'Nuff said

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

'Some say that Clinton diluted her energy and failed to achieve any signature triumphs, such as an end to the Syrian crisis. Others argue that through a thousand lesser-known efforts and initiatives, she has achieved nothing less than a transformative shift toward a more effective and modern American diplomacy.'

–  Reporter Stephanie McCrummen, writing in today's Washington Post about U.S. Secretary of State Hillary Clinton. McCrummen's thoughtful survey of Clinton's approach these last 4 years to her position as the United States' top diplomat –  a position from which Clinton has said she soon will resign –  is well worth a read. (credit for State Department photo of Clinton, at right, with Aung San Suu Kyi, winner of the 1991 Nobel Peace Prize and, since this past April, a member of the Parliament of Myanmar)

On November 16

On this day in ...

(credit)

... 1994, 12 months after the 60th country had joined it, the U.N. Nations Convention on the Law of the Sea entered into force. Today the treaty, which establishes a regime for international regulation of oceans and seas, has 164 states parties, thanks to the joinders just this past September of Ecuador and Swaziland. A notable nonparty state is, as covered in posts available here, the United States of America. Notwithstanding arguments that tensions in the South China Sea make speedy ratification a U.S. national security issue – an argument cogently made in this Jurist article by Michael Kelly, our colleague at Creighton Law – continuing opposition by some in the Senate this summer forestalled any vote on ratification. Yet just days before the election that handed President Barack Obama a 2d term, support for ratification was reaffirmed by Senator John Kerry, the chair of the Foreign Relations Committee who's reportedly on the short list (along with U.N. Ambassador Susan E. Rice) to succeed Hillary Clinton as Secretary of State.

(Prior November 16 posts are here, here, here, here, and here.)

Lex Astrorum: Space Law Takes Off

Rocket launch

Much like the universe, space law is expanding at an accelerating pace. Cutting-edge developments in celestial law include “keep our orbit beautiful” space-litter regulation, rules for interstellar arbitration, and questions of property rights to asteroids and the lunar surface. Here is a flyby of the latest in the lex astrorum*, the law of the final frontier.

Proposed Regulation of Cosmic Endeavours
This year, the United States, the European Union, and other nations launched negotiations toward a nonbinding International Code of Conduct for Outer Space Activities. U.S. Secretary of State Hillary Clinton’s announcement in January that the United States would participate emphasized the gravity of hazards that space debris poses to satellites and spaceflight. The Secretary of State also stated elliptically that the United States’ position on prohibitions on militarizing space is not in flux. Her statement affirmed that the United States

'will not enter into a code of conduct that in any way constrains our national security-related activities in space.'

In June, the EU announced that over forty countries attended the first multilateral meeting on this new Enterprise. Also, possibly eclipsing the U.S.’s position, the EU statement proclaims that the Code would “lay down the basic rules to be observed by space faring nations in both civil and defence space activities.” This nebulous statement raises questions regarding the extent to which the United States will be a Challenger to other nations’ aspirations for the Code. The Space Review has discussed the legal and political obstacles ahead. 

Rare fallen space debris

Arbitration of Interplanetary Disputes
The universe may be infinite, but elbow room in the area where most space activity now happens is tight. Presciently spotting a legal black hole and the potential for colliding interests, the Permanent Court of Arbitration adopted in December the “PCA Optional Rules for the Arbitration of Disputes Relating to Outer Space Activities.” In promulgating these pioneering rules, the PCA acknowledged the meteoric rise of the global space industry, worth nearly $300 billion, which involves immense investment by states and private actors.

Galactic Property Rights 
Several Intrepid entrepreneurs are already probing for space minerals, with platinum at the top of the most-wanted list. As a result, a vigorous debate is under way on whether space mining violates UN treaties and what, if any, property rights regime does and should govern space mining. The U.N. Outer Space Treaty of 1967 (prior IntLawGrrls posts) proclaims that

'the exploration and use of outer space shall be carried out for the benefit of all countries and shall be the province of all mankind.'

Because states are prohibited from making territorial claims in the heavens, there can be no sovereignty over asteroids or other celestial bodies. The treaty affirms:

'Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.'

However, it is not clear whether this principle would bar private enterprises from merely exploiting a Discovery of space minerals by, for example, mining an asteroid without asserting over the object the sovereignty of any state. In search of an answer, some have looked to the penumbra of recognition of ownership over spacecraft and lunar samples brought back to Earth. However, given the astronomical sums that could be spent on exploration, one might wish for an atmosphere of less relativity.

Aurora Australis seen from Space Shuttle Discovery

In sum, the lex astrorum has light years to go before it reaches its zenith. Potential questions for the future lawyers of the species include:
► Do the Geneva Conventions extend to extraterrestrial combatants?
► Is universal jurisdiction truly universal? and
► When must a property interest vest to comply with the rule against perpetuities in an infinite dimension?

*Boundless thanks to Latin expert Bill Linney for help with declensions!

Congratulations to IntLawGrrl Anne Gallagher!

A hearty congratulations to IntLawGrrls guest blogger Dr. Anne Gallagher, who was recently honored for her pathbreaking work on human trafficking.  On June 11, 2012, Dr. Gallagher was named an Officer of the Order of Australia (AO) in the Queen's Jubilee Birthday Honours list, in recognition of Dr. Gallagher's "distinguished service to the law and to human rights as a practitioner, teacher and scholar, particularly in the areas of human trafficking responses and criminal justice."   Earlier this year, Australian Minister for Home Affairs and Justice Brendan O'Connor conferred upon Dr. Gallagher the inaugural Anti-Slavery Australia Freedom Award.
      The Australian government is not alone is recognizing Dr. Gallagher's contributions to the field, however.  This afternoon, U.S. Secretary of State Hillary Clinton designated Dr. Gallagher a 2012 Trafficking in Persons Hero at the launch of the 2012 U.S. Department of State Trafficking in Persons Report.

Congratulations, Dr. Gallagher, AO!

'Nuff said

'The days of blowing up the relationship over a single guy are over.'

-- No, it's not a nod of agreement between 2 BFFs.
The sentence comes from an unnamed official quoted in a recent New York Times story, "Behind Twists of Diplomacy in the Case of a Chinese Dissident." Steven Lee Myers and Mark Landler quoted a number of such officials in reporting how diplomats from the United States and China managed to work through this month's unexpected arrival, at the former's embassy in the latter's country, of Chen Guangcheng (below right), a Chinese lawyer-activist who'd escaped from house arrest. (photo credit) Yesterday, Chen and his family flew from Beijing to Newark. Outside his new home at New York University, this morning's New York Times reports,

'He said he was grateful to the American Embassy and the Chinese government, which allowed him to leave China, and thanked Chinese officials for "dealing with the situation with restraint and calm."'
'"I hope to see that they continue to open discourse and earn the respect and trust of the people."'

Go, 'Grrl! Colin Dayan in Academy of Arts&Sciences

Delighted to announce that IntLawGrrls contributor Colin Dayan has been named to the American Academy of Arts & Sciences.
Founded in 1780 and based in Cambridge, Massachusetts, the AAAS is among the country's oldest and most prestigious societies, honoring leaders from academia, business, public affairs, humanities, and the arts. (Charter members included many of the signers of the Declaration of Independence.)
Colin (right) is the Robert Penn Warren Professor in the Humanities at Vanderbilt University.  (photo credit) As posted, her interdisciplinary scholarship considers: Caribbean literature, religion, and history, with particular focus on Haiti and Jamaica; early American religious and legal history; 19thC. American, French, and English literary history; African-American Studies and American Studies; anthropology; and the law. Her most recent book is the acclaimed The Law Is a White Dog: How Legal Rituals Make and Unmake Persons (2011).
Notables joining Colin in this year's class of 220 new Academy members are notables include U.S. Secretary of State Hillary Clinton, philanthropist Melinda French Gates, international lawyer Rita Hauser, and Paul McCartney (the erstwhile Beatle's a "foreign honorary member").
Heartfelt congratulations!

IntLawGrrls contributor in Time's top 100

A leader in international criminal justice is on the 2012 list of "The 100 Most Influential People in the World," just released by Time magazine.
Listed just below the incoming President of China is the incoming Prosecutor of the International Criminal Court, Fatou Bensouda, who last December contributed her speech to the Assembly of States Parties as an IntLawGrrls post.
(Other noteworthy women on the list include Elinor Ostrom, Samira Ibrahim, Maryam Durani, Anjali Gopalan, Ai-jen Poo, Sharmeen Obaid-Chinoy, Christine Lagarde (prior posts), Portia Simpson Miller (prior posts), Mamata Banerjee, Dilma Rousseff (prior posts), Angela Merkel (prior posts), and Hillary Clinton (prior posts)).
Time includes a brief profile essay of Bensouda by Human Rights Watch Executive Director Kenneth Roth. Noting Bensouda's "many years of experience" at the ICC, at the International Criminal Tribunal for Rwanda, and in the government of her native Gambia, Roth calls Bensouda "[t]houghtful, soft-spoken, yet determined and forceful" -- qualities he rightfully indicates that she'll need as she takes on the "daunting challenges" facing the 10-year-old court.

(photo of Bensouda by Michael Anderson, made in February 2012 at this conference, courtesy of the University of New South Wales)

Go, 'Grrl! Beth Van Schaack to State Department

Exciting news:
Our own Beth Van Schaack (right), an IntLawGrrls founding editor and contributor, will become the Deputy to the U.S. Ambassador-At-Large for War Crimes Issues later this month!
Professor of Law at California's Santa Clara University School of Law, Beth will take a leave of absence to serve as the Deputy to Ambassador Stephen Rapp. As we've posted, Rapp has served as the top State Department official on war crimes issues since September 2009. Before that he'd been Chief Prosecutor of the Special Court for Sierra Leone and senior trial counsel for the International Criminal Tribunal for Rwanda.
Succeeding the previous Deputy – IntLawGrrls contributor Diane Orentlicher, who has returned to her professorship at American University Washington College of Law – Beth will help run the State Department's Office of Global Criminal Justice. Formerly called the Office of War Crimes Issues, this office advises Secretary of State Hillary Clinton and, through the inter-agency process, helps formulate U.S. responses to atrocities committed throughout the world.
Beth's portfolio will include working with international tribunals, NGOs, and foreign governments to ensure accountability for international crimes, via transitional justice mechanisms that include not only prosecutions, but also truth commissions and commissions of inquiry.
Can't imagine anyone more qualified for this important position.
As well demonstrated by her many, many prior IntLawGrrls posts – of special note, her series on the crime of aggression and her recent observation of military commissions proceedings at Guantánamo – Beth is an internationally recognized expert in international law. She holds academic and practical experience in subfields most relevant to her new post: international criminal law, international humanitarian law/law of armed conflict, and transitional justice.
Her publications include many law review articles, as well as books like International Criminal Law and Its Enforcement, a Foundation Press casebook coauthored with Ron Slye and now in its 2d edition, and Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence Before the Cambodian Courts (2005), co-edited with another IntLawGrrl founding editor and contributor, Jaya Ramji-Nogales.
In summer 2010, Beth served as Academic Advisor to the United States' interagency delegation, led by Ambassador Rapp and State Department Legal Adviser Harold Koh, to the International Criminal Court Review Conference in Kampala, Uganda.
Beth's engagement with the ICC dates to its founding: After attending Preparatory Committee meetings in New York, Beth managed a team of 10 lawyers and law students who attended the 1998 Rome Conference where the ICC treaty was adopted. As an observer or NGO delegate, she's also attended sessions of the Human Rights Council in Geneva, Switzerland, as well as meetings of other U.N. bodies.
Beth earned her bachelor's degree from Stanford University and her J.D. from Yale Law School. Thereafter, she clerked at the International Criminal Tribunal for the former Yugoslavia and was an Open Society Institute Justice Fellow. She served as Executive Director and as a Staff Attorney at the San Francisco-based Center for Justice & Accountability, which litigates human rights cases. From 1995 onwards, she has served as a Legal Advisor to the Documentation Center of Cambodia. At Santa Clara, she hosted an annual workshop in international humanitarian law along with the International Committee of the Red Cross.
Beth joined the Santa Clara law faculty following private practice with Morrison & Forester LLP, where she practiced in the area of commercial law, international law, and human rights. She was trial counsel for Romagoza v. Garcia, a human rights case that resulted in a plaintiffs' award of $54.6 million, and on the defense team for John Walker Lindh.
We at IntLawGrrls will miss her frequent contributions and unflagging support – even as we send her our very best heartfelt congratulations on her move to Foggy Bottom!

Girls, on International Women's Day

Happy centenary to the World Association of Girl Guides and Girl Scouts on this annual International Women's Day! (credit for logos here and here)
The Day's 2012 theme is, appropriately enough:

'Connecting girls, inspiring futures.'

This 'Grrl owes much to the Scouts. So too many other women, some of whom are depicted in an online Washington Post slideshow. Included are women we've honored as foremothers -- photographer Margaret Bourke-White and Ambassador and Vice Presidential candidate Geraldine A. Ferraro -- as well as other women on whom we've posted -- publisher Gloria Steinem, tennis great Venus Williams, U.S. Supreme Court Justice Sandra Day O'Connor, astronaut Sally Ride, Queen Elizabeth II, and the former and present U.S. Secretaries of State, Condoleezza Rice and Hillary Clinton.
Smart cookies, indeed.

Live now: U.S. Secretary of State Hillary Clinton on female genital mutilation

Click here.

What Western Gay Rights Agenda???

U.S. Secretary of State Hillary Clinton gave a speech at the United Nations in Geneva that placed the human rights of LGBT individuals firmly at the center of American foreign policy.
There was, predictably, a backlash.
John Nagenda, an adviser to the Ugandan President, told the BBC immediately after the speech was delivered last December:

'If the Americans think they can tell us what to do, they can go to
hell.'

There were reports that Nigeria was actually increasing its proposed penalties for same-sex relationships in response to Clinton’s speech. Labaran Maku, Information Minister of Nigeria, said:

'We reserve the right to make our laws without apologies to other countries.'

Hillary Clinton’s speech was often reported alongside earlier comments by UK Prime Minister David Cameron’s threatening to link LGBT rights and aid.
So far this sounds familiar, right? But the storyline is actually more complex.
The first UN resolution on sexual orientation and human rights was introduced in April 2003 – not by the USA or a Western European state, but by Brazil, before the then-Commission on Human Rights. E/CN.4/2003/L.92, Brazil's draft resolution, reaffirmed the universality of human rights, and called upon states to promote and protect the rights of everyone regardless of sexual orientation.
The resolution went down in flames.
The Vatican and states of the Organization of Islamic Conference strenuously opposed it and engineered the Geneva equivalent of a filibuster – introducing 55 amendments and multiple points of order. (See E/CN.4/2003/L.106-110, available here.) Although a no-action motion was rejected, a motion to postpone consideration to the following year was adopted.
At the 2004 session of the Commission on Human Rights, Brazil circulated informally a revised text that included a reference to gender identity. Under enormous political pressure, neither Brazil nor any other potential co-sponsor ever brought either resolution forward for a vote.
Following the Brazil debacle, the conventional wisdom was that a voted resolution would never succeed at the only UN body dedicated to human rights. Friendly states and activists devoted their energies instead to a series of “joint statements” in New York and Geneva.
Flash forward to the spring of last year. South Africa, which had enshrined protection against sexual orientation discrimination in its first post-apartheid constitution in 1994 but had previously been extremely reluctant to assert its voice on LGBT issues in international fora, decided to step up to the plate.

U.S. plan: Women, peace, security

Somewhat lost in last month's holiday shuffle was the release of the United States National Action Plan on Women, Peace, and Security.
Motivated by U.N. Security Council Resolution 1325 (2000) on Women and Peace and Security, and launched by U.S. Secretary of State Hillary Clinton in a speech at Georgetown (right), the plan sets forth goals and means for implementation. (photo credit)
Guiding principles:
► Further enable women to be not only beneficiaries, but also "agents of peace and stability";
► Address differences and inequalities between the roles of men and women, building on gender integration goals set out in the U.S. National Security Strategy and the 2010 Quadrennial Development Review (prior post);
► Include various stakeholders, "women and girls, men and boys, and members of marginalized groups" in the Plan's implementation;
► Coordinate among the many pertinent national agencies, among them the Departments of State, Defense, Justice, Treasury, and Homeland Security, the White House National Security Staff, the Agency for International Development, the Centers for Disease Control, the armed forces, and the Office of the U.S. Trade Representative; and
► Invite civil society -- that is, all of us -- to hold those agencies accountable for full and proper implementation.
Much of the data in the 25-page document will be familiar to IntLawGrrls readers; for example, that inclusion of women in peace negotiations enhances consideration of economic and social justice issues, or that education of girls enhances longterm prosperity and stability.
That women often "have found themselves sidelined" in official peace talks also is well known. This sentence, on page 5 of the U.S. National Action Plan, nonetheless jolts:

'While the number of women heading UN field missions has increased, the UN has never appointed a woman as a lead mediator.'

What's most significant about the report is its authorship: the United States government, from the President (via Executive Order) on down, joins numerous other countries in committing itself to work for change around the world.
Looking forward to keeping account of implementation over the long term -- after 1st looking, in a post tomorrow, at one curious aspect of this laudable effort.

Civil unrest in Egypt & the United States

News outlets have released a number of distressing reports and disturbing images over the past week from protests in the United States and Egypt.
► In the past several days, police in California and New York have allegedly beaten protesters participating in the Occupy Wall Street movement and doused them in pepper spray. (photo credit)
► In Egypt, where citizens have taken to Tahrir Square to demand a return to civilian rule, army soldiers and policy have allegedly fired teargas, rubber-coated steel bullets, and "birdshot" pellet cartridges into crowds.
In October of last year, following a similar wave of civil unrest throughout the Middle East and North Africa, the UN Human Rights Council passed Resolution 15/21 on the rights to freedom of peaceful assembly and of association. The resolution recalls that provisions in numerous international human rights instruments provide for freedom of assembly and of association. These include but are not limited to:

• Universal Declaration on Human Rights, art. 20(1);
  
• International Covenant on Civil and Political Rights, arts. 21 and 22;
  
• International Convention on the Elimination of All Forms of Racial Discrimination , art. 5(d); and
  
• African Charter on Human and Peoples' Rights, art. 10(1).

The Human Rights Council used Resolution 15/21 to call on

'States to respect and fully protect the rights of all individuals to assemble peacefully and associate freely'

and to

'take all necessary measures to ensure that any restrictions on the free exercise of the rights to freedom of peaceful assembly and of association are in accordance with their obligations under international human rights law.'

While the resolution recognizes that the freedom of peaceful assembly and of association

'can be subject to certain restrictions, which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others,'

these limitations on the freedom of assembly have been strictly interpreted.
For example, on several occasions, the U.N. Human Rights Committee has interpreted ordinances that require advance notice of public meetings, as well as the dispersal of peaceful demonstrations with excessive force, as restrictions on the freedom of assembly guaranteed under the ICCPR.
In addition to affirming the freedom of assembly and of association, Resolution 15/21 also called for the creation of a position of a new special rapporteur who, among other tasks, is charged with investigating violations of the rights of association and of assembly and reporting on such violations to the Council and to the U.N. High Commissioner on Human Rights. In a statement applauding the creation of this position, U.S. Secretary of State Hillary Rodham Clinton said:

'An active and vibrant civil society is one of the essential elements of a free nation, and I applaud the action by the international community today to take up the President’s call to stand firmly on the side of human rights and civil society and strengthen the ability of civil society activists around the world to bring about change in their countries. The United States will continue our leading effort to expand respect for this fundamental freedom for civil society members and other individuals all over the world.'

In March 2011, the former Chairman of Kenya’s National Human Rights Commission, Maina Kiai, was appointed the United Nations' Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association. Special Rapporteur Kiai has already requested that he be invited to visit Egypt to examine in detail the enjoyment of the rights to freedom of peaceful assembly and of association, to identify any problems and to make recommendations on how these could be resolved.
As of yet, no such request has been made to visit the United States.

2 ICC defendants dead

(Update: Senussi believed still alive; see here)

Reports are that at least 2 of the 3 men named in International Criminal Court arrest warrants died in gunfights today in Sirte, Libya.
According to reports, dead are Muammar Gaddafi (right), the de facto leader of the country from 1969 until the fall of Tripoli 2 months ago, and Abdullah Al-Senussi (left), Gaddafi's chief of intelligence services. (credit for photos)
Believed still at large is the 3d person accused in those warrants, Saif Al-Islam Gaddafi, the leader's son who may or may not have been captured and in custody for a short while (prior post).
Today's news came within days of an "unannounced" trip to Tripoli by Hillary Clinton, U.S. Secretary of State. (The Libya stop was part of a journey through the Middle East and Central Asia that still is under way.) It augurs a new phase in the Libya story about which we've frequently posted -- presumably, the drawing-down of NATO and the stepping-up of UNSMIL, the U.N. Mission established by Security Council Resolution 2009 (Sept. 16, 2011), and the beginning in earnest of what seems likely to be a difficult period of transition for the Libyan state.

Latest on Palestine

'It started here, absolutely. I think it is not unrealistic to try something new, or it isn't new, to try something very old, actually.'

So said Brian Urquhart, "a nonagenarian former under secretary general," in a New York Times article that provides useful historical background on the past role of the United Nations in the formation of Israel and the current international status of Palestine.
The article's intended as a runup to this week's anticipated bid for U.N. recognition of Palestine as a state.
(For further analysis, see the recent IntLawGrrls post by Yaël Ronen, as well as the ASIL Insight here, written by our colleague John Cerone.)
The planned Palestinian bid "set[s] the stage for" what The Times' Neil MacFarquhar aptly called

'the most dramatic annual gathering of world leaders at the United Nations General Assembly in years.'

A schedule of this week's U.N. events predicts that the bid will come Friday, when Palestinian Authority President Mahmoud Abbas is set to speak to the General Assembly.
Many days yet for matters further to unfold, if yesterday's events (here and here) are any indication. Specifically:
► Abbas and Secretary-General Ban Ki-Moon had what a U.N. statement called "a constructive meeting";
► Israeli President Benjamin Netanyahu called for new Israel-Palestine talks;
► "Abbas said he had not been swayed"; and
► U.S. Secretary of State Hillary Clinton maintained there might still be "a solution to the diplomatic crisis."
Time will tell.

'Nuff said

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

'[T]wo decades after sitting through Hill's excruciatingly careful narrative, there is still no way for women to tell stories of sexual injustice that allows them to bypass character assassination.'

-- Rebecca Traister (right), Salon columnist and author of Big Girls Don't Cry (2010), a book about Hillary Clinton's 2008 Presidential bid (an election on which IntLawGrrls frequently posted). Traister's remark appeared in a thought-provoking New York Times Magazine essay that linked the 20th anniversary of the testimony of Professor Anita Hill (prior IntLawGrrls posts here and here) during confirmation hearings for Clarence Thomas, then a nominee to the U.S. Supreme Court, with contemporary treatment of various women's accounts.

Gaining recognition

'Until the interim authority is in place, participants agreed to deal with The National Transition Council as the legitimate governing authority in Libya.'

With those words, read today at an Istanbul meeting of the multistate Libya Contact Group, more than 30 countries extended formal recognition to Libyan rebels fighting longtime leader Muammar el-Qaddafi.
As we've posted, the move gives the rebel Council, which "has said it would form a government within a year," some "'international standing'" -- and that renders it eligible for funding, either from release of frozen Libyan assets or from foreign aid.
Among the countries signing the statement was the United States. It thus joins others that already had recognized the Council.
Today's statement is the latest step in a dance of diplomacy that continues even as NATO continues to use of force in aid of anti-Qaddafi forces.

AU v. ICC, yet another round

The regional organization for Africa once again has condemned the global criminal court.
The Associated Press reported yesterday that the African Union, meeting at a summit in Malabo, Equatorial Guinea, had

called on its members to disregard the International Criminal Court’s arrest warrant for Moammar Gadhafi ...

As posted, warrants issued last Monday against that leader of Libya, his son, and an aide. The 3 are charged with

crimes against humanity (murder and persecution) allegedly committed across Libya from 15 February 2011 until at least 28 February 2011, through the State apparatus and Security Forces.

Fully 31 of the African Union's 53 members also are states parties to the Rome Statute of the ICC, and thus have pledged to cooperate with that court. (credit for map showing ICC members in green and signatories in gold) Yet relations between the 2 intergovernmental organizations have been tense, as discussed in posts available here. And it appears that at least some of them now have sided with Qaddafi, formerly the head of the regional group as well as the longtime head of Libya, an ICC nonparty. Thus it's conceivable one or more of these member states might be willing to give safe harbor should Qaddafi choose exile -- a possibility that, as the AP observed,

seriously weakens the tribunal’s ability to bring the embattled Libyan leader to justice.

Yesterday in Madrid, meanwhile, U.S. Secretary of State Hillary Clinton insisted:

'Gaddafi should put the well-being and the interests of his own people first and he should step down from power.'

The African Union move further appears to have destabilized efforts to end combat in Libya: a spokesperson for the rebel group Libyan National Transition Council reportedly has announced the rebels' decision to reject the peace plan -- on account of the African Union decision not to honor the warrant.
(Notably, last week another member of the Council met with ICC Prosecutor Luis Moreno-Ocampo at the court's Hague headquarters, above right. (photo credit))
At issue, of course, is the ICC's role in Africa.
All 6 situations before the court concern states in Africa: Kenya; Uganda; Central African Republic; the Democratic Republic of Congo; Darfur, Sudan; and Libya. Approaching that status is a 7th African state: Moreno-Ocampo in late June asked permission to open an investigation in Côte d'Ivoire.
It is true that nearly all these matters are before the court on account of a referral from the U.N. Security Council or from the territorial state in question. The only exception is Kenya, where the prosecutor is exercising proprio motu powers granted him by statute.
It is also true that violence and atrocity occurred in each state -- that, as ICC Deputy Prosecutor Fatou Bensouda has said, there are victims and others in Africa's civil society who welcome the court's efforts to effect accountability.
These truths seldom appear in stories like yesterday's. The story did, however, include the now-familiar African Union critique, that the ICC is "an instrument of neocolonialism" and "a European Guantanamo Bay."
There must be more the court could do to defuse such hostility.
Speedier and more transparent attention to atrocities elsewhere in the world, in states of all sizes, might not put an end to these labels. But it might keep the labels from seeming to stick so easily.

State's "IDEA" on Global Diaspora

A Global Diaspora within the U.S.
Sixty-two million Americans are part of a first or second generation diaspora.
Among the most significant transnational connections maintained by such U.S. immigrant communities are the $48 billion in remittances sent home each year to countries throughout the globe. These monies and goods help raise children, feed families, build homes, provide healthcare and education, and respond to environmental and military disasters.
Further, as discussed here in the article Lionheart Gals Facing the Dragon and other pieces I’ve written on Jamaican migrant women, many maintain important transnational social and cultural ties as well.
But in addition to this massive “informal” flow of resources, many also start or develop businesses that employ thousands of workers in the U.S. or their countries of origin.

The International Diaspora Engagement Alliance (IDEA)
Now, Secretary of State Hillary Clinton has launched an initiative that recognizes the important foreign and domestic policy implications of migration. At a May 17-19, 2011, “Secretary’s Global Diaspora Forum,” in Washington, DC, Secretary Clinton announced the creation of “IDEA”—the International Diaspora Engagement Alliance.

The Secretary’s Global Diaspora Forum
The Global Diaspora Forum (photo above, by Hope Lewis), co-sponsored by the Migration Policy Institute, the US Agency for International Development, the U.S. Department of State, and others, was attended by diplomats, development professionals, immigrants’ rights and human rights advocates, journalists, educators (including yours truly, IntLawGrrl Hope Lewis), and business leaders. The meeting highlighted ways that the global diaspora contributes to U.S. and international development.
Many diasporas were represented, including those from Barbados, China, Colombia, Cuba, Egypt, Ethiopia, Ghana, Greece, Haiti, India, Iraq, Ireland, Israel, Italy, Jamaica, Japan, Kenya, Lebanon, Mexico, Nigeria, Pakistan, South Korea, Uganda, and Vietnam, to name only a few. To the organizers’ credit, the historical African Diaspora was represented as well by the Director of the Smithsonian’s National Museum of African Art, Dr. Johnnetta Cole (photo, right, source here) and other African-Americans.
State signaled its commitment to diaspora issues through the presence of many high-level representatives such as Secretary of State Clinton, Undersecretary of State for Democracy and Global Affairs Maria Otero, Dr. Rajiv Shah, M.D., Administrator of the U.S. Agency for International Development, Leocardia Zak, Director of the U.S. Trade and Development Agency, and Gustavo Arnavat, U.S. Executive Director, Inter-American Development Bank, Fred Hochberg, Chairman and President of the Export-Import Bank of the United States, Mimi Alemayehou, Executive Vice President of the Overseas Private Investment Corporation, and Daniel Yohannes, Chief Executive Officer of the Millennium Challenge Corporation. Representation of U.S. Immigration, Customs, and Enforcement (ICE) were noticeably absent from the formal program, however, (as some participants pointed out in discussion sessions).
Topics covered during the three-day meeting included panel discussions on
►Diaspora News and Social Media
►Diplomacy
►Education
►Entrepreneurship
►Innovation and Technology
►Philanthropy
►Volunteerism

U.S.-Caribbean Partnerships
“Miss Lou” (my IntLawGrrls alter ego) was quite interested to learn that Secretary Clinton announced this week that the Caribbean will be the first focus of the IDEA initiative. During a June 22 High-Level Meeting between the Foreign Ministers of CARICOM (the Caribbean regional community) and the United States in Montego Bay, Jamaica, she announced several new efforts in U.S. foreign policy toward the Caribbean.
Security. Clinton announced $77 million in additional funds for the Caribbean Basin Security Initiative aimed at international and regional organized crime control.
Energy and Climate Change. She also announced Caribbean-focused projects to further the Obama administration’s 2009 Energy and Climate Partnership of the Americas. A new Caribbean Climate Change Adaptation Initiative will establish research links on climate change between the University of the West Indies (UWI) and U.S.-based universities.
A Caribbean IDEA. Finally, Clinton noted a Caribbean-focused project would be the first to test the IDEA initiative:

[A] new partnership … will enlist the Caribbean diaspora to contribute to long-term economic growth. We believe that the people of Caribbean descent can be a major asset for their countries of origins and not just because of the money that is sent home in remittances, but they can put their talent and their energy and their entrepreneurial spirit to work as well. To tap this potential, the State Department recently launched the International Diaspora Engagement Alliance…, which is intended to bridge the gap between diaspora communities and entrepreneurs in their countries of origin. We want to promote trade, help start businesses and develop other ways of spurring economic growth.
We have chosen the Caribbean to be the first region in the world to demonstrate the impact of this alliance. We are launching the Caribbean IDEA Marketplace, which will foster collaboration between local entrepreneurs and members of the Caribbean diaspora. And we hope that this marketplace, which will offer access to capital as well as technical assistance, will begin bearing results next year.

A public-private partnership, the Caribbean IDEA Marketplace is sponsored by the U.S. Department of State, the Inter-American Development Bank, Digicel (a telecommunications company), and Scotiabank. (See coverage by Jamaican news media here.)

Opportunities and Cautionary Tales
Although I have long called for greater attention to the roles of non-state actors, including business enterprises in addressing the status of people in and from the Caribbean, caution is required in assessing this new venture.
Markets, marketplaces, and the entrepreneurs who run them, are no strangers to Caribbean history and socio-economic context. The islands were key sites in the notorious and continuing crimes of the Trans-Atlantic slave trade and the related trade in sugar, rum, and spices. Subsequent colonial and neo-colonial arrangements led to the exploitation of everything from bauxite to oil to illegal drugs and the trade in small arms. International trade policies have had devastating impacts on small banana and coffee farmers. Human trafficking and export processing zones have exploited the availability of low-wage labor and the limited job opportunities available to young people in small countries.
Nevertheless, the islands are also rich in traditions of African agricultural methods, marketwomen networks, cultural exchanges in literature, music, and other arts, beautiful environments for sustainable tourism, trained health care workers, high literacy rates, and strong labor unions. Let’s hope that the new U.S.-Caribbean initiative emphasizes those positive traditions in ways that benefit the majority of people who need them most.

Governments and Human Rights
So, amid celebrations of global diaspora's tremendous potential, government and civil society must exercise caution as well as enthusiasm. The desired “development” and “growth” must never sacrifice a state's obligation to protect the human rights of the people over which it has jurisdiction. (That includes the human rights of noncitizens within its borders as we note in a post on migrants rights in the U.S. here. )
True development must center human development--and is not possible unless each state fulfills its obligation to respect, protect, promote, and fulfill human rights for all.
As a responsible international and transnational actor, the U.S. has taken on legal, political, and moral obligations to observe and promote human rights and fundamental freedoms both externally and internally. If recent rhetorical pronouncements are to be further realized, these must also include the economic, social, and cultural rights so important to migrant and diaspora communities (see IntLawGrrl and Huffington Post comments here and here.)

Business and Human Rights
There's also reason for caution and vigilance about the roles of business enterprises in the new initiative. Banks and wire transfer services profit handsomely from those billions of dollars in remittances moved between the U.S. and sending countries. What are they doing to promote human development where most needed?
Diaspora business leaders can help to develop new enterprises that create decent jobs and working conditions in countries of origin, but they can also try to take advantage of lax labor or environmental regulations back home in order to exploit low-wage workers and the environment.
As noted in a recent guest post by Nadine Bernaz, the UN Human Rights Council has just endorsed Guiding Principles on Business and Human Rights prepared by Professor John Ruggie, UN Special Representative on Business and Human Rights. The “respect, protect, remedy” framework provided was influenced and commented on by many business leaders, diplomats, and members of civil society. Human rights NGOs such as Human Rights Watch and Amnesty International remain critical that stronger accountability measures are needed to implement the Guiding Principles so as to make businesses accountable.
All relevant actors—the U.S. government, sending countries, the business sector, other private actors, and migrants themselves—must help to make human rights a reality for everyone. That would be the best “idea” of all.

The Missing Peace

(Delighted to welcome back alumna Mary Ellen O'Connell, who contributes this guest post)

The coalition military action in Libya began March 19, 2011. This may sound like a very brief time considering that the United States is heading into its eleventh year of war in Afghanistan and ninth in Iraq. But it is ten times longer than President Barack Obama’s prediction: Remember, he was contemplating days, not weeks. (photo credit)
More worrying is his new reason for being in Libya. The President told the nation that military action was absolutely necessary to protect civilians. Now Obama, British Prime Minister Cameron and French President Nicolas Sarkozy say military action will continue until Libyan leader Moammar Gadhafi is gone.
The dramatic change should surprise no one. Protecting civilians with major military force in Libya was always an unlikely prospect: “humanitarian” is not a military objective. Removing a national leader and defeating an army, however, are.
And as soon as Ghadafi is gone, President Obama can declare victory and move on, which plays well in the sound-bite world of politics.
What does not play well is patient, careful, costly support of national transformation. Action truly designed to protect civilians, and, more importantly, to lead to a healthy, well-governed Libya, does not play well– it is anything but a sound bite. As I wrote in the days before the military intervention in “How to Save a Revolution”, the Libyan rebels made the error of taking up arms in a war they could not win– perhaps they were emboldened by the loose talk of a military intervention in Egypt? By the time they made their fateful decision, the only way to minimize death and destruction in Libya and to support democracy was to get the rebels out of Libya, to a safe place where they could build a peaceful movement.
The departure of the armed resistance would have left Ghadafi no reason to continue fighting in Benghazi. He might have been able to persuade his forces to continue attacking for the sake of revenge, but it is hard to say that more people would have died or been displaced in that scenario than has occurred in this month of heavy bombing by two sides.
Once the rebels were in safety, they could have selected leaders and built a movement. With that movement in place, its leaders would have been in a position to negotiate a peaceful transition with Ghadafi.
One of the great differences between Libya, Egypt, and Tunisia is that Egypt and Tunisia had a human rights movement in place. Well-trained lawyers, with connections to counter-numbers in Europe and North America, were in a position to work peacefully for change. Their struggle is far from over, but they have the building blocks that just do not exist in Libya.
This sort of longer term, deep thinking about how to assist in Libya apparently did not appeal to President Obama’s advisers, who have been committed to military action for human rights since the failed interventions in Rwanda and Bosnia.
I say failed interventions because that is what they were. There has been an insistence on misreading the facts of Rwanda and Bosnia, saying they were failures to intervene, rather than what they were: failed interventions. (See this video clip of my exchange with State Department Legal Adviser Harold Koh on international law and intervention at last month's ASIL Annual Meeting.)
Libya was turning into another failed intervention until Obama, Sarkozy, and Cameron announced the new goal: removing Ghadafi.
Once Ghadafi is gone, I predict victory will be declared, and once again the wrong lessons will be learned from the use of military force.
If another month goes by, however, and the fighting continues, I urge President Obama to change directions again. Ask the African Union to renew the peace effort that Secretary of State Hillary Clinton dismissed because it involved negotiating with Ghadafi. Put peace, reconciliation, protection of civilians, and the building of a new Libya ahead of sound-bite politics.