University of Minnesota, Twin Cities, USA
April 17, 2014
The Center for Holocaust and Genocide Studies, the Human Rights Program and the
Institute for Global Studies are hosting three days of events to commemorate the 20th
anniversary of the genocide that took place in Rwanda in 1994. The events will include a
public conference (April 16th), a student conference (April 17th) and a K-12 teacher
workshop (April 19th). The objectives of the commemorative events are to promote public
understanding of what happened in Rwanda, analyze the immediate responses by the
international community, and discuss the long-term implications for international policy and
actions to prevent and respond to genocide. Continue reading
The Institute for Constitutional History is pleased to announce another
Robert H. Smith seminar for advanced graduate students and junior faculty!
*Modern Constitutional War Powers*
The six-week seminar concerns the evolution of the distribution of war
powers from the beginning of the Twentieth Century to the present day. The
Founders endeavored to create a federal system in which a separation and
blending of powers would make the legislature the preeminent source of
military authority and thus prevent the executive from unilaterally
entangling the nation in costly belligerent adventures. Conventional
wisdom has it that practical developments over the past 100 years—most
significantly, the creation of a powerful standing army and intelligence
establishment, the development of nuclear weapons, and the emergence of a
much more robust role for the United States as a superpower responsible for
the defense of Europe and other allies in a post-nuclear age—have rendered
the original constitutional design obsolete, such that Congress and the
courts have largely ceded war-making authority to an all-powerful,
virtually unchecked President. In this interdisciplinary course, using
conventional legal materials as well as recent historical and political
science accounts of the distribution of war powers, we will examine whether
and to what extent this conventional account is accurate, and will more
broadly discuss whether the current balance of powers ensures sufficient
checks on misguided adventurism and abuse of individual liberties. Continue reading
By Tobias Thienel
On 19 July 2012, the European Court of Human Rights gave judgment in the case of Koch v Germany. The case is notable for advancing the debate on a right of assisted suicide, without itself entering into the debate at all. It is also noteworthy for recognising that not only the person wishing to die, but also that person’s close relatives, have a legal interest in the matter.
The facts were – as so often in these cases – tragic. The applicant’s wife had been suffering for some time from total sensorimotor quadriplegia, that is to say she was almost completely paralysed and utterly dependent on carers. She wished to commit suicide, and therefore contacted the relevant authorities for permission to obtain some pentobarbital of sodium (otherwise used for lethal injections in the United States). Her application was refused. She eventually committed suicide in Switzerland, where the law was more amenable to her wishes.
Her husband attempted to continue the legal proceedings begun by his wife (and himself). His case was ruled inadmissible at all levels, including by the Federal Constitutional Court (Case No. 1 BvR 1832/07). (Only the court at first instance added, obiter, that the husband would also have failed on the merits, the withholding of the poison having been lawful.) The courts found that the surviving husband could not rely on any rights formerly enjoyed by his late wife. In particular, his rights under the constitutional protection of marriage (Article 6(1) of the Basic Law) did not bestow standing on him to raise the issue whether his wife should have been given the right to obtain the medication to end her life.
The European Court of Human Rights disagreed, at least in the result. It joined the analysis of the German courts in holding that the applicant could not rely on his late wife’s rights under the ECHR as such. However, it found the applicant’s own rights under Article 8 ECHR to be engaged. He had been married to his wife for 25 years and had felt for her during her quest to end her life. Accordingly, on account of ‘the exceptionally close relationship between the
applicant and his late wife and his immediate involvement in the
realisation of her wish to end her life‘, the Court held that the applicant himself had been directly affected by the decision regarding his wife’s access to lethal drugs (para 50).
By Tobias Thienel
A recent case in the English courts – until now the High Court and the Court of Appeal – has raised absolutely central points about the act of state doctrine, and in so doing has neatly explained the doctrine. (I know this doctrine is not actually a rule of international law, but it is not unrelated.)
The case is interesting also at a political level. The names of the parties are telling: Yukos Capital Sarl v OJSC Rosneft Oil Company  EWCA Civ 855. Yukos famously used to be the company of Mikhail Khodorkovsky, the businessman and billionaire who has fallen foul of the Kremlin and has spent the last few years in prison. His company, too, has been largely broken up and rid of its assets. The respondent in the English proceedings, on the other hand, Rosneft, is a Russian state-controlled company.
Yukos Capital Sarl had won an arbitral award against Rosneft. This had later been annulled in Russian state court proceedings. However, a court in the Netherlands (the Gerechtshof Amsterdam at second instance) later still recognised the arbitral award and declined to recognise the judgment annulling it. The court held that the Russian court had not been impartial and independent owing to the strong political elements of the case (Decision of 28 April 2009, Case No. 200.005.269/01, available via http://zoeken.rechtspraak.nl/default.aspx).
The case then moved to England. As in the Netherlands, Yukos sought recognition and enforcement of the award in its favour. Also as in Amsterdam, Yukos argued that the Russian annulment should be refused recognition because it had constituted ‘a travesty of justice’.
Rosneft resisted this argument on the basis of the English act of state doctrine. This doctrine holds,in the broadest outline, that English (like U.S.) courts ‘will not sit in judgment on the acts of the government of another done within its own territory‘ (Underhill v Hernandez, 168 U.S. 250, 252 (1897)) or ‘will not adjudicate upon the transactions of foreign sovereign states‘ (Buttes Gas Oil Co v Hammer (No 3)  AC 888, 931G). On this basis, Rosneft said that the decision of the Russian courts, as a sovereign act, could not be questioned in an English court.
By Tobias Thienel
I may have something more to say on this in due course, but for now, here’s the decision of the Westminster Magistrates’ Court. At first glance, it would seem that the judge has interesting things to say on (a) the evidence against Mr Assange, (b) the effect of certain statements hostile to Mr Assange by the Prime Minister on the criminal proceedings and (c) the prospect of a fair trial in Sweden, with particular regard to the likelihood that his case may be heard in private.
By Lennert Breuker
I recently blogged on the intentions of the Dutch cabinet to send a new mission to Afghanistan. Although I am strongly in favor of a sustained effort to support the reconstruction of the country, I lamented the lack of a genuine, thorough debate when it concerns decisions like these involving matters as war and peace. With for instance a virtually automatic support for the illegal invasion of Iraq as a result.
And also this time there were signals that warranted a critical scrutiny of the American request to send a police trainings mission, as the opinion of political activist Sytse Bosgra suggested. However, his claim that the Dutch would be training Afghan policemen who would subsequently also be deployed in combat situations without adequate armor, weapons and training found no resonance at all in the explanatory document that accompanied the decision of the cabinet. It spoke of the training of ‘civil police’ that stand ‘closest to the Afghan people’, and quite predictably of building a rule of law.
It may have led some – or maybe many – to believe that Bosgra’s account was a bit far-fetched. I even recall the comment of an editor of the same journal that published Bosgra’s opinion, that Bosgra engaged in leftish conspiracy thinking. Which cannot be excluded of course.
But neither can it be corroborated. Particularly after monday’s parliamentary hearings which revealed information that directly supported the core of his contentions. Afghan officials, an NGO representative and classified Dutch military intelligence reports affirmed that Afghan police would be deployed in combat situations if deemed desirable. Continue reading
By Lennert Breuker
The Dutch cabinet is currently considering participation in a new mission in Afghanistan. Dutch media are reporting that this time the mission would entail the sending of a contingent of police officers – approximately 350 – to serve as trainers for the Afghan police forces. Whether the cabinet will succeed in generating sufficient political support for the mission is still unclear. A majority in parliament does not support further participation in combat missions, and would only be open to initiatives aimed at reconstruction efforts. It is thus likely that the trainings mission will be framed in terms of reconstructing part of the executive branch essential for a functioning government, namely the police. Which indeed comes across as a legitimate goal.
Such a portrayal of the mission might obscure the fact that the Dutch will be asked to co-operate with a US policy worth a critical scrutiny at the least, as a recently published opinion of political activist Sietse Bosgra in a major daily journal suggested.
By Otto Spijkers
One of my favorite topics to think about is the place of the individual in the world. It seems I am not the only one who does so. In fact, in her 2009 Christmas address, the Queen of the Netherlands warned ‘her’ people about the increasing individualism in Dutch society. According to our Queen, there is a real danger that the Dutch are slowly alienating themselves from the local community, from the warm bonds of neighborliness, and instead turn into isolated, cynical, and cold-hearted individuals. And the social networks on the internet (Facebook, Hyves, etc.) only accelerate this process, said the Queen, because they replace ‘real’ connections with ‘unreal’, or virtual connections.
By Tobias Thienel
Okay, this may be a little facile, and it’s definitely not what the Committee has said, but witness these statements in the official announcement (CNN video here, transcript here; emphasis in the following mine):
The Norwegian Nobel Committee has decided that the Nobel Peace Prize for 2009 is to be awarded to President Barack Obama for his extraordinary efforts to strengthen international diplomacy and cooperation between peoples. The Committee has attached special importance to Obama’s vision of and work for a world without nuclear weapons.
Obama has as President created a new climate in international politics. Multilateral diplomacy has regained a central position, with emphasis on the role that the United Nations and other international institutions can play. Dialogue and negotiations are preferred as instruments for resolving even the most difficult international conflicts. The vision of a world free from nuclear arms has powerfully stimulated disarmament and arms control negotiations. Thanks to Obama’s initiative, the USA is now playing a more constructive role in meeting the great climatic challenges the world is confronting. Democracy and human rights are to be strengthened.
Only very rarely has a person to the same extent as Obama captured the world’s attention and given its people hope for a better future. His diplomacy is founded in the concept that those who are to lead the world must do so on the basis of values and attitudes that are shared by the majority of the world’s population.
For 108 years, the Norwegian Nobel Committee has sought to stimulate precisely that international policy and those attitudes for which Obama is now the world’s leading spokesman. The Committee endorses Obama’s appeal that "Now is the time for all of us to take our share of responsibility for a global response to global challenges."
Now if only Mr Bush could be reached for comment…
By Otto Spijkers
To celebrate 400 years of enduring friendship between the Netherlands and the United States, the Netherlands government has made a website called NY400 (there is also a Dutch version), with lots of info on the relationship between the Netherlands and the United States of America. It is worth a look.
In a speech of today, the Dutch Minister for Foreign Affairs talked about this happy relationship. Just below are the most interesting parts of his speech (in my opinion that is).
First on the topic of shared paper:
Let me share a historical fact with you that amazed me when I first learned about it. Did you know that the paper on which the Declaration of Independence was printed in 1776 is of Dutch origin? I had no idea. But the ‘broadsides’ John Dunlap used to print his famous copies of the Declaration on the night of the fourth of July were made around 1770 in the Zaanstreek in Holland. This is one of history’s remarkable little details that points to a much broader historical connection between the United States and the Netherlands.
Then on the topic of shared history:
In 1609, Henry Hudson and his crew landed on the shores of what is now Manhattan. The first Dutch settlers followed in his wake. New York City’s street names and flag still bear witness to their early presence.
And finally on the topic of shared values:
The spirit of American society can partly be traced back to Dutch immigrants, who brought with them open-mindedness, tolerance, an enterprising spirit, free trade, a good work ethic and a strong belief in freedom of speech and freedom of religion. In those early years, many minority groups lived alongside each other. They had the freedom to maintain their own identity and practise their religion, as long as they worked hard and contributed to the greater good. It was a model that worked well for New Amsterdam, with its diverse population. It made New York the cosmopolitan city it is today.
Respect for diversity, freedom of speech and freedom of religion are deeply rooted in American society, which truly reflects those potent words of the Founding Fathers: all men are created equal and endowed with certain unalienable rights. Some historians argue that Thomas Jefferson and his fellow drafters drew inspiration from the Dutch Act of Abjuration, written some two centuries earlier. I wouldn’t go as far as to claim copyright, but it’s interesting to see the historic parallels between our two nations.
The values that have united Americans and Dutch people since the early days continue to direct our friendship today. Both our peoples have a strong belief in tolerance, freedom and the pursuit of happiness. We seek to uphold these values at home and abroad and we do so together.