Saturday, 14 February 2015

Moratorium on death penalty in Pennsylvania

The Governor of Pennsylvania has declared a moratorium on capital punishment in the state. Governor Wolf said: 'This moratorium is in no way an expression of sympathy for the guilty on death row, all of whom have been convicted of committing heinous crimes. This decision is based on a flawed system that has been proven to be an endless cycle of court proceedings as well as ineffective, unjust, and expensive. Since the reinstatement of the death penalty, 150 people have been exonerated from death row nationwide, including six men in Pennsylvania.'
Slowly but surely the death penalty is in decline in the United States. This trend will provide the legal basis for the Supreme Court to declare that capital punishment is incompatible with 'evolving standards of decency' enshrined in the 8th amendment.
Thanks to Brian Farrell.

Wednesday, 11 February 2015

Dr Yingxi Bi

Yingxi Bi successfully defended her doctoral thesis this morning at the Irish Centre for Human Rights, National University of Ireland Galway. The title was 'Drug Control Policies and Human Rights'. The examiners were Prof. Elies van Sleidregt, dean of the law school of the Free University of Amsterdam, and Dr Shane Darcy. From left: Shane, Elies, Yingxi and myself. Congratulations, Dr Bi! And happy new year!

Tuesday, 10 February 2015

Georgia and the Issues of "Legal Transplants"

In December of last year, the OSCE's Office for Democratic Institutions and Human Rights released a fascinating report on its trial monitoring activities in Georgia. In 2009, following significant input from USAID and other international donors, Georgia adopted an amended Code of Criminal Procedure, described by the US Embassy in Georgia as introducing 'a full adversarial system to criminal courts.'

The OSCE's report reveals inadequate judicial intervention on key issues of case management - in one case, the prosecution proposed that it would call 4,000 witnesses, and the pre-trial judge granted this request, refusing 'to assess the relevance and necessity of the witnesses, or discuss the defendants’ right to a timely hearing'. The imposition of a party-led approach to replace Georgia's old inquisitorial system appears to have led to something of a non-interventionist judicial approach in the trials observed, where on a number of occasions, the prosecution was permitted to call defendants as witnesses for the prosecution, without those defendants being told by the judges of their right to remain silent. 

These elements, combined with a reluctance to halt inappropriate or irrelevant questioning of witnesses, permitting discussion of the accused's criminal record during trial, and a general passivity in courtroom management matters, present something of a caricatured view of the adversarial legal system. Georgia's experience illustrates some of the difficulties that can be faced when elements of one legal system are transplanted to another. In the words of Professor Damaška, 'In their natural habitat, each set of practices is part of a larger procedural whole, with its own internal coherence.... Creating a successful mixture is not like shopping in a boutique of detachable procedural forms, in which one is free to purchase some and reject others.'



Corporate liability for contempt at the Special Tribunal for Lebanon: the saga continues

I have blogged previously on decisions (see here and here) regarding the STL's evolving jurisprudence on the liability of corporations for offences against the administration of justice. As will be recalled, on 2 October last year, the Appeals Panel of the STL overturned Contempt Judge Lettieri's finding that the Tribunal could not have jurisdiction over legal persons, and affirmed the case against the New TV news corporation. A little over a month later, Judge Lettieri once again ruled that the Tribunal had no jurisdiction over legal persons, this time in relation to the Al-Akhbar Beirut newspaper. Perhaps unsurprisingly, the Appeals Panel also overturned this finding in its most recent (and presumably, final) decision on the matter. 

The decision is, to my mind, the most coherent on the issue of jurisdiction over corporations for contempt offences. In line with an argument I made in my last blog post on this matter, it finds the strongest justification for such jurisdiction in the fact that Lebanese law, which the STL applies, provides for jurisdiction over corporations. In the words of the Appeals Panel (para 59), 'It would be an oddity for a Lebanese company to face criminal sanction in Lebanon for interfering with the administration of justice with respect to cases before Lebanese Courts and at the same time enjoy impunity for similar acts before an internationalised Tribunal guided by Lebanese law in carrying out its judicial work.' This is much more convincing than earlier decisions that referred to the vague principle of ending impunity or strained textual analyses of the Statute and Rules in finding that such jurisdiction over legal persons existed.

The reference to the tribunal as being 'internationalised', as opposed to the more frequent line of it being a 'tribunal of international character', is noteworthy. Indeed, a factsheet on the STL's website conflates the concepts of 'international' and 'hybrid or internationalised' tribunals by calling the STL both at different parts of the document. So, which is it? Following Schabas's suggestion in Unimaginable Atrocities, I think the wisest approach to distinguishing between 'international' and 'hybrid' tribunals is not to look at the judicial composition or the crimes prosecuted, but rather to ask whether the tribunal could be closed down by means of passing a domestic law. This is not the case for the STL, nor was it for the SCSL, so they are international tribunals. The ECCC, War Crimes Chambers in BiH and the SPSC, by contrast, were all founded by domestic legislation, and thus they are classified as 'internationalised' or 'hybrid' tribunals.

It is unfortunate that the decision did not directly tackle the issue of stare decisis, or whether lower chambers of the STL are bound by earlier appeals decisions. Instead, it referred rather vaguely to the principles of 'consistency, certainty and predictability' and underscored the similarities between this case and the New TV case. It found that it would have been 'preferable and important for judicial certainty' for the Contempt Judge to have followed the earlier Appeals Panel decision on that basis. In his November 2014 decision, Judge Lettieri had expressly dismissed the 'consistency' argument by referring to the fragmentation that would be caused by finding that one international criminal tribunal had jurisdiction over legal persons, where other tribunals do not have such jurisdiction. Rather than overturning the decision on such malleable principles as consistency, the Appeals Panel might have been better served by more explicitly following the approach taken by other tribunals, that existing jurisprudence should be departed from only where careful consideration has been given as to whether there are 'cogent reasons in the interests of justice' for such a departure. Ironically, the Appeals Panels decision leaves us without the 'certainty and predictability' it values in this respect. 

Thursday, 5 February 2015

URLs in footnotes - Don't!


Students often ask about putting a url in a footnote. For many years I have discouraged this practice. My view is that a url is not really a proper reference at all. Rather, it is an indication of a place where you may find a document. It is the electronic equivalent of putting, in the footnote, that the document can be found in the second floor of Barnes & Noble in the politics section or on the 43rd shelf of a particular library.
In any event, I have question the real use of such references. If I want to find a document, I am unlikely to keyboard in a long url. Rather, I am going to google it using a key word or two.
I find some support for my attitude in a recent article in the New Yorker ‘The Cobweb. Can the Internet be archived?’ by Jill Lepore (26 January issue, p. 34. It includes the following:

In providing evidence, legal scholars, lawyers, and judges often cite Web pages in their footnotes; they expect that evidence to remain where they found it as their proof, the way that evidence on paper – in court records and books and law journals – remains where they found it, in libraries and courthouses. But a 2013 survey of law- and policy-related publications found that, at the end of six years, nearly fifty per cent of the URLs cited in those publications no longer worked. According to a 2014 study conducted at Harvard Law School, ‘more than 70% of the URLs within the Harvard Law Review and other journals, and 50% of the URLs within United States Supreme Court opinions, do not link to the original cited information’…
The footnote, a landmark in the history of civilization, took centuries to invent and to spread. It has taken mere years to destroy. A footnote used to say, ‘Here is how I know this and where I found it’. A footnote that’s a link says, ‘Here is what I used to know and where I once found it, but chances are it’s not there anymore’. It doesn’t matter whether footnotes are your stock-in-trade. Everybody’s in a pinch. Citing a Web page as the source for something you know – using a URL as evidence – ubiquitous. Many people find themselves doing it three or four times before breakfast and five times more before lunch. What happens when you evidence vanishes by dinnertime?

Old-fashioned footnotes are the best, with proper citations to case law, treaties and secondary literature.

Tuesday, 3 February 2015

Letter of resignation

Here is my letter of resignation from the UN Commission of Inquiry on the Gaza Conflict.

Friday, 16 January 2015

Call for papers: International Law and Time

The Graduate Institute of International and Development Studies, Geneva (IHEID), International Law Department, is convening a conference entitled ‘International Law and Time’ to take place in Geneva, Switzerland, from 12–13 June 2015. A call for papers has been issued and the deadline for submission of abstracts is 15 February 2015. 
For details please visit the conference website or email lawconference@graduateinstitute.ch.

Tuesday, 13 January 2015

Call for Papers: International Law and Domestic Law- Making Processes

Dr Evelyne Schmid has sent this call for papers for a conference to be held in the University of Basel, Law Faculty, on 4 September, which may be of interest to readers:

"The reality of international law ‘in action’ largely depends on domestic legislators implementing and shaping norms originating at the international level: Domestic parliaments and other law-making bodies undoubtedly play a central role in determining whether or not the promises of international law can be fulfilled.
The importance of domestic parliaments in making international law ‘work’ is clearly due to the decentralized nature of the international legal order. In most cases, international legal norms leave considerable discretion to the state and make only minimal requirements regarding implementation. In some fields, however, international norms start to become more statute-like, decreasing the margin for the states how to implement them. Some international norms explicitly oblige states to take legislative measures. Yet, it is very unusual that international law can rely on mechanisms that would ensure the uniform implementation of international norms within national jurisdictions. Given the complex interaction between the domestic and the international level in the field of law-making, it is warranted to consider how the interactions between the international and the domestic levels complement, contest or mutually influence each other. Recent research, e.g. that on international law in domestic courts, confirms this need.
We start from the premise that the complexities of interaction and mutual influencing between domestic parliaments and the international legal order is increasing, rather than decreasing. Therefore, the upcoming event of the Working Group of Young Scholars in Public International Law (Arbeitskreis junger Völkerrechtswissenschaftler*innen, AjV) wants to shed light on selected problems connected with the interaction of domestic law-making and international law.
Topics to explore include (but are not limited to):
  1. When do domestic legislators legislate because of international norms soft or hard?
  2. International law, domestic law-making processes and direct democratic institutions
  3. International law and sub-entities of federal states (e.g. international law in the law-
    making of cantons / Länder)
  4. Designing democracy: The ECHR and the organizational law of national parliaments
    and voting rules
  5. National parliaments as opposition in international law
  1. National parliaments as providers of legitimacy to international law
  2. Duties to protect (Schutzpflichten) and national law-making
  3. State responsibility and the legislative: e.g. the legislative branch in the preparatory
    works of the ILA Articles on State Responsibility or in international case-law such as
    before the ICJ or the ECtHR
  4. Domestic parliaments and the formation of customary international law
  5. The involvement and information of members of domestic legislatives prior to
    ratifications of international treaties
  6. International law and national law-making processes in transitional states / post-
    conflict societies
  7. Transnational legislative networks
  8. Methodological approaches on international law and domestic law-making
The conference/workshop will take place on 4 September 2015 at the University of Basel and is intended for young researchers (including PhD students and Post Docs). Apart from those working in international law, other legal researchers are explicitly invited to apply. In addition, those working in related disciplines (such as sociology, political science, history, etc.) are also welcome to apply.
Presentations can be held in English and German, although English is considered more conducive for international exchange. Participants are not required to submit papers and may present work in progress. However, those who do submit final papers shortly after the workshop will be considered for publication in a special issue of a Swiss online law journal (Jusletter). Such papers can range from short notes to full articles (1’500 to 10’000 words).
We invite you to send an abstract of max. 500 words by the 27th March 2015. Please address submissions and any queries to evelyne.schmid@unibas.ch and tilmann.altwicker@unibas.ch. When submitting an abstract, please also include the following information about yourself: your name, your affiliation, your function/job title and your address. Researchers who have completed a PhD should please indicate the month and year of completion. We will notify applicants by mid-May.
Travel expenses will be covered to at least a certain extent and child care will be available. Details will be communicated in the mail of acceptance.
Organizers: Dr. Evelyne Schmid / Dr. Tilmann Altwicker (both University of Basel)

P.S. Please note that there will also be an informal AjV-workshop in Hamburg from 25- 27th September 2015 organized by Anne Dienelt und Katrin Kohoutek. Interested doctoral students and post docs are welcome to submit abstracts to the open call until 31st May to workshop_ajv@gmx.de. More information will soon be available from http://voelkerrechtsblog.com/service/ajv-veranstaltungen/. 

Saturday, 20 December 2014

More Progress in General Assembly Vote on Death Penalty Moratorium


On 18 December, by a recorded vote of 117 in favour to 37 against, with 34 abstentions, the United Nations General Assembly adopted the biannual resolution on the moratorium on the use of the death penalty.
This is the fifth such resolution since 2007. The number of States in favour has steadily increased, providing confirmation of the evolving law and practice with respect to capital punishment.
The 2007 resolution was adopted by 104 in favour to 54 against, with 29 abstentions. The following year, a similar resolution was adopted by 106 in favour to 46 against, with 34 abstentions. It was decided that the issue would return to the Assembly’s agenda every second year. The third moratorium resolution was adopted by the General Assembly in 2010 by 109 States in favour with 41 against and 35 abstentions. In the fourth moratorium resolution, adopted in 2012, votes in favour totalled 111 with 41 against and 34 abstentions.
The number of States voting against the resolution has, in the space of seven years, declined by 17. That is approximately 2.5 per year. But note as well that the number of States joining the majority on this resolution is accelerating. For the past two years, 3 States per year have changed their position to support for the resolution.
This trend in the political positions of States is also reflected in their conduct.  Ten years ago, 62 States were deemed retentionist, defined as a State that has conducted an execution within the past decade. Today, that number is about 37. That is a decline of about 2.5 States every year.
Divide 37 by 2.5 and you get 14.8. The death penalty can be expected to disappear by 2029, if not sooner.

Friday, 19 December 2014

Fifty Leading Human Rights Cases

John Louth of Oxford University Press has produced a fascinating map showing fifty leading human rights cases issued by a range of international and national courts and tribunals over the years. It is a wonderful introduction to the legal framework of human rights.