Saturday, March 31, 2012

ASIL's new leadership

Delighted to congratulate IntLawGrrls contributors Stephanie Farrior (far right), Professor of Law at the Vermont Law School, and Beth A. Simmons (near right), Professor of International Affairs at Harvard, who were elected Counsellors of the American Society of International Law yesterday at the general assembly, held during the annual meeting that concludes today in Washington, D.C.
Counsellors constitute the honored, senior members of the Society. They serve 3-year terms and attend biannual meetings of the Executive Council (in effect, ASIL's board of directors; its next gathering will be here at Georgia Law, as part of the Midyear Meeting and Research Forum to be held October 19-21).
Joining Stephanie and Beth in the Counsellor role will be a number of other electees: Judge Rosemary Barkett (far left), U.S. Court of Appeals for the 11th Circuit (photo credit); Christina M. Cerna (near left), a human rights specialist at the Inter-American Commission on Human Rights; Virginia Law Professor Paul B. Stephan; Georgetown Visiting Law Professor David P. Stewart; and former State Department Legal Adviser William H. Taft IV.
They'll be serving with the newly elected ASIL President, Donald Francis Donovan (right), who is a partner at Debevoise & Plimpton in New York, noted for having arguing cases involving the Vienna Convention on Consular Rights before the International Court of Justice and the U.S. Supreme Court. (photo credit)
Honorary President will be Rosalyn Higgins (top left), former President of the ICJ; Vice Presidents, ASIL Executive Director Betsy Andersen (middle left), Duke Law Professor Curtis Bradley, George Washington Law Professor John R. Crook, SUNY-Buffalo Law Dean Makau Mutua, and White & Case partner Abby Cohen Smutny (above).
Elected to the ASIL Executive Council were Elizabeth Chien-Hale (right), founder of the Institute for Intellectual Property in Asia, Yale Law Professor Oona Hathaway (bottom right), and White & Case partner Andrea J. Menaker (middle right), along with Wilmer Cutler partner David Bowker, California-Davis Law Professor Anupam Chander, Florida A&M Law Professor Jeremy Levitt, UCLA Law Professor Kal Raustiala, and Boston University Law Professor Robert Sloane.
Heartfelt congratulations to all!

Work On! Venice human rights academy

On! is an occasional item about workshops, roundtables, and other fora)

The European Inter-University Centre for Human Rights and Democratisation, formed by more than 40 institutions in the European Union, will sponsor a Venice Academy of Human Rights, themed "The Limits of Human Rights," from July 9 to 18, 2012. Academics, practitioners, and doctoral candidates are welcome to apply for this course, which features:
► Lectures and discussions led by a faculty that includes Erika Feller, the Assistant High Commissioner for Protection at the U.N. refugee agency, as well as Professors Philip Alston (NYU), Seyla Benhabib (Yale), Martti Koskenniemi (Helsinki), Friedrich Kratochwil (European University Institute), Bruno Simma (Michigan and Munich), and Henry Steiner (Harvard); and
► Opportunities to workshop works in progress.
Deadline to register is May 1, 2012. Details here.

On March 31

On this day in ...
... 1745, Jewish persons were expelled from Prague, then part of the Austro-Hungarian empire. The move was sanctioned by an edict that Holy Roman Empress Maria Theresa (right), "the only woman ruler in the 650[-year] history of the Habsburg dynasty," issued within days. It was an order that the Dutch ambassador to her court, acting on request of Jewish communities in Amsterdam, Rotterdam, and The Hague, had managed to postpone for several months. Envoys from other countries aided him but could not prevent the decree. After 2 years, however, "'on account of the pressure from the foreign ambassadors,'" the empress revoked the decree, and Jewish persons were permitted to return. (credit for 1759 portrait)

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

Friday, March 30, 2012

ASIL Cable: Global Trade and Natural Capital: Ecosystems and Export-led Agricultural Strategies

This panel grappled with the environmental and social complexities of export-led agricultural strategies. Tracey Epps of the New Zealand Ministry of Foreign Affairs offered the theory that liberalized trade, in conjunction with enforceable rules, can minimize the negative effects of increased agricultural production. Drawing from New Zealand’s experience as a major agricultural exporter, Ms. Epps advanced the proposition that agricultural liberalization and environmental sustainability are not mutually exclusive. Ms. Epps’ thesis rested on the assumption that trade is critical for meeting the global demand for food, a premise called into question by Professor Carmen Gonzales of Seattle University School of Law who instead suggested that existing trade rules reinforced food insecurity.
Starting from the proposition that food insecurity is a function of poverty rather than food scarcity, Professor Gonzales situated her remarks about agricultural trade against a backdrop of three inter-related crises—1) loss of biodiversity in food crops; 2) food insecurity; and climate change. She emphasized that the current food production system rooted in a global agricultural market satisfies neither prongs of the Brundtland Commission’s definition of sustainable development—it does not meet the food needs of the present generation and is drawing down the resource base that future generations will need to meet their needs. Professor Gonzales therefore suggests a focus on small-scale sustainable agriculture as a better, more sustainable alternative.
Professor, Dr. Fabio Morisini of Federal University of Rio Grande do Sul School of Law turned attention the panel’s attention to nuances of the trade regime itself. He argued that the WTO has all the tools necessary to allow effective environmental governance over agriculture. Drawing heavily on the WTO Agreement preamble, Prof. Dr. Morisini advanced the proposition that GATT Article XX can be interpreted as encompassing the principle of common but differentiated responsibility. From this interpretive starting point, Prof. Dr. Morisini proposed that the WTO might integrate climate change into its decisional matrix.
Gregory Spak of White and Case questioned whether the interplay between economic policy and sustainable development is best fleshed out by litigation in the WTO. He worried that the vagaries of litigation strategy and persuasive advocacy might exert an undue influence on outcomes. Mr. Spak emphasized the uneven nature of the available WTO governance provisions—consisting of very specific trade rules governing subsidies and tariffs, set against generalized exceptions permitting environmental protection under unspecified conditions. Under these circumstances, he noted that states have no other option than to learn the borders of those exceptions on a case by case basis, and expressed concern that this framework was too ad hoc to create a consistent and predictable international legal system.
A lively discussion, ably moderated by James Gathii of Albany Law School followed.

(This post is cross-posted at ASIL Cables)

Stateless at Sea

Yesterday, the Council of Europe Parliamentary Assembly’s Committee on Migration, Refugees and Displaced Persons released “Lives lost in the Mediterranean Sea: who is responsible?,” a report commissioned following press coverage of the large number of migrants lost at sea during the Libyan conflict (Prior IntLawGrrls posts on this issue here). In particular, the report was motivated by and focused on an incident in which the majority of those on a boat fleeing Libya died although their boat was known to a variety of commercial and military officials from several states to be in distress.
The details of the ordeal endured by those on the boat – only 9 out of 72 passengers remain alive – are harrowing. Ushered by human smugglers into the overcrowded dingy on which they were to travel to Italy, the passengers quickly found themselves off course and without adequate food or water supplies. Distress calls went out to a priest who served as a contact in Italy. These calls were relayed to the Italian maritime authorities on several occasions, however through a calamity of errors the boat could not be located. The boat was, for the majority of its time at sea, technically within the Search and Rescue (SAR) zone boundaries of Libya, however that state was unable to carry out the traditional functions ascribed to it under maritime law due to internal conflict. During an approximately 2-week period, the boat was observed by military helicopters – one of which provided some food and water – and several commercial and military vessels. Outside of the helicopter-based provisions no assistance was rendered to the passengers on the boat. Eventually, the currents drove the boat back to Libya, where the survivors were briefly held in custody.
The details of this ordeal are heartbreaking, perhaps even more so because it seems that there were so many points at which the calamity could have been avoided if adequate assistance had been rendered. The ordeal also raises many legal issues , as the report indicates. The report focuses on the legal obligations of commercial and military vessels to render assistance to vessels in distress, the legal obligations of states to render assistance to vessels in distress, and state responsibility where there is knowledge of a vessel in distress and of the inability of the state that is technically responsible for search and rescue to respond to the needs of the vessel. All of these issues are important and raise the specter of an area of law that needs to be addressed.

Internationalization of Law: Diversity, Perplexity, Complexity

(Pleased to shared the prepared-text versions of remarks I delivered at yesterday's American Society of International Law annual meeting luncheon, at which I was introduced by my colleague, U.S. Supreme Court Justice Stephen Breyer, and further was honored with the Prominent Woman in International Law Award)

It is a real pleasure to visit with old friends like Justice Breyer – whom I wish to thank for his kind introduction – and to make new friends at this lovely event.
It is also a great honour to receive this recognition from WILIG, the Women in International Law Interest Group of the American Society of International Law, at this annual meeting that is devoted to “Confronting Complexity.” I draw from this honour strong support for my own writings, which reflect the non-compartmentalized – some might even say non-academic – way that I look at today’s legal world.
In my research I have continually confronted complexity.
I have looked frequently to comparative law and to international law, of course, but also to other disciplines. In mathematics, I looked to the concept of “fuzzy logic” to help explain movements in legal pluralism. Meanwhile, looking at paintings by artists like Maria Elena Vieira (above), and listening to music by composers like my friend Pierre Boulez, I have found insights into the world order – and disorder. (image credit)
As one of my colleagues put it in French, “Tu mélanges tout” – “You mix everything up.”
It’s true. I mix up different topics, and I look at them through different lenses.
Even within the law, I have looked at different topics, among them criminal law, human rights law, the law of public goods, environmental law, trade law, and labor law – also, laws relating to new technologies, such as the Internet and biomedicine.
The “different lenses” are not only the separate categories of law that interest me – national, or comparative, or even international law – but also, and more importantly, the ways that these bodies of law interact.
According to my observations, the current interaction of these bodies and topics constitutes a new phenomenon, which I call the “internationalization of law.”
The term is meant to describe a dynamic process, one that opens up legal systems and blurs the formerly entrenched borders between what is “internal” and what is “external.”
In French, the term is “internationalisation du droit,” also known by its acronym, “ID.” And so the réseaux, or study networks, that I have established have been named Réseaux ID.(above left).
If I may let you in on a secret, the term has a second meaning.
That acronym suggests this second, hidden meaning, given that “ID” also may stand for “imagination et droit.” In fact, the same is true in English – “internationalization of law” invites the acronym “IL,” which in turn may stand for “imagination and law.”
These thoughts provoke questions:
► How does this phenomenon of internationalization develop?
► And why is imagination necessary?
In looking for answers, I am in agreement with the theme statement for this annual meeting. My starting point, too, is “contemporary reality.” And I fully agree with the way that the statement describes that reality – as “confoundingly complex,” and “marked by rapidly evolving technologies, increasing global interconnectedness, rising population, and deepening understanding of science and the environment.”
Finally, I agree with the statement’s ultimate question. We both ask: Is law capable of responding to the challenges of complexity?
I propose 3 words that summarize – even sonorize, as if making a song – my answers. They are:
► First, ‘diversity;
► Second, perplexity”; and
► Third, “complexity.”
To grapple with diversity – as we must, in my view, because it is the best way to avoid hegemony – and to solve perplexity – necessary because of the risks of arbitrariness and disorder – we have to introduce, into law itself, complexity. And that is why we need imagination.
Let me discuss each of these concepts in turn.

Go On! Gender, Conflict, & UNSC Resolution 1325

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

IntLawGrrl contributor Fionnuala Ní Aoláin is leading an exciting summer program in Belfast on Gender, Conflict, and UN Security Council Resolution 1325, at the University of Ulster's Transitional Justice Institute. In her words,
'We have a wonderful line up of people teaching the course including Catherine O' Rourke, Christine Bell and Monica McWilliams, and a great Irish contingent teaching on gender issues.'
Here are the details:
The Summer School will be held from 25-29 June 2012 at the Jordanstown campus of the University of Ulster, located on the north shore of Belfast Lough, Northern Ireland. The Summer School is a week-long residential course, consisting of a series of interactive lectures, workshops and roundtable discussions. It is aimed at both postgraduate students and practitioners working in the field of transitional justice and human rights.
This year the summer school will give a broad and comprehensive overview to the regulation of women’s rights and needs in conflict and post-conflict situations. Given the recent ten year anniversary of United Nations Security Council Resolution 1325 on Women, Peace and Security, a particular focus of the summer school will be on the creation, enforcement, and capacity of UNSC 1325 and other related United Nations Security Council resolutions to addressed the needs, exclusions and rights of women in conflict and post-conflict settings.
The academic component of the summer school is also complemented by a social programme which provides the opportunity for participants to get to know a little about the local area. Social events include a tour of the North Coast, a murals tour in Belfast, film screenings and a Summer School dinner at Belfast Castle.
Deadline for applications is 4 May 2012.
Further details are available on the TJI website.

On March 30

On this day in ...
... 1912 (100 years ago today), the Treaty of Fez was signed between Morocco and France. In it, the sultan of Morocco ceded sovereignty to the French, and the portion of Morocco in light green at right became a protectorate of France. (map credit) This status would come to an end with Morocco's independence in 1956.

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

Thursday, March 29, 2012

ASIL Cable on WILIG Luncheon: Internationalization of Law: Diversity, Perplexity, Complexity, Thurs., Mar. 29, 2012, 1:30 pm

The annual Women in International Law Interest Group (WILIG) luncheon always serves both to build community and recognize the contributions of women in international law. This year's luncheon honored Mireille Delmas-Marty (left), Chair of Comparative Legal Studies and Internationalization of Law at College de France, and also featured opening remarks by U.S. Supreme Court Justice Stephen Breyer.
Professor Delmas-Marty's tremendous scholarly and public policy contributions are detailed in this year's annual program, and a full text of her remarks will be available on the Intlawgrrls blog. This ASIL Cable focuses on describing the event and reflecting upon Professor Delmas-Marty’s address, which is printed in full here.

The event began with warm welcomes from WILIG Co-Chair Kristine Anne Huskey and ASIL President David Caron. Justice Stephen Breyer then provided opening remarks that set a wonderful tone for the rest of the event through quoting Eleanor Roosevelt and explaining the critical role that law professors, and particularly Honoree Mireille Delmas-Marty, play in the work of international law. He described the "indefatigable" way in which she thinks, writes, and contributes to the web of rule of law. He said that he does not know anyone who does this better than Mireille Delmas-Marty.

Professor Delmas-Marty's analysis of the internationalization of law served as the centerpiece of this year's WILIG luncheon. She argued that we need imagination to introduce the complexity needed in international law to address diversity and resulting perplexity. She described the diversity stemming from different legal orders, multi-level governance, the many fields of international law, varying rates of legal evolution, and the wide range of key governmental and nongovernmental actors.

She then explained that diversity results in perplexity driven by disaggregation and fragmentation and two challenges that it poses. First, it poses a challenge for legal formalism: Is diversity a disruption or an irruption? Its fragmentation can lead to conflict, but its plurality can also help needed support needed evolution. Second, diversity poses a challenge of global governance: Is diversity a disease or a metamorphosis? Diversity could be a disease that weakens democracy and strengthens uncontrolled powers that act with impunity. But it could also help with law's needed evolution through a mix of hard and soft law.

Professor Delmas-Marty finally introduced the way in which imaginative introduction of complexity into the legal world could help address diversity and perplexity. She proposed an “ordered pluralism” that includes new techniques for integrating legal orders and new guidelines for sharing rulemaking and legal responsibility, with a focus on hybridization and harmonization. She noted that judges play a very important role in avoiding inappropriate extensions of power and argued for the need to organize judicial review at a global level between national and international levels, drawing from principles of complementarity and universal jurisdiction.

Professor Delmas-Marty concluded her remarks by examining the International Criminal Court's first verdict delivered 15 days ago and making two observations and one lesson. Her first observation was that complexity seems well-organized in the verdict, but that the result was also frustrating because the indictment and conviction did not cover all of the offences that accused allegedly committed. Her second observation was that complexity does not work without engagement of political realities and shared values. But she sees signs of progress and thinks that the court has a long shadow. Her lesson was to be patient but not passive. She said that we have a duty to improve legal instruments and view humanization of the law as a dynamic, interactive process. Beyond the challenge of complexity, there is an ethical challenge emerging of protecting our “common and plural humanity” that we need to meet imaginatively.

As someone who has worked on climate change and argued for more pluralist approaches in the face of international governance failures in that context, I am very sympathetic to Professor Delmas-Marty’s perspective. I think she is right that we need governance approaches that imaginatively incorporate diversity. Her remarks and examples made me interested in learning more about how she thinks the challenges of operationalizing such an approach might vary across substantive areas of international law, and when formal strategies for incorporating pluralism in new ways into international law might be most effective. I was particularly intrigued when I asked her about whether transnational agreements among subnational entities should be treated as part of pluralist international lawmaking or incorporated more directly into international law processes that she favored the latter approach. Her ideas open up many future possibilities for dialogue and for imaginative international legal work.

Following the question and discussion period, co-chairs Janie Chuang and Kristine Anne Huskey presented Professor Delmas-Marty with her award and "Prominent Women in International Law" mug. Professor Chuang then announced the election of the new co-chair Clara Brillembourg and secretary Milena Sterio, as well as new steering committee members. The event concluded as is traditional with everyone in the room introducing themselves to one another, with ASIL President David Caron in his introduction calling this lunch "the best event of the best week of the year."

(This Cable is Cross-Posted at ASIL Cables) (credit for photo by Hilary Schwab, courtesy of American Society of International Law)

ASIL Cable on New Voices I: Harmonizing Armed Conflict, Thursday, Mar. 29, 2012, 11:30 am

The Annual Meeting provides a wonderful opportunity for us to immerse ourselves in thinking about a wide range of important international law issues. The New Voices panels are particularly exciting because they highlight some of the work of emerging commentators who represent the future of our field, in this case how the international law of armed conflict should evolve to address the changing nature of and ethical challenges posed by modern warfare. As moderator Laura Dickinson noted, the junior scholars presenting on this panel were selected through a peer review process to have their work highlighted at the Annual Meeting.

The first presenter, Adil Ahmad Haque, discussed his paper, Killing in the Fog of War. This article engages the complex question of how certain a soldier needs to be before using force, and challenges the conventional balancing test approach to resolving this issue. He argues instead that one should have a reasonable belief that the person killed is a combatant and then look at relative risks with a strong presumption in favor of protecting civilians.

The second presenter Markus Wagner's paper on The Dehumanization of Humanitarian Law addresses the need for law to evolve to address technological changes in warfare. He explores the legal, ethical, and political challenges of regulating autonomous weapons systems under conventional doctrines. He argues that international lawyers, rather than just engineers, should help to make choices to about how devices are programmed to help align their behavior with international norms, particularly as evolving artificial intelligence technology may give these devices more capability to make ethically-grounded decisions.

The third presenter, Anna Spain, situated her paper, Confronting Sovereignty in Intrastate War, in the panel's broader conversation about humanity in armed conflict. This article focuses on when and how the international community should intervene in internal conflicts. It argues that the narrow exceptions to state sovereignty do not allow for interventions in some situations where norm balancing might make action appropriate and proposes a new model for addressing these norm conflicts drawing from theory on "right priority" and "right process."

Lillian Aponte Miranda, though selected for this panel, was unfortunately unable to present her paper, The Role of International Law in Intra-State Natural Resource Conflict: Sovereignty, Human Rights, and Development, for medical reasons. It provides a very interesting complement to the other papers through its analysis of how international law applicable to historically marginalized communities interacts with intra-state resource allocation. I include her abstract here to help include her in the online discussion of this panel's issues.

State natural resource development projects have become sites of intense political, social, and cultural contestation among a diversity of actors. In particular, such projects often lead to detrimental consequences for the empowerment, livelihood, and cultural and economic development of historically marginalized communities. This article fills a gap in the existing literature by identifying, analyzing, and evaluating emerging international law approaches that impact the intra-state allocation of land and natural resources to historically marginalized communities, and thereby, carve away at states’ top-down decision-making authority over development. It argues that while international law may have only been originally concerned with the allocation of land and natural resources in an inter-state context, it plays a distributive role today in an intra-state context. It ultimately proposes that an emerging human rights approach to the allocation of land and natural resources supports a peoples-based development model potentially capable of more readily alleviating conditions of inequity and continued subordination for historically marginalized communities.

Laura Dickinson, through her thoughtful commentary on each paper, helped begin a lively discussion continued in audience questions and comments about the cutting-edge questions regarding the law of armed conflict that the panel raises. While the discussion covered too many interesting topics to fully capture in this brief cable, I was particularly struck by the challenges of using the relatively blunt instrument of international law to address the nuances of what occurs in armed conflict today and by the need to build responsiveness to change into our international legal instruments and institutions. These emerging scholars' exploration of how law might interface with hard questions of soldiers' behavior, new technology, the boundaries of sovereignty, and protections for historically marginalized communities opened important conversations for the future of international law. People held a wide range of views about where those conversations should go but the dialogue reinforced the value of bringing ASIL's diverse membership together to discuss these issues and of convening these sessions that highlight our organization's new voices.

(This Cable is Cross-Posted at ASIL Cables.)

Confronting complexity

'A rock is not a complexity.'
'What we see as a complexity reveals something about us.'
'An elegant solution in law is a solution that takes responsibility for the consequences of it.'
'Complexity and elegance.'
These are just some of the deep (complex?) thoughts just conveyed by David Caron (above, standing), President of the American Society of International Law, in his "TED"-like talk which opened the Society's 106th annual meeting, themed "Confronting Complexity."
Bravo!

Write On! ASIL/ESIL workshop @ Cambridge

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

From our Syracuse Law colleague Evan J. Criddle comes word of a call for papers on international legal theory, to be presented at a joint works-in-progress workshop this fall.
Partnering to hold the workshop September 27 and 28, 2012, at the Lauterpacht Centre for International Law, University of Cambridge, England, are the International Legal Theory Interest Group of the American Society of International Law and the Interest Group on International Legal Theory of the European Society of International Law.
The workshop’s theme is “Transatlantic Debates in International Legal Theory.” Organizers write:
'On many levels, the interaction between North American international legal scholarship and its European counterpart(s) is working very well. Time and again, however, one finds that the underlying theoretical or philosophical framework is radically different. In this workshop we would like to explore that difference without letting ourselves be defined by it. Contributions analyzing, criticizing, denying or celebrating the difference are welcome, as well as papers exemplifying the various theoretical approaches to international law, be they “American,” “European” or neither. The most important function of this workshop is to intensify the transatlantic theoretical debate by bringing together scholars with diverse disciplinary, philosophical, and methodological perspectives to discuss cutting-edge research on international legal theory.'

Interested participants should submit abstracts, of no more than 1,000 words, to asil.esil.theory@gmail.com. Deadline is April 20, 2012.
Questions, contact Evan at ecriddle@law.syr.edu or Jörg Kammerhofer at joerg.kammerhofer@jura.uni-freiburg.de.

On March 29

On this day in ...
... 1946, the U.S. Department of State made public a proposal, dubbed the Acheson-Lilienthal Plan, for international control of nuclear energy (while preserving U.S. superiority in this regard), based in part on the hope that "perhaps an international body could help avert a potentially dangerous arms race with the Soviets." A U.S. official subsequently presented a version of the plan to the United Nations, but it never was scheduled for a vote. "In 1949, the Soviets exploded an atomic device and the nuclear arms race was on."

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

Wednesday, March 28, 2012

In progress, a human rights text for Central Asia

Greetings from Kyrgyzstan!
I am serving here in Bishkek, Kyrgyzstan's capital, as Deputy Director of the Tian Shan Policy Center and Law Professor at the American University of Central Asia.
I would so appreciate the sage comments of IntLawGrrls readers on this Table of Contents, for the international law cases/materials book I'm helping law faculty here in Kyrgyzstan put together. The book (cover below) is 500+ pages, so I'm not sending that along.
When the book is published, it will be available for free to supplement teaching by faculty and student legal education in Kyrgyzstan and other Central Asian countries, where they have no such resources and almost no books.
The Table of Contents gives you a sense of the excerpts of cases/materials we are including by topic – some picked for their relevance to the region.
We could only include International Court of Justice and international tribunal documents, United Nations materials, and a few articles, because copyright from some publishers is just too expensive.
We would welcome anyone to take a look and let us know, at michelletleighton@yahoo.com, if you think any thing is glaringly missing, we'd all be very grateful. If you have articles you've written that we can excerpt, as well, please let me know and we'd be happy to include.
Warm regards to all!

Go On! "Engaging with Armed Groups"

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

"Engaging with Armed Groups: Legal and Operational Challenges for Humanitarian Actors" is the title of a discussion to be held from 11:30 a.m. to 1 p.m. this Friday, March 30, at the Falk Auditorium of the Brookings Institution, 1775 Massachusetts Avenue, N.W., in Washington, D.C. It's cosponsored by Brookings-London School of Economics Project on Internal Displacement and by the International Committee for the Red Cross.
The event also will mark the launch of the new edition of the International Review of the Red Cross, titled "Understanding Armed Groups and the Applicable Law" (left).
Panelists will include: Vincent Bernard, editor-in-chief of the International Review of the Red Cross; Brookings Fellow Vanda Felbab-Brown; and Marco Sassòli, professor and director, Department of International Law and International Organizations, University of Geneva. Senior Fellow Elizabeth Ferris, co-director of the Project on Internal Displacement, will provide introductory remarks and moderate the discussion.
Details here.

On the Job! Volunteer EIC

(On the Job! pays occasional notice to interesting intlaw job notices)

The Council for American Students in International Negotiations, is accepting applications for the volunteer position of Editor-in-Chief of Eyes on the ICC, CASIN's flagship academic journal on the International Criminal Court.
Details here.

On March 28

On this day in ...
... 1997 (15 years ago today), the Treaty on the Southeast Asia Nuclear Weapon-Free Zone entered into force. It had been signed on December 15, 1995, in Bangkok, Thailand. The treaty bans the development, manufacture, acquisition, possession, storage, testing, or disposal of nuclear weapons or their wastes within a "Zone" comprehending
'the territories of all States in Southeast Asia, namely, Brunei Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam, and their respective continental shelves and Exclusive Economic Zones (EEZ) ...'
Ten states are members of the treaty regime, and the 5 permanent member states of the U.N. Security Council have agreed by protocol to adhere to the treaty ban. (image credit)

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

Tuesday, March 27, 2012

More trouble at UNAKRT corral

The recent 2011-in-review conference on international criminal justice included more than one occasion for difficult self-examination.
None was harder than the recitation of travails in Cambodia.
At The Hague conference organized by Northwestern Law Professor David Scheffer, Andrew Cayley (far left), the International Co-Prosecutor at the Extraordinary Chambers in the Courts of Cambodia, detailed the fits and starts that marked the year for that tribunal. As we've discussed in our Khmer Rouge accountability series, 2011 was marred by bitter standoffs between Cayley's office and that of the National Co-Prosecutor, Chea Lang (above, right), by criticism of an international co-investigating judge and that judge's eventual resignation, and by other staff resignations.
The bottom-line issue?
Whether the ECCC, whose record to date includes a single conviction of a single defendant (Case 001), and continuing proceedings in a 2d case (Case 002), should close shop or go forward with 2 additional cases (prospectively numbered Case 003 and Case 004). The Cambodian government opposes the latter option, and many national appointees at the ECCC agree – though many internationals do not.
By the time of our Hague conference a couple weeks ago, it seemed as if some progress had been made:
►Ban Ki-Moon, the U.N. Secretary-General, had appointed Scheffer, the U.S. Ambassador-at-Large for War Crimes Issues in the Clinton administration, to serve as Special Expert to advise on UNAKRT, the United Nations Assistance to the Khmer Rouge Tribunals set up as part of the agreement with Cambodia that established this "hybrid tribunal." (ECCC logo at right)
► Scheffer traveled to Phnom Penh, and it appeared that the new international Co-Investigating Judge, Laurent Kasper-Ansermet of Switzerland, was setting to work.
Apparently, not so: last week the BBC reported that the new Co-Investigating Judge resigned, too:
'Kasper-Ansermet said he was leaving because his Cambodian counterpart, You Bunleng, had thwarted attempts to investigate former members of the 1970s regime.
'Mr Kasper-Ansermet said the dispute had left him unable to work properly.'
This familiar refrain invites this question, posed at The Atlantic:
'The Khmer Rouge Tribunal is Falling Apart: Is it Still Worth the Trouble?'
(Some donors appear to be asking the same question.)
Without venturing an answer, it's to be noted that little of this unfortunate news ought to surprise.
Scheffer's recently published memoir, All the Missing Souls, recounts the challenges by this tribunal, which seeks to assess some accountability for the Khmer Rouge atrocities of the 1970s. Cambodia's request for U.N. assistance did not come until 1997 – 20 years after the events – and agreement on a tribunal was not reached until 2003. No indictments were forthcoming for another 4 years after that. Potential defendants (not to mention many victims) have died amid these delays. And the agendas of the international and the national actors diverged from the get-go.
Anyone recommending new tribunals outside the framework of the International Criminal Court – for old or new crimes (see here and here, for example) – should consider carefully the cautionary tale of the ECCC.

On the Job! Legal Adviser, Sarajevo

(On the Job! pays occasional notice to interesting intlaw job notices)

From my former student Christopher Engels, who, I'm delighted to announce, is the new Head of Judicial and Legal Reform Section of the Organisation for Co-Operation and Security Mission to Bosnia and Herzegovina, comes word of this great job opportunity in that Section:
The OSCE Mission to BiH is seeking applications for the position of Legal Adviser, War Crimes and Transitional Justice, to be stationed in Sarajevo. The successful applicant will begin work this June 4.
Applicants should possess inter alia a minimum of 6 years' relevant professional experience in criminal justice, international legal procedure, and courtroom proceedings. Specified is the requirement of "[s]ound knowledge of legal issues related to war crime trials and the Bosnia and Herzegovina justice system."
The notice states in part:
'[T]he Legal Adviser, War Crimes and Transitional Justice is responsible for defining the range of issues and advocacy opportunities upon which the Human Dimension Department can engage effectively to promote reform, and ensure that concepts such as outreach and transparency develop within the Bosnia and Herzegovina (BaH) criminal justice system. Within the scope of the war crimes trials and processes that impact on transitional justice in Bosnia-Herzegovina, the incumbent will work closely with the Judicial and Legal Reform Section (JLRS) Legal Advisers to assess where reform is needed and how existing reform processes can be aided and expanded to better care for the needs of victims, witnesses and the general public. The incumbent will also work closely with the Senior Human Dimension Officers and the field staff to collect contextual information about the importance of individual war crimes cases to the local communities.'
Deadline for applications is April 9, 2012; details on application process, specific duties, and required qualifications here.

On the Job! Center for Constitutional Rights

(On the Job! pays occasional notice to interesting intlaw job notices)

The Center for Constitutional Rights in New York City is seeking applications from experienced lawyers for the position of Staff Attorney, International Human Rights.
CCR's human rights docket date to the landmark Alien Tort Statute case of Filártiga v. Peña-Irala (1980), and encompasses an array of cases in U.S. and other courts. As detailed here, current matters include several cases dealing with post-9/11 accountability, as well as a request that the Prosecutor of the International Criminal Court investigate Vatican officials.
The Staff Attorney will: litigate existing international human rights cases in U.S. courts and international fora; develop new litigation projects in areas such as gender justice and sexual rights, the promotion and protection of economic, social and cultural rights, corporate accountability, and militarism; and help with CCR's education, advocacy, and media work.
Deadline to apply is April 11, 2012. Details on CCR, job duties, and required qualifications here.

On March 27

On this day in ...
... 1794, amid the Napoleonic wars waged primarily between France and Britain, the kingdoms of Denmark and Sweden concluded an Armed Neutrality Convention in Copenhagen. The aim was to avoid embroilment in the conflict, a goal that ultimately proved unsuccessful; indeed, Britain successfully attacked the Danish capital in 1801 (left), and thus forced Denmark's withdrawal from neutrality agreements. (image credit)

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

Monday, March 26, 2012

Go On! MacKinnon et al. @ ASIL-IDEAS

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

I'm delighted to announce that Rebecca MacKinnon (left) will be the first speaker in a new series being introduced by ASIL this week at the American Society of International Law annual meeting.
The series is entitled "ASIL-IDEAS: Ideas, Direction, Engagement, Action, Solutions." The ASIL-IDEAS series consists of three shorter, TED-style talks designed to inspire, introduce innovative ideas, and provoke discussion about new challenges in the field of international law. As the annual meeting program explains, the talks are being scheduled during morning coffee breaks so that attendees can hear from new people and
'share ideas and best practices over a cup of coffee.'
Rebecca conducts research, writing, and advocacy on global Internet policy, freedom of expression, and the impact of digital technologies on human rights. Her talk is scheduled for Thursday morning from 11:00 to 11:30 a.m. in Roosevelt Room, and will focus on current challenges to global Internet freedom. As she explains in her book Consent of the Networked: The Worldwide Struggle for Internet Freedom, released this past January:
'[I]t is time to stop arguing over whether the Internet empowers individuals and societies, and address the more fundamental and urgent question of how technology should be structured and governed to support the rights and liberties of all the world’s Internet users.'
The ASIL-IDEAS talks on Friday and Saturday will be take place from 10:30 to 11:00 a.m. each day:
► Friday's talk will feature Ted Parson, from the University of Michigan talking about climate engineering.
► On Saturday, Zahi Khouri and Oren Shachor will be discussing the Jerusalem Arbitration Center, which provides a mechanism for resolving Palestinian and Israeli commercial disputes. Penn State Law Professor Catherine Rogers has blogged about the Jerusalem Arbitration Center on IntLawGrrls here.

Evolving Regulation of Conflict Funding

The phenomenon of using natural resources to fund bloody conflicts is hardly new. However, international responses to it have steadily evolved and indeed are still evolving, reflecting the delicate balance of international interests, state sovereignty, corporate social responsibility and governance and the role of the consumer.

The conflicts in West Africa in the 1990s and early 2000s were financed by “conflict” or “blood” diamonds , as they came to be known – diamonds that were extracted from the affected area and then used to purchase the weapons and other supplies needed to keep the conflicts alive. After a concerted campaign by human rights groups to educate the general public on the issue and reality of conflict diamonds, the diamond industry and international community came together to endorse a global system for diamond certification. Under this system, known as the Kimberley Process for the location where it was negotiated, diamond importing and exporting states agreed to a certification system for diamonds in order to ensure that their provenance was known and to certify that they were not in fact conflict diamonds. In order to give some teeth to the system, state parties were required to be thoroughly vetted for compliance prior to joining the system and are subject to continued monitoring. Should a state party be found to have violated the terms of the system, it is eligible for delisting as a member, meaning that it would no longer be viewed as a reputable entity in the legitimate diamond market. Throughout the course of its history, the Kimberley Process has enjoyed successes as well as controversies , however to date it is the strongest international regime for preventing the use of natural resources to perpetuate conflict.

In 2010, the Dodd-Frank Act required many changes to economic and financial practices in the US and charged the Securities and Exchange Commission with a variety of regulatory undertakings . One key undertaking was the implementation of Section 1502 of the Dodd-Frank Act, which requires corporations that use other conflict minerals, such as coltan, from the Democratic Republic of Congo and surrounding states to declare this and to disclose their policies for ensuring that this use does not contribute to conflict financing or otherwise support conflict. At present, the SEC is still debating how to implement Section 1502.

There are many interesting aspects to Section 1502, the crafting of rules to implement it, and its relationship to corporate practices and consumers. On the surface at least, it appears that corporate resistance to the implementation of the essential terms of Section 1502 is not that strong, although hammering out the exact details of definitions is more troubling. This general openness of the corporate community to stopping the use of natural resources for conflict funding is in line with the corporate social responsibility doctrines that many corporate entities have adopted in an effort to function as good corporate citizens, as well as to reassure stockholders and consumers of their integrity. Interestingly, while the human rights community has been successful in bringing the connection between other minerals and conflict to light, there appears to be a greater willingness on the part of corporations to enter into reporting requirements in this context than in the early example of conflict diamonds. The Kimberley Process does entail certification of individual stones, which in essence is a certification of the practices used to produce the diamond itself. However, Section 1502 is a more overt step in reporting due to the explicit, periodic reporting requirement for corporate entities and the ability of the public to access information contained in these reports.