On March 28

On this day in ...
... 1983, the Council of the European Communities prohibited the importation of seal-pup skins and related products pursuant to Council Directive 83/129/EEC. (photo credit) This ban on white pelts from baby seals, taken by means of a Canada hunt, did not end controversy, however; in recent years the European Union outlawed all importation. Just last month, officials said Canada intends to challenge the recent, total EU ban in the World Trade Organization.

(Prior March 28 posts are here, here, here, and here.)

Leaving Libya

As the unrest in Libya has intensified over the past week, so have the flows of foreigners out of the country. Those lucky enough to come from wealthy nations have been evacuated in droves, while poorer migrant workers have had to fend for themselves. Many of these workers have been targeted by Qaddafi's regime simply for being foreigners, making their already precarious situation even more dangerous. While most have fled by foot to Tunisia and Egypt, the spectre of migrant flows to Europe has placed increasing pressure on the common European migration system.
The International Organization for Migration estimates that there were as many as 1.5 million foreigners in Libya when the crisis began; several thousand were US citizens, most working in the energy industry. Unable to evacuate many of its citizens through the airport, the US government has also sent a ferry but its departure has been delayed by stormy seas. Turkey, which has mounted its most extensive evacuation effort to date, has so far brought 5,000 people to Turkey and continues to ferry its citizens out of Libya. The Italians, the Chinese, and the Jordanians have sent ships or planes to evacuate their nationals.
Just as Libya's booming construction industry and rich oil fields drew these foreigners to the country, it also drew poorer migrant workers, who have not received assistance from their governments. Even worse, many of these foreigners have been specifically targeted by Libyan government forces, as Qaddafi has blamed Egyptians and Tunisians for causing the violence. Those fleeing report seeing dozens of their co-nationals killed and others subject to violent attacks including rape and torture, yet complain that their governments have not stepped in to protect them. Sub-Saharan Africans living in Libya have been similarly targeted because Qaddafi's forces think they are mercenaries. A UNHCR spokeswoman stated that it's dangerous "just having a black face" in Libya right now.
Over 30,000 of these poorer migrants have fled on foot to Tunisia and Egypt. This flow has been comprised largely of Egyptians and Tunisians, though Chinese and others have also escaped. Of greater concern are the tens of thousands of South Asians and Sub-Saharan Africans working in Libya, only a handful of whom have made it out of the country. The most desperate have taken the 1,000 mile trek across the desert to Niger. The UNHCR has emphasized the importance of open borders as crucial to protection of not only the 8,000 recognized refugees in Libya but also those fleeing the violence. While Egypt and Tunisia have so far been amenable to such requests, Europe is a different story.
The Italians continue to scaremonger, claiming that as many as 300,000 to 1.5 million migrant workers in Libya could end up in Europe even though most have fled to Egypt and Tunisia. Other EU leaders from nations such as Austria, Belgium, and Germany (whose borders are unlikely to be faced with such influxes) have remained skeptical that such flows will materialize and unwilling to take steps to assist Italy in advance (apart from a FRONTEX mission to help with screening and funding for Italian boat patrols in the Mediterranean). The general consensus among northern European states seems to be that Italy can handle the 5,000 migrants they've received so far. Italy's response? Northern League leader Umberto Bossi said that if migrants arrive, they'll take matters into their own hands by sending them into other EU nations through the Schengen border-free system.
The southern European states with Mediterranean borders, including Cyprus, France, Malta, and Spain, joined Italy yesterday in requesting EU funds to assist with the influx and burden-sharing on the part of other EU countries; those discussions continued into the night yesterday. One can only hope that they will discontinue the "push-back" policies for those fleeing the violence in Libya and other North African states, and offer a genuine protection process for refugees and other vulnerable migrants.

People Power Meets Fortress Europe

The people power movement has been celebrated throughout North Africa in recent weeks, but the resultant political unrest has also pushed many Tunisians to flee their homes. Some fear reprisal under a new political regime; others are simply concerned for their safety in an unstable political environment. Though the push for democratic change in Tunisia has been welcomed in Europe, not so the Tunisians fleeing political instability in their native land. European nations have been quick to apply a security rather than a humanitarian lens to the issue of North African migration.
As noted on the Immigration Prof blog, Italy declared a humanitarian emergency last weekend, referring to the estimated 5,000 Tunisians who have arrived on the Italian island of Lampedusa in recent weeks as a "Biblical exodus." The migrants are fleeing a state of lawlessness in Tunisia, where strikes and clashes have become commonplace and police protection is scarce. IOM officials described the migration as a "mixed flow", including both refugees and economic migrants.
Lampedusa, which is closer to North Africa than to Italy, has a native population of 5,000 and an immigration holding center designed for 850 people. While most have been moved to better-equipped migrant camps elsewhere in Italy, the 1,814 Tunisians who remain threatened a hunger strike yesterday rather than face return.
Last weekend, Italian Interior Minister Roberto Maroni (of the anti-immigrant Northern League party) asked the EU border patrol to step up controls in the Mediterranean, the EU to cover part of the cost of deporting migrants (to the tune of 100 million euros), and EU members to share the burden of accommodating them. On Tuesday, the EU offered fast-track money to Italy to assist with accommodation infrastructure, material aid and medical care, social assistance, legal aid, and language assistance.
The individual member states have not been quite so forthcoming. Austria, Germany, and France have all refused to come to the aid of the Tunisian migrants. On Monday, France said that it "will not tolerate any illegal immigration from Tunisia." Though the French government recognized that there might be refugees in the flow, it said there were very few such cases. Moreover, the French advocated a return to regular patrols along the coasts of North Africa to keep immigration levels as low as possible. On Tuesday, the German Interior Minister said, "we cannot solve all the world's problems."
While the EU appeared willing to take a stab at stepping up border controls, its bureaucratic rigidity has left it ill-prepared to do so. On Monday, Frontex, the EU agency focused on border security, said it was ready to assist with the Tunisian situation and indeed had sent two experts to Lampedusa, but could not yet get involved because it had not received a formal request from Italy for assistance. And the idea of increasing EU patrols in the Mediterranean through Frontex could take weeks as EU nations have to agree on personnel and equipment contributions to the mission.
To its credit, in addition to the aid to Italy, the EU announced a 258 million Euro aid package to Tunisia through 2013. Unfortunately some of these funds are earmarked for radar equipment and patrol boats for the Tunisian military -- presumably to prevent migrant outflows. After refusing Italy's request to put its armed forces on Tunisian soil in order to put an end to these migration streams, the Tunisian government itself has been enforcing European borders. Tunisian troops have already arrested between 1000 and 1500 people trying to flee; given that at least some of those in flight are refugees, encouraging such border closure appears contrary to international refugee law obligations. Even worse, the Tunisian coast guard was accused last week of ramming and sinking a ship containing 120 migrants headed to Italy; 5 died and 30 are missing. People power, undaunted by brutal security forces and dictators alike, may be no match for Fortress Europe.

On February 14

On this day in ...
... 2001 (10 years ago today), by a vote of 338 to 52, the Parliament of the European Union approved a measure to regulate genetically modified organisms. Cast amid "intense suspicions" about GMOs, the vote in favor of regulations on testing, planting, and distribution paved the way for an end to "Europe's unofficial moratorium on bioengineered seeds and food."
... 2007 (4 years ago today), this blog was soft-launched by means of the following wee post, entitled IntLawGrrls' Hearfelt Hello:

Our world is a jumble of peoples, a mix of culture and custom, a marketplace of markets as well as ideas. We come together in amazing ways, yet clash in ways that bring destruction and dismay. Women now have a hand in our world’s affairs: think Albright and Arbour, del Ponte and Higgins, Ginsburg and Rice. Yet our voices remain faint, in backrooms and in the blogosphere. IntLawGrrls – women who teach and work in international law, policy and practice – hope to change all that. We embrace foremothers' names to encourage crisp commentary, delivered at times with a dash of sass. We welcome replies, and we look forward to fresh dialogue on the matters of the day.
It's our world, after all.
In gestation beginning February 14, 2007
Due date March 3, 2007 – Grrls’ Day in Japan

(Prior February 14 posts are here, here, here, and here.)

Imagine if 2010 hadn't been the Year of Biodiversity

"Biodiversity is life. Biodiversity is Our Life" That is the slogan of the United Nations International Year of Biodiversity, which draws to a close in just over a week. When Secretary-General Ban Ki-moon announced the opening of the Year of Biodiversity, he cautioned:

A failure to protect the world's natural resources is a wake-up call for people everywhere.

The U.N. General Assembly certainly ushered the International Year .of Biodiversity out with a bang-- voting on December 21 to establish the Intergovernmental Platform on Biodiversity and Ecosystem Services.
This new Intergovernmental Platform will be modeled on the Intergovernmental Panel on Climate Change, and is intended to be a mechanism for integrating scientific knowledge about biodiversity into policy-making.
The Intergovernmental Platform on Biodiversity and Ecosystem Services was established just in time for the International Year of Forests which begins in January 2011, and the International Decade of Biodiversity, also beginning in January 2011. Let us hope it has more success in galvanizing global action targeted at stemming our losses of biodiversity than the Intergovernmental Panel on Climate Change has had in getting global agreement on actions to stem carbon emissions.
Establishment of the Intergovernmental Platform was a bright spots in a year otherwise riddled with bad news for biodiversity.
Biodiversity loss is rapid and ongoing. Over the last 50 years, humans have changed ecosystems faster and more extensively than in any comparable period of time in human history. We are losing tropical forests, wetlands, coral reefs and grasslands at a rapid clip. Species extinctions are orders of magnitude over expected rates. The causes are clear:
►over-exploitation
►habitat loss
►invasive species
►climate change
Unfortunately, these drivers of biodiversity loss show no signs of abating. As a result, we are losing species at rates three orders of magnitude greater than would otherwise be expected.
The IUCN Red List (prior IntLawGrrls posts here, here, and here) reported that 1/5 of vertebrate species, ranging from 13% of birds to 41% of amphibians, are threatened with extinction. A similar report by the Kew Royal Botanical Gardens suggests that one-fifth of plants are similarly threatened. This is terrifying! As the Millennium Ecosystem Assessment documented, biodiversity is the foundation on which human life depends.

In 2002, the Convention of the Parties to the Convention on Biological Diversity adopted the Strategic Plan for the Convention on Biological Diversity. The Strategic Plan set what's come to be known as the 2010 Biodiversity Target -- a commitment by the 191 parties to the Convention to

achieve by 2010 a significant reduction of the current rate of biodiversity loss at the global, regional and national level as a contribution to poverty alleviation and to the benefit of all life on Earth.

This biodiversity target was subsequently endorsed by the World Summit on Sustainable Development, the United Nations General Assembly at the 2005 World Summit Meeting, and was incorporated into the Millennium Development Goals. These developments marked an official international recognition that biodiversity loss is closely associated with environmental degradation, poverty and ill-health. This prompted the General Assembly to declare 2010 the International Year of Biodiversity.
Unfortunately, the Convention of the Parties acknowledged earlier this year that it had failed to meet the 2010 Target for halting the losses of biodiversity. The European Union similarly missed its targets. The Global Biodiversity Outlook reports deforestation continues at an alarming rate, coral reefs show major declines, and abundance has plummeted for many species. This is not to say there have been no successes.
At the Cancun meeting earlier this month, delegates were cheered that Brazil announced it had reduced tropical rainforest destruction and CO2 emissions to record low levels, and that some species, mostly charismatic macrofauna, have shown signs of recovery. As the IUCN Red List reminds us, the news is not all grim. For the first time, scientists have documented that conservation can really make a difference in stemming biodiversity loss. There is still hope. But, the time for action is now!

On November 28

On this day in ...
... 1994, in what the BBC called "a blow for Prime Minister Gro Harlem Brundtland" (left), voters for a 2d time rejected Norwegian membership in the European Union. Turnout was high -- 80% -- and the margin of victory was nearly 5 percentage points. After the 1st loss, she had resigned; this time she stayed on, waiting another 2 years before resigning as Norway's leader. Thereafter, from 1998 to 2003, Dr. Brundtland, a physician, was the Director-General of the World Health Organization. Norway remains outside the EU to this day.

(Prior November 28 posts are here, here, and here.)

Not so fast toward the EU?

'Our children must not be burdened by policies of the 1990s.'

So said Serbian President Boris Tadić a few days ago, while laying a wreath near Vukovar, Croatia, where Serb forces executed more than 200 hospital patients as part of a 3-month siege in which more than 1,000 Croats were killed, 5,000 civilians seized, and 22,000 non-Serbs expelled. (credit for Reuters photo)
Tadić said he had come

to pay respect to the victims, to say words of apology, to show regret and create a possibility for Serbia and Croatia to turn a new page.

Part of that post-atonement chapter, Serbia hopes, is European Union membership, so that Serbia no doubt welcomed subsequent EU and the U.S. State Department comments heralding the visit as a welcome step toward reconciliation.
But the move brings to mind the objection that Serge Brammertz (below right), Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia, raised regarding any plan to allow EU admission while ICTY indictees like former Bosnian Serb General Ratko Mladić remain at large. As we've posted, Brammertz has said:

Be sure to ask countries to support the tribunal. There is a tendency to think, 'Let's move on. Let's take the countries into the international community. We are saying, 'There can be no compromise. There can be no alternative to bringing the fugitives to justice.'

Beets banned

The most common sugar beet planted in the US is now banned.
Planting of Monsanto’s “Roundup Ready” sugar beets—a form of beet genetically modified to be resistant Monsanto’s glyphosate-based weedkiller Roundup—was banned Friday, by a federal judge in San Francisco, until the U.S. Department of Agriculture complies with the requirements of NEPA, the National Environmental Policy Act.
The ruling came in a lawsuit filed by environmental and organic farming nongovernmental organizations. The NGOs challenged the decision of the Agricultural Department to deregulate genetically engineered sugar beets without preparing an Environmental Impact Statement. Deregulation means that the crop could be planted freely throughout the United States, with no further regulatory oversight from the USDA. Critics complain that the department has routinely determined that genetically modified crops pose no threat to the environment without conducting an adequate assessment of the environmental risks posed by these crops.
In September 2009, the Court agreed with these critics. It found that the department's decision to deregulate genetically modified beets without first completing an Environmental Impact Statement violated the National Environment Protection Act. Friday’s ruling:
► Vacated the USDA’s deregulation of biotech sugar beets; and
► Prohibited any future planting or sale pending the agency’s compliance with NEPA and all other relevant laws.
The ruling allows the sugar beets already in the ground to be harvested, but bars further planting until the Environmental Impact Statement is complete. USDA has estimated that such a statement may be ready by 2012.
This decision comes on the heels of an 7-to-1 judgment issued by the Supreme Court in June (J. Breyer took no part in the decision). In that decision, Monsanto Co. v. Geertsons Seed Farms, the Court overturned a similar ban, on the planting of genetically modified alfalfa, again until the USDA completed an Environmental Impact Statement. The majority concluded that the scope of the injunction—which prohibited any partial deregulation of the biotech alfalfa until the statement was completed—was too broad.
The federal ruling issued Friday took Geerstons into account. Specifically, the judge was careful to leave room for interim measures that might allow planting to proceed, so long as:
► Interim measures adequately protect the public’s interest in completion of a thorough environmental assessment; and
► No irreparable environmental harm occur in the interim.
Unlike gentically modified alfalfa, which had yet to be commercialized, genetically modified beets currently make up the vast majority of the United States' crop.
Among the benefits claimed for the new technology, are the assertions that genetically modified beets

require fewer herbicide applications to effectively control weeds. Fewer trips across the field mean reduced greenhouse gas emissions, reduced soil erosion, reduced soil compaction and enhanced water conservation. These sugar beets are helping growers manage weeds, improve productivity and lessen impacts on the environment, while preserving a sustainable and geographically diverse supply of sugar.

Supporting Monsanto, the sugar beet industry also asserts:

Independent scientific analyses conducted by internationally recognized laboratories showed that the sugar from Roundup Ready sugar beets, which are enhanced through biotechnology, is identical at the molecular level, to the sugar from other, comparably grown sugar beets.

Even if true, molecular equivalence of the ultimate food product says nothing about the impacts that genetically modified beet plants might have on their environment.
In particular, the technology’s critics contend that gene flow between genetically altered crops and conventionally grown food, or wild relatives, might result in irreversible genetic pollution. This concern has particular traction with sugar beets because genetically modified beets have been embraced by farmers and now representing about 95% of the sugar beet crop, accounting for about half the United States' annual sugar production.

Genetically modified crops in the United States fall in a nether zone—a patchwork of federal regulation under the auspices of the Agriculture Department, the Environmental Protection Agency, and the Food and Drug Administration. In theory, no genetically engineered organism is approved for commercial use until its proponent has demonstrated that the GM organism conforms with the standards set by federal law. Unfortunately, the gap between theory and reality is significant. Part of the problem is that no regulatory agency has a clear statutory mandate to regulate agricultural biotechnology. As a result, no coherent, overarching government policies ensure that this new technology is safely explored and exploited.

The regulatory regime governing biotechnology crops dates back 25 years, to 1986, when the Office of Science and Technology finalized the Coordinated Framework for Regulation of Biotechnology.

The Coordinated Framework, a product of the sharply anti-regulatory Reagan administration, embraced the notion of “substantial equivalence”—that genetically modified organisms were functionally equivalent to their unmodified counterparts and should be treated accordingly. Thus, the Coordinated Framework proclaimed that no new laws were needed to respond to challenges posed by this new technology. Instead, regulatory authority was parceled out to various agencies based on their existing statutory authority.

At its most superficial, the regulatory regime established by the Coordinated Framework is very easy to describe: Food and Drug Administration is responsible for food safety; Environmental Protection Agency is responsible for microbes and pesticides; and the Animal and Plant Health Inspection Service, an agency within USDA, is responsible for all plants. Each agency concentrates on its own narrow piece of the genetic modification universe. With no single agency considering the full range of problems posed by genetically modified crops, regulatory gaps are inevitable. Critics assert that overarching safety questions go unexplored. Because of the assumption of substantial equivalence, the burden of proof is on the authorities to prove that a genetically modified organism is unsafe before they may impose use restrictions.

This ruling highlights a significant breaking point between the supporters and opponents of genetically modified crops.

Supporters point to molecular similarity of the endproducts, while opponents focus on differences in the plants themselves. The approval standards in the United States don’t require consideration of some key environmental concerns. This leaves big gaps and unknowns in the science.

Whether this lack of information as reason for concern or reason to relax depends significantly on one’s perspective about whether regulation should be precautionary or reactive.

Indeed, the United States and the European Union have differed sharply on this point, leading to a 3,000-plus-page World Ttrade Organization dispute resolution decision that, while it ruled for the United States, left this key question unanswered.

There is a difference between a demand for certainty, and a demand that appropriate questions be explored. The former focuses on results—do the fruits of exploration point so conclusively to a particular outcome that no other explanation is tenable. The latter addresses process—has the exploration been structured in a fashion likely to uncover relevant information. Both sets of demands can be obstructionist—the insistence of the Tobacco Institute insistence that the link between cigarettes and cancer was “not proven” is perhaps the best example of how a demand for certainty can be wielded to prevent otherwise reasonable social actions. However, to suggest that demands for more or more appropriate study are always or even predominantly obstructionist is to caricature wholly legitimate and important public participation in public decisionmaking.

The lack of a transparent, well-organized regulatory system threatens public trust in biotechnology and, more fundamentally, in government itself. The success of agricultural biotechnology depends fundamentally on society’s willingness to accept and consume food produced via this technology. This willingness hinges on the level of trust that the technology is being developed and used in a safe manner. Adequate regulatory oversight and information gathering are central to the future of the technology.

Steps forward for Irish same-sex couples

(Delighted to welcome back alumna Siobhán Mullally, who contributes this guest post)

The Dáil (left), the lower house of Parliament in Ireland, has passed legislation giving formal legal recognition to same-sex relationships for the first time.
The Civil Partnership Bill 2010 passed last Thursday evening without a vote, support coming from all (or most) parts of the political spectrum. It now must be considered by the Seanad.
Under the terms of the Bill, marriage-like benefits will be extended to gay and lesbian couples across a range of areas including property, succession, maintenance, pensions. Further legislation is due to extend benefits in the fields of social welfare and tax.
The status of civil partnership will not provide rights and privileges equivalent to marriage, which remains open only to different sex couples. This distinction has remained because it is deemed necessary to safeguard the protection given to marriage in Article 41(3) of the Irish Constitution (right), which states in part:

The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

The constitutional text does not, however, make any reference to marriage as being exclusively open to different sex couples. Rather, it is legislative and judicial interpretation of the constitutional text that has presumed this exclusionary stance. Much of the debate on the Civil Partnership bill has touched upon the inequalities that will persist on introduction of this new status, and upon the failure to provide for the rights of children within such partnerships.
Despite these shortcomings, the Civil Partnership Bill has been heralded by many as a mark of progress, a contribution to what Minister for Justice, Mr Dermot Ahern, describes as a ‘modern code,’ that marks a break from a past in which sexual orientation discrimination was commonplace. Included within that modern code are the:
► Employment Equality and Equal Status Acts 2000-2004, which prohibit discrimination on grounds of sexual orientation; and
► Prohibition on Incitement to Hatred Act, 1989, which includes homophobic incitement within its scope.
Introducing the Bill, the Minister for Justice noted that it was now time to add to the legal protections in place against discrimination and exclusion, and to officially recognize and affirm same-sex relationships so as to bring to an end the legacy of prejudice and inequality.
Granting official recognition and affirmation brings with it the question of whether a ‘conscientious exemption’ clause should be granted to those whose religious belief and affiliations do not allow for affirmation or even tolerance of same sex relationships.
A proposed legislative amendment, allowing for such an exemption clause, was dismissed, despite last minute interventions by the Irish Bishops’ conference, who argued that the failure to provide for such a clause was unconstitutional, given the limits imposed on freedom of conscience and on social and civil freedom in religious matters. In response, John Gormley, the Minister for Environment and Green Party representative, criticized the Church’s attempt to exert influence on the legislative process, which he noted was reminiscent of earlier eras of ‘church interference’. The debate on conscience exemption, and its swift dismissal, reflects the changing relationship between Church and State in Ireland, and the waning influence of religion in matters of gender, sexuality and family.
The passing of the Civil Partnership Bill follows on from the judgment that a Chamber of the European Court of Human Rights (left) rendered on June 24th in Schalk and Kopf v Austria.
The applicants had complained that the absence of same-sex marriage in Austria violated their European Convention rights, both under Article 12 (right to marry) and Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to private and family life). They appealed to the Court to interpret the Convention (below right) in light of present-day conditions, and not to restrict the application of Article 12 to different-sex couples. The Court rejected their argument, noting the absence of a European consensus on same-sex marriage. Importantly, however, drawing on Article 9 of the European Union Charter of Fundamental Rights, the Court took the view that the right to marry was not necessarily confined to marriage between different-sex couples. It nonetheless concluded that:
► The question of whether or not to allow same-sex marriage fell to be determined by national law; and
► States continued to enjoy a wide margin of appreciation on this question.
The Court’s judgment left open the question of whether the absence of any form of relationship recognition for same-sex couples might be a violation of the European Convention.
Significantly, the Court’s judgment extends the scope of Article 8. At paragraph 94, it finds for the first time that same-sex couples enjoy not only a right to ‘private life’, but also ‘family life’:

[T]he Court considers it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy “family life” for the purposes of Article 8. Consequently the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would.

Strong dissenting judgments were entered specifically on the Court’s finding of no violation of Article 14 (non-discrimination), suggesting the possibility of change in the future.
For the moment, the Court’s judgment is unlikely to assist the campaign for marriage equality in Ireland. However, it does challenge existing Irish case-law, including the October 2009 judgment in McD v L, in which the Irish Supreme Court found that ‘de facto’ same-sex couples did not enjoy family life within the meaning of Article 8 of the Convention.
Small steps forward!

On June 28

On this day in ...
... 1635 (375 years ago today), the Compagnie des Îles de l'Amérique established a French colony at Guadeloupe (right), a Caribbean archipelago about 10 times the size of Washington, D.C., where the explorer Christopher Columbus had landed in 1493. "By 1674, Guadeloupe was annexed to the Kingdom of France and a slave-based plantation was established." Britain and other countries wrestled for control of the territory, but French colonization was confirmed in the 1815 Treaty of Vienna, and slavery was abolished in 1848. Guadeloupe remains a French colony and so is a member of the European Union.

(Prior June 28 posts are here, here, and here.)

Doubling Back on Dublin

The European Union's Dublin II Regulation funnels asylum claims to the states through which applicants first entered Europe. But what happens when the state of first entry fails to uphold its obligations under international refugee law? The question of how other Dublin member states should address Greece's disastrous asylum system has been answered differently by nearly every national court that has entertained the question, illustrating the difficulty of reconciling competing legal norms.
In the first half of 2009, Greece saw over 80,000 undocumented migrants cross its borders and received the sixth largest number of asylum applications (nearly 10,000) in the EU. Greece's asylum system simply cannot cope with the flow of applications; in late 2009, only 20 claims were registered per day at the Asylum Department in Athens though up to 2,000 people each day wait in line to apply for asylum. Ninety percent of asylum claims are filed in that office, as it is reportedly difficult to file claims outside of Athens. Even those asylum seekers who are able to access the process are often interviewed in a language they can't understand, without interpretation, and without legal counsel to advise them of their rights.
In 2007, Greece granted 8 asylum claims in the first instance - a grant rate of 0.04% -- and 138 claims, a grant rate of 2.05% on appeal. All of the 305 decisions in late 2006 to early 2007, relating to applicants from Afghanistan, Iraq, Somalia, Sri Lanka, and Sudan, were negative. None of these decisions contained any discussion of the facts of individual cases or provided any legal reasoning. Greece's asylum system is, simply put, non-functional.
UNHCR first stepped into the fray in 2007, issuing an advisory note about the risks of refoulement for asylum seekers transferred to Greece under Dublin II. In 2008, UNHCR stepped up the pressure through a position paper communicating its grave concern with Greece's asylum system and advising governments "to refrain from returning asylum seekers to Greece under the Dublin Regulation until further notice." And in 2009, UNHCR published a detailed observation paper indicting the the Greek asylum system.
Finally, last week, UNHCR released a report on Dublin member states' use of the "sovereignty clause", Art. 3(2) of the Dublin II Regulation, against transfers to Greece. The sovereignty clause authorizes a member state to process an asylum claim even where the Dublin criteria would require that the claim be heard in a different country. While data on the application of the clause are scarce, UNHCR reports that it is rarely used except to protect vulnerable asylum applicants. In the past year or so, however, states have increasingly relied on the sovereignty clause to suspend transfers to Greece.
And here's the legal tussle -- there's quite a dispute, akin to a circuit split in the United States, brewing over the interpretation of the sovereignty clause. In other words, national courts can't agree on the circumstances under which member states can double back on Dublin. Some national courts have focused on the sufficiency of procedural safeguards (France, Romania), while others ask whether transfer would result in a violation of Article 3 (prohibition of torture) or 8 (right to family life) of the European Convention on Human Rights (Austria, Hungary). French and Spanish courts emphasize the need to examine the risk of return on a case-by-case basis, with the latter providing an exception for vulnerable asylum applicants, including families with small children. On the other end of the spectrum, Belgian courts have found that since Greece is an EU member state, party to the ECHR and the Refugee Convention, and bound by EU instruments, the court must presume Greece will uphold these obligations. As a result, the burden is on the asylum seeker to rebut this presumption with proof of a risk of violations of ECHR Article 3. Similarly, Dutch courts have required tangible or specific indications that a member state isn't fulfilling its international obligations and have suggested that complaints about failure to implement EU law should be raised in Greece with Greek authorities.
It should come as no surprise that asylum applicants have petitioned the European Court of Human Rights to hear their complaints about Dublin transfers to Greece. At the beginning of this month, there were a reported 760 such cases pending before the ECHR. M.S.S. v. Belgium and Greece, the lead case on this question, will be heard by the ECHR's Grand Chamber on September 1. Stay tuned!

The EU and the ICC

(Delighted to welcome back guest/alumna Carmen Márquez Carrasco, currently a Visiting Professor at Columbia University's Institute for the Study of Human Rights, who contributes this post, another in IntLawGrrls' series of posts in connection with the just-concluded Kampala Conference)

The International Criminal Court Review Conference has constituted a significant milestone for the ICC, not only because of the adoption of the first amendments to the Rome Statute on Article 8 and on the definition of the crime of aggression and the jurisdictional filters (text detailed in post below), but, as posted by IntLawGrrl Valerie Oosterveld, because of the relevance of certain stocktaking discussions for the future work of the ICC.
Indeed, the Conference provided a unique opportunity for states and international organizations such as the European Union to reflect on the achievements of the Court and to reaffirm their commitments to combat impunity for the most serious atrocities.
The European Union and its 27 member states (above right) (map credit) count themselves among the most ardent supporters of the Rome System. (Overviews of the instruments and measures adopted, within the framework of the EU's Common Foreign and Security Policy, are here and here.)

In particular, the European Parliament for years has been committed to enhancing the development of international criminal justice, and has been closely following and supporting the activities of the ICC. Additionally, the Parliament has adopted various resolutions on ICC-related issues. Activities in this regard have been promoted by the Parliament Subcommittee on Human Rights, now under the very active Chair, Heidi Hautala (left) of Finland. (photo credit)
In its Annual Report on Human Rights in the World in 2008, the Parliament launched important appeals in relation to the ICC. It called on all EU Presidencies to raise the importance of cooperation with the ICC in all EU summits and dialogues with third countries, and on the European Council and the European Commission to continue their vigorous efforts to promote universal ratification of the Rome Statute and national implementing legislation.

A number of initiatives marked EU preparation for the Review Conference, which ran from 31 May to 11 June.

On 23 March, ICC Prosecutor Luis Moreno-Ocampo addressed a joint hearing of the EU's Foreign Affairs Committee, the Development Committee, and the Subcommittee on Human Rights. An additional exchange of views took place in the Subcommittee with the ICC President, Judge Sang-Hyun Song, on 27 April. And on 19 May seminar, “The EU and the ICC: Beyond the Review Conference”, was held in Brussels, Belgium, organized by the Spanish Presidency of the EU and the Coalition for the ICC, with the cooperation of General Secretariat of the Council of the EU and the EU Commission.
Support for the universality and integrity of the Statute, as well as for the stocktaking exercise, also was expressed through a relevant Resolution of the European Parliament adopted on 19 May. In the same line, EU Council Conclusions on the Review Conference followed on the 25 May.
In accordance with the above-referred legal and institutional framework, during the general debate at the Kampala Conference the EU Spanish Presidency (logo at right) and member states announced tangible commitments to the Rome Statute by making EU pledges to the ICC, around four issues:
► Promoting the universality and preserving the integrity of the Rome Statute;
► Fighting against impunity as a core value to share with EU partners when entering into agreements with third parties;
► Providing financial support to the ICC, civil society, and third-country partners; and
► Updating and reviewing of the EU instruments in support of the ICC after the meeting in Kampala, where appropriate.

Universality and implementation of the Rome Statute play an indispensable role in that regard. Both have been reviewed within the framework of the stocktaking exercise, with a significant contribution from the EU and EU countries. Among several measures, this contribution included the announcement during the Kampala conference of a substantial financial contribution to the Trust Fund for Victims.
Also, the first amendment of the Rome Statute, adopted on 9 June, was sponsored by an EU member State, Belgium, and co-sponsored by many other member states. It further enjoyed the strong support of the European Parliament. By dint of the Belgian proposal, the amended Article 8 of the Rome Statute brings under the jurisdiction of the Court the war crime of employing certain poisonous weapons and expanding bullets, asphyxiating or poisonous gases, and all analogous liquids, materials and devices, when committed in armed conflicts not of an international character.
The Review Conference was an occasion for the EU to demonstrate both a flexible approach to the issues under discussion and the necessary unity to forge consensus (encouraged by the Council and the European Parliament) on the crucial topic of the definition of the crime of aggression and the conditions for the exercise of jurisdiction over that crime. The approach succeeded despite the difficulties involved in the position of France and Britain as permanent members of the U.N. Security Council. In addition, important understandings were made possible with the United States so as to avoid detrimental results for both the EU and the Obama Administration, as discussed here by Bill Marmon, managing editor of European Affairs.
The outcome of the ICC Review Conference is an international success, and this is to Europe’s credit. In general terms, the EU attained its goals (with the possible exception of the failure to delete Article 124 of the Rome Statute, a deletion that had been pursued by the European Parliament).

Pragmatism, accompanied by a spirit of constructive compromise, is not a bad thing after all.

On June 13

On this day in ...
... 2002, the Council of the European Union adopted the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States of the EU (flag at left). Intended to replace at-times-cumbersome extradition procedures, the warrant known as EAW "may be issued by a national issuing judicial authority if the person whose return is sought is accused of an offence for which the maximum period of the penalty is at least a year in prison, or if he or she has been sentenced to a prison term of at least four months."

(Prior June 13 posts are here, here, and here.)

On April 25

On this day in ...
... 2005 (5 years ago today), the Treaty of Accession of Bulgaria and Romania was signed in Luxembourg, thus setting the stage for the joinder of those 2 countries to the European Union on January 1, 2007. With the addition of Bulgaria and Romania, the European Union comprised 27 member states, as it does to this day.

(Prior April 25 posts are here, here, and here)

On March 20

On this day in ...
... 1956, Catherine Ashton was born "to a working class family, with a coal mining background," in Upholland, Lancashire, England. The 1st in her family to attend university, she earned a bachelor's degree in sociology from a college in the University of London. Her subsequent career included work for the Campaign for Nuclear Disarmament (prior posts) and other groups, as well as consulting for business and government. Since she was made a life peer, Baroness Ashton of Upholland, she's served as a Labour Party member in a number of official government posts. Leader of the House of Lords since 2007, she was responsible for passing the Lisbon Treaty through that body of Parliament. Today she is a key personage in the post-Lisbon: since last November she's served as the European Union's 1st-ever High Representative of the Union for Foreign Affairs and Security Policy, and she made her 1st visit to the Middle East this week. A recent article in El Pais indicates that to date her road has been a rocky one. (credit for December 2009 photo of EU Foreign Minister Ashton with her U.S. counterpart, Secretary of State Hillary Clinton)

(Prior March 20 posts are here, here, and here)

In inquisitorial & adversarial systems, defence counsel's core functions before & during trial

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Although the trial is the public setting in which a criminal case is determined and so is often the focus for media comment and academic critique, the pre-trial process is at least as important, if not more important, for a number of reasons:
► First, most people’s experience of the criminal justice process does not involve a trial, but an arrest, a stop and search, or a period of detention and questioning in police custody.
► Second, for those cases that do go to trial, the nature of the evidence presented depends on the pre-trial process. As the European Court of Human Rights has made explicit in its jurisprudence -- applying, from the point of arrest and detention onward, the fair trial guarantees contained in Article 6 of the Convention on Human Rights -- the fairness of the trial depends on the fairness of the pre-trial. The right to custodial legal advice is of fundamental importance in this, as it is the key to equality of arms as well as being closely linked to the accused’s ability to exercise her right against self-incrimination. This has been underlined in recent case law such as Salduz v. Turkey (2008) and Panovits v. Cyprus (2008). At paragraph 55 of Salduz, the Court wrote:

The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.

The Court added that there will need to be compelling reasons to justify such a restriction.
Doubtless, the process of judicial supervision by either a prosecutor or an examining judge will be cited as just such a compelling reason in many jurisdictions. But as IntLawGrrl guest/alumna Susan A. Bandes noted in her recent post, this overstates the role of such supervision both in theory and in practice. Prosecutorial supervision is the norm in countries such as Germany, the Netherlands. It holds sway as well in France, where, as noted in this prior IntLawGrrls post and detailed in this governmental report, President Nicolas Sarkozy is determined to abolish the more politically independent juge d’instruction. But whilst prosecutorial supervision may provide some basic oversight of and accountability for the police enquiry, it is no substitute for the role performed by the suspect’s own lawyer – and this latter is the effective defence assistance envisaged by the European human rights court.
► Third, pre-trial is important because it is inextricably linked to the trial. The character of the pre-trial process has a determinative influence upon the nature of the evidence presented at court and indeed, the decision whether or not a trial takes place at all. As I discussed in my chapter entitled Conceptions of the Trial in Inquisitorial and Adversarial Procedure (2006), under adversarial procedures, the parties are responsible for the collection and presentation of evidence, so we would expect defence counsel to have an active pre-trial role. Quite simply, if she does not gather the evidence for the accused’s case, nobody else will. In jurisdictions with a more inquisitorial tradition, such as France, the judge leads the enquiry both before and at trial – in theory at least. For this reason, the defence role is often less developed.
I argue in my chapter entitled The Role of the Criminal Defence Lawyer in Adversarial and Inquisitorial Procedure (2008), that a core defence function exists whatever the procedure. This has been recognized at trial, with the need for the accused to be represented, to have sight of the prosecution case, to have an opportunity to interrogate the evidence against her, and so on. But this is often too late. The effectiveness of that representation will depend on what goes before.
If the trial serves more as an affirmation of a pre-trial judicial enquiry, as in countries such as France, defence counsel must participate in the enquiry in order to be effective at trial. We cannot rely on the distant and bureaucratic oversight of a prosecutor to ensure the proper development of the defence case. Her different professional status and ideology can, as I've detailed here and here, can make this difficult. That fact was demonstrated powerfully, moreover, in the Outreau case, subject of this governmental inquiry into "the causes of dysfunction in the system of justice." Further support for this argument in favor of defence participation comes from the attempts of the European Union to establish universal procedural safeguards for suspects, discussed here. Unfortunately, these attempts have been resisted by countries who currently deny suspects access to legal advice during the police interrogation of the suspect.

How transnational law develops

(Part 2 of a 3-part guest post by Mireille Delmas-Marty)

Having introduced a comparison of French and U.S. approaches to legal pluralism in a transnational legal world develops, we now consider answers to our threshold question: How does the transnational legal world develop?
Transnational law develops through:
► cross-referencing,
► efforts to harmonize, and
► creation of hybrid rules of substance and procedure.
In both the European and the U.S. legal systems, the last method is rarely used. It is true that some hybrid rules have been created. An example is the hybridisation of the accusatorial and inquisitorial criminal procedure rules that occurred first in the ad hoc tribunals and later at the International Criminal Court. But these rules – which increase judicial powers in the preliminary phase, transmit dossiers to the trial judge, and accord more prominent roles to victims – do not directly affect national legal orders.
In the United States, much has been debated about the 1st option, called cross-referencing or, sometimes, consultation; that is, the citation by U.S. judges of decisions handed down by judges of foreign constitutional and international courts. Most salient are 2 U.S. Supreme Court judgments, Lawrence v. Texas (2003) and Roper v. Simmons (2005). The latter issued during a Term when the Court considered or referred to foreign law in at least 6 cases, according to Justice Stephen G. Breyer (above). In his foreword to my book Ordering Pluralism (trans. Naomi Norberg 2009), Breyer wrote that "six out of a total docket of 79 indicates the increasingly routine nature" of this method in American cases.
In France, meanwhile, the main concern is the middle option, harmonisation. Jurists focus on the changes that European efforts to harmonise different national systems imposes on criminal, contract, and other sectors of French law.
Harmonisation is a very complex process, entailing both more and less integration than either of the other 2 options:

Harmonisation and cross-referencing
Compared with cross-referencing, harmonisation requires more integration. Cross-referencing assumes the priority of domestic law; in contrast, harmonisation involves a hierarchy in which an abundance of international law is binding on the national legislative authority. That international law derives, moreover, from both poles of the bipolar European legal system discussed in my last post:
► Respecting the European Union pole, France’s Conseil d’État (right) observed in 2000 that since the 1960s the Community had produced more than 68,000 acts supposed to be integrated to French law.
► Respecting the Council of Europe pole, the indirect effects of decisions by the European Court of Human Rights (below left) against France must be noted. In 1990 that Court condemned France twice -- in Huvig and Kruslin, which challenged wiretapping without any legal basis -- and France adopted a new law within a year. In Medvedyev (2008), a Court panel ruled that in France the prosecutor is not independent enough to satisfy the due process principle enshrined in Article 5 of the Convention on Human Rights and Fundamental Freedoms. Should the Court’s Grand Chamber confirm this finding of violation, the French government likely will have to delay and revise a pending plan to transfer more power from the investigating judge to the prosecutor, about which I wrote an op-ed last summer. (Prior IntLawGrrls post)

Harmonisation and hybridisation
Compared with the 3d option of hybridisation, however, harmonisation involves less integration This is because each member state enjoys a margin of appreciation that precludes application of strictly identical rules throughout Europe. As articulated in Handyside v. United Kingdom (1976) and later judgments, the margin-of-appreciation concept operates to limit the jurisdiction of the European Court of Human Rights, particularly in areas in which differences among members states are so strong and so deeply linked to national cultures that it seems impossible for international judges to impose the same rule on every state. Examples include areas such as abortion, euthanasia, and privacy. The national margin of appreciation excludes binary reasoning: it imposes not an obligation of strict conformity, which bars all variation, but rather an obligation of compatibility, which permits some differences in application of European legal norms.
In short, the margin of appreciation involves gradation-based reasoning -- fuzzy logic, as I have called it -- and accepts incomplete integration.
Not all differences are accepted, however. The concept preserves some gradation of integration, for it assumes limits which must not be exceeded. Examples:
► Abortion may be subject to limitations by the state that are strict, as in Ireland or Poland, or not so strict, as in Germany. But, as the Court established in Tysiac v. Poland (2007), the domestic law must effectively implement the Europe-wide right to abortion.
► Wiretapping may be controlled very differently in each European national system -- by administrative authority, for instance, or by a judge or a parliamentary commission. The Court has not relinquished its right to review such mechanisms, but has limited review to those deemed incompatible with Europe-wide norms.
This graduated approach has some resonance among U.S. jurists. Justice Breyer proposed in Heller (2008), which entailed "review of gun control regulation," U.S. courts ought to embrace an "interest balancing inquiry." Breyer considered deference to legislative appreciation to be "particularly appropriate" given that the decision was made "by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions." The consequence is that different localities may seek to solve similar problems in different ways. Breyer’s dissenting opinion in Heller:

The Framers recognized that the most effective democracy occurs at local levels of government, where people with firsthand knowledge of local problems have more ready access to public officials responsible for dealing with them.

(internal quotation marks omitted) This statement is not so different from those in which the European human rights court has considered that national courts are better situated than European judges to determine the proper scope of restrictions based on public order.

(Still to come in this 3-part guest post: Part 3, on where and when transnational law develops; here. Part 1, which introduced comparison of French and U.S. approaches, is here.)