International Law and Policy

New Year, New Focus, New Blog

2009-01-28T16:30:00.002-05:00

In case you are wondering if I am still around ... yes, I am!

After a turbulent year 2008 with very few posts and all the more technical difficulties, I decided to shift focus a little bit and at the same time change blogging software.

I would like to thank all the readers of International Law and Policy for being such a loyal audience and I hope to welcome you on CompareLex. If you use a newsreader, you can click here to get directly to the newsfeed of CompareLex. And if you received automatic updates per email, you can do so here for CompareLex.

I am looking forward to seeing you all at the new address! Of course this blog will stay online for further reference.

Recent Developments in International Criminal Law: Justice, Peace, and the Role of the International Criminal Court

2008-07-25T13:14:00.007-04:00

I have not yet managed to fix the commenting problems on my blog. Currently, I am exploring working alternatives, but this whole process will take me some more time ... so please bear with me...

Today's post will, again, not cover the difficulties of the European Union, but this fact shall not discourage anyone interested in contributing to the ongoing debate on regrouping the European Union [link to post and debate].

Instead, I would like to dwell in this post on another area of law covered extensively on this blog: international criminal law [link to my prior blog posts]. Some recent events in international criminal law have sparked some media attention and I cannot help but add my twopenn'orth:

a former military leader was sentenced to life in prison for kidnapping, torture and murder [AP article on Menendez trial];

another former war time leader indicted for genocide was arrested [N.Y. times article on Karadzic arrest];

and an arrest warrant has been requested for an incumbent head of state on charges of genocide, war crimes, and crimes against humanity [ICC press release on situation in Darfur, Sudan].

A comparison of the above cases is incredibly revealing of the mechanisms and challenges in international criminal law. It is important to note that the first two cases (i.e. Menendez and Karadzic) differ considerably from the third (Darfur, Sudan): both Argentina and Former Yugoslavia are no longer on-going conflicts while Sudan still is.

The Menendez trial involved acts committed roughly 30 years ago and the massacre of Srebrenica happened in 1995. Since then, domestic peace has been re-established both in Argentina and Former Yugoslavia, respectively. And with some delay to their internal peace processes, both countries have tackled the issue of bringing former perpetrators to justice: Argentina with substantial delay, but self-propelling; Serbia somewhat quicker, yet upon increasing international pressure.

The situation in Sudan, however, is different. The conflict involving Darfur is still on-going and the regime accused of committing human rights violations is still in power. International peace efforts have not yet been successful. Therefore, the recent actions of the prosecutor of the International Criminal Court (ICC) [website] against the incumbent Sudanese President Omar Hassan Al-Bashir have stirred up a recurrent debate in international criminal law: i.e. the issue of the proper relationship between peace and justice.

Opponents of the recent request by the ICC prosecutor to issue an arrest warrant against the Sudanese President argue that the prospect of prosecution by the ICC might hamper current peace negotiations with the Sudanese government [see, e.g., N.Y. Times article on concerns brought by China and Russia in UN Security Council]. Proponents of an ICC arrest warrant generally put forward that an imminent ICC prosecution could allow UN representatives to press forward certain benchmarks in the current peace negotiations with Sudan [see today's International Crisis Group Weekly Update: Grono and Hara, Security Council Should Make President Meet Benchmarks]. Both arguments are, however, mainly focused on the peace negotiations and not on justice as an ultimate goal.

Therefore, I would be eager to learn your opinion on the relationship of peace and justice - in the case of Sudan, in particular, or from a more general, conceptional perspective.

Some further articles on this subject are listed below:

Article by the Council of Foreign Relations [website] in today's Washington Post on Africa and the International Criminal Court [link to article].
Article by Linda M. Keller, The False Dichotomy of Peace versus Justice and the International Criminal Court in the current issue of the Hague Justice Journal [link to journal website].
My article Reconciling Peace with Justice: A Cooperative Division of Labor [link to abstract].

I am looking forward to your comments!

Technical Issue

2008-06-30T15:30:00.003-04:00

I currently have a little issue with my commenting software. I will try to fix it as soon as possible. In the meantime, just click on the heading of the post that you would like to comment on. You will then get onto the individual post page and from there, the comment feature should work. Sorry for the overhead.

ECHR: Person Subject to Ill-Treatment by State Can Loose Victim Status

2008-06-30T13:18:00.009-04:00

Today, the European Court of Human Rights (ECHR) [website] rendered its judgment in Gaefgen v. Germany (judgment and press release available on ECHR website, application no. 22978/05). The case had sparked an intensive debate on the permissibility of the threat of ill-treatment during police interrogation in order to save a human life. The facts of the case are as follows:

In 2002, German police arrested Gaefgen after he had been seen to pick up a ransom deposited for the release of a kidnapped child. After one day of interrogations aimed at finding the place the child was hidden, police resorted to threatening Gaefgen with ill-treatment if he did not cooperate. At that point, police still thought that the child was alive and that immediate action was required to avoid the child's death from thirst, hunger, and cold. Police did not know that Gaefgen had suffocated the child right after luring him into his apartment. As a result of being threatened with ill-treatment, Gaefgen showed the police the place where he had disposed of the child's body.

Gaefgen was then tried for murder. The trial court found that the police interrogation methods violated, inter alia, art. 3 of the European Convention on Human Rights (Prohibition of Torture and Inhuman or Degrading Treatment). As a result, the trial court declared all statements obtained during interrogation invalid. The court, however, accepted evidence secured as a result of Gaefgen's statements during interrogation ("resulting evidence"). Gaefgen was then sentenced for murder on the basis of a confession made during the trial, corroborated by the "resulting evidence." Gaefgen's appeals in German courts alleging torture and lack of a fair trial were not successful. He therefore turned to the ECHR.

The ECHR confirmed that Gaefgen had been subject to ill-treatment contrary t0 art. 3 of the European Convention of Human Rights, but determined that Gaefgen had lost his victim status due to the subsequent exclusion of the interrogation statements from the trial and the punishments of the implicated police agents. Also, the ECHR found that the admissibility of the "resulting evidence" did not violate his right to a fair trial, because this evidence was only used to verify Gaefgen's confession during trial. The only dissenting opinion in the 6 to 1 decision argues that the inclusion of the "resulting evidence" prevented the trial from being fair as Gaefgen could not have been sentenced for murder solely on the basis of his confession during trial.

From a human rights perspective, it is remarkable that the ECHR sees the possibility for a torture victim to loose its victim status due to supposedly impeccable demeanor by the torturer at a later stage. Should it be possible to make good for previous acts involving torture or the threat of torture? Should a torture victim be susceptible of loosing its victim status? What are your thoughts on this case?

Regrouping of the European Union? Now It's Your Turn!

2008-06-19T17:09:00.008-04:00

A little bit less than a week after the Irish decided against ratification of the Treaty of Lisbon in a popular vote, the British House of Lords approved ratification of the treaty, thus paving the way to official ratification by the Queen. Jurist has more [link].

The fact that Great Britain approved the Treaty of Lisbon might have brought some relief to the European heads of state who met today to discuss, inter alia, how to save the treaty despite the Irish "no" vote last week. Program and further information on the meeting are available here [link to official website of Slovenian presidency]. Yet, a concrete solution by the European heads of state for dealing with the Irish non-ratification is not expected before fall.

I thought we could help the European heads of state and discuss possible ways out of what now seems to be a dead end. Since the Irish referendum, various propositions have been made to this regard: e.g. having Irish vote again (as it was done few years ago with the Treaty of Nice) or giving up the whole European idea ... just to name a few extremes. I am, however, sure that many of you - regardless whether you are a European citizen or not, whether you are pro or con the European Union - have your own proper ideas on the future of the EU. With my blog, I would like to provide a platform for everyone to voice and discuss his/her thoughts about the future of the European Union.

I am looking forward to your comments!

Interesting Website

2008-06-02T16:14:00.003-04:00

I recently stumbled over an interesting website. International Law Video Library [link] is a great tool for teaching international law and also a useful source of information on issues in international law. The International Law Video Library is hosted by Dr. Jean Allain [website] of Queen's University in Belfast. The site features interviews by major players in international law, e.g. Judge Thomas Buergenthal, Professor James Crawford, Judge Rosalyn Higgins, Dr. Joseph Rotblat.

Some News on the Lisbon Treaty

2008-05-29T16:28:00.010-04:00

After a rather long "creative pause" I am now - hopefully - back on track. A lot has happened in the international law arena during the past few months and to list everything here would probably go beyond the scope of a simple blog post. So I decided to focus on one area that has previously been of intensive coverage on this blog: the good old(?) Lisbon Treaty.

Having been signed in December 2007, the Lisbon Treaty is currently in its ratification phase, i.e. the treaty has to become binding in the individual Member States. The ratification procedures vary among the various Member States and the whole process will probably last through 2008. For those of you who would like to know the Treaty's ratification status in the individual states, the European Union has a very helpful web page explaining ratification procedures, ratification status and other interesting information on a country-by-country basis. Here is the link (I will also add this link to the sidebar of my blog). In June, Ireland will hold its long-anticipated referendum on the Lisbon Treaty ratification and in the United Kingdom a case is pending on the question whether there should be a referendum on the ratification of the Lisbon Treaty. So it is definitely worth keeping an eye on how the situation in those two countries develops.

The above-mentioned web page also offers other interesting information on the Lisbon Treaty, including a full-text version [link]. In addition, the Centrum fuer Europaeische Politik (CEP) [homepage] provides an interesting comparison of the Lisbon Treaty and its predecessor, the Nice Treaty [link; contributions mainly in German, but "Overview: Institutional Changes" is available in English at the bottom of the web page].

Well, this post should definitely bring us back on track as far as the Lisbon Treaty is concerned ...

US Supreme Court Judges Offstage

2008-03-12T11:53:00.005-04:00

In an exceptional move, Bryan Garner from LawProse, Inc. [website] was offered the opportunity to look behind the scenes of the US Supreme Court. During the 2006-2007 term, he interviewed eight of the nine Supreme Court judges and made the interviews available online [link to videos]. It is extremely interesting and revealing to hear the judges talk about legal writing and advocacy. Thanks for everyone involved for providing this great opportunity.

The German Federal Constitutional Court in the News

2008-03-11T13:14:00.004-04:00

The German Federal Constitutional Court [website, in German] has been in the news lately ...

Two weeks ago, the Court (BVerfG, 1 BvR 370/07 vom 27.2.2008, Absatz-Nr. (1 - 333)) rendered a decision on so-called "online searches." [decision, in German] The court distinguished between open-access information on the web and information that can only be accessed through some kind of technical infiltration. Not surprisingly, the court allowed police to freely dispose of the former while indicating that access to the latter generally needed prior authorization by the courts. Most remarkably, however, the Court even went further and formulated a new fundamental right: the guaranteed confidentiality and integrity of IT-based systems (as part of the more general right of informational self-determination, art. 2.1 with art. 1.1 of the German Basic Law). This decision marks an important step to render the internet more tangible for legal purposes.

Today, the Court (BVerfG, 1 BvR 2074/05 vom 11.3.2008, Absatz-Nr. (1 - 185)) further emphasized the importance of the right of informational self-determination when it declared unconstitutional the police practice of automatically capturing license plates. [decision, in German]. According to the court, such usage of data violated the constitutional right of informational self-determination, unless such data collection served immediate investigation purposes. Thus, another important step towards privacy protection in the information age...

The Independence of Kosovo from an International Law Perspective

2008-02-20T11:42:00.004-05:00

On Sunday, Kosovo declared its independence from Serbia. The United States were the first country to recognize Kosovo as an independent state, followed by France, Germany and many others. Yet, other countries, like Israel and Spain are reluctant to recognize an independent Kosovo because they fear that this may cause Palestinians and Basque respectively to undertake similar steps. The FAZ has more [article in German].

What do all these events mean from an international law perspective? Can any sub-region of a given country simply declare its independence and enter statehood? And what are the effects of recognition by other states? Section 201 of the Restatement (Third) of the Foreign Relations Law of the United States (1987) defines a state as follows:

Under international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities.

This provision enumerates the four "formal" requirements for statehood. Yet, section 201 of the Restatement (Third) does not say anything about recognition by other states. Is recognition then necessary for an independent state to exist?

The significance of recognition on statehood has long been subject to debate. According to some, it is the recognition by other states that makes an entity become a state. Consequently, this point of view sees recognition as an essential requirement for statehood, a fifth element so-to-speak. Such an approach, however, may prove problematic. It makes statehood contingent upon the discretion of other states and it is unclear how many states will have to recognize an entity in order for it to constitute a state. Therefore, others say that recognition by other states is only declaratory. According to this view, an entity that fulfills the above-mentioned four criteria is considered a state under international law. Yet, these four conditions are not necessarily clearly established in a particular case and their determination generally depends upon assessment by other states which, by means of recognition (!), indicate that they consider the four elements of statehood to be present... [Source: Damrosch et al., International Law (2001), pp. 250 et seq.]

In the end, all still seems to boil down to state recognition. Thus, the fact that some important countries have already recognized the independent Republic of Kosovo does constitute an important stepping stone. Yet, will it be enough given that Serbia has accused the President of Kosovo, the Prime Minister, and the President of the Parliament for treason and that there have already been some attacks to Kosovo borders? How important is endorsement of Kosovo by the U.N.? It remains to be seen how things further develop.

Presidential Elections in the US: Where Do the Respective Candidates Stand on International Law Issues?

2008-02-07T12:24:00.000-05:00

Ever wondered about where your favorite presidential candidate stands on issues of international law? The American Society of International Law (ASIL) may have the answer. In its web-initiative International Law 2008, ASIL presents Presidential candidates' policy statements on international law topics, publishes the answers of some candidates to ASIL's candidate surveys (interestingly, though, only Democratic candidates seem to have answered the surveys), and provides some comments by ASIL Executive Council members on the question of the most important international policy issue that will face the next U.S. administration. Even as a foreigner, I find this website extremely useful.

In particular, as a strong proponent of the International Criminal Court (ICC), I found it especially interesting how candidates responded to the question what the U.S. policy towards the ICC should be. While the two leading Democratic candidates, Clinton and Obama, recognized the important role the ICC has played so far, they did not provide a clear answer whether the United States should sign the Rome Statute establishing the ICC or not. The other (former) Democratic candidates who submitted answers, Edwards and Kucinich, explicitly argued for a United States membership of the ICC. It would be interesting to know how the Republican candidates would answer this question...

Status Report on Lisbon Treaty Ratification

2008-02-06T14:00:00.000-05:00

Our move has unfortunately broken the flux of my blog posts. Yet, as I am now well settled in New Haven, you will hopefully hear from me more often ;-) Many interesting things have happened on the international plane since I last posted on this blog and it is impossible to catch up with everything. I would therefore like to focus on recent developments in one of the major areas covered on this blog last year - the EU Reform Treaty, now officially called Lisbon Treaty.

The Lisbon Treaty was signed by the European heads of state in December 2007. The signing ceremony had been clouded by British Prime Minister Gordon Brown arriving after the whole ceremony was over. Eventually, however, the Lisbon Treaty was signed by all heads of state and thus entered its ratification stage - the last step before entering into force. Yet, it is the ratification process that is the most volatile. Previous reform efforts had failed when referenda in France and the Netherlands had rejected ratification of the EU Constitutional Treaty.

The ratification of the current Lisbon Treaty was then already up for a rough start as the current text had been drafted in a way to avoid referenda whenever possible. To date, only Ireland will have to cast a popular vote on the Lisbon Treaty. Yet in at least two countries, France and the UK, governments face opposition to their decisions to have the Lisbon Treaty ratified by parliament and not by referendum.

In France, the government has been exceedingly eager to avoid a repetition of the 2005 reversal. On Monday, the French Senate and National Assembly both passed an amendment to the French Constitution. The amendment cleared the way for a parliamentary ratification of the Lisbon Treaty (instead of a referendum). Besides eliminating any reference in the French Constitution to the failed Constitutional Treaty, the amendment also adds two articles concerning the interrelationship between the French legislature and the European Union. For the text of the constitutional amendments, visit the blog of former French President, Valéry Giscard d'Estaing [in French]. The French Senate and National Assembly are scheduled to vote on the ratification of the Lisbon Treaty at the end of this week.

It is worth noting that while the above-described amendments to the French Constitution were necessary to allow for a parliamentary vote on the ratification of the Lisbon Treaty, the French Constitution has at all times provided for a parliamentary vote on the ratification of international treaties. According to Valéry Giscard d'Estaing, the parliamentary vote is even the primary path for ratification, a referendum being just an alternative option [pdf, in French]. The issue is that the previous government had deemed the Constitutional Treaty to be so important to warrant a popular vote by the French People. It seems that the current government has made a reassessment concerning the Lisbon Treaty and decided to resort to the parliamentary ratification procedure. This reassessment is not approved by some members of parliament as well as 59% of the French voters. EUobserver has more.

In the UK, the government's decision not to hold a referendum on the Lisbon Treaty has encountered even more severe resistance. Several efforts are being made to stop a parliamentary vote on the ratification. The major argument of ratification opponents is that the government had previously promised to hold a referendum on the Constitutional Treaty before the treaty failed due to negative referenda in France and the Netherlands. A donor of the British conservative party therefore tries to get judicial review of the British Prime Minister's decision not to hold a referendum claiming a possible breach of contract. A similar case has been filed in a different court by a member of the UK Independence Party. BBC has more. Meanwhile, the so-called "I Want a Referendum (IWR)" campaign [website] intends to run "mock" referenda on the Lisbon Treaty in several constituencies across the UK. It remains to be seen how the situation develops.

I would like to conclude this post with some positive news: According to the BBC, Romania, Hungary, Malta, and Slovenia have already ratified the Lisbon Treaty. In Germany, the government has introduced a law to ratify the Lisbon Treaty. The German parliament is expected to vote on that law in the months to come. For more information regarding the German ratification of the Lisbon Treaty, click here [website of the German government, in German].

Happy Holidays!

2007-12-24T11:16:00.000-05:00

I have not been a frequent blogger these days as I am in the process of moving to the other side of the continent. I will (hopefully) resume a more regular blogging activity from my new place in January 2008. In the meantime, I would like to wish every reader of this blog

HAPPY HOLIDAYS
and a
WONDERFUL YEAR 2008!

Steinmeier and Kouchner Sing for more Integration and Tolerance

2007-11-12T17:50:00.000-05:00

On the occasion of a ministerial meeting on integration, the German foreign minister, Franz-Walter Steinmeier, and his French colleague, Bernard Kouchner, visited Turkish-German artist Muhabbet. Together with Muhabbet, they recorded a song that emphasizes integration and tolerance in Germany. The German Foreign Ministry has more background information [text, in German]. The video, mp3 and text of the song are available on the websites of both the German Foreign Ministry and Plak Music (Muhabbet's private label). It is really worth to look into it!

A Good Research Guide for International and Comparative Law

2007-11-10T09:39:00.001-05:00

Recently, I stumbled over a very helpful website I would like to share with everyone who reads this blog. The website is called GlobalLex and is published by NYU's Hauser Global Law School program. GlobalLex proves an extremely useful tool for conducting research on topics of international and comparative law. It consists of four parts: (1) International Law Research, (2) Comparative Law Research, (3) Foreign Law Research, and (4) Tools for Building Foreign, Comparative, and International Law Collections. It is a compilation of articles written by scholars from around the world. For me personally, the Foreign Law Research tool proves especially helpful; whenever I need a statute or case from some foreign country, I can go to GlobalLex-Foreign Law Research and click on the country I am interested in. There, I usually find a short introduction to the country's legal system as well as useful legal links. GlobalLex has helped me a lot in my comparative law research.

EU Reform - Lisbon Treaty on Its Way to Ratification

2007-10-19T22:07:00.000-04:00

It came faster than expected - yesterday night, the European heads of state agreed on a text amending previous EU treaties after making some last-minute concessions to Poland and Italy. The representatives of Great Britain, the Netherlands and France again emphasized that the new treaty was merely an amendment and not a Constitution. Such a negation is not aimed at reducing the impact of the whole reform efforts. Rather the leader of these three countries try to avoid referenda in their countries that had been futile for past reform efforts within the EU.

Basically, however, the Lisbon Treaty (as the Reform Treaty is now called) is the formerly proposed EU Constitution minus symbolism. In particular, the treaty will streamline decision-making within the EU while boosting democratic control. The Charter of Human Rights will become legally binding for most member states and the representation of the EU in external matters will be harmonized. A more detailed description of the treaty features can be found here [FAZ, in German] and here [previous post].

The heads of state are now scheduled to gather again on December 13/14 to sign the Lisbon Treaty. Yet, this will not be the ending. The realization of the treaty will depend on the ratification by the individual member states - a hurdle that the Lisbon Treaty's predecessor could not pass. As of now, a referendum is only required in Ireland. Great Britain, the Netherlands and France try to avoid referenda. In Poland, we have the inverse situation: a referendum, although unlikely, would probably pass smoothly as the Polish people are quite enthusiastic about the EU whereas on the political level Europe skepticism seems to prevail.

We can only hope that the extensive negotiation procedures will bear fruits and that the member states will now stick to the compromise reached for the sake of the EU's future success.

Justive vs. Peace: The Role of the International Criminal Court in Northern Uganda

2007-10-12T18:18:00.000-04:00

Today, I read a really interesting comment paper in the Weekly Update of the International Crisis Group: Justice in Conflict? The International Criminal Court and Peace Processes in Africa (by Nick Grono and Adam O'Brien). Focusing on the conflict in Uganda, the paper discusses the relationship between peace and justice. I was impressed by the positive impact of prosecutions by the International Criminal Court (ICC) on peace negotiations.

EU Reform Treaty: Settlement Reached

2007-10-03T15:27:00.000-04:00

Yesterday, Portugal, which holds the current EU Presidency [website, in English], announced that the 27 judicial experts of the IGC 2007 [website, in English] reached an agreement on a text for the Reform Treaty. This treaty would constitute a large step forward for the European Union. There are, however, still some hurdles to pass. Most importantly, the treaty has still to be ratified by the 27 member states. In some countries, ratification involves referenda and such referenda had been the stumbling block for the previously drafted EU Constitution. In addition, Poland seems to insist on a privilege to bar disagreeable decisions. This request has been blocked by the Portuguese presidency because it was not part of the originally proposed Reform Treaty [earlier post]. Whether the current Reform Treaty will get through is therefore still in the air. For further information click here [report, in German]. I will post the agreed upon version of the Reform Treaty as soon as it is available in English.

Week in Review and How Satellites Could Prove Helpful in the Battle Against Human Rights Violations

2007-09-30T13:30:00.000-04:00

From an international law perspective, this past week was quite eventful. On September 25, 2007, the General Assembly commenced its 62nd session of general debate [website] with the appearance of Iranian President, Mahmoud Ahmadinejad, being the source of major commotion. In addition, the International Criminal Tribunal for the former Yugoslavia rendered another decision sentencing two former senior officers of the Yugoslav People's Army (JNA) and acquitted another. The press release to the decision can be found here and the decision here.

On another note, National Geographic reported [report, in English] this week that satellite images could help to expose and monitor human rights abuses. A collaboration of three human rights organizations with the American Association for the Advancement of Science (AAAS) [website] analyzed satellite images of eastern Myanmar. With the help of those images, researchers could back reports of human rights violations in that region. For example, comparison of high resolution satellite images of rural dwellings at two different time points appear to document complete destruction of settlements. Such methods could prove useful in cases where the sending of envoys and journalists to countries suspected of committing human rights violations is either prohibited or very difficult to achieve. The hope is that satellite images providing tangible proof of human rights abuses get accepted by the international community and put human rights violators under pressure by making it more difficult for them to mask their deeds.

Recent Microsoft Decision Strains the Relationship Between the EU and the US

2007-09-22T12:41:00.000-04:00

This week, the European Court of First Instance (for a short introduction to the EU judicial system visit my website) upheld a ruling by the European Commission imposing a $ 700 Million fine against Microsoft [link to decision]. The Court examined the following issues: (1) Microsoft's refusal to provide competitors with so-called "interoperability information", (2) Microsoft's "tying" of the Media Player to the Windows PC operating system, and (3) the Commission's decision to appoint a "monitoring trustee" in order to keep an eye on Microsoft's compliance with EU law. With regards to point (3) the Court found no legal basis in Community law for the appointment of a monitoring trustee. On point 1 and 2, however, the Court agreed with the Commission. The Court essentially based its decision on Microsoft's dominant position on the PC operating system market. According to the Court, a corporation with a dominant role may under certain circumstances be compelled to grant a license. After discussion of pertinent EU case law, the Court determined three such circumstances:

"– in the first place, the refusal relates to a product or service indispensable to the exercise of a particular activity on a neighbouring market;

– in the second place, the refusal is of such a kind as to exclude any effective competition on that neighbouring market;

– in the third place, the refusal prevents the appearance of a new product for which there is potential consumer demand."
For more information, please refer to the Court's decision. A good summary of the decision is provided by the press release which is available here.

With regards to the Windows Media Player, the Court essentially holds that customers should have a choice whether to have the Media Player or another competing product instead. Microsoft now has two months to file an appeal with the European Court of Justice.

The above-discussed judgment has turned sour the relationship between the United States and the European Union. Following the publication of the decision, Thomas Barnett, the US antitrust official, vehemently criticized the judgment. In his view, the decision could prove harmful to the consumer, cool down innovation, and discourage competition. The European Commissioner for Competition, Neelie Kroes, countered calling Barnett's statements unacceptable because he should not have criticized a court outside his jurisdiction. Reuters has more [news article, in English].

As globalization and internet foster transnationalism, shouldn't this also be reflected in the legal debate? Sure, the fact that a US state official expresses criticism with regards to a decision by a European Court may give such criticism more weight. Yet, differing opinions are inherent to the legal world, and even more so if different legal systems are involved. Ideally, such divergent opinions should initiate legal debate which might finally lead to a new consensus in the spirit of transnational law.

Lawsuit Against God - Does a US Court Have Jurisdiction?

2007-09-21T00:38:00.000-04:00

Last week, State Sen. Ernie Chambers of Omaha filed a lawsuit against God accusing the Almighty of terrorist threats, causation of fear, death and destruction. With his suit, the Senator intended to make a legal point by showing that everyone can sue everyone in US courts. Meanwhile, God seems to have filed two responses in which he challenges the jurisdiction of a US court to try the case. AP has more.

From a conflict of laws perspective this is an interesting question. Does the fact that a Nebraskan Senator takes offense warrant assumption of jurisdiction by a US court? The global scope of the alleged malefactions makes the decision not easier. Alternatively, the domicile of the defendant could be pivotal which raises the issue of locating God. Considering the omnipresence of the Almighty, a domicile in the US could be construed ... Given the complexity of the situation, maybe the US court could request legal assistance and ask Jesus - or his deputy to avoid bias - for a Last Judgment.

Addendum to European Treaty Updates

2007-09-09T00:48:00.000-04:00

Ever wondered about how all these European Treaties interrelate? In order to cast light on the thicket of treaties, I have posted a slide presentation on the Core European Treaties on my website. I hope this helps.

The Chautauqua Declaration

2007-08-31T00:19:00.000-04:00

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)

2007-08-30T18:00:00.000-04:00

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:

The spirit of community and integration has to penetrate national parliaments of the member states in order not to risk further logjam.
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)

2007-08-27T17:02:00.001-04:00

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?

2007-08-23T17:35:00.000-04:00

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?

2007-08-17T14:55:00.000-04:00

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?

2007-08-16T16:33:00.000-04:00

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 ...

2007-08-10T15:42:00.000-04:00

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"?

2007-08-06T13:38:00.000-04:00

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.

U.N. Security Council and the Future of the ICC: Some Comments After the Authorization of UNAMID

2007-07-31T17:35:00.000-04:00

Darfur has become an allegory for human rights violations and, according to the International Crisis Group [website], the situation has even deteriorated since the signing of a peace agreement in 2006 [click here for full report]. In 2005, the U.N. Security Council had referred the situation in Darfur to the International Criminal Court (ICC). Click here for Resolution 1593 of 31 March 2005 [pdf, in English]. This year, the ICC issued warrants for the first two suspects; yet, mostly due to the Sudanese government's defiance of the ICC, the execution of those warrants is still in the air. For previous posts on this topic, click here and here.

This week's U.N. Security Council Resolution 1769 [press release and text], which authorizes a joint U.N.-African force (UNAMID) for the Darfur region, could be a first step towards fighting impunity in Darfur. It illustrates that the U.N. is unwilling stand idly by. Maybe the U.N. should also give more attention to prompting the Sudan government to cooperate with the ICC ... Nick Grono and Donald Steinberg of the International Crisis Group have written an interesting article [text, in English] on how the ICC's future may depend upon the involvement of the U.N. Security Council.

Japan Accedes to the Rome Statute

2007-07-31T17:00:00.000-04:00

Recently, on July 17, 2007, Japan acceded to the Rome Statute and will thus become the 105th member. For more information, click here [press release, in English].The Rome Statute constitutes the treaty that establishes the International Criminal Court (ICC). The Statute was adopted on July 17, 1998. The ICC is a permanent court with jurisdiction over crimes against humanity, genocide and war crimes. For more information, click here [website of ICC] and visit previous posts.

Hopefully, this recent accession by Japan serves as a role model for other states that are currently reluctant to acknowledge the ICC's authority ... At least, it strengthens the international task force against human rights violations and further drives perpetrators into a corner.

EU Reform Treaty: Update (1)

2007-07-26T21:14:00.001-04:00

Last Monday marked the opening of the Intergovernmental Conference (IGC) 2007 [website, in English]. Goal of the IGC 2007 is to further implement the Reform Treaty proposed earlier this month [see previous post]. A text of the Draft Reform Treaty can be found here [treaty, in French]. During the first two sessions of the IGC 2007, the group of judicial experts drafted an agenda which can be found here [agenda, in French]. The proposed schedule provides for 18 sessions that shall take place in blocks and shall conclude on September 13, 2007.

The schedule seems rather ambitious given that the Polish Minister of Foreign Affairs, Anna E. Fotyga, has already issued an opening statement where she stresses, inter alia, that her country wants the retention of the current voting system (as opposed to the double-majority system) during the transition period to be automatic upon request. Also, Poland reserved the right to accede to the protocol that prevents the EU Charter of Fundamental Rights from becoming binding in the United Kingdom. Ms. Anna E. Fotyga's statement is available here [text, in English].

Coverage and discussion of the Reform Treaty process from a probably more "reformer-driven perspective" can be found at the blog of former French President Valéry Giscard d'Estaing [in French].

"Judicial Liquidation" of the ICTY - Time vs. Justice?

2007-07-20T11:12:00.000-04:00

In today's online edition of LeMonde, Stéphanie Maupas takes stock of the achievements of the International Criminal Tribunal for the former Yugoslavia (ICTY). In her opinion article Le "coma" du Tribunal pénal international, she stresses the devastating effect of the impending cessation of the tribunal's operations due to lapse of time (the ICTY is set to complete its operations in 2010) - which she calls "judicial liquidation." Thus, in order to accomplish the daunting task of hearing and deciding about 55 cases in the remaining 3 years - compared to the 106 cases that have been concluded so far since establishment of the ICTY in 1993 - the judges have turned to the practice of "artificially" limiting the numbers of accusations the prosecution may bring in against each individual defendant. To read the opinion, click on the link below [text in French].

Le "coma" du Tribunal pénal international, par Stéphanie Maupas
LE MONDE | 20.07.07

International Law - Praise and Criticism

2007-07-19T20:17:00.000-04:00

As a scholar one has to be able to give and accept criticism ... and as an international scholar in the United States one can, at times, encounter severe criticism. Just recently, I discovered the "Debate Club" of Legal Affairs [website]. While browsing through its archives, I came across a debate between Eric Posner (Kirkland and Ellis Professor of Law at the University of Chicago) and Oona Hathaway (Associate Professor of Law at Yale Law School). Topic of this debate was: Is International Law Useful? [text]. But why have a debate on this question? Hasn't international law been necessary and established for centuries?

The reasons for international law skepticism are manifold, but can be ascribed to the very nature of international law, most notably its remoteness and vagueness - both being inevitably interconnected. I have already dealt with the problem of the perceived remoteness of the EU in a previous post. The same is sort of true on a more global level. Why should the citizens of a modern industrial state care about the U.N. when it does not affect them directly? Doesn't it defy the purpose of having an International Court of Justice if hardly anyone knows about it? The latter question also leads to the next point: vagueness. Due to the perceived remoteness, the whole concept of international law tends to be vague to John Doe.

Even if two lawyers mention international law, it is not said that they talk about the same thing - particularly when one comes from Europe and the other from the United States. Thus, international law in the broader sense could theoretically comprise both public international law (i.e., in general parlance, the legal system governing the relationship between nations [see Black's Law Dictionary]) and private international law (i.e. body of jurisprudence that undertakes to reconcile differences between the laws of different states or countries in a case in which a transaction or occurrence central to the case has a connection to two or more jurisdictions [see Black's Law Dictionary].

Yet, again, scholars heavily debate on the accurateness of the term "private international law" as it is merely a part of the private law of each state. Confused? So much for vagueness!

Fifth Anniversary of the Rome Statute

2007-07-11T15:36:00.000-04:00

Five years ago, on July 1st, 2002, the Rome Statute establishing the International Criminal Court (ICC) entered into force. Meanwhile, 104 States have become parties to the Statute ... a fact that, according to the Chief Prosecutor of the ICC, Luis Moreno-Ocampo, shows that the ICC is a "landmark in international justice." [U.N. News Centre] Furthermore, the Prosecutor points to the awareness raising impact the court already has, noting that "States recognize now that there are some limits, and that there can be no more genocide [...]." [U.N. News Centre]. Yet, the ICC is not supported worldwide. Some countries like the United States, China, and Russia are still not Parties to the Rome Statute. The Nuremberg Human Rights Center [website] on behalf of the Foreign Office of the Federal Republic of Germany and in collaboration with the Goethe Institute has created an exhibition on the ICC. The exhibition will be mainly displayed in States that are not (yet) Parties to the Rome Statute in order to promote the ICC's cause specifically in those countries. A brochure on the exhibition [pdf, in English] can be downloaded from the ICC page of the Nuremberg Human Rights Center.

France and the Politics of Jogging

2007-07-10T14:47:00.000-04:00

Are all joggers capitalists or are all capitalists joggers? In his post Le jogging n'est pas français, Monsieur le Président [post, in English], Charles Brenner from Times Online describes the French perspective on this important question. It is hilarious!

Some Comments on the Brussel Treaty Deal

2007-07-04T20:57:00.000-04:00

Although the EU heads of government and state reached a deal about a "Reform Treaty" already a while ago, I did not get around to writing about it until now. Well, better late than never ...

On June 23, 2007, after extensive, one-and-a-half-day negotiations, German Chancellor Angela Merkel, who as outgoing President of the Council of the European Union headed the meeting, was able to announce that a deal for a "Reform Treaty" has been reached by the participants. This agreement shall bring about the following important institutional reforms [the following list was taken from the official website of the German government; original text in English, comments and explanations added in italic gray font by the author of this blog]:

A full-time President will chair the European Council of heads of state and government.
This shall bring about more uniformity in presenting "common" decisions to the public.

A High Representative of the European Union for Foreign Affairs and Security Policy will be appointed. To accommodate national sensitivities, the title of foreign minister has been dropped.
Dito. Just that this time focus is laid on uniformity with regards to international relations. Both institutions (the EU President and the High Representative for Foreign Affairs) are vestiges of the originally aspired formation of an EU identity (with anthem, flag etc.).

Majority decisions will be taken using the double-majority system only as of 2014, with a transitional three-year period until 2017. Then motions can be adopted by the Council of Ministers provided 55 percent of member states representing at least 65 percent of the population of the Union are in favour.
With this delay of the introduction of the double-majority system, the summit participants accommodated Poland which had vehemently opposed changes to the status quo (see previous post). Under the current system, 255 votes out of 345 (73.9%) representing 62% of the EU population are needed, with the four most populous countries (Germany, France, UK, and Italy) having 29 votes each, Poland and Spain having 27 votes (for a detailed list of votes per country, click here). Consequently, the current system tends to favor middle-sized countries (i.e. Poland and Spain) over more populous member states.

For legislative procedures, the codecision procedure will become the general rule. This will put the European Parliament, which represents the citizens of Europe, on an equal footing with the Council of Ministers.
The so-called "remoteness" has frequently been met with criticism. This amendment shall pour oil on troubled water.

The national parliaments will be given a greater say in European legislative procedures. This is intended to strengthen the principle of subsidiarity in particular.
Dito.

The constitutionally determined break-down of legislative competences between the Union and member states respectively shall remain unchanged.
No intermingling of competences.

The number of EU Commissioners is to be reduced from 27 to 15.
With the continuing enlargement of the EU, the system of each EU member state sending one EU Commissioner has become unhandy.

The EU Charter of Fundamental Rights will become legally binding in 26 member states (but not in the United Kingdom).
This was a concession made to the U.K. which fronted any EU reform critically. The British Labour party had promised its voters a referendum over the ratification of the (original) EU Constitution in the U.K. Now, outgoing British Prime Minister Tony Blair pre-defined "red lines" that could not be crossed. Protecting the common law system by denying the Charter of Fundamental Rights any legal effect was one of those "red lines".

The concept of the referendum will be introduced.
This will hopefully lead to more direct involvement of EU citizens and hereby refute the accusation of remoteness.

Interestingly, the new "Reform Treaty" basically retains the majority of provisions of the formerly proposed EU Constitution that had been rejected by referendum in the Netherlands and France (for further information, see my previous post). Only symbolism was sacrificed. Thus, the proposed body of rules is no longer called "Constitution", but merely "Reform Treaty" and would not replace the existing treaties, instead, it would amend them. Similarly, the new text no longer provides for an EU flag, anthem, and motto. Yet, to put it into the words of former French President Valéry Giscard d'Estaing (who created a blog [in French] in order to discuss the proposed treaty): "In fact, this text entails the resumption, to a great part, of the substance of the constitutional treaty." [original quotation in French].

The ulterior motif of the above approach is, certainly, to avoid referenda and a rerun of the defeats of 2005. The question, however, is how the people, especially the citizens of France and the Netherlands, will take this. Are the largely formal changes enough to convince them of the fact that the new treaty would no longer need their direct approval? And will this recent development really increase the popularity of the EU? We will see how far these "Reform Treaty" efforts will take us. Further steps will be the convening of an Intergovernmental Conference (IGC) in order to further implement the propositions made at the meeting in Brussels. The IGC will adopt amendments to existing EU treaties. These treaty amendments will then have to be ratified by the EU member states according to their national procedures. And here again, we hold the wolf by the ears...

Meeting of the European Heads of State and Government at Brussels

2007-06-21T16:44:00.000-04:00

Today, the heads of state and government of the EU member states gathered for a two-day meeting in Brussels. Goal of the meeting is to set up a road map for the successful implementation of a European constitutional treaty. For further information, click here [invitation to the meeting, in English].

After having suffered a major setback two years ago, partisans of the constitutional movement in Europe are still having a hard time achieving a consensus among European statesmen. [For a previous post on this, click here.] Several heads of states have expressed their inclination towards weakening the impact of a possible constitutional treaty. In the run-up to the present meeting, most notably the demands made by British Prime Minister Tony Blair and Polish Prime Minister Jaroslaw Kaczynski have put a successful outcome of the meeting into question. According to the Frankfurter Allgemeine Zeitung (FAZ), the British government seeks exceptions from major parts of the proposed treaty (e.g. British courts should not be bound by the EU Charter of Human Rights). This request probably does not come as a big surprise, had the British often sought to get special treatment (e.g. Britain does not have the Euro as currency). Of more concern should be the latest statements by Polish Prime Minister, Jaroslaw Kaczynski. According to the FAZ, in a radio broadcast, Kaczynski had based his request for a different allocation of voting rights on the military and civilian losses in Poland during the Second World War. In particular, according to Kaczynski, Poland should get more votes whereas German votes should be limited. For further information, click here [FAZ article, in German].

Statements like the ones made by Kaczynski are unfortunate as they foil the basic ideas that led to the creation of the European Union: peace and reconstruction. How shall there be peace when focus is still on former animosities? How shall there be reconstruction when focus is still on past events?

Freedom of the Press vs. Protection of Privacy - German Federal Court of Justice Tends Towards More Privacy Protection

2007-06-20T20:07:00.000-04:00

Yesterday, the German Federal Court of Justice ruled in favor of the girlfriend of famous German singer and songwriter Herbert Groenemeyer. The issue was whether the taking and publishing of pictures that show the couple during their holidays in Rome would constitute a violation of their privacy rights. The court answered the question in the affirmative stating that the pictures did neither have a connection to a contemporary event nor contribute to a discussion of general interest. In addition, the court noted that the fact that some lyrics of Herbert Groenemeyer's songs allude to private events, does not waive his girlfriend's above-stated privacy rights. For more information, please refer to press release no. 77/2007 (in German) at http://www.bundesgerichtshof.de/ (court decision not available yet).

Critics argue that this decision inappropriately cuts back on the right of the press to report on celebrities and would result in non-critical journalism that publishes exactly what celebrities want. The FAZ has more (newsarticle, in German).

Three years ago, the European Court of Human Rights, in a judgment involving private pictures of Princess Caroline von Hannover (Monaco), had strengthened celebrities' privacy rights by instructing courts that are confronted with the balancing of freedom of the press with privacy rights to consider whether the pictures in question contributed to a public debate (Von Hannover v. Germany, no. 59320/00, ECHR 2004-VI).

Whether yesterday's decision restricts freedom of the press to an extent that is beyond the pale and thus violates existing European and German legal standards will probably be decided by the German Federal Constitutional Court - as the defendant-publisher reserved the right to bring the case to this court for final review.

Former U.S. Prosecutor in Nuremberg Trials Criticizes Guantánamo Trials

2007-06-12T00:57:00.000-04:00

In a telephone interview with Reuters(article, in English), Henry King Jr. who served under Jackson, chief prosecutor at the trials created by the Allied powers to try Nazi military and political leaders after World War Two in Nuremberg, Germany scathed the way alleged enemy combatants are tried in Guantánamo:

"I think Robert Jackson, who's the architect of Nuremberg, would turn over in his grave if he knew what was going on at Guantanamo[.]"

Speaking of Enemy Combatants ...

2007-06-12T00:36:00.000-04:00

Today, a federal appeals court held that the U.S. military could not detain an alleged enemy combatant without charges for an undefined period of time. Reuters has an informative compilation of the three men that are held as enemy combatants in the United States.

Interesting Op-Ed on Guantánamo Dismissals

2007-06-07T17:14:00.000-04:00

Last Monday, two different military judges dismissed the cases of two Guantánamo detainees on procedural grounds: According to last year's Military Commissions Act, military commissions have jurisdiction over offenses committed by unlawful enemy combatants. Yet, up to now Guantánamo detainees have merely been designated "enemy combatants" without further distinction between lawful and unlawful.

JURIST has an interesting op-ed (text, in English) on this topic written by Professor Majorie Cohn. Here is a short extract:

The Bush administration may try to fix the procedural problem and retry Khadr and Hamdan. But regardless of whether Guantánamo detainees are lawful or unlawful enemy combatants, the Bush administration's treatment of them violates the Geneva Conventions. Lawful enemy combatants are protected against inhumane treatment by the Third Geneva Convention on prisoners of war. Unlawful enemy combatants are protected against inhumane treatment by Common Article Three.

Let us see how the Bush administration will react to this recent setback ...

An Obstreperous Defendant

2007-06-05T17:45:00.000-04:00

The long anticipated trial of former Liberian President Charles Taylor has started in the Hague - without the defendant. In a letter, Taylor called the U.N.-backed Special Court for Sierra Leone (SCSL, website) a farce and challenged the court's ability to "dispense justice". Furthermore, Taylor's lawyer Karim Khan informed the court that he had been fired by his client and refused to represent Taylor during the initial meeting. Despite the absence of both defendant and counsel, the court decided to hear the prosecution's opening statements. The trial will continue in three weeks. For further information on the events, click here (JURIST article, in English).

Charles Taylor, who is charged with crimes against humanity and violations of international humanitarian law, seems to assume a similar strategy as former Yugoslavian President Slobodan Milosevic: Both tried to discredit the court before which they were summoned. The fact that both the SCSL and the ICTY are ad hoc tribunals, i.e. U.N.(-backed) courts that are established for one particular conflict, certainly invites such conduct. Accordingly, it is all the more important to endorse the International Criminal Court (ICC, website) - an independent and permanent institution with jurisdiction over genocide, crimes against humanity, and war crimes.

Speaking of Srebrenica ...

2007-06-05T17:22:00.000-04:00

Speaking of Srebrenica ... JURIST reports that survivors of the Srebrenica massacre instituted a class action suit against the U.N. and the Netherlands in the Netherlands. The victims accuse both defendants of having failed to patronize refuges placed under their protection. For further details, please refer to the JURIST article (in English).

Genocide Suspect Tolimir in ICTY Custody

2007-06-01T19:26:00.000-04:00

Today, genocide suspect Zdravko Tolimir was placed into custody of the International Criminal Tribunal for the Former Yugoslavia, ICTY (ICTY press release). Tolimir used to be a close ally of former Bosnian Serb military chief and key figure Ratko Mladic. Tolimir is inter alia charged with genocide for his involvement in the Srebrenica massacre in 1995. Tolimir was arrested in a joint effort by Bosnian Serb and Serbian police while crossing the Bosnian-Serb border. This is the first time that Bosnian Serb police arrests a fugitive wanted by the ICTY. AFP and Jurist have further information on this arrest.

Whether this arrest marks a change in Bosnia Serb attitude towards the ICTY remains to be seen. In any case, under international law, Bosnia Serb police has a duty to cooperate with the ICTY ... It still has the opportunity to fulfill this duty by arresting Mladic, Karadžic et al.

Proposed Revisions of German Criminal Law Relating to Corruption - A Step in the Right Direction

2007-05-31T19:37:00.000-04:00

Yesterday, the German federal cabinet approved a draft amendment to the German penal code for submission to the Bundestag (lower house of German parliament). According to a press release by the German Department of Justice (text, in German), the amendment would bring about two major revisions:

Extension of Application of German Penal Code: German criminal law will apply to any case of corruption, even if committed abroad, as long as a German national is involved either by taking or by offering bribes. Up to now, corruption of non-EU public officials and judges was not covered by the German Penal Code.

Broadening of Crime of Bribery: The crime of bribery in business relations will no longer be restricted to cases where the act of giving or receiving benefits is aimed at securing a competitive advantage.

Click here for the complete text of the draft (in German) including goals, amendments, and rationale.

The approved draft amendment serves to fullfill standards set by European and international agreements. It is, however, not at all mistimed. For some time now, Germany has suffered a loss of image in terms of (business) ethics. The latest corruption scandal was related to Siemens, one of Germany's model corporations. The draft is certainly a step in the right direction. Yet, more needs to be done in order to restore trust in Germany's political and economic actors.

G8 Summit: Security vs. Individual Rights?

2007-05-24T20:06:00.000-04:00

In two weeks, representatives of the seven leading industrial nations plus Russia (G8 states) are going to meet in Heiligendamm, Germany (located on the eastern baltic coast, between Wismar and Rostock). Traditionally, G8 summits were accompanied by - often violent - demonstrations of anti-globalization activists (article, in German). Thus, in order to assure a peaceful course of the summit and the protection of its participants, German law enforcement authorities decided to scotch potential violence by performing certain preventive, yet highly controversial measures. German police raided homes of several anti-globalization activists (see also previous post). Recently, odor samples were taken of several activists in order to train dogs to recognize suspects (article, in German). Critics pointed out that Stasi in the former German Democratic Republic used similar methods.

Does the end justify the means in this case? It is certainly important to provide security to summit participants. Yet, Germany is a democracy based on granting to its citizens certain fundamental rights and freedoms - among them the right of privacy and the freedom of assembly. Generally speaking, in a democracy, state authorities only have the right to limit free exercise of these rights in certain situations, in particular when they are outweighed by a superior interest. When it comes to preventive measures, the State's burden to find alternative, less invasive measures is especially high. According to some human rights specialists, German law enforcement authorities seem to hollow out this legal framework under the guise of warranting domestic security (article, in English). This seems to be a general phenomenon in Western democracies, triggered by 9/11 ... Although this development is comprehensible, it is dangerous as it shifts the balance away from protection of individual rights towards national security and prevention. The basic question is where to draw the line between national security and individual rights. To answer this question one should step back a little and reflect on the principles upon which Western democracies developed and on the extent to which those principles could be curtailed without rendering our democracies baseless.

European Court of Justice - Common Market or Protectionism?

2007-05-24T01:31:00.000-04:00

Today, Advocates Generals to the ECJ rendered their opinion on two much anticipated cases involving the role of trade unions within the EU. In both cases, trade unions had braced themselves against the downsides of the EC principle of freedom to provide services.

In Laval un Partneri Ltd. v. Svenska Byggnadsarbetareförbundet and Others (opinion)Laval, a company from Latvia, had been hired for the renovation and extension of school premises in the town of Vaxholm (Stockholm area). A Swedish trade union entered into negotiations with Laval in order to have a Swedish collective agreement for the building sector applied to Laval's Latvian workers. When negotiations failed, the Swedish trade union started collective action which resulted in Laval's workers returning to Latvia and Laval's subsidiary company becoming subject to liquidation proceedings. Laval commenced proceedings before the Swedish labor court which found that the case involved issues of community law and referred them to the ECJ for a preliminary ruling. The case basically boils down to the question whether collective agreements of a member state can be universally applicable. The Advocate General answered in the affirmative pointing out, however, that principles of proportionality should apply.

"Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services and Article 49 EC must be interpreted as not preventing trade unions from attempting, by means of collective action in the form of a blockade and solidarity action, to compel a service provider of another Member State to subscribe to the rate of pay determined in accordance with a collective agreement which is applicable in practice to domestic undertakings in the same sector that are in a similar situation and was concluded in the first Member State, to whose territory workers of the other Member State are temporarily posted, provided that the collective action is motivated by public-interest objectives, such as the protection of workers and the fight against social dumping, and is not carried out in a manner that is disproportionate to the attainment of those objectives."

In The International Transport Workers' Federation and the Finnish Seamen's Union v. Viking Line ABP and OÜ Viking Line Eesti (opinion), a Finnish passenger ferry operator planned to change its place of establishment to Estonia in order to benefit from lower wage levels. A Finnish trade union threatened with strike and boycott in order to prevent the relocation from happening; it received support by International Transport Workers' Federation. Viking Line brought an action in the Commercial Court in London seeking declaratory and injunctive relief which required, inter alia, the trade unions not to interfere with Viking Line’s right to freedom of movement. The Commercial Court granted injunction and the trade unions appealed. The Court of Appeal found that the case involved questions of community law and referred them to the ECJ for a preliminary ruling. The main issue in this case was whether trade union actions to prevent a company from relocating to another member state unduly interfered with the company's right to freedom of establishment (as granted by Article 43 EC). The Advocate General answered this question in the negative pointing out, however, that it would not be in accordance with EC law to systematically prevent the hiring of workers from a specific member state:

"Article 43 EC does not preclude a trade union or an association of trade unions from taking collective action which has the effect of restricting the right of establishment of an undertaking that intends to relocate to another Member State, in order to protect the workers of that undertaking. It is for the national court to determine whether such action is lawful in the light of the applicable domestic rules regarding the exercise of the right to collective action, provided that cases of intra‑Community relocation are not treated less favourably than cases of relocation within the national borders.
Article 43 EC precludes a coordinated policy of collective action by a trade union and an association of trade unions which, by restricting the right to freedom of establishment, has the effect of partitioning the labour market and impeding the hiring of workers from certain Member States in order to protect the jobs of workers in other Member States."

While trade unions expressed their contentedness with the opinions, critics are concerned about a possible adverse effect on the common market and the promotion of protectionism. As opinions by Advocates Generals generally tend to be very persuasive, it still remains to be seen how the ECJ judges will decide the two cases. In a few months we should know...

EU-Russia Summit - Taking Stock of a Dreary Meeting

2007-05-18T19:43:00.000-04:00

As I had already stated in an earlier post, from the beginning, the EU-Russia summit stood under a bad sign: Poland prevented negotiations on a renewal of the partnership between the EU and Russia as a result of Russia restricting imports of Polish meat. Meanwhile, Russia is in a snuff due to the relocation of a Soviet cenotaph in Estonia. The discord culminated in a battle of words between President of the Council of the European Union and German Chancellor Merkel and Russian President Putin. Merkel criticized Russian authorities for preventing opposition leader Kasparov from leaving Moscow in order to come to Samara. Putin, in turn, referred to the raid by the German police against opponents of globalization. Well, following Merkel's summary of the situation: at least one talks with each other.

To find more information about the EU-Russia summit, visit the website of the German government (article as of now only in German).

Bernard Kouchner is New French Foreign Minister - Voyons!

2007-05-18T18:19:00.000-04:00

The appointment of Bernard Kouchner - the co-founder of "Doctors without Border" - to be the new Foreign Minister of France could prove explosive ... Here is the link to a New York Times article on Bernard Kouchner's appointment.

According to Le Monde, French socialists reacted to the appointment by throwing Bernard Kouchner out of the party.

Hollande exclut Kouchner du PS et perd Jouyet, un ami de "30 ans"
LEMONDE.FR | 18.05.07

Did Nicolas Sarkozy in forming his new government really intend to display openness? Or was Bernard Kouchner's appointment more the result of political tactics aimed at weakening the socialists before the soon to be held parliamentary elections?

Germany - "Secret Prisoner" El Masri Blows a Fuse

2007-05-17T13:16:00.000-04:00

According to the Frankfurter Allgemeine Zeitung (FAZ) (article in German), Khaled el Masri who allegedly was kidnapped by the CIA and tortured in a secret prison in Afghanistan, is suspected of having set a warehouse on fire. The investigating judge admitted him to a psychiatric clinic. El Masri's attorney claimed that his client was afflicted with a mental disorder caused by the agonies he suffered during his imprisonment in Afghanistan. Yet, up to this point, all requests from part of the attorney to get governmental assistance for his client's post-traumatic treatment had been futile. Currently, such a request is pending with the Bavarian government.

As tragic as it is, this recent development may come in handy for El Masri's critics and cast new doubts on El Masri's story. Let us hope that this possible act of desperation will at least bring El Masri the looked-for psychological treatment.

Close Franco-German Cooperation - Essential for Europe's Future

2007-05-16T17:16:00.000-04:00

Unfortunately, I did not have time to comment on the presidential elections in France. Yet, instead, I can now write about the first day in office of the new French President for today, Wednesday May 16, 2007, Sarkozy was sworn in as new President of France. Right after his inauguration, President Sarkozy paid a visit to German Chancellor and actual President of the Council of the European Union, Angela Merkel (article in German) - an act full of symbolism; or reciprocity? In fact, Angela Merkel had already made France the destination of her first journey abroad.

The franco-german cooperation has a long tradition and played an important role in the creation of the European Union. Yet, during the era of Merkel's predecessor, Gerhard Schroeder, the relationship between the two countries cooled for Schroeder was more oriented towards strengthening Germany's diplomatic relations with Russia. This political decision may have had an important impact on European politics: With Germany no longer focusing on EU interests, France turned towards domestic matters. The EU lost importance ... and popularity as it became more and more remote. This development culminated in 2005 when the French people - out of discontent with their current government - rejected the proposed European Constitution. This referendum called the future of the European Union in question. Now, the hope is that the new rapprochement of France and Germany could bring the long anticipated upswing in the European constitutional process. And, indeed, the European constitutional treaty was topic of today's meeting between Sarkozy and Merkel.

And Russia? Tomorrow, Thursday May 17, Angela Merkel in her function as President of the Council of the European Union will meet with Manuel Barroso, President of the European Commission and Russian President Vladimir Putin (article in German). The relations between Russia and the EU are currently rather tense. Thus, due to Russia restricting imports of its meat, Poland prevented that the renewal of the partnership between EU and Russia was put on the agenda of tomorrow's meeting. More to follow ...

Thank You For Your Patience!

2007-04-26T10:49:00.000-04:00

Sorry for being so "lazy" with regards to my posts. I got assigned a class to teach on very short notice. Therefore, I am busy right now with preparing and teaching the class. I hope that I will be able to write new posts within the next two or three weeks. Thank you for your patience!

Pinochet - Posthumously under Investigation

2007-03-27T23:42:00.000-04:00

As reported by Jurist and Bloomberg, former Chilean dictator Augusto Pinochet is posthumously under investigation. A Chilean judge is investigating whether Pinochet ordered the 1982 poisoning of Eduardo Frei Montalva, ex-president of Chile and main opponent of the constitutional reform envisioned by the Pinochet regime. A recent examination of Montalva's remains had found traces of mustard gas.

According to a Chilean lawyer [Bloomberg article], under Chilean law, an investigating judge may pursue investigations indefinitely until there is sufficient evidence for initiating a trial. Although only persons that are still alive can be subject to criminal charges, a judge may award damages to a victim's family or summarize the findings of his investigation in a final report.

The recent investigations in the Montalva case raise hope among Chilean victims' families that the period of suppression of truth is finally over. Despite some efforts, Pinochet was never really held responsible during his lifetime. Thus, in 1998, the British House of Lords refused to extradite Pinochet to Spain for reasons of his poor health. Maybe, finally, after the death of the protagonist, victims will get their day in court. Whether this will really bring about justice remains to be seen...

What is the Matter with the EU?

2007-03-26T19:25:00.000-04:00

As an addendum to yesterdays post, I would like to talk about what I perceive as the two essential problems of the European Union as well as about the way I think they could be resolved.

First of all, the European Union is still too remote to its citizens. Most of the citizens do not know how the European Union is organized, how they are represented, what impact the European Union has to their daily life etc. Every five years, citizens are invited to vote for the European Parliament. Yet, with some exceptions, the candidates are generally not very well known. In addition, the European Parliament still plays a minor - although growing - role in terms of influencing EU legislative activities. Thus, the European Commission, which consists of envoys of the member state governments, proposes laws which are then passed by the European Parliament and the Council of the European Union (ministers of member state governments). Such a system differs considerably from what we are used to. How shall citizens of the respective member states feel constrained to a system where they have so little to say?

Second, member states seem to have lost track of the process of European integration. The focus now is mainly on European extension. Integration efforts often fail because member states cannot bite the bullet: they lay more interests on their own interests than on community interests. Although such an attitude is understandable, it does not advance integration. Integration, however, is important for a successful further extension. Therefore some rethinking from part of every single member state is necessary in order to assure the continued success of the European Union. Here again I think the solution is to win the support of the citizens of the respective member states by providing them with a more active role. Once they feel constrained to the European Union, they probably will support pro-European efforts of their national governments which, in turn, will prompt those national governments to act accordingly and to contribute to integrative efforts within the European Union.

In sum, I do hope that the new "basic treaty" of the European Union envisioned for 2009 will give the European citizens more opportunities to participate.

50 Years EU - Time to Celebrate?

2007-03-26T00:50:00.000-04:00

On March 25, 1957, six countries (France, West Germany, Italy, Belgium, the Netherlands, and Luxembourg) signed the "Treaty establishing the European Economic Community (ECC)" and the "Treaty establishing the European Atomic Energy Community (EURATOM)", both better known as Treaties of Rome. Although several advances had been made before [presentation by German government, pdf], the signature of those treaties is considered to have laid the foundation stone for the European Union as it exists today. Therefore, in order to celebrate the 50th anniversary, representatives of all 27 member states gathered in Berlin for various festivities culminating in today's signature of the Berlin Declaration [text, pdf]. Unfortunately, not everything looks as bright as the festivities might suggest. This became once again apparent in the run-up to the 50th anniversary, particularly with regards to the Berlin Declaration. The final preparations for this declaration were kept secret to an extent that the Czech government felt compassed by Germany [FAZ, in German].

Interestingly, the declaration strives no longer for a European constitution, but for a "basic treaty" [FAZ, in German]. This is to avoid the recurrence of past "disasters": in 2005, voters in France and the Netherlands had rejected a proposed European Constitution - in France, at least partially, as a result of discontentment with the French government. Those rejections constituted a major setback for the further development and reorganization of the European Union. Such a reorganization would have been important for the smooth expansion of the European Union. The current goal of a "basic treaty" shall make Constitution opponents give in. If not the future of the European Union is questionable ...

A Daunting Discussion ...

2007-03-23T12:02:00.000-04:00

The issue of climate change resounds throughout the land ... In Europe, where the winter has been exceptionally warm ... In the United States, where Al Gore was awarded an Oscar for his documentary on global warming ... The evidence is daunting ... Really? Who knows! The Frankfurter Allgemeine Zeitung (FAZ) reports on a counter movement:

The advocates of this counter movement question the causality between human CO2 emissions and global warming ... they even challenge the phenomenon of global warming per se: couldn't the rising sea level be caused by continental drift and the "old" arctic ice just make room for new ice layers? And isn't the whole global warming discussion just a political creation of the former Thatcher government in Britain in order to promote atomic energy? All those questions are raised in a film by Martin Durkin in his film „The Great Global Warming Swindle“ broadcast on the British Channel 4 [website on film]. In the United States, the global warming critics just won a verbal battle against global warming proponents broadcast on National Public Radio [website on debate]. For a critical examination of those new arguments and other points of views on the issue of climate change, please see Real Climate [blog by climate scientists].

The discussion seems to be heated right now given the current political momentum ... but probably it will cool down at some point ... in accordance with the alleged temperature cycle of the earth ...

France - Freedom of the Press Prevails Over Comity

2007-03-22T20:09:00.000-04:00

Today, the Tribunal de Grande Instance Paris, 17e Chambre (trial court) acquitted Philippe Val, the director of the French satiric newspaper Charlie Hebdo [Wikipedia, in French]. Mr. Val had been prosecuted for the publication of cartoons displaying the Muslim prophet Mohammad, one week after such displays by a Danish newspaper had led to protests from part of the Muslim community. Last September, a Danish court refused to hear the Danish cartoon case. Now, a French trial court emphasizes freedom of the press and refuses to hold the cartoon publishers accountable. For further information, see Find Law [in English] and LeMonde [in French].

If the issue was freedom of press versus comity, clearly freedom of the press prevailed. This outcome per se is not surprising because France has a long tradition of secularism and protection of freedom of expression. What struck me, however, as unfortunate is the meddling of politicians in the lawsuit: even the right-party candidate to the French Presidency, Nicolas Sarkozy, expressed his solidarity with Mr. Val in a letter to the defense. Not exactly a way to attract voters from the vast Muslim community in France.

The Deficiencies of the German School System

2007-03-21T16:00:00.000-04:00

After a few days creative break, I am determined to start afresh with regular reports from the international arena ...

Today, I would like to give a few insights into the German educational system. The linchpin to this post is today's meeting of the U.N. Human Rights Commission on the German school system. The meeting was prompted by a staggering report of the U.N. Special Emissary, Vernor Muñoz. In his report, Muñoz characterizes the German school system as discriminatory as disabled children and children from poor or immigrant families have a difficult time to succeed and are taking a back seat. For more information, see Sueddeutsche Zeitung [article, in German].

One stumbling block is the early "classification" of children in "intelligent" and "less intelligent". Thus, during the fourth year of primary school (at the age of nine or ten), a teacher has to decide which of her pupils she considers capable to attend high school (Gymnasium). Those "not so capable" are again classified and either sent to a compulsory secondary school (Hauptschule) which is said to provide only low-chance education or to an intermediate school (Realschule). The Bayerisches Kultusministerium has more [website, in English]. The "upgrade" to a "higher level school" is almost impossible.

The early classification is generally detrimental for immigrant children whose proficiency of the German language often does not meet the standards set for being considered "capable to attend high school". When I was at primary school, immigrant children (in our case Greek students) did not even attend the same classes as we did: they had their own teacher, own rooms etc. Not really a system that fosters integration ...

Indeed, Mr. Muñoz's other challenge is the current school system's "discrimination" against disabled children. Those children are sent to special schools where they shall get particular assistance. The problem is that this generally results in disabled children taking a back seat. During my whole education in Germany, I never had a classmate or co-student who was disabled, i.e. blind or confined to a wheelchair ... This is certainly nothing to be proud of.

Still the Secretaries of Education of the German Laender are not inclined to change the current system. They challenge Mr. Muñoz's ability to judge the German system and assert that the current system has proved its value. Well, another illustration of the German phlegm when it comes to reform the current (traditional) system ... but unfortunately also another example of a state refusing to take the U.N. seriously.

Some Reflections on the Upcoming Presidential Elections in France

2007-03-15T00:24:00.000-04:00

On April 22, 2007 will be the first round of the presidential elections in France (website, in French). According to the latest survey, the top four candidates are Nicolas Sarkozy (right wing), Ségolène Royal (left wing), François Bayrou (right wing), and Jean-Marie Le Pen (rightist extremist) - thus, Ségolène Royal being the only presidential favorite that belongs to the left wing.

The last presidential elections in France (2002) had been disastrous for the left wing and clouded by rightist extremist Jean-Marie Le Pen being astonishingly successful during the first round of elections - only incumbent Jacques Chirac (right wing) got more votes. Lionel Jospin (left wing) only attained the third place. Jospin reacted to this defeat and stepped down. Consequently, the run-off ballot was between Chirac and Le Pen: most right wing and left wing partisans teamed up and Chirac was elected with paramount majority. For more background information to the presidential election 2002 see Wikipedia [in French].

The current front-runners for the French Presidency seem to be Nicolas Sarkozy (right wing), Ségolène Royal (left wing) ... according to the latest surveys and definitely according to the media coverage. Interestingly, Le Canard Enchaîné [website, in French], a satiric newspaper has attracted attention lately by uncovering some shady conduct of both front-runners ... even the bigger newspapers like Le Monde (France) and FAZ (Germany) referred to those articles. It seems a little bit strange to me that, of all things, a satiric newspaper should assume such a role, but whatever ...

On another note, the www plays an increasing role in electoral politics. Candidates have their website/weblogs where they can communicate their programs and ideologies to their adherents as well as to interested parties. Besides, supporters increasingly take a stake in their favorite candidate's election campaign. Yesterday, for example, I visited Ségolène Royal's website [in French] and found an interesting posting inviting all bloggers supporting Royal to come together in order to make a joint backup effort ... Will this be enough to avoid a defeat similar to the 2002 elections? We will see in 37 days ...

Gay marriage in France? ... Not yet!

2007-03-13T19:00:00.000-04:00

Some legal news from France ... I just read the article and chronology in today's online version of Le Monde: The French Cour de Cassation (highest court in France that hears all final appeals except administrative law cases) annulled the notorious marriage of Bègles - the first and only gay marriage of France [for detailed report, Cour de Cassation press release]. The court held that the current French family law restricts marriage to a union between a man and a woman and that it is upon the legislature (and not the judiciary) to change the law in order to allow gay couples to marry should the situation arise.

The current legal situation of homosexual partners in France is as follows: Since 1999, homosexual couples, as well as heterosexual couples, may form a PACS ("Pacte Civil de Solidarité" - Civil Solidarity Pact). The PACS is a contractual agreement between the partners giving their union a certain legal status short of marriage [Wikipedia, in French]. For example, on the one hand, "pacsés" owe each other mutual aid, are liable for each other's debts incurred during the union, have certain social rights. On the other hand, however, they are not entitled to inherit from each other intestate, and, as recently decided by the Cour de Cassation [press release], one "pacsé" is not allowed to adopt the child of the other without the biological parent losing her right, a result which the court considered not to be in the interest of the child. A situation principally different to that of married couples where one partner is allowed to adopt the other's child in order to have common child custody. Again, as it did today, the court emphasized that changes of the current law should be done by the legislature.

Interestingly, in France, the matter of gay couples seem to re-appear on the political agenda. Yet, this time, the question is not whether homosexual partnerships should be generally accepted and accorded rights. Rather, the discussion turns to the point of eliminating any distinction between homosexual and heterosexual partnerships in order to allow homosexual partners to marry, all legal (and social?) consequences inclusive. France could again, as already with the legal recognition of homosexual partnerships (by introducing PACS), set the ball rolling for a general acceptance of gay marriages in Europe. Let us see how the situation further develops ...

Afghanistan - The New Amnesty Bill and the Duty to Investigate and Prosecute Human Rights Abusers

2007-03-10T23:49:00.000-05:00

Today, according to Jurist [report], the lower house of parliament in Afghanistan approved an amnesty bill that would make state prosecution of war criminals contingent on an accusation raised by an alleged victim. Today's bill is a revised version of a previous amnesty bill that, for the sake of peace, would have granted blanket amnesties to warlords that had allegedly committed human rights violations during the country's long period of conflict. This prior bill had been criticized by human rights groups and the U.N. High Commissioner for Human Rights [Jurist report] for not respecting the victims' rights to justice.

The new bill gives victims at least a right to seek justice on an individual basis. Yet, it sort of shifts the responsibility for prosecuting war crimes to the individual victim instead of having the state prosecute war criminals ex officio. I have my doubts whether such a solution would fully satisfy Afghanistan's duty to investigate and prosecute human rights perpetrators as implied by international treaty law as well as customary international law.

France - Interaction between French law and European Union law

2007-03-09T20:45:00.000-05:00

Last month, the French Conseil d'Etat (Council of State), which is the highest administrative court in France, further clarified the interaction between French law and European Union law. Specifically, on February 8, 2007, the council decided two cases [press release, in French] that set the basis for the council's new approach to EU law.

The first case determined the judicial approach in cases where the conditions for translating a European directive seem to run contrary to provisions in the French Constitution. In such cases, the council set forth, administrative judges should first determine whether the constitutional provision in question had a counterpart in European law. If this was the case, a judge would then have to ascertain whether there is a serious challenge to the European directive. If yes, according to the council, the judge should ask the European Court of Justice to review of the legality of the directive by means of a reference for a preliminary ruling. The EU Law Blog has more about this case.

The second case concerned the question of State responsibility for violations of international law. The council held that if the French government violated international law in general, and European law in particular, and if this violation resulted in individual harm, the government would have to pay damages to the individual harmed. In the case at hand, the council determined that the French government was liable for violating the European Convention for the Protection of Human Rights and Fundamental Freedoms [text].

ICC vs. Sudan - Who has Jurisdiction over Darfur?

2007-03-08T12:18:00.000-05:00

Last week, I reported on the chief prosecutor of the International Criminal Court (ICC) naming the first suspects in the case involving the situation in Darfur. One of those named suspects, Ali Kushayb, should be tried yesterday by the Darfur special court in El-Geneina, Sudan. This trial, however, was delayed due to an appeal filed by the accused [Reuters UK].

The Kushayb trial is just another way for Sudan showing its opposition to the current ICC investigation of the situation in Darfur. Thus, in 2005, when the U.N. Security Council referred the Darfur conflict to the ICC, the government in Sudan reacted with the formation of the Darfur special court [Reuters UK].

By conducting its own proceedings, Sudan tries to circumvent the ICC jurisdiction. According to the Rome Statute [text, pdf], the jurisdiction of the ICC is determined by the principle of complementarity which makes the admissibility of a case before the ICC dependent on the lack of a genuine prosecution in the original state (here Sudan).

The chief prosecutor of the ICC addressed the issue of admissibility in his opening remarks in connection with the naming of the first two Darfur suspects [text]:

The Government of the Sudan informed the Prosecution that Ali KUSHAYB is under criminal investigation and was arrested on the 28th of November 2006.

Our case is about Ahmad Harun and Ali Kushayb joining each other to attack the civilian population in Darfur. There is no such investigation in the Sudan.

On this basis, the Prosecution has concluded that the case is admissible. To be clear, the admissibility assessment is not a judgement on the Sudanese justice system as a whole. We are just assessing if the Sudanese authorities are carrying out the same case.

Thus, the chief prosecutor of the ICC, as of now, refuses to question the candor of the Dafur special court proceedings and relies on the assertion of joint responsibility as a factor sufficiently different to warrant parallel ICC proceedings. It remains to be seen how this strategy works out.

Are the Swiss Still Neutral?

2007-03-06T16:56:00.000-05:00

I have been asked to write a few lines about an incident that took place last week at the frontier between Switzerland and Liechtenstein: A company of Swiss soldiers, during a routine training exercise, inadvertently crossed the unguarded border to its defenseless neighbor Liechtenstein. The New York Times reported on this occurrence [article].

While both countries concerned did not make a big deal out of the event, a member of the legal community [Opinio Juris on March 2, 2007] "was appalled to learn of Switzerland's recent invasion of Liechtenstein" and stresses that "the responsible individuals are punished appropriately".

Personally, I would like to invoke my neutrality acquired through marriage. Yet, maybe my husband Flavio who is Swiss would like to comment on this matter ... provided he does not choose to invoke his right to remain silent ...

Of course, comments by others are also very welcome.

About a German Islam Critic

2007-03-06T00:56:00.000-05:00

I found an interesting article in today's issue of the Frankfurter Allgemeine Zeitung (FAZ) ... here is the link [text in German]. The article talks about Rainer Grell, a lawyer and former head of the immigration division within the Department of the Interior of the German Land Baden-Wuerttemberg. As an incumbent, Grell developed the Gespraechsleitfaden fuer Einbuergerungswillige (which could be translated as "Interview Guide for Persons Who Would Like to Become German Citizens"). Grell eventually enforced the implementation of a questionnaire to test applicants' orientation towards the German Grundgesetz (which can be translated as "basic law" and is the German Federal Constitution). The test consists of the following type of questions:

Please assume the following situation: your son of full age tells you that he is homosexual and would like to live with another man. How do you react?

Grell's test was his reaction to a statement by the President of a German administrative court who argued that a teacher who insisted on wearing a headscarf was unable to act in consistence with the German Grundgesetz and its values. The 'history' of Grell's test can now be downloaded from Grell's website "Politically Incorrect" [in German]. By the way, the slogan of the website is "News Against the Mainstream - Pro-America - Pro-Israel - Against an Islamization of Europe - For a Basic Law and Civil Rights".

To put everything in perspective ... Grell is no longer in office ... and, according to the FAZ, Grell's test is currently under revision. Personally, I can only hook up with the bottom-line of the above-mentioned FAZ article: We should refrain from politicizing religion. Not every Muslim is a fundamentalist ... and not every Christian adheres to democratic values. Moreover, the stigmatization of Muslims because of their beliefs may very well be counter-productive and be prejudicial to international understanding.

Upcoming Event - National People's Congress in China

2007-03-04T16:23:00.000-05:00

Tomorrow begins this year's annual session of the National People's Congress (NPC), which is the highest legislative body in the People's Republic of China. While the international community is mostly concerned by China's plan to increase its defense budget by 17.8 percent, two pieces of legislation might have a major impact on China's economic future.

First, the NPC is about to pass a law that will bring corporate tax rates of foreign companies on line with the rates for local companies. This law might indicate a trend from the part of the Chinese economic policy towards a disentanglement from foreign investment.

Second, and more controversial, this year's NPC might finally approve a private property law that will provide privately owned property the same legal status as state-owned property. The proposed law, which departs from traditional socialist ideology, explicitly prohibits the violation of property rights, especially through seizure and expropriation by public authorities, without due compensation. The new private property law could attract those (foreign) investors who so far were reluctant to make long-term investments due to the lack of private property protection.

A Few Words About the German Presidency of the Council of the European Union

2007-03-03T15:24:00.001-05:00

As a German citizen, I am bound to write a few words about the German Presidency of the Council of the European Union as well as about what this Presidency actually entails. On January 1, 2007, Germany has taken over the Presidency from Finland. Germany will hold the Presidency for six months. In July, Portugal will assume the Presidency for the next six months, followed by Slovenia ...

The Council of the European Union is part of the legislature in the European Union. It meets in different formations [Council website], depending on the issues discussed, with each member state delegating a minister responsible for the specific area (i.e. if environmental issues are to be discussed, member states will send their ministers who are responsible for environmental affairs).

The member state holding the Presidency of the Council of the European Union [overview, German Presidency website] acts as a chairman of the different Council configurations as well as of the various preparatory committees, working groups etc. In addition, the President of the Council of the European Union (i.e. the foreign minister of the member state holding the Presidency) prepares the agenda for the Council, signs legal acts, and represents the Council with regards to foreign affairs.

The slogan of the German Presidency is "Europe - succeeding together". Germany has developed an extensive program [text, pdf] and will organize two summits: The first one will take place the coming week and will deal with questions of the European Union's economic and social future. The second summit will be held in June and will address the future of the Treaty Establishing a Constitution of Europe.

While the frequent change of Presidencies of the Council of the European Union shall guarantee the best representation of interests of the respective member states, it is often too short to bring about major changes or reforms and it is up to the succeeding state to decide whether it will continue these efforts or set its own priorities...

In view of this problem, Germany, Portugal, and Slovenia have come together and developed a 18-month program [text, pdf] covering their three successive Presidencies. Maybe this program represents the necessary step to bring about the looked-for reform to make the European Union more apt to deal with the ever growing number of member states. It remains to be seen what future will bring...

Extraordinary Renditions - Again, For the Sake of Completeness

2007-03-03T00:02:00.000-05:00

Yesterday, I mentioned the extraordinary rendition case brought in a US court by the German citizen Khaled El-Masri. Today, the Fourth Circuit Court of Appeals affirmed the district court's dismissal of this case. Like the district court, the court of appeals recognized the state secrets privilege as providing sufficient grounds for a dismissal of the case. According to the United States Supreme Court in United States v. Reynolds (1953), the state secrets privilege allows the United States to prevent disclosure of information in a judicial proceeding if "there is reasonable danger" that such a disclosure "will expose military matters which, in the interest of national security, should not be divulged." The court of appeals finds that despite the fact that the existence of CIA flights has been publicly acknowledged by the United States, a proper proceeding would have required the (further) release of state secrets which could jeopardize national security.

Well, US courts dismiss extraordinary rendition cases, foreign courts that accept to hear such cases will not get hold of the suspects ... sooner or later the whole matter will fizzle out.

Extraordinary Renditions - A Deflating Insight

2007-03-01T19:35:00.000-05:00

Yesterday, the US Department of State, announced that the United States were not inclined to follow any request from Italy to extradite CIA agents [press briefing]. With this statements the State Department reacts to the indictment of 26 US (and 5 Italian) intelligence agents by an Italian judge earlier this month for their alleged participation in the 2003 abduction and extraordinary rendition of Osama Moustafa Hassan Nasr, an Egyptian cleric and alleged terror suspect. The trial is set to begin in Italy on June 8, 2007. If the US continues to refuse to extradite the agents, the trial may still take place in absentia. The impact of such a trial, however, is questionable. What should happen if those agents are found guilty by an Italian judge?

In a similar case, involving a German citizen who was allegedly abducted by the CIA and held in a secret prison in Afghanistan, the CIA acknowledged having been authorized by presidential order to detain and interrogate terror suspects overseas. Yet, will the US president be held accountable? And the European state officials who, according to a report by the European parliament [info], "have been relinquishing control over their airspace and airports by turning a blind eye or admitting flights operated by the CIA which, on some occasions, were being used for illegal transportation of detainees"?

What remains is a deflating insight: hypocrisy does not halt before human rights. Western democracies may be publicly endorsing civil values and human rights, but offstage they still resort to torture. Individual rights, then, are left out dry.

Chief Prosecutor of International Criminal Court Names First Darfur War Suspects

2007-03-01T00:10:00.000-05:00

On Tuesday, the chief prosecutor of the International Criminal Court (ICC) announced the first suspects in the case involving the situation in Darfur. The Prosecution claims [ICC-OTP press release] to have found reasonable grounds to believe that Ali Kushayb, leader of the pro-government janjaweed militia, and Ahmad Harun, former Sudanese interior minister, have jointly committed crimes against humanity and war crimes. By accusing senior figures of Sudan of international crimes, the Prosecution follows its policy to focus investigation and prosecution efforts on the big fish.

Tuesday's announcement came two years after the UN Security Council had referred the situation in Darfur, Sudan, to the prosecutor of the ICC [Security Council press release]. Besides Darfur, the following three situations have been referred to the prosecutor of the ICC: Democratic Republic of the Congo, Uganda, Central African Republic.

A Pre-Trial Chamber of the ICC now has to review the evidence submitted by the Prosecution. If the judges find that there is indeed reasonable grounds to believe that Kushayb and Harun committed the alleged crimes, they have to decide how to further proceed, specifically, how to ensure Kushayb's and Harun's appearance in court. This raises the important question of execution of arrest warrants issued by the ICC. The ICC lacks its own enforcement mechanism and therefore has to rely on state cooperation. Hence, what if a state is either unable or even unwilling to execute an arrest warrant issued by the ICC?

The chief prosecutor of the ICC has recently called on academics and practitioners to publish on the topic of international criminal prosecution [Jurist Forum].

Genocide - Political Tool or Heinous Crime?

2007-02-28T17:21:00.000-05:00

Last Monday, the International Court of Justice (ICJ) rendered its judgment in Bosnia and Herzegovina v. Serbia and Montenegro [ICJ docket]. The court held that it lacked sufficient evidence to hold Serbia directly responsible for genocide or complicity in genocide and found Serbia merely guilty for not meeting its obligations under the Genocide Convention [text] to prevent and punish genocide. The case marks the first time that a UN member state has been tried for genocide under the 1948 Genocide Convention and is likely to set the tone for future cases.

With regards to individual perpetrators, the International Tribunal for the Former Yugoslavia (ICTY) had already ample opportunities to apply the Genocide Convention. In Krstic [opinion], the appeals chamber of the ICTY held that the threshold for establishing specific intent required for the crime of genocide has to be set very high, because "[g]enocide is one of the worst crimes known to humankind [...]." The ICJ in its recent decision seems to adopt this approach of creating an insurmountable standard of proof for establishing genocide.

From the legal perspective, the decision not to hold Serbia directly responsible for genocide comes as a surprise. Awn Shawkat Al-Khasawneh, Vice-President of the ICJ, stated in the conclusion of his dissenting opinion [ICJ docket]:

The Court has absolved Serbia from responsibility for genocide in Bosnia and Herzegovina - save for responsibility for failure to prevent genocide in Srebrenica. It achieved this extraordinary result in the face of vast and compelling evidence to the contrary. [emphasis added]

Politically, however, it appears that such an outcome has been anticipated in order to facilitate the planned independence of Kosovo, which depends on the Serbian authorities' benevolence. Thus, Anes Alic [article], senior writer and analyst for ISN Security Watch, notes:

There will be few rumblings in Sarajevo, at least from the wider public. Those even only slightly attuned to regional and international politics know that the crimes that happened in Bosnia will be conveniently forgotten in the name of the greater good. Today, the greater good seems to be appeasing Serbia in order to push through independence for Kosovo and avoid the bloodshed that would ensure if the ethnic Albanians do not win this round.

All things considered, the recent ICJ decision holds a certain oxymoron: On the one hand, the court sets the standards for proving genocide incredibly high apparently due to the seriousness of the crime. On the other hand, the crime of genocide appears not to be serious enough to be shielded from political opportunism.