Archive for March, 2010
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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