Monday, January 31, 2011

On the Job - Center for Reproductive Rights

The Center for Reproductive Rights is seeking a Regional Manager for Europe for their international law program.

The Center for Reproductive Rights (CRR) is a global human rights organization that uses constitutional and international law to secure women’s reproductive freedom. Founded in 1992 and located in New York City, CRR is a nonprofit legal advocacy organization dedicated to promoting women's equality worldwide by guaranteeing reproductive rights as human rights.

The Center is seeking a talented, creative and strategic Regional Manager for Europe to oversee and develop the work of the Regional Program in all areas of program work. The Regional Manager for Europe reports directly to the Director of the International Legal Program and will be required to travel extensively internationally. This position will be based in New York for a minimum of a year and may possibly move to the region after that year.

Responsibilities include, but are not limited to:

  • Developing and implementing short and long-range advocacy and litigation strategy for the Center's work in Europe and maintaining and assessing its effectiveness.
  • Identifying potential strategic litigation cases in collaboration with partner organizations. Developing the factual record and pleadings, researching and writing legal memoranda, amicus curiae and case briefs on transnational and international and regional human rights law and claims for use in national and/or international and regional fora, including the European Court of Human Rights.
  • Providing technical assistance to NGOs, government and parliamentary officials, and other stakeholders on law reform processes at the national level and produce relevant legal and advocacy materials.
  • Participating in and draft reproductive-rights related submissions to UN and regional human rights bodies.
  • Researching and drafting Center publications for stakeholders in Europe and UN bodies.
  • Cultivating partnerships with law firms and law schools to leverage our work. In particular cultivate relationships with firms and law schools based in Europe.
  • Developing and maintaining effective relationships with national and regional partners with a view to collaboration on national, regional and international advocacy and litigation.
  • Developing and supporting capacity building activities on legal and human rights strategies to advance reproductive rights in the Europe region.
  • Representing the Center externally through public speaking and interaction with the media; and assisting in fundraising strategies.
  • Recruiting, managing and mentoring junior staff.
Candidate Requirements: The ideal candidate will be a creative and strategic thinker and have good judgment and excellent analytical capabilities; strong writing skills; the ability to work quickly and effectively under pressure; the capacity to take initiative, prioritize, and pay close attention to detail while juggling multiple tasks; strong coordination skills; and the ability to work effectively as part of a team and in partnership with other organizations.

Applicants must have: A law degree and at least seven years of experience working on legal or human rights strategies. Substantial knowledge of the United Nations and the European human rights systems; familiarity with international and regional human rights law; effective public speaking skills, and excellent writing skills in English, are required; fluency in another UN language is desirable.

To Apply: Send cover letter and resume to: resumes@reprorights.org

The deadline for submitting applications will be March 1st.

Egypt: From Social Networks to Social Movements



Stronger Signals: But From Whom?
Human Rights Watch is calling on the aid donor governments of the United States and the European Union to send strong signals urging the Egyptian government to stop using violence against its own people (see press release here.) Let’s hope any such signals work. The text of a Joint UK-France-Germany Statement appears here, the text of U.S. Secretary of State Hillary Clinton’s televised interview can be read here, and Friday evening’s statement by U.S. President Barack Obama is linked here. Of course, what matters most are the strong and clear signals being sent by the Egyptian people themselves.
Fluid Situation
The remarkable events in Egypt remain fluid. Thousands of peaceful protesters are demanding democratic change. BBC reports indicate that dozens of civilian protesters have been killed or injured by live fire from police and security forces, which Human Rights Watch condemns as violations of international law.
The protests have been predominantly peaceful and the mood among many ordinary Egyptians is cautiously celebratory and hopeful for the possibility of a democratic future.
There are isolated incidents of looting, particularly in poorer areas where there is no national army presence. Some civilian watch groups are forming to protect neighborhoods.
So far, the national army, made up of conscripted Egyptians from all classes, is believed to remain “neutral.” Many protesters see the domestic police forces as allied with the presidency of Hosni Mubarak.
Beyond Information Control
Whatever “signals” are being sent internationally through diplomatic channels, the Egyptian government has impose blackouts on other means of communication including the internet and cellular access (press release.)
As previous IntLawGrrls posts indicate, information technology and social networks have been central to communication and organizing in recent popular uprisings, mass disaster response, elections monitoring, and political dissent in places like Tunisia, Algeria, Haiti, Iran, Kenya, China, and elsewhere. (See our North Africa series and our posts here, here, here, and here.) Obviously, this is equally true in Egypt.
Ironically, and even necessarily, the rise of new media is occurring just as international old media is suffering from severe budget cuts, the withdrawal of foreign correspondents, and the closure of foreign desks. See, for example, this story about budget cuts to the World Service of the BBC.
From Social Networks to Social Movements
Protesters and their relatives and friends outside Egypt used social networks like Facebook and Twitter to provide up-to-the- minute information about where to assemble and about police crackdowns. They texted, e-mailed, and used Skype to let each other know that they were safe. Smartphones recorded both peaceful events and injuries to civilians on the streets; YouTube posted the video clips. Bloggers, of course, posted everything they could get their hands on. Others stayed glued to the Al-Jazeera television network for round-the-clock visual images of the protests and abuses.
Rather than change their behavior, some governments still try to hide by blocking the internet. But, as discussed on today’s broadcast of CNN’s “Reliable Sources,” creative bloggers, tweeters, e-mailers, social networkers, and even Old School ham radio operators the world over often find ways around government attempts to silence the peoples’ voices.
Knowing About Rights
Oddly, it seems that governments never learn that people already know that they have basic rights . They may not know the names of treaties or declarations or principles. They may not know how to translate international norms into domestic constitutional provisions or state and local statutes. They may not concern themselves with the best ways to balance state and private obligations or how to present legal arguments on the most effective remedies before judicial or administrative bodies. Hopefully, lawyers, judges, and legal scholars working at their direction can assist in that regard.
Still, ordinary people know when they are prevented from saying what is on their minds. They know when their children cannot attend school. They know when only certain favored classes benefit from government programs or from natural resources or job opportunities. They know when women, minorities, and children are scapegoated and mistreated. They know when an election is not really an election. They know when their homes are inadequate or non-existent. They know that they should not be beaten up, tortured, abused, raped, or shot.
Lawyers and human rights activists can, therefore, also work in solidarity with people to ensure that such rights are respected, protected, promoted, and fulfilled by powerful actors. This must be so not only for elites in palaces and high places in Geneva, Washington, London, and Paris, but also in small jail cells, apartments, and streetcorners in Cairo, Kingston, Beijing, Chicago, and Ciudad Juarez.
The Right to Self-determination, the Right to Know, and More
This latest version of a new social movement seems to have taken the international media and pundits by surprise. Yet the hopes and dreams of the people in the streets sound very familiar even though new and unpredictable technologies and consequences may surround them.
People throughout the region appear to be marching for the realization of the full range of familiar human rights (civil, political, economic, social, and cultural) outlined in the International Bill of Rights.
Nevertheless, I excerpt below only a few articles from the International Bill which seem to be particularly relevant to the Egyptian crisis at the moment.
Universal Declaration of Human Rights
Freedom of Opinion and Expression
Article 19
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Freedom of Assembly
Article 20
(1) Everyone has the right to freedom of peaceful assembly and association…
The Right to Political Participation
Article 21
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
The International Covenant on Civil and Political Rights
The Right to Self-determination of Peoples
Article 1
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
Helpful Resources on Egypt, Human Rights, and Internet Access
Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (main page for UN expert)
Egypt (Office of the High Commissioner for Human Rights country homepage)
2009 Human Rights Report on Egypt (U.S. Department of State, 10 March 2010)
Egypt (Human Rights Watch continuously updated page)
"Egypt Women Blog For Their Rights" (BBC News, 18 March 2009)
Association for Progressive Communications (coalition advocating for increased grassroots digital access)
My heartfelt thanks to Northeastern University School of Law Research Assistants Melissa Joyce and Gil Rochbert and to Northeastern University undergraduate Research Assistant Nicholas Martin.
(Photo: UN Photo. Boys working in carpet factory in Egypt)

Go On! Religion & International Law

Santa Clara University School of Law's annual international law symposium will be on the topic of "Religion & International Law."
The event will be Friday, Feb. 18 and Saturday, Feb 19, 2011 in the California Mission Room, Benson Center, Santa Clara University.
The Symposium homepage is here. Online registration may be undertaken here (MCLE credit is available). The papers and proceedings will be published in our Journal of International Law.
The Symposium is organized around a series of papers by our main presenters as well as commentary from other experts. The full schedule is here.
Speakers and commentators include (full bios are here):
Lama Abu-Odeh (Georgetown) (top right)
Peter Danchin (U. Maryland)
Haider Hamoudi (Pittsburgh)
IntLawGrrls guest/alumna Saira Mohamed (Berkeley Law) (top left)
Anissa Helie (John Jay College of Criminal Law & International Solidarity Network of Women Living Under Muslim Laws)
► Dr. Hisham Hellyer (Warwick)
Asifa Quraishi (Wisconsin) (middle right)
Brett Scharffs (Brigham Young)
Shadi Mokhtari (American) (middle left)
► Dr. Manisuli Ssenyonjo (Brunel University)
Seval Yildirim (Whittier) (bottom right)
IntLawGrrl Karima Bennoune (Rutgers-Newark) (bottom left)
The keynote speaker is Robert Steiple, the first ever U.S. Ambassador-at-Large for International Religious Freedom.
Hope to see you there!

On January 31

On this day in ...
... 2006 (5 years ago today), Sandra Day O'Connor completed her last day as a Justice of the U.S. Supreme Court, nearly a quarter-century after she'd become the 1st woman to hold that position. It'd be an overstatement to say that O'Connor (right) "retired," however, for the former Justice has remained active. (photo credit) Among other things, she's: written the Senate to support CEDAW, the Convention on the Elimination of All Forms of Discrimination Against Women that the United States has signed but not ratified; campaigned for an end to the election of state judges; served on a task force on the International Criminal Court convened by the American Society of International Law; and interviewed Justice John Paul Stevens, her just-retired colleague, for Newsweek.

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

Sunday, January 30, 2011

Carte postale de Paris

(Delighted to welcome back alumna Leila Nadya Sadat, who contributes this guest post)

Greetings from Paris, where this semester I am the Alexis de Tocqueville Distinguished Fulbright Chair. The first woman to receive the Chaire Tocqueville, I will be in residence in Paris throughout Spring 2011, teaching at the University of Cergy-Pontoise.
I’ve started a blog to chronicle my experiences here. I’ll be focusing on comparative approaches to international law and, in particular, international criminal law and the International Criminal Court. My blog, titled An American in Paris and now one of the “connections” in the list at IntLawGrrls’ righthand column, already has a few posts. I plan to cover legal and non-legal topics of interest during my tenure as a Fulbright, as well as commentaries on academic life abroad.
Please feel free to drop in!

Go On! Global impact/Sacramento

(Go On! is an occasional item on symposia and other events of interest)

"The Global Impact and Implementation of Human Rights Norms" is the theme of a symposium to be held March 11 & 12, 2011, at the University of the Pacific McGeorge School of Law in Sacramento, California.
To be discussed is the growing incorporation of human rights norms "into the development of substantive law in fields as diverse as labor law, intellectual property, and armed conflict."
Among the Pacific McGeorge faculty who will moderate is IntLawGrrls guest/alumna Linda Carter.
Panelists will include Dinah Shelton, Vice President of the Inter-American Commission on Human Rights; Justice Richard Goldstone, who's visiting this semester at Stanford Law School; Judge Fausto Pocar of the International Criminal Tribunals for the former Yugoslavia and Rwanda; and law professors Svitlana Kravchenko (University of Oregon), Kristen Jakobsen Osenga (University of Richmond), Adrienne Stone (University of Melbourne), Kristen Boon (Seton Hall), and Sabine Schlemmer-Schulte (Pacific McGeorge).
Details and registration here.

On January 30

On this day in ...
... 2011 (today), Californians will mark the 1st annual Fred Korematsu Day of Civil Liberties and the Constitution. Korematsu was born in Oakland on this day in 1919. Though an American citizen, he, like hundreds of thousands of other persons of Japanese heritage, was interned by the United States during World War II. As we've posted, his conviction for refusal of U.S. orders was sustained by the U.S. Supreme Court in 1944. It was set aside by write of coram nobis in 1984, and 4 years later Korematsu received the Presidential Medal of Freedom (left). (photo credit) The day in honor of Korematsu, who died in 2005, was established last fall following unanimous votes in both house of California's legislature.

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

Saturday, January 29, 2011

The Contours of Law of War Detention

My institution recently co-hosted with the International Committee of the Red Cross an intensive workshop on International Humanitarian Law for law students. At left, is Lt. Colonel Chris Jenks of the Office of the Judge Advocate General teaching conflict classification.
This was the fifth annual such workshop, which focuses on lectures and hands-on exercises to elucidate the principles and challenges of applying humanitarian law to contemporary armed conflicts. In the past, the Workshop has culminated with a multilateral negotiation and drafting exercise focused on the intersection of acts of terrorism and the law of armed conflict. This year, participants engaged in a role play (two photos at right) in which they made comments before the House Armed Services Committee Subcommittee on Terrorism, Unconventional Threats, and Capabilities on a domestic law-of-war detention draft statute entitled the "Law of War Privileged and Unprivileged Belligerents Preventative Detention Act of 2011."
The exercise required students to debate a number of foundational issues, including:
  1. The definition of "armed conflict" to distinguish law of war detentions from other forms of administrative and punitive detention that the United States might engage in.
  2. The definition of "battlefield" to enable authorities to distinguish between battlefield detentions (which could be effectuated for short periods of time with minimal process) and detentions made outside of the battlefield. The draft language defined "battlefield" a number of alternative ways, including with reference to active zones of conflict (e.g., Iraq, Afghanistan, and the FATA areas of Pakistan), but also more generally as any area in which hostilities or acts of terrorism are regularly planned or launched and in which belligerents are billeted or trained. This is the topic of Laurie Blank's (Emory) research, as we've featured here.
  3. The definition of "member," to account for the fact that membership in Al Qaeda, the Taliban, or "associated forces" was one contemplated ground for detention. The draft legislation also grappled with how a detainee could demonstrate that any prior membership relationship had been terminated, as by desertion, withdrawal, or discharge.

  4. The definitions of "privileged" and "unprivileged" belligerents and differential detention regimes for each. The former was defined with reference to the categories enumerated in Article 4 of the Geneva Convention. The latter was defined with reference to both membership in enumerated and unenumerated groups as well as on conduct grounds. The legislation listed various forms of conduct that might constitute grounds for detention, including acquiring terrorist skills, possessing a thing that is connected with a hostile act, providing substantial support to any hostile or terrorist act against U.S. armed forces or coalition forces, and directly participating in hostilities against the United States or coalition partners without the privilege of doing so. In preparing these competing formulations, we drew on definitions of "enemy combatant" that have been employed in post-9/11 military orders, legislation, and jurisprudence as discussed here.

The legislation was premised on a three-phase detention regime:

  • Phase one involved a short (48 or 72 hours) battlefield detention that could be effectuated by any member of the U.S. armed forces (or member of a coalition force) pursuant to a minimal burden of proof. Extensions were contemplated in exceptional circumstances upon the order of any commanding officer.

  • Phase two, continued detention, would only follow a hearing before a Review Board (whose precise composition was in dispute). The government would be subject to a higher burden of proof at this stage, with possible standards ranging from preponderance of the evidence to compelling evidence. Phase 2 was subject to periodic review (6 months was proposed in keeping with the security detention regime envisioned by the Fourth Geneva Convention).

  • Stage three, so called extended detention, would follow after an undetermined number of periodic reviews and would be subject to an even higher burden of proof. Students also debated whether periodic review should be automatic or subject to some showing of changed circumstances or new evidence.

  • Students also debated a provision that would dissolve all detention orders after ten years.

Some members of the Committee were designated as opposed to the legislation altogether; accordingly, they argued that the original Authorization to Use Military Force (AUMF) provides all the detention authority the United States needs going forward. Other testified that it is harder to justify contemporary detentions under the 2001 AUMF, especially where individuals are detained far from Afghanistan. In addition to these substantive provisions, students also discussed various procedural issues concerning conditions of detention, the handling of classified information, and access to the outside world.

Now that they have had a chance to grapple with such specifics, the students involved in this exercise will no doubt be in a better position to evaluate President Obama impending Executive Order on indefinite detention to govern current detainees.

Post-Conflict Justice Survey Invitation

If you are now working or have ever worked in the field of post-conflict justice, you are invited to take part in a survey about your work experiences. You can take the survey in English here or in French here. Those who have worked on accountability (trials, international/hybrid criminal tribunals, truth and reconciliation commissions, and so on) and those who have worked on post-conflict rule of law are all welcome to participate.The survey should take only about 15 minutes to complete, it is anonymous, and participants are eligible to win a $100 amazon.com gift card. (We've given some away already!) More details are discussed in my earlier post about this study.
To those of you who have already completed the survey, thank you! If you haven't taken it yet, please take a few minutes to fill it out and help us understand this growing area of international law. And of course, you are also welcome to forward this invitation to your post-conflict justice colleagues and friends.
This survey is part of a research study that I am conducting. If you would like any additional information, you can contact me directly at ebaylis@pitt.edu.

Displaced

Probably not the ad placement this tourism company was hoping for.
News on Egypt -- the latest country in North Africa to take to the streets -- here, there, everywhere.

On January 29

On this day in ...
... 1996 (15 years ago today), in a statement televised live, French President Jacques Chirac announced that his country no longer would test nuclear weapons. He made the announcement several months after the resumption of French tests, and "a day after France exploded its sixth and biggest nuclear device in the South Pacific." (credit for October 1995 photo of wave from French nuclear test at Mururoa atoll) On September 24, 1996, France would sign the Comprehensive Test Ban Treaty; a couple years later it ratified that treaty, which cannot enter into force until all nuclear powers join it. (prior post)

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

Friday, January 28, 2011

"Judicial restraint" chez le Conseil

Today the Conseil constitutionnel rejected a challenge to French law that prohibits same-sex marriage.
Plaintiffs identified only as Corinne C. et Sophie H. had contended that Articles 75 and 144 of the Code Civil (in English here) -- each of which designates that the couple to be married will be compsed of a man and a woman -- denied them rights and liberties guaranteed by the French Constitution.
Invoked was Article 6 of the 1789 Declaration of the Rights of Man and the Citizen (available here in the original French), which, in English translation, sets out the principle of equality:
Law is the expression of the general will. Every citizen has a right to participate personally, or through his representative, in its foundation. It must be the same for all, whether it protects or punishes. All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities, and without distinction except that of their virtues and talents.
The 6-man, 2-woman Conseil (prior posts here, here, and here) articulated as its basis for sustaining the ban on same-sex marriage a structural / separation-of-powers / judicial restraint argument. It's an argument that American constitutionalists will find rather familiar.
Pivotal was ¶9 of the 11-paragraph judgment styled Mme Corinne C. et autre [Interdiction du mariage entre personnes de même sexe]. Per loose translation by this 'Grrl, ¶9 repeated the gist of Article 6 quoted above, then continued with additional considerations:

► The principle of equality is not contravened by legislation that regulates different situations in different fashions, nor by certain inequalities adopted in the general interest, provided that the resulting difference in treatment bears a direct relationship to the goal underlying the legislation;
► In maintaining the principle according to which marriage is the union of a man and a woman, the legislature, exercising power granted by Article 34 of the Constitution, has deemed that the difference of situation between same-sex and opposite-sex couples can justify different family law rules;
► It is not for the Conseil constitutionnel to substitute its judgment for that of the legislator respecting the nature of this difference of situation;
► For these reasons, the complaint is dismissed.

With that, it would seem, French marriage-equality advocates must move chez le Parlement.

Some Thoughts on Securing the Future of the European Court of Human Rights

It is cliché at this point to say that the European Court of Human Rights (left) is in crisis: we all know that it faces an enormous backlog of applications and that, in spite of the new arrangements introduced by Protocol 14 (once Russia finally ratified it…), these problems are persistent and serious.
Last year there was a meeting in Interlaken to try to come up with some solutions to these difficulties and, in particular, to try to design and envision mechanisms by which the future of the Court could be secured. I blogged about that conference and the Declaration that emerged briefly at the time, and indeed Alistair Mowbray has produced a really excellent overview of both for the Human Rights Law Review which people with access to Oxford Journals can download here.
However, in my view the Interlaken process and the declaration that followed it singularly failed to come properly to grips with what I think is a fundamental element of the challenge faced by the Court: the expectation (quite widespread) that the Court can continue to function as both a constitutionalist court and an adjudicatory court where individuals are at the blunt end of actions that have been clearly—and often repeatedly—found to violate the Convention in Strasbourg jurisprudence. In a paper that I’ve posted as a working paper on SSRN (download free here) and which will appear in final form in the Irish Human Rights Law Review, I argue that persisting with this ‘dual functionality’ poses a serious difficulty for securing the Court and that, in fact, its constitutionalist function ought to be privileged over the adjudicatory one. I want to outline a few of the reasons for this here.
At bottom my argument is that the Court continuing with this dual functionality and especially with having to deal with repetitive applications (which is widely recognised as being problematic) is damaging it, not just because it means there is a huge volume of applications with attendant delay and cost, but primarily because it means that the Council of Europe, domestic political systems and domestic courts can continue to use the Court as a kind of an ‘escape hatch’ from having to properly internalise and apply the principles and judgments of the Convention and Court.
► First of all expecting the Court to continue to deal in some way with non-constitutionalist repetitive applications absolves the Council of Europe from really placing firm political pressure on states that are engaging in activity and behaviour that clearly violates the Convention. It means, in essence, that rather than using international political processes to reinforce and make effective the principles of international law, the Council can (and does) marginalise human rights enforcement by its member states in the comfortable knowledge that the Court will adjudicate on potential violations following which the Committee of Ministers will supervise execution of the judgments. In the article I put it thus:
As we know, the judgments of the Court are binding only on the states that are party to them but of course the principles outlined therein (especially in constitutionalist cases) have implications beyond those state parties. The only way in which the importance of those principles can be fully appreciated by member states within the Council of Europe is through an appropriate level of inter-state interaction, encouragement, reputational trading, and other typical international relations processes. It is incumbent upon states to ensure that compliance with the judgments of the Court and the principles of the Convention is an expected course of behaviour from all member states and, almost more importantly, that failure to do this is subject to political sanction quite apart from the juridical processes of the Court.
► Secondly I say that the adjudicatory function of the Court allows for national political systems—especially but not limited to parliaments—to sideline Convention issues if they wish to. This is especially the case, I think, where a state has a law or norm that is analogous (or, indeed, sometimes identical) to one in operation in another state and that other state had been censured by the Strasbourg Court in relation to the law or norm in question. In those situations one would expect that a state would try to remedy the situation before a case comes before the Court, especially where it a near certainty that if the State does appear before the Court in relation to same it will be found to be in breach of the Convention. This is something we are all too familiar with in Ireland, where we have failed to take action in response to cases against other states when our own law is clearly analogous to the one impugned: one need only think of Norris v Ireland (ECHR 1988) for an example from our past. In the piece I try to foresee what impact refocusing on constitutionalism would have on situations like this:
So what would happen if the European Court of Human Rights were to refocus its efforts on constitutionalist cases so that these repetitious applications would be greatly reduced? In the first place we might expect a greater degree of inter-state political pressure for change within the Council of Europe as considered above; secondly we might see the energies of NGOs that currently apply substantial amounts of energy (and, indeed, resources) to supporting litigants in taking cases ‘to Europe’ could redirect those efforts and resources towards the domestic political processes (which is, after all, where substantive legal change ultimately takes place); thirdly we might see the development of a further and more mature relationship with the Convention within legislative processes. I have written before, with Cliona Kelly, of the failure of the Irish legislative processes to internalise the Convention in an effective manner. Would removing the ‘security blanket’ of the Court’s adjudicatory function (that allows domestic politico-legal processes to abdicate the responsibility to take the Convention and the decisions of the Court into full and appropriate account), combined with real inter-state rights-based scrutiny within the Council of Europe and potentially more well-resourced NGOs putting pressure on the domestic systems, in fact improve the Convention’s effectiveness? I think that is at least a likely outcome.
► And finally I argue—along somewhat the same lines—that reducing or removing the adjudicatory function might invigorate judicial engagement with the Convention, and especially the process of developing autonomous understandings thereof:
[R]ather than considering themselves incapable of developing the Convention beyond the standards outlined by the Strasbourg Court…and being able to rely on the European court of Human Rights to ‘nudge’ them step-by-step along the way…domestic courts would be incentivised to develop their own autonomous understandings of the Convention. Those understandings would, of course, be framed within the constitutionalist principles laid down by the Strasbourg Court, but they would truly entrench the Convention within the domestic legal system.
The Interlaken Declaration did not, I think, engage seriously enough with the problematic nature of the dual functionality of the Court to be able to set in motion a process that would really secure the future of the Court.
A shift away from adjudicatory function (especially in repetitious cases) and refocusing towards constitutionalism would not be easy. Certainly there is a huge pressure from many, including the NGO community, to maintain individual adjudication as central to the Court and I can entirely see the motivation for this. But I think it’s a little bit like a negative circle: we need an adjudicatory court because states won’t embed the constitutionalist principles it espouses but maintaining adjudicatory functions takes away many of the incentives that are required to ensure full internalisation of the Convention in domestic legal and political systems. This is absolutely a quandary, and one that I think is very difficult to emerge from. My piece is trying, at least, to think through some of the elements of that quandary.
There is still time to make changes to the paper before publication and any comments are most welcome!

(Cross-posted at Human Rights in Ireland)

'Nuff said

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


'Surely there are women who could make up a third of attendees.'

-- Author/activist Marie Wilson (below right), quoted in a Bloomberg article critical of the failure of the Davos World Economic Forum yet again to include at least 30% women in its gatherings. That figure, the article said, is the critical mass, the tipping point, "the level social scientists have found integrates women’s points of view into discussions." A "new policy to attract more women executives" to the annual gabfest in the Swiss Alps -- about which we've previously posted here, here, and here -- seems to have boosted the percentage to "close to 20 percent this year, up from 16 percent last year."

On January 28

On this day in ...
... 1986 (25 years ago today), as thousands watched at Cape Canaveral, Florida, a U.S. space shuttle exploded soon after its launch. The worst accident in NASA history, the Challenger explosion claimed the lives of all 7 astronauts, among them Christa McAuliffe, 37, "a high-school social studies teacher from New Hampshire," who'd won "a nationwide competition to be the first private citizen to fly aboard a space shuttle." (credit for photo of McAuliffe, standing 2d from left, along with fellow astronauts: left to right in front row, Commander Michael J. Smith, Dick Scobee, and Dr. Ronald McNair; standing, Lt. Col. Ellison Onizuka, Gregory Jarvis, and Dr. Judith A. Resnik) No humans would again travel in U.S. space vehicles until September 1988.

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

Thursday, January 27, 2011

Write On! Student Writing Competition - Deadline Monday

One of the events celebrating Santa Clara University School of Law's centennial is its Centennial Writing Competition. The competition invites submission of original, unpublished scholarly papers on the topic of "future ethical challenges lawyers may face" in the areas of
  1. intellectual property law,
  2. international law or
  3. public interest law.
These topics correspond to Santa Clara's three areas of concentration.
There is a cash prize of $1,000 for the winning entry in each category, plus an additional $1,000 prize for the overall winner, and all three winners will be invited to present their papers and receive their prizes at an event on campus. The winning paper will also be considered for publication in the Santa Clara Law Review.
The deadline for submissions is Monday, January 31, 2011, at midnight Pacific Time.
For detailed information about the competition and how to submit entries, see here. For further information, contact centennialwriting@scu.edu.

Guest Blogger: Megan Fairlie

It's IntLawGrrls' great pleasure to welcome Dr. Megan Fairlie (left) as today's guest blogger.
An Assistant Professor of Law at Florida International University College of Law, Megan's currently a Visiting Assistant Professor at Albany Law School. She previously taught on the LL.B. and LL.M. programmes at the University of Ulster in Belfast, Northern Ireland, where she was a member of the Transitional Justice Institute, under the directorship of IntLawGrrl’s guest/alumna Fionnuala Ní Aoláin. Prior to teaching in Belfast, Megan was a doctoral fellow at the Irish Centre for Human Rights, National University of Ireland, Galway, where she earned her LL.M. in International Peace Support Operations and her Ph.D. in International Human Rights Law. Megan has since returned to Galway a number of times to teach at, the Centre’s International Criminal Court Summer School. Megan earned her J.D. with honors from Washington and Lee University School of Law, Lexington, Virginia.
She teaches courses including Criminal Law, Criminal Procedure, International Criminal Procedure and a seminar on the International Criminal Court, and her publications reflect those specialties. In her guest post below, Megan writes about her forthcoming article on the relationship between the United States and the International Criminal Court.
Megan sits on the board of Self Help Africa-USA, a charity is designed to assist rural communities in Africa to become self sustaining. It focuses in particular on supporting women via business and microcredit programs.
Heartfelt welcome!

Whither now the United States & the ICC?

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

The relationship between the United States and the International Criminal Court has recently come full circle. The United States has transitioned from being an ICC supporter to opponent, and back again, in little more than a decade. The current climate -- of “positive and principled” U.S. engagement with the Court -- represents a dramatic change from the United States’ formerly hostile position. (credit for June 2010 photo of U.S. State Department briefing on ICC) The new reality includes:
► Active involvement with the Court’s Assembly of States Parties;
► U.S. promises to assist with ICC prosecutions; and
► An ICC President who is now “very optimistic and hopeful” about the prospect of the United States ultimately joining the Court.
How likely is the possibility of U.S. accession to the ICC Statute?
This is the question that I address in my new article, "The United States and the International Criminal Court Post-Bush: A Beautiful Courtship, but an Unlikely Marriage," forthcoming in the Berkeley Journal of International Law. My conclusion, evidenced in the article’s title, is unlikely to surprise. What may prove unexpected, however, is the reasoning behind it.
The crux of my argument does not turn upon any of the concerns historically raised by U.S. opponents of the Court. To the contrary, I first illustrate why much of the early anti-ICC rhetoric has been neutralized by the Court’s work to date. For example:
The Prosecutor: The standard contention that the ICC Prosecutor is likely to target U.S. nationals is difficult to sustain when viewed through the lens of current practice. The reality is ICC investigations have thus far—and not coincidentally—aligned with U.S. foreign policy interests. ICC Prosecutor Luis Moreno-Ocampo (right) has likewise demonstrated a noticeable hesitancy to employ his power to trigger the Court’s jurisdiction, the would-be tool for those oft-anticipated “politicized prosecutions.”
Instead, the Prosecutor has embraced the sovereignty-friendly practice of self-referrals (referrals made by states of situations on their own territories). He has only once triggered the Court’s jurisdiction himself, and only then with the apparent support for this proprio motu exercise from both the territorial state (the Republic of Kenya) and the United States.
Aggression: Another source of U.S. anxiety—the Court’s subject matter jurisdiction over the crime of aggression—was put to rest during this year’s Review Conference of the Rome Statute, about which many IntLawGrrls have posted. Noting U.S. dissatisfaction with the recently adopted definition of the crime (prior IntLawGrrls post), I explain why these perceived flaws are ultimately of little significance to U.S. interests. The Court’s ability to exercise its jurisdiction over alleged acts of aggression is the crucial factor.
In this respect, the United States has found a friend in new Article 15 bis. The provision both insulates nationals of non-member states from the Court’s aggression prosecutions and allows state parties to opt out of the Court’s aggression jurisdiction (which, presumably, the United States would do, should it ultimately ratify the Rome Statute). As such, a U.S. national can be tried for aggression at the ICC only through a U.N. Security Council referral, an unlikely possibility that would require at least tacit U.S. approval.
These and other developments help to account for the present U.S. position and illustrate why, assuming status quo, U.S. support for the Court will likely continue.
What, then, is the barrier to the burgeoning U.S.-ICC relationship?
Simply put, it is that the ICC does not appear poised to fulfill its intended and self avowed role as a “court of last resort.”
Contrary to the United States’ longstanding and clear preference for justice at the national level, the Court’s jurisprudence makes clear that the ICC is in no way limited to acting only when there is no alternative forum for investigation or prosecution.
At the heart of the cases I consider is the principle of complementarity, a fundamental aspect of the Court’s Statute commonly thought to mean that the ICC can intervene only if a state with jurisdiction is unwilling or unable to carry out an investigation or prosecution. This definition of complementarity is so prevalent it appears in the latest edition of Black’s Law Dictionary.
A 2009 ICC Appeals Chamber decision, however, definitively rejects this interpretation. According to this Appeals Chamber decision in the case of Prosecutor v. Katanga and Chui, the Court’s ability to act is limited by the principle of complementarity only if national proceedings are being (or have been) conducted. In the absence of any domestic activity, there is, in the Chamber's view simply no impediment to case admissibility.
As I explain in the article, “inaction admissibility” has many sides. Among them:
The Good: Recalcitrant states cannot, by doing nothing, shield perpetrators of atrocities from ICC prosecutions.
The Bad: As applied thus far, inaction admissibility may discourage otherwise “willing and able” states from fulfilling their responsibility to investigate and prosecute international crimes. States that prefer for the Court to do the heavy lifting can make this happen by simply referring a situation and then doing nothing.
The Ugly: The Appeals Chamber in Katanga and Chui, a case arising out of the situation in the Democratic Republic of Congo, has given the ICC Prosecutor a veritable blank check to target individuals who are already the subject of relevant (perhaps even identical) national proceedings. Provided that the domestic proceedings are terminated in a timely fashion, and in favor of the ICC prosecution, a case is considered admissible due to “inaction.”
Quite obviously, the second and third points (combined with other factors discussed in the article) spell trouble for the prospect of U.S. ratification.
The absence of any limitations on inaction admissibility means that the Court may address, and perhaps is presently addressing, matters that could be prosecuted at the national level. As long as inaction admissibility remains ripe for abuse in this way, the United States will have a compelling reason not to assume the role of the Court’s leading funder.
Accordingly, the article concludes by isolating the factors that have brought this problem to the fore and discussing what can be done to remove this new impediment to U.S. accession.
The full paper is posted here. I welcome your comments!

Write On! Transnational law/Toronto

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

The Osgoode Hall Graduate Law Students Association, made up of LL.M. and Ph.D. candidates, seeks papers for its conference entitled No Boundaries: Transnational Law and a New Order of Global Governance, to be held May 9-10, 2011, at Osgoode Hall Law School, York University, Toronto, Canada.
Anchoring the conference -- slated to examine whether transnational law has included the ways states behave -- will be keynotes by Law Professors Jan Dalhuisen (King's College London) and David Hunter (American University).
Specifically welcomed are

papers that engage in questions of 'boundaries', particularly those with a focus on models of governance and transnational law. We are interested in a broad range of work dealing with the financial markets (commercial, banking and financial law), environmental protection, administrative law, corporate governance, corporate social responsibility, tax, e-commerce, intellectual property, women's studies, trade, human rights, crisis and emergency planning, labour and employment, health, disability, historical conceptions of regulation and governance, reflections upon the nature and operative conditions of governance, the relationship between state sovereignty and regulatory authority. Papers with an interdisciplinary focus and from graduate students in other disciplines are strongly encouraged.

Abstracts should be submitted no later than February 21, 2011 (another website said February 7, so get them in sooner rather than later.) Details on submission, the conference, etc., here.

On January 27

On this day in ...
... 1951 (60 years ago today), the United States conducted its 1st atomic-bomb test at Nevada Proving Ground, "a large swath of unpopulated desert land 65 miles northwest of Las Vegas" designated for the purpose by the Atomic Energy Commission. (photo credit) The "tremendous explosion" from the atmospheric test caused a "flash ... seen as far away as San Francisco." Within years testing, which had included exposing soldiers to radiation for study purposes, changed:
By 1957, though, the effects of radioactivity on the soldiers and the surrounding population led the government to begin testing bombs underground, and by 1962, all atmospheric testing had ceased.

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

Wednesday, January 26, 2011

Read On! Once (& future?) Haiti

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

A long-exiled leader's come home and offered to save his country -- if only someone would free up his assets, frozen for the last year.
Suspicious, but not sure why?
Good time for a good read of The Comedians, the 1965 novel in which Graham Greene painted a picture of the Haiti of the time.
It was, as Greene famously wrote, a "Nightmare Republic" (p. 50), in which paramilitary thugs in dark glasses -- nicknamed after evildoers of Haitian folklore, the Tontons Macoutes -- served the ends of a corrupt regime by killing, maiming, terrorizing, anyone, anytime. Among those caught up were Graham's "comedians," 3 of the many outsiders who, in myriad ways, mired themselves in Haiti's woes.
At the head of that nightmare regime?
François Duvalier, known to all as "Papa Doc" (below, far left). Once a respected physician, following his election in 1957 he ruled with an increasingly brutal hand until his death in 1971. Succeeding him was his son Jean-Claude (below, near left), whose 15-year regime likewise was marked by killings, torture, and corruption. (photo credit)
As Hope posted, it is that son, "Baby Doc," now 59, who's returned to Port-au-Prince. And though prosecutors may thwart his goal, it seems he wishes to play a self-styled, and highly suspect, role of Haiti's savior.

Declaration on the Rights of Indigenous Peoples

Many thanks to our friend and colleague Rita Maran (left), a lecturer on Human Rights at U.C. Berkeley and president of the United Nations Association-USA East Bay Chapter, for bringing to our attention a recent development in indigenous rights. (Long-time readers will recall we celebrated Rita's birthday a few years back with a poem...). Rita writes:

The United States recently "lend[ed] its support" to the Declaration on the Rights of Indigenous Peoples (DRIP). The US had not voted for the Declaration when the General Assembly adopted it in 2007. Canada, Australia, and New Zealand also did not vote Yes at that time, but all three states have since endorsed the Declaration; the US is the latest and last. It must be remembered that the Declaration is not a treaty, and is therefore not legally binding. President Obama announced this "change of position," attributing it in part to Native Americans' persuasion and perseverance on the issue.
President Obama told the White House Tribal Nations Conference in December 2010:
But I want to be clear: What matters far more than words -- what matters far more than any resolution or declaration -- are actions to match those words. That's the standard I expect my administration to be held to.
For complete details: Announcement of U.S. Support for the United Nations Declaration on the Rights of Indigenous Peoples" Statement by U.S. Government December 2010.

On January 26

On this day in ...
... 1961 (50 years ago today), Dr. Janet Travell became the 1st woman to serve as White House physician when John F. Kennedy (near left), sworn in as President just a few days earlier, named her his personal physician. Travell (far left) had earned degrees from Wellesley and Cornell, and was a professor of clinical pharmacology at Cornell. She'd been the pain-management physician for Kennedy, who suffered from severe back problems, since 1955. Travell died at age 95 in Boston, in 1997.

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

Tuesday, January 25, 2011

News flash: Ghailani gets life

A federal trial judge in New York just gave a former Guantánamo detainee the maximum sentence of life imprisonment following his November conviction for an offense related to the 1998 U.S. embassy bombings in Kenya and Tanzania. (photo credit) As this 'Grrl wrote last November respecting the conviction (here and here), this no-surprise sentence

confirmed the capacity of federal criminal courts to protect both individual rights and public safety.

Food for thought amid rumors that trials before GTMO military commissions soon may resume.


Write On! Colloquium on Environmental Scholarship

(Write On! is an occasional item about notable calls for papers.)
Second Annual Colloquium on Environmental Scholarship
at Vermont Law School
September 23, 2011
CALL FOR ABSTRACTS

Vermont Law School will host the Second Annual Colloquium on Environmental Scholarship on September 23, 2011. The Colloquium offers the opportunity for environmental law scholars to present their works-in-progress and recent scholarship, to get feedback from their colleagues, and to meet and interact with those who are also teaching and researching in the environmental and natural resources law area.

If you are interested in presenting a paper at the Colloquium, please submit a working title and short abstract to Professor Jason J. Czarnezki at czarnezki@gmail.com no later than April 15, 2011. For an abstract to be eligible for submission, the author must anticipate that the paper will still be at a revisable stage (neither published nor so close to publication that significant changes are not feasible) by the date of the Colloquium. We will do our best to include all interested presenters, and will notify authors about acceptances no later than May 2011.

In a slight modification to last year’s format, this year, all selected participants will be required to submit a paper draft no later than September 1, 2011, and all participants will be asked to provide commentary on another participant’s paper draft at the Colloquium. Final papers will also be eligible for publication in the Vermont Journal of Environmental Law.

The Colloquium will take place on Friday, September 23, and Vermont Law School’s Environmental Law Center and its faculty will host a cocktail reception on Thursday evening, and dinner on Friday evening. Further Colloquium details regarding schedule, events, lodging, and transportation will be forthcoming and available at www.vermontlaw.edu.

Look On! Asylum Cases Brought to the Theater

(Look On! takes occasional note of noteworthy films and stage productions.)

Playwright Jefferey Solomon has written two exceptional plays based upon real asylum claims and cases brought in United States immigration courts. The first, De Novo, depicts the case of a fourteen-year-old boy named Edgar Chocoy who fled Guatemala City when MS-13, the largest gang in Central America, put a hit on his life. He traveled over 3,000 miles through the desert, and across the borders of three countries in search of his mother who had left him at the age of six months to work in the United States. Detained by the Department of Homeland Security upon his entry, Edgar, normally quiet and timid, spoke clearly and loudly about his fear of being deported: “I’m afraid to go back. They’ll kill me.” A pro bono immigration lawyer helped Edgar argue his asylum case in Denver, but the Immigration Judge ordered Edgar deported to Guatemala. He was murdered seventeen days later. The play weaves together court transcripts, interviews, letters and other documentary sources to reconstruct the gripping and poignant true story of the case whose outcome prompted a national outcry and a fundamental reconsideration about the way in which the government handles the many thousands of unaccompanied minors in immigration custody.
The second play, Tara's Crossing, tells the story of a transgendered asylum seeker from Guyana and her uphill battle to prove her claims of persecution from within the confines of U.S. Immigration Detention. The play, inspired by interviews with asylum seekers from around the world, deals with the hurdles that lesbian, gay, bisexual, and transgendered asylum seekers and refugees face in proving that their fears of persecution are well founded particularly when detained.
Solomon’s theater company, Houses on the Moon, based in New York City, aims to educate the public about the perils that vulnerable asylum seekers face navigating US immigration procedures and laws, particularly as most are unrepresented. As IntLawGrrl Jaya Ramji-Nogales has documented in her co-authored pieces on asylum claims, the likelihood that an asylum seeker will be successful when unrepresented by an attorney falls to about 14%.
The Boston premiere of De Novo, presented by New England LawBoston’s Center for Law and Social Responsibility, will take place at the Stuart St. Playhouse on Wednesday February 9th at 6:30 with post play discussion with the artists and law professors to follow. The show is free and open to the public (rsvp to Martha.S.Drane@nesl.edu).

On January 25

On this day in ...
... 1971 (40 years ago today), BBC reported that General Idi Amin had staged a coup d'état while the president "who led Uganda to independence" was attending a conference of the British Commonwealth in Singapore. Ugandan troops had closed the aiport at Entebbe and were blocking roads and patrolling the capital, Kampala. In subsequent days the President, Dr. Milton Obote, who had become the country's 1st Prime Minister in 1962, would go into exile in Tanzania. The brutal regime of Amin (left) would last till 1979, when he went into exile in Saudi Arabia, dying there in 2003. (photo credit) Obote was reelected President in 1980, thrown out by another coup in 1985, and now remains in exile in Zambia. The current President, Yoweri Museveni (prior post), has ruled since 1986.

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