ICJ anti-whaling judgment appears to have whetted Japan opponents’ appetites

IWC latest logo 210x64Some lawmakers and lobbyists in Japan displayed their distaste for whaling bans this week with a whale-meat eat-in in Tokyo. The Japan Daily Press reported:

‘In an act of defiance against a recent ruling by the International Court of Justice (ICJ) halting the nation’s whale hunts, pro-whaling legislators and lobby group gathered on Tuesday to eat whale meat while pledging to continue what they call one of the country’s centuries-old traditions.’

Stoking these opponents’ appetite was the March 31 judgment in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). (Prior posts here and here.) The Hague-based court held 12-to-4 that Japan had violated the 1946 International Convention on the Regulation of Whaling by granting permits to harvest 3 species of whales areasin an area of the seas known as the Southern Ocean Sanctuary. (In yellow on map at right; see p. 3 here.) Japan asserted that a scientific research exception to the Convention’s whaling ban justified the hunts. But a majority of the ICJ disagreed, in a ruling that Rutgers Professor Cymie Payne analyzed in a recent ASIL Insight. (credit for above logo of the International Whaling Commission, which monitors compliance with the Convention)

Yesterday, the Japan Times reported, Japan’s government announced that it would still engage in what it calls research whaling, albeit at a reduced rate and in regions other than the area of concern to the ICJ case. The report indicated that the decision to go forward marked a victory for Japan’s Fisheries Ministry and a defeat for its Foreign Ministry.

Particularly vocal among the opponents of the ICJ’s ruling has been the man who’s served as Fisheries Minister since last December: Yoshimasa Hayashi, a Harvard Kennedy School graduate. Hayashi spoke at the Tokyo banquet on Tuesday. And in a February interview with Japan Times, he explained his position:

‘Japan is an island nation surrounded by the sea, so taking some good protein from the ocean is very important. For food security, I think it’s very important … We have never said everybody should eat whale, but we have a long tradition and culture of whaling. So why don’t we at least agree to disagree? We have this culture and you don’t have that culture.’

Payne’s Insight agreed that, notwithstanding the March 31 issuance of the ICJ’s opinion, resolution of “fundamental cultural conflict[s]” awaits another day.

Europe on ICC docket as Ukraine diplomatic pact announced

ukrAt The Hague today, the International Criminal Court announced that Ukraine had declared partial acceptance of ICC jurisdiction – during the same hour that diplomats in Geneva announced an agreement in the ongoing crisis in Ukraine.

In a statement posted at the ICC website (video here), ICC Registrar Herman von Hebel announced receipt of a declaration stating:

‘In conformity with Article 12, paragraph 3 of the Statute of the International Criminal Court, Ukraine hereby recognizes the jurisdiction of the Court for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Ukraine within the period 21 November 2013 – 22 February 2014.’

The initial declaration (pictured above) is dated April 9; a followup declaration dated yesterday confirmed that that the person signing had authority to do so on behalf of Ukraine.

The limitations in the declaration reflect the fact that Ukraine has signed but not ratified the ICC Statute – a situation that Ambassador Tiina Intelmann, President of the ICC Assembly of States Parties, urged Ukraine to change:

‘To ensure the full protective potential of the Rome Statute system and accountability for atrocity crimes, I hope that Ukraine will proceed with the ratification of the Rome Statute in the nearest future.’

Today’s developments mean that incidents in 2 European countries are before the court. In 2008, the Office of the Prosecutor opened a preliminary examination into incidents in the Republic of Georgia. On that, the ICC website states that prosecutors are

‘seeking clarification as to whether the respective national investigations have halted; whether any additional information remains to be provided to the Office; and whether the lack of cooperation identified as an obstacle both by the Russian and Georgian authorities may be overcome through enhanced mutual legal assistance between the two States.’

Today’s developments occurred, moreover, against the backdrop of movement in the diplomatic standoff on Ukraine; that is, the release of the following joint statement on behalf of the United States, the European Union, Russia and Ukraine:

‘The Geneva meeting on the situation in Ukraine agreed on initial concrete steps to de-escalate tensions and restore security for all citizens.

‘All sides must refrain from any violence, intimidation or provocative actions. The participants strongly condemned and rejected all expressions of extremism, racism and religious intolerance, including anti-Semitism.

‘All illegal armed groups must be disarmed; all illegally seized buildings must be returned to legitimate owners; all illegally occupied streets, squares and other public places in Ukrainian cities and towns must be vacated.

‘Amnesty will be granted to protesters and to those who have left buildings and other public places and surrendered weapons, with the exception of those found guilty of capital crimes.

‘It was agreed that the O.S.C.E. Special Monitoring Mission should play a leading role in assisting Ukrainian authorities and local communities in the immediate implementation of these de-escalation measures wherever they are needed most, beginning in the coming days. The U.S., E.U. and Russia commit to support this mission, including by providing monitors.

‘The announced constitutional process will be inclusive, transparent and accountable. It will include the immediate establishment of a broad national dialogue, with outreach to all of Ukraine’s regions and political constituencies, and allow for the consideration of public comments and proposed amendments.

‘The participants underlined the importance of economic and financial stability in Ukraine and would be ready to discuss additional support as the above steps are implemented.’

How all these developments interact remains to be seen.

Sharing in joy at annual WILIG luncheon

wiliguseWASHINGTON – The President of the International Court of Justice spoke for a banquet room full of women and men yesterday when he said, “I am just here to share in the joy of my colleagues.” The colleagues of whom ICJ President Peter Tomka spoke were Judges Joan E. Donoghue, Julie Sebutinde, and Xue Hanqin. The three women received the Prominent Women in International Law Award during the Women in International Law Interest Group luncheon, a highlight of every American Society of International Law annual meeting. As a special treat, retired U.S. Supreme Court Justice Sandra Day O’Connor dropped in to congratulate what she called “the women’s division” of the World Court bench.

Each of the honored judges made brief but inspiring comments.

Judge Donoghue, a career U.S. State Department lawyer before she joined the ICJ in September 2010, focused her comments on gender disparity in international law. In a recent three-year period, “93 percent of the arguments judges of the ICJ heard came from men,” Donoghue said, citing “A Study of Lawyers Appearing before the International Court of Justice, 1999-2012,” a forthcoming European Journal of International Law article by Cecily Rose and Shashank Kumar. In calling for greater diversity, Donoghue reasoned:

‘We are a world court, and international law in the main is for the world.’

Flashing a broad smile, Judge Xue said, “Indeed, this is a great honor and privilege to receive this award. It’s really like an higgOscar.” Xue, a former diplomat and law professor in China, is senior to Donoghue on the court by a few months. She recalled two women who had preceded both of them – Dame Rosalyn Higgins (right), whose service from 1995 to 2009 included abastid term as the ICJ’s President, and Suzanne Bastid (left), an ad hoc judge in the 1980s. Xue said:

‘Today we have so many women on the court not because today women are so much more intelligent, but because many international lawyers, men and women – I want to stress, men and women – have fought so hard for women’s rights.’

She accepted her award “as a tribute to all women legal professionals working in the field of international law, in recognition of their dedication to international peace and development.”

Having three women on the bench, Judge Sebutinde said, “is indeed a pinch-yourself moment for me.” Sebutinde’s pre-ICJ career included service as a judge in her homeland of Uganda and on the Special Court for Sierra Leone. Sebutinde thanked her colleagues Donoghue and Xue, stating, “I don’t think I would even have had the courage to apply if they were not there.” Sebutinde urged the court to increase public outreach. It is particularly important in her own region: “It is no secret I come from eastern Africa where there has been a lot of conflict for decades. The first thing that nations think of for settling their differences is war. It is never the International Court of Justice. So it’s a great responsibility, especially for judges who come from Africa, to sell the court to our part of the world.”

Adding their own words were audience members  – judges, law students, law professors, law librarians, and practicing lawyers – who took part in WILIG’s introduce-yourself tradition. Among them was International Criminal Court Prosecutor Fatou Bensouda, who recalled that as a young girl in Gambia, she had felt “helpless” after trying in vain to get police to protect a relative who was suffering domestic violence. “That is why I went to law school,” Bensouda said, and added with reference to her current work, “There must be accountability for those crimes, those who perpetrate those crimes. There must be rule of law.” Meanwhile, Washington-based attorneys Lucinda Low and Jennifer A. Hillman (a former member of the World Trade Organization Appellate Body) urged “constant vigilance” to ensure that once earned, gains in women’s participation are maintained.

A University of California-Davis Law student who hails from Kazakhstan summed up the celebratory spirit. Aigerim Dyussenova, known to her new WILIG friends as Aika, proclaimed:

‘This is the happiest day of my life.’

(In photo at top by Fionnuala Ní Aoláin, WILIG Co-Chairs Clara Brillembourg – a cardboard cutout of Eleanor Roosevelt behind her – and Christie Edwards address the luncheon audience. Looking on are, from left, Judges Xue Hanqin, Joan E. Donoghue, and Sebutinde, along with Justice O’Connor. Cross-posted at IntLawGrrls and ASIL Cables)

“The Post-Postcolonial Woman or Child”

eventWASHINGTON – Yesterday I had the honor of serving as Distinguished Discussant for the 16th Annual Grotius Lecture, a keynote event at the ongoing joint meeting of the American Society of International Law and the International Law Association. Delivering the lecture was NYU Global Law Professor Radhika Coomaraswamy, whose former posts include Special Representative of the U.N. Secretary-General on Children & Armed Conflict and U.N. Special Rapporteur on Violence against Women. (event video here) Her talk was entitled “Women and Children: The Cutting Edge of International Law.”

Below is a version of my remarks in response, prepared and delivered in my personal capacity. The final, fully footnoted article is set to appear in due course, along with that of Professor Coomaraswamy, in the American University International Law Review, thanks to the lecture’s cosponsor, American University Washington College of Law.

The Post-Postcolonial Woman or Child

“‘Let the child be excused by his age, the woman by her sex,’ says Seneca in the treatise in which he vents his anger upon anger.” So wrote the namesake of this lecture, Hugo Grotius, in his masterwork entitled The Law of War and Peace. With this 60862quotation, “Let the child be excused by his age, the woman by her sex,” Grotius traced to the writings of an ancient Roman philosopher the injunction against harming women and children in time of war. Grotius’ reiteration of Seneca’s words tacitly admitted that as late as 1625, armies still were violating the injunction. Sadly, the same is true 389 years later. Today neither women nor children are excused from wartime assaults, violence, and upheaval. In Syria alone, three years of conflict have left well over 100,000 persons dead, and forced another 2.5 million persons to flee their country. Women and children are included in those statistics. Conflicts elsewhere generate similarly grim numbers, as Professor Coomaraswamy indicated by her references to the Central African Republic, to the Democratic Republic of the Congo, and to her own homeland of Sri Lanka. Indeed, outrage at the persistent violation of laws protecting women and children undergirds the Grotius Lecture that we have just heard.

Commensurate with her distinguished career in international law academia, policy, and practice, Professor Coomaraswamy has presented a vast and intricate tapestry of global developments. It would be impossible for me to comment in full in the time allotted. Instead, I propose to pull five strands out of the fabric of her lecture and to weave them anew, as a means to invite the imagining of a possible future, that of “the post-postcolonial woman or child.”
My first strand addresses Professor Coomaraswamy’s statements of concern about postcolonial theorists prevalent in the global south. These scholars, she said,

‘reject the human rights framework as part of the ‘liberal’ ‘imperialist’ project especially when it comes to cultural practices. … [They] rejec[t] the dominance of the European Enlightenment and the sacredness of the power of reason.’

My response might raise hackles among some of those scholars, for it begins with this claim: We are all postcolonials now.

By way of example, both of my own countries of citizenship are postcolonial states. Continue reading

New tool for US judges & litigants: ASIL Benchbook on International Law

bbIt’s my great pleasure to announce the publication of the American Society of International Law Benchbook on International Law (2014). This represents the culmination of several years of hard work by 4 dozen contributors, international law scholars and practitioners alike. We’ve benefited greatly from advice of the ASIL Judicial Advisory Board, composed of one member from each federal circuit and several state supreme courts, chaired by U.S. Supreme Court Justice Ruth Bader Ginsburg. It has been an honor to serve as the Benchbook‘s Editor-in-Chief.

As detailed in the Preface, the Benchbook is intended as an aid to judges and litigants when foreign or international law (including treaties and customary norms) forms a part of the case before them.

It will be demonstrated at the joint meeting of ASIL and the International Law Association this week in Washington, D.C. — to be precise, as part of ASIL’s Annual General Meeting, which begins at 2:30 p.m. Thursday, April 10, in Polaris Room A/B at the Ronald Reagan Building & International Trade Center, on Pennsylvania Avenue a few blocks from the White House. (Full meeting program here.) We will give a brief demonstration and extend heartfelt thanks to all who contributed; all are welcome to attend.

The Benchbook appears online here. Readers will find the Preface and, by clicking the Table of Contents tab, the contents of this 2014 edition. Included are our dedication to the memory of David J. Bederman, followed by these units:

► Primer (International Law Defined; Sources and Evidence of International Law; Uses of International Law in U.S. Courts)

► Preliminaries (Jurisdiction; Immunities and Other Preliminary Considerations; Discovery and Other Procedures)

► Specific Topics (International Arbitration; International Law Pertaining to Families and Children; International Sale of Goods; International Air Transportation; Human Rights, comprising Alien Tort Statute, Torture Victim Protection Act, Human Trafficking, and Non-refoulement or Nonreturn; Criminal Justice; and Environment)

► Resources (Judicial Interpretation of International or Foreign Instruments; Research Resources)

Clicking on any of the above chapters will give you the pdf version of that segment of the Benchbook. If you would like to access and download the 356-page Benchbook as a whole, you may do so here.

In order to make the volume as user-friendly as possible (until our eventual transfer to html with hypertexting), we have cross-referenced throughout all chapters, and further provided several means to locate information:

Summary Table of Contents

Detailed Table of Contents

Tables of Treaties, Cases, Laws, and Scholarly Writings, along with a Keyword Index

You will see toward the end that the Benchbook includes a list with short biographies of each contributor. (The book benefited as well from the help of my colleagues and students at the University of Georgia School of Law  – Kaitlin M. Ball, but also Kent Barnett, Harlan Cohen, Erika Furlong, and the super staff at the Alexander King Campbell Law Library.)

The book also includes acknowledgments. These cannot begin to express our deep thanks to all of you for ASIL members’ support of this multiyear project. Going forward, we hope to keep the Benchbook current with periodic updating, and also to make it a hands-on training tool for judges and their staffs. We welcome members’ help in those endeavors.

International law women on Twitter

TwitterCruise7Concern about the dearth of international law women with online or op-ed presence helped launch IntLawGrrls in 2007. Since then, the blog (archives here, current posts here) has welcomed hundreds of  women who’ve posted on a range of issues related to international, comparative, and transnational law and policy.

Recent buzz in Foreign Policy about the dearth of women writing in that field prompted a search for @IntLawGrrls; that is, IntLawGrrls contributors now posting on Twitter. (image credit) For readers who’d like to follow favorites there, here’s a list:

Aziza Ahmed: @AzizaAhmed
Karen J. Alter: @AlterKaren
Diane Marie Amann: @DianeMarieAmann
Elizabeth Andersen: @AndersenBetsy

Sandra L. Babcock: @sandralbabcock
Sari Bashi: @saribashi
Nadia Bernaz: @HRightsBusiness
Jillian Blake: @JilliBlake
Sadie Blanchard: @sadie_blanchard
Carolyn Patty Blum: @PattyBlum
Rosa Brooks: @brooks_rosa
Elizabeth Burleson: @BurlesonInst
Mira Burri: @miraburri

Naomi Cahn: @NaomiCahn
Liz Campbell: @lizjcampbell
Aparna Chandra: @aparnachandra
Louise Chappell: @chappell_louise
Ioana Cismas: @IoanaCismas
Kathleen Clark: @clarkkathleen
Kamari Maxine Clarke: @KamMClarke

Colin Dayan: @mehdidog
Fiona de Londras: @fdelond
Jessica Dorsey: @jessicadorsey
Mary L. Dudziak: @marydudziak
Angela Duger: @UDHR_Duger

Christie Edwards: @cjoye7
Máiréad Enright: @maireadenright
Noura Erakat: @4noura
Daphne Eviatar: @deviatar
Andrea Ewart: @developtradelaw

Marjorie Florestal: @MarjorieFlo
Rosa Freedman: @GoonerDr

Anne Gallagher: @AnneTGallagher

Jill Goldenziel: @JillGoldenziel
Michele Bratcher Goodwin: @michelebgoodwin

Lisa Hajjar: @lisahajjar
Leslie Haskell: @HaskellLeslie
Gina Heathcote: @gina_heathcote
Karen Hoffmann: @karhoff
Sofie A. E. Høgestøl: @sofiehogestol

Joanna Cuevas Ingram: @4truejustice

Olga Jurasz: @olga_jurasz

Elise Keppler: @EliseKeppler

Rebecca Eve Landy: @RebeccaEveLandy
Hope Lewis: @ProfHopeLewis
Jennifer Lind: @profLind

Vanessa MacDonnell: @vanessa_macd

Hope Elizabeth May: @selfconcordance
Clare McGlynn: @McGlynnClare
Chi Mgbako: @chiadanna
Lelia Mooney: @Lelia_Mooney

Luz Estella Nagle: @LuzEstella
Fionnuala Ní Aoláin: @NiAolainF

Mary Ellen O’Connell: @OConnell_IntLaw
Aoife O’Donoghue: @aoifemod
Hari M. Osofsky: @HariOsofsky
Aminta Ossom: @AmintaOssom

Elaine Pearson: @PearsonElaine
Nicole Phillips: @BuddhistLawyer

Noëlle Quénivet: @NoelleQuenivet1

Susan Harris Rimmer: @FemInt
Mónica Roa: @MonicaRoa
Sarah Rogerson: @RogersonSarah

Kim Thuy Seelinger: @ktseelinger
Pam Spees: @PamSpees
Margaret Stock: @MargaretDStock
Staci Strobl: @Staci_Strobl

Jessica Tillipman: @JTillipman
Kellie Toole: @KellieToole

Beth Van Schaack: @BethVanSchaack
Monika Kalra Varma: @monikakv

Judith Weingarten: @zenobia1
Lesley Wexler: @lesley_wexler

Pamela Yates: @pameladyates

ASIL / ILA meeting program now online

am14_header_sitetop_1Having posted a while back on early registration, I write to report: Now available is the full program for the American Society of International Law Annual Meeting/International Law Association Biennial Conference, set for April 7 to 12 in Washington, D.C., at the Ronald Reagan Building & International Trade Center, on Pennsylvania Avenue a few blocks from the White House.

Numbering more than a hundred pages, the program, available in full here, details the more than 250 persons, from A (Frederick M. Abbott) to Z (Marten Zwanenberg) scheduled to speak at myriad sessions. Besides my certain attendance at the WILIG Luncheon on which I previously posted – note that former U.S. Supreme Court Justice Sandra Day O’Connor has been added as a luncheon speaker – I’m pleased to note 2 other events in which I’ll be participating:

► I will have the immense honor of serving as discussant for the Grotius Lecture, a keynote event 5-6:30 p.m. Wednesday, April 9. Delivering the lecture will be Radhika Coomaraswamy, whose former posts include Special Representative of the U.N. Secretary-General on Children & Armed Conflict and U.N. Special Rapporteur on Violence against Women. Her talk is entitled “Women and Children: The Cutting Edge of International Law.”

► During the ASIL Annual General Meeting set for 2:30-4 p.m. Thursday, April 10, I look forward to the opportunity to launch ASIL’s Benchbook on International Law, a just-completed volume for which I’m honored to be Editor-in-Chief. (Beta version now online; keep checking here for the final version.) About 4 dozen ASIL member colleagues contributed to this multiyear project intended to aid judges and litigants in federal courts; it will be great to demonstrate the Benchbook and give a heartfelt thanks to all who helped.

You can still register for the meeting here. Would be great to see you there.