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Regions

06 Aug

[Jillian Blake is an immigration attorney at a non-profit organization in Alexandria, Virginia. She is a graduate of the University of Michigan Law School and the Johns Hopkins School of Advanced International Studies (SAIS).] In May, Dominican President Danilo Medina signed a new naturalization law aimed at restoring the rights of some who were stripped of their citizenship in a September 2013 Supreme Court ruling. The ruling held that those born in the Dominican Republic to undocumented immigrants, who are predominantly black and of Haitian origin, are not Dominican citizens and instructed the government to apply the ruling retroactively, going back to 1929. International human rights groups strongly condemned the decision as racist and xenophobic and argued it would render hundreds of thousands of people stateless. The Caribbean Community (CARICOM), an international organization made up of 15 Caribbean states, also denounced the ruling and suspended the Dominican Republic’s application for membership. The new citizenship law, Law 169-14, was passed this spring in response to the international backlash against the Supreme Court decision. Law 169-14 establishes a regime to restore the citizenship rights of those born between 1929 and 2007 who are entered in the civil registry. Notably, the law excludes restoration of citizenship to those born between 2007 and 2010, the year the new Dominican Constitution first revoked jus soli citizenship, or citizenship based on where one is born. All those born after 2007, or who are not in the civil registry, are required to register as foreigners and will then have to apply for regularization and naturalization. While the law could restore citizenship rights to thousands of people, it is far from a final victory against statelessness in the Dominican Republic. First, the law only addresses a small percentage of those impacted by the Supreme Court ruling. According to human rights groups roughly 24,000 of the more than 200,000 people rendered stateless could qualify to have their citizenship restored under the law, and even that restoration is not automatic. Part of the reason so few will be affected is that for many years hospitals and government agencies refused to issue birth certificates or other identity documents to children of parents of Haitian origin. Many children born in the Dominican Republic do not have birth certificates and/or are not listed in the civil registry. Any long-lasting solution will require hospitals to issue birth certificates for, and enter into the civil registry, all persons born in the Dominican Republic and recognize their citizenship. There also should be a national drive to document (as citizens) those born in the Dominican Republic who do not currently possess birth certificates. Second, the new law is still premised on the illegal assumption that those born in Dominican territory are not citizens. This retrogression of established inter-American law, which recognizes jus soli citizenship, is not only illegitimate but could lead to the denial of rights elsewhere in the future. Third, given the racially-biased administration of past immigration and naturalization regulations in the Dominican Republic, there is a serious concern that even those entitled to the restoration of citizenship under the law will never actually be recognized as citizens. Fourth, the law requires those who are not in the civil registry to register with the government within 90 days after the law takes affect, which will exclude many who can’t register in time, especially the poor and those living in remote areas. Finally, the law will not restore citizenship to future generations born in the Dominican Republic, which will leave a perpetual system of statelessness in the country. In an Article forthcoming in the Georgetown Journal of Law and Modern Critical Race Perspectives entitled, “Haiti, the Dominican Republic, and Race-based Statelessness in the Americas” I analyze the 2013 Supreme Court decision and long history of citizenship exclusion based on racial and ethnic prejudice in the Dominican Republic.
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05 Aug

I had the privilege today to attend a conference in Taipei today discussing the "East China Sea Peace Initiative".  The ECSPI is Taiwan's proposal to reduce and maybe even eliminate the confrontation between China and Japan in the East China Sea over the Diaoyu/Senkaku Islands.  The ECSPI is not all that complicated.  1) Shelve Territorial Disputes;and 2) Share Resources Through Joint Development.  There is...

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05 Aug

The ICC Office of the Prosecutor has just released the following statement: Palestine is not a State Party to the Rome Statute, the founding treaty of the ICC; neither has the Court received any official document from Palestine indicating acceptance of ICC jurisdiction or requesting the Prosecutor to open an investigation into any alleged crimes following the November 2012 United Nations...

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05 Aug

The request is supported by a number of leading QCs and professors in Britain. (Full disclosure: three of the signatories are barrister members and one is an academic member of Doughty Street Chambers, with which I'm associated.) Here is the Bar Human Rights Committee's summary: Public international law and criminal law Q.C.s and Professors based in Britain join with the Bar Human...

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04 Aug

As Eugene notes in today's guest post, the Palestinian Authority (PA) appears to have decided to ratify the Rome Statute. I'll believe it when I see it: the PA has threatened to ratify before, only to back down at the last moment. But could it? Most observers have assumed it could, but Eugene disagrees. I think his bottom line may well be...

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04 Aug

[Eugene Kontorovich is a Professor of Law at Northwestern University School of Law.] New reports say the Palestinian leadership has decided to seek to join the International Criminal Court as a member state. The PA has been threatening such action fairly constantly for several years, and it remains to be seen whether they mean it this time. A recent and little-noticed development at the ICC suggests the Palestinian Authority may have a harder time getting the Court to accept its accession than many previously thought. A few months ago, in a situation quite analogous to the Palestinians', the Court rejected an attempted accession. Recall that the ICC rejected a 2009 Palestinian attempt to invoke its jurisdiction by saying that it lacked the competence to determine if Palestine was a "state" under international law. A main motive for the last year's General Assembly's vote to treat Palestine as a non-member state was to bolster its case for ICC membership. The idea was that the OTP would look only to the formal, "political" action of the General Assembly, rather the the objective factors of whether Palestine satisfies the criteria of statehood, such as whether they control their own territory. Whether that is true or not, recent developments show that even if the OTP accepts that Palestine is a state - ignoring objective tests - it would conclude that the PA cannot accept jurisdiction on behalf of that state, certainly not for Gaza.
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01 Aug

[Ori Pomson and Tali Kolesov Har-Oz are both teaching assistants and LL.B. candidates at the Hebrew University of Jerusalem Law Faculty.]  Introduction The recent hostilities between Israel and Hamas have attracted a great deal of media and public attention. However, while a number of media reports have alluded to the legality vel non of certain actions committed by both sides, they have thus...

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01 Aug

[David Benger is the Course Assistant for the Brandeis University in The Hague intensive summer school in International Criminal Law. He may be reached at dabenger [at] gmail [dot] com.] The International Criminal Court, an ostensibly purely legal organization, is nevertheless plagued by a wide variety of political pressures. For example, the attempt to balance The Court’s relationship with The African Union (widely considered to be deteriorating) and its relationship with the United States (widely considered to be improving) is an important thorn in the side of the Court’s daily operations. This post will examine the re-opening of the preliminary examination of British soldiers in Iraq through the lens of the potential political fallout of that decision. The re-opening of the preliminary examination in Iraq is not a signal of sufficient substance to appease the African anti-ICC lobby. Unless and until there are actual trials of European commanders in The Hague (not likely in the near future), the characterization of the ICC by African leaders as a neo-imperialist Western tool is not likely to dissipate based on a mere preliminary examination. With regard to the United States, however, the impact of this decision will almost certainly resonate. Though many observers of the USA-ICC relationship subscribe to the narrative of a steadily improving rapport between the two, this post will argue that this is not quite the case. In fact, the relationship between the Court and the USA is in a decidedly precarious position, and the re-opened Iraq investigation may have a decisive and damning impact on America’s potential support for The Court.
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31 Jul

According to Standard & Poor's, Argentina has defaulted on at least some of its sovereign bonds, after last minute negotiations failed to reach a deal with its holdout bondholders, who had won a series of victories in U.S. court.  Although there are reports that some U.S. banks representing the rest of the bondholders are exploring ways to buy out the holdout bondholders...

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30 Jul

[Janina Dill is a Lecturer at the Department of Politics and International Relations at the University of Oxford.] In the ongoing military campaign ‘Protective Edge’ the Israeli Defence Forces (IDF) consistently issues warnings before air strikes against targets in Gaza. The population is warned of impending attacks with phone calls, text messages or so called ‘knocks on the roof’ (dropping of non- or low-impact explosives on the intended target). The warnings play a central role in Israel’s claim that, contrary to Palestinian armed groups, namely Hamas; it obeys the strictures of international law. ‘While the IDF goes to extraordinary lengths to avoid civilian casualties, Hamas deliberately puts civilians in the line of fire, the IDF maintains on its official blog. The First Additional Protocol to the Geneva Conventions, the relevant sections of which have the status of customary international law, in Article 57(2) c indeed prescribes that ‘effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit’. Warnings, their frequency and form, are at the centre of a narrative that Israel does not simply comply with, but goes beyond the call of international law in its care for the civilians of Gaza. ‘Israel's use in the Gaza Strip of non-lethal warning shots to the roofs of buildings which constitute military targets … is not legally obligated’, the Military Advocate General’s Corps holds. Media commentary commends Israel for giving civilians a way out without even being obliged to do so. This is a misunderstanding of Article 57. The provision establishes an unequivocal obligation to warn before attacks that implicate the civilian population – as air strikes against a territory as densely populated as Gaza will regularly do. Granted, it is not an absolute obligation. The law recognizes that sometimes it may not be possible to warn. Crucially the provision does not say ‘warn if possible’, but ‘warn unless impossible’. It is open to interpretation when that is the case and reasonable people may disagree, but the default is to issue a warning and it is a failure to do so that requires explanation. Warnings are not acts of charity. But are the kinds of warnings issued as part of Operation Protective Edge manifestations of the IDF’s commitment to the laws of war? The practice raises two distinct concerns. The first is that the air strikes the IDF carries out after issuing warnings are indicative of a misunderstanding of the legal implications warning before an attack. It has none! The second is the concern that the practice itself violates international law. I discuss them in turn.
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28 Jul

Some lawyers at Shearmen & Sterling are no doubt celebrating what may be the largest single arbitration award in history (text of award here). Their client, a shareholder of the expropriated Russian oil company Yukos, has won a $50 billion award against Russia in an investor-state arbitration (seated at the Permanent Court of Arbitration) under the Energy Charter Treaty.   Michael Goldhaber...

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