On May 18

On this day in ...
... 1803, the year-old Treaty of Amiens, which aimed to bring peace between Britain and France, was broken when Britain refused to withdraw its troops from Malta. As described here, the move constituted the 1st official breach of the pact (about which we also posted here), but the move was preceded by much Napoleonic behavior that threatened the balance of power contemplated in the treaty and thus riled Britain. Telling a different story is French medal at left. (credit) It depicts a British big cat mauling the treaty scroll, and carries the slogan "Le traite d'amiens rompu par l'angleterre en mai de l'an 1803."

(Prior May 18 posts are here, here, and here)

On September 21

On this day in ...

... 1964 (45 years ago today), Malta won independence from Britain. Situated in the Mediterranean, the island nation "voluntarily became part of the British Empire" in 1814, having evicted French rulers, with British help, in 1800. (credit for photo of Valletta, Malta's capital) Subsequently a base for Britain's Navy, "Malta survived relentless raids from German and Italian military forces" in World War II. Today Malta, which is about twice the size of the District of Columbia, has 412,600 people. It's among "the most densely populated countries in the world" -- about 3,000 persons per square mile, compared with about 55 per square mile in the United States.

(Prior September 21 posts are here and here.)

On July 6

On this day in ...
... 2005, the House of Representatives of Malta unanimously approved a Motion for the Ratification of the European Constitutional Treaty, thus making the Mediterranean island nation the 12th state party to that European Union pact. But as we've posted, the treaty failed to take effect on account of "No" votes in referenda held earlier the same year in France and the Netherlands. As a consequence the EU then shifted, seeking member states' OK of the Lisbon Treaty, an agreement that includes much of its predecessor but eschews any claim to being a Constitution. The future of this treaty too is in doubt, on 2 fronts: 1st, the electorate in Ireland, having received certain new assurances from the EU since its 2008 "No to Lisbon" vote, will stage a do-over referendum in October; and 2d, a national court has just ruled that Germany's ratification is not yet valid. (credit for map at left, prepared before German court ruling, which shows Ireland, in red, as the lone Lisbon Treaty holdout among EU member states, otherwise in green)
... 1934 (75 years ago today), amid an uprising (right) that had begun the month before, Chilean troops killed hundreds of campesinos -- the exact number is disputed -- around Fundo Ranquil, an area at the Biobío River near Chile's midpoint. (photo credit) A detailed account, in Spanish, of this unsuccessful movement by the Mapuche people to establish a "República Indígena" is available here.

(Prior July 6 posts are here and here.)

Toward parity in foreign evidence gathering

Many thanks to IntLawGrrls for inviting me to contribute this guest post on my article recently published in the Berkeley Journal of International Law, entitled “Convicting the Innocent in Transnational Criminal Cases: A Comparative Institutional Analysis Approach to the Problem.” The article examines how the fair adjudication of transnational criminal cases in the United States is negatively affected by Mutual Legal Assistance Treaties, typically called MLATs.
MLATs are bilateral treaties negotiated by the United States -- treaties that require foreign nations to provide U.S. prosecutors with evidence located within their jurisdictions upon U.S. government request. When it negotiated the treaties, the United States included language that explicitly prevents defendants from obtaining foreign evidence under the treaties. Thus, MLATs create transnational compulsory process solely for prosecutors.
Inequities in evidence-gathering capabilities affect the accuracy of criminal trials. Without parity in compulsory process accuracy and fairness norms -- norms like punishing the guilty and freeing the innocent -- can be illusory.

Resolution of this disparity in foreign evidence gathering is difficult in light of Congress' relative indifference and the lasting reverberations of the terrorist attacks of September 11, 2001. Nonetheless, the danger of inaccurate verdicts and wrongful convictions that may result highlights the need to resolve this flawed transnational adjudication process -- specifically, its evidentiary method. Failure to do so results in cognizable deprivations to our system of criminal justice in general and to defendants in particular.

In the article, I utilize a comparative institutional analysis framework to identify the domestic institution best suited to achieve the norm of parity in transnational cases. When I began the project, I believed that a strong right to compulsion parity would best protect the twin goals of accuracy and fairness in transnational criminal adjudications. However, applying the framework revealed a potentially counterintuitive, negative result from this seemingly attractive option. Strong compulsory process rights could undermine accuracy norms, because under that approach, the executive would be forced to renegotiate existing MLATs to include explicit compulsion parity between defendants and prosecutors. If foreign nations objected, however, the parties would be left to rely upon the evidence-gathering market that had existed prior to MLATs. This market provided neither side reliable access to material and relevant evidence from foreign nations.

Surprisingly, then, provision of a strong right to compulsory process could make prosecution of the guilty more difficult and thus increase the risk that an innocent person would be wrongfully convicted.

Ultimately I conclude that a moderate right to compulsion parity would provide the best solution to remedy the compulsion disparity in transnational evidence gathering. Under this approach, courts would make case-by-case determinations on whether to order the government to request defense evidence utilizing an MLAT. A moderate right would leave MLATs intact, thereby avoiding serious foreign policy concerns, and it also would provide the best safeguard for protecting the innocent and convicting the guilty in transnational criminal cases. My hope is that courts will adopt the moderate rights approach, a framework for which I've set out in “Due Process for the Global Crime Age: A Proposal,” recently published in the Cornell International Law Journal.

(credit for May 2006 photo of ceremony in which Molly Bordonaro, then U.S. Ambassador to Malta, and Charles Deguara, Malta's Permanent Secretary of the Ministry of Justice and Home Affairs, signed the U.S.-Malta MLAT, which the U.S. Senate approved this past September)

Immigration everywhere

Pundits in the States no doubt will devote this weekend to the demise of the immigration compromise that a bipartisan group of Senators'd cobbled together. We knew the bill was doomed when: opponents on 1 side dubbed it the Asian and Latino Exclusion Act of 2007; opponents on the other side broadcast 3 septuagenarians wandering 'round Arizona asking "Where's the Fence?"; and no one in the middle could find a good thing to say about the package as a whole.
Listening to the debate, you'd think that everyone in the world is trying to move to the United States. In reality, though, migration to, and from, the United States is part of a pattern playing out all over the planet.
Recent events in the Eastern Hemisphere stand as reminders that larger truth. 1st, a "Spanish tug collected a group of 26 migrants in distress within Libya’s search and rescue zone and while the Armed Forces of Malta had supplied humanitarian aid to the vessel, permission to land the migrants in Malta was apparently denied on the basis that rescue had been undertaken outside Malta’s search and rescue zone." Then "27 shipwrecked Africans" clung for days "to tuna nets in the Mediterranean while Malta and Libya argued over who should rescue them." Not long after their rescue by the Italian Navy, a "French Navy ship found 18 bodies floating south of Malta." Days earlier, Maltese authorities'd "lost contact with a boat that was photographed carrying 53 African migrants."
The predictable response to the tragedies? Fingerpointing. Spanish immigration secretary María Consuelo Rumí (right) announced that Spain's filed a complaint against Malta respecting the 1st incident. The European Commissioner responsible for migration matterss said Malta's "failing to meet its international responsibilities to save lives at sea." Maltese officials' retort: the European Union's reneged on its promises to patrol boats headed to Malta, an island state of 400,000 people where 2,000 Africans landed last year. That's 6 times more "illegal migrants than, say, the Netherlands."
There, here, and elsewhere, it's time not only for the "burden-sharing" of which all Europeans seem to speak, but also for a migration policy that is fair and humane and that, like migration itself, spans the globe.