Saturday, July 31, 2010

Go On! Beyond National Security: Immigrant Communities and Economic, Social, and Cultural Rights

(Go On! is an occasional item on symposia and other events of interest) It seems we’re seeing reactionary responses to cross-border migration everywhere —in the United States, Europe, Australia, and South Africa. But the positions of governments, employers, and non-foreign-born citizens seem to be cyclical or ambivalent, shifting with internal perceptions and misperceptions about competition over available resources and racial or ethnic cultural difference. Migration policy is also influenced by deliberate manipulation of gender and other class disparities that place downward pressure on wages and benefits, as well as environmental, economic, armed conflict, and political disasters that force migration from the home country. Finally, of course, migration flows can be shaped by the availability of unique opportunities in the host country or by the impact of unsustainable transnational trade and development policies affecting the home country.
Whatever the causes and macro- consequences of cross-border migration, immigrants and refugees are often among those who experience serious and continuing violations of economic, social, and cultural human rights . An upcoming “institute” at Northeastern University School of Law, co-chaired by Assistant Professor of Law Rachel Rosenbloom and IntLawGrrl and Professor of Law Hope Lewis, will examine economic, social, and cultural rights violations in U.S. immigrant communities. Here’s the summary:
"Beyond National Security: Immigrant Communities and Economic, Social, and Cultural Rights"

Two significant trends in the treatment of noncitizens in the United States are the focus of this two-day institute. Beginning in the mid-1990s and gaining momentum after September 11, 2001, the federal government imposed increasingly harsh deportation policies, dramatically expanded the enforcement of immigration laws, and delegated more and more immigration enforcement power to state and local police — all in the name of national security. Similarly, a wave of state and local laws has been taking aim at the rights of noncitizens in areas such as employment, housing, health, family life, and education. During the same period, however, immigrant communities and their supporters throughout the U.S. are increasingly turning to human rights approaches in response.
On October 14-15, 2010, Northeastern University School of Law's Program on Human Rights and the Global Economy (PHRGE) will bring together a core group of leading immigration and human rights advocates, scholars, jurists and activists for a two-day intensive institute to address these developments within a human rights framework. What effects have harsh deportation policies and increased immigration enforcement had on the economic, social, and cultural rights of immigrants? What roles have discrimination and minority status played in undermining economic and social rights in immigrant communities? What can be learned from community-based or cross-cultural anti-discrimination strategies? What can be learned from administrative, academic, or judicial strategies? How are encroachments on such rights increasingly being used at the sub-national level as a tool of immigration enforcement? How can human rights strategies best be used to counter those effects?
Public Events
Public Roundtables will be held on Thursday, October 14,2010, at 11:45 a.m. and on Friday, October 15, 2010 at noon.
Confirmed institute participants include Ana Avendano (AFL-CIO), Jacqueline Bhabha (Harvard University), Arlene Brock (Ombudsman of Bermuda), Margaret Burnham (Northeastern University School of Law), Muzaffar Chishti (Migration Policy Institute, New York University), Ellen Gallagher (U.S. Department of Homeland Security), Wade Henderson (Leadership Conference on Civil Rights and Human Rights), Marielena Hincapie (National Immigration Law Center), Nancy Kelly (Greater Boston Legal Services), Anjana Malhotra (Seton Hall School of Law), Susan Ostrander (Tufts University), Janis Roshuevel (Families for Freedom), Rinku Sen (Applied Research Center & ColorLines), Aarti Shahani (journalist), Jonathan Todres (University of Georgia School of Law), Paul Watanabe (University of Massachusetts, Boston), John Willshire-Carrera (Greater Boston Legal Services).

The institute will be followed by a workshop on "Bringing Human Rights Home to Immigrant Communities in Massachusetts" on Saturday, October 16, 2010, organized by Northeastern's Human Rights Caucus and other student groups. The Saturday workshop is also open to the public. For further information and questions about disability access, please contact events coordinator Jackie Davis.

'Nuff said

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

Comparative sideglances can sometimes aid us in deciding not only what we should do, but what we should not do. A notable example: In the 'Steel Seizure Case' decided by the U. S. Supreme Court in 1952, Justice Jackson, in his separate opinion, pointed to features of the Weimar Constitution in Germany that allowed Adolf Hitler to assume dictatorial powers. Even in wartime, Jackson concluded, the U.S. President could not seize private property (in that case, the steel mills). Such a measure, in good times and bad, the Court held, required congressional authorization.
At the time Justice Jackson cast a comparative sideglance at Weimar Germany, the United States itself was a source of 'negative authority' abroad. The Attorney General pressed that point in an amicus brief for the United States filed in Brown v. Board of Education, the public schools desegregation case decided in 1954. Urging the Court to put an end to the 'separate but equal doctrine,' the Attorney General wrote:
'The existence of discrimination against minority groups in the United States has an adverse effect upon our relations with other countries. Racial discrimination . . . raises doubts even among friendly nations as to the intensity of our devotion to the democratic faith.'
-- U.S. Supreme Court Justice Ruth Bader Ginsburg on "The Value of a Comparative Perspective in Constitutional Adjudication," in what SCOTUSblog's Lyle Denniston termed "a rare commentary by a member of the Supreme Court on Senate hearings for a potential colleague." He refers, of course, to the broadsides that some Senators aimed at nominee Elena Kagan (prior post). Ginsburg's comments were part of a speech she delivered yesterday at the XVIIIth International Congress of Comparative Law, about which IntLawGrrl Afra Afsharipour posted earlier this week. (hat tip: Jess Bravin) (The role of foreign context in the school desegregation litigation is, incidentally, a key aspect of the scholarship of IntLawGrrl guest/alumna Mary Dudziak.)
An interesting added note in Ginsburg's full speech, available here: her reference to judges' consultation of "any number of legal blogs." Hmmm....

Write On! Regulating disasters

(Write On! is an occasional item about notable calls for papers.)

"Emergency Regulation under the Threat of a Catastrophe" is the subject of a call for papers from École des Hautes Études Commerciales de Paris, or HEC Paris, since 1881 an international business school based in the French capital.
Prompting the call -- and the HEC Paris workshop at which papers will be presented, on November 10 and 11, 2010: the ash plumes (below right) from an Icelandic volcano that grounded airlines, and thus stranded thousands of spring 2010 travelers in, to, and from Europe. (photo credit)
An informative account of the regional and international regulatory mess this entailed was just published as an ASIL Insight by Alberto Alemanno, an associate professor in business law and taxation at HEC Paris, and a co-organizer of this event.
Here's an excerpt from the full call for papers:
The ash crisis is not the first or the only such problem to have occurred. It is one of a series of recent real or potential catastrophes -- natural disasters, terrorism, pandemics -- that have taken by surprise globalized firms and partly regulators. As such it represents a rich case study in the problem of emergency regulation ....
[W]e propose a workshop with selected speakers and discussants that will retrospectively look at what happened during the worst aviation crisis in European history, and proactively suggest how the lessons learned can affect other regulatory systems which might be faced with similar crises.
Questions that papers might address:
► Roles of science and technology in supporting both risk assessment and decision;
► Institutional design and capability of the regulatory system; and
► Various stakeholders' roles.
Selected papers may be published in the European Journal of Risk Regulation, for which Alemanno serves as Editor-in-Chief, and published in a book to follow.
Submit 300-word abstracts no later than September 15, 2010, to Alemanno at alemanno@hec.fr, or to his co-organizer, Maryland Engineering Professor Emeritus Vincent Brannigan, at firelaw@firelaw.edu.
Further details here.

On July 31

On this day in ...
... 1964, U.S. President Lyndon B. Johnson appointed Dr. Margaret Joy Tibbetts to serve as U.S. Ambassador Extraordinary and Plenipotentiary to Norway. Tibbetts presented her credentials on October 6 of the same year, and left the post on May 23, 1969. During that tenure she would "escor[t] Martin Luther King, Jr. and his family when he received the Nobel Peace Prize in Oslo in 1964." She also was quoted in The New York Times story announcing King's award:
As an American and representative of the American people, I want to express joy and gratitude that one of my fellow countrymen has been awarded this prize.
Tibbetts had been on August 26, 1919, in Bethel, Maine, and earned a Ph.D. at Bryn Mawr College in Pennsylvania. In 1944 she became a career officer of the U.S. Foreign Service, serving in Washington, London, Brussels -- and eventually as officer-in-charge of the consulate general at what was then Leopoldville, Belgian Congo (today, Kinshasa, Democratic Republic of Congo). In 1971 she received the Distinguished Honor Award (ribbon at right), "the highest decoration bestowed by the United States Department of State," and retired from government service. She became a professor, teaching foreign policy, at Bowdoin College near her hometown. Miss Tibbetts, as her obituary referred to her, died in Maine this past April 25, at age 90.

(Prior July 31 posts are here, here, and here.)

Friday, July 30, 2010

L'Arizona de l'Europe?

Immigrants and their advocates in the United States breathed a sigh of relief on Wednesday as a federal district judge enjoined the harshest provisions of Arizona's draconian new immigration law from taking effect. That same day, across the pond, a human rights NGO spoke out against a "racialized vision of society in which a human group, though heterogeneous, is treated as criminogenic." L'Arizona? Non. La France? Oui.
In response to a riot last week (sparked by the police shooting a man dead) involving fifty travellers in central France, President Sarkozy announced Wednesday plans to dismantle 300 Roma and traveller camps across the country as part of his "war on crime and urban violence". In fine Arizona style, he also ordered the "almost immediate" expulsion of Roma from Bulgaria and Romania who have committed offenses against the public order and promised new legislation to make it easier to deport groups like the Roma for security reasons. (See too migration post below.)
The move has sparked concern on the part of human rights groups about promoting negative perceptions of the 400,000 travellers living in France, 95 percent of whom are said to be French nationals. Sarkozy's Interior Minister's responded by claiming that the measures "are not meant to stigmatize any community, regardless of who they are, but to punish illegal behavior". Evidemment.
And what did the European Commission have to say about all of this? Oui, bien sûr. Ben -- c'est-à-dire, peut être. Agence France Presse first reported that the European Commission had assented to Sarkozy's new policies, quoting the spokesperson for Viviane Reding, the Commissioner for justice, fundamental rights, and citizenship (pictured right) as saying, "European laws on the free movement of European citizens provide EU member states with the right to control their territory and combat crime." That provoked a response from Reding's spokesperson, who stated that AFP had misinterpreted the prior statement, and that the Commission was "neither for nor against" France's proposal to expel Bulgarian and Romanian Roma on security grounds. C'est clair?
The Romanian government, on the other hand, has minced few words in its assessment of France's approach (calling to mind Mexican President Felipe Calderon's response to the Arizona law). After the Minister of Justice declared Romania's readiness to cooperate with France, he noted that "cooperation does not mean using bulldozers to destroy camps and publicly blaming Roma." The Romanian Minister of Foreign Affairs expressed a similar willingness to cooperate, before suggesting that EU member states should be able to address criminal activity without resorting to ethnic stereotypes. He argued that "the solution to the Roma's socio-economic difficulties is social inclusion in the societies in which they live, whether in their country of origin or host state, in strict respect of human rights." Bucharest called for a European solution "to complement national efforts in areas such as education, professional training, health, and housing." On va voir.
(Hat tip to Diane Marie Amann for the Le Monde article; translations, and any errors therein, are mine.)

AJIL board nominations sought

Following on our earlier post regarding a request for nominations to American Society of International Law leadership positions:
The Nominating Committee of the Board of Editors of the American Journal of International Law invites nominations for members of the Board of Editors to be elected in spring 2011.
As detailed here:

[N]ominations are based primarily on scholarship and creativity, as demonstrated in books, articles, and other written work appearing over a period of years, including, but not limited to, publications in the Journal. Other factors taken into account include areas of expertise or professional perspective or discipline.
Suggestions, along with supporting statements and information, such as a CV, list of publications, and, if possible, copies of significant publications, should be sent no later than September 15, 2010, to the AJIL Nominating Committee Chair, c/o either of the Co-Editors-in-Chief:
► Professor Lori Damrosch, Columbia University School of Law, 435 West 116th Street, New York, New York 10027, e-mail ajil@law.columbia.edu.
► Professor Bernard H. Oxman, University of Miami School of Law, P.O. Box 248087, Coral Gables, Florida 33124, e-mail ajil@law.miami.edu.

On July 30

On this day in ...
... 1900 (110 years ago today), in response to anti-Japanese ferment in British Columbia, Japan forbade its people to immigrate to Canada. The provincial legislature nonetheless passed a statute further restricting Japanese immigration, in contravention of the Commercial Treaty of 1894,
which guaranteed Japanese the 'full liberty to enter, travel, and reside in any part of the Dominion of Canada.'

(credit for circa 1900 photo of Japanese emigrants ready to disembark) Canada's federal government stepped in and put an end to this and other subnational efforts to block immigration. (Sounds a bit like the current federal-state showdown on immigration (and see post above) to the United States, yes?)

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

Thursday, July 29, 2010

General Assembly proclaims right to water as United States & 40 other countries abstain

The human right to water and sanitation yesterday won the immediate acclaim of the United Nations.
Most nations, that is.
Meeting at its headquarters in New York, the U.N. General Assembly adopted Resolution A/64/L.63/REV.1, by which the Assembly:

1. Declares the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights;
2. Calls upon States and international organizations to provide financial resources, capacity-building and technology transfer, through international assistance and cooperation, in particular to developing countries, in order to scale up efforts to provide safe, clean, accessible and affordable drinking water and sanitation for all;
3. Welcomes the decision by the Human Rights Council to request that the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation present an annual report to the General Assembly, and encourages her to continue working on all aspects of her mandate and, in consultation with all relevant United Nations agencies, funds, and programmes, to include in her report to the Assembly, at its sixty-sixth session, the principal challenges related to the realization of the human right to safe and clean drinking water and sanitation and their impact on the achievement of Millennium Development Goals.

France's Secretary of State for Ecology, Chantal Jouanno, judged the decision "historique" -- and many countries' delegates echoed that adjective.
The vote on the resolution was overwhelming: 122-0-41.
The representative of the United States explained its abstention as an objection not to the importance of access to water, an issued on which we've frequently posted. Rather, he said that the United States objected to the Assembly's decision to go forward now rather than to await other U.N. action:

The United States had hoped to negotiate and ultimately join consensus on this text, on a text, that would uphold and support the international process underway at the Human Rights Council. Instead, we have here a resolution that falls far short of enjoying the unanimous support of member States and may even undermine the work underway in Geneva. This resolution describes a right to water and sanitation in a way that is not reflective of existing international law; as there is no “right to water and sanitation” in an international legal sense as described by this resolution.

The United States was joined in abstention by 40 other countries: Armenia, Australia, Austria, Bosnia and Herzegovina, Botswana, Britain, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Ethiopia, Greece, Guyana, Iceland, Ireland, Israel, Kazakhstan, Kenya, Latvia, Lesotho, Lithuania, Luxembourg, Malta, Netherlands, New Zealand, Poland, South Korea, Moldova, Romania, Slovakia, Sweden, Trinidad and Tobago, Turkey, Ukraine, Tanzania, and Zambia. And Japan.
Coincidentally, yesterday Japan finished hosting the 9-day official visit by the independent expert cited in ¶ 3 of the Resolution, Catarina de Albuquerque (right), an attorney, law teacher, and Senior Legal Adviser on International Affairs to the Portuguese Secretary of State for Justice. On the whole her observations were favorable, though she expressed concern with regard to certain minority populations. De Albuquerque began her statement by quoting a legend that she'd seen on a Kyoto shrine:

Mizukara Katsudoushite Hokawo Ugokashimuruha Mizu nari.

Translation: "It is the water which proactively moves and influences others."

Minorities in Viet Nam

(It’s IntLawGrrls’ great pleasure to welcome back alumna Gay McDougall, who contributes this guest post)

This month I conducted a 10-day official visit to Viet Nam. My objectives for this, my 10th such country visit, were to hold consultations on minority issues and to examine the human rights situation of Viet Nam’s numerous minority groups. These goals conform with my mandate as the Independent Expert on Minorities for the United Nations: to promote implementation of the U.N. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, and to identify challenges, as well as successful practices, in regard to minority issues.
I would first like to thank the Government of Viet Nam for extending an invitation to me and for the high level of importance that it attached to my visit, apparent in the assistance and access provided to me, at both national and provincial levels. My preliminary comments, excerpted in this post, will be followed by a report containing my full findings and recommendations to the U.N. Human Rights Council next March.
I began my visit in Hanoi before travelling to regions of significant minority populations, including the provinces of Dien Bien in the Northern Highlands, Tra Vinh in the Mekong Delta region, and Gia Lai and Kon Tum provinces in the Central Highlands. (map credit) I met with senior Government officials, representatives of non-governmental organizations, community members, academics, and others working in the field of minority issues, social inclusion and promotion of equality and non-discrimination.

Overview
Viet Nam is a country of great diversity. The majority population consists of those who identify themselves as part of the “Kinh” ethnic group. There are 53 other ethnic groups as well, with unique religious, linguistic and cultural characteristics, and identities. Viet Nam recognizes its minority populations as important constituent parts of its nation, and it understands many of the challenges that it faces to ensure that the rights of minorities are respected, protected and promoted in every sphere of life. The establishment of dedicated Governmental bodies with responsibilities for minorities, including the Committee on Ethnic Minority Affairs, is a positive practice that is replicated on provincial and district levels.
Viet Nam has witnessed a remarkable period of economic growth, progress towards the United Nations' Millennium Development Goals, and highly positive results in respect to poverty alleviation and economic development in general. The Government readily acknowledges that despite these achievements, most minority groups remain the poorest of Viet Nam’s poor.
The acknowledgment of the economic and social gaps that exist between the minority communities and the majority population is an important step towards putting in place the measures required to close those gaps.
Government programs over the past several years have established important initiatives to close those gaps through infrastructure projects, social protection programs and developments in the fields of health and education. The government should be commended for these programs and for the improvements that the programs have made in the lives of minorities.
I understand the challenges facing the government in achieving the rights of non-Kinh ethnic communities, particularly those in the most geographically remote areas. I welcome the government’s affirmation of its commitment to tackling those challenges as a matter of high priority. It is critical that:
► The Government ensures that its economic growth is achieved without negatively impacting on the lives of minorities or deepening their poverty; and
► Minorities share fully in the benefits of growth and prosperity, while maintaining their distinct cultures and identities.


Education
Access to quality and appropriate education is a gateway to development and poverty eradication for minorities. It is equally essential for the preservation and promotion of minority cultures, languages and identities. Education helps minorities to take control of their lives and to fulfill their potential as equal stakeholders in the development of the State. (photo credit)
Viet Nam has made significant progress in the provision of school structures to most Communes, in the option of boarding schools for students from remote villages, and in access to secondary schools for minority children. Nonetheless, I am concerned that minorities are achieving poor results in education relative to Kinh students.
One of the problems that has been identified is that minorities lack adequate opportunities to be taught in their own minority languages from the earliest years of education. They struggle with being taught only in Vietnamese.
With the ultimate goal of fluency in Vietnamese, bilingual education helps minority children to make better early progress in education and provides a strong and culturally appropriate foundation for their future schooling. I look forward to the results of a pilot programme of Mother-Tongue-based bilingual education currently being implemented by the Ministry of Education and Training and UNICEF, including in Gia Lai and Tra Vinh, 2 provinces I visited. Studies done worldwide endorse this approach. It is not sufficient that the Mother-Tongue language is taught as a subject. In preschool, and the first 3 years, it should be the language of instruction, which then transitions to be Vietnamese.

Enjoyment of rights
As in many countries with such diversity, numerous challenges exist to ensuring that members of minority groups can fully realize all their economic, social, cultural, civil and political rights and live in conditions of equality. The rights of minorities include:
► Freedom to practice their religions without restriction;
► Freedom of association and expression;
► Right of peaceful assembly;
► Equal right to own and use land; and
► Right to participate fully and effectively in decisionmaking regarding issues that affect them, including economic development projects and resettlement issues.
(photo credit) Concerns relating to these rights have been raised with me in the context of my visit; in turn, I have raised these issues directly with the Government of Viet Nam at national and provincial levels. I will study closely the information that I have gathered and the responses of the Government before commenting on these issues in my final report.

Conclusion
I believe that my visit marks an important step by the Government of Viet Nam to engage with the human rights bodies and mechanisms of the U.N. system. I welcome the Government’s undertaking to extend further invitations to other U.N. human rights experts in the months ahead, and I hope that these will include invitations to a wide range of mandate holders, including those with mandates in the area of civil and political rights.

Human Rights & Business: Beyond Corporate Social Responsibility

(Delighted to welcome back alumna Nadia Bernaz, who contributes this guest post)

With BP making the headlines with the industrial disaster in the Gulf of Mexico (prior IntLawGrrls posts), many have been asking the question of how and whether giant corporations can be made accountable for their actions.
The fact is that a combination common in the Western world -- tighter laws governing pollution and higher standards -- has not worked. Rather, it has often meant that multinational corporations, which no longer have to respect national boundaries, move elsewhere, where standards are lax and land and labour is cheap.
The growing movement for volunteerism among corporate entities based on corporate social responsibility has had some benefit: it has highlighted the social responsibility that companies have when they invest in a given area. (Prior IntLawGrrls posts) However, it has also allowed many corporations to engage in green-washing their image through the display of sophisticated policies printed in expensive brochures.
A new story that has attracted some attention recently concerns the activities of the Vedanta mining concern, one of Britain’s largest companies, who have built an aluminium producing plant in Orissa, in the east of India. Vedanta now wishes to mine bauxite in the region in order to get the plant running at full capacity.
Orissa is one of India’s least developed states, with some of the poorest people in the world, with many indigenous tribes among them. It has been known for a long time that this part of India holds significant deposits of mineral resources, but with India speeding towards accelerated development, these resources have suddenly become crucial to sustaining growth.
Vedanta maintain that their mining activities would bring jobs and increasing wealth to the local population. However, the indigenous Dongria Kondh tribe strongly oppose mining in their sacred mountains, and are concerned about the environmental impact of this activity in the region. An Amnesty International report issued in February supports their view.) The tribal members argue that they do not want to change their ancestral way of life, and have no interest in the type of development Vedanta has promised them. (credit for photo by Parth Sanyal /Reuters, captioned "A tribal woman with her child near the mining site of the alumina refinery in Orissa state")
From an international legal perspective, the Vedanta story raises several important issues:
► The increased power of transnational corporations has made the seeking of accountability for their actions extremely difficult in environments where they may be able to operate freely, and often with the complicity of the government.
► While globalisation itself cannot be regulated, it is clear that new norm creation activities have been taking place in international law, not least with the presence of the World Trade Organisation.
► However, little of the ethos concerning human development and poverty alleviation feeds into these important discussions.
To address these challenges, my home institution, Middlesex University in London, England, has created an MA programme in Human Rights and Business. The course covers areas of law such as international human rights law and the law of the WTO, and explores the relevance of these areas to multinational corporations -- especially those corporations operating in emerging economies. The modules are deliberately human rights law-centred, and go significantly beyond the concept of corporate social responsibility. The programme itself is tailored for busy professionals with significant online content and class contact restricted to two days a month (Friday-Saturday). More information here.

On July 29

On this day in ...
... 2003, the most notorious of those who led rebels during the 1990s civil war in Sierra Leone, 65-year-old Foday Sankoh, died in custody while awaiting trial before the Special Court for Sierra Leone (logo at right). On March 7 of the same year, that court had issued against the Revolutionary United Front leader an indictment on 17 counts of crimes against humanity, violations of Article 3 common to the Geneva Conventions and of Additional Protocol II, and other serious violations of international humanitarian law. The indictment would be withdrawn on December 8, 2003.

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

Wednesday, July 28, 2010

Open wounds after war

(Delighted to welcome back alumna Jennifer Kreder, who contributes this guest post)

The first major Khmer Rouge defendant has been brought to justice with the 30-year sentence just handed down (left), as posted, by the Extraordinary Chambers in the Courts of Cambodia. (photo credit)
I believe postwar prosecutions for human rights violations are beneficial for victims, but that there are risks as well. When people who have committed heinous crimes get less than the maximum sentence, I think it is foreseeable that many victims will be hurt again. On the other hand, if every defendant gets the maximum sentence, the tribunal will not appear to be objective.
Then, there are other ways to deal with postwar open wounds, such as truth commissions and civil litigation, which may occur in courts beyond the borders of the nation that experienced war (often internal civil war).
I would love to hear others' viewpoints about these issues:
► What do you think is helpful for the individual victims and the nation, and why?
► Should U.S. courts hear postwar claims? If so, when and why?
► Should it depend on the location of victims who fled a murderous regime? Or on the location of their property? Or on whether significant remedies are available in the nation where the war occurred?
► Should it depend on a green light from the executive branch?
I am currently exploring the intersection of the "open wounds" idea and the cultural property arena.
For example, Tuol Sleng (right), the prison where the just-sentenced defendant, known as Duch, led the torture and murder of so many innocents, is now a Genocide Museum.
Part of Tuol Sleng's roof collapsed last week. Some people said the souls of the dead were crying out for justice.
Certain types of property, real property and chattels, have meaning that transcends finances. Caring for such property thoughtfully can help heal postwar wounds, whereas its destruction can feel like new wounds to wartime victims.
Another example of the intersection of human rights, war, and cultural property concerns terrorism and antiquities that were found within the borders of modern-day Iran but now are located in U.S. museums.
In recent years Congress a number of laws purporting to give victims of terrorism means to redress:
► That part of the 1996 Antiterrorism and Effective Death Penalty Act that allows American victims to sue countries designated as sponsors of terrorism; and
► The Civil Liability for Acts of State Sponsored Terrorism Act, a/k/a the Flatow Amendment in honor of victim Alisa Flatow), which authorizes U.S. courts to award money damages to victims of terrorism.
In fact, this legislation has proved ineffectual -- a “sound bite” that has foisted conflicting jurisdictional mandates upon the federal courts, sucked terrorist victims into a vacuous, exhausting drama with no chance for justice, and interfered with the President’s ability to conduct diplomatic relations in the Middle East.
One group of victims is mired in multiple jurisdictions, trying to enforce an extremely large default judgment against the Islamic Republic of Iran by forcing auctions of antiquities like these Persian tablets, housed at the University of Chicago's Oriental Institute. Other collections subject to this complex litigation may be found at, to name a few sites, Harvard University, the Field Museum of Natural History in Chicago, and the Museum of Fine Arts in Boston. Congress, in this political posturing, required the U.S. Department of Justice to participate in the litigation in a way that runs counter to the victims’ interest. The victims likely feel ignored and maligned by their own President, while Congress all along was the master puppeteer of their false hopes. Kimberly deGraaf and I have co-authored an article on the subject, "Museums in the Crosshairs: Unintended Consequences of the War on Terror," forthcoming in the Duke Journal of Comparative & International Law.
No one believes that dealing with property ever will bring back the dead or afford full "justice" to victims. But many of us believe that the symbolism of such property is significant.
Do you have thoughts on these issues?
Can you provide other examples of postwar wounds that need redress to allow healing to occur?


(A version of this post appears at PrawsfBlog)

Nominate ASIL's new leaders

The 2010-2011 Nominating Committee of the American Society of International Law -- chaired by IntLawGrrl and ASIL Past President Lucy Reed, and also including our colleagues Curtis A. Bradley, Susan L. Karamanian, Daniel M. Price, Adrien Katherine Wing, and Sean D. Murphy -- is seeking nominations of ASIL members for election to the leadership posts listed below. Self-nominations are welcome.
ASIL President-Elect, expected to be drawn from the Society's practitioner members, who would begin a two-year term as President beginning in March 2012.
ASIL Vice Presidents, 2 persons to serve 1-year terms typically renewable for a 2d year, taking a leadership role on a Society project. One candidate will be drawn from among academics (to succeed yours truly), the other from among practitioners.
Executive Council, 8 to be chosen to join the Society's chief governing body for 3-year terms, and thus to provide leadership in at least one of ASIL's programs, as well as attend biennial Council meetings.
Counsellors, up to 8 to be chosen from among ASIL's more senior members, to serve 3-year terms as nonvoting members of the Executive Council, attending all biennial Council meetings.
The deadline for nominating candidates for these positions, all of which will be filled by election at the Society's annual meeting next March, is August 15, 2010. Nominations, to be e-mailed no later than that date to 2011LeaderNominations@asil.org, must follow the guidelines detailed here. The Committee will particularly seek to enhance the diversity of the Society's leadership and to nominate those who have evidenced a willingness to contribute time and effort to the work of the Society.

On July 28

On this day in ...
... 1959, voters in Hawaii, which would become the 50th state in the United States the following month, made congressional history by electing Americans of Asian ancestry to 2 of 3 available positions. Republican businessman Hiram L. Fong became the 1st Chinese-American elected to the U.S. Senate from any state, while Democrat Daniel K. Inouye, a decorated veteran who lost a limb in World War II, became the 1st Japanese-American elected to the U.S. House of Representatives from any state. A third Asian-American candidate, the former President of Hawaii's Territorial Senate, lost a bid for the remaining Senate seat by fewer than 4,600 votes out of more than 162,800 cast. (credit for Honolulu Advertiser photo of Hawaii's congressional delegation in 1973; from left, Inouye, Fong, who would serve till 1977, U.S. Rep. Patsy Mink, and Spark Matsunaga) Still a Senator, Inouye was sworn in as "president pro tempore of the Senate, a mainly ceremonial position that ranks third in line of succession to the presidency," just last month.

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

Tuesday, July 27, 2010

The WTO wants YOU!

WTO-detractors have long accused the organization of being a "secret society" where deals are struck in dark, smoke-filled rooms far away from the public eye. Admittedly, the organization has not been very effective in addressing the complaint--at least not in the early years of its existence when a typical response would be that the World Trade Organization is a "government to government" institution. Translated from the bureaucratic-speak, it essentially meant there was no room for public participation. Civil society and the average citizen were expected to liaise with their home institutions rather than with the WTO. But times have changed.
After years of public protests, along with scholarly reflections on the institution's lack of legitimacy precisely because it operated in the shadows, the WTO had a public relations makeover of sorts. The membership changed the rules to allow for public access to some meetings--including dispute settlement meetings--for example, and the WTO began to hold an annual civil society conference meant to serve as a forum for public participation. This year, the organization has taken things one step further and sponsored a contest seeking . . . YOU! That's right, the WTO "invites you to participate in a video contest to tell us your views about the key forces shaping world trade."
So if you ever wondered just how you might give the institution a piece of your mind on their policies and practices, here is your chance. All you have to do is upload a YouTube video and send a link to mailto:%20publicforum2010@wto.org and you could be on your way (don't forget to check out the terms and conditions). I wonder if they'll have the world call in to choose the next WTO-Idol?

Report from the XVIIIth International Congress of Comparative Law in Washington

(Delighted to welcome back alumna Afra Afsharipour, who contributes this guest post)

I am here in Washington, D.C., at the XVIIIth International Congress of Comparative Law (logo at left).
The congress is taking place all of this week, presented by the International Academy of Comparative Law and the American Society of Comparative Law, and hosted by three local law schools, American University Washington College of Law, George Washington University Law School, and Georgetown University Law Center. It is a pleasure to be among such a diverse group of jurists, lawyers, and scholars from around the world. The Academy, which is composed of academics and jurists from around the world, organizes every 4 years in different parts of the world an international congress of comparative law. From my understanding, this is the first time that an international congress has been held in the United States.
The conference got off to a great start today with an opening plenary addressing the "Role of Comparative Law in Courts and International Tribunals." The panel was chaired by the Secretary-General of the International Academy of Comparative Law and Director of the Max Planck Institute for Comparative and International Private Law in Hamburg, Dr. Jürgen Basedow. Representing views from both domestic and international courts, as well as a viewpoint from practice, the distinguished panelists discussed the role of both international and comparative law in their own courts:
► Judge Rosemary Barkett (right), U.S. Court of Appeals for the Eleventh Circuit (for whom I had the privilege of clerking), began by remarking that to some extent comparing laws has some role in all jurisdictions. She presented a historical perspective from the United States to demonstrate that the practice of considering foreign sources is rooted in the legal history and tradition of the United States, citing to the Declaration of Independence, the U.S. Constitution, and the Federalist papers, as well as to numerous opinions from the U.S. Supreme Court. One of Judge Barkett’s most important points was that, as international and comparative scholars, we need to address the definitional problems in comparative law. For example, many jurisdictions espouse allegiance to the rule of law, but what exactly does rule of law entail?
► Justice Sabino Cassese (left), of the Constitutional Court of Italy, next provided three distinct examples of courts looking beyond their own nation’s borders for insights. He emphasized that recourse to comparison by high courts is widespread, and that increasingly supreme courts are acting as comparatists. Justice Cassese emphasized two tasks for comparative lawyers and scholars: one, to examine and evaluate how judges and courts use foreign law; and two, to develop methods and procedures for comparison.
► The presentations of Judge Barkett and Justice Cassese were followed by the practitioner’s perspective, Carolyn Lamm (right), a partner at White & Case in Washington and President of the American Bar Association. She emphasized the importance of looking to other systems for persuasive, not precedential, value. Lamm reminded us of the speech from former U.S. Chief Justice William H. Rehnquist, in a 1989 talk titled "Constitutional Courts -- Comparative Remarks," in which he remarked:

For nearly a century and a half, courts in the United States exercising the power of judicial review had no precedents to look to save their own, because our courts alone exercised this sort of authority. . . . But now that constitutional law is solidly grounded in so many countries, it is time that the United States courts begin looking to the decisions of other constitutional courts to aid in their own deliberative process.
(Reprinted in Germany and Its Basic Law: Past, Present and Future, A German-American Symposium 411, 412 (Paul Kirchhof & Donald P. Kommers eds., 1993). Lamm also cited to the “Obama-Clinton Doctrine” speech that State Department Legal Adviser Harold Hongju Koh delivered to the American Society of International Law annual meeting. (prior IntLawGrrls post) The speech is definitely worth a read.
► Judge Diego García Sayán (right), President of the Inter-American Court of Human Rights, spoke of the role of his regional court with respect to national courts in the Americas. He explained that most Latin American national courts openly and explicitly use judgments of the Inter-American court in their decisions, and that the Inter-American court also has used local and national criteria used by national courts. Judge García Sayán also remarked on the use of international law by the Inter-American court, particularly noting the influence of the jurisprudence of the European Court of Human Rights. While this influence used to be primarily a one-way street, recently the European Court of Human Rights has also looked to the jurisprudence of the Inter-American court for persuasive value.
► Judge Bruno Simma (left) followed by describing his experience on the International Court of Justice and his use of comparative law in an early opinion on the Oil Platforms dispute between Iran and the United States. Judge Simma warned both of the dangers that could befall a comparatist and of comparative law accidents.
The presentations were followed by a dynamic discussion among the panelists on a variety of issues, including the weight to be given to comparative law in judicial opinions and the relationship between international and comparative law.
The opening plenary was followed the rest of the day with various breakout sessions, including the delivery and discussion of general and national reports prepared for the conference. For those of you interested in comparative surveys of various legal issues, the reports should not be missed.
The conference got off to a great start yesterday. Today’s program, which will be held at the George Washington University Law School, promises to be as dynamic as this first day.

On July 27

On this day in ...
... 1990 (20 years ago today), a Declaration of Sovereignty was adopted by the Supreme Soviet of Belarus, naming the Republic of Belarus (map below)
a sovereign state established on the basis of the realization by the Belarusian nation of its inalienable right to self-determination, state-language status of the Belarusian language, and the supremacy of the people in the determination of its destiny.

Thus did the Belarus (prior posts) break from the Soviet Union with which it had been affiliated since the end of World War II. This declaration was among many in 1990, "The Year of USSR Independence and Sovereignty Declarations," as Helsinki Watch, predecessor of Human Rights Watch, called it.

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

Monday, July 26, 2010

Guest Blogger: Aparna Chandra

It's IntLawGrrls' great pleasure to welcome Aparna Chandra (left) as today's guest blogger.
Aparna is a Visiting Professor at the National Law School of India University in Bangalore, from which she received B.A. and LL.B. degrees with honors, as well as numerous awards. She holds an LL.M. degree from Yale Law School, where she is currently pursuing her J.S.D. Aparna has also worked at the National Judicial Academy of India, as a Law Associate and a Research Fellow.
Aparna's areas of scholarly interest include international human rights and civil liberties, gender and the law, and judicial process reform. She also teaches international criminal law.
In her guest post below, Aparna discusses her paper, Gender Dimensions of the Death Penalty in India. Her other publications include several articles. The most recent article, co-authored with her colleague Mrinal Satish, discussed the Indian Supreme Court's approach to terror-related adjudication. Aparna also recently co-authored a report on the implementation of the Protection of Civil Rights Act for the Government of India's Centre for the Study of Casteism, Communalism, and the Law.
Heartfelt welcome!

Gender & the death penalty in India

(Thanks to IntLawGrrls for the opportunity to contribute this guest post)

The Indian Supreme Court has had to grapple time and again with the constitutionality of the death penalty.
The leading decision on the issue is Bachan Singh v. State of Punjab (1980). Here the Court (below right) recognized that there was scope for arbitrariness in the award of the death penalty due to unguided judicial discretion in determining sentences. To rectify this, the Court established a paradigm for guided discretion, and restricted the award of death penalty to the “rarest of rare” cases, where the convict is beyond reform and the option of life is “unquestionably foreclosed”. This conclusion has to be based on an analysis of aggravating and mitigating circumstances pertaining to each individual case.
However, as I have argued in my paper, Gender Dimensions of the Death Penalty in India, the principles by which the “rarest of rare” determination is governed are applied in a manner that devalues the forms and sites of violence commonly experienced by women, as compared to those that are more familiar to the male worldview. Thus is retained the arbitrariness of the death penalty regime.
The principles by which the “rarest of rare” determination is governed are morally contingent, and operate against a backdrop of social norms that justify and legitimate (and sometimes even mandate) violence against certain segments of the society (including women).
For example, courts are required to examine:
► Whether the crime is one of extreme depravity;
► Whether there is any continuing threat to society from the perpetrator; and
► Whether there is any scope for the reform and rehabilitation of the offender.
Mental and emotional disturbance or feelings of moral justification are significant mitigating circumstances.
As I show in my paper, courts do not consider women’s common experiences of violence to be particularly “depraved,” because there are often underlying social justifications that provide a veneer of legitimacy to the infliction of such violence. Killings for honour, shame, love, and lust fall into this category, as do the killings of nagging wives, resisting rape victims, and disappointing lovers. In these instances, courts regularly find that the crimes are not heinous enough to fall within the rarest of rate category -- and thus that the perpetrator does not constitute a continuing menace to society. His actions are seen as an aberration rather than an indication of a “criminal tendency.” In all these cases, the Court is therefore able to determine that the perpetrators would be able to reform and get rehabilitated. Such men are seen as “unlikely recidivists,” because the blame for the offence is shifted to the woman who provided unusual provocation, and therefore “called the crime upon herself,” a common social justification for the infliction of violence in the first place.
It is unfortunate that social justifications translate into legal devices for the perpetuation of violence.
Courts also privilege crimes committed for power, for property, and in the public sphere, over crimes within the family. The distinction drawn by courts creates a form of public/private divide, with the law privileging violence within the former sphere. This is discriminatory, since the most common form of violence faced by women around the world is within the family and by acquaintances. Women have unequal access to property, power, and public spaces. It is therefore much less likely that women will face violence in these contexts than within the home or in intimate settings.
The implication of these findings is not that the death penalty should extend to all crimes. Rather, it is that arbitrariness in the award of the death penalty will not disappear merely by providing a set of principles for determining the award of the death penalty.
At the same time, even if the death penalty were to be removed (as I believe it should be), it has to be remembered that law and punishment serve expressive ends. Patriarchal law reaffirms society’s entrenched views about women’s role and their worth.
By consistently discounting women’s experiences of violence in determining the norms by which a society is to be governed, law threatens to continue and further legitimate the already entrenched notions of hierarchy, discrimination, and violence in society.

Duch gets 35 (- 5) years




So says the presiding judge of the Extraordinary Chambers in the Courts of Cambodia, in Khmer, in this 10-minute video clip of today's verdict against Kaing Guek Eav (alias Duch), about whose trial we've blogged here. The 67-year-old Duch, stoic during the reading of the verdict, was convicted of war crimes, crimes against humanity, murder, and torture, and sentenced to "35 years in prison -- with five years taken off that sentence for time served."
Said Documentation Center of Cambodia Director Youk Chhang (right) of Duch's fate:
'It's clear that he will never be a free man again.'

On July 26

On this day in ...
... 1939, amid the increased tensions that would 2 years later lead to entry into World War II, the U.S.-Japan Treaty of Commerce and Navigation concluded in 1911, was denounced by U.S. President Franklin D. Roosevelt. Once it took effect in 6 months, the move would free the United States to impose an embargo or other economic action against Japan. London's Telegraph reported "wide approval in America, even among the isolationists," while The New York Times wrote of concern in business circles in the United States.

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

Sunday, July 25, 2010

On Art! History & Holocaust claims

(Today alumna Jennifer Kreder contributes another On Art! guest post, prompted by her work in a pending looted-art case; her prior, related posts are here and here)

What judges think of their function and task undoubtedly informs their understanding of their power or jurisdiction.
In a March 3d order denying reconsideration of her January 6th dismissal of the heirs' lawsuit in the Nazi-looted-art case of Grosz v. MoMA, U.S. District Court Judge Colleen McMahon (below right) of the Southern District of New York stated on page 11 that the court was confronted
with a legal, not a historical, question.
This view is a false dichotomizing of the judicial function.
Judges cannot be expected to know intimately the historical context of all cases that come before them. But under precedents like Iqbal, Twombly and their progeny, judges should not ignore widely accepted historical facts when deciding whether a claim arguing that a seemingly voluntary transaction was, in fact, made under duress is “plausible.”
From the very beginning of the Nazi era, law and jurisprudence became a strong component of justification of regulations that deprived “enemies of the State” of their liberty and property, and these deprivations led in turn to mass murder.
Indeed, as documented in Robbing the Jews: The Confiscation of Jewish Property in the Holocaust, 1933-1945 (2008), by a Research Scholar at the Center for Advanced Holocaust Studies of the U.S. Holocaust Memorial Museum, Martin C. Dean, the “legalized” grand larceny became a form of financing the mass murder.
The Führerprinzip demanded unquestioning loyalty to the concentrated power of a “unitary executive.” Both legislators and judges in Nazi Germany participated in the normalization of practices of State grand theft that were engineered to make involuntary transactions appear “ordinary and legal” from the very first weeks of the Nazi regime early in 1933, even before the infamous racist Nuremberg laws of “blood and honor” in 1935, and even before the final push to a “Final Solution.” The U.S. Consul General in Vienna, immediately after the Anschluss of Austria in March 1938, poignantly observed:
There is a curious respect for legal formalities. The signature of the person despoiled is always obtained, even if the person in question has to be sent to Dachau in order to break down his resistance.
Jews were systematically excluded from professions and forced to compile inventories to streamline the despoliation of their property from 1933 to 1942, when Jews had little or no property left to rob, and when the focus turned to “cost-efficient” mass murder in the death camps of occupied Poland.
It is a gross distortion of reality to suggest that the financial despair of Jews in 1933, during widespread, sporadic boycotts and until the passage of the first Nuremberg law in 1935, resulted from a series of isolated private setbacks brought about by generalized, severe financial conditions akin to the Great Depression. The National Socialist platform, adopted as official German state policy as of 1933, was committed to driving Jews and other “enemies of the State” out of economic life.
This is the historical context in which modern claims to Nazi-looted art should be viewed.
Too frequently, some of our judges seem to have forgotten history. In kneejerk fashion, some seem to assume that claims 70 years old simply cannot be viable. This reaction is contrary to history, and to the U.S. executive policy. Consider, in addition to documents on which I earlier posted, this August 27, 1951, statement, "The Recovery of Cultural Objects Dispersed during World War II," by Ardelia R. Hall, the Fine Arts & Monuments Adviser to the U.S. State Department, which appeared in the Department's Bulletin:
For the first time in history, restitution may be expected to continue for as long as works of art known to have been plundered during a war continue to be rediscovered.
The executive branch has not deviated from this position to date.

(A version of this post appears at PrawsfBlog)