But some commentators have raised questions about the full legal implications of such an agreement.  In particular, the BIT could turn many American and Chinese regulatory decisions into arbitrable investment disputes.

A BIT typically permits aggrieved foreign investors to seek compensation for unfair or inequitable regulatory treatment in arbitration instead of host country domestic courts.  Such an agreement with China would mark the first time that the United States has signed a BIT with a substantial foreign investor and opened the possibility of litigating American regulatory decisions before international arbitrators.  With large scale regulatory reform on the horizon, particularly in the financial sector which has substantial Chinese investment, this possibility raises complex sovereignty questions.

In addition, arbitration of American regulatory disputes raises the tricky question of compliance with an adverse decision.  The United States has typically treated BIT’s as self-executing treaties, but Congress would have to approve the payment of adverse judgments.  Domestic political considerations would make such authorization unpalatable, and any failure to pay could jeopardize the overall BIT framework.

As of now, the parties have reached no agreement, and the U.S. Senate would have to ratify any BIT before it took effect.  But, as several commentators have noted, the issues surrounding a U.S.-China BIT merit careful scrutiny.

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The applicants, fifteen Roma students from two Croatian primary schools, contested the schools’ policy of placing students who lacked an adequate command of the Croatian language in separate classes. In both schools, the separate classes consisted solely of Roma students. They argued that this fact, taken along with the high drop-out rates and low attendance of Roma students, amounted to discriminatory school segregation in violation of Art. 14 of the European Convention on Human Rights (prohibition of discrimination) and Art. 2 of Protocol 1 to the Convention (right to education).

While all students in the separate classes were Roma, not all Roma students at the school were in separate classes. In fact, most Roma students were fully integrated. The Court thus found it could not rely upon its previous jurisprudence on the subject of school segregation, which had found prima facie discrimination only where a large majority of Roma students were subject to different schooling policies.

Nevertheless, the Court determined that the fact that only Roma students lacked sufficient grasp of the Croatian language mandated that the schools apply special safeguards to ensure that their stated end of providing for the special needs of such students was adequately pursued, especially given the position of Roma as “a special type of disadvantaged and vulnerable minority [that] require special protection.” It found such safeguards lacking. The schools did not, for example, adequately test the linguistic skills at issue or provide sufficient language instruction in the separate classes. Furthermore, they did not take measures to combat the low attendance and high drop-out rates of Roma students. From these facts, the Court concluded that “the schooling arrangements for Roma children were not sufficiently attended by safeguards that would ensure that, in the exercise of its margin of appreciation in the education sphere, the State had sufficient regard to their special needs as members of a disadvantaged group.”

The minority opinion argued that, absent evidence showing discrimination on ethnic grounds, the Court should have afforded the state “quite a wide margin of appreciation” when deciding how “to address the special needs of certain pupils.” This was especially true given that Croatia’s Constitutional Court and an ECtHR Chamber had already unanimously approved the measure. According to the minority, the majority’s reasoning is better understood as an attempt to address the general disadvantages faced by the Roma population, rather than as a response to the particular situation that the Croatian educators faced.

For further information, please see the Court’s decision and press release.

The Declaration comes in response to a heavily overburdened ECtHR. There are approximately 120,000 outstanding cases, with an estimated ninety percent being “clearly inadmissible or having no legal basis,” according to the Council of Europe. Addressing a desperate situation, Secretary General Thorbjørn Jagland announced that, “We will save the Court because we have no other choice. People in Europe deserve no less and will get no less.”

The Interlaken Conference continues a process of ECtHR reform begun in 2001. Protocol 14, which calls for long-term efficiency within the ECtHR, was proposed then but was long went unratified. On Thursday, February 18, immediately before the opening of the Ministerial Conference, the Russian Minister of Justice Alexander Konovalov deposited the ratification instrument. Protocol 14 will therefore enter into force on June 1, 2010, paving the way for court reform.

The Interlaken Declaration called on member states in consultation with civil society to produce specific proposals for reform by June 2012, and for a fuller implementation of the “subsidiarity principle,” which recognizes the primary role of national governments in implementing ECtHR decisions.

The Declaration comes during Switzerland’s sixth-month term as President of the Council of Europe.

For more information, see here.

Archbishop Desmond Tutu will participate by video, along with Yasmin Sooka of the Foundation for Human Rights, South Africa, Susan Bissell, Global Chief of Child Protection for UNICEF, Sharanjeet Parmar of Global Rights, and Jens Meierhenrich of the Harvard University Department of Government.

Harvard Law School Dean Martha Minow will moderate.  The event will take place in the Ames Courtroom in Austin Hall from 12:00 – 1:00 pm.

For more information, please click here.

The clothing mandated by Aczimendi tarikatÿ religious order includes a turban, baggy pants, a tunic, and a stick. Applicants had been arrested in 1996 while walking to the Kocatepe Mosque in Ankara, and filed their petition with the ECtHR in 1997.

For more information, see here and here.

However, less than two weeks after the signing of the treaty, there are reports that the Sudanese government has begun an offense against other rebel groups in Darfur. These clashes have given weight to demands by NGOs and other international observers that the central government include other militant groups in the peace treaty process. It is unclear whether such a proposal would be feasible, as Jem has threatened to leave the peace talks if other rebel groups are included. As a result, despite the new treaty, the prospects for peace in Darfur remain uncertain.

For further information, please see here, here, and here.

In Guluyeva, Russia’s investigation into the abduction of Ramzan Guluyev, taken from his home in Chechnya on the night of Jule 12-13 2002, was suspended numerous times for Russia’s failure to identify the perpetrators. The Court awarded Mr. Guluyev’s mother 10,800 euros, and 65,000 euros to Mr. Guluyev’s mother and two sisters jointly, plus expenses. Mr. Guluyev remains missing.

Dubayev was brought by the father of Islam Dubayev and the mother of Roman Bersnukayev. Their respective sons disappeared after submitting to a Russian Amnesty Act exculpating them from criminal liability based on their involvement in an illegal anti-Russian group. The Russian government maintains that the two men have been released. The families filed missing person reports, but the government has denied them access to case-files, despite numerous suspensions of the investigations, because it claims that revealing case-files while the investigation is in progress would violate Russian rules of criminal procedure. The Court awarded 60,000 euros to each of the applicants, plus expenses.

The applicants in Guluyeva were represented by the International Protection Centre, and in Dubayev by the NGO EHRAC/Memorial Human Rights Centre.

The judgments will become final pending the procedural protocol of the Court.

For further information, see here. For the Court’s opinion in Guluyeva and Others v. Russia, see here. For the opinion in Dubayev and Bersnukayeva v. Russia, see here.

The prosecution, led by Luis Moreno-Ocampo, had produced statements of anonymous witnesses. However, the Chamber found the statements to be of diminished probative value as they could not be directly challenged by the defense. The Chamber further found them to be “weak and unreliable due to the many inconsistencies,” and held that they failed to establish substantial grounds to believe that Mr. Abu Garda participated in any common plan to attack the AMIS mission. Further allegations that Mr. Abu Garda was himself involved in the attacks were found insufficient as the witness statements did not establish that he was present at the time of the attacks.

The Chamber’s decision not to confirm the charges presents yet another setback to the ICC’s efforts regarding the Darfur situation. The issue of Darfur was first referred to the Court by Security Council Resolution 1593 on March 31, 2005, following an International Commission of Inquiry on Darfur. Of five defendants indicted in four separate cases relating to the region, four remain outside of the Court’s custody, including Sudanese President Omar Hassan Ahmad al-Bashir. The charge of genocide against Mr. al-Bashir’s also failed to gain confirmation by the pre-trial Chamber, although the appeals Chamber recently ordered lower court to reconsider its decision in light of additional and previously disregarded evidence.

It is expected that, as in the al-Bashir case, the ICC prosecutor will again seek to appeal the pre-trial Chamber’s decision on Mr. Abu Garda.

For more information, please see the Court’s press release (here) and the Chamber’s decision (here).

Previous talks have been derailed by a number of contentious issues; the most serious recent attempt at unification, in 2004, produced an agreement which was subsequently ratified in a referendum by the north but rejected, under the hard-line presidency of Tassos Papadopoulos, by the south. Papadopoulos has since been replaced by the more moderate Demetris Christofias, but the Turkish Cypriot leader, Mehmet Ali Talat, now faces a challenge in upcoming elections from a more hard-line candidate. This has ramped up the pressure for a solution, as has the fact that the ongoing stalemate has dimmed Turkey’s prospects in its own bid for EU accession.

Legal issues relating to the conflict stem originally from the question of whether the 1974 Turkish invasion was justified as a matter of international law. Greek Cypriots argue that the invasion was a clear violation of the UN Charter, which prohibits aggressive war; their argument is supported by the fact that no multilateral body authorized the action. Turkish Cypriots counter that Turkey’s response was justified, as a form of self-defense, by the prospect of the island’s annexation to Greece, and, as a form of humanitarian intervention, by longstanding intercommunal violence directed toward the Turkish-speaking minority. Going forward, both political and legal solutions will be needed to address issues including the division of contested territory, the presence of Turkish forces, reparations for lost property, and power sharing under a proposed federation.

For more information, please click here.

Speaking at the World Economic Forum in Davos, Switzerland, South African trade minister Rob Davies cited the presence of relatively junior American officials at an ongoing round of trade talks and American refusal to base its present bargaining positions on prior compromises reached as part of the Doha Development Round negotiations as evidence that the United States is unlikely to be part of any trade agreement reached this year.  Davies also noted domestic political opposition as a factor in American hesitancy to reach a trade deal.

Rachid Mohamed Rachid, trade minister of Egypt, also recently stated that he doubted that the United States would be part of a trade agreement this year.

Developing nations had been pressing the World Trade Organization for an agreement limiting industrialized nations’ ability to subsidize agricultural exports, among other provisions.  Such an agreement now appears unlikely.

For more information, please click here.

The program is sponsored by the Harvard Law School Office of the Dean, International Legal Studies Program, and Office of Public Interest Advising.

For more information, please click here.

Firstly, the Treaty of Lisbon opens the way for the European Union’s participation in the European Convention on Human Rights, strengthening the role of human rights in Europe. Dedicated “to enhancing the efficiency and democratic legitimacy of the Union and to improving the coherence of its action,” the treaty was written in 2007. It entered into force in December 2009, a month after it was ratified by the last remaining member of the European Union, the Czech Republic. The treaty amends the Treaty on the European Union and the Treaty Establishing the European Community into a constitutional-type document intended to strengthen and guide the European Union.

Secondly, in January Russia ratified Protocol 14 of the European Convention for the Protection of Human Rights, which is designed to overhaul the procedures of the ECHR. Russia was the last of the forty-seven members of the Council of Europe to ratify the Protocol, which has been on the table since 2006.

Finally, in February 2010 a conference on the future of the ECHR will be held in Interlaken, Switzerland. The conference will draw together member states to celebrate the 50^th anniversary of the ECHR and to reaffirm their commitment to the protection of human rights in Europe, while outlining a roadmap for the Court’s future development. Currently, more than 100,000 cases are pending before the Court.

For further information, please click here, here, and here.

Despite the concerns of members like Indonesia over the impact that the agreement will have on domestic industry, ASEAN is confident that China will act cooperatively in order to ensure mutual gains. The State Councilor of the People’s Republic of China, H.E. Dai Bingguo, recently met with the ASEAN Secretariat to discuss China’s commitment to aid in the transition process, confirming China’s position in a speech before more than 300 dignitaries. This was the first time that a high-level Chinese Diplomat visited the ASEAN Secretariat.

Further, as the Secretary General of ASEAN notes, there are mechanisms such as anti-dumping safeguards in the FTA to protect the domestic markets of ASEAN member states.

For further information, please click here.

The USTIC is asking the public for input as it explores the potential effects of the TPP. A public hearing will take place on March 2, 2010 in Washington, D.C., and written submissions for the record will be accepted until March 23, 2010. The USITC’s report to the USTR should be completed by early June.

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The European Court of Human Rights acknowledged that the power-sharing mechanisms of the Bosnian Constitution were justifiably designed to achieve the aim of restoring peace to a war-torn country rife with ethnic conflict; however, it also noted that the country has made considerable progress in the fourteen years since the Dayton Peace Agreements. The court further noted the existence of other power-sharing mechanisms that do not require the exclusion of ethnic minorities not belonging to the three constituent peoples from high public office. As a result, the court found that the rule prohibiting non-constituent peoples from holding office in the House of the Peoples of the Parliamentary Assembly violated Article 14 of the European Convention on human rights (prohibiting discrimination in the enjoyment of rights guaranteed by the Convention) read in conjunction with Article 3 of Protocol No. 1 (guaranteeing the right of free elections). The court also found that the constitutional rule prohibiting the applicants from running for President violated Article 1 of Protocol No. 12 (prohibiting discrimination in the enjoyment of any right set forth by law). In terms of remedy, the court held that the finding of a violation provided just satisfaction with regards to the plaintiffs’ non-pecuniary injuries, and ordered the State to pay 1,000 Euros to the first applicant and 20,000 Euros to the second to cover their costs and expenses.

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The suit comes after extensive pressure from the United States and European Union for China to enforce intellectual property rights on behalf of companies like Microsoft. Michael Vella, the head of China litigation for Morrison & Foerster, LLP sees this as the beginning of a trend in which Chinese companies will take their own IP claims to court.

The injunction is unlikely to affect Microsoft’s long-term business goals since roughly 80% of Microsoft’s operating systems in China were pirated from Microsoft in the first place. Chinese courts are, of course, working to prevent this piracy as well. In fact, a Chinese court recently sent four bootleggers to jail for selling illicit versions of Windows 7 in advance of its launch last month.

For further information, please click here.

Chairman Fung made his remarks as he addressed the Asian Pacific Economic Cooperation CEO Summit in Singapore.  Although he praised public stimulus spending around the world for laying the groundwork for long-term economic growth, he criticized the G20 governments, especially the United States and China, for adding trade barriers.  Protectionism, he told the group, undermines successful economic recovery, and economic nationalism in the US-China trade relationship threatens to be particularly damaging.

The failure to conclude the Doha Round of trade negotiations also signals lackluster commitment to free trade and imposes another potential obstacle to worldwide recovery, Chairman Fung argued.  Although praising the G20′s ostensibly strong commitment to Doha, Chairman Fung chastised the world community for failing to conclude an agreement despite eight years of trying.

For more information, please click here.

The conversation focused on developing balanced, inclusive, and sustainable growth.  To achieve this end, the Leaders are looking to foster structural reforms in areas like infrastructure development and social security.  They aim to allocate the benefits of growth across the population by promoting small businesses, job creation, and women’s education through income supplements and short-term social safety nets.  In making these reforms, the leaders will take into account sustainability and work to make green technologies available.

The Leaders have maintained their definitive rejection of protectionism and are working to eliminate trade barriers.  They are hoping for a successful conclusion to the WTO’s Doha Development Agenda by early 2010.  Exploration continues on the prospect of a Free Trade Area of the Asia Pacific (FTAAP), and APEC hopes to achieve regional trade integration by working on liberalization “at,” “behind,” and “across” the border, particularly in areas like supply chain connectivity and intellectual property rights.

The Leaders will also work to ensure human security and governmental transparency.  In terms of security, they are particularly concerned with protecting the food supply from terrorist interference and stopping the spread of H1N1 and other global pandemics like AIDS.  With regard to transparency, they are asking governments to ratify the UN Convention against Corruption.

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South Korea’s options in responding to this incident are limited. Seoul’s right to military retaliation is constrained by the ongoing border dispute. The end of the Korean War never produced a peace treaty, and the North and South have technically been observing a truce since 1953. The North has never accepted the current sea boundary, a UN-drawn border called the northern limit line, and its ships regularly stray into waters controlled by the South. In this context, the South cannot make an undisputed claim that its territory was invaded.

South Korea’s options for less direct action are similarly constrained. While the South could initiate economic sanctions and asset-freezing, it believes that such measures could add to the desperate poverty of the North’s citizens and slow the recent détente between the two countries. In a sign that the confrontation has not altered trade relationships, a North Korean freighter was allowed to enter South Korean waters yesterday on its way to Incheon. Meanwhile, any attempt to arbitrate the dispute before an international body would require the consent of one of the most isolationist regimes in the world.

The North has a history of initiating skirmishes in order to escalate pressure before major regional events; the last time the countries clashed was in 2002, while the South was hosting the World Cup. In this case, analysts believe, the North may be trying to send a message to President Obama, who is currently visiting the region and is scheduled to arrive in Seoul on Wednesday. North Korea wants a formal peace treaty to replace the 1953 truce, including reconsideration of disputed territory. It also wants bilateral negotiations with the U.S., which it believes could lead to its acceptance as a nuclear power. President Obama, who has made engagement with “rogue states” a cornerstone of his foreign policy, plans to send special envoy Stephen Bosworth to Pyongyang for talks over ending the North’s nuclear program.

As director general of OCIR/The, the government office controlling the tea industry, Bagaragaza oversaw 11 tea factories employing approximately 55,000 people. In addition to his government position in the tea industry, Bagaragaza was also the vice-president of a bank and a political leader in Gisenyi prefecture. His role in the 1994 genocide arose when 1,000 Tutsis sought refuge at Kesho Hill and at Nyundo Cathedral in Rwanda’s Gisenyi prefecture, close to the tea factories Bagaragaza oversaw. On April 8, 1994, Bagaragaza met with Thomas Kuradusenge, a senior official of the Giciye commune, and learned of Kuradusenge’s plan to carry out the killing of the 1,000 Tutsi seeking refuge. According to prosecutors, Bagaragaza aided and abetted Kuradusenge in carrying out those killings, authorizing that vehicles and fuel from the tea factories Bagaragaza oversaw be used in the attack, and ordering that the attackers be provided with weapons Bagaragaza had allowed the army to conceal at the tea factories since 1993. Bagaragaza also ordered that personnel from the factories participate in the attacks, according to a summary of the tribunal’s judgment. On subsequent occasions, Bagaragaza gave Kuradusenge large sums of money for the purchase of alcohol, so as to encourage those carrying out the killings in the Kabaya and Bugoyi areas to continue to do so.

Bagaragaza was initially charged with conspiracy to commit genocide, genocide, and in the alternative, complicity in genocide. On August 15, 2005, he voluntarily surrendered himself to the ICTR, pleading not guilty to each of the three counts listed in the initial indictment. Following procedural complications, he eventually pleaded guilty to the complicity charge in August of this year.

In sentencing, the judges noted that Bagaragaza had shown “genuine remorse for his actions,” providing “invaluable assistance to the Prosecution in its investigations.” They said that Bagaragaza had “to a remarkable degree contributed to the process of truth-finding with respect to the Rwandan tragedy and to national reconciliation.” The ICTR further noted that the defence had provided credible showing that Bagaragaza demonstrated no bias against Tutsis, and that his participation in the organization of the killings was likely motivated by concern for himself and his family. However, the court went on to state that the evidence did not suggest that Bagaragaza, “being a very resourceful person,” would have faced imminent danger had he not complied with the requests of the perpetrators.

Bagaragaza was represented by Counsel Geert-Jan Alexander Knoops from The Netherlands. The Prosecution was led by Wallace Kapaya, assisted by Patrick Gabaake, Mousa Sefon and Iskander Ismal.

The United Nations Security Council authorized the creation of the ICTR in 1994. An estimated 800,000 ethnic Tutsis and moderate Hutus were killed in the genocide that began in early April of that year.

For further information, please see here and here.