News on the Act of State Doctrine

pic Royal Courts of Justice.JPG

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 [2012] 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) [1982] 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.

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CEDAW 52nd Session Country Reports: Bulgaria and Jamaica

By Mel O’Brien

The country reports of Bulgaria and Jamaica were addressed at the end of the first week of the 52nd session of CEDAW. Both states worked quite hard to answer all the questions of the Committee.

In the case of Bulgaria, there have been quite a lot of new laws promulgated recently, as well as the establishment of a Commission on Protection Against Discrimination. The news laws include one on anti-discrimination (including gender, race, etc). In 2005, a domestic violence law was passed, which has also been amended in 2009 and 2010. The Penal Code also offers domestic violence protection, including provisions for violation of protection orders, and others on general crimes such as assault and murder. In addition, there are new hate crime provisions in the Penal Code, and new legislation against trafficking in persons. The government is in the process of amending the Penal Code further (for 2012 or 2013), including the removal of provisions that outlaw ‘crimes against sexual morality’, and the ability of rapists to avoid punishent by marrying their victims.

One of the ongoing concerns of the Committee through all of the issues was the issue of Roma women. In 2012, the Bulgarian government launched a National Strategy for the Integration of the Roma, and this focuses on prevention of discrimination and hate crimes, including against Roma women. The Strategy has two timeframes of application, the first from 2012 to 2015, the next from 2016 to 2020.

CEDAW 52nd Session Country Reports: Guyana and Indonesia

 By Mel O’Brien

The second and third days of the 52nd session of the CEDAW have addressed the country reports of Guyana and Indonesia. Issues addressed across both countries included migrant workers, domestic workers, education, women in politics, HIV/AIDS healthcare, healthcare for prostitutes, and trafficking in persons.

There was quite a stark contrast in the presentations and answers from the two states. Guyana had a small delegation of two ministers, the Minister for Education and the Minister for Human Services. Both women delivered succint, detailed responses to the questions posed y the Committee experts. They dealt with issues such as the differing services provided to women in the hinterland (which is the majority of the country geographically but only 5% of the population resides there) compared to those more comprehensive services provided to women on the coastline, particularly in the capital Georgetown. Guyana is a nascent democracy, and since its last CEDAW report, has enacted a significant number of new and pertinent pieces of legislation, including a Sexual Offences Act, a Domestic Violence Act, a Prevention of Crime Act and a Protection of Children Act. There is also government provided healthcare system which includes provision for sexual and reproductive health. In 2003 the Constitution was amended to enshrine rights of equality and non-discrimination, and women constitute 32% of the Guyana parliament. Child marriage was another issue discussed, which has been reduced since Guyana raised the age of consent for marriage from 13 to 16.

 In contrast, the Indonesian government delegation contained a large number of people from different ministries, and offered very general responses to answers, much to the disappointment of the Indonesian NGO representatives present. The Committee was particularly critical, emphasising the rights issues that were raised in the previous CEDAW report on Indonesia, and how none of these issues have been addressed. The Committee was also extremely blunt and even undiplomatic in calling the Indonesian government on the issues of female genital mutilation (FGM). In particular, those members of the Committee from Islamic states were quite adament about the fact that Islam does not condone FGM. FGM was reiterated as a violation of human rights norms, under CEDAW, the Convention on the Rights of the Child, and the Convention Against Torture, and Indonesia’s law stating that FGM must be conducted by a medical professional was highly criticised by the Committee. With regards to reparations for women who are victims of violence, particularly sexual violence, from armed conflict, such as the 1965 conflict and conflicts in Aceh and Timor Leste, the Indonesian government offered little resonse, simply stating that the issue is ‘complex’  and that the government has made ‘significant progress’, but did not elaborate on what such progress is. In general, the Indonesian delegation made many references to ‘action plans’ relating to a variety of areas such as development and gender mainstreaming, but failed to provide examples of what specific actions these plans contain and how they are being implemented.

30 Years of Working to Eliminate Discrimination Against Women- 52nd Session of CEDAW

By Mel O’Brien

This year marks the 30th Anniversary of the Convention on the Elimination of Discrimination Against Women. Today the Committee on the Elimination of Discrimination Against Women held a 30th Anniversary Event during its 52nd Session at UN Headquarters. The brief event focused on women’s political participation and leadership, and the pursuit of equality in this area. Mr Jan Eliasson, Deputy Secretary-General of the UN, spoke about the importance of equality and non-discrimination and how his office is seeking to achieve that, through intergration of human rights principles. Michele Bachelet, the head of UN Women, gave an excellent speech about how women in positions of leadership inspire young women to seek further education and aspire to be leaders themselves some day. The event also heard from several women from different countries, who hold positions in their home countries in the legal profession, government or civil society organisations, and the challenges that they face in their home states with regards to achieving parliamentary parity and legislative changes to implement rights under CEDAW.

By 2030, the UN is aiming for 30% women in all governments/parliaments across the world. Currently only about 30 states have at least 30% women in their parliaments, which certainly makes the UN goal an ambitious one, but still an essential one. Having women in leadership roles ensures that a wider variety of issues are addressed by governments, including women’s concerns. 

I am attending the 52nd Session of the CEDAW as a delegate of the American Society of International Law, and will post regularly during the next three weeks. During this session, the CEDAW will address the state reports of Bulgaria, Guyana, Jamaica, Indonesia, Mexico, New Zealand, Bahamas, and Samoa.  

Circumcision and the German Courts

gavelApologies for my prolonged absence from these digital shores.

 

Parts of Germany and Europe are currently all abuzz due to a judgment of the Regional Court (Landgericht) of Cologne, under which the circumcision of young boys incapable of giving consent constitutes an offence of causing actual bodily harm. The defendant, a Muslim doctor, was acquitted only because he had been in an unavoidable error of law. Adam Wagner at the UK Human Rights Blog has a useful summary and a good English translation of the judgment.

 

This post is intended not so much to give my opinion on the merits of the case. To be brief, I rather doubt that the Regional Court has given sufficient weight to the freedom of religion. The fact that the procedure alters the body of the boy forever is clearly a valid point in balancing the rights of freedom of religion and of the physical integrity of the boy, but I don’t think it’s decisive as such. Parents influence their children in many ways, many of which are ultimately irrevocable. Nonetheless we accept the right of the parents to take such decisions with effect for their children. Moreover, there is a technical legal point: Certainly under the German Basic Law, and in some respects also under the ECHR, freedom of religion receives greater protection than physical integrity. This should be considered in striking the balance, although it obviously does not provide a complete answer.

 

The main question for this post is one that Adam Wagner briefly alludes to at the UKHRB: The Regional Court is at the lowest level of German courts bar one. Its judgments therefore do not carry a great deal of authority. Other courts will not be deterred from taking a different view, as they might be if the judgment had been one of a superior or supreme court. The question therefore arises, with a view to the development of the law, whether the case from Cologne can now move up the hierarchy of courts.

 

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Houla: The Next Srebrenica?

In the reporting of the massacres in Houla in Syria, it has been alleged that civlians called the UN mission, located only kilometres away, to notify them of the massacres occurring at that time. The massacres occurred during the night, and in the two days either side of the night, the UN had come to Houla. Houla civilians are thus questioning why the mission did not come to help them- a cry that echoes of Srebrenica. However, what it is important to note is that the mission in Syria is a Supervision Mission. Its mandate is extremely limited. The mission is to monitor the cessation of armed violence through up to 300 UNARMED military observers and an appropriate civilian component (SC Res 2043, 21 April 2012). As of 30 May, the mission has 297 unarmed military observers, 71 international civilian staff, and 14 local civilian staff. This is not a contingent with capabilities to stop armed military or militia assaults. While the mandate itself may be questioned or criticised for not being robust enough, the contingent as it exists, as it is resourced, and as it is tasked, should not be criticised for stopping armed attacks and assaults. Thus it is quite different to the situation in Srebrenica, where the mission had a much more robust mandate. Therefore, while it is still astounding that the Syrian government would engage in massacres with UN observers so close by, it is vital the media does not run with the tag line that the Supervision Mission personnel should have stopped the massacres.

Index of Economic Freedom Comparison Tool from FindTheData.com

Guest post by Jonny Kintzele 

 

For over a decade, The Heritage Foundation, one of Washington D..C’s most prestigious think tanks, partnered with the Wall Street Journal to track the march of economic freedom around the globe with the influential Index of Economic Freedom.

 

Using FindTheData’s comparison platform, the information has been presented in a user-friendly, easily navigable comparison resource of every country’s score received by the Index of Economic Freedom.

 

The overall score is a combination of a number of Freedom scores, including anything from Business Freedom and Investment Freedom, to Labor Freedom and Freedom from Corruption. Each of these scores are a product of pure quantitative data such as level of taxation, and lesser index ratings such as the Corruption Perceptions Index (CPI). FindTheData presents an explanation of each one in their Guide tab attached to the comparison.

 

The tool allows direct, side-by-side comparisons of up to 10 countries. Each index score is worth exploring and toying with. Hong Kong and Singapore top the list for Overall Freedom Score, the United States is hampered by their amount of government spending, and a low Fiscal Freedom Score hurts the Netherlands. I recommend investigating other interesting data points displayed on the Index.

 

Here’s a link to it, take a look for yourself: Index of Economic Freedom.

 

Jonny Kintzele is a student intern for FindTheBest, the parent site of FindTheData.

Lecturer/ Senior Lecturer/ Associate Professor (5 positions), School of Criminology & Criminal Justice, Griffith University, Australia

Reference: 494631

Element: School of Criminology and Criminal Justice

Work type: Continuing

TO APPLY FOR THIS VACANCY SELECT ‘APPLY’ AT THE BOTTOM OF THE PAGE

Overview:

The School of Criminology and Criminal Justice at Griffith
University is Australia’s leading criminology school and ranks among the
top Criminology Schools in the world. With over 30 faculty in the
School, as well as affiliated researchers in criminology related
research centres and over 60 PhD students, Griffith University’s School
of Criminology and Criminal Justice represents the largest community of
academic criminologists in Australia.  High quality research that is
theoretically informed and policy relevant is a core theme in the
School, as is innovative and engaged teaching across the undergraduate,
postgraduate and research higher degree programs.

These are continuing, full time positions based either at the Gold Coast or Mt Gravatt campuses.

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CfP: AFLANZ Military Discipline in the 21st Century, Auckland, NZ

Armed Forces Law Association of New Zealand
in association with  
The New Zealand & Australian Armed Forces Law Review
 
Presents  
The International Colloquium
 
‘Military Discipline in the 21st Century: the challenges of a new era’
 
31 August – 1 September 2012
To be held at the Royal New Zealand Naval Base Marae, Devonport, Auckland, New Zealand – Te Taua Moana Marae
 
Call For Papers
 
The position, role and operation of the military changed markedly from 1900 to 2000. With the first decade of the 21st century behind us, change has continued at a remarkable pace. The paradigm of the 21st century is not defined by the traditional notion of conflict between geographically defined states. With the ability of non-state entities to wage campaigns that mirror our traditional notions of war, significant pressure has been placed upon the way in which many states order their military. Military discipline is one area in which the tension between combative training, civil deployment, and peacekeeping operations have come together in ways not experienced by military forces before. The modern day soldier is therefore a highly nuanced individual, capable of deployment in any number of situations. The system of military discipline has itself been the subject of significant scrutiny. One pressure faced by the system of discipline is the way in which human rights are applied to soldiers. Notions such as the right to fair trial, access to independent counsel and the right to an independent decision maker have facilitated change in many military forces around the world. Continue reading

Draught and extreme poverty in (Sub-Saharan) Africa

By Otto Spijkers

Some States are in such desperate condition that it constitutes an immediate emergency. The United Nations has tried in various ways to encoureage the international community to assist these States. Such calls are important, now that many developed States are thinking of limiting their official development assistance to the absolute minimum.

               One of the earlier declarations specifically devoted to the development of a specific region or group of countries, adopted by the General Assembly itself, was the Declaration on the Critical Economic Situation in Africa, of 1984. [1] In that Declaration, the Assembly expressed its ‘deep concern at the profound economic and social crisis that Africa is experiencing,’ and noted that ‘the situation ha[d] assumed alarming proportions, seriously jeopardizing not only the development process but, more ominously, the very survival of millions of people.’[2] This Declaration did emphasize the ‘primary responsibility [of the African countries themselves] for their development and for addressing the present crisis.’[3] At the same time, the Assembly acknowledged that ‘the international economic environment continue[d] to affect developing countries adversely and, particularly, it had a devastating impact on the already fragile African economies.’[4] The remainder of the declaration primarily dealt with the urgent need for international (financial) assistance to Africa, both in the form of ‘emergency relief aid on a massive scale,’ i.e. aid to meet the immediate needs of Africa and essentially save lives, and more structural assistance such as official development assistance.[5]

                In 1986, the General Assembly organized a special session on Africa. There, the United Nations Programme of Action for African Economic Recovery and Development was adopted.[6] In that Programme, the Assembly first attempted to find an explanation for Africa’s ‘pervasive and structural economic problems.’[7] This is interesting, because the Assembly had not made such a serious and comprehensive attempt at defining the problem before. The Assembly referred to Africa’s ‘colonial past,’ without going into detail, but also to the ‘post-independence era.’[8] It praised African initiatives at reform, aimed at ‘breaking the vicious cycle of poverty and underdevelopment’ in which Africa was trapped.[9] As reasons why Africa found itself trapped in this way, the Assembly listed a number of ‘exogenous,’ i.e. external, and ‘endogenous,’ i.e. internal, factors. The latter included deficiencies in institutional and physical infrastructures; economic strategies and policies that had fallen short, in some cases, of achieving their objectives; disparities in urban and rural development and income distribution; inadequate human resource development; and political instability manifested, inter alia, in a large and growing population of refugees.[10] The exogenous factors included the international economic recession; the decline in commodity prices; adverse terms of trade; the decline in financial flows; increased protectionism and high interest rates; and the heavy burden of debt and debt servicing obligations. [11]

                The Programme included many obligations for the African nations themselves, and reaffirmed the African nations’ ‘primary responsibility for the development of their continent.’ [12] The obligations of the international community as a whole were essentially those of assistance, especially financial assistance. [13] In that sense, the critical need for assistance had not dramatically changed the allocation of responsibilities.

                In 1991, the results of the Programme of Action were assessed.[14] The Assembly noted that the Programme ‘did not quite become a focal point for economic policy or for resource mobilization on behalf of Africa.’[15] It thus suggested a new strategy for the future, the United Nations New Agenda for the Development of Africa in the 1990’s.[16] In this New Agenda, the Assembly once more emphasized that ‘Africa’s development [was] primarily the responsibility of Africans,’ and that ‘the international community accept[ed] the principle of shared responsibility and full partnership with Africa and therefore commit[ted]  itself to giving full and tangible support to the African efforts.’[17] Pursuant to this approach, the New Agenda thus contained a section on Africa’s own responsibilities and commitments, and a section on the responsibilities and commitments – primarily obligations to assist Africa – of the international community as a whole.[18] The New Agenda does not appear to be so drastically different from the Programme of Action adopted earlier.

                The Millennium Declaration also urged States to pay special attention to Africa.[19] Through that Declaration, States resolved, inter alia, ‘to take special measures to address the challenges of poverty eradication and sustainable development in Africa, including debt cancellation, improved market access, enhanced Official Development Assistance and increased flows of Foreign Direct Investment, as well as transfers of technology.’[20] The Declaration also referred to the United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, which had been adopted in 1994.[21]

In 2002, the General Assembly adopted the United Nations Declaration on the New Partnership for Africa’s Development.[22] This was essentially a reaffirmation of the Millennium Development Goals and certain other commitments made in more general declarations, to the extent that they were applicable to Africa.

                And in 2008, the General Assembly adopted the Political Declaration on Africa’s Development Needs.[23] The Declaration aimed to reaffirm a ‘belief in a prosperous future for Africa in which core human values of dignity and peace are fully enshrined.’[24] In that Declaration, the Assembly ‘stress[ed] that eradicating poverty, particularly in Africa, [was] the greatest global challenge facing the world today,’[25] and that ‘Africa face[d] a number of serious challenges, including poverty, hunger, climate change, land degradation and desertification, rapid urbanization, lack of adequate water supplies and energy supply and HIV/AIDS, malaria, tuberculosis and other endemic diseases.’[26] To meet all these formidable challenges, the Members of the General Assembly committed themselves to ‘assisting African countries in their struggle for lasting peace, economic growth, poverty eradication and sustainable development.’[27] One of the essentials for achieving all these goals was, in view of the Assembly, ‘good governance at all levels’ in Africa.[28] To assist Africa in this field, the States of the Assembly recommitted themselves to ‘actively protecting and promoting all human rights, the rule of law and democracy.’ [29] The Assembly also called upon developed States to honor previous commitments relating to official development assistance to Africa, and stressed the importance of attracting foreign direct investment.[30] Once again, the recommended measures and the urgency of the situation did not correspond.

          Of course, the relevance of all these declarations can be disputed, since few of them contain binding commitments, and most of the pledges made in those declarations have only partially been honored, or not at all. In a time when European States and the USA are dealing with their own problems, it is imperative that the UN General Assembly keeps reminding States of the situation elsewhere in the world.


[1]              Declaration on the Critical Economic Situation in Africa, annexed to General Assembly reolution 39/29, adopted 3 December 1984.

[2]              Idem, para. 1.

[3]              Idem, para. 6.

[4]              Idem, para. 5.

[5]              See idem, para. 9 and (especially) paras. 17-19.

[6]              United Nations Programme of Action for African Economic Recovery and Development 1986-1990, annexed to General Assembly resolution S-13/2, adopted 1 June 1986, published in Resolutions and Decisions adopted by the General Assembly during its Thirteenth Special Session 27 May – 1 June 1986, UNDoc. A/S-13/16.

[7]              Idem, para. 2.

[8]              Idem.

[9]              Idem.

[10]           Idem, para. 3.

[11]           Idem.

[12]           Idem, paras. 9-13 and para. 14.

[13]           Idem, paras. 14-20.

[14]           Assessment of the Implementation of the United Nations Programme of Action for African Economic Recovery and Development, 1986-1990, part I of the annex to General Assembly resolution 46/151, adopted 18 December 1991. 

[15]           Idem, para. 1. In paras. 17-44, the document looks in considerable detail at how Africa and the rest of the world acted on the commitments made in the Programme of Action.

[16]           United Nations New Agenda for the Development of Africa in the 1990’s, part II of the annex to General Assembly resolution 46/151, adopted 18 December 1991. 

[17]           Idem, para. 1.

[18]           See idem, paras. 10-21 and paras. 22-41.

[19]             Secretary-General Annan already pointed at the special needs of Africa in his very influential report entitled The causes of conflict and the promotion of durable peace and sustainable development in Africa, Report of the Secretary-General, distributed 13 April 1998, UNDoc A/52/871.

[20]           Millennium Declaration, para. 28.

[21]           United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, published in United Nations, Treaty Series, vol. 1954, p. 3 and further.

[22]           United Nations Declaration on the New Partnership for Africa’s Development, General Assembly resolution 57/2, adopted 16 September 2002.

[23]           Political Declaration on Africa’s Development Needs, annexed to General Assembly resolution 63/1, adopted 22 September 2008.

[24]           Idem, para. 38.

[25]           Idem, para. 5.

[26]           Idem, para. 23.

[27]           Idem, para. 7.

[28]           Idem, para. 8.

[29]           Idem.

[30]           Idem, paras. 9-15.