The Chautauqua Declaration

Yesterday, past and present international prosecutors held a roundtable discussion on The Laws of War: Past, Present, and Future at the Chautauqua Institution in Jamestown, NY [flyer, in English]. In celebration of the 100th anniversary of the 1907 Hague Rules, participants signed a declaration [text, in English] stressing the importance of ending impunity and of fostering the rule of law. A press release for this memorable event can be found here [pdf, in English].

The quintessence of the meeting is probably best expressed with the words of Sir Desmond Lorenz de Silva, former Prosecutor of the Special Court for Sierra Leone:

Let word go out to warlords and leaders all over the world. However powerful, however mighty, however feared you may be, the law is above you.

EU Reform Treaty: Update (3)

In connection to my previous post on the general passerelle, I would like to draw the attention to another important aspect of the Reform Treaty. For this purpose, let us have a look at the pertinent provisions of proposed Article 33 of the amended Treaty on European Union (TEU) regulating the general passerelle (emphasis added):

Article 33
[...]
Simplified revision procedures

2. The Government of any Member State, the European Parliament or the Commission may submit to the European Council proposals for revising all or part of the provisions of Part Three of the Treaty on the Functioning of the Union on the internal policies of the Union. The European Council may adopt a decision amending all or part of the provisions of Part Three of the Treaty on the Functioning of the Union. The European Council shall act by unanimity after consulting the European Parliament and the Commission, and the European Central Bank in the case of institutional changes in the monetary area. That decision shall not come into force until it has been approved by the Member States in accordance with their respective constitutional requirements. The decision referred to in the second subparagraph may not increase the competences conferred on the Union in the Treaties.

3. Where the Treaty on the Functioning of the Union or Title V of this Treaty provide for the Council to act by unanimity in a given area or case, the European Council may adopt a decision authorising the Council to act by a qualified majority in that area or in that case. This subparagraph shall not apply to decisions with military implications or those in the area of defence.
Where the Treaty on the Functioning of the Union provides for legislative acts to be adopted by the Council according to a special legislative procedure, the European Council may adopt a decision allowing for the adoption of such acts in accordance with the ordinary legislative procedure.
Any initiative taken by the European Council on the basis of the first or second subparagraph shall be notified to the national Parliaments of the Member States. If a national Parliament makes known its opposition within six months of the date of such notification, the European decision referred to in the first or second subparagraph shall not be adopted. In the absence of opposition, the European Council may adopt the decision. For the adoption of the decisions referred to in the first and second subparagraphs, the European Council shall act by unanimity after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.

Thus, the above-cited provision allows national parliaments to veto any simplification decision made by the European Council. This decisive role that the general passerelle accords to national parliaments is worth discussing. The increased involvement of national parliaments in community activities is one important goal of the Reform Treaty. Measures to foster such involvement are specifically laid down by the new Protocol n. 1 to the TFEU and TEU [pdf., in English].

I find such direct involvement of the national parliaments in EU decisions is an important way to remedy the perceived remoteness of the EU [see previous post], yet I would like to postulate two conditions for success:

1. The spirit of community and integration has to penetrate national parliaments of the member states in order not to risk further logjam.
2. Increasing the involvement of national parliaments is an important first step, but it should not be the last. Further steps are needed to make the EU more accessible to its ultimate constituents, i.e. the citizens of the member states. Thus, more exchange and cooperation on the regional/local level among member states and between members and the EU would be desirable. Similarly, on the individual level, stronger efforts are needed to educate citizens in general as well as specific interest groups on EU activities.
   

For further reading on this issue from a regional perspective, please refer to the opinion "Relaunching the process of reforming the European Union in anticipation of the European Council of 21 and 22 June 2007" by the Committee of the Regions.

EU Reform Treaty: Update (2)

This Wednesday, the group of judicial experts will again meet to continue discussing the Draft Treaty Amending the Treaty on European Union and the Treaty Establishing the European Community (Reform Treaty) [pdf, in English available here].

On the occasion of this upcoming meeting, I would like to highlight one aspect of the Reform Treaty: the so-called general passerelle provided for by Article 33(2) and (3). Passerelle (fr.) means 'footbridge' and, in the context of the Reform Treaty, is used to describe "simplified revision procedures" with regards to (1) amending Part Three of the Treaty on the Functioning of the Union or (2) changing the voting rules of the Council of Ministers from unanimity voting to qualified majority voting. In both areas, the simplified procedure streamlines future treaty amendments by avoiding the convention of an Intergovernmental Conference (IGC).

The generalization of the passarelle was a new feature of the 2004 Constitutional Treaty. The Reform Treaty excludes its application to the Charter of Fundamental Rights which will be subject to the "normal revision procedure." For further information on Article 33 and on the Reform Treaty in general, please refer to Professor Steve Peer's analysis of the EU's draft Reform Treaty [text, in English] which is published on statewatch.org [website].

Does International Law Threaten the Democratic Roots of Switzerland?

Switzerland is known for its democratic tradition. Due to the relatively small size of their country, the Swiss people may vastly take part in political decision making through referenda. Yet, does international law threaten democratic roots of Switzerland? Swiss Minister of Justice, Christoph Blocher, seems to suggest just this. In his prestigious speech on the occasion of the Swiss national holiday on August 1 [text, in German], Mr. Blocher criticizes the fact that international law is considered superior to national law and ridicules the law of nations as being "divine".

Former superintendent of the Swiss Department of Justice, Heinrich Koller, retorts that Mr. Blocher's statements are "unsustainable" and "distortionary." In an interview with the Neue Zuercher Zeitung (NZZ) [text, in German], Mr. Koller notes that (ironically) Switzerland owes its independence and statehood to the Congress of Vienna ... and thus to international law.

In a time where transnationalism gets more and more important, it is sad (yet not necessarily surprising) that discussions like this are still being conducted.

Vlok Trial in South Africa - Peace vs. Justice?

The reaction to the trial of former South African Police Minister, Adriaan Vlok [BBC article, in English] again illustrates the difficulties of post conflict countries faced with questions of transnational justice.

The issue is how to best find an equilibrium between the seemingly opposing goals of peace and justice. Common tendency is to focus on either peace or justice. Thus, on the one hand, following today's trial, Mr. Vlok argued for peace and a reconsideration of the first Truth and Reconciliation Commission (TRC). On the other hand, however, Mr. Frank Chikane, Vlok's former victim, was satisfied with the case that resulted in Mr. Vlok receiving a suspended sentence for admittedly attempting to kill Mr. Chikane. Independent Online has more [article, in English].

Yet, is this really a matter of choice between peace and justice, to the exclusion of one or the other? Rather not! I think the issue is to find an equilibrium between both equally important goals. (*) And probably the Vlok trial is a good step in this direction. While Mr. Vlok listened to reason and admitted his deed, he still had to face trial and a judge. That he received a suspended sentence just shows that the court allowed reason to prevail over revenge. Maybe this illustrates to other still reticent perpetrators that cooperation with the justice system has its merits.

(*) I develop an integrative model of conflict resolution emphasizing the shared responsibility of both the international community and the countries struggling with the problems of transitional justice in my recent law review article Reconciling Peace with Justice - A Cooperative Division of Labor, 30 SUFFOLK TRANSNAT'L L. REV. 271 (2007).

And What Kind Of Layout Has Your Globe?

In public international law, one element of statehood is having a defined territory. Territory is commonly displayed through maps. Maps frequently serve planning purposes ... and for their users, maps represent something real, e.g. a destination.

Yet, what if John Doe wanted to travel to Israel, but could not find this destination on his map? Well, maybe he just was not a savvy map reader. Another explanation, however, would be that he was looking at a map where Israel was simply nonexistent. Does this mean that Israel is not a state (and that Mr. Doe should rethink his travel plans)? Certainly not!

As a lot of "states" are engaged in border dispute, the notion of "defined" for purpose of determining statehood in international law has been "adjusted" such that having controversial borders does not deprive a country of statehood. Similarly, according to an article in the New York Times, maps do not necessarily display facts, but opinions ... Click here [link to NYT article] to learn more ...

For Data Freaks ...

Judex non calculat. I heard this phrase a dozen times and, as a matter of fact, I encountered very little statistics during my whole legal education. Yet, I believe that data analysis should play an important role when crafting and amending laws. That is why I would like to present "Gapminder". "Gapminder" [website] is a not-for-profit organization from Sweden that aims for a visualization of human development by providing free software. On its website, "Gapminder" offers quite a variety of features, like videos, animations, charts, publications ... My personal favorite is "The Gapminder World 2006" [link] where you can choose among different indicators of human development, witness their changes over time ... even relate different indicators to each other and come up with your own theory of human development.

From Swiss Army Knife to "Chinese Army Knife"?

The World Trade Organization (WTO) [website] shall facilitate international trade. In this regard, the principle of non-discrimination plays an important role, consequence of which is, inter alia, the concept of national treatment. The concept of national treatment requires equal treatment of imported foreign and domestic products. And this concept might, according to NPR's Marketplace [link to contribution], lead to the production of the future Swiss Army knife in China (!) ... unless Switzerland cuts the Gordian knot and finds a loophole.