Transnational Law Blog

This Blogger Needs a Brief Hiatus

The time has come for me to take a break from the blogging world and focus my attention on preparing for the California Bar exam. It has been a pleasure blogging throughout my law school tenure, and I look forward to returning after I take the Bar exam in July. Although I am stepping out of the discourse for awhile, there is the possibility that some of my colleagues will continue to post, and we'll continue to accept comments. Also, we're looking for law students who are interested in blogging about transnational law issues. If you're interested, please contact me.

Have a good summer everyone! And I'll see you in a couple of months!

I Want a Certificate in Space Law, Too!

As I am coming out of finals, graduating from law school, and staring the Bar exam dead in the eye, I am fascinated by this article on Res Communis about the first law student to graduate with a specialty in space law. It should come as no surprise that I'm planning a career in transnational law but I take my hat off to anyone that is planning a career in space law-- that is just too international and out-of-this-world cool! I'll admit it, I'm jealous!

The University of Mississippi Law School is the only ABA-accredited law school in the nation with a program specializing in space law. This spring law student Michael Dodge will be the first law student in the history of U.S. jurisprudence to graduate with this unique distinction. Requirements to earn the certificate include courses on U.S. space and aviation law, international space and aviation law, and remote sensing; as well as participation in the publication of the Journal of Space Law and independent research.

Law Dean Samuel M. Davis said, "We are particularly proud to be offering these space law certificates for the first time, since ours is the only program of its kind in the U.S. and only one of two in North America."

According to the article, Dodge said his interest in space law stems from a fascination with space exploration that began when he was a young child, so when he started law school, his interest in space was based mostly on science and history.

"Once I came to the law school, I read that there was an attorney here that specialized in space law," he said. "After that, I became curious as to why space needed regulation, and how legal regimes could be constructed to govern such an expanse. After meeting Professor (Joanne) Gabrynowicz, my curiosity only grew, and ever since, I have been dedicated to researching legal issues associated with humankind’s utilization of space."

While most major law schools are just recently overhauling their programs to focus on transnational law (or what they call "international" law), Ole Miss is taking the lead on what I'm sure will prove to be a very important field of law in the very near future.

Factory in China Accidentally Makes Free Tibet Flags

A factory in China has been manufacturing 'Free Tibet' flags (h/t Foreign Passport Blog). According to the BBC, the factory owner said the flags were ordered from outside China, and he did not know the flags were a symbol for a free Tibet. The flags are known as the Snow Lion Flag and they have been banned in China. Factory workers discovered the meaning of the flag by looking it up online.

Chinese police fear that some of the flags have already been shipped to Hong Kong and could appear there during the torch relay later this week. Hong Kong is looking like it's going to be another raucous event, possibly starring Mia Farrow of all people.

Thinking of China's Loyal Youth

An editorial by Matthew Forney, former Beijing bureau chief for Time, entitled, China's Loyal Youth, explores some of the reasons why most young Chinese support their government's recent suppression of the Tibetan uprising. Forney's assessment of the next generation of Chinese-- those 30 years of age and under-- is interesting because it gives a cursory look at the future policy makers, lawyers, and businesspeople of the fastest growing economy in the world.

Forney points out that China's youth probably doesn't remember the events of the Tiananmen Square Massacre. They probably don't think of China as a police state since they've reaped the benefits of policies that have brought China more peace and prosperity than at any time in the past thousand years. All of this creates a strong sense of nationalism amongst China's youth, and Forney adds that Westerns are unlikely to find allies amongst China's youth on issues like China's human rights record.

Here is an excerpt from Forney's editorial:

Educated young people are usually the best positioned in society to bridge cultures, so it’s important to examine the thinking of those in China. The most striking thing is that, almost without exception, they feel rightfully proud of their country’s accomplishments in the three decades since economic reforms began. And their pride and patriotism often find expression in an unquestioning support of their government, especially regarding Tibet.

The most obvious explanation for this is the education system, which can accurately be described as indoctrination. Textbooks dwell on China’s humiliations at the hands of foreign powers in the 19th century as if they took place yesterday, yet skim over the Cultural Revolution of the 1960s and ’70s as if it were ancient history. Students learn the neat calculation that Chairman Mao’s tyranny was “30 percent wrong,” then the subject is declared closed. The uprising in Tibet in the late 1950s, and the invasion that quashed it, are discussed just long enough to lay blame on the “Dalai clique,” a pejorative reference to the circle of advisers around Tibet’s spiritual leader, the Dalai Lama.

Then there’s life experience — or the lack of it — that might otherwise help young Chinese to gain a perspective outside the government’s viewpoint. Young urban Chinese study hard and that’s pretty much it. Volunteer work, sports, church groups, debate teams, musical skills and other extracurricular activities don’t factor into college admission, so few participate. And the government’s control of society means there aren’t many non-state-run groups to join anyway. Even the most basic American introduction to real life — the summer job — rarely exists for urban students in China.

Recent Chinese college graduates are an optimistic group. And why not? The economy has grown at a double-digit rate for as long as they can remember. Those who speak English are guaranteed good jobs. Their families own homes. They’ll soon own one themselves, and probably a car too. A cellphone, an iPod, holidays — no problem. Small wonder the Pew Research Center in Washington described the Chinese in 2005 as "world leaders in optimism."

China's smartest and brightest speak fluent English, and they have probably studied abroad. It is more likely than not that anyone working in China will encounter China's loyal youth. When working with them, it is probably best to keep in mind their strong nationalistic pride, and when doing business in China, I'd avoid topics of discussion that will offend the Chinese party's sense of national pride. I've gotten into some heated arguments with people I've met outside of the office regarding China's "internal affairs" and it has taught me to generally keep my opinions to myself.

However, there are ways to delicately challenge anyone's patriotism. Check out this post from the This is China! Blog entitled, The De-Flowering of a Chinese Patriot (h/t China Law Blog).

Yo Ho Ho and a Bottle of Rum

An article at IntLawGrrls entitled, The Jolly Roger Still Flies, reminds us that piracy is still a very lucrative business-- I don't mean piracy in the intellectual property sense of the word-- I mean REAL pirates! Here is a piece of the article:

...[T]oday’s pirates seem to have gone largely unmentioned in the mainstream press, despite their having taken some 3200 sailors hostage over the last 10 years, which they’ve ransomed for millions of dollars (paid by the shipowners). In fact, total worldwide losses due to commercial vessel piracy are estimated at USD 13-16 billion per year. Just a little over a week ago, for example, Somalian farmers cum pirates took control of a French luxury liner, the Ponant, in the Gulf of Aden. The passengers had been dropped off and the ship was taken after it pulled out of port, as are many ships in this Gulf, where they’d apparently have to be racing along at 200 nautical miles/hour to escape capture. The 22-member crew was hostaged for a reported $2 million, but the French military operation managed to net 6 of 13 pirates and some of the booty. The legal questions now are: where will these 6 pirates be tried and how should such cases be handled in the future? International maritime law does not provide a complete answer: a state seizing a ship from pirates is authorized to prosecute the pirates (indeed, the law of nations upon which the ATCA was built required states to prosecute alleged pirates and put them to death if convicted)...

Click here for the entire post, which gives an overview of some law pertaining to pirates.

UPDATE (4/15/08): Apparently, pirates are a popular topic of discussion currently. The FP Passport blog has an integrated satellite map that shows reported incidents of pirate attacks and hijackings off the coast of Somalia between January and November of 2007 as well as incidents in 2005 and 2006. See it here.

The U.S. Military's Contemplated Use of the Blogosphere

While I was perusing the blogosphere about a week ago, I came across a post on Opinio Juris that caught my attention entitled, US Military Thought About Recruiting-- or Hiring-- Bloggers, which discusses a 2006 report for the Joint Special Operations University that suggests using bloggers to verbally attack a specific person or promote a specific message. The Opinio Juris post cited an article from the Wired Blog's Danger Room entitled, Military Report: Secretly 'Recruit or Hire Bloggers', that republished the following paragraph from the report:

Information strategists can consider clandestinely recruiting or hiring prominent bloggers or other persons of prominence... to pass the U.S. message. In this way, the U.S. can overleap the entrenched inequalities and make use of preexisting intellectual and social capital. Sometimes numbers can be effective; hiring a block of bloggers to verbally attack a specific person or promote a specific message may be worth considering. On the other hand, such operations can have a blowback effect, as witnessed by the public reaction following revelations that the U.S. military had paid journalists to publish stories in the Iraqi press under their own names. People do not like to be deceived, and the price of being exposed is lost credibility and trust.

Other than an interesting story about Big Brother, I didn't think much of the two posts until I got an email from the Washington Post asking me to check out their new national security blog called Intel Dump. The author of the Opinio Juris post, Kevin Jon Heller, made a point of saying, "I hereby pledge that, as a blogger, I have not been recruited, purchased, or 'made' by the US military (or the mafia, for that matter)." I wonder if the author of Intel Dump, Phillip Carter, can make the same claim? Carter is an attorney in NY, working for McKenna, Long, and Aldridge, and he served on active and reserve duty for nine years in the U.S. Army as a military police and civil affairs officer. I am not saying there is any connection between Carter and the military report, but he does seem like the perfect candidate to accomplish the military's objectives as outlined in the report.

Frankly, I don't have a problem with the military recruiting or hiring or simply using bloggers to disseminate their message or attack someone in the blogosphere, and I don't care if they do it openly or in secret. The military doesn't quite understand the blogosphere. The report asks more than once, "How could (to paraphrase CBS’ Klein) 'some guys in pajamas writing at home' succeed in influencing not just the careers of prominent journalists, producers and media executives, but also potentially the course of an entire election or public opinion about a war?" What is unique about the blogosphere is not the infinite amount of information but the dialogue that occurs between different blogs and between bloggers and their readers. The military report argues that if the blogger and his blog were prominent enough, then the information posted on it would influence the rest of the blogosphere.

As previously observed, blog influence can be affected by the structure of the blogosphere, in particular, the network of hyperlinks connecting one blog to another. To illustrate, imagine starting at any random blog. By following a series of links from one blog to another, one is likely to hit one of the top blogs within a few hops. Moreover, information on that top blog may have propagated out to some of the blogs that linked to it, and so on from there, perhaps even reaching the blog from whence one started. Thus, even if one is not initially aware of a particular blog, one may end up there or being exposed to information posted on it. Overall, one is more likely to encounter a well-connected blog, or information posted on it, than one that is not.

Just because a blog links to a post does not necessarily mean that the blogger agrees with it. The writer of a blog (speaking from experience) links to posts he has an opinion about and he links to it because he wants to share his opinion about it. Often times, the opinion shared is contrary to the opinion in the original post. Plus, the readers of blogs does not take what they read at face value, and they generally formulate their own opinions by comparing the different opinions of several bloggers.

The users of blogs are not stuck with the editorial agenda of their local newspaper's publisher. Unlike the paper version of the Washington Post, a reader of blogs can freely move from one source of information to the next, comparing the information and filtering out absurdities. The information can be tested by reading other blogs or by questioning the blogger. This is the real threat to any sort of hegemonic information system. Even if the military inserted clandestine bloggers to disseminate their "message", it would not automatically be accepted as truth because it would be subject to the criticism and judgment of the entire blogosphere. This is why I invite the military to join in the discussion! The more people involved, the better the discussion is going to be-- even if someone is just trying to add misinformation.

It should also be noted that the report doesn't really state whether the military plans to hire bloggers to disseminate their message in the USA or in other countries. However, after a closer read, it appears the military is considering using bloggers in other countries.

Just as during World War II, the military recruited the top Hollywood directors and studios to produce films about the war (in effect conducting domestic influence campaigns in the name of maintaining the national morale and support for the war effort), waging the war against terrorism and its underlying causes, as spelled out in the National Security Strategy, may require recruiting the prominent among the digirati (probably those native to the target region) to help in any Web-based campaign. The importance of credibility and reputation to blog influence must be taken into account when considering using a blog as a vehicle for information operations. This is especially critical given the apparent poor image and reputation of the U.S. government in countries we want to influence.

But what is said by a blogger in one country, can quickly become the subject matter of a blog in another country. The media has been relying on bloggers in Tibet to get information about the unrest there, and a blogger secretly working for the US government could potentially provide false data that would then be disseminated throughout the blogosphere here in the US. However, I still believe the blogosphere and the average blog reader would be able to deal with that kind of information and weigh its legitimacy by comparing it to other sources of information.

The study also had a very interesting analysis of the blogosphere and bloggers, which is worth a read. I particularly liked the section summarizing who most bloggers are:

Nearly 75 percent of Americans use the Internet regularly, and those who use it most regularly tend to be young, male, have some degree of college education and generally are in or from the middle to upper-middle income brackets. These are the people who tend to be the most politically active, as well. Blog creators follow this trend, being generally young, affluent, educated males with broadband access and at least six years’ experience online.

Wow! That pretty much sums me up!

Seeing The Tibet Situation Clearly: Old Tibet and Democracy for a Future Tibet

There is always two sides to every story and the same is true about the unrest in Tibet. The state operated Xinhua News issued an editorial today entitled, Don't See Tibet Through Tainted Glasses, which argues that Tibet is better now than it was before it came under the control of China. The basic argument is that people who view the Tibet situation through rose-colored glasses intentionally distort facts and deny that Tibet is experiencing its best era of development and stability and Tibetans are enjoying the broadest human rights ever. China Daily also ran an article today entitled, CNN: What's Wrong With You, detailing how the western media has been distorting the facts about the number of people injured during the rioting, the motives of the Tibetan rioters, China's response, and the history of Tibet.

According to the Tainted Glasses editorial, before China took control of the region the Tibetan people were "politically oppressed, economically exploited and frequently persecuted. A saying circulated among serfs: 'All a serf can carry away is his own shadow, and all he can leave behind is his footprints.' It is perhaps safe to say that Tibet's serf system represents the worst systematic abuse of human rights in human history."

Serfs? I had never heard of serfs in Tibet before. Articles like the one on China Confidential entitled, No Shangri-La: Life in Old Tibet, accurately summed up my western idea of old Tibet as a paradise. My musings about old Tibet pictured an idyllic religious retreat in the mountains with pleasant and content people living in harmony with each other and the rest of the world. However, it appears I was wrong. The Tibetan people lived in a feudal system before China took complete control of the region in 1959, and descriptions of life in Tibet before the Chinese occupation portray it as a country that consisted of slavery, oppression, and unimaginable human rights violations.

An article by Michael Parenti entitled, Friendly Feudalism: The Tibet Myth (2007), presents a synopsis of Tibet's feudalism, theocratic despotism, and the Chinese occupation. He gave the following summary of life in feudal Tibet:

Religions have had a close relationship not only with violence but with economic exploitation. Indeed, it is often the economic exploitation that necessitates the violence. Such was the case with the Tibetan theocracy. Until 1959, when the Dalai Lama last presided over Tibet, most of the arable land was still organized into manorial estates worked by serfs. These estates were owned by two social groups: the rich secular landlords and the rich theocratic lamas. Even a writer sympathetic to the old order allows that “a great deal of real estate belonged to the monasteries, and most of them amassed great riches.” Much of the wealth was accumulated “through active participation in trade, commerce, and money lending.”

Drepung monastery was one of the biggest landowners in the world, with its 185 manors, 25,000 serfs, 300 great pastures, and 16,000 herdsmen. The wealth of the monasteries rested in the hands of small numbers of high-ranking lamas. Most ordinary monks lived modestly and had no direct access to great wealth. The Dalai Lama himself “lived richly in the 1000-room, 14-story Potala Palace.”

Secular leaders also did well. A notable example was the commander-in-chief of the Tibetan army, a member of the Dalai Lama’s lay Cabinet, who owned 4,000 square kilometers of land and 3,500 serfs. Old Tibet has been misrepresented by some Western admirers as “a nation that required no police force because its people voluntarily observed the laws of karma.” In fact. it had a professional army, albeit a small one, that served mainly as a gendarmerie for the landlords to keep order, protect their property, and hunt down runaway serfs.

Young Tibetan boys were regularly taken from their peasant families and brought into the monasteries to be trained as monks. Once there, they were bonded for life. Tashì-Tsering, a monk, reports that it was common for peasant children to be sexually mistreated in the monasteries. He himself was a victim of repeated rape, beginning at age nine. The monastic estates also conscripted children for lifelong servitude as domestics, dance performers, and soldiers.

Comparing the Current Account Balances of the U.S. and China

The Crashing Down Now blog has a post entitled, The U.S. Account Balance?, which discussed the CIA World Factbook rank order of each country's current account balance. I've never even heard of a country's current account balance, and so I was surprised to learn that the U.S. has the largest negative balance of any other country in the world! The current U.S. balance is $ -747,100,000,000! And China has the greatest surplus! China's current balance is $363,300,000,000!

This might make sense to the folks out there who took more than one course in economics, but it baffled me. I did a quick internet search and read a couple of articles. All I really learned is that there is more than one way to calculate a country's account balance and each calculation reveals something different about the country. I particularly liked an article published by the IMF entitled, Do Current Account Deficits Matter? This article elucidated three ways of measuring a country's current account balance. One formulation of the current account balance can be expressed as the difference between national (both public and private) savings and investment. For instance, advanced economies like the U.S. invest in developing countries like China, and, as a consequence, the U.S. has a deficit and China has a surplus.

The IMF article's authors went on to ask whether a country should run a current account deficit (borrow more), and it said that it "depends on the extent of its foreign liabilities (its external debt) and on whether the borrowing will be financing investment that has a higher marginal product than the interest rate (or rate of return) the country has to pay on its foreign liabilities." It warned that a country should avoid running at a deficit for too long or else a country might experience an abrupt reversal of financing. Some causes of a reversal could be "overvalued real exchange rate, inadequate foreign exchange reserves, excessively fast domestic credit growth, unfavorable terms of trade shocks, low growth in partner countries, and higher interest rates in industrial countries influence the occurrence of reversals." Aren't some of these causes occurring right now? The authors of the article also inquired whether deficits are bad and their answer was simply, "It depends." And that is why I only took one economics class.

I'm not sure if I really learned anything from my cursory investigation, but I have to agree with the author of Crashing Down Now, who said current account balances are just one piece of the puzzle and, "ultimately, it's pretty hilarious."

AFRC Appeal: Joint Criminal Enterprise

This is the second in a series that will post excerpts from the Armed Forces Revolutionary Council Appeal Judgment from the Special Court for Sierra Leone.  The section concerns Joint Criminal Enterprise, a mode of liability that is somewhat akin to conspiracy.  As with previous selections, this post will only be a selection from the judgment for the sake of space and time.   This should not be interpreted as placing particular emphasis on certain sections.  Citations and references are omitted as well.

Joint Criminal Enterprise

The actus reus for all forms of joint criminal enterprise liability consists of the following three elements:

(i)    a plurality of persons;

(ii)    the existence of a common plan, design or purpose which amounts to or involves the commission of a  crime provided for in the Statute;

(iii)    participation of the accused in the common design involving the perpetration of one of the crimes provided for in the Statute.

The question for determination in this appeal pertains to the requisite nature of the common plan, design or purpose.  It can be seen from a review of the jurisprudence of the international criminal tribunals that the criminal purpose underlying the JCE can derive not only from its ultimate objective, but also from the means contemplated to achieve that objective.  The objective and the means to achieve the objective constitute the common plan.

In Kvocka et al. the ICTY Appeals Chamber was of the opinion that "the common design that united the accused was the creation of a Serbian state within the former Yugoslavia, and that they worked to achieve this goal by participating in the persecution of Muslims and Croats."  Whereas creation of a Serbian State within the former Yugoslavia is not a crime within the Statute of the ICTY, the means to achieve the goal, such as persecution, constitute crimes within that statute.

Reference to the indictments in cases of Martic and Haradinaj et al., cited by the Prosecution, is similarly instructive.  In Haradinaj et al. for example, it would appear that the Trial Chamber accepted that the pleading of joint criminal enterprise was proper notwithstanding the Prosecution pleading a common purpose (namely "consolidate[ing] the total control of the Kosovo Liberation Army over the KLA operational zone of Dukagjin") which itself does not amount to any crime within the Statute of the ICTY.  However, the Haradinaj Indictment clearly alleges that the joint criminal enterprise involved the commission of crimes such as intimidation, abduction, imprisonment, beating, torture and murder of targeted civilians in violation of Articles 3 and 5 of the ICTY Statute.

Furthermore, the Appeals Chamber notes that the Rome Statute of the International Criminal Court ("Rome Statute" and "ICC," respectively) does not require that the joint criminal enterprise has a common purpose that amounts to a crime within the ICC's jurisdiction.  Indeed, the Rome Statute departs altogether from the use of the phrase "amounts to" and instead requires that the "criminal activity or criminal purpose . . . involves the commission of a crime within the jurisdiction of the Court."  This formulation reflects the consensus reached by all of the States negotiating the Statute of the ICC at the Rome Conference, and therefore is a valuable indication of the views of States and the international community generally on the question of what constitutes a common purpose.

In view of the foregoing, the Appeals Chamber concludes that the requirement that the common plan, design or purpose of a joint criminal enterprise is inherently criminal means that it must either have as its objective a crime within the Statute, or contemplate crimes within the Statute as the means of achieving its objective.

Turning to the present Indictment, in order to determine whether the Prosecution properly pleaded a joint criminal enterprise, the Indictment should be read as a whole.  In particular, the most relevant paragraphs of the Indictment to the pleading of JCE are paragraphs 33-35, which state:

"33. The AFRC, including ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, and the RUF, including ISSA HASSAN SESAY, MORRIS KALLON and AUGUSTINE GBAO, shared a common plan, purpose or design (joint criminal enterprise) which was to take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone, in particular the diamond mining areas. The natural resources of Sierra Leone, in particular the diamonds, were to be provided to persons outside Sierra Leone in return for assistance in carrying out the joint criminal enterprise.

34. The joint criminal enterprise included gaining and exercising control over the population of Sierra Leone in order to prevent or minimize resistance to their geographic control, and to use members of the population to provide support to the members of the joint criminal enterprise. The crimes alleged in this Indictment, including unlawful killings, abductions, forced labour, physical and sexual violence, use of child soldiers, looting and burning of civilian structures, were either actions within the joint criminal enterprise or were a reasonably foreseeable consequence of the joint criminal enterprise.

35. ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, by their acts or omissions, are individually criminally responsible pursuant to Article 6(1). of the Statute for the crimes referred to in Articles 2, 3, and 4 of the Statute as alleged in this Indictment, which crimes each of them planned, instigated, ordered, committed or in whose planning, preparation or execution each Accused otherwise aided and abetted, or which crimes were within a joint criminal enterprise in which each Accused participated or were reasonably foreseeable consequence of the joint criminal enterprise in which each Accused participated."

The ultimate objective alleged in paragraph 33 of the Indictment, namely: to "take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone, in particular the diamond mining areas," may not itself amount to a crime within the Statute of the Special Court, nonetheless, paragraph 33 of the Indictment read together with paragraphs 34 and 35 demonstrates the Prosecution's allegation that the parties to the common enterprise shared a common plan and design to achieve the objective by conduct constituting crimes within the Statute.

Paragraph 33 of the Indictment states that the plan was to "take any actions necessary" to gain territorial control and political power.  Paragraph 34 of the Indictment states that the actions "included": controlling the population of Sierra Leone; using members of the population to support the JCE; and specifically enumerated crimes such as "unlawful killings, abductions, forced labour, physical and sexual violence."  Paragraph 35 of the Indictment also indicates that crimes "referred to in Articles 2, 3, and 4 of the Statute . . . were within [the] joint criminal enterprise," or that those crimes were a reasonably foreseeable consequence of the JCE.

The Appeals Chamber holds that the common purpose of the joint criminal enterprise was not defectively pleaded. Although the objective of gaining and exercising political power and control over the territory of Sierra Leone may not be a crime under the Statute, the actions contemplated as a means to achieve that objective are crimes within the Statute.  The Trial Chamber took an erroneously narrow view by confining its consideration to paragraph 33 and reading that paragraph in isolation.  Furthermore, the Trial Chamber erred in its consideration of "evidence" adduced at trial to determine whether the Indictment was properly pleaded.  The error arose because determination of whether the Prosecution properly pleaded a crime must be determined on the basis of whether the Prosecution pleaded all the material facts in the Indictment, not whether it had adduced evidence to support the allegations.

Several other issues arose in the context of JCE for which the Appeals Chamber wishes to express itself.  The Trial Chamber erred in concluding that the Prosecution could not plead the basic and extended forms of joint criminal enterprise liability in the alternative on the grounds that the two forms, as pleaded, logically exclude each other.  Pleading the basic and extended forms of JCE in the alternative is now a well-established practice in international criminal tribunals.  The Trial Chamber erred in finding that the Indictment failed to specify the period covered by the  JCE.  That period is that covered by all of the alleged crimes, which in this case is between 25 May 1997 and January 2000.

The Appeals Chamber having concluded that joint criminal enterprise was not defectively pleaded in the Indictment, need not address the Trial Chamber's finding that the Prosecution failed to cure the defective pleading of JCE.  Similarly, Kanu's Tenth Ground of Appeal, that the Trial Chamber erred in law by failing to quash the entire Indictment after finding that joint criminal enterprise was defectively pleaded, must fail.

Medellin v. Texas: ICJ decision creates an international obligation, but not domestic law

This morning’s decision in Medellin v. Texas is the culmination of a long line of cases, both at the ICJ and at the Supreme Court, that have attempted to determine the effect that an ICJ ruling has under U.S. domestic law. In the law review comment I am working on, I have approached this problem from the perspective of trying to doctrinally resolve the Medellin line of cases with the Supreme Court’s decision in Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985). In Mitsubishi, the Court determined that parties to an international commercial contract that appointed a third-party arbitrator would, absent an entirely egregious result, be bound to the decision of the arbitrator, even if such a decision is not the same result as what would be achieved in the courts. Thus, I wondered why it might not be possible for states to take a similar approach and appoint a third party arbitrator (such as the ICJ) to resolve disputes arising under a treaty (a contract between states).

The Supreme Court in Breard and Sanchez-Llamas seemed to be hostile to the idea of allowing the ICJ such a power. Thus, I anticipated that the decision in Medellin would limit the power of the ICJ to create a binding obligation. My prediction last week was that the Court would determine that while the ICJ had the power under the treaties to decide that the US had breached an obligation to Mexico or to other states and perhaps order damages, it would not allow the ICJ the power to order  compliance measures that would have any effect under federal law. While this would be an unsatisfying answer (it is clear to most that the ICJ’s powers are not limited to award of damages), this was in some way reconcilable with Mitsubishi, since international third-party arbitrators are limited to awarding damages (and thus do not have the power to order a party to comply with the contract, only to determine that a breach has occurred.

My prediction, I think, was fairly close. I predicted it would be 5-4, though in fact it was 5-3 with a narrow concurrence by Stevens. The court did find that there is an international obligation, but declined to allow the ICJ to dictate the terms upon which it should be complied with domestically without some further action by the legislature. My initial reaction is that that approach is easily reconcilable with the approach taken in Mitsubishi. The opinion expressly notes that it is undisputed that the ICJ decision is an international legal obligation of the United States (p.8). The subsequent question is that if we accept that the US has this obligation, what needs to be done? Petitioner argued that nothing needs to be done, and that the domestic courts now have the power and obligation to enforce the judgment. The Solicitor General argued that nothing needs to be done until the President says what should be done. The Court rejected both of those approaches, and determined that compliance with our international legal obligation in this case requires some action on the part of the legislature.

Others, I’m sure, will debate the merits of whether the determination that nothing in either the Optional Protocol or Article 94 of the UN Charter creates a self-executing obligation under federal law. I think that there are good arguments to be made on either side of that debate. But the question of whether the judgment is a binding legal obligation is clear. The only question left domestically is: who is responsible for enforcing that obligation? The Court seems to state that it cannot be the judiciary acting alone, nor the executive acting alone. Thus, this problem is put squarely in the legislature’s lap (whether the federal Congress, or the state legislatures). For those concerned with constitutional overstepping of the President and/or the judiciary, this is a superb result. And even for those of us who are committed internationalists and would like to see a greater acceptance of international tribunals, this decision is not problematic. In a sense, it is a reaffirmation of the international obligation we have under the treaties, and merely concerns itself with the internal steps we must take in order to comply.

Before you go to the Olympic Games in China

Amid the violent protests in Tibet and the calls for a boycott of the Beijing Olympics, the US State Department issued a "fact sheet" regarding the upcoming 2008 Olympic games in Beijing. The fact sheet says that China is generally safe but the "recent violence in Tibet" and a recently "failed attempt to create an explosion on a passenger plane in flight from western China’s Xinjiang Province to Beijing are good examples of how potentially dangerous events can occur in the run-up to the Olympics." The fact sheet says early preparation is key for anyone planning on being in China for events in August or September, and it outlines several topics of concern.

The part of the fact sheet concerning a tourist's expectations of privacy has generated a lot of press and chatter in the blogosphere. According to the State Department:

All visitors should be aware that they have no reasonable expectation of privacy in public or private locations.  All hotel rooms and offices are considered to be subject to on-site or remote technical monitoring at all times.  Hotel rooms, residences and offices may be accessed at any time without the occupant’s consent or knowledge.

As one blogger noted at the Venture Chronicles, "It’s amazing that this would be news to people… China is an authoritarian communist state, it’s not like going to Disneyland." I concur with this general sentiment. However, there are few of us that are important enough for the Chinese government to spy on. In general, I doubt the Chinese government has the motivation or even the resources to rifle through the hotel rooms of every tourist.

In response to this section of the fact sheet, the Chinese Foreign Ministry said privacy in China is guaranteed by law (see the AP article). "Foreign visitors do not need to be concerned," spokesman Qin Gang said in a statement posted late Sunday on the ministry Web site. "In public places in China, such as hotels and offices, there are no special arrangements beyond security measures widely employed in accordance with international norms."

Privacy should be low on a tourist's list of concerns when traveling to China, and the fact sheet discusses other areas of greater concern. For instance, the State Department also said:

Many hotels and apartment buildings may be of substandard construction, lack emergency exits, fire suppression systems, carbon monoxide monitors and standard security equipment (locks, alarms, and personnel).  Americans traveling abroad should be reminded to review fire evacuation procedures for hotels, apartments or offices.

Substandard construction is a huge concern. The author of the Go East blog told the following anecdote regarding this issue:

Speaking of “substandard construction”, the last time I was in Beijing, I stayed in a relatively new high-rise hotel.  The company that I was visiting had arranged for me to have a very nice suite.  The room had great views, plenty of space and was actually pretty comfortable.  Until it started to rain.  During the storms, and for several hours after they ended, water literally ran down the walls of the room in streams.  We mentioned the issue to the hotel office, and they just acknowledged that it was a known problem.

I've stayed in wonderful places in China and some not so wonderful places. Whether you're staying in a well-known hotel franchise or a local Chinese hotel, check out the emergency exits and stairwells. The Chinese generally provide excellent service-- especially if you can get around the language barrier-- but what you've come to expect in an American hotel may not match what you get in a Chinese hotel. If you can accept that and keep track of where the emergency exits are located, then you'll have a pretty decent stay at any hotel, assuming there are no major earthquakes...

The fact sheet also included a brief assessment of crime in China's cities:

Major metropolitan areas in China are relatively safe, especially in comparison with similar sized cities in other developing countries.  A sizeable law enforcement and security presence serves as an effective deterrent against most types of crime, including those of a violent nature.  Nevertheless, the Mission assesses that while the overall crime threat is low, the number of criminal incidents, including those directed against Americans, continues to rise.

The Associated Press issued an article entitled, Foreigners Grapple with Crime in China, which gave the following account of crime in China:

Shanghai and Beijing are still safer than most foreign cities of their size. Punishments for crimes against foreigners are heavier, police-linked neighborhood watch groups are highly vigilant, and Chinese can't own guns.

"China is of course one of the safest places in the world," Foreign Minister Yang Jiechi said at a recent news briefing when asked about foreigners' safety. "If you don't believe me, ask your ambassador, ask the U.S. ambassador, ask any ambassador from Western countries, do they feel it is safer in China or safer elsewhere?"

But the booming economy draws millions to China to work, study and travel, and criminals increasingly are defying a culture that has long considered foreigners inviolate.

The U.S. government now warns Americans against muggings, beatings and even carjackings, especially in the nightlife and shopping districts of large cities.

In the past year, Chinese media have reported incidents such as the robbery of three foreigners in Nanjing, the robbery at knifepoint of a foreigner in poor Guizhou Province and the kidnapping of a foreigner, who was released the next day, for a ransom of more than $40,000 in the rich southern city of Shenzhen. All the reports refer to "wai guo ren," or foreigners, without giving nationalities.

Still, the Ministry of Public Security reports that last year it counted 289,000 robberies and 171,000 bag-snatchings overall — a tiny number for a country of 1.3 billion people. It reported only that murder and kidnapping were down 10 percent and 1.5 percent respectively from the year before, without giving the number of cases. Nor did it detail statistics on crimes against foreigners.

I've heard a number of horror stories about traveling in China but I've always felt very safe there. I have been told by Chinese and Taiwanese that as a white American I am perceived as rich by most Chinese, which is undoubtedly true. However, as a consequence of being a white foreigner, they say I am at a greater risk of being kidnapped and held for ransom. I have yet to be kidnapped or even meet an expat in China who has been kidnapped or knows of anyone who has been kidnapped. It might happen but it doesn't seem very prevalent.

I've also been told by Chinese and Taiwanese that if I'm in the company of a woman, to never let her get into a taxi first or let her exit the taxi last. The fear is that if she in the cab alone at any point in time, then the cab driver will speed off with her and sell her or do whatever people do when they kidnap a woman in China. Again, this has yet to happen to me and I have yet to meet an expat who has experienced this horrible crime. Plus, I've met a number of female expats in China who travel through China alone and ride in cabs alone on a very frequent basis, and they have yet to be kidnapped. These are worst-case scenarios that people should keep in mind, but I would not let them spoil your fun.

Speaking of which, when you're having fun, please keep in mind this very important fact: If you break the law in China, you're on your own. The State Department makes this very clear:

Americans traveling or living in China and/or Hong Kong SAR are subject to those legal systems and can be arrested for violating local law.  The Department of State or the U.S. Embassy and Consulates General cannot have an American released from prison.

The China Law Blog summarizes this issue with excellent clarity in a post entitled, Beijing Olympics-- You Want Jail Time With That? I'm just reposting an excerpt, I highly recommend reading the original post in its entirety. Dan Harris of CLB said the following:

Though I am sure most experienced travelers understand that US (or German or French or whatever) law typically ends at the border when it comes to criminal violations, you would be surprised at how many travelers either do not know this or think that their embassy or consulate will be there to bail them out no matter what. Now before you laugh, please realize many US companies believe their US trademark or patent registrations extend to China, so it is certainly not that large a legal leap for people to believe US criminal law extends to them wherever they may go.

My firm has assisted on a number of criminal cases inside China for American (and European) defendants and, nearly without exception, we are told (usually by both the defendant and his family) that the US Embassy is not doing enough to get the defendant freed from the Chinese jail. When we explain that the US government will not usually employ its political capital on this or that drug or fraud case, our clients seem downright surprised.

So to add to what AAC has already said, let me make it perfectly clear. If you get arrested in China, the role of the US government (be it the consulate the embassy, or whatever), will almost certainly be limited to helping you find a lawyer, helping you contact your family for assistance, and maybe helping you with the logistics of having your family or friends get food or magazines into you at the jail.

Harris refrains from giving advice on this issue, but I won't: Behave people! Ignorance of the law is not an excuse for breaking the law. China is a very different culture-- it's also unlike the romanticized notion of China that I encounter in the States-- many of the customs and attitudes of the Chinese can be offensive to people from the west. Please keep in mind that you are a guest in China and act accordingly.

You're also a representative of your home country. If you're a jerk, then people will naturally think anyone from your country is a jerk. It's hard enough bridging the cultural divide without having to make amends for the thousands of US citizens that descended on Beijing like a plague of drunk, audacious pigs. For the love of all that has been accomplished since China opened its doors to the west nearly forty years ago, please buy a book and learn a little about China's real culture-- not what you've seen on TV or heard about from your hippie herbalist-- but the real China, and prepare yourself for some culture shock. It just might keep you out of jail and it will make it easier on the expats in China who will have to deal with the aftermath.

That being said, there is one more issue touched upon by the State Department in its fact sheet that needs to be noted. Namely, what do you do if you need medical attention while you're in China? The fact sheet says the following:

The Chinese health-care system and facilities in China differ from those in the United States.  Chinese hospitals tend to be more crowded, personnel may have limited English-speaking skills, and medication and treatment standards are different than what Americans might expect.

Basically, if you don't speak Mandarin or have someone with you that speaks Mandarin, then I would avoid any Chinese health centers, clinics, or hospitals. Frankly, I avoid them altogether. The major cities like Beijing, Shanghai, and Hong Kong have western medical facilities that are owned and operated by expats. If you have a medical emergency that can't wait until you return home, then I would recommend finding one of these medical facilities. The doctors all speak English and were trained in either the US or Europe. Most guidebooks have a list of these facilities and how to contact them, and I would check for this information before purchasing any particular guidebook. I also recommend bringing some over-the-counter medication for diarrhea and food poisoning. Getting sick is pretty much unavoidable, which is why I recommend throwing caution to the wind and eating anything and everything, including the bar-b-qued scorpions on a stick.

Violence in Tibet Presents China With the Tiananmen Square Dilemma

A few days ago I argued in a previous post that the protests and violence in Tibet could be the first of many Tiananmen Square type incidents that occur throughout China during the months leading up to the Olympics.  An article published by the Times Online entitled, Fears of Another Tiananmen as Tibet Explodes in Hatred, corroborated my previous sentiments.  The article is written by British journalist James Miles, and according to the China Digital Times, he is the only journalist known to be in Tibet during the recent protests and riots.   Here is the portion of his report pertaining to my previous concerns:

By yesterday afternoon, China still had not regained control of the centre of Lhasa and as world attention focused on its reaction to the uprising, its leaders, gathered for a self-congratulatory meeting in Beijing, faced the “Tiananmen dilemma” – whether to use overwhelming force.

China is conscious that with the 2008 Olympics just five months away it could face a new public relations disaster on a par with the Tiananmen Square massacre, in which hundreds died when the party sent in tanks to crush pro-democracy protests in 1989.

Miles also reported that protested had spread throughout the province:

Reports from travellers told of a rippling wave of violence across the vast Tibetan heartland. It extended far into the western provinces of China and there was as yet no reckoning of the cost in lives or property of ethnic conflict in remote towns and monasteries.

Tibetan exiles reported that the authorities had lost control of the town of Xiahe, the site of the influential Labrang monastery in Gansu province in the historic area of “greater Tibet”.

As the protests spread throughout the region, the Communist Party is pressured to put an end to it.  Miles gave the following account:

True or not, reports of such demoralising scenes will intensify political pressure within the Communist party to put an end to them.

President Hu Jintao’s reputation for strength and resolve among his colleagues derives from his decision as party secretary of Tibet to crush demonstrations in 1988 and 1989 by martial law and severe military action.

Human rights groups say Hu’s policies led to pitiless retribution at the cost of many lives and a slew of well-documented abuses.

The devastation and chaos in Lhasa poses a huge problem for the Chinese government. For a regime that prizes stability above all else, it is the ultimate challenge to legitimacy.

In the years preceding the Olympics, the Chinese government has been doing everything it can to create social stability and discourage dissidence.  An article by China Brief highlights this fact and even points out the government's concern about stability in Tibet (h/t CDT): 

Even more disquieting is the fact that issues about preserving socio-political stability—and even national safety—in the run-up to the all-important Summer Olympics have dominated NPC discussions. This also seems to have provided the leadership with an ideal pretext to switch the emphasis from liberalization to the quashing of dissident and assorted challenges to the regime. From day one of the parliamentary sessions, leaders including President Hu have underscored the imperative of preventing mishaps in Xinjiang and Tibet, seen by Beijing as hotbeds of violence-prone secessionist movements. While talking with legislators from Tibet last Thursday, President Hu noted that “stability in Tibet is intertwined with national stability; and security in Tibet is closely related to national security.” Hu repeated similar warnings regarding the restive Xinjiang Autonomous Region (XAR), adding that local cadres must do more to “enhance social harmony” and “strengthen unity among ethnic groups” (Xinhua, March 6; People’s Daily, March 9).

The new property law, new labor contract law, and even the new bankruptcy law are evidence of the central government's attempts to stifle dissidence and bring about stability.  However, it may be too little, too late.  As pointed out by Miles in his article, the violent protests in Tibet have shattered "the carefully fostered illusion that Tibetans are the happy recipients of Chinese money and progress."  Miles stated that it has also destroyed the reputation of the Chinese security forces "by exposing their inability to predict an uprising and their failure to protect the Chinese inhabitants of Lhasa." 

Now that the impoverished and embittered peasantry of China have seen the example set by the Tibetan people and the inadequacies of China's security forces to handle this type of situation, what reason do they have to settle their grievances in a court of law or with any civility?

When the Tiananmen Square Massacre in 1989 occurred, foreign investors fled China like rats leaving a sinking ship.  That same kind of consequence could not follow from any of the Tiananmen Square type incidents that occur between now and the Olympic games.  The economies of China and the rest of the world are too intertwined now.  If China's economy collapsed, the country that would suffer the most would be the USA.  What sort of sanctions could the world impose on China now for any sort of Tiananmen type of human rights violations?  Skipping the Olympics seem to be the worst sanction any country could levee upon China, and would that really be that bad?

China Digital Times has a slide show of PLA armored vehicles and soldiers in the streets of Lhasa (see here).  The images are strikingly similar to those taken during the Tiananmen Square massacre.

Violent Protests in Tibet Invite Questions About The Chinese Government's Control Over The Country

The violence in Tibet is an indication of the chaos that could result from the Olympics in China. 

An article by the Christian Science Monitor posits an explanation as to why this years annual protests in Tibet are more volatile than they have been in decades.  Anne Holmes, the director of the Free Tibet Campaign in London, said in the article that the Tibetans "are aware that in the run-up to the Beijing Olympics, the media's and the world's eyes are on Tibet. They felt it was worth the risk of doing a lot more this year than they would normally dream of doing. Tibetans see this as a make or break year. This is the year when world attention is focused on China's human rights record."

Holmes is not entirely correct.  It's not that the world's attention is suddenly on China now that the Olympics are coming to Beijing.  The world's attention has been on China for a long time.  The Olympics have introduced the threat of countries boycotting the Olympics in Beijing.  That is, the Chinese government is afraid of losing face, and this gives people in China like the Tibetans great leverage when protesting.  For instance, an incident even remotely similar to the massacre in Tiananmen Square in 1989 would make the Beijing Olympics a huge failure.  It would be very embarrassing for the Chinese government if the USA or an EU nation refused to attend the Olympics.  One has to query whether China would acquiesce to the demands of a country that refused to attend unless China kowtowed to the demands of the Tibetans?

An article by the Associated Pressed had this to say:

The violence, which came on the fifth day of sporadic and largely peaceful protests, poses difficulties for a communist leadership that has looked to the Aug. 8-24 Olympics as a way to recast China as a friendly, modern power. Too rough a crackdown could put that at risk while balking could embolden protesters, costing Beijing authority in often restive Tibet.

"China is afraid of letting this protest mount. On the other hand, the world's eyes are upon China in advance of the Olympics. If they're too heavy-handed, it could cause them a lot of problems," said Jamie Metzl of the New York-based Asia Society. "It's an open question as to how much China thinks it can afford a major crisis in advance of the Summer Olympics."

There is another concern that has yet to be articulated (or I have yet to see it), and it's a very real concern of the Chinese government.  That is, what if the Chinese citizenry realize that the communist party cannot exert its military power outside of Beijing?  The massacre that occurred at Tiananmen Square in 1989 could be unique to Beijing.  Granted, the Chinese government expected and prepared for the protests in Lhasa but can they really provide sufficient support in Lhasa to suppress an outright revolt?  What about other revolts? 

It's no big secret that China has been doing its best to prevent the people in rural China from revolting as the government continues to force farmers off of their land in the name of economic progress and development.  Then there are the migrant construction workers who live in shanty-towns and barely make enough to live.  The same people that build a country can dismantle a country, and the migrant construction workers could tear down China's infrastructure as easily-- if not easier-- than they did building it.  There are also the coal miners who tirelessly work in the mines and risk being buried alive on a daily basis.  The same miners that dug those mines could bury them and cut-off the supply of coal or use their knowledge of demolition to blow up railroads, buildings, telecommunications, or even dams. 

Does the central government have the military might to suppress this kind of uprising?  Would it dare just prior to the summer Olympics?  Does this give the Chinese government a greater incentive to shut down the protests in Lhasa before it officially sets off a domino effect that could ripple through the entire country?  And what if Taiwan joins in the chorus and decides it's time to declare independence?  Would the Chinese government risk a war with Taiwan and possibly the USA just prior to the Olympics?

For more about the protests and violence occurring in Tibet, read this article by Sophie Beach at the always excellent China Digital Times.

A Reason to Have Faith in China's Legal System: The Labor Contract Law

NPR's All Things Considered did a piece recently on the new labor contract law in China.  The show barely skimmed the surface of the new law, summarizing it as "a new law requiring businesses to give workers written contracts and pay compensation if they're fired."  The NPR segment focused mostly on a couple of labor activists who had been attacked for educating workers about their new rights.  For instance, it opens with this sad story:

Companies say the law will raise costs, and some may be fighting back — literally: Labor activist Huang Qingnan, who was promoting the law, was stabbed in broad daylight. He says hired thugs were behind the attack.

For the past few years, Huang has been teaching workers in the southern boomtown of Shenzhen about their rights. He had been distributing brochures on the new labor law to workers late last year. One afternoon, two men came at him with knives on a crowded street.

"After the first cut, I started fighting back," says Huang, who added that he was cut on his arms and chest.

Huang lost so much blood after about a minute that he fell to the ground. Eventually, two friends who were with him threw bricks at the attackers and chased them away.

Today, Huang spends much of his time limping around his apartment in fluffy pink-and-blue slippers. A hunk of flesh is missing from his left calf, the result of a stab wound and a botched surgery.

So who was behind the attack?

"The factory owners," Huang says. They "don't want to lose their profits."

But instead of painting a grim picture of workers' rights here, Huang is surprisingly upbeat.

"I'm optimistic about the future," he says. "Because our workers, their consciousness is increasing."

Articles like this NPR story take travesties that are occurring in China and portray them as the norm, they make comments like "China is a communist country in name only," which have no real bearing on anything whatsoever, and they never delve beneath the surface.  These horrible sorts of acts are happening in China and all over the world, but there is also another story about China and that story is about a country that is building a rule of law system and a citizenry that is learning the law and learning to trust the courts, which are enforcing the laws.

Our previous posts-- A Reason to Have Faith in China's Legal System and Another Reason to Have Faith in China's Maturing Legal System-- shared some of our thoughts about the growing role the law plays in the lives of migrant workers in China and how that role is helping to change the Chinese perception of the law.  A story from Reuters has come out to further bolster those arguments entitled, China Migrant Laborers Learn The Law to Win Rights, and instead of telling horror stories about labor rights activists who have been beaten up or stabbed, this article focuses on the successes migrant workers are achieving by utilizing the law.  Here is a snippet of that article:

Qi Yunhui didn't even graduate from middle school, but on a recent afternoon he addressed the Shenzhen Intermediate People's Court with the confidence of a seasoned litigator.

When he came to Shenzhen in 2002, the fast talking native of China's central province of Hubei worked in a leather shoe factory. Now, he is part of a new and growing breed of "citizens' agents", former workers offering cheap legal aid to fellow migrants involved in labor disputes.

In the past five years or so, these self-taught "barefoot" labor lawyers have proliferated, filling an important niche in a country where migrant workers are increasingly caught in a dilemma -- they are encouraged by the leadership to know their rights, but lack effective, efficient channels to protect them.

"We want to encourage people to go to court," Qi, 30, said over dinner with five toy factory workers he was representing in a case over unpaid overtime.

The more people learn the law and see their rights enforced by the courts, the more people will rely on the courts in future transactions.  This means greater enforcement of contracts and IP rights for foreign investors in China.  We're witnessing the transition in China from a seemingly lawless and guanxi based system to a rule of law system.  Within the next 20 years it won't be who you know in China that matters but who wrote your contract or who is representing you in court.  The time to get in on this is now.

An article by Steve Dickinson at China International Business entitled, Power To The People, (h/t China Law Blog) has a more detailed explanation of the new labor contract law, which I've taken the liberty of partially republishing below:

The LCL makes the following important changes to prior employment practice in China: All labor contracts must be in writing. The LCL imposes significant penalties on the employer for failure to enter into a written employment contract.

All employers must maintain a written employee handbook setting out the basic rules and regulations of employment. This requirement applies to all companies regardless of size and number of employees. The failure to maintain an employee handbook means that an employer will effectively be unable to discharge employees for cause, since “cause” must be determined with reference to the employee handbook.

Severe limitations are imposed on the use of term contracts. Under Chinese law, an employee can be discharged either at the expiration of a term contract or for cause. To avoid the need to terminate for cause, employers in China have typically engaged employees under a series of short-term contracts. This practice is no longer possible under the LCL. The employer is permitted to enter into a maximum of two term-contracts with the employee.

If the employee continues on after the expiration of a second term-contract, the subsequent employment contract is deemed to be an “open-term contract.” Under an open-term contract, the employee is employed until he chooses to terminate the contract or reaches retirement age. The employer can only terminate the employment contract by discharge of the employee for breach. This means that once the relationship has shifted to an open-term contact, the result for competent employees is effectively “employment for life.”

The LCL imposes severe restrictions on the use of probationary periods in the employment relationship. Probationary periods are permitted, but the length is limited based on the term of the employment contract, with an absolute maximum set at six months. Furthermore, an employee can only be subject to a single probationary period by a single employer. Wages during the probationary period must also be no less than 80% of the contract wage.

Non-competition agreements restricted. Many foreign employers require most or all of their Chinese employees to enter into non-competition agreements that restrict their right to work for a competitor after termination of employment. The LCL imposes significant restrictions on the use of these agreements. The most important restriction is that non-compete agreements cannot be imposed on all employees. Only senior management and other employees with access to critical trade secrets can be required to enter into a non-competition agreement. The agreement must be limited in duration to two years, must be limited in geographic scope to a reasonable area and the employer must pay compensation to the employee during the period that the non-competition restriction is in effect.

The LCL imposes significant penalties on the employer for failure to comply with its provisions. These include administrative fines, awards of double wages and liability for actual damages. And virtually every violation of the law gives the employee the right to sue the employer for penalties and damages in the local employment arbitration bureau or in the local courts. The LCL has been actively publicized and employees are well informed about their rights under the new law. Growing numbers of Chinese attorneys are taking a strong interest in representing employees under the LCL in filing group claims against employers. It is this sort of employee “self help,” rather than administrative sanction, that is likely to be the greatest threat to employers under the new law.

Learn it, use it, and become part of the future in China.

AFRC Appeal: Forced Marriage

This entry is the first in a series that will post noteworthy excerpts from the Armed Forces Revolutionary Council Appeal Judgment.  Due to space and format constraints I will only post selections from the sections and will omit the references and citations.  This is not done to highlight any particular passages, but to save time and present something that is digestible.  What follows is from the Judgment:

Forced Marriage:

[ . . .]

The first issue for the Appeals Chamber's determination relates to the scope of "Other Inhumane Acts" under Article 2.i of the Statute. The Trial Chamber concluded that in light of the exhaustive categorisation of sexual crimes under Article 2.g, the offence of "Other Inhumane Acts" must be restrictively interpreted so as to exclude offences of a sexual nature. The Appeals Chamber considers that it is implicit in the Trial Chamber's finding that it considered forced marriage as a sexual crime.

In order to assess the correctness of the Trial Chamber's finding, regard must be given to the objective of the prohibition of "Other Inhumane Acts" in international criminal law. First introduced under Article 6.c of the Nuremberg Charter, the crime of "Other Inhumane Acts" is intended to be a residual provision so as to punish criminal acts not specifically recognised as crimes against humanity, but which, in context, are of a comparable gravity to the listed crimes against humanity. It is therefore inclusive in nature, intended to avoid unduly restricting the Statute's application to crimes against humanity. The prohibition against "Other Inhumane Acts" is now included in a large number of international legal instruments and forms part of customary international law.

The jurisprudence of the international tribunals shows that a wide range of criminal acts, including sexual crimes, have been recognised as "Other Inhumane Acts." These include forcible transfer, sexual and physical violence perpetrated upon dead human bodies, other serious physical and mental injury, forced undressing of women and marching them in public, forcing women to perform exercises naked, and forced disappearance, beatings, torture, sexual violence, humiliation, harassment, psychological abuse, and confinement in inhumane conditions.  Case law at these tribunals further demonstrates that this category has been used to punish a series of violent acts that may vary depending upon the context. In effect, the determination of whether an alleged act qualifies as an "Other Inhumane Act" must be made on a case-by-case basis taking into account the nature of the alleged act or omission, the context in which it took place, the personal circumstances of the victims including age, sex, health, and the physical, mental and moral effects of the perpetrator's conduct upon the victims.

The Trial Chamber therefore erred in law by finding that "Other Inhumane Acts" under Article 2.i must be restrictively interpreted. [ . . .]

The Nature of "Forced Marriage" in the Sierra Leone Conflict and its Distinction from Sexual Slavery

The Appeals Chamber recalls the Trial Chamber's findings that the evidence adduced by the Prosecution did not establish the elements of a non-sexual offence of forced marriage independent of the crime of sexual slavery under Article 2.g of the Statute; and that the evidence is completely of the crime of sexual slavery, leaving no lacuna in the law that would necessitate a separate crime of forced marriage as an "Other Inhumane Act."

The Trial Chamber defined sexual slavery as the perpetrator's exercising any or all of the powers attaching to the right of ownership over one or more persons by imposing on them a deprivation of liberty, and causing them to engage in one or more acts of a sexual nature. In finding that the evidence of forced marriage was completely of the crime of sexual slavery, the Trial Chamber found that the relationship of the perpetrators to their "wives" was one of ownership, and that the use of the term "wife" was indicative perpetrator's intent to exercise ownership rights over the victim. Implicitly, the Trial Chamber found that evidence of forced marriage was predominantly sexual in nature.

According to the Prosecution, the element that distinguishes forced marriage from other forms of sexual crimes is a "forced conjugal association by the perpetrator over the victim. It represents forcing a person into the appearance, the veneer of a conduct (i.e. marriage), by threat, physical assault or other coercion. The Prosecution adds that while acts of forced marriage may in certain circumstances amount to sexual slavery, in practice they do not always involve the victim being subjected to non-consensual sex or even forced domestic labour. Therefore, the Prosecution contends that forced marriage is not a sexual crime.

  The trial record contains ample evidence that the perpetrators of forced marriage intended to impose a forced conjugal association upon the victims rather than exercise an ownership interest and that forced marriage is not predominantly a sexual crime. There is substantial evidence in the Trial Judgment to establish that throughout the conflict in Sierra Leone, women and girls were systematically abducted from their homes and communities by troops belonging to the AFRC and compelled to serve as conjugal partners to AFRC soldiers. They were often abducted in circumstances of extreme violence, compelled to move along with the fighting forces from place to place, and coerced to perform a variety of conjugal duties including regular sexual intercourse, forced domestic labour such as cleaning and cooking for the "husband," endure forced pregnancy, and to care for and bring up children of the "marriage." In return, the rebel "husband" was expected to provide food, clothing and protection to his "wife, "including protection from rape by other men, acts he did not perform when he used a female for sexual purposes only. As the Trial Chamber found, the relative benefits that victims of forced marriage received from the perpetrators neither signifies consent to the forced conjugal association, nor does it vitiate the criminal nature of the perpetrator's conduct given the environment of violence and coercion in which these events took place.

The Trial Chamber findings also demonstrate that these forced conjugal associations were often organised and supervised by members of the AFRC or civilians assigned by them to such tasks. A "wife" was exclusive to a rebel "husband," and any transgression of this exclusivity such as unfaithfulness, was severely punished. A "wife" who did not perform the conjugal duties demanded of her was deemed disloyal and could face serious punishment under the AFRC disciplinary system, including beating and possibly death.

In addition to the Trial Chamber's findings, other evidence in the trial record shows that the perpetrators intended to impose a forced conjugal association rather than exercise mere ownership over civilian women and girls. In particular, the Appeals Chamber notes the evidence and report of the Prosecution expert Mrs. Zainab Bangura which demonstrates the physical and psychological suffering to which the victims of forced marriage were subjected during the civil war in Sierra Leone. According to the Prosecution expert:

"the most devastating effect on women of the war was the phenomenon called 'bush wife', rebel wife or jungle wife. This was a phenomenon adopted by rebels whereby young girls or women were captured or abducted and forcibly taken as wives . . . The use of the term 'wife' by the perpetrator was deliberate and strategic. The word 'wife' demonstrated a rebel's control over a woman. His psychological manipulations of her feelings rendered her unable to deny him his wishes. . . . By calling a woman 'wife', the man or 'husband' openly staked his claim and she was not allowed to have sex with any other person. If she did, she would be deemed unfaithful and the penalty was severe beating or death

'Bush wives' were expected to carry out all the functions of a wife and more . . . [S]he was expected to show undying loyalty to her husband for his protection and reward him with 'love and affection . . .'Bush wives' were constantly sexually abused, physically battered during and after pregnancies, and psychologically terrorised by their husbands, who thereby demonstrated their control over their wives. Physically, most of these girls experienced miscarriages, and received no medical attention at the time . . . Some now experience diverse medical problems such as severe stomach pains . . . some have had their uterus removed; menstrual cycles are irregular; some were infected with sexually transmitted diseases and others tested HIV positive."

In light of all the evidence at trial, Judge Doherty, in her Partly Dissenting Opinion, expressed the view that forced marriage involves "the imposition, by threat or physical force arising from the perpetrator's words or other conduct, of a forced conjugal association by the perpetrator over the victim." She further considered that this crime satisfied the elements of "Other Inhumane Acts" because victims were subjected to mental trauma by being labelled as rebel "wives"; further they were stigmatised and found it difficult to reintegrate into their communities. According to Judge Doherty, forced marriage qualifies as an "Other Inhumane Acts" causing mental and moral suffering, which in the context of the Sierra Leone conflict, is of a comparable seriousness to the other crimes against humanity listed in the Statute.

Furthermore, the Appeals Chamber also notes that in their respective Concurring and Partly Dissenting Opinions, both Justice Sebutinde and Justice Doherty make a clear and convincing distinction between forced marriages in a war context and the peacetime practice of "arranged marriages" among certain traditional communities, noting that arranged marriages are not to be equated to or confused with forced marriage during armed conflict. Justice Sebutinde goes further to add, correctly in our view, that while traditionally arranged marriages involving minors violate certain international human rights norms such as the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), forced marriages which involve the abduction and detention of women and girls and their use for sexual and other purposes is clearly criminal in nature.

Based on the evidence on record, the Appeals Chamber finds that no tribunal could reasonably have found that forced marriage was subsumed in the crime against humanity of sexual slavery. While forced marriage shares certain elements with sexual slavery such as non-consensual sex and deprivation of liberty, there are also distinguishing factors. First, forced marriage involves a perpetrator compelling a person by force or threat of force, through the words of conduct of the perpetrator or those associated with him, into a forced conjugal association with a another person resulting in great suffering, or serious physical or mental injury on the part of the victim. Second, unlike sexual slavery, forced marriage implies a relationship of exclusivity between the "husband" and "wife," which could lead to disciplinary consequences for breach of this exclusive arrangement. These distinctions imply that forced marriage is not predominantly a sexual crime. The Trial Chamber, therefore, erred in holding that the evidence of forced marriage is subsumed in the elements of sexual slavery.

In light of the distinctions between forced marriage and sexual slavery, the Appeals Chamber finds that in the context of the Sierra Leone conflict, forced marriage describes a situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim. 

Does Forced Marriage Satisfy the Elements of "Other Inhumane Acts"?

The Prosecution submits that the crime charged under Count 8 is "Other Inhumane Acts," which forms part of customary international law, and therefore, does not violate the principle of nullum crimen sine lege. Therefore, the Prosecution submits that the only question on appeal is whether forced marriage satisfies the elements of "Other Inhumane Acts." The Prosecution argues that forced marriage amounts to an "Other Inhumane Act" and that the imposition of a forced conjugal association is as grave as the other crimes against humanity such as imprisonment, causing great suffering to its victims. In particular, the Prosecution argues that the mere fact of forcibly requiring a member of the civilian population to remain in a conjugal association with one of the participants of a widespread or systematic attack directed against the civilian population is at least, of sufficient gravity to make this conduct an "Other Inhumane Act."

The Appeals Chamber agrees with the Prosecution that the notion of "Other Inhumane Acts" contained in Article 2.i of the Statute forms part of customary international law. As noted above, it serves as a residual category designed to punish acts or omissions not specifically listed as crimes against humanity provided these acts or omissions meet the following requirements:

(i)    inflict great suffering, or serious injury to body or to mental or physical health;

(ii)   are sufficiently similar in gravity to the acts referred to in Article 2.a to Article 2.h of the Statute; and

(iii)  the perpetrator was aware of the factual circumstances that established the character of the gravity of the act.

The acts must also satisfy the general chapeau requirements of crimes against humanity.

The Appeals Chamber finds that the evidence before the Trial Chamber established that victims of forced marriage endured physical injury being subjected to repeated acts of rape and sexual violence, forced labour, corporal punishment, and deprivation of liberty. Many were psychologically traumitised by being forced to watch the killing or mutilation of close family members, before becoming "wives" to those who committed these atrocities and from being labelled rebel "wives" which resulted in them being ostracised from their communities. In cases where they became pregnant from the forced marriage, both they and their children suffered long-term social stigmatisation.

In assessing the gravity of forced marriage in the Sierra Leone conflict, the Appeals Chamber has taken into account the nature of the perpetrators' conduct especially the atmosphere of violence in which victims were abducted and the vulnerability of the women and girls especially those of a very young age. Many of the victims of forced marriage were children themselves. Similarly, the Appeals Chamber has considered the effects of the perpetrators' conduct on the physical, moral, and psychological health of the victims. The Appeals Chamber is firmly of the view that acts of forced marriage were of similar gravity to several enumerated crimes against humanity including enslavement, imprisonment, torture, rape, sexual slavery and sexual violence.

The Appeals Chamber is also satisfied that in each case, the perpetrators intended to force a conjugal partnership upon the victims, and were aware that their conduct would cause serious suffering or physical, mental or psychological injury to the victims. Considering the systematic and forcible abduction of the victims of forced marriage, and the prevailing environment of coercion and intimidation, the Appeals Chamber finds that the perpetrators of these acts could not have been under any illusion that their conduct was not criminal. This conclusion in fortified by the fact that the acts described as forced marriage may have involved the commission of one or more international crimes such as enslavement, imprisonment, rape, sexual slavery, abduction among others.

The Appeals Chamber has carefully given consideration to whether or not it would enter fresh convictions for "Other Inhumane Acts" (forced marriage). The Appeals Chamber is fully aware of the Prosecution's submission that entering such convictions would reflect the full culpability of the Appellant. The Appeals Chamber is also aware that the Trial Chamber relied upon the evidence led in support of sexual slavery and forced marriage to enter convictions against the Appellants for "Outrages upon Personal Dignity" under Count 9 of the Indictment. Since "Outrages upon Personal Dignity" and "Other Inhumane Acts" have materially distinct elements (in the least, the former is a war crime, and the latter a crime against humanity) there is no bar to entering cumulative convictions for both offences on the basis of the same facts. However, in this case the Appeals Chamber is inclined against such cumulative convictions. The Appeals Chamber is convinced that society's disapproval of the forceful abduction and use of women and girls as forced conjugal partners as part of widespread or systematic attack against the civilian population, is adequately reflected by recognising that such conduct is criminal and that it constitutes an "Other Inhumane Act" capable of incurring individual criminal responsibility in international law.

The Appeals Chamber therefore grants Ground Seven of the Prosecution's Appeal. 

AFRC Appeal Judgment

The Appeal Judgment in the Armed Forces Revolutionary Council (AFRC) case was filed and released on March 3.  There are a number of sections in the Judgment that I am sure will be of interest, notably, the Joint Criminal Enterprise section and the Forced Marriage section.  Over the next couple of days I will post sections of the Judgment and would welcome comments and critiques of the Judgment's conclusions and approach.  Although I have a number of thoughts on the Judgment, I will keep them in reserve until I am no longer associated with the Appeals Chamber. I look forward to the discussion.

Is the United States a Harbinger of Global Economic Mayhem?

It's really not a news flash that the United States is facing tough times ahead.  The Dow Jones Industrial Average fell 300.57 points today, which is attributed to a huge loss from insurance giant AIG.  An article from FOX News says, "Today's sell-off has put the Dow and S&P on pace for their fourth consecutive monthly losses -- something that hasn't happened since 2002."

A post on the Foreign Policy Passport blog entitled, Is The United States Dragging The World Toward Recession?, predicts global economic mayhem:

The Financial Times published three stories yesterday that represent more bad news about the U.S. economy: the dollar is reaching new lows against the euro and a trade-weighted basket of currencies; the Federal Reserve is so concerned about U.S. growth that Chairman Ben Bernanke signaled there would be yet another rate cut in March, in spite of inflation risks; and U.S. manufacturing data revealed that orders were the lowest in five months, and home sales reached a 13-year low. As Nouriel Roubini argues in the cover story of the latest issue of FP, this spells grave news -- not just for the United States, but for the rest of the world.

Roubini argues that the impending U.S. recession will cause global economic mayhem. He lays out five triggers that will form the roots of sharp economic downturn in countries around the world, if not a full-fledged global recession: a drop in trade, a weak dollar, the bursting of housing bubbles around the world, a fall in commodity prices, and a faltering of financial confidence.

The Crashing Down Now blog has an excellent post entitled, China: Savers Versus Debtors, that elucidates how dependent the US dollar is on the kindness of other countries:

Hey, as bad as things are becoming in the US, at least we don’t have 100,580.2% inflation like Zimbabwe.  But, like the Zimbabweans, we are to a large degree kept from complete disaster by loans from China.  In fact, about half of the three trillion dollars we owe to foreign nations is owed to China.

Whereas we Americans like to spend all the money we have, and then spend all the money we don’t have, both on an individual and collective basis (can anyone say