but the situation is not so clear cut. The General Agreement on Trade in Services (GATS) does include what is known as a "prudential carve-out," which is meant to allow regulators the policy space to address financial crises. Article 2 of the GATS Annex on Financial Services states that a WTO member “shall not be prevented from taking measures for prudential reasons.” The prudential carve out is subject to WTO dispute settlement, however, if a member believes the provision is being abused, is discriminatory or is a disguised non-tariff barrier to trade. The matter has never been litigated before, and what standard of review the WTO would apply under the circumstances is an open question.

But would a developing country (or a group) actually raise a dispute settlement claim? Beyond the legal issues, there are both economic and political considerations for developing countries to deal with.
Countries like the United States have the political clout to fend off a potential case. Moreover, the economic recovery of the North is in everyone's interest -- developing countries rely on their markets, not to mention their technical and financial assistance. A dispute on this issue -- at least in the near future -- seems unlikely. But this makes the upcoming discussions at the WTO all the more important. The organization must provide a forum to at least acknowledge that developing countries are another in a long line of innocent victims of this economic crisis (photo credit).

Gender equality & the G-20bis

This year's official photo from the G-20 summit, held this past weekend in Toronto, Canada, looks pretty much like last year's from London, England: there's German Chancellor Angela Merkel in orange, Argentinian President Cristina Fernández de Kirchner in white, and standing 2 rows behind her, Gloria Macapagal-Arroyo, till tomorrow the President of the Philippines. Et alia. Another G-20 country now also has a woman leader, but Julia Gillard, Prime Minister only since Friday, sent Australia's Treasurer, Wayne Swan (top middle).

On June 29

On this day in ...
... 1972, in Furman v. Georgia, the U.S. Supreme Court ruled 5-4 that execution of petitioners would violate the constitutional ban on cruel and unusual punishment. The single-page per curiam opinion was followed by 200 pages of concurrences and dissents, resulting in a moratorim on executions but no clear direction regarding the future of capital punishment in the United States.

(Prior June 29 posts are here, here, and here.)

Monday, June 28, 2010

Guest Blogger: Claire Moore Dickerson

It's IntLawGrrls' great pleasure to welcome Claire Moore Dickerson (left) as today's guest blogger.
Claire is the Senator John B. Breaux Professor of Business Law at Tulane University Law School in New Orleans, Lousiana, and also a permanent visiting professor at the University of Buea in Cameroon. She has conducted considerable research in that country and elsewhere in Africa, especially the Ivory Coast and Senegal. Her scholarship -- including the co-authored Unified Business Laws for Africa (2009) -- is noted for its application of socioeconomic principles to business-related areas and for its focus on the intersection of commerce and human rights.
In her guest post below, Claire discusses her article, forthcoming next January in the American Journal of Comparative Law; it examines business law and informal-sector entrepreneurs in Sub-Saharan Africa.
Claire teaches Business Enterprises, International Business Transactions, Contracts, and a Comparative Corporate Governance Seminar. She came to Tulane from Rutgers University School of Law, Newark, New Jersey, where she was Professor of Law, Dickson Scholar, Schuchman Fellow, Co-Director of the Global Legal Studies program, and holder of the Visiting Lowenstein Chair. She also taught at the law school as St. John's University.
She holds an A.B. magna cum laude from Wellesley College, a J.D. from Columbia University, where she was a Stone Scholar, and an LL.M. in Taxation from New York University. Before entering law teaching she was a partner at the New York office of Coudert Brothers, and later at Philadelphia's Schnader Harrison Segal & Lewis.
She's active in several professional organizations, including the Law & Society Association and the American Society of International Law, and has served on the Executive Committee of the Section on Socio-Economics of the Association of American Law Schools.
In a further guest post below, Claire dedicates her contribution to 2 foremothers, Maître Alice Roullet-Piccard and Dr. Dorothea May Moore.


Heartfelt welcome!

Sub-Saharan development & business laws

(Thanks to IntLawGrrls for the opportunity to contribute this guest post on research to be published as "Informal-Sector Entrepreneurs, Development and Formal Law: A Functional Understanding of Business Law," 59 American Journal of Comparative Law (January 2011), as well as my dedication below to two foremothers)

While discussing the policies of the prior US administration towards his country, a respected Senior Barrister in Cameroon trotted out the old adage:

'Give people fish, and you feed them for today. Teach them to fish, and you have fed them for a lifetime.'
He was, of course, asking that donor institutions and donor states provide tools that reinforce independence rather than mere handouts. This perspective does seem consistent with a trend by the World Bank, among others, to encourage business, including smaller businesses.
Indeed, prodded by economists seeking to encourage development by facilitating business, this international financial institution has over the past half-dozen years paid very serious attention to the role of business laws. Consider, for example, the World Bank’s “Doing Business” reports, annual compilations of studies focused on the contribution of law to the business environment in emerging economies.
It is easy for us in the global North, especially as we endure the deepest financial crisis since the Great Depression, to be cynical about the ability of business laws to facilitate development. Business laws have failed to protect the overall business environment, including the availability of credit.
As we consider what regulations to impose on the largest financial and other companies here, politicians and economists are contemplating the long-term impact on the entire business community. Thus, small businesses should care about the regulations constraining the most powerful actors in their economy. Still, their daily ability to work in sanitary, lighted, safe environments, and to expect the machinery of government to support their commercial contracts, continues to be protected.
In Sub-Saharan Africa,
► To what extent can law restrain the excesses of the most powerful agent, typically the state, while facilitating business on the ground?
► To what extent can laws help create a business environment that most closely mimics that of the global North — where, in the best of circumstances, the most powerful actors are adequately controlled?
The Sub-Saharan business climate is, of course, fundamentally different.
In Sub-Saharan Africa, the informal sector represents 40-60% of gross domestic product, according to a study by Friedrich Schneider. International Labor Organization figures state that this sector employs as much as 93% of non-agricultural workers.
The informal sector thus is highly important. Yet formal law does not penetrate easily or predictably there. For this reason, simple transplantation of classic business law from the global North will not be sufficient to protect and support the business either of an informal-sector-market woman or street vendor, or even of the many business people who have a foot in both the formal and informal sectors.
The focus has to be on functionality.
The goal is to serve the informal sector with laws that accomplish there what classic business laws do for the smaller businesses of the global North. Specifically, laws should increase the predictability of transactions while limiting abuse from government and other powerful agents.
The attack should be two-pronged.
► Formal law both can constrain formal-sector actors, such as some landlords transacting with informal-sector businesses, and can mandate that formal-sector actors provide pro-business realities that Northern businesses enjoy, including sanitary work environments. Precisely because these actors are in the formal sector, they are subject to government regulation — even if the landlord is in fact the government.
► The second prong still cannot directly affect the informal-sector nano-entrepreneurs, those self-employed workers who typically operating alone or with family, and with very modest sales. These workers will not be directly affected because, almost by definition, they are at best unpredictably subject to formal laws and regulations. On the other hand, nano-entrepreneurs do tend to have a legal regime, or a quasi- legal traditional regime, that affects businesses.
This second prong, in turn, deploys two strategies to allow formal law to have as direct an impact as possible on the informal sector.
►► The first strategy aimed at the informal sector is to have formal laws that reinforce existing business norms. These laws are the most likely to support effectively a North-style predictability, since the informal-sector nano-entrepreneurs are primed to comply.
►► The second strategy aimed at the informal sector emphasizes the importance of encouraging coordination of consumers of law. This strategy is especially important when the applicable legal system is highly centralized — as is typically the case in Sub-Saharan Africa. (Discussion of relatively developed countries and their formal economies may be found in Law & Capitalism: What Corporate Crises Reveal about Legal Systems and Economic Development around the World (2008), by Columbia Law Professors Curtis J. Milhaupt and Katharina Pistor.)
Laws promoting coordination include West and Central Africa’s Economic Interest Group (specifically, Sections 869-885 of the OHADA Commercial Companies and EIG Uniform Act), as well as other laws that promote cooperatives. A case in point is the self-coordination effort in the Ghanaian chocolate industry, described here. (credit for photo of woman in Ghana holding fair-trade chocolate) (Prior IntLawGrrls post on problems in the chocolate industry.)
In short, the additional strategy aimed at the informal sector workers is to facilitate the formation of cooperatives.
The goal is for business-related laws to achieve in Sub-Saharan Africa the functionality that classic business laws offer, in the best of times, to businesses of the global North.

In honor of Maître Alice Roullet-Piccard & Dr. Dorothea May Moore

(Today's IntLawGrrls guest blogger, Claire Moore Dickerson, has chosen to dedicate her contribution to 2 foremothers)

I am delighted to participate in this project, and would like to dedicate my contribution to two formidable professional women whom I knew well and continue to admire fiercely.
Maître Alice Roullet-Piccard (right), born in 1890, received her degree in law from the Faculty of Law of the University of Geneva in 1912, and in 1914 was among the first woman admitted to the bar in Geneva. She opened a law office with her husband, a former classmate at university. From that perch she practiced law until her death in 1972, frequently representing wards of the state and the indigent. She also raised three children.
She became an institution within the Geneva bar. Walking in her wake through the city was a slow process: as she proceeded through the streets, stately, under full sail, she would be greeted by colleagues and clients. To her granddaughter, Maître Roullet-Piccard seemed in total command and absolutely fearless.
Dr. Dorothea May Moore (below right) was my pediatrician (and my first cousin). Tall and spare, her gray hair was swept up in a 1930s style, and her voice was slightly gravely but very elegant. Her gray eyes framed by steel-rimmed glasses, she offered her small patients an unfailingly bemused gaze, inviting and intimidating at once.
Born in 1894, she graduated from college in 1915 and medical school in 1922. She had her own practice, engaged in research, and taught at Harvard Medical School for over 30 years, where she was the first woman instructor in pediatrics. She continued to work under her maiden name even after her marriage in 1941, and, having started in medicine before the advent of antibiotics, persisted in her chosen her profession long after many of her age cohort had retired. She died just 15 years ago, at the age of 101.
Even as a girl, I understood both that the paths chosen by Maître Roullet-Piccard and Dr. Moore had been hard, and that their example made my own path smoother.

On June 28

On this day in ...
... 1635 (375 years ago today), the Compagnie des Îles de l'Amérique established a French colony at Guadeloupe (right), a Caribbean archipelago about 10 times the size of Washington, D.C., where the explorer Christopher Columbus had landed in 1493. "By 1674, Guadeloupe was annexed to the Kingdom of France and a slave-based plantation was established." Britain and other countries wrestled for control of the territory, but French colonization was confirmed in the 1815 Treaty of Vienna, and slavery was abolished in 1848. Guadeloupe remains a French colony and so is a member of the European Union.

(Prior June 28 posts are here, here, and here.)

Sunday, June 27, 2010

...and counting....

(Occasional sobering thoughts.) It's been fully 14 weeks since we last took account of the conflicts in Iraq, Afghanistan, and on the Afghanistan-Pakistan border.
The headline news this past week, of course, has been President Barack Obama's firing of U.S. Gen. Stanley A. McChrystal from command of forces in Afghanistan. The Oval Office dismissal came days after the online publication of spoken, and gestured, criticisms by McChrystal and his staff, the crudeness of which reads as a juvenile and downright dumb effort by military brass to out-Rolling Stone the Rolling Stone. (Perhaps if they'd seen the Gaga cover that would cloak the McChrystal story, they'd have known the futility of any such effort.)
Also seizing headlines was Obama's in-an-instant replacement of McChrystal with Gen. David H. Petraeus, commander of the U.S.-led coalition in Iraq from 2007 to 2008.
But neither seems the real story.
More likely, the real story is Obama's insistence that no change in war-waging policy would accompany the change in war-waging generals:
We are going to break the Taliban's momentum. We are going to build Afghan capacity. We are going to relentlessly apply pressure on al-Qaida and its leadership, strengthening the ability of both Afghanistan and Pakistan to do the same.
Whether that's in fact the last word on policy remains to be seen.
On her 1st day in office Friday, Julia Gillard, the new Prime Minister of Australia, assured Obama in a phone conversation that "supports the war in Afghanistan and he can rely on her to continue the commitment of troops." (credit for 2009 photo of Gillard, then Deputy Prime Minister, visiting Australian troops in Iraq shortly before their withdrawal from that country)
Yet in the country contributing the most troops after the United States to the NATO effort in Afghanistan, the news of the week was the 300th British servicemember death there. Not surprisingly, yesterday the new Prime Minister, David Cameron, sounded a rather more measured tone after meeting with Obama on the 1st day of this week's G-20 summit in Toronto. Cameron said:

Making progress this year, putting everything we have into getting it right this year is vitally important.
Criticism of the tactics of the AfPak war also persist, as was evident in the attention paid the public defense of targeted-killing-by-drones, delivered in March by State Department Legal Adviser Harold Hongju Koh. Four persons were killed in a drone raid yesterday, another 13 last week; "Pakistani officials have told the BBC that the US have carried out at least 70 such raids since January."
Also of concern, the continued spike in civilian deaths, a trend that Obama's promised to work to reverse:
Figures from the Pentagon show 90 civilians were killed by American or NATO forces in the first four months of this year, compared with 51 in the same period last year ...
As for Iraq?
Far less news. About a hundred persons killed by car bombs in May, on the "bloodiest day this year." More recently, reports of scattered violence "as," to quote The New York Times, "as the country’s political stalemate dragged on."
With these developments in mind, we revisit the casualty count since our last "...and counting..." post 6 weeks ago:
► The U.S. Department of Defense reports that coalition military casualties in Afghanistan stand at 1,141 Americans, 308 Britons, and 425 other coalition servicemembers. That's an increase of 117, 43, and 32 casualties, respectively, in the last 14 weeks. The total coalition casualty count in the Afghanistan conflict is 1,874 service women and men.
► Respecting the conflict in Iraq, Iraq Body Count reports that between 96,813 and 105,563 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 1,089 and 1,136 deaths in the last 14 weeks.
According to the U.S. Defense Department, 4,408 American servicemembers have been killed in Iraq, representing 23 servicemember deaths in the last 14 weeks. (As posted, U.S. troops are the only foreign forces remaining in Iraq.)

On June 27

On this day in ...
... 1950 (60 years ago today), President Harry S. Truman announced that he'd ordered U.S. troops to join South Korea in enforcing the June 25 U.N. Security Council Resolution 82, which, by a vote of 9-0 with 1 abstention, called for "an immediate cessation of hostilities" on the Korean peninsula and withdrawal of North Korean armies to the 38th parallel. Later on this same day, Council would vote 7-1 in favor of Resolution 83, which
Recommends that the Members of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore peace and security in the area.

War followed for years. Above left, a 1951 U.S. Army photo (credit) of Korean War refugees.

(Prior June 27 posts are here, here, and here.)

Saturday, June 26, 2010

Camille A. Nelson named Dean of Suffolk Law

Camille A. Nelson (photo), Professor of Law at Hofstra University Law School, is slated to become the 12th Dean of Suffolk University Law School beginning September 1, 2010. She is the first woman, the first African-American, and the first person of color to hold that position in the university's history. (See Boston.com article here.)
Professor Nelson, listed in my recent posts on "Black Women Teaching International Law" (part of our "Experts at Law" series), has taught Contracts, Sports Law, Comparative Criminal Law, Transnational Law, and Critical Race Theory. (On other law deans with international law expertise, see IntLawGrrls' prior posts here, here, here, and here.)
International foremother "Miss Lou" is particularly pleased to report that Professor Nelson has transnational roots in the Caribbean, Canada, and the United States of America. Nelson's book, co-edited with Charmaine A. Nelson, her sister, is titled Racism, Eh?: A Critical Inter-Disciplinary Anthology of Race and Racism in Canada.
Professor Nelson is highly respected and regarded throughout the legal academy as a leader, a scholar, and a champion of social justice and public service.
Heartfelt congratulations!

Understanding Aggression II

(Another in IntLawGrrls' series of posts in connection with the ICC Kampala Conference)

This post follows on the heels of a prior post discussing "understandings" attached to the crime of aggression at the ICC Review Conference in Kampala this month.
On June 8, 2010, Bill Leitzau, Deputy Assistant Secretary of Defense (Detainee Policy) of the United States (shown at right on the right meeting with the Chair of the Working Group on the Crime of Aggression, Prince Zeid Ra'ad Zeid al-Hussein, and the President of the Assembly of States Parties, Christian Wenaweser) informally circulated five sets of understandings addressed to different aspects of the definition of aggression and its application by the Court. In addition to the complementarity understandings already discussed, one set of understandings attempted to tether the definition of aggression and its interpretation more closely to certain aspects of General Assembly Resolution 3314 and in particular its threshold provisions. In particular, the United States proposed language (which became part of Understanding X) to the effect that

it is understood that, consistent with the principles set forth in General Assembly resolution 3314, only the most serious and dangerous forms of illegal use of force are considered to constitute aggression
and

it is only a war of aggression that is a crime against international peace.
As an interpretive guide, the United States proposed language (which became known as Understanding Y) stating that all three components of character, gravity, and scale must be sufficient to justify a “manifest” determination.
With a second set of understandings, the United States sought to gain acknowledgement that the U.N. Charter recognizes that certain uses of force remain lawful, notwithstanding Article 2(4) of the Charter. Accordingly, one proposed understanding read:

nothing in this resolution or the [aggression] amendments … should be interpreted or applied in any manner inconsistent with General Assembly resolution 3314, nor should they be construed as in any way enlarging or diminishing the scope of the Charter of the United Nations, including its provisions concerning cases in which the use of force is unlawful.
More pointedly, another proposed understanding stated, with reference to the Rome Statute of the ICC:

It is understood that, for purposes of the Statute, an act cannot be considered a manifest violation of the United Nations Charter absent a showing that it was undertaken without the consent of the relevant state, was not taken in self-defense, and was not within any authorization provided by the United Nations Security Council.
A third set of understandings explicitly or implicitly attempted to carve out an exception for the doctrine of humanitarian intervention. First, the United States sought recognition of the fact that
a determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the purposes for which force was used and the gravity of the acts concerned or their consequences.
The reference to “purposes” provided an opening to argue for the legality of humanitarian interventions. Another proposed understanding drew upon a definition of “manifest” from the Vienna Convention on the Law of Treaties and was more explicit in addressing humanitarian intervention:

It is understood that, for purposes of the Statute, an act cannot be considered to be a manifest violation of the United Nations Charter unless it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith, and thus an act undertaken in connection with an effort to prevent the commission of any of the crimes contained in Articles 6 [genocide], 7 [crimes against humanity] or 8 [war crimes] of the Statute would not constitute an act of aggression.
In an informal Working Group session, minor changes were proposed and made to Understanding Y. The other proposed understandings proved to be more controversial. The Chair of the Working Group, Claus Kress, did not put forward for discussion the understandings mentioning either the Charter or humanitarian intervention.
There was a scuffle about Understanding X, and it was revised to mirror more closely the threshold language from Resolution 3314. In addition, the language that would have mandated a consideration of the "purposes" for which force was used generated significant discussion. A few states led by Iran argued that the introduction of the subjective element of “purpose” threatened to compromise the entire process and amend the U.N. Charter by the back door. Detractors questioned what other purposes besides self-defense were lawful under the Charter. The United States ultimately acceded to the removal of the term “purposes.” At the close of the meeting, however, the United States reserved the right to re-open the question of a more explicit mention of humanitarian intervention.
Professor Kress forwarded the new language of Understanding Y to the Chair of the Working Group. It appeared in a Conference Room Paper as follows:

Understanding Y

It is understood that in establishing whether an act of aggression constitutes a manifest violation of the Charter of the United Nations, the three components of character, gravity and scale must be sufficient to justify a “manifest” determination. No one component can be significant enough to satisfy the manifest standard by itself.

Professor Kress reserved Understanding X for further negotiation. The next day, Professor Kress announced by way of an email via the Assembly of States Parties that Iran and the United States (ironically both Non-State Parties that have butted heads over aggression charges, most recently before the International Court of Justice in the Oil Platforms Case) had accepted a final text. This was embodied in a new Conference Room Paper as follows:

Understanding X

It is understood that aggression is the most serious and dangerous form of the illegal use of force; and that a determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the gravity of the acts concerned and their consequences, in accordance with the Charter of the United Nations.

The United States never did raise the issue if humanitarian intervention again in any formal setting (photo above is the plenary room from the perspective of the United States' chair), so it remains to be seen whether the Court, if faced with a putative humanitarian intervention, will consider the use of force to constitute a "manifest" violation of the United Nations Charter.
We have discussed this issue in more detail here.

On June 26

On this day in ...
... 1921, in Paris, France, a daughter was born to a French mother and English father. She would spend her childhood in England and take work at a perfume counter. At a 1940 Bastille Day parade in London, she met a French officer, whom she married, after 42 days. Her husband died in battle a couple years later, without ever seeing their daughter. Violette Szabó (left), codenamed "Louise" and "La P'tite Anglaise," then became an agent for the British Special Operations Executive (prior post), helping to organize the resistance in France. Eventually she was captured, interrogated, and tortured. Szabo was detained at the Ravensbrück camp, then, at age 23, executed, in 1945.

(Prior June 26 posts are here, here, and here.)

Friday, June 25, 2010

Doubling Back on Dublin

The European Union's Dublin II Regulation funnels asylum claims to the states through which applicants first entered Europe. But what happens when the state of first entry fails to uphold its obligations under international refugee law? The question of how other Dublin member states should address Greece's disastrous asylum system has been answered differently by nearly every national court that has entertained the question, illustrating the difficulty of reconciling competing legal norms.
In the first half of 2009, Greece saw over 80,000 undocumented migrants cross its borders and received the sixth largest number of asylum applications (nearly 10,000) in the EU. Greece's asylum system simply cannot cope with the flow of applications; in late 2009, only 20 claims were registered per day at the Asylum Department in Athens though up to 2,000 people each day wait in line to apply for asylum. Ninety percent of asylum claims are filed in that office, as it is reportedly difficult to file claims outside of Athens. Even those asylum seekers who are able to access the process are often interviewed in a language they can't understand, without interpretation, and without legal counsel to advise them of their rights.
In 2007, Greece granted 8 asylum claims in the first instance - a grant rate of 0.04% -- and 138 claims, a grant rate of 2.05% on appeal. All of the 305 decisions in late 2006 to early 2007, relating to applicants from Afghanistan, Iraq, Somalia, Sri Lanka, and Sudan, were negative. None of these decisions contained any discussion of the facts of individual cases or provided any legal reasoning. Greece's asylum system is, simply put, non-functional.
UNHCR first stepped into the fray in 2007, issuing an advisory note about the risks of refoulement for asylum seekers transferred to Greece under Dublin II. In 2008, UNHCR stepped up the pressure through a position paper communicating its grave concern with Greece's asylum system and advising governments "to refrain from returning asylum seekers to Greece under the Dublin Regulation until further notice." And in 2009, UNHCR published a detailed observation paper indicting the the Greek asylum system.
Finally, last week, UNHCR released a report on Dublin member states' use of the "sovereignty clause", Art. 3(2) of the Dublin II Regulation, against transfers to Greece. The sovereignty clause authorizes a member state to process an asylum claim even where the Dublin criteria would require that the claim be heard in a different country. While data on the application of the clause are scarce, UNHCR reports that it is rarely used except to protect vulnerable asylum applicants. In the past year or so, however, states have increasingly relied on the sovereignty clause to suspend transfers to Greece.
And here's the legal tussle -- there's quite a dispute, akin to a circuit split in the United States, brewing over the interpretation of the sovereignty clause. In other words, national courts can't agree on the circumstances under which member states can double back on Dublin. Some national courts have focused on the sufficiency of procedural safeguards (France, Romania), while others ask whether transfer would result in a violation of Article 3 (prohibition of torture) or 8 (right to family life) of the European Convention on Human Rights (Austria, Hungary). French and Spanish courts emphasize the need to examine the risk of return on a case-by-case basis, with the latter providing an exception for vulnerable asylum applicants, including families with small children. On the other end of the spectrum, Belgian courts have found that since Greece is an EU member state, party to the ECHR and the Refugee Convention, and bound by EU instruments, the court must presume Greece will uphold these obligations. As a result, the burden is on the asylum seeker to rebut this presumption with proof of a risk of violations of ECHR Article 3. Similarly, Dutch courts have required tangible or specific indications that a member state isn't fulfilling its international obligations and have suggested that complaints about failure to implement EU law should be raised in Greece with Greek authorities.
It should come as no surprise that asylum applicants have petitioned the European Court of Human Rights to hear their complaints about Dublin transfers to Greece. At the beginning of this month, there were a reported 760 such cases pending before the ECHR. M.S.S. v. Belgium and Greece, the lead case on this question, will be heard by the ECHR's Grand Chamber on September 1. Stay tuned!

On June 25

On this day in ...
... 1898, ending a often-snowy journey begun in Vancouver in May, the 9-member Salvation Army Field Force at right, which included 2 women, Ensign Rebecca Ellery, a missionary, and Lieutenant Matilda Aitken, a nurse (middle row, left and right, respectively), arrived in Dawson City, Yukon, Canada, to provide food, shelter, and medical services to Klondike gold miners. (photo credit) The mission they started endured until 1912.


(Prior June 25 posts are here, here, and here.)

Thursday, June 24, 2010

Poor Judgment Overturns Offshore Drilling Moratorium

Today Judge Martin Feldman of the U.S. District Court for the Eastern District of Louisiana refused to delay the effect of the preliminary injunction he issued on Tuesday, overturning the U.S. Department of Interior’s May 28, 2010, Temporary Moratorium on deepwater drilling. (Related court documents available here.)
Several facets of the June 22 decision are truly astonishing.
Nowhere in the decision is there any recognition of the unique, emergency circumstances or the grave threat to the public that the agency was seeking to combat. Nor did the judge pay much attention to the express and explicit congressional intention that offshore oil activities be suspended when necessary to protect against environmental threats. Instead he elevated the desire of private companies to continue their profitmaking activities over the health and safety of an entire region. His decision raises a vital question about where our defaults should be when faced with uncertain threats: should we err on the side of protecting the environment or on the side of protecting business? Judge Feldman clearly opted for the latter. It was a poor choice, but hopefully wiser heads will prevail, and the Moratorium, instituted in the wake of the Deepwater Horizon explosion (left) will be restored. (prior IntLawGrrls posts available here) (photo credit)
On purely legal terms, the decision was not a very good one.
Not only did the court engage in the kind of substantive review that is typically reserved for a full-blown agency rulemaking rather than an emergency order, but the court also clearly substituted its judgment for the agency, even as it acknowledged that it was prohibited from doing so. The court took what is known as a “hard look” at the evidence upon which the Department of Interior acted and found that the agency had been arbitrary and capricious. The court reached this conclusion because it found that the Moratorium was based on general assertions rather than detailed evidence that each deepwater well individually posed an imminent danger. Although a blanket moratorium is unusual, nothing in the statute requires a well-by-well analysis. Given the daily barrage of horrors in the Gulf, and the admitted inability of the entire industry to respond to a deepwater blowout, the judge’s cramped interpretation of the statute seems particularly ill-judged (no pun intended).
Moreover, Judge Feldman’s decision also runs contrary to the spirit of the governing law. The Federal statute governing offshore drilling (the Outer Continental Shelf Lands Act or OCSLA) clearly states that oil production is to be “subject to environmental safeguards.”
To that end, the OCSLA specifically directs that the Secretary of the Interior shall promulgate regulations
for the suspension or temporary prohibition for any operation or activity . . . if there is a threat of serious, irreparable or immediate harm or damage to life (including fish and other aquatic life) . . or to the marine, coastal or human environment.
To fulfill this statutory mandate, the Department of Interior duly promulgated regulations providing for a suspension of offshore drilling activities when the activities “pose a threat of serious, irreparable, or immediate harm or damage” is “necessary for the installation of safety or environmental protection equipment.”
Let me be clear: not only does the statute authorizing offshore drilling explicitly contemplate that those activities might be suspended or prohibited to protect the environment, but so do DOI regulations.
A suspension of drilling is not some after-the-fact invention by the Obama administration. Instead, it is part of the legal regime that authorizes deepwater exploration, drilling and extraction in the first place. That means that it was clear from the outset to all concerned that operations might be suspended because of a “threat of serious, irreparable or immediate harm” to the environmental or human safety. If the various regulatory and industry failures that culminated in the Deepwater Horizon catastrophe do not qualify as a “threat of serious, irreparable or immediate harm or damage” justifying suspension, what would?
The court concluded that the Secretary of the Interior had been arbitrary and capricious in exercising this authority because
the Court is unable to divine or fathom a relationship between the [Department of Interior Deepwater Horizon] Report and the immense scope of the moratorium.
Come again??
The report detailed a litany of equipment failures and a host of regulatory failures in the permit approval process. None of the wells affected by the moratorium were prepared to handle a worst-case scenario, and none had performed a NEPA environmental assessment; all had relied on the same inadequate safety equipment, and all had provided the same glib (and false) assurances that
[i]n the event of an unanticipated blowout resulting in an oil spill, it is unlikely to have an impact based on the industry wide standards for using proven equipment and technology for such responses, implementation of BP’s Regional Oil Spill Response Plan which address [sic] available equipment and personnel, techniques for containment and recovery and removal of the oil spill.

Moreover, testifying before Congress, ExxonMobil’s CEO acknowledged that the industry has no technology for responding to a deepwater gusher. And, as the government pointed out in its briefing, all available personnel, ships and resources are inadequate to respond to the BP disaster—there would be no possible way to respond to a second incident.
A preliminary injunction is an extraordinary remedy that is granted only when a plaintiff carries the burden of proof that:
► a) s/he will suffer irreparable harm if the injunction is not granted;
► b) s/he is likely prevailing on the merits of the case;
► c) harm to the plaintiff outweighs any harms that will occur if the injunction is granted; and
► d) granting the injunction will not harm the public’s interest.
The plaintiffs in this case, all of whom engage in support activities for offshore drilling permit holders, based their complaint on the effect the moratorium would have on their oil service industry business and on the local economy. In effect they asserted a right to the continuation of permitted activities even though they are not the permit holders and even though the Department of Interior determined that the permitted activities posed an imminent threat to the environment.
It is nothing short of astonishing that Judge Feldman could weigh these claims of harm from lost business against the risks to the public from possibility of another massive oil release and find that the balance of equities tipped in favor of the plaintiffs. The law governing deepwater drilling does not guarantee permit holders an unrestricted right to engage in oil extraction activities. It certainly does not guarantee satellite support industries that permit holders will continue to operate and continue to desire their services. To the contrary, suspensions of operation are clearly contemplated and provided for in the legal framework.
While this extensive a moratorium is unprecedented, so is the level of damage caused by the Deepwater Horizon catastrophe. Given the explicit provisions for suspensions as part of the legal environment in which they ply their trade, it is hard to see why the possibility of such a suspension doesn’t come under the umbrella of a risk of doing business.
On page 4 of his opinion, Judge Feldman writes:

The Report makes no effort to explicitly justify the moratorium: it does not discuss any irreparable harm that would warrant a suspension of operations.
This is an astonishing sentence in light of the clear example of irreparable harm we have before us. The phrase “res ipa loquitur” (the thing speaks for itself) leaps to mind. If:
► 100,000 gallons of oil a day gushing into the Gulf;
► contaminated wetlands and beaches across 3 states;
► 1/3 of the Gulf shut to fishing; countless deaths of fish and marine mammals; and
► 11 workers dead
are not enough evidence of a threat to the environment or safety, I wondered what the judge would have found to be adequate evidence to warrant a suspension of operations.
On page 19 of his decision, the judge poses the rhetorical question are “all oil tankers like Exxon Valdez?” as support for his decision to enjoin the deepwater drilling moratorium.
That rhetorical flourish instead reveals how little Judge Feldman understands about the situation he is dealing with.
The scale of the 1989 Exxon Valdez disaster (prior post) was attributable to the single-hulled design of the ship. Indeed, the Coast Guard estimated that a double-hull would have reduced the spill by 20-60%. After the disaster, the United States and MARPOL began requiring double-hulls (a design reform that had long been delayed by industry opposition). Rather than the response being “heavyhanded, and overbearing,” as Judge Feldman charged, it makes good sense to impose sweeping changes when a catastrophe reveals an industry’s shared Achilles heel.


Understanding Aggression I

(Another in IntLawGrrls' series of posts in connection with the ICC Kampala Conference)

Following our extended series on the crime of aggression and the recently concluded ICC Review Conference, this post discusses several "understandings" added to the final package of amendments concerning the definition of the crime of aggression and its impact outside the Court.
By the time the Review Conference opened in Kampala, delegates had arrived at a consensus definition of the crime of aggression that was loosely based on General Assembly Resolution 3314 but contained subtle yet significant departures from that text. As it turned out, the definition was the only component of the initial Conference Room Paper that was entirely unbracketed. Even the so-called P-2 (France and the United Kingdom) had accepted the definition prior to Kampala, although in a later intervention, France insisted that its approval was tied to the existence of a Security Council filter.

In prior diplomatic meetings and again in Kampala, the United States made overtures to revisit the definition of aggression, but achieved little traction. Delegates were simply too invested in the definition and its provenance to reopen the debate at such a late date. In its second formal intervention (above, photo mine), the United States stated its view that the definition itself was “flawed” and that the apparent consensus on the definition of the crime may actually mask significant disagreements. At the same time, it acknowledged that it might be possible to address these concerns without revisiting the definition itself.

From that point, the United States focused on achieving key “understandings” to be inserted into the amendment package at Annex III, which contained a number of other draft and consensus understandings. These understandings sought to

  1. reshape the definition and its future interpretation to a certain degree,
  2. tie the definition more closely to Resolution 3314—from which it derived—and to the UN Charter framework governing lawful uses of force, and
  3. preserve an opening for claims about the legality of humanitarian interventions and other arguably legitimate yet potentially unlawful uses of force.
Professor Claus Kress (right) of the German delegation was asked to chair the process to consider these proposed understandings. After a series of informal discussions, he brought forward three sets of proposals for further consideration and debate in a special working group session on June 9, 2010, explaining his “minimalist” approach on the fact certain the other understandings “met with significant reluctance.” The three considered were
  1. language on complementarity and jurisdictional competence (deemed Understanding 4bis),
  2. an understanding addressed to the threshold for prosecution (deemed Understanding X), and
  3. an understanding mandating the cumulative interpretation of the factors of character, gravity, and scale in determining whether an act of aggression had occurred (deemed Understanding Y).
Following up on our prior discussion on complementarity and the crime of aggression, I'll address the first proposed understandings in this post, and the latter two in a subsequent post.
The complementarity understandings addressed potential implications of the definition of the crime outside the Court. This text built on existing language in the Conference materials concerning the propriety of the exercise of domestic jurisdiction over the crime of aggression in the event an amendment to the Statute was adopted, particularly in light of the principle of complementarity. The first Conference Room Paper on the Crime of Aggression (released June 6, 2010) contained draft text to the effect that

It is understood that the amendments address the definition of the crime of aggression and the conditions under which the Court shall exercise jurisdiction with respect to this crime for the purpose of this Statute only. The amendments shall, in accordance with article 10 of the Rome Statute, not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute. The amendments shall therefore not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State.
The United States proposed three changes to this language:
  1. the addition of a reference to “act of aggression” in the first sentence alongside “crime of aggression;”
  2. the inclusion of an assertion that the aggression amendments do not constitute a definition of these terms under customary international law; and
  3. a separation of the third sentence into a separate understanding (and a removal of the word “therefore”) to reflect the fact that it raises a different issue than the first two sentences of this text (definition versus jurisdictional competency).
In an intervention in a plenary session, the United States explained that the point of the first two of these proposed changes was to further emphasize that the amendments would be adopted solely for the purpose of prosecutions under the Rome Statute and that there is a divergence of views among states about as to whether the definitions of “crime of aggression” in Article 8-bis(1) and “act of aggression” in Article 8bis(2) reflect statements of customary international law. The ultimate goal was to undermine any tendency to reference these definitions as evidence of the progressive development of customary international law. The last change was meant to signal a separate point: that that states are not obliged to incorporate the crime of aggression into their domestic codes, or launch domestic prosecutions for the crime, upon ratification or acceptance of the aggression amendments.

The proposed language in 4bis met with little discussion or resistance, although ultimately the words "customary international law" were not included. Professor Kress forwarded the new language of Understanding 4bis to the Chair of the Working Group and it later appeared as follows in a Conference Room Paper:

4bis: Domestic jurisdiction over the crime of aggression

It is understood that the amendments that address the definition of the act of aggression and the crime of aggression do so for the purpose of this Statute only. The amendments shall, in accordance with article 10 of the Rome Statute, not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute. It is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State.
In the final package of amendments, the two elements of 4bis (definition and jurisdiction) were bifurcated into separate understandings.
There is no express requirement within the treaty that State Parties harmonize their domestic penal codes with the Rome Statute. The only mandatory language regarding domestic legislation concerns state cooperation (Part 9) and the obligation to assert jurisdiction over offenses against the administration of justice (Article 70(4)). The preambular language referencing domestic jurisdiction arguably recalls pre-existing obligations for all “States” (not just State Parties) to prosecute international crimes, but creates no new obligations for domestic implementation or prosecution. By this view, the principle of complementarity creates only a rebuttable presumption of inadmissibility, unless no credible domestic prosecution—for an international crime or its domestic analog—is going forward. Nonetheless, as part of the process of ratification, states have tended to update their penal codes to be consistent with the ICC Statute so that they may take advantage of the principle of complementarity.

Very few states have a definition of aggression on the books. (The best study of this topic was done by Astrid Reisinger Coracini of the University of Graz (left), who attended the Kampala Conference on behalf of Austria.) Most of these definitions appear, perhaps not surprisingly, in the penal codes of the states of central Asia and Eastern Europe. Most statutes pre-date the ICC and are loosely premised on the definition of crimes against the peace in the Nuremberg/Tokyo Charters, are denominated as waging or planning a “war of aggression," or contain no definition whatsoever. Most do not subject the crime to universal jurisdiction, but rather premise domestic jurisdiction on principles of territoriality or nationality. Beyond the immediate post-WWII period, there is very little domestic jurisprudence on the crime of aggression, as we've discussed.
It thus remains to be seen whether states will incorporate the crime of aggression into their domestic penal codes, notwithstanding the Understandings adopted in Kampala.

Newest woman head of government

About 3 hours ago Julia Gillard was sworn in as Prime Minister of Australia, the 1st woman to hold that position. "Gillard was greeted with a kiss by her partner Tim Mathieson as she entered the room for the swearing-in." She took the oath from the country's 1st woman Governor-General, Quentin Bryce.
Gillard (left) had been Deputy Prime Minister since 2007 (prior IntLawGrrls post). On September 29, 1961, she was born into a working-class family in Wales. The family immigrated when she was 4. Gillard earned her law degree from the University of Melbourne, and practiced law before becoming Chief of Staff to the opposition leader in Parliament in 1995. Three years later, she herself was elected, and has served in Parliament ever since. (credit for photo by Rebecca Hallas)
Gillard's selection Wednesday as the new Prime Minister brought tears to the eyes of her predecessor, Kevin Rudd, who lost a struggle to retain leadership of the Labor Party to which both belong. The Sydney Morning Herald reported that "Mr Rudd had decided to fight to the death after refusing to step aside last night for Ms Gillard."
A partial list of women heads of government or state to which Gillard now belongs:
Laura Chinchilla of Costa Rica, Ellen Johnson-Sirleaf of Liberia, Doris Leuthard of Switzerland, Pratibha Patil of India, Cristina Fernández de Kirchner of Argentina and Kyrgyzstan's interim government leader Roza Otunbayeva.
Can you name others?

On June 24

On this day in ...
... 1995 (15 years ago today), world leaders gathered in San Francisco to celebrate the 50th anniversary of the post-World War II conference that ended with the signing of the U.N. Charter on June 26, 1945. A San Francisco Chronicle article published on this day attributed the Charter's opening, "We the Peoples," to drafters' desire to

inspire people to support the United Nations and help the charter last, as it has for a half-century.

Among the world leaders wide awake in the wee hours of that San Francisco morning was Archbishop Desmond Tutu, whom live Johannesburg TV showed celebrating at an Irish pub with Ireland-born Maggie King and other South Africans as they watched South Africa win the Rugby World Cup -- playing on its home field in its 1st such international tournament since the end of apartheid. Hours later Maggie, whose mother is the subject of a prior post, celebrated again -- this time below a mast flying the Jolly Roger and a plaque honoring Harry Bridges at the Fishermen’s and Seamen’s Memorial Chapel (left), for the marriage of her brother, Peter O'Neill, to yours truly at bayside midsummer nuptials pictured here. It was, according to the Chron, the hottest day of San Francisco's century. The following 15 years, equally magical!

(Prior June 24 posts here, here, and here.)

Wednesday, June 23, 2010

Protecting Women's Rights in the Reconstruction of Haiti

It is easy to forget, what with the millions of gallons of oil spilling into the Gulf of Mexico, with scores of ethnic Uzbeks being killed in Kyrgyzstan, and with the blocking of vital aid to Gaza , that the humanitarian crisis sparked by January's earthquake in Haiti rages on.
Of the hundreds of thousands enduring an epic lack of food, shelter, and medical care, Haitian women and girls remain among the most vulnerable in the aftermath of that natural disaster. (credit for May 19, 2010, photo, © UNICEF/NYHQ2010-0779/LeMoyne, of mother who's just had her daughter vaccinated at health centre in Haiti)
The lack of security on Port-au-Prince's streets and temporary camps, all of which host thousands who have been rendered homeless, has catapulted the rate of violence against women in Haiti. Already endemic before the earthquake, the rate has reached new highs. Prior to the earthquake, violence against women in Haiti was described as "widespread" and "alarming." Over 90 percent of Haitian women were estimated to have experienced gender-based violence at some point in their lives.
The insecurity following the January 12 earthquake has not only exacerbated that state of affairs but presented an opportunity for change as well. Governments, donors, and international organizations -- if not the global citizenry -- are providing humanitarian assistance to the tiny Caribbean nation as it struggles to rebuild its homes, schools, and roads. In addition to the bricks and mortar work being done, development agencies have observed the need to rebuild Haiti's justice and security systems.
No one appreciates the absence of rule of law in Haiti better than its women, who have long struggled to access health care services, police investigations, prosecutions, and enforceable sentences against their aggressors.
On June 7, one of those women, Malya Villard-Apollon, testified before the U.N. Human Rights Council. Villard-Apollon is a member of KOFAVIV, a grassroots organization that has worked with victims of sexual violence in Haiti for six years. Since the earthquake, KOFAVIV has recorded 242 cases of rape but has yet to see a single prosecution. Villard-Apollon urged the Council to take action, saying:

Although violence against women is common, rape survivors like myself refuse to believe that it cannot be stopped and neither should the members of the Council.
She cited a lack of education and security as reasons for the alarming rates of violence against women, as well as "ineffective" aid distribution and aid agencies' failure to consult with local organizations. Villard-Apollon reminded donors of the United Nations' Guiding Principles on Internal Displacement, and urged aid providers to consult with Haitian women in the delivery of aid. Principle 18 of the Guiding Principles calls specifically for the involvement of displaced women in the distribution of water, food, shelter, and medical care.
The importance of consulting with women in Haiti's reconstruction was echoed by U.N. High Commissioner for Human Rights Navi Pillay in her June 11 report on human rights during the rebuilding of Haiti.
Involving women in the reconstruction of Haiti does not simply satisfy international legal obligations, it also makes good development sense. Participatory development has been a buzzword in the field of international aid since the 1990s, when development agencies began shifting away from top-down programming to more bottom-up initiatives. Since this time, many aid organizations have been working with grassroots groups to set the development agendas for their own communities, understanding that such involvement leads not only to project ownership but also to initiatives that are more tailored to participating communities and ultimately, to more sustainable outcomes.
This development philosophy, together the international legal principles prescribing participation of women in humanitarian relief, may translate into reconstruction efforts in Haiti that will not only stem the current crisis of gender-based violence but also prevent its recurrence in the future.