Foreign & International Blog
Is the united Nations Getting Away with Murder?
The search for accountability for the genocide of the Bosnian Muslims in July 1995 has gone beyond the International Criminal Tribunal for the former Yugoslavia. In 2007 Bosnia and Herzegovina brought a case to the International Court of Justice which ruled that Serbia had violated the Genocide Convention by not preventing the genocide (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. V. Serb. & Montenegro), Judgment 2007 I.C.J. 43 (Feb. 26).
The Netherlands has also been found liable for the genocide. A Dutch battalion of the United Nations Protection Force in Bosnia and Herzegovina (“UNPROFOR”) called Dutchbat, was unable to prevent the downfall of Srebrenica. The Hague Court of Appeal (Dutch Court), judged the state liable because Dutchbat denied refuge on the Dutchbat compound. (See Cees van Dam, “The Netherlands Found Liable for Srebrenica Deaths” ASIL INSIGHTS (Sept. 19, 2011) available at .pdf.
Further, the Mothers of Srebrenica Association and ten relatives of the Srebrenica victims brought a case against both the Netherlands and the United Nations. The United Nations has invoked immunity, and the question is whether the United Nations is entitled to such immunity. On April 13, 2012 the Dutch Supreme Court rejected the appeal of the judgment of the Court of Appeal granting immunity to the United Nations. HR 13 April 2012, Case No. 10/04437(Neth), Hof’s Gravenhage, 30 March 2010, Case No. 200.022.151/01(Neth). Both the Supreme Court’s Advocate General and the District Court have also agreed that the United Nations should have immunity.
Now, there is a case pending before the European Court of Human Rights, and it again raises the question of whether the United Nations is immune from claims against it because of the wrongdoing in Srebrenica. In a report, the UN Secretary Gerneral has stated: “There is an issue of responsibility, and we in the United Nations share in this responsibility. For a discussion of the Supreme Court’s opinion, as well as the opinion itself see “Introductory Note to the Supreme Court of the Netherlands: Mothers of Srebrenica Association et. al. v. The Netherlands” by Thomas Henquet (51 ILM1322 (2012).
Dan Wade
Resources on Corporate Liability and Human Rights
This year’s Bernstein Symposium, Beyond Kiobel: Human Rights and Corporate Liability in the 21st Century, held last week, explored how the legal framework of international human rights law has evolved to make possible holding corporations accountable for abuses they perpetrate through the application of the Alien Torts Statute (ATS). Just this past Wednesday the US Supreme Court has held that such claims will generally not be allowed under the ATS if they concern conduct occurring in the territory of a foreign sovereign and the presumption against extraterritoriality is to be applied.
The Law Library eYLS Documents Collection includes digitized sources cited in the Supplemental Brief filed by the Yale Law School Center for Global Legal Challenges in support of the petitioners in Kiobel v. Royal Dutch Petroleum Co. The Foreign and International Collection on L1 of the Law Library has also mounted a new display of print sources relating to issues revolving around the intersection of international human rights law and corporate complicit liability.
For additional print sources available at the law library:
On Alien Tort Statute and international human rights:
Corporations and human rights : an analysis of ATCA litigation against corporations / Niels Beisinghoff. 2009
Human rights and the alien tort statute : law, history, and analysis / Peter Henner. 2009
Corporate responsibility under the Alien Tort Statute : enforcement of international law through US torts law / by Michael Koebele. 2009.
International human rights litigation in U.S. courts / Beth Stephens ... [et al.]. 2008.
Accountability for human rights atrocities in international law: beyond the Nuremberg legacy / Steven R. Ratner, Jason S. Abrams. 2008.
Justice across borders : the struggle for human rights in U.S. courts / Jeffrey Davis. 2008.
Tort liability for human rights abuses / George P. Fletcher. 2008.
On Extraterritoriality:
Extraterritoriality and collective redress / edited by Duncan Fairgrieve & Eva Lein. 2012.
The extraterritorial application of selected human rights treaties / by Karen da Costa. 2013.
Global justice, state duties : the extraterritorial scope of economic, social, and cultural rights in international law / edited by Malcolm Langford ... [et al.]. 2013.
Beyond territoriality : transnational legal authority in an age of globalization / edited by Günther Handl, Joachim Zekoll and Peer Zumbansen. 2013.
The reach of human rights in a globalising world : extraterritorial application of human rights treaties / Michał Gondek. 2009
On Corporate complicity liability:
Beyond corporate social responsibility : oil multinationals and social challenges / Jedrzej George Frynas. 2012.
Corporate liability : a study in principles of attribution / Cheong-Ann Png. 2001.
Towards corporate liability in International criminal law / Desislava Stoitchkova. 2010.
Corporate crime and civil liability / Gordon E. Kaiser. 2012.
Transnational corporations and international law : accountability in the global business environment / Alice De Jonge. 2011.
Directors' liability and indemnification : a global guide / consulting editor, Edward Smerdon. 2011.
Environmental crimes and corporate responsibility : a legal research guide / by Heather Bryn Hersh. 2001.
Free Burma : transnational legal action and corporate accountability / John G. Dale. 2011.
Civil actions for uncivilized acts : the adjudicative jurisdiction of common law courts in transnational human rights proceedings / François Larocque
Business and human rights : a compilation of documents / edited by Radu Mares.
On UN Guiding Principles of Human Rights and Business:
The UN guiding principles on business and human rights : foundations and implementation / edited by Radu Mares. 2012.
On Corporate Social Responsibility:
Corporate social responsibility : a research handbook / edited by Kathryn Haynes, Alan Murray and Jesse Dillard. 2013.
Corporate social responsibility : the corporate governance of the 21st century / general editor, Ramon Mullerat. 2011.
Corporate social responsibility : the limits and dangers with corporate codes of conduct / Setareh Korkchi. 2008.
Corporate social responsibility of multinational corporations in developing countries : perspectives on anti-corruption / Adefolake O. Adeyeye. 2012.
International corporate social responsibility : the role of corporations in the economic order of the 21st century / Ramon Mullerat. 2010.
The dynamics of corporate social responsibilities / by Radu Mares. 2008.
The Oxford handbook of corporate social responsibility / edited by Andrew Crane ... [et al.] 2008-
The Ashgate research companion to corporate social responsibility / edited by David Crowther, Nicholas Capaldi. 2008.
Multinationals and corporate social responsibility : limitations and opportunities in international law / Jennifer A. Zerk. 2006.
Subject Headings to search in Morris and WorldCat:
- Social responsibility of business
- International business enterprises -- Law and legislation
- Tort liability of corporations
- Torts (International Law)
- Criminal liability of juristic persons.
- Profit -- Moral and ethical aspects
- Corporate governance -- Law and legislation
- Exterritoriality
- Conflict of laws-Jurisdiction
Comparing Human Rights Systems
In addition to the United Nations' overarching human rights regime, Europe, Africa, and the Americas each have regional human rights systems. They share similarities and also have significant differences and histories. Below is a chart summarizes some of the primary features demonstrating those similarities and differences over time.
Comparative Human Rights Systems
|
|
United Nations |
Council of Europe |
Inter-American System |
African Union |
|
Source |
1945 - Charter of the United Nations |
1949 - Treaty of London |
1948 (in force 1951; amended 1970) - Charter of the Organization of American States; 1969 (in force 1978) - American Convention on Human Rights |
1981 (in force 1986) - African Charter on Human and Peoples’ Rights
|
|
Declaration of Human Rights |
Dec. 1948 - Universal Declaration of Human Rights |
1950 (in force 1953) - European Convention for the Protection of Human Rights and Fundamental Freedoms |
May 1948 - American Declaration on the Rights and Duties of Man |
Charter (above); Grand Bay Declaration and Plan of Action on Human Rights |
|
Commission |
- |
1949 - European Commission of Human Rights (abolished with Protocol No. 11) |
1959 (1st session 1960) - Inter-American Commission on Human Rights |
1981 (in force 1986) - African Commission on Human and Peoples’ Rights |
|
Protocol |
- |
1959 - Protocol No. 11 (created the Court) |
1967 (in force 1970) - Protocol of Buenos Aires (transformed the Commission into a Charter body) |
1998 (in force 2004) - Protocol to the Charter (created the Court) |
|
Court |
- |
1959 (1st case 1960) - European Court of Human Rights |
1969 - Inter-American Court of Human Rights |
2006 (1st decision 2009) - African Court of Human and People’s Rights |
|
Predecessor |
1918 - League of Nations |
- |
1890 - International Union of American Republics (later called the Pan-American Union) |
1963 - Organization of African Unity |
The Lillian Goldman Law Library has one of the world's greatest human rights collections. You will find it interspersed among our comparative law collection on the UES as well as in the collections of individual nations on the LES. We have a Human Rights research guide to help you get started as well.
Cambridge Companion to Comparative Law
The Yale Law Library has added to its collection a new member of the Cambridge Companions to Law series, the new Cambridge Companion to Comparative Law . It is edited by two European scholars, Mauro Bussani, Professor of Comparative Law at the University of Trieste and Scientific Director of the International Association of Legal Sciences (IALS-Unesco), and Ugo Mattei, Professor of Civil Law at the University of Turin, as well as Alfred and Hannah Fromm Distinguished Professor of International and Comparative Law at the University of California Hastings College of the Law . The contributors to its 18 chapters include law professors from Europe, South America, and the United States, and one American anthropology professor. The work is divided into three parts: Knowing Comparative Law, including chapters on comparative law and neighboring disciplines and comparative law and anthropology among others, Comparative Law Fields covering such topics as comparative administrative law and comparative constitutional law, and Comparative Law in the Flux of Civilizations featuring various traditions such as East Asian, Jewish and Islamic.
For a rich survey of contemporary studies of comparative law see our own Teresa Miguel’s “Comparative Law: Academic Perspectives” in Richard A. Danner and Jules Winterton (eds.), The IALL International Handbook of Legal Information Management, Burlington, VT: Ashgate, 2011 written under the auspices of the International Association of Law Libraries . This is an updating and revitalizing of my own earlier “Comparative Law: Academic Perspectives and Practical Legal Realities,” in Richard A Danner and Marie-Louise Bernal, Introduction to Foreign Legal Systems, sponsored by the American Association of Law Libraries, New York: Oceana, 1994.
Dan Wade
Same-Sex Civil Partnerships in Poland is rejected
March 12, 2013
Deputies have turned down three bills that would have opened the way for Poland to introduce civil partnerships, including for same-sex couples. A bill proposed by the ruling Civic Platform (PO) party was rejected by some of its own members, causing a split in the party between more progressive lawmakers and those worried that the plans were a step too far in a socially conservative, Catholic country.
Poland is one of a few EU member states, along with Slovakia, Lithuania, Latvia, Estonia and Greece, that still lacks legislation on civil partnerships. The Jan. 25 vote in the lower house of parliament was the latest of several attempts dating back to 2002 to introduce such legislation in Poland.
The defeated bills proposed that civil partnerships, both same-sex and heterosexual ones, be registered at a registrar’s office and obliged partners to support each other. Partners in civil relationships would have the right to inherit property and be informed about their partners’ health in hospital, and could refuse to testify against their partners in court.
While right- and left-wing parties have been openly divided over the issue, the debate preceding the vote revealed cracks within the PO itself. Justice Minister Jarosław Gowin, seen as the informal leader of a conservative group within the PO, told the house that, in his opinion, all three bills—submitted by the PO, the opposition Democratic Left Alliance (SLD) and the socially liberal opposition Palikot Movement (RP)—were incompatible with the constitution, which defines marriage as a union between a man and a woman.
In an unprecedented move, Prime Minister Donald Tusk took the floor after Gowin to make it clear that Gowin’s statement was a personal opinion and not the official position of the government or the PO caucus. Even though Tusk called on deputies to send the legislation on for further work in committees, all three measures were rejected on their first reading.
President Bronisław Komorowski, who has a strongly conservative background, has said he is deeply concerned by the air of “ideological war” that surrounds civil partnership bills. Komorowski has suggested problems with incompatibility with the constitution could be avoided if instead of trying to pass a new law, Poland considered changes to existing laws. Such changes, according to Komorowski, should pertain to access to medical information for partners, joint property with zero inheritance tax, maintenance payments and burial rights. “I believe that what most people expect is not an ideological dispute, but a compromise and solutions to specific problems,” said Komorowski. “I would like to call on the right wing to hold their tongue as much as possible so as not to hurt the feelings of their fellow citizens regardless of their sexual orientation.”
EU Official Journal
EU had approved a regulation to make the electronic version of the Official Journal authentic and have legal effects. Section I.3 states that "The proposal provides that only the Official Journal published in electronic form shall be authentic and shall produce legal effects. However, in exceptional and temporary cases of unforeseen disruption of the electronic publication the printed edition would have legal value.".
This will impact citations to legislative acts of the Council and Commission under T3.3 of the Blue Book.
Source: FCIL-SIS listserv
What Have the International Criminal Tribunals Accomplished?
Researchers from the Department of Criminal Law, Tilburg University, Netherlands and the Department of Criminal Law and Criminology, VU University Amsterdam have published their compilation of statistics from the international criminal tribunals in “Sixty-Five Years of International Criminal Justice: The Facts and Figures,” which appears in the current issue of the International Criminal Law Review (Volume 13, 2013: Special Issue). Alette Smeulers, Barbora Hola, and Tom van den Berg reviewed the proceedings of the nine international criminal tribunals: The International Military Tribunal (Nuremberg), the International Military Tribunal for the Far East, the International Criminal Tribunal for former Yugoslavia, International Criminal Tribunal for Rwanda, the International Criminal Court, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, Special Tribunal for Lebanon, and the Special Panels of DIli (East Timor). They found that 172 cases have been concluded in which 250 judges and 23 chief prosecutors have participated. In all, there were 745 indicted suspects, of which 356 were tried and 281 convicted. Currently there are 34 suspects on trial and 22 are still at large. The largest percentage of those convicted came from Asia (110 out of 281, or 39%), while 36% of the European perpetrators were convicted and 25% of the African (p.33).
The Yale Law Library strives to collect a comprehensive set of commentaries and doctrinal works relating to these trials, and where possible the travaux preparatoires of thestatutes creating them.
Dan Wade
New African Hybrid International Criminal Court Established
By Dan Wade
The African Union Commission and Senegal established the Extraordinary African Chambers on August 22, 2012, which opened on February 8, 2013. It is to adjudicate violations of international criminal law committed in Chad between 1982 and 1990. It will have jurisdiction over four crimes: genocide, crimes against humanity, war crimes, and torture.
The Statute of the Court , available only in French may be found here.
The Statute calls for the creation of an administrative office, a prosecutorial office, and the Commission and Senegal will appoint the trial judges. The Statute provides for fair trial guarantees, including a presumption of innocence, the right to trial without undue delay, the right to counsel, the right of confrontation, and the right to an appeal. The Statute also allows for victim group participation. The accused may be incarcerated in Senegalese prisons. The working language of the court will be in French.
The Court will first try Hissene Habre, the former dictatior of Chad between 1982 and 1990, who is accused of killing thousands of political prisoners. The pre-trial phase will take place in 2013 with the expectation that the trial will occur next year.
Targeted Killings and Drone Attacks
Recent employment of drones for the purpose of targeted killings has generated much debate regarding the legality and morality of the practice. While some lawmakers believe that judicial review is required in light of due process concerns, others remain skeptical.
In addition to the wealth of information available online:
- CFR’s backgrounder on targeted killing ; special paper: Reforming U.S. Drone Strike Policies
Brookings research paper: Unmanned at Any Speed: Bringing Drone into Our National Airspace
- ASIL Insight: The International Law of Drones / Mary Ellen O’Connell (2010)
- ASIL Insight: The law that applies to autonomous weapon systems / by Jeffrey S. Thurnher (2013)
- ASIL Insight: International law issues with the Department of Justice White Paper on Targeted Killing / David Kaye (2013)
- Peace Palace Library Research Guides on : Terrorism; International Humanitarian Law; Use of Force; War
CRS reports on the U. S. drone program:
- Unmanned Aerial Vehicles: Background and Issues for Congress (2003)
- Unmanned Aerial Vehicles: Background and Issues for Congress (2005)
- Unmanned Vehicles for U.S. Naval Forces: Background and Issues for Congress (2005)
- Drones in Domestic Surveillance Operations: Fourth Amendment Implications and
- Legislative Responses (2012)
- U.S. Unmanned Aerial Systems (2012)
- Integration of Drones into Domestic Airspace: Selected Legal Issues (2013)
- Unmanned Aircraft Systems (UAS): Manufacturing Trends (2013)
The Law Library also possesses many reference volumes on this topic:
Unmanned Aircraft Systems (Drones) and Law / Lydia de Beer (ed.) (2011)
The law of targeting / William H. Boothby (2012)
Targeted Killings: Law and Morality in an Asymmetrical World / Claire Finkelstein, Jens David Ohlin, Andrew Altman (eds.) (2012) & Online
Targeted Killings and International Law, Roland Otto (2012)
Targeted killing in international law / Nils Melzer (2008) & Online
Kill or Capture: the War on Terror and the Soul of the Obama Presidency, Daniel Klaidman (2012)
Laws of war and 21st century conflict / E.L. Gaston (2012)
Rethinking the law of armed conflict in an age of terrorism / edited by Christopher A. Ford and Amichai Cohen (2012)
Counterterrorism law / Stephen Dycus, William C. Banks, Peter Raven-Hansen (2012)
Global perspectives on counterterrorism / Amos N. Guiora (2011)
Select journal articles in Encore:
Targeted Killing and Assassination: The U.S. Legal Framework; Banks, William C.; Raven-Hansen, Peter, 37 U. Rich. L. Rev. 667 (2003)
Targeted Killing, Norms, and International Law, W. Jason Fisher, 45 Colum. J. Transnat l L. 711 (2007)
Can Targeted Killing Work as a Neutral Principle? Jeremy Waldron, New York University Public Law and Legal Theory Working Papers (2011)
Law and Policy of Targeted Killing, Gabriella Blum, Philip Heymann, 1 Harv. Nat l Sec. J. 145 (2011)
Assassination & Targeted Killing - A Historical and Post-Bin Laden Legal Analysis; Mark V. Vlasic, 43 Geo. J. Int'l L. 259 (2012)
Legal, Political and Ethical Dimensions of Drone Warfare under International Law: A Preliminary Survey; Knoops, Geert-Jan Al, 12 Int'l Crim. L. Rev. 697 (2012)
Targeting the Twenty-First-Century Outlaw, Jane Y. Chong, 122 Yale L. J. 724 (2012).
Subject headings to use searching Morris, Orbis, WorldCat:
- Drone aircraft.
- Aeronautics -- Law and legislation
- Extrajudicial executions
- Targeted killing (International law)
- Combatants and noncombatants (International law)
- War on Terrorism, 2001-2009 -- Moral and ethical aspects
- War -- Moral and ethical aspects
- Humanitarian law
- War (International law)
The Treaty of Waitangi – New Zealand’s Founding Document
The Treaty of Waitangi was signed on the 6th of February 1840 between representatives of the British Crown and Māori chiefs, and signifies New Zealand becoming part of the British Empire. In commemoration of the 173rd anniversary of the signing of this Treaty, a display on the Treaty and its consequences is currently available on L1.
This hastily composed and translated Treaty was problematic from the very beginning – from its contents and interpretation to the fact that not all tribal representatives chose or were given the opportunity to sign it. Stemming from these and other contentious issues, a series of battles ensued in the following years. Collectively termed the New Zealand Wars, these conflicts resulted in the suppression of Māori resistance against British rule, and the purchase, lease, and confiscation of large expanses of Māori land by the British Crown. The consequences were devastating, disrupting traditional tribal communities and the continuation of culture and access to natural resources.
Continuous protests by Māori regarding injustices suffered due to Treaty violations culminated in the establishment of a Waitangi Tribunal in 1975 to address Treaty grievances. Various Māori tribes sought amends from the New Zealand government, and many claims were settled through land and financial compensation. Often these claims are difficult to resolve, and many negotiations are still going on today.
Waitangi Day – the 6th of February – is celebrated in New Zealand to commemorate the signing of the Treaty of Waitangi. However, the Treaty is not the unifying document as it is often portrayed, and Waitangi Day festivities, far from a celebration of the founding of New Zealand, often attract anti-government protests by Māori activists. The Māori struggle for indigenous rights is universally relevant, as native populations strive to assert their cultural identities in various political arenas around the world.
