Transnational Law Blog

UN Human Rights Council fails to Address Abuses in Iran

Opinio Juris does a great change detailing the disappointment surrounding the recently established Human Rights Council, which was established to replace the UN Commission on Human Rights.  The Council was established to combat the ineffectiveness of the previous Commission.  Yet now, it seems to be plagued by the precise political biases which hurt both the General Assembly and Security Council in enacting comprehensive responses to human rights concerns.  Specifically, the Council completely failed to recognize the significant human rights abuses committed in Iran in the past few years, particularly under the leadership of President Ahmadinejad.  As Human Rights Watch correctly notes in their recent statement:

Twenty-five of the council’s 47 members favored ending scrutiny of both Uzbekistan and Iran. Among the 25 states are many that have consistently aimed to shield abusive governments from criticism. But in this case they were joined by virtually the entire Africa group, including Gabon, Ghana, Mali, Mauritius, Nigeria, Senegal, South Africa and Zambia, which had previously supported human rights protections. Surprisingly, Brazil, Ecuador, Japan and South Korea abstained on both votes. Mexico and Switzerland abstained on the decision to discontinue consideration of Iran, while voting to maintain consideration of Uzbekistan.

This is shocking, when one considers that in this month alone the Iranian government arrested 38 women’s rights defenders in Tehran for gathering in a peaceful protest in front of the Islamic Revolutionary Court in violation of both the Iranian Constitution and international human rights norms.  In order to present itself as a legitimate mechanism for human rights, the Council, especially in these initial deliberations, cannot lose foresight of the fact that just like the ICC, its credibility is based fundamentally upon the perception that it acts without bias.

That being said though, I have to disagree with Elizabeth Cassidy on one point.  There is nothing wrong with the Council criticizing Israel at this point, nor should the Council's singling out of Israel distract us or justify the fact that Israel is committing gross human rights violations.  While the protection and promotion of human is universal, we cannot deny the fact that some states at at better safeguarded in their abuse of human rights then others.  In particular, when countries in the developed work, particularly those with superior military and political strength, such as Israel and the US, trample human rights, it is difficult absent continuous recognition of those abuses to pressure for reform and changes.  The fact is, Iran will be sanctioned by the international community both monetarily and politically.  It will be deprived of economic trade and will be condemned not only by NGO's but also by the most powerful actors in the world.  Israel, however, won't be and its not because they have a better human rights record or are acting in good faith with their international obligations.   In summary, the criticism against the UN Council should not be for its selective accountability, per se, but rather its failure to address human rights everywhere rather than one place.

Should Legal Blogs Be Regulated?

As law students, we're required to take a course on professional responsibility, which covers an entire body of law regarding how a lawyer can solicit clients and when and how a lawyer can present herself as a specialist. The internet, and in particular the blogosphere, have begun testing the boundaries of these set professional rules. There are currently states that are either considering amendments to their rules of conduct or already have amendments that could be interpreted as restricting the use and content of legal blogs.

For example, according to an article published by Litigation News, the New York State Unified Court System proposed amendments to its disciplinary rules that would have required all communications "about a lawyer or law firm, or their services" that are "disseminated through the use of a computer" to be filed with the appellate division of the state supreme court and retained by the lawyer or law firm in hard copy for at least a year. This attempt at regulating the use of the internet and blogosphere to solicit clients was amended to clarify the term "communications" but other states have adopted amendments or are considering amendments that do not clarify such terms.

A post at the Lexblog entitled, "Blogs Make it Easier Than Ever to Leave Large Law Firms", discusses how and why the use of a blog is a great tool for soliciting clients. The post claims that a lawyer can leave a big law firm, start a niche law blog in their area of expertise, and within 18 to 24 months have more than enough paying clients. The post goes on to describe how the dynamic of the blog will attract paying clients:      

You'll first start picking up clients from the search engines, then people reading on the subject seeing you cited elsewhere, then people seeing you at conferences you were invited to speak as a result of your blog, and then from folks seeing you in the trade and mass media whose reporters contacted you because of your blog.

You'll also be using your blog as a business development tool in talking with prospective clients and referral sources. You'll tell these folks to look at your blog to size up your skill, passion, and expertise in your of expertise. You'll get their email so they can be subscribed.

No theory here. I talk to lawyers each week who are leaving their firms and starting their own firm. Based on the blogging success of other lawyers, they are going to start their own blogs to bring in the new work they'll require. And it varies from consumer and small business work to work for sophisticated multi-national clients.

As the number of law blogs increases, the need to amend the professional rules governing lawyer advertising and the code of professional responsibility will also increase, and eventually these two will collide. The number of law students utilizing blogs to share and interact with the subject matter is also increasing. The Lexblog article mentions that law schools do not teach their students how to solicit clients but it is obvious that students are using the blogosphere already and will continue to do so when they begin practicing law. It would behoove all of us to keep an eye on the proposed amendments.

Just What America Needs: Online Degrees in Homeland Security - Good Grief!!!

Yes, it's a real degree! Their slogan is "Fight Crime! Fight Terrorism! Change Your Life!" A good friend of mine sent me this in an email and it was too much to not post!!! His caption: "With the click of a mouse and a little bookwork, you too can put on sunglasses and peek through people's blinds!" NO THANK YOU!

I can just imagine the classes listed in the course catalogue:

• How to Identify an Enemy Combatant
• Unitary Executive Theory: What the President Says the Constitution Says is What the Constitution Says
• Why the Geneva Conventions Do Not Apply When We Torture People
• How to Avoid the Extraterritorial Reach of Constitutional Due Process
• Phrasing Issues in Terms of Good and Evil
• Suspending Habeas and Avoiding the Suspension Clause
• Airport Security: The More Complicated, The Safer People Feel
• Connecting The War on Drugs With The War on Terror
• Theology 101: Mammonism - The American Opiate
• Iran: A Case Study on How to Villify a Country Prior to Invading

Can anyone explain this nightmare to me? Or what this degree really is? Or should we just keep listing possible courses a person would take to obtain this degree?

The Moral Authority of Amnesty International -- Losing its Bite?

This past week The Economist ran a leader (and an accompanying critique) chastising Amnesty International for its expanded focus on social and economic rights in recent years. The Economist argues that taking such a broad view of "human rights" effectively weakens the truly universal ones--viz. political rights.

Amnesty's mission has indeed evolved over the 45+ years since its inception. AI was established in 1961 as a nonprofit organization dedicated to creating "a permanent international movement in defense of freedom of opinion and religion." For its first 30 years, the scope of AI's work remained relatively narrow--concentrating on 'prisoners of conscience' for the first 10 years, and then launching a series of campaigns: against torture (1972), against state-sponsored killings (1983), and for protection of refugees (1985). AI also began to receive world-wide recognition and commendation for its efforts. It received consultative status with the UN, UNESCO, and the Inter-American Commission on Human Rights (among others) in the 1970s and 80s, and received the Nobel Peace Prize in 1977 and the UN Human Rights Prize in 1978.

However, on its 30th Anniversary in 1991, Amnesty adopted a new mandate for the scope of its work--"a world in which every person enjoys all the human rights enshrined in the Universal Declaration of Human Rights [UDHR]." The UDHR (and consequently, AI's new mission) consists not only of those rights one might intuitively associated with freedom and democracy (equality; life; liberty; bodily integrity; expression; suffrage; due process; no ex post facto laws), but also several more nebulous--and perhaps, arguable--ones: privacy in one's home, family, and correspondence; rights to one's honor and reputation; rights to leave and re-enter one's country; rights to freely marry and protection of the family; and rights to work, leisure, food, clothing, medical care, and education.

Consistent with its new mandate, several of AI's more recent campaigns incorporate these so-called economic and social rights. The "Stop Violence Against Women" campaign, launched in 2004, condemns "discrimination in law, social practice, and attitude" against women--at the hands of "the state, community and the family." While The Economist's review of this particular campaign emphasizes its socioeconomic aspects (equal access to healthcare and education), murder and rape are the issues promoted at its core. AI's other campaigns further illustrate its expanded focus. AI's "Poverty and Human Rights" campaign contends that "[e]veryone, everywhere has the right to...adequate housing, food, water and sanitation, and to education and health care"; AI's "Economic Globalization and Human Rights" campaign calls on businesses to analyze their own 'complicity' and 'sphere of influence' in the realm of human rights; and AI's "Global Control Arms" campaign (in conjunction with Oxfam and IANSA) seeks to "ease the suffering caused by irresponsible weapons transfers."

Ultimately, The Economist argues, the widened scope of AI's "human rights" mission dilutes the strength of those truly inalienable ones. Exactly which rights are universal is an issue on which nations are not entirely in accord. For example, the constitutions of France, Germany, and the US make no mention of universal rights to education, work, or healthcare; those of India, South Africa, Japan, and Mexico do. In the view of The Economist, these socioeconomic goods are best thought of as second-order determinations: While "[f]ood, jobs and housing are certainly necessities...no useful purpose is served in calling them 'rights'...Who should be educated in which subjects for how long at what cost is a political question best settled at the ballot box." Instead of focusing on these social and economic concerns, The Economist suggests that AI return to its roots--by focusing on the continued forced labor camps in China or the recent, bloody repression going on in Zimbabwe. At present, AI's broader focus does not appear to be affecting its contribution revenues (at least in the US), but the article does suggest there is perceptible hand-wringing in its upper echelons over concerns that its once powerful voice as a 'moral authority' has been muffled.

Some Must Know Basics About The Arbitration Clause

International transactions will have contacts with more than one jurisdiction, often making it unclear where disputes arising out of the transaction should be (or will be) resolved. Consequently, part of the indispensable minimum is knowing that every international contract should include a choice of law clause AND some kind of dispute resolution clause, which could either be a choice of forum clause or an arbitration clause.

The forum-selection clause in a contract states the location where any disputes relating to the agreement will be resolved. A forum-selection clause performs 2 basic functions: First, it consents to the jurisdiction of the chosen forum, removing objections of personal jurisdiction and venue. Second, if the clause is exclusive, then it prevents the parties from bringing suit in any other forum. The Supreme Court has held that a forum-selection clause should be enforced unless the party resisting enforcement can show fraud or overreaching, or that enforcement of the clause would deny a party a meaningful day in court (see M/S Bremen v. Zapata Off-Shore Co. (1972) and Effron v. Sun Line Cruises, Inc. (1995)).

International commercial arbitration is an option for resolving transnational disputes that has several benefits over litigation: Arbitration is usually faster than litigation because there is no docket and there are no appeals. The parties to the dispute can choose the arbitrators, which affords them the opportunity to select experts in a subject matter relevant to the dispute. The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known as the "New York Convention") provides for the enforcement of arbitral awards whereas no international convention currently provides for the enforcement of US judgments. Lastly, arbitration is inherently neutral, because neither party is required to litigate in the other’s court system.

An arbitration clause should include, at a minimum, 3 things: (i) A description of the type of disputes that will be subject to arbitration. (ii) A way of appointing the arbitrators (probably by reference to a set of arbitral rules). (iii) Last but not least, the place of arbitration (preferably in a country that is a signatory to the New York Convention).

It’s important to remember, however, that arbitrators can only award damages, they cannot award injunctive relief. Thus, if there is a chance that injunctive relief may be a desired remedy to a particular dispute (e.g. disputes regarding intellectual property), then the contract should specify the forum where these types of disputes will be litigated. It should also be noted that not all disputes are capable of settlement by arbitration. Under the New York Convention, each country may determine for itself what kinds of disputes are non-arbitrable. The Supreme Court has adopted a very favorable attitude towards international arbitration, taking the position that all issues are arbitrable unless Congress expressly says that they are not (see Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. (1985)).

For some illustrative examples of what happens when contracting parties fail to provide the indispensable minimum, check out a post at China Law Blog entitled, "So Ya Say You Wanna China Arbitration, Well You Know."

Covet Thy Neighbour's Lice

What is right? 

Biologist's have have generally and wisely steered clear of venturing an answer to this question.  However, they are making progress in observing the basic building blocks of morality in lower primates. 

Beginning with E.O. Wilson's 1975 book "Sociobiology," biologists have increasingly encroached on the realm of ethicists.  With apologies to Dr. Wilson and his colleagues, the basic reduction of their argument follows:

Evolutionary forces generally require self-preservation and preservation of one's progeny above all others.  Social animals, such as primates, have had to adapt considerably to make group-living beneficial.  Thus, observations of behavior potentially manifesting solace and empathy by animals may be explained as motivated by the individuals' needs for self-preservation within the group context.

This theory sheds further light on the mal-adapted foreign policy pursued by neo-conservatives under the Bush Administration.  Considering the predictable public relations disasters resulting from egregious human rights violations in Guantanamo, Abu Ghraib, and destinations of extraordinary renditions, the truth could not be more clear: America may have been more safe and secure electing the The World Famous Monkey Boy.

Charming Betsy in the Twilight Zone of Youngstown

In a post entitled, "Charming Betsy and Youngstown," Roger Alford over at Opinio Juris has summarized his argument regarding the role of foreign relations on statutory interpretation. Namely, the Youngstown categories should be read in light of the Charming Betsy presumption. In our post "Some Questions About Youngstown," we touched upon whether Justice Jackson's three categories of presidential power can be manipulated to justify any result desired. This criticism of the Jackson categories stems from the Court's use of IMPLICIT congressional authorization or prohibition. How does one determine when Congress has implicitly given authoization for the President to act or implicitly prohibited the President from acting? Alford argues that the Court should utilize the Charming Betsy presumption. Here is a sample:

Charming Betsy is an oracle to divine implied congressional intent in the foreign affairs arena. Charming Betsy requires that congressional action should not be construed to violate the law of nations if any other possible construction is available. This would suggest that under Youngstown’s first category, congressional statutes will rarely implicitly authorize executive violations of international law. But they may implicitly authorize executive compliance. Conversely, under Youngstown’s third category, congressional statutes will rarely implicitly prohibit executive compliance with international law. But such statutes may implicitly prohibit executive violations. Charming Betsy thus shifts the “twilight zone” of the middle ground in Youngstown – “[w]hen the President acts in absence of either a congressional grant or denial of authority” – toward international compliance. For congressional silence is not simply a matter of “inertia, indifference, or quiescence.” It is also a matter of presumption. We presume Congress is not acting in certain ways, i.e., to sanction violations or prohibit compliance with international law. That presumption inures to the benefit of the Executive in Youngstown’s third prong, for it increases the arena of sole executive authority to act in compliance with international law, and imposes an obligation on Congress for a clear statement of prohibition. But it also narrows the executive’s authority in Youngstown’s first prong, limiting the scope of authority to act pursuant to an implied congressional direction inconsistent with international norms....

Alford highlights the Court's use of international law principles when interpreting statutes in cases such as Hamdi and Hamdan as examples of the Charming Betsy presumption impacting Youngstown. It's a very interesting idea and we recommend checking it out.

The Military Commissions Act and Extending Due Process to the GTMO Detainees

The US Supreme Court may have an opportunity to address the constitutionality of the Military Commissions Act (MCA) of 2006 sooner than many of us thought possible. According to SCOTUSblog, attorneys for 45 detainees at the military prison camp at Guantanamo Bay, Cuba, asked the Supreme Court to rapidly review their attempt to regain the right to challenge their detention in federal court, urging the Court to hold a hearing on the issue on May 7. This request for an expedited review was filed shortly after the D.C. Circuit issued its decision in Boumediene/ Odah on February 20th. The Boumediene/ Odah decision held that the MCA stripped the federal courts of habeas jurisdiction, which the Supreme Court recognized in Rasul v. Bush, and that this jurisdiction stripping was constitutional.

One of the central issues within all of the Guantanamo Bay detainee litigation is and has been whether the Constitution can be applied extraterritorially. That is, does the Constitution apply to people outside the confines of the 50 states? And if so, then where? And does it apply to only citizens of the U.S. or also to non-citizens? In Rasul, the Supreme Court held that constitutional habeas corpus rights applied to places over which the U.S. excercises plenary and exclusive control, i.e. ultimate sovereignty, which includes Guatanamo Bay. As pointed out by the Balkinization blog:

"Recall that the GTMO detains were all captured halfway around the globe, and then brought to the Western Hemisphere. Thus, the only reason they are not entitled to habeas rights is that their U.S. captors chose to turn left and take them to the U.S.-run facility in GTMO, rather than turning right to go to a U.S. facility in say, South Carolina. Indeed, according to John Yoo's new book (and other sources), they were taken to GTMO precisely for the purpose of keeping them out of the reach of U.S. courts. Whatever the constitutional rule ought to be for aliens detained near a battlefield half a world away, it seems perverse, to say the least, that so many important constitutional protections should turn on which direction we choose to direct our ships (or planes) carrying detainees a few miles off the Florida coast."

Although the Court held in Rasul that federal courts have jurisdiction over Guantanamo, it never addressed whether the Due Process Clause applies extraterritorially. Whether or not the Due Process Clause will apply to detainees being held at Guantanamo will depend on the theory of constitutional extraterritoriality adopted by the Court in subsequent litigation.

To better understand whether the Due Process Clause applies to Guantanamo detainees, it is part of the indispensable minimum to have a basic understanding of the various theories of constitutional extraterritoriality. Five basic theories interpreting the reach of the Constitution abroad can be extrapolated from various Supreme Court opinions: a territorial approach; a compact approach; an organic approach; and two provision-by-provision approaches, one based on the language of the Constitution and another based on fundamental rights.

Evaluating the Cambodian Officials in the Khmer Rouge Tribunal

One of the most divisive issues concerning the Khmer Rouge Tribunal is the horrendous background plaguing many of the Cambodian officials who are now.  As noted by the Open Society Justice Initiative, a New York-based law group, "Cambodian court personnel, including judges, must kick back a significant percentage of their wages to Cambodian government officials in exchange for their positions on the court." Absent from the OSJI report, and absent from all of the literature and reports on the KRT, is the simple fact that many of the Cambodian officials simply are not suitable nor appropriate to sit on the KRT.  Take Nil Nonn for example, a Lower Court Judge for the KRT and President of the Battambang Court, a provincial court in Cambodia.  In his own words, Nonn has admitted to taking bribes. 

Many of the judges for the KRT also have a record of stifling human rights in their own courts.  Mong Mony Chakriya, a reserve judge for the Supreme Court and President of the Cambodian Military Court, convicted and sentenced two minors to jail despite photo evience that their confessions were extracted under torture. Ney Thol, was the judge who presided over the trial of Cheam Channy, a Cambodian politician and member of parliament for the opposition Sam Rainsy Party, charged with creating an illegal army. The trial is one of the biggest shams in recent Cambodian history and was condemned by the UN, Human Rights Watch, the European Parliament, Amnesty International and the US State Department.  One can easily argue that over half of those appointed to the KRT are officials with dubious records,  inadequate legal education, and a significant history of corruption.  Thus, their appointment to the KRT cuts against basic principles of international human rights law guaranteed fairness and justice in judicial proceedings.

TLB Blogger Smokes the Competition at the Saul Lefkowitz Moot Court Competition

We would like to congratulate our fellow blogger and a founding member of TLB, Chris Cassidy, for his outstanding performance at the regional Saul Lefkowitz moot court competition, addressing issues of intellectual property. Chris and his teammate won best brief, best oralists, and were the first place team for the San Francisco area. They'll be competing in the national competition March 24th in Washington, D.C.

Congratulations! And good luck in D.C.!!!