Monthly Archives: April 2014

?????Two of my colleagues, Professors Matthew I. Hall and Kent Barnett, have issued a call for papers for the 7th Annual Junior Faculty Federal Courts Workshop to be held October 10 and 11, 2014, here at the University of Georgia School of Law.

Invited to submit an abstract of a paper to be discussed at the workshop are all “untenured and recently tenured academics who teach and write in federal courts, civil rights litigation, civil procedure, and other associated topics,” including persons “who do not currently hold a faculty appointment but expect to do so beginning in fall 2014.” The deadline for e-mailing an abstract to is June 20, 2014.

Junior scholars whose work-in-progress papers are accepted (following evaluation by a committee of past participants) will be partnered with senior scholars. The latter will moderate panels and comment and lead group discussions on the papers.  Confirmed senior scholars include Professors: Janet Cooper Alexander, Stanford Law; Anthony J. Bellia, Notre Dame Law; Heather Elliott, Alabama Law; Evan Lee, California-Hastings Law; Gillian Metzger, Columbia Law; James E. Pfander, Northwestern Law; Amanda Tyler, California-Berkeley; and Stephen I. Vladeck, American University Law.

Also welcomed to attend the free workshop are scholars who wish to read and comment on, but not themselves present, papers.

somersetLooking forward to presenting “The Protection of Persons in Militias in Time of Civil War” at the 2014 Spring Conference of the British Branch of the International Law Association, to be held May 23 and 24 at the Dickson Poon School of Law, King’s College London. Also scheduled to take part are many old and new colleagues, including the host, my former University of California colleague, David D. Caron, Dean at the law school since last May. (credit for photo of law school; prior post)

Highlights from the conference agenda include speeches by James Crawford and Philip Allott, both of the University of Cambridge, as well as a presentation on the American Law Institute Fourth Restatement project by the project’s Co-Reporter, Paul B. Stephan, University of Virginia, with comments by Chanaka Wickremasinghe of the British Foreign & Commonwealth Office. In addition, there will be a host of panel sessions, on:

Friday, May 23:

► “The Relationship between National, Regional, and International Legal Orders.” Chaired by Lord Judge, King’s College London, and featuring presentations by Elena Katselli, Newcastle University; Gregory Messenger, University of Oxford; Aoife O’Donoghue, Durham University; and Chiara Giorgetti, University of Richmond.

► “The History and Future of Regulating the Oceans.” Chaired by David Caron, King’s College London, and featuring presentations by Henry Jones, Durham University; Steven Haines, University of Greenwich; and Patrick Wall, Australian Attorney-General’s Department.

► “On Sovereignty.” Chaired by John Tasioulas, University College London, and featuring presentations by Scott Sheeran, University of Essex; Thomas Pogge, Yale University; and Eyal Benvenisti, Tel Aviv University.

► “The Trafficking, Movement and Protection of Human Beings.” Chaired by Satvinder Juss, King’s College London, and featuring presentations by Lorna McGregor, University of Essex; Anicée Van Engeland, School of Oriental & African Studies, University of London; and Benjamin Thomas Greer, Office of the Attorney General, California Department of Justice.

► “Technological Futures and Law of Armed Conflict.” Chaired by James Gow, King’s College London, and featuring presentations by Marco Roscini, University of Westminster; Agnieszka Jachec Neale, British Institute of International and Comparative Law; Jack McDonald, King’s College London; and Thomas Rid, King’s College London.

► “Human Rights in a Digital World.” Chaired by Philippa Webb, King’s College London, and featuring presentations by Lanah Kammourieh, Université de Paris II (Panthéon-Assas); Russell Buchan, University of Sheffield; Sejal Parmar, Central European University; and Jemima Stratford, Brick Court Chambers.

British-Branch-Logo-ILA► “Jurisdictional Challenges and Accountability in a Transnational Context.” Chaired by ILA British Branch President Jeremy Carver, and featuring presentations by Ursula Tracy Doyle, Northern Kentucky University; Merryl Lawry-White, Judicial Assistant/Clerk, International Court of Justice; Jiewuh Song, Goethe University; and Yaël Ronen, Sha’arei Mishpat Academic Center.

► “The Future of Old Schools.” Chaired by Thomas Schultz, King’s College London, and featuring presentations by John Linarelli, Swansea University; Teerawat Wongkaew, Graduate Institute of International and Development Studies; and Yuliya Guseva, Rutgers-Newark.

Saturday, May 24

► “The Outer Limits of Environmental Protection under International Law.” Chaired by Alan Boyle, University of Edinburgh, and featuring presentations by Emanuela Orlando, University of Sussex; Jessica Duggan-Larkin, University College London; Nengye Liu, University of Dundee.

► “Avoiding and Regulating Armed Conflict.” Featuring presentations by Sean Aughey, 11 KBW Chambers; Jeffrey Davis, University of Maryland; Aurel Sari, University of Exeter; and Danny Auron, Fordham University.

► “The Sources of International Law Revisited.” Chaired by Frank Berman, Essex Court Chambers, and featuring presentations by Danae Azaria, University College London; Eirik Bjorge, University of Oxford; Başak Çali and Elizabeth Ann Griffin, Jindal Global University; and Panos Merkouris, University of Groningen.

► “Law of Armed Conflict: Emerging Challenges.” Chaired by Guglielmo Verdirame, King’s College London, and featuring presentations by yours truly, Diane Marie Amann, University of Georgia; Robert McLaughlin, Australian National University; Douglas Cubie, University College Cork; and Jadranka Petrovic, Monash University.

► “Contemporary boundary delimitation issues and island sovereignty questions.” Featuring presentations by Richard Schofield, King’s College London, who also will chair the session, along with Timothy Lindsay, Dechert; Charles Claypoole, Latham & Watkins; Ioannis Konstantinidis,  Volterra Fietta.

► “The Protection of Foreign Investment.” Chaired by Giorgio Mandelli, Volterra Fietta, and featuring presentations by Erman Özgür, University of Dundee; Mona Pinchis, King’s College London; Rumiana Yotova, University of Cambridge; and Martins Paparinskis, University College London.

Details and registration here. Hope to see you there.

cousinDelighted to see Ertharin Cousin, since 2012 the Executive Director of the U.N. World Food Programme, on the annual list of Time‘s Top 100 Most Influential People.

The magazine chose Chicago Mayor Rahm Emanuel to write about Cousin, so it’s no surprise his profile focused on her childhood “in a lower-income neighborhood on the West Side of Chicago.” But here in Athens, we celebrate her as a 1982 graduate of the University of Georgia School of Law.

Just last year, Cousin returned to her alma mater to keynote “International Law in a Time of Scarcity,” a symposium sponsored by our law school and its Georgia Journal of International & Comparative Law and Dean Rusk Center for International Law & Policy. ((c) Georgia Law photo by Cindy H. Rice) This week’s Time honor will not surprise anyone who heard Cousin’s inspiring talk, summed up in this quote:

‘Just because it’s always been that way doesn’t mean it has to stay that way.’

lacksThe Nuremberg Code made them do it. Or not do it, to be precise.

“They” were “three young Jewish doctors” who refused a superior’s instructions that, in the name of medical research, they should inject unknowing patients with cancer cells. As stated in The Immortal Life of Henrietta Lacks, the 2010 bestseller by Rebecca Skloot:

‘All three knew about the research Nazis had done on Jewish prisoners. They also knew about the famous Nuremberg Trials.’

Skloot proceeds with a brief account of one of the 12 Nuremberg Military Tribunal trials that followed the Trial of the Major War Criminals. In the Doctors Trial,  23 physicians – among them 1 woman – were prosecuted for conducting medical experiments on camp inmates without their consent. The tribunal’s judgment set forth a list of 10 principles that became known as the Nuremberg Code. First and foremost:

‘1. The voluntary consent of the human subject is absolutely essential.’

Although it appeared in a judgment in 1947, issued by a panel of American judges sitting in Nuremberg, as late as 1951, that injunction had not penetrated the medical establishment Stateside. That is the year that physicians in Baltimore took cells from Lacks, a 31-year-old woman who soon would die from cervical cancer. Those tissues, and others taken in the course of her autopsy, gave birth to a cell line that lives to this day – cells numbering in the billions, used for decades, worldwide, to aid research on a host of diseases and genetic disorders. Lacks’ contribution to science is inestimable. But as Skloot relates in her book, which I’ve just finished reading, it took place without full and informed consent of Lacks or her family.

Indeed, it appears the informed consent norm articulated at Nuremberg was not firm even as late as 1963. That’s when those 3 doctors mentioned at top wouldn’t go forward with the ordered injections. Their refusal began a painful but necessary process of informing the family, by then impoverished in both material and emotional sense of the word. It is heartening to learn that the work of international criminal lawyers gave rise to a norm that led to this revelation of the truth – and, one hopes, to more patient-respectful procedures in our own time.

peter_sagal_and_motorcycle_1Invited to experience constitutional law at work in popular culture, to what source are law students likely to turn? Hands down, the answer is Constitution USA, a documentary series by Peter Sagal (right), host of the National Public Radio game show Wait Wait … Don’t Tell Me! (photo credit) The 4-part Constitution documentary 1st aired on Public Broadcasting Service stations about a year ago, and all 4 episodes remain available for viewing online here.

That availability no doubt helped draw to the series about half the students in my Con Law I class. In order to make up some missed classes, the group as a whole had been assigned to review an instance of constitutional law in American culture, and then to write a 1,000-word reflection paper. A range of possibilities was suggested:

► Audio of the arguments before the U.S. Supreme Court. Chosen for review were pending cases like Sebelius v. Hobby Lobby Stores, Hall v. Florida, Bond v. United States, and Town of Greece v. Galloway, as well as decided cases like Fernandez v. California (2014), Kansas v. Cheever (2013), Fisher v. University of Texas (2013), Virginia v. Black (2003), United States v. Lopez (1995), and Gonzalez v. Raich (2005). Particularly interesting were students’ comparisons of actual arguments to their own moot court experiences – not to mention one student’s concern that in a certain case, a certain advocate had seemed “slightly snarky” in responding to the women Justices.

► Documentaries like Sagal’s Constitution USA, Black/White & Brown (2009), and a 2008 PBS series.

► Feature films. Chosen for review were All the President’s Men (1976), Amistad (1997), and Gideon’s Trumpet (1980).

► Symposia. Chosen for review was a session on “Cybersecurity & National Defense” at a Georgia Law/Rusk Center conference.

► Books by Justices or  about the Court. Chosen for review was Brian Doherty, Gun Control on Trial (2008).

Given those choices, more than half the class watched one of Sagal’s Constitution USA episodes: “Built to Last,” on the how and why of the Constitution’s two-century longevity; “It’s a Free Country,” on the Bill of Rights; “Created Equal,” on the long and winding history of equality in America; or “A More Perfect Union,” on the state-national interplay known as federalism. Students reported that the series brought the Constitution home, helped them see the big picture, put human faces on what in casebooks sometimes seem abstract cases. One said it refreshed fuzzy memories of a Constitution-on-TV classic, ABC’s animated Schoolhouse Rock! (image credit)  (Warming a law teacher’1672s heart, another student wished for “more law” in Sagal’s presentations.)

The makeup exercise brought to many students’ minds the very 1st text-interpreter we studied this semester, Humpty Dumpty. Many students’ papers, moreover,  shared this takeaway: Change takes time, and figuring out how and whether to deal with change are enduring questions of U.S. constitutional debate.

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.

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.