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18 Jul

In the wake of the Pre-Trial Chamber's categorical rejection of Libya's admissibility challenge, the Libyan government asked the Appeals Chamber to suspend its obligation to transfer Saif Gaddafi to the ICC pending its appeal of the decision. The Appeals Chamber has now rejected that request and ordered Libya to surrender Saif to the Court. Here are the critical paragraphs of its decision: 24. Libya...

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18 Jul

[Tendayi Achiume is the Binder Teaching Fellow at the UCLA School of Law.] According to the United Nations High Commissioner for Refugees (UNHCR), xenophobia is among the greatest contemporary challenges to the protection of refugees and other forced migrants globally. The May 2008 violent attacks against foreign nationals in South Africa are among the most striking contemporary manifestations of this problem. During a two-week period of violence, media reported door-to-door searches in townships and inner cities as inflamed crowds attempted to purge neighborhoods of foreign nationals they blamed for high rates of crime and job scarcity, among other things. These attacks left 62 dead, over 600 injured, and displaced more than 100,000 people—many of whose homes and property were looted in the process. Refugees were among the most severely affected. Although the scale and duration of the attacks in South Africa were remarkable, xenophobic discrimination is a serious problem in contexts as disparate as Greece, France, Ukraine, Israel, Libya and Egypt, where it threatens the lives and livelihoods of refugees and other forced migrants. In this post I briefly describe UNHCR’s response to this problem, which has focused on advocacy to punish hate crimes and to promote tolerance. While recognizing the importance of these measures, I argue that on their own they are inadequate. Engaging structural socio-economic concerns such as inequality and poverty is vital to successfully combating xenophobia, and must form a central part of UNHCR’s response. International law does not define the term “xenophobia”. UNHCR posits that xenophobia may include “discrimination, incitement to discrimination, as well as acts of violence or incitement to violent acts on the grounds of race, colour, descent, or national or ethnic origin, including in combination with other grounds, such as religion, gender or disability.” In the last decade or so, UNHCR has undertaken a range of global policy and advocacy initiatives to combat xenophobic discrimination. The most comprehensive articulation of UNHCR’s policy points to the International Convention on the Elimination of all forms of Racial Discrimination (ICERD) as the legal anchor at the international level for fighting xenophobic discrimination. In a forthcoming article in the Georgetown Journal of International Law’s Spring 2014 volume, I conduct a novel and in-depth analysis of UNHCR’s use of international human rights to fight xenophobic discrimination. But here I wish to highlight a pressing concern with the evolution of UNHCR’s policy in this area. A review of UNHCR’s approach reveals two broad categories, both of which find firm support in ICERD. The first focuses on punishing perpetrators of discriminatory acts explicitly motivated by xenophobic prejudice. Examples include advocacy to promote and enforce hate crimes legislation, to monitor signs of prejudice, and to track and publicize hate crimes prosecutions. The second category of strategies focuses on the use of human rights education initiatives and public awareness campaigns to fight prejudice and promote tolerance and diversity. Punishing perpetrators and promoting tolerance and diversity are important strategies for protecting refugees from xenophobia. But on their own, these strategies are unequal to their task.
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17 Jul

About the same time (April 2013) that the US Supreme Court released its opinion in Kiobel v. Royal Dutch Petroleum, the Court also granted review of a Ninth Circuit case, Bauman v. DaimlerChrysler. Just ahead of the July 4th weekend, the Obama administration submitted what John Bellinger, in a lucid post over at Lawfare, describes as a "remarkably strong" amicus brief urging the Court to
reverse the Ninth Circuit’s decision in Bauman v. DaimlerChrysler.  The Justice Department argued that the Ninth Circuit’s 2011 decision finding personal jurisdiction in California over Daimler AG, a German company, for the actions of a subsidiary in Argentina, was “seriously flawed” and contrary to the Supreme Court’s subsequent 2011 decision in Goodyear.  The brief faults the Ninth Circuit for trying to hold a foreign corporation with few contacts to California to “answer in that State for any claim against it, arising anytime, anywhere in the world.”
The background to Bauman v. DaimlerChrysler, Bellinger explains, is that in May 2011 a Ninth Circuit panel
held that that Daimler AG, a German parent company with no operations or employees in the United States, could be sued under the Alien Tort Statute and the Torture Victim Protection Act  (as well as common law and state law) by a group of Argentine nationals for human rights abuses allegedly committed by an Argentine subsidiary in collaborating with the Argentine government during the “Dirty War” in the 1970s, solely on the basis that a different U.S. subsidiary now distributes Mercedes Benz vehicles in the United States.  Applying an agency theory, the panel concluded that Daimler AG had sufficient contacts with the state of California by virtue of the actions of its subsidiary Mercedes Benz USA to give California personal jurisdiction over the German parent , even though Mercedes Benz USA had no involvement with the alleged facts in Argentina.
I agree with Bellinger that the likelihood, following Kiobel, is that the Court is moving to restrain jurisdictional assertions by Federal courts, and is pushing back toward stricter grounding in the traditional bases of jurisdiction by national courts.  My own larger, political view is that this is connected to a perception that although broad assertions of US jurisdiction through such vehicles as the Alien Tort Statute over foreign parties for acts on foreign territory can certainly be framed as enforcing universal international law through national courts, it is better understood as assertions of something quite different - what I've sometimes called the "law of the hegemon."  That is an increasingly contested position as a matter of international politics spilling over into international law, and between the rise of new great powers and the Obama administration's political embrace of decline, it seems to me unsurprising that the Obama administration would embrace a more traditional, much more restrictive understanding of jurisdiction. But it also seems the Court is also generally on board with this pull-back.  As Bellinger says, many observers (me included) believe that
the Court would not have accepted the case unless it plans to reverse the Ninth Circuit.  Conservative justices are loathe to miss an opportunity to try to curb the Ninth Circuit’s consistent efforts to be a world court, and the more liberal justices may have wanted to demonstrate (as Justice Breyer argued in his concurrence in Kiobel) that the extraterritorial reach of the Alien Tort Statute can be limited by other jurisdictional restrictions.
I agree.  Despite the obvious clash of approaches between the Roberts majority and the Breyer minority in Kiobel, they do have an important common ground - an intention to limit extraterritorial jurisdiction through a stricter application of the traditional bases of jurisdiction.
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17 Jul

[Daniel Seah is a PhD candidate at the Faculty of Laws, University College London.] Has the Association of Southeast Asian Nations (ASEAN) finally had its own post-ontological moment?  No longer are we condemned to participate in the banality of questioning ASEAN’s legal existence as an international organization (IO). After all, since 2008, its international legal personality was expressly conferred in Article 3 of the ASEAN Charter, a constituent treaty.  Now is the time to ask a more useful question: what are the legal consequences that flow from ASEAN exercising its international legal personality? Nowhere is an answer to this question more clearly thrown into relief than in the conferral of competences by member States upon ASEAN, which is the focus of this post. IOs are not created equal; there is a great variety in their functions and objectives. Establishing the objective international legal personalities in these IOs is the easy bit. More difficult are the issues that bear on how the legal personality has been exercised by an IO; and what legal consequences arise for the IO and its member States, as separate legal persons. Because an IO at international law is a legal person, it (or its bodies) can act on behalf of member States although some of these acts are not expressly conferred in the constituent treaty - I call these “implied conferrals”. The word “conferral” is not a legal term of art. It had been variously defined as “capacities” (CF Amerasinghe) to indicate the consequences of international legal personality; “international delegations” (Curtis Bradley & Judith Kelley) to explain a range of legal (and non-legal) decision-making exercised by IOs; or “competences” on which the European Union (EU) is authorised to act in particular areas such as the common commercial policy. In this post, I instance the early practice of the ASEAN Intergovernmental Commission on Human Rights (AICHR) as an example of implied conferrals.
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16 Jul

[Ozan Varol is Assistant Professor of Law at Lewis & Clark Law School.] Since the Egyptian military ousted President Mohamed Morsi, various commentators have pondered whether the military’s actions fit within the framework I described in an article titled The Democratic Coup d’Etat, published last summer in the Harvard International Law Journal (see here, here, here, here, and here).  In this post, I will discuss whether Morsi’s ouster was a coup—the United States remains unwilling to use the magic word—and if so, whether it constitutes a “democratic coup.”  I will conclude the post by analyzing why the Turkish government stands largely alone among foreign governments in its staunch and vocal opposition to Morsi’s ouster. Was Morsi’s ouster a coup?  The answer is yes.  Initially, there was arguably some room for legal interpretation, primarily because the academic literature is rife with competing definitions of a coup d’état. Under most definitions, however, Morsi’s ouster was a coup from the outset. For example, Samuel Huntington defines a coup as “the effort by a political coalition illegally to replace the existing governmental leaders by violence or the threat of violence.”  Likewise, Jonathan Powell and Clayton Thyne define coups as “overt attempts by the military or other elites within the state apparatus to unseat the sitting head of state using unconstitutional means.” The Egyptian military ousted a democratically elected president through the use of extra-legal and extra-constitutional means. That is surely a coup d’état under these definitions. Under an alternative understanding, however, a coup occurs “when the military, or a section of the military, turns its coercive power against the apex of the state, establishes itself there, and the rest of the state takes its orders from the new regime.”  Charles Sampford, Coups d’Etat and Law, in Shaping Revolution 164 (E. Attwooll ed., 1991).  That is not precisely what happened in Egypt because the military established an interim government run by civilian, not military, leaders—a marked departure from the coup that deposed Hosni Mubarak in 2011 and replaced it with an interim government composed of military leaders (the Supreme Council of the Armed Forces or SCAF). Even under this alternative definition, however, Morsi’s ouster likely constitutes a coup since a constitutional declaration issued by the interim civilian President cited the military’s takeover statement as the basis of his own authority.  In other words, even though the military is not actively supervising the transition process as it did following Mubarak’s ouster, the military currently appears to be the ultimate source of governmental authority in Egypt. Was the coup a “democratic coup”? 
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16 Jul

[Scott McKenzie is a lawyer in private practice.  His scholarship focuses on water policy in the context of sustainable development.] The Nile River is currently one of the most contentious transboundary water hotspots.  As Ethiopia begins construction of the Grand Renaissance Dam (GERD), it forces Egypt and other basin states to re-examine how the Nile’s water is allocated.  This situation has the potential to result in conflict, but modern international water law can help these states settle their differences peacefully.  At the heart of water law are principles regarding the allocation and management of these resources.  These principles are designed to promote cooperation, prevent conflict, and provide needed stability.  The Nile is a timely case study to see how these principles can be applied. The conflict over the Nile’s water pits the more developed downstream countries Egypt and Sudan against the still developing upstream countries including Ethiopia, Uganda, Kenya, Tanzania, Burundi, Rwanda, the Democratic Republic of Congo (DRC), Eritrea, and South Sudan. The downstream countries are almost completely dependent on the Nile’s water and have historically received a large portion of the Nile’s flow.  However, as the upstream countries begin to develop they need more water for their drinking water, agricultural irrigation, and hydropower production. In June, Ethiopia began diverting a portion of the Nile as part of its plans for the construction of the GERD. Egypt was alarmed by this move because the GERD is a stunning size.  When complete, it will be the largest dam in Africa and have a generating capacity of 6,000 megawatts (the equivalent of 6 nuclear power plants).  Egypt is concerned that such a dam could reduce the amount of water it receives from the Nile, and because it is a signal that in the future the upstream countries will wield greater power over the Nile. Neither Egypt or Ethiopia has gone to war over the Nile’s water, but both sides are engaging in a tremendous amount of saber-rattling.  For example, at a recent forum of Egyptian politicians, it was suggested that the country could sabotage dam construction though a covert military campaign.  Ethiopia has long been concerned about such a plot.  As former Prime Minister Meles Zenawi said he was not “worried that the Egyptians will suddenly invade Ethiopia ... Nobody who has tried that has lived to tell the story.” Governing this conflict are competing legal instruments, which also reflect the evolution of water law. 
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10 Jul

[Reuven (Ruvi) Ziegler is a lecturer in law at the University of Reading School of Law.] The European Court of Human Rights has consistently held that the undertaking in Article 3 of Protocol I of the European Convention on Human Rights (ECHR)  to hold ‘free elections’ which ‘will ensure the free expression of the opinion of the people in the choice of the legislature’ entails an individual right to vote (see e.g. in Hirst (no .2). [57]). While the Strasbourg court pronounced that ‘the presumption in a democratic state must be in favour of inclusion’ and that ‘any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates’ (Hirst (no .2), [59]), the court has hitherto failed to develop a principled approach regarding the circumstances in which such ‘departure’ may be justified. Instead, it has emphasised that ‘[a]s regards, in particular, the choice of electoral system, the Court reiterates that the Contracting States enjoy a wide margin of appreciation in this sphere’ (Sitaropoulos, [65-66]), as ‘[t]here are numerous ways of organising and running electoral systems’ (Id; also Shindler, [102]). The margin of appreciation doctrine has received both scorn and praise. This post does not concern its general application; rather, it is contended that the court’s voting rights jurisprudence has conflated questions relating to choice of electoral systems (‘First-Past-The-Post’, Alternative Vote, Proportional Representation, Single Transferrable Vote, and the like) with questions relating to voting eligibility. Even if states should enjoy a margin of appreciation which takes into account the ‘historical development, cultural diversity and political thought within Europe’ (Hirst (no .2), [61]) when their choice of system of government is appraised, according states a ‘wide [but] not all-embracing’ (Hirst (no .2), [82]) margin of appreciation in determining voting eligibility detrimentally affects fundamental democratic rights of individual Europeans, as Strasbourg’s jurisprudence concerning voting rights of non-resident citizens (expatriates) exhibits. All democratic states set eligibility criteria for elections of their institutions of government. Alongside the ubiquitous exclusion of non-citizen residents (at least from) national elections of their state of residence, some states - including members of the Council of Europe - impose residency requirements which disqualify expatriates during (part or all) of their period of absence. Consequently, otherwise eligible citizens of one member state of the Council of Europe residing in another member state can be excluded from elections of their state of citizenship and from elections of their state of residence.
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02 Jul

We haven't blogged recently here about the Chevron Ecuador case, but over the weekend the Washington Post carried a long analysis and profile by Business section reporter Steven Mufson on the state of play - focused particularly on a Washington insider part of the saga, the involvement of DC lobbying-law firm powerhouse, Patton Boggs.  Patton Boggs has been an adviser...

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29 Jun

ABC reports: The McDonald's restaurant chain refused to open a branch in a West Bank Jewish settlement, the company said Thursday, adding a prominent name to an international movement to boycott Israel's settlements. Irina Shalmor, spokeswoman for McDonald's Israel, said the owners of a planned mall in the Ariel settlement asked McDonald's to open a branch there about six months ago. Shalmor...

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19 Jun

On 11 June 2013, Judge Sanji Mmasenono Monageng asked the Presidency to excuse her from the Appeals Chamber concerning the recent denial of Libya's admissibility challenge to the case against Saif Gaddafi, which Libya is appealing. Judge Monageng's request was based on her previous participation (as Presiding Judge) in the Pre-Trial Chamber's decision to issue an Arrest Warrant for Saif...

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