March 27th, 2010 at 10:25am
Earlier this month, a senior U.S. Department of State official indicated that the United States and China, following years of consideration and five months of expedited negotiations, will soon have the draft text of a Bilateral Investment Treaty (BIT). The agreement would further liberalize the trade relationship between the United States and China, as well as providing a framework for resolving future commercial disputes.
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.
For more information, please click here and here.
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March 23rd, 2010 at 08:00am
In its decision in Oršuš and Others v. Croatia on Tuesday (3/16), a seventeen-member Grand Chamber of the European Court of Human Rights (ECtHR) held that the policy of Croatian primary schools distinguishing among students based on their grasp of the Croatian language resulted in discriminatory segregation of Roma students in violation of the European Convention on Human Rights. The 9-8 decision reverses a unanimous ECtHR Chamber judgment from 2008 and counters a 2007 Croatian Constitutional Court decision that upheld the policy.
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.
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March 22nd, 2010 at 05:41pm
On February 18th and 19th, ministers representing 47 nations from the Council of Europe convened in Interlaken, Switzerland to address the need for urgent reforms to the European Court of Human Rights (ECtHR). The resulting Interlaken Declaration now sets in motion a process for developing future reforms and the continued existence of the ECtHR.
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.
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March 8th, 2010 at 07:10pm
On Tuesday, March 9, Harvard Law School, the Harvard Human Rights Program, and UNICEF will sponsor the panel discussion “Children and Transitional Justice.”
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.
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March 3rd, 2010 at 04:15pm
In Ahmet Arslan and Others v. Turkey, the European Court of Human Rights overturned, by a vote of 6-1, a 1997 decision by the Turkish courts convicting 127 Turkish nationals of breaking two laws, one against wearing headgear and the other against wearing religious clothing in public other than for religious ceremonies. The applicants, members of a religious group known as Aczimendi tarikatÿ, claimed that their conviction violated Article 9 (freedom of thought, conscience, and religion) of the European Convention on Human Rights. The ECtHR found that the decision of the Turkish courts amounted to violation of the applicants’ freedom of conscience and religion by prohibiting their expression of religion through their clothing. The court noted that it might have accepted that strict maintenance of a secular system was important for Turkey’s democracy and public safety, but that the Turkish judicial decisions at issue had failed to rely on that justification. The Court further noted that, unlike several other religious dress cases it had decided, the applicants here were punished for their religious dress in public areas that were open to all, rather than in public establishments where the state’s interest in religious neutrality might outweigh the individual’s right to manifest his or her religion.
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.
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March 3rd, 2010 at 10:17am
On February 20th of this year, a major ceasefire treaty was signed between the Darfuri Justice and Equality Movement (Jem) and the government of Sudan. Jem is only one of the many militant groups in the Darfur region. However, it has presented a significant threat to the Sudanese government. President Omar al-Bashir had made the group a priority after it launched an attack against the strategically important city of Omdurman. The treaty included a possible power-sharing agreement and provisions for the return of refugees. It was welcomed by both the international community and groups with Sudan as providing a real chance for peace within the region.
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.
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February 21st, 2010 at 08:03pm
The European Court of Human Rights, on February 11th, issued two non-final Chamber judgments concerning disappearances in Chechnya. In the two cases, Guluyeva and Others v. Russia and Dubayev and Bersnukayeva v. Russia, the applicants alleged that Russian servicemen had abducted their relatives and that domestic authorities failed to conduct an effective investigation into their allegations. The Court found Russia in violation of Articles 2, 3, 5, and 13 of the European Convention on Human Rights, which concern the rights to life, the prohibition against inhuman or degrading treatment, the right to liberty and security, and the right to an effective remedy, respectively. The cases come in the wake of a January 2010 reversal of Russia’s longstanding opposition to reforms meant to expedite the adjudication of cases before the Court.
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.
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February 13th, 2010 at 03:02pm
On February 7, a pre-trial chamber of the International Criminal Court (ICC) unanimously declined to confirm charges against Sudanese rebel leader Bahar Idriss Abu Garda. Mr. Abu Garda is the first person to appear voluntarily before the court. He had been charged with being a direct or indirect co-perpetrator of several war crimes, including murder, attacks against a peacekeeping mission, and pillaging. All of the charges arose from his alleged involvement in an attack on Sept. 29, 2007, against the UN’s African Mission in Sudan (AMIS) in North Darfur. The Chamber found that while the allegations were sufficiently serious and while the personnel and installations associated with the AMIS peacekeeping mission were entitled to protection as civilians and civilian objects, the prosecution had produced insufficient evidence to establish substantial grounds that Mr. Abu Garda had participated in the attack.
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).
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February 8th, 2010 at 08:48am
After numerous false starts, negotiations between the two parties to the decades-old stalemate in Cyprus seem to be moving forward again, this time with the assistance of UN Secretary General Ban Ki-moon. Mr. Ban Ki-moon recently made his first official visit to Cyprus. The island nation has been divided into a Greek-speaking south and a Turkish-speaking north since 1974, when a Greek-led coup sought to annex the island to Greece, prompting a Turkish invasion that claimed the top 37% of the island. The north, which calls itself the Turkish Republic of Northern Cyprus (TRNC), has only been recognized by Turkey, and has lagged behind the impressive economic development of the south, which enjoys broad international recognition and now represents the island in the European Union. UN peacekeepers patrol the unofficial border between the two sides, and the island is heavily militarized. During his visit, Mr. Ban Ki-Moon visited with leaders from both the Turkish and Greek factions.
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.
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February 5th, 2010 at 10:23am
Two trade ministers from the developing world have publicly voiced doubts about the willingness and ability of the United States to reach a global trade agreement during 2010. Their criticism calls into question the ability of leaders of the G20 nations to follow through on their September 2009 promise to conclude a trade agreement this year.
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.
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