Comparative Courts 101. Prof: Ginsburg, J.

Justice Ruth Bader Ginsburg (right) gave a no-doubt-unexpected lesson in comparative judicial studies during a lecture last week at an Atlanta synagogue. In "The Role of Dissenting Opinions," she noted that the U.S. Supreme Court's "practice of revealing dissents ... is hardly universal." Describing "civil law tradition that holds sway in Europe, and in countries once controlled by a continental power," and in the European Court of Justice, she said:

[C]ourts issue a collective judgment, written in an impersonal style. The author of the judgment is neither named nor otherwise identifiable. Disagreement, if it exists, is not disclosed. That pattern prevails without exception in French tribunals ....
In contrast, in the
British common law tradition ... there was conventionally no 'opinion for the court; disposing of a case under review. Instead, the judges hearing the matter composed their own individual opinions which, taken together, revealed the court's disposition.
Those opposite poles have shifted somewhat, most notably in the "European Court of Human Rights," which "publishes signed dissenting opinions," she said.
Ginsburg then turned to the "middle ground" position of the U.S. Court. Early on it,
like the House of Lords, Britain's highest tribunal, issued seriatim opinions. Each Justice spoke for himself whenever more than a memorandum judgment issued. But John Marshall, ... Chief Justice..., thought that practice ill-advised. In its place, he established the practice of announcing judgments in a single opinion for the Court, which he generally wrote himself. Opinions that speak for the Court remain the custom today. But unlike courts in civil law systems, and in line with the British tradition, each member of the Court has the prerogative to speak out separately.
Though she allowed that "[w]hat is right for one system and society may not be right for another," Ginsburg made clear that the practice of dissenting is right for judges in the United States. Thus did she set herself expressly at odds with Chief Justice John G. Roberts' stated preference for unanimity, and thus did she defend the 2 instances last Term (1, about which we've posted, was the abortion case Gonzales v. Carhart) that she took the rare step of announcing her dissent from the bench.

On October 31, ...

... 2007 (today), is celebrated the holiday of Samhain, a "spirit-night" at the end of the harvest, a time when it is said the dead walk, a time that continues through the 1st days of November. Sometimes called the Celtic New Year, it's a precursor of the wildly popular secular holiday Halloween, itself marked by the Irish tradition of lighting hollowed-out gourds and so transforming them into Jack-o-Lanterns.
... 1517 (490 years ago today), a German monk by the name of Martin Luther nailed to the door of to the door of the Castle Church in Wittenberg 95 Theses, a condemnation of the Roman Catholic Church's practicing of selling the means to divine grace. The act launched the Reformation; in the words of 1 website: Nearly all Protestants trace their history back to Luther in one way or another. Luther’s relationship to philosophy is complex and should not be judged only by his famous statement that 'reason is the devil’s whore.'

Child Abduction in Chad - Are the Prospective Adopters Morally Liable?

Further to Diane’s post here, nine people have now been charged with child abduction and fraud in respect of the operations of ‘Zoe’s Arc’ along the Chadian border (RTE News). Those nine are French nationals and Spanish crew members of the plane that was to fly the 103 children to Europe are also charged as accessories to the alleged crime. If it is found that this organization was, in effect, trafficking children to Europe for the purposes of adoption by families there who had each paid in the region of 2000 Euro then this raises – once more – the manner in which children are quickly becoming one of the most alarming commodities in Europe.

The trafficking of children from Africa for the purposes of sexual slavery and pornography is already well documented, but trafficking for the purposes of adoption and – as it seems likely also happens – organ harvesting is now becoming more prominent. In the case of adoption, at least, it is interesting to consider what the liability of those families who had intended to try to adopt these children would be – would it matter whether they knew that at least some of the children would appear not to actually be orphans but to be children who were separated from their families and could be reunified by the ICRC or similar agencies in the future? Would it, indeed, matter to their liability if they were aware that adoption is unlawful in both Chad and Darfur and therefore there would not seem to have been a domestic legal basis for the activities of the organization even if – as we must reasonably assume until such time as we are shown otherwise – they were acting bona fide?

The case, therefore, raises not only questions as to the impact of the proliferation of ‘NGOs’ on populations in the areas in which they operate, but also about the moral and legal liabilities of those who support these NGOs either financially or, in a case like this, by means of providing the ‘market’ for their work.

On October 30, ...

... 1997 (10 years ago today), Canada's Supreme Court held in Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.) that a lower court erred in ordering a woman to be placed against her will in a state-sponsored custodial drug treatment program, notwithstanding that she was addicted to glue sniffing, that she was 5 months pregnant with her 4th child, and that 2 of her previous children, born disabled, were wards of the state. At the base of the 7-2 ruling was the Supreme Court's conclusion that Canada's law did not recognize the unborn as rights-bearing individuals. University of Ottawa Law Professor Martha Jackman (left) represented the woman.
... 1957 (50 years ago today), the British government announced that it would open the House of Lords to women for the 1st time. Incumbent Lords' comments seem curious to an ear more accustomed to women in places of power. The BBC reported comments by Conservative Leader Lord Home thusly:
There were cheers when he said admitting women would simply be recognising the place they had commanded for themselves as a right in modern society. He raised a laugh when he added: 'Taking women into parliamentary embrace is, after all, only an extension of the normal privileges of a peer.'
The Liberals' Lord Samuel then took his own turn at gender-charged metaphor:
'House of Lords reform has been rather like a slow motion film of a prima ballerina, not marked by agility or grace, but by languid exhibition and elephantine deliberations.'

2 countries headed for women leaders

"May the best (wo)man win," proclaimed a Buenos Aires Herald headline as voters went to the polls yesterday to choose a new President. The top 2 candidates were women, and 1, it appears, has won. Senator Cristina Fernández de Kirchner (left) has claimed victory in Argentina over her closest rival, former legislator Elisa Carrió, who conceded the election. "Cristina, 54, as she is widely referred to ... won the support of many Argentines despite offering few original proposals," the Herald wrote. But then she did have an in: as we've posted, she's the wife of the incumbent President, Néstor Kirchner.
Halfway across the globe, in Ukraine, it looks as if a woman's about to become head of government. Official results just released show that "the pro-West Orange Revolution parties" had won a razor-thin majority of seats in Verkhovna Rada, the parliament, thus paving the way for the return as Prime Minister of the woman whom the Associated Press described as "the charismatic Yulia Tymoshenko." As posted here, Tymoshenko (right) had held that post January to September of 2005.

Continental Conundrum

Today's puzzler, inspired by the impending arrival on the world scene of 2 new women heads of state/government, plus the birthday of another:

Schoolchildren in many countries are taught that the world has 7 continents (this is not a universally accepted count):
(a) Asia
(b) Africa
(c) North America
(d) South America
(e) Antarctica
(f) Europe
(g) Australia
Which is the only continent where a woman not has served of head of state or government in either the 20th or 21st century?

Answer below.

On October 29, ...

... 1390, Jeanne de Brigue became the 1st person convicted of witchcraft in a secular proceeding before the Parlement de Paris. At trial she confessed, before and after having been tortured, to having invoked a demon. Before this, her skill at divining, or finding things, had been enlisted at times by courts seeking to solve larcenies. de Brigue and another convicted woman would be burned at the stake in August of the following year.
... 1938, Ellen Johnson-Sirleaf (left) was born in Monrovia, Liberia, into a family descended from those onetime slaves in the United States who went on to colonize Liberia in the 19th century. Following undergraduate study in Monrovia, she went to the United States, where she earned a bachelor's degree from the University of Colorado and a master's degree in public administration from Harvard. She returned to Liberia and entered politics, but went into exile during periods of dictatorship and political turmoil. In 2005 Sirleaf, known like many 1st woman leaders as the "Iron Lady," was elected President of Liberia.

Continental Conundrum Solved

Answer to Continental Conundrum above:
(e) Antarctica
Although, as posted, a number of countries have laid claim to that chilly continent, for the most part it's governed today by a multilateral treaty. (map credit)
Almost jumped to (g), Australia, but British Queens have ruled as heads of state over that continent-country-former colony. As for other continents, North America's had the fewest -- 1, Kim Campbell, who served as Canada's Prime Minister for several months in 1993. Make it 2, if, again, you count those Queens.

Killer Entertainments

I just returned from an eye-opening conference at Penn on Gender, Militarism, and War, sponsored by the Alice Paul Center and Women's Studies dept. Participants addressed the close relationship between humanitarian and military operations, the impact of Western intervention on politics and society, the consequences of sexual violence during armed conflict, and military sponsorship of academic research. For an example of path-breaking feminist scholarship on some of the issues explored in the conference, visit "Killer Entertainments," a startling piece by Jennifer Terry, published online in Vectors: Journal of Culture and Technology in a Dynamic Vernacular.

Abduction, adoption, and international law

Still in custody: 9 French citizens "wearing T-shirts with the slogan 'Children Rescue'" and 7 Spanish plane crewmembers in flight suits. The 16 were seized Thursday as they were readying to fly from Abéché, near Chad's border with the Darfur region of Sudan, to an airport near Rheims, France. With them at the time of arrest were 103 children, all under 9 years old.
The French detainees are affiliated with l'Arche de Zoé (Zoe's Ark). That NGO, whose website's a call to alarm over Darfur, maintained that the children were the 1st of 1,000 young refugees whom it planned to take away from the conflict in Darfur so that they might live with families in Europe that'd "each paid about €1,400 for the right to care for the children," according to London's Times; the International Herald Tribune put the amount at "€2,400, or nearly $3,500, per child."
The Times called it a "fiasco"; that seems a mild way to describe the operation, attempted just days before peace talks on Darfur were about to begin. (The talks began yesterday with Sudan's declaration of a unilateral ceasefire.) Chad's President, Idriss Deby, called it "a kidnapping, pure and simple," and promised severe punishment. French Minister for Foreign Affairs and Human Rights Rama Yade (left) called the operation "illegal and irresponsible," stating that back in July all NGOs working in Darfur with whom she met agreed unanimously to condemn the operation. Laws on children and immigration were not followed; indeed, adoption's not even legal in Sudan and Chad. Not all the children may be from Darfur; some may be Chadians. And based on initial interviews with the children themselves, said Jacques Hintzy, President of UNICEF-France, not all in fact are orphans.
As international organizations and national governments registered denunciations, the children remained in limbo in Chad, receiving temporary care from UNICEF, the International Red Cross, and the Office of the United Nations High Commissioner for Refugees.
Rather than a peculiar event without ramification much beyond its facts, this was, according to a U.N. release, "not an isolated incident but one that was highly visible because of the size of the group of children." Problems have arisen across the globe, not only in African countries, but also in, for example, Cambodia and Guatemala. As might be expected, there's a treaty designed to avoid some of those problems. The Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption -- commonly called the Hague Convention on Intercountry Adoption (logo at right) -- was signed in 1993 and entered into force in 1995. Yet today less than 1/3 of the world's countries are states parties, and many of the states that have experienced problems are nonparties. The United States signed but hasn't ratified, though it passed legislation in 2000 aimed at implementing some of the treaty's provisions.
It'll require many more ratifications, and much more enforcement, before this international law has the desired effect.

On October 28, ...

... 1898, the "Russian-born Canadian artist, socialist and feminist" Paraskeva Clark (left) was born in St. Petersburg to a father who was a factory worker and later a grocer and a mother who was expert in the folk art of artificial flower-making. Following the Bolshevik Revolution 90 years ago this month, she worked at an art studio and trained as a painter. Widowed and a single mother at age 25, she moved to the home of her in-laws in Paris. There she met her 2d husband, and upon marrying, she immigrated to Canada with him. "Clark holds a unique place in the history of Canadian art," as among "the most accomplished Canadian painters of the 1930s and 1940s," and among the few "who used her art to convey her passionate political convictions." She died in Toronto in 1986.
... 1892 (115 years ago today), "a mesmerized audience" watched as the 1st-ever animated cartoons danced across a screen at the Musée Grévin in Paris, to a musical score created for the event. These "luminous pantomimes," as they were called, were the branchild of Émile Reynaud, who'd been a physics professor before turning to work full-time on animation. To mark his achievement, today is set aside as the World Day of Animated Cinema.

Other Voices---The Memory of the Gainesville, Texas Hangings: Lost, Stolen, Strayed and Finally Remembered By Some But Not the SCV

The Great Hanging, Long Ignored, Now Immorialized, Bud Kennedy, Star-Telegram (Tarrant County and North Texas),Saturday, Oct 27, 2007.

They called it the Great Hanging.
And for 145 years, Gainesville has tried to forget the largest mass lynching in American history. Now, it is remembering those 14 deaths plus 28 other men executed amid the political tension of the Civil War.

A city park filled with 42 tiny crosses was dedicated Friday to remember the 1862 deaths. Most of the men were convicted and hanged as Union sympathizers. Fourteen were hunted down and lynched outright by a renegade mob angered by anti-war dissent.
"For the first time in nearly 150 years, we are remembering the sacrifice here," said Leon Russell, 78, of Keller, a Cooke County native opposing the "cult of secrecy" around the hangings.

The lynchings -- and, depending on your political point of view, the trials -- are considered among the most shameful abuses in the Confederate States. Yet they are rarely taught in local history lessons. "People have kept this a well-guarded secret," said Russell, a retired Dallas insurance executive, talking by phone from Gainesville's Morton Museum before the park dedication. "Some people here wanted it to stay secret." The Great Hanging has been no secret to historians. University of North Texas history professor Richard McCaslin wrote about it in a 1994 book, Tainted Breeze. McCaslin emphasized Friday that the memorial does not take either the Confederate or Union side, or blame anyone. Some local families are descendants of the 40 widows and 120 children left fatherless. One leader who lobbied for the memorial was the granddaughter of a juror.

The 14 lynchings alone make it the largest vigilante-style mass killing in American history. "The only message is that this event is worth remembering," McCaslin said. Then he said something that might apply today. "In wartime, when there is so much emphasis on national unity, the very idea of free speech can be seen as threatening and divisive," he said. "The reaction can have an impact on a nation and a region."

Cooke County and most of the counties north of Dallas and Fort Worth had voted against Texas joining the Confederacy. By 1862, Confederate leaders were criticized because wealthy landowners weren't getting drafted, and dissenters were organizing a Peace Party political faction. "Southerners did not agree on the war," McCaslin said. "In particular, North Texans did not agree on the war. ... All we want is for Gainesville to have a window on the past, to see that it's OK to discuss these issues even though we don't always agree." The Gainesville City Council approved the memorial Tuesday. The vote was unanimous.

The Sons of Confederate Veterans, a history and heritage organization, has a chapter in nearby Lindsay. The chapter is named in part for Confederate Col. James G. Bourland, who led the arrests of those convicted and hanged. Kenneth Blair, the local SCV commander, said his group did not know about the memorial proposal. The Sons meet monthly and discuss history, but nobody has ever discussed the hangings, he said. "The facts seem unclear," he said. "Were these lawful trials, or not? Were these people spies, or was this renegade Southerners going crazy? I don't know, and I've got dear friends whose ancestors were hanged. I don't necessarily condone what happened."

The idea of a memorial has been around since 1916, when a Massachusetts congressman proposed spending $100,000 for a federal monument. A Texas lawmaker opposed it, saying that some of the men were executed by a military tribunal. Russell, the man behind the memorial, said he never learned about the lynchings and hangings growing up in Woodbine, east of Gainesville. He didn't even know about the incident until a few years ago, when an acquaintance from New York asked.

Russell went home to Gainesville and started asking educators and leaders. "I know it's not something for Gainesville to be proud of," he said. "But it's not something they should hide." It's not hidden anymore.

CWL Reflects: It's difficult to dwell on violence that reflects badly on your region's heritage. In much of Pittsburgh's (the center of my Southwestern Pennsylvania) industrial heritage there is little talk of labor heritage and only a fraction of that is the public recognition of anti-labor violence. For a leader of a SCV chapter to say in so many words, "Well, I am generally confused about what happened" is an honest dodge, but regretable, especially with a fine scholarly work written in an accessible style, like McCaslin's, is available on the topic.

Too much pink

Pink is an IntLawGrrls state of mind: a way of looking at the world through a different lens, a way of giving voice to what too often is unvoiced. Feisty, not fluffy. There can, however, be too much pink. And there is, when woman's embrace of her inner rosiness is coopted -- alas, this seems the way of all good things -- by commerce.
Don't much mind Pink as a magazine for professional women. Don't mind at all corporations pinking it up against breast cancer. But the trend ought to have stopped before Big Tobacco began to pinken the leading cause of lung cancer. And surely before this latest :
Was stopped cold by a 3/4-page ad in this week's Chron. The purveyor? That department store that's long been an anchor in San Francisco and New York, and seems to have bought out all competitors in between. The manufacturer? That California-based company that calls its clothes couture (hint: rhymes with "Lucy"). The model? A long-nosed, white-faced lanky dog. Borzoi, perhaps, wearing a pink flip dog-wig and strings of pearls. The product? Kid you not: "pawfum," a "canine fragrance" costing $60 an ounce. Would go nicely with the pink party dress above, offered by another manufacturer for $329.99.
To put it mildly: When 1/2 the world's population's living on fewer than $2 a day, this is so wrong.

Bounded dispute

Check out the ASIL Insight by Pieter H.F. Bekker and Ana Stanic respecting this month's judgment in which the International Court of Justice resolved a Central American boundaries dispute dating from decolonization 8 decades ago.
Upon winning independence from Spain in 1821, Nicaragua and Honduras disagreed on the ownership of 4 islands. (map courtesy of ASIL Insights) Periodic arbitration efforts failed to resolve the matter. In this month's judgment, Case Concerning Territorial and Maritime Disputes between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), the ICJ unanimously awarded sovereignty of the islands to the applicant, Nicaragua. Bekker and Stanic note that in so doing the court clarified the framework for settling such disputes -- and thus may ease resolution of pending cases involving Nicaragua and Colombia, Nicaragua and Costa Rica, Romania and Ukraine, Namibia and South Africa, and Japan and China.

On October 27, ...

... 1787 (220 years ago today), a commentary addressed "To the People of the State of New York" and carrying the pseudonymous signature "Publius" appeared in New York's Independent Journal. In fact written by Alexander Hamilton, this dispatch in favor of the draft Constitution then pending before the 13 America states was the 1st Federalist paper. Eventually 85 such dispatches would be written, by Hamilton, who'd become the new country's 1st Treasury Secretary, and 2 colleagues, John Jay, 1st Chief Justice of the United States, and James Madison, the 4th U.S. President. The Federalist remains to this day a source for intepretation of the U.S. Constitution and understanding of constitutionalism.
... 1973, the adoption of Security Council Resolution 341 implemented a prior resolution authorizing establishment of a 2d U.N. Emergency Force of peacekeepers "to supervise the ceasefire between Egyptian and Israeli forces and, following the conclusion of the agreements of 18 January 1974 and 4 September 1975, to supervise the redeployment of Egyptian and Israeli forces and to man and control the buffer zones established under those agreements."

North Korean Refugees: Politics as Usual

I spoke yesterday on refugee law at a conference on human rights in North Korea at Penn Law. Having written, practiced and taught in the field of refugee law for a decade, it came as a surprise that I had never examined or confronted the issue of North Korean refugees. Given that human rights-abusing regimes nearly always result in refugee flows, it seems obvious that North Korea would have its fair share of asylum seekers. But from 2002-2004, only eight North Koreans were granted asylum in the United States, and none were resettled as refugees. Why? I can only point to politics -- the politics of refugee law and of human rights law. First, the international legal framework on refugees reflects the biases of international human rights law in that civil and political rights are favored over economic and social rights. Many North Korean refugees are fleeing famine, and are labeled economic migrants. However, digging a bit deeper, the North Korean political system awards entitlements based on loyalty to the regime; those whose ancestors were politically disloyal are last to receive benefits, and suffer generations of economic discrimination. Moreover, all individuals who leave North Korea without permission arguably become refugees sur place, as they face severe punishment for their unauthorized departure, including imprisonment in forced labor camps and torture. Crossing the border is seen as the ultimate form of political resistance to the North Korean regime, which of course does not want to see refugee law used as a shaming sanction. Surprisingly, other nations seem to go along with this course -- South Korea, because it doesn't want to offend North Korea; China, because it does not want to recognize the legitimate presence of Koreans in its territory as that might represent a threat to the south-east half of China's North-East; and the United States, which fails to make China's poor treatment of North Korean refugees part of its dialogue with China and limits the numbers of North Korean refugees it protects due to alleged national security concerns. The solution? Raising awareness of the plight of these refugees, of course, is key, as is emphasizing the very political nature of the economic persecution that many face and the perils of unauthorized departure from North Korea.

Go On! "Rethinking Constitutionalism"

(Go On! is an occasional item on symposia of interest.) How the shrinking of the globe and the move toward private management of public goods have reshaped constitutional systems is the subject of "Rethinking Constitutionalism in an Era of Globalization and Privatization," to be held November 4 & 5, 2007, at New York University and Cardozo law schools in New York City. Among the speakers, academics and judges from the United States and Europe, are Gráinne de Búrca, New York Chief Judge Judith Kaye (left), Bosnia Judge Constance Grewe (below), Francesca Bignami, Suzanne Stone, and IntLawGrrls' own Hélène Ruiz Fabri.
Panel topics: "Transnational Networks and Constitutionalism," "Constitutional Scholarship in an Age of Globalism and the Legacy of the European Tradition," "Constitutional Judges' Forum," "Effect of Intergovernmental Global Dealings on National Constitutional Protections," "Incorporating Constitutional Norms into Private Orderings," "Global Fundamental Religion's Challenge to Constitutionalism," and "Constitutionalism and Secularism in an Age of Religious Revival."
Cosponsors along with the New York-based law schools: Université de Paris I (Panthéon-Sorbonne); I*CON, the International Journal of Constitutional Law; and the U.S. Association of Constitutional Law. For information and registration, contact

On October 26, ...

... 1947 (60 years ago today), Hillary Diane Rodham (right) was born in Chicago to a businessman and a homemaker. Growing up in a conservative household in suburban Park Ridge, she was a Goldwater Girl inspired by Martin Luther King, Jr. As a student at Yale Law School, she met the man whom she would marry and with whom she would move to Arkansas, where he served twice as Governor. A Senator from New York since 2001, Hillary Clinton was 1st Lady during Bill Clinton's tenure as U.S. President. She is now seeking to succeed her husband as the next Democrat to serve as President of the United States.
... 1977 (30 years ago today), smallpox struck for the last time, as "a hospital cook in Merka, Somalia" contracted "variola minor." The case marked the final eradication of smallpox, and a victory for a concerted campaign of vaccination.

...and counting...

(Occasional sobering thoughts.) It's been exactly a month since we counted casualties in Iraq and Afghanistan. Seemed appropriate given the apparent lack of movement toward political or diplomatic resolution in either case. Since then, there's been an announcement that Britain will cut its Iraq forces by half; that the U.S. Marines want out of Iraq in order to concentrate their efforts on Afghanistan; and that in Iraq, a dire humanitarian crisis continues.
With those reports in mind, here's the casualty news: according to Iraq Body Count, between 75,598 and 82,369 Iraqi women, children, and men had died in the conflict -- an increase of 1,992 to 2,145 deaths in the last 4 weeks. By the U.S. Defense Department's figures, meanwhile, 3,837 American servicemembers have been killed through yesterday. Total coalition fatalities: 4,140 persons. (That's 40 servicemember deaths in 4 weeks, all but 3 of them Americans.) The Department stated that 28,171 servicemembers have been wounded, and that 8,475 of them required medical air transport. Military casualties in the conflict in Afghanistan stand at 450 Americans and 259 other coalition servicemembers, an increase of 2 and 5, respectively, in the last 4 weeks.

On October 25, ...

... 1999, the Security Council, acting pursuant to its powers under Chapter VII of the U.N. Charter, adopted Resolution 1272, which established the U.N. Transitional Administration in East Timor (UNTAET) comprising administrative and humanitarian components as well as a peacekeeping force of up to 8,950 troops and 200 military observers.
... 1955, Sadako Sasaki (right) died at the age of 12. She was 2 when the United States dropped an atomic bomb on her home city of Hiroshima, Japan on August 6, 1945. At 1st a "strong" and "athletic girl," at age 11 she became dizzy and collapsed while practicing for a race. "Sadako was diagnosed with leukemia, 'the atom bomb' disease." As described in Eleanor Coerr's children's book Sadako and the Thousand Paper Cranes (2004), Sasaki, motivated by an ancient legend that promised the granting of a wish to anyone who folded 1,000 paper cranes, began making the origami symbols of peace in the hope of getting well. By the time of her death she'd completed more than 1,000. A statue of her holding a golden crane was unveiled at Hiroshima Peace Park 3 years later; on it are inscribed these words:
This is our cry, This is our prayer, Peace in the world.

Who Counts in Making Custom?

Last Thursday, my most recent article, The Individual and Customary International Law Formation, was featured on Opinio Juris as part of a mini-series in which Opinio Juris invited the authors in the Virginia Journal of International Law’s most recent issue to present their articles. I'll provide a short summary here.
In the article, I propose opening a space for non-state actors, specifically individuals, in the process by which customary international law (CIL) is formed.
In essence, my argument rests on what I see as two doctrinal premises. The first is a general shift in thinking about individuals as mere objects of international law – akin to rivers, cattle or real property – to a generally accepted recognition of individuals as subjects of international law. This shift, I argue, has created a deep doctrinal inconsistency due to the fact that customary law, international or otherwise, has typically been conceived of as the law that arises from its subjects. The recognition of individuals as subjects of international law has thus rightly drawn the validity and legitimacy of customary international law (CIL) into question – CIL doctrine no longer permits it to arise from all of its subjects. Rather, CIL continues to look only to states.
The second doctrinal premise is that the treaty formation process accepts and recognizes the participation of individuals in the making of treaty law – particularly in those areas in which individuals are most interested, such as human rights. Although human rights treaties may address many of the same norms as compose the CIL of human rights, there is no recognized avenue for individuals to participate in CIL formation. There is no avenue for individual participation even in the area of human rights, which is oriented toward the individual and recognizes and anticipates that states will be rights violators. And this is true despite evidence that states do not always represent the human rights aspirations and desires or beliefs of their populations (see, e.g., the recent events in Burma).
This article will be followed by my current project, in which I am making underexplored inquiries regarding the history of custom formation. Customary international law -- or rather customary law regulating trans-boundary relations -- was being formed long before our modern conception of the state, and I aim to examine this process in my next piece. My aim is to demonstrate that customary law has been and can again be formed separate from states. In the process of developing my future article, this historical issue and others will be explored in an upcoming conference that Indiana University School of Law will host on my behalf, entitled, “The Individual and Customary International Law Formation,” in April 2008. The insights provided by this historical inquiry may help us see a path forward that will maintain the vitality and legitimacy of CIL, even in a time of the de-centered state. This should have relevance even for those who maintain that such a time has not yet arrived.
For those who might be interested in the Opinio Juris post, it is still available and it is accompanied by an exchange with Jordan Paust, who provided a response to my article. (illustration courtesy of Human Rights Education Associates, an NGO with offices in Massachusetts and Amsterdam)

On October 24, ...

... 1961, U.S. Rep. Mary Bono (R-Calif.) was born in Cleveland, Ohio.
... 1945, with the midafternoon deposit by the Soviet Union of the 29th instrument of ratification, and the 4:50 p.m. attesting signature by U.S. Secretary of State James F. Byrnes in Washington, D.C., the Charter of the United Nations entered into force. The event marked a formation process begun with a 1942 declaration. On signing, a prescient Byrnes said that

the Charter was now a 'part of the law of nations' and that it was 'a memorable day for the peace-loving peoples of all nations.' But he warned that peace depended upon the will of the peoples for peace rather than upon documents.

The date is set aside as United Nations Day, for which this year's slogan is “Global Health: A Critical Component to Development.”

Transgender Rights in Ireland

On Friday, October 19th the Irish High Court declared its intention to issue the first ever Declaration of Incompatibility in Irish law. These declarations are allowed for by s. 5 of the European Convention on Human Rights Act 2003 and are to be issued if Irish law is found to be incompatible with the European Convention on Human Rights.
The Declaration is to be handed down in the case of Lydia Foy – a dentist who was born male and, prior to transitioning to female, married and had a number of children. She later transitioned including having irreversible surgery partly funded by the state and sought to have her birth certificate altered to identify her as female because of the considerable humiliation and trauma caused when she was required to prove her identity by means of a birth certificate on which she was still identified as male.
In the original action her claim was unsuccessful, however the European Court of Human Rights handed down the Goodwin v United Kingdom decision only two days later and, as a result, the High Court was to rehear the case taking the ECHR into account (as the 2003 Act requires). On this basis the High Court last Friday found that although Irish law was not unconstitutional and although Lydia Foy was not entitled to an altered birth certificate under Irish law, this position was clearly incompatible with the Convention and therefore a Declaration of Incompatibility would be appropriate. The Court gave counsel three weeks to consider the judgment (which does not yet appear to be online) and once the Declaration is issued the Dáil (lower house of parliament) will be required to consider it within 21 days.
This case and the repercussions of the Declaration of Incompatibility are exceptionally important developments in Irish law. First of all, from the perspective of those interested in the real impact that the Convention will have now that it has been incorporated (Ireland is a dualist state under Article 29 of the Constitution) it affords the opportunity to see whether the legislature will in fact respond to the political imperative to legislate for the recognition of the realigned gender of transpersons – it has no domestic legal obligation to do so. From a gender perspective the decision is also important. Irish law has traditionally been strongly gender-structured emanating from a gendered Constitution that includes a provision in Article 41.2 to the effect that “In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved”. Legislating positively in the context of transpersons may well introduce a much needed realignment of gender notions in Irish law – or at least force a (hopefully informed and balanced) debate on the law’s reliance on gender as a classification and the complexities of gender that simple ‘assignment at birth’ policies tend to obscure.

Not the usual suspects

As the stain of discriminatory arrests continues to spread as terrorism provides an excuse for a global crackdown on challenges to government everywhere, 20 heavily armed New Zealand police officers arrested Maori rights activist Tame Iti (Photo by Dean Treml/AFP, appeared in the IHT). Iti was among 16 environmentalists, peace activists and advocates for indigenous rights jailed without bail (except for 1 of them), mostly on charges of possessing firearms without a license. Police claim that they’ve been watching a camp where armed men in balaclavas were seen training about 2 years ago, and acted only after the group’s threat level rose to unacceptable (for ex., one of the arrestees, a white man, supposedly sent text messages saying he was “training to be a vicious, dangerous commando” and suggesting that white New Zealanders were in mortal danger. Iti, on the other hand, is one of the most well known defenders of Maori rights and works for a government-funded program to help troubled youth of the Tuhoe tribe. While Iti’s protest tactics are flamboyant and sometimes involve firearms, weaponry is a Tuhoe tradition. According to locals, Ruatoki, the community in which Iti lives, will be known from now on as the first to be raided under the New Zealand’s Terrorist Suppression Act of 2002. And they’re waiting for the egg to appear on the raiders’ faces.

Read On! "Thirteen Days"

(Read On! ... occasional posts on writing we're reading) Thirteen Days -- no, not that Kevin Costner film, though when stripped down to its essence it works well as an in-class intro to how international law can affect foreign policymaking. This one is the pithy memoir of the Cuban Missile Crisis that Robert F. Kennedy, Attorney General in the administration of his brother John F. Kennedy, wrote in 1967, 1 year before he was felled by an assassin on the night that he won the California Presidential primary.
Thirteen Days tells of the U.S.-Soviet standoff that this week marks its 45th anniversary. As stated in the very 1st words of the memoir, the crisis began "[o]n Tuesday morning, October 16, 1962, shortly after 9:00 o'clock," when the Kennedys 1st viewed intelligence photos showing that "Russia was placing missiles and atomic weapons in Cuba." Upon Russia's agreement to withdraw the missiles in exchange for the U.S. promise that it would not invade the island state, the crisis ended on Sunday, October 28. (Timeline here.) In the 100 pages or so pages of this book RFK related what happened in between: negotiations among U.S. officials and between officials of the 2 governments, consideration of law's role and the choice of a "quarantine" (a euphemism for blockade, intended to diminish the warlike import of the action), and the role that back-channel diplomacy played in ending the crisis.
3 points jump out at a reader steeped in U.S. foreign policy in this initial decade of a new century:
1st, that not 1 woman was a member of these policymakers, later dubbed "the best and brightest" by David Halberstam.
2d, the degree to which international legal regimes mattered. Once a plan was adopted, allies were sought, not only in the U.N. Security Council, but also in an international body to which the United States seems now seldom to attend, the Organization of American States. Having been treated as integral to success, those entities gave their support to the U.S. policy.
3d, that the Cabinet secretaries and other officials who made up the ad hoc Executive Committee of the National Security Council, or "Ex Comm," which RFK chaired, were encouraged to propose and debate all options in the hope of arriving at the best policy possible. As RFK wrote (p. 9):

They were men of the highest intelligence, industrious, courageous, and dedicated to their country's well-being. It is no reflection on them that none was consistent in his opinion from the very beginning to the very end. That kind of open, unfettered mind was essential.

It still is.

On October 23, ...

... 1861, in the 1st year of America's Civil War, President Abraham Lincoln suspended the writ of habeas corpus in the District of Columbia. The order precluded all claims that the military was holding a person unlawfully -- not only claims from Confederate combatants and suspected Confederate collaborators, but also those from underage boys impressed into military service. This act by Lincoln supplemented other such orders made earlier in the year; indeed, in a message to Congress on July 4 of that year, he defended suspension with this question: "[A]re all the laws but one to go unexecuted and the Government itself go to pieces lest that one be violated?" The import of Lincoln's act constitutes part of the context in which the Supreme Court on December 5, 2007, will hear argument on habeas petitions brought by Lakhdar Boumediene, an Algerian, Fawzi al-Odah (left), a Kuwaiti, and others whom the U.S. military detains as "enemy combatants" at Guantánamo.
... 1956, tens of thousands of Hungarians took to the streets to protest against rule by the Soviet Union. Within a fortnight Soviet troops would crush the popular rising. Thousands died in the political violence, and 20,000 fled the country.

Off Topic---Trash Talk, . . . No Really, Trash Talk

Madison's Trash Heap Yields Stuff of History: Renovations Open a Window on Life at Montpelier, Jonathan Mummolo Washington Post Staff, Wednesday, October 17, 2007; Page B01

It was just a broken plate found buried in a trash heap. But to researchers at James Madison's estate, Montpelier, fragments of porcelain unearthed last month from the Virginia piedmont tell a story of a first lady, two U.S. presidents, a king and queen and the revolutions that bind their legacies more than 200 years later.

Discovered amid oyster shells, a chamber pot and shards of glass that filled a midden, or trash pile, near Dolley Madison's kitchen, a fractured dessert plate found by researchers during a $24 million restoration of Montpelier is believed to date to the late 1700s and might have once belonged to Marie Antoinette, the French queen with an infamous penchant for decadent living who perished at the guillotine during the French Revolution.

Pieces of a fractured dessert plate are among the artifacts recovered from a trash heap at Montpelier, the estate of President James Madison. The plate's Parisian origins have been linked to tantalizing possibilities. (The Montpelier Foundation)
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The plate -- manufactured by the Parisian company S¿vres, which supplied the court of Louis XVI -- was part of a trove of artifacts uncovered at the Orange County estate, shedding light on the enigmatic personal life of the former president and sponsor of the Bill of Rights. Matthew Reeves, director of archaeology for the Montpelier Foundation, which is conducting the restoration, said that "100 percent of the items we're finding . . . were being used by James and Dolley Madison in their daily lives."

Michael C. Quinn, executive director of the foundation, said, "We have found the mother lode." Quinn said the fact that Madison rarely wrote about himself, the scattering of his belongings after his death and a dearth of correspondence between him and his wife, who were rarely apart, have left little for historians to work with when attempting to piece together day-to-day life at Montpelier. "He never sought the limelight," said Quinn, who noted that Madison, although hailed as "the father of the Constitution" by his peers, insisted that the document was "the work of many heads and many hands."

Absent a comprehensive record of household objects, the foundation has relied in part on oral histories and objects on loan from Madison family descendants, some of which have been authenticated by recent discoveries, foundation officials said. For example, the jagged S¿vres fragments, with their ornate floral pattern faded by the elements and stripped of its gold leaf, perfectly match a plate on loan to Montpelier from Madison family descendants. They say the plate is part of a set that once belonged to Marie Antoinette and that Madison bought from James Monroe in 1803. Historians believe that Monroe, who went on to become president, probably bought the S¿vres plates in Paris between 1794 and 1796, when he was minister to France. The theory is that the plates were sold to Madison to help finance Monroe's trip to France in 1803, when he went back as part of the delegation that negotiated the Louisiana Purchase for President Thomas Jefferson.

"All of a sudden, that heirloom piece is given an incredible amount of validity," Reeves said, because it is now known that it was in use at the estate during Madison's life. Reeves said that further research is needed to confirm the plate belonged to the French queen but that the consistency of the find with the family's oral tradition bodes well for its prospects. The discovery elaborates on Madison's known interest in French culture, Quinn said. The French aided the United States during the Revolutionary War, and Madison hosted the Marquis de Lafayette -- who fought alongside George Washington -- at Montpelier in 1824.

The placement of the midden, about 200 feet from the kitchen, and its contents help explain the way the household was organized, researchers said. Reeves said some of the plantation's 100 slaves probably collected trash and hauled it to the midden periodically. The Madisons' garbage apparently was disposed of separately from the garbage of slaves, given the exclusively high-end items the midden contained. Researchers are searching for a slave midden and hope to find it before the restoration's expected completion in September 2008, foundation spokeswoman Peggy Vaughn said. Other findings, though not as glamorous, further illuminate Madison's daily existence.

A rib bone shows one cut of meat the Madisons ate. Less expensive dinnerware suggests that they saved their best china for special occasions. Remnants of champagne bottles and engraved glassware suggest that Madison had expensive tastes, which, along with stepson John Payne Todd's gambling habit, could have contributed to the debt the estate was left in after Madison's death. The debt led to the sale of many of Montpelier's items. Charred wood fragments -- probably from a fireplace used for cooking -- have been salvaged and can be screened for seeds, eggshells and fish bones to learn more about the Madisons' diet. The findings "are enormously powerful," Quinn said. "They really go directly to one of our most important missions, which is really presenting Madison's personality, his character.

WWWLink to Archaelogy at Montpelier:

CWL--This article caught my eyed because I'm reading:
Huts And History: The Historical Archaeology of Military Encampment During the American Civil War, David Gerald Orr (Editor), Matthew B. Reeves (Editor), Clarence R. Geier (Editor), University Press of Florida, b/w illustrations, maps, index, 279 pages, 2006, $65.00

Soon CWL will reveal what archaeologists don't know but relic hunters do, as seen through the eyes of Bryan L. Corel and Joseph F. Balicki, two archaeologists and contributors to Huts and History.

Introducing Sacagawea

Thank you to Diane for the invitation to join this supra-international female intelligenze and to all of you 'Grrls who have helped me along the way. Allow me now to introduce myself and show you why I chose Sacagawea (right) as my IntLawGrrls transnational foremother.
Sacagawea is best known for her contribution to the Lewis and Clark expedition, which was sponsored by President Thomas Jefferson, funded by Congress, and charged with exploring the newly acquired Louisiana Territory and finding navigational waterways across the continent to the Pacific Ocean. Much about Sacagawea’s life is a mystery, but it is thought that she was born around 1788. Daughter of a Shoshone chief, Sacagawea joined the ‘Corps of Discovery’ circa 1804 along with her husband, who was hired as an interpreter for the expedition. Sacagawea was the only female member of the expedition. Further, at the start of the journey she was not even 16 years old, and she was pregnant. After giving birth, she carried her infant son on her back during the grueling two-year trek.
Sacagawea was an interpreter, diplomat, and occasional navigator. Her knowledge of native plants and herbs provided necessary food and medicine for the expedition members. Sacagawea’s courage and quick action was noted in Clark’s journals, when the boat Sacagawea was riding in was hit by a high wind and nearly capsized. She recovered many important papers and supplies that would otherwise have been lost, and her calmness under duress earned the compliments of the captains.
Sacagawea turned out to be incredibly valuable to the Corps as it traveled westward, through the territories of many new tribes. Some of these Native Americans, prepared to defend their lands, had never seen white men before. As Clark noted on October 19, 1805, the 'Indians' were inclined to believe that the whites were friendly when they saw Sacagawea. A war party never traveled with a woman -- especially a woman with a baby. Sacagawea prevented many battles between the expedition group and the natives that were encountered along the way. As a woman, she was a symbol of peace. During council meetings between Native-American chiefs and the Corps where Shoshone was spoken, Sacagawea was used and valued as an interpreter.
Lewis noted in his journal that Sacagawea had “equal fortitude and resolution” to that of the men on the expedition. And, her vote counted equally among the men when they had to decide where to build a fort to settle for the winter when they reached the Columbia River. Whether she died young or lived to an old age remains a mystery, but by all historical accounts, the assistance Sacagawea provided to the famous expedition was critical to its success.

Indigenous Rights Declaration: backstory

Kristine's introduction of Sacagawea -- who joins Michelle's choice, Nancy Ward, as an IntLawGrrls transnational foremother of Native American heritage -- prompts another look at contemporary norms on native peoples.
As posted here, the U.N. General Assembly voted last month to adopt the Declaration on the Rights of Indigenous Peoples. (At right, a New York rally before the September 2007 vote; the speaker is Beverly Jacobs, President of the Native Women's Association of Canada.)
For the backstory on the "more than 20 years of work" that preceded the vote -- and on why Australia, Canada, New Zealand, and the United States voted nay, compared with 143 aye votes and 11 abstentions -- check out this ASIL Insight by Stefania Errico. After detailing this history, which includes insertion of language designed to privilege internal rather than external self-determination, Errico concludes: "The question to be addressed now is how to implement the provisions incorporated in the Declaration." That question, she writes, is already on the agenda of the United Nations' Human Rights Council.
((c) photo courtesy of Amnesty International Canada.)

On October 22,

... 1999, the U.N. Security Council adopted Resolution 1270, which established the United Nations Mission in Sierra Leone, a country torn apart by a decade of civil war. The UNAMSIL complement was to include 6,000 military troops, among them 260 military observers. This mission was completed in December 2005; today the "United Nations Integrated Office for Sierra Leone (UNIOSIL) ... help[s] consolidate peace in the country."
... 1958, Blanche Margaret Meagher (right), formerly a high school teacher, was appointed Ambassador to Israel, making her Canada's 1st woman Ambassador. She held the position until 1961; thereafter she served as Ambassador to Austria and to Sweden. She was Canada's governor on, and later chairman of, the International Atomic Energy Agency, and also helped negotiate the establishment of diplomatic relations between Canada and the People's Republic of China. Born in Halifax, Nova Scotia, in 1911, Meagher died in her hometown in 1999.

Democracy and the Rule of Law in Armenia?

A few days ago, President Kocharian of Armenia dismissed Judge Pargey Ohanian, who had acquitted two businessmen who had been imprisoned and charged with corruption after they had accused Armenian custom officials of corruption. Judge Ohanian’s dismissal indicates that the effects of the Constitutional reforms of 2005 may be all too limited.
Following Armenia’s September 1991 independence from the Soviet Union, the country was held up often as a beacon of democracy among transitional countries. In a recent article, I used the disputed 2003 Armenian Presidential elections and analysis of Armenia’s constitution as lenses through which to assess the transition to democracy and adherence to the rule of law in Armenia. Based on analysis of the conduct of and events surrounding the elections of 2003, the status of the Armenian judiciary, and relevant Armenian Constitutional provisions, I claimed that, despite the wide-ranging changes in the legal and political landscape since 1991’s independence from the Soviet Union, rule of law reform and the spread of democracy was largely superficial and formalistic. I noted that, rather than enjoying democratic freedom and the protection of the rule of law following Armenia’s independence from the Soviet Union, Armenians were experiencing a curtailment of liberty and the capture of the mechanisms of government.
In the article I also attempted to identify the reasons for the failure of Armenia’s transition. Among the factors I identified were Armenia’s strategic geo-political location, pervasive corruption and clientelism, the balance of powers enshrined in the Armenian constitution, nationalism and the Armenian Diaspora, and multilayered and sometimes conflicting donor country motives. While I concluded that the factors were inextricably intertwined, making definitive diagnosis impossible, in the Article I pointed to several fundamental mechanisms, including a more knowledgeable and purposive role of the Armenian Diaspora, that may lead to rule of law and democratic reform. Judge Ohanian’s dismissal indicates that there continues to be executive domination of the judiciary, and a great need for reform in Armenia.
This past week, the 1915 genocide of the Armenian people has been much in the news. Despite protests from Turkey, the issue of the United States' recognition of the Armenian Genocide will go to the floor of the U.S. Congress. However, in the face of continued warnings regarding the geo-political implications of such a vote, Congressional support has waned, and it seems that the recognition will not come from the U.S. government.
It is not clear whether a vote in the U.S. Congress would stimulate a rapprochement between Armenia and Turkey. However, action that could stimulate long-suppressed dialog, and open Armenia to greater interaction with its neighbors and the rest of the world is to be desired. Resolution of the Karabakh conflict and of the unresolved and long-simmering issue of the genocide between Armenia and Turkey would benefit both countries and contribute to stabilizing the tension-filled region.

Davos des dames

Did we know there was such a thing as the Women’s Forum where women from 70 countries, many holding some of the highest ranks of economic and political power, come to discuss a “new feminism”, solidaire and affectionate? While men were not totally excluded from this 2-day meeting in Deauville, France, the idea was to find a “feminine way," Forum founder Aude Zieseniss de Thuin (above), wrote Annick Cojean in Le Monde. “If women were involved in the economy, the world would be better off”, proclaimed South Africa's Deputy President Phumzile Mlambo-Ngcuka (left) to a round of applause, while panels including the likes of Ana Palacio (World Bank), Chinese environmentalist Sheri Xiaoyi Liao, and Laurence Parisot (the first woman to head France’s powerful union of industry bosses) discuss how to promote social cohesion and counter climate change. As with most such meetings though, the real exchanges were in corridors and around café tables, where one of the few men present couldn’t believe lack of rivalry: “men can’t help judging each other. Here, the pleasure in meeting people, in sharing information and mentoring is sincere”. According to designer Agatha Ruiz de La Prada, Spanish Prime Minister José Luis Rodríguez Zapatero understands that women tend to plan for the long term and has turned Spain into a dynamic, modern country by requiring woman-man parity in industry as well as government. In the words of Soukeyna Ba, a Senagalese woman who began a micro-credit program in 1987 that has since helped 120,000 women create businesses that will change the lives of 3 generations: “when men have money, they run around with women, maybe buy a new car; a woman’s money comes home to finance the highest education possible for her children. Other inspiring examples of women’s power to lead and transform: Bangladeshi Runa Khan, who not only turned a French barge into a floating hospital serving the islands of the Brahmapoutre region, where there is only 1 doctor for 4 million people, but has also created about 100 dispensaries and started a school for 150,000 children; May Chidiac (left), the Lebanese journalist who defiantly returned to the studios to continue her news broadcasts after losing an arm and a leg in a terrorist blast; and the 50 Chinese forum attendees, the eldest of whom, Wu Qing (right), a deputy from Beijing reported simply as having “grey hair” and clearly garnering great respect, reminded her younger colleagues (with their perfect English and doctorates from Harvard, Chicago or New York) not to forget the women still living in miserable conditions in rural areas, subject to discrimination even before birth (as girls continue to be aborted under the one-child policy):
[F]ight for their education. If you educate a man, you touch an individual; if you educate a woman, you touch an entire family and several future generations.
Kudos to the organizers.
Bloggers Team