transnational law

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Why IntLawGrrls?

The need for an online forum giving voice to women who work in international law and policy began to take shape 10 years ago this autumn.

An issue of the day was Guantánamo; specifically, what was the United States to do now that the U.S. Supreme Court, in a June 2006 decision in Hamdan v. Rumsfeld, had ruled President George W. Bush’s military commissions unconstitutional?

Many women had worked, spoken, or written on GTMO – not only in law review articles, but also in court pleadings. I was one of them, having published “Guantánamo” in the Columbia Journal of Transnational Law in 2004 and served in 2006 as principal author of the amicus brief in Hamdan filed jointly by the National Institute of Military Justice and the Bar Association of the District of Columbia.

And yet, when Congress convened post-Hamdan hearings, witness after witness was exclusively male. Worse still, the perspectives these men advanced by no means covered the spectrum – no surprise given that all of them had served in the Executive Branch of the U.S. government, and only one staked any claim to expertise in human rights law. Nothing approximating either a nongovernmental or feminist perspective surfaced in those sessions on Capitol Hill.

News accounts of such manels got me thinking about launching a blog.

Opinio Juris, founded in November 2004, had revealed an international law community rife with readers and contributors. But posts by women were few, as was then and remains today the case on digital platforms. I imagined that a blog open only to women might attract women – that women would see it as both an invitation and an obligation to contribute. Going pink would set a strong contrast with OJ‘s baby-blue image.

The name? “IntLaw” was easy, and for obvious reasons.

“Grrls” was obvious too. The spelling’s angry “grr” owes much to the circa-1990s Riot Grrrls; the concept, to the Guerrilla Girls, a group that since 1985 has been wreaking feminist havoc in the male-dominated art world. (Years later, we would recognize Pussy Riot, a band-turned-movement that, like Guerrilla Girls, remains active.)

dowomenhavetobenaked2005smallrgbAs the Guerrilla Girls’ website recalls:

“They assumed the names of dead women artists and wore gorilla masks in public, concealing their identities and focusing on the issues rather than their personalities.”

And so did IntLawGrrls. Well, not the gorilla masks (at least not in public). But in the infant months after our birth-day on March 3, 2007, each of us assumed the name of a foremother as our pseudonym, and posted in her honor. I was Gráinne Ni Mháille, or Grace O’Malley, the Irish pirate who also would be embraced by contributors Fionnuala Ní Aoláin and Gráinne de Búrca. A charter contributor, Beth Van Schaack, took the name of her distant relative, Eleanor Roosevelt. It will come as little surprise to learn that others followed suit in honoring ER, who remains our blog’s proto-foremother. Another early contributor, Jaya Ramji-Nogales, posted in the name of the 19th Century Indian queen Lakshmi Bai.

A half-dozen months and scores of contributors later, we ‘Grrls began posting in our own names, though we continued to name foremothers both in introductory posts and in an honor roll posted online. Kathleen A. “Kate” Doty, for example, thus paid homage to Queen Lili‘uokalani, the last monarch of Hawai‘i.

clearerwicl_posterOver time, Beth, Jaya, Kate, and I evolved into the editors of IntLawGrrls. Our collaboration included hosting a conference at Tillar House, the American Society of International Law headquarters, and publishing a special issue of the International Criminal Law Review, dedicated to Judge Patricia M. Wald, on “Women and International Criminal Law.” We worked together through December 2012, when the blog took a couple-months’ hiatus and then revived. It’s been wonderful to watch the replenishment of energy and contributors at this new URL, thanks to Cecilia Marcela Bailliet and many others.

Then as now – nearly 10 years, hundreds of contributors, and thousands of posts later – IntLawGrrls mentors new voices and fosters community among contributors at all stages of their careers. Our periodic group photos are evidence of that. (At top is our photo from last spring’s ASIL annual meeting, when IntLawGrrl Betsy Andersen, 2d from right in top row, earned the Prominent Woman in International Law Award.)

To celebrate our utterly unexpected achievement, we’re throwing a party.

georgiawill_logoBeth, Jaya, Kate, and I have reunited to organize IntLawGrrls! 10th Birthday Conference. We welcome all of our vast IntLawGrrls community to join us on Friday, March 3, 2017 – on the precise date of our 10th birthday – at my home institution, the Dean Rusk International Law Center, University of Georgia School of Law, Athens, Georgia USA, which is hosting as part of our Georgia WILL initiative.

Details and our call for papers are available at our conference website and in the item Jaya posted last week. Suffice it to say that we welcome proposals, in English, French, or Spanish, from all in our community. Topics may include any issue of international, comparative, foreign, or transnational law or policy. We especially welcome contributions from subfields traditionally dominated by men. Academics and practitioners, students and professors, advocates and policymakers alike are most welcome to submit.

We’re planning a plenary aimed at getting us through the next several years – title is “strategies to promote women’s participation in shaping international law and policy amid the global emergence of antiglobalism” – and we hope to organize a few more according to participants’ interests. We look forward to an opportunity to network, to meet old friends and make new ones, to celebrate our accomplishments and lay plans for greater achievements in the coming decade.

I thank all of you for your support of our efforts this last decade, and look forward to seeing many of you here in March.

‘Nuff said.

(Cross-posted from IntLawGrrls blog)

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Alumna Tess Davis, 2d from left, met with Georgia Law 1Ls after her lecture; from left, Hannah Williams, Ava Goble & Karen Hays. Hannah will work on cultural heritage issues this summer through a Global Externship Overseas (GEO) at the Cambodia Ministry of Culture & Fine Arts, Department of Intangible Cultural Heritage.

“As long as there have been tombs, there have been tomb raiders.”

So began the terrific talk on trafficking that Tess Davis, Executive Director of the D.C.-based Antiquities Coalition, delivered to a rapt University of Georgia audience a few days ago.

Having conceded the point quoted at top, Davis stressed that today the problem is much different and much greater. On the list of lucrative transnational organized crime, she asserted, antiquities trafficking places 3d, right behind arms trafficking and drug trafficking.

The threat is not simply one of criminal behavior, she continued. Rather, Davis stressed that profits from antiquities trafficking – profits believed to be in the millions of dollars – provide revenue vital for the nonstate actor waging armed conflict in Syria and Iraq. That entity calls itself “Islamic State” and is often labeled “ISIS” or “ISIL” in the media; taking a lead from diplomats in France and, recently, the United States, Davis preferred “Daesh,” the group’s Arabic acronym, for the simple reason that “they hate to be called that.”

Initially trained as an archeologist, Davis began to focus on legal means to combat antiquities trafficking while still a student at Georgia Law. Since earning her J.D. in 2009, she’s been a leader at the Lawyers’ Committee for Cultural Heritage and in the American Society of International Law Cultural Heritage & the Arts Interest Group, a researcher at Scotland’s University of Glasgow, a member of Georgia Law’s Dean Rusk International Law Center Council, and, as the photo above demonstrates, a mentor to Georgia Law students and other young lawyers interested in working in the field. Her efforts to help repatriate antiquities stolen from Cambodia earned multiple mentions in The New York Times.

Her talk drew links between the looting of cultural heritage during and after the 1970s Khmer Rouge reign of terror and current looting in the Middle East today. In both instances, she said, “cultural cleansing” – in the contemporary case, the destruction and thievery of monuments sacred to moderate Muslims and others – precedes and parallels efforts to erase and subjugate the humans who venerate those monuments. It’s a state of affairs documented in her Coalition’s new report, “Culture Under Threat.”

“The world failed Cambodia,”

Davis said, then expressed optimism at growing political will to do something about the Middle East. She advocated enactment of S. 1887, the Protect and Preserve International Cultural Property Act now working its way through Congress. The legislation, whose cosponsors include a Georgia U.S. Senator, David Perdue, is urgent: Davis estimated that U.S. buyers represent 43% of the current demand for looted Syrian antiquities.

(Cross-posted from Exchange of Notes blog)

courThe 1994 genocide of nearly a million persons in Rwanda will be the subject of a trial beginning today before 6 jurors and 3 judges in the Paris Cour d’assises, or criminal court.

Charged with taking part in killings as part of an escadron de la mort, or death squad, is Pascal Simbikangwa, a 54-year-old man said to have been head of central intelligence and part of the inner circle of Juvénal Habyarimana, the Rwandan President whose April 6, 1994, death in a plane crash precipitated the genocide. The trial will involve testimony by historians, among other witnesses, and is set to be filmed in its entirety.

Le Monde‘s Stéphanie Maupas reported yesterday that this marks the 1st such trial in France, a country whose own behavior in Rwanda has been questioned. (And see here.) French authorities arrested Simbikangwa for trafficking in false papers in 2008 and subsequently refused the Rwandan government’s extradition request. A similar trial in Canada of another defendant ended last year in an acquittal; meanwhile, Belgium has convicted several such defendants in a series of trials.

Maupas’ report (available here and here) ended on a reflective note:

Le verdict devrait tomber mi-mars, juste avant les 20 ans du génocide. Vingt années durant lesquelles la France a été accusée d’offrir un exil confortable aux acteurs du génocide. Au-delà de l’histoire d’un homme, passible de la perpétuité, ce procès sera aussi le miroir des relations franco-rwandaises.

that is,

The verdict could come in mid-March, just before the twentieth anniversary of the genocide. Twenty years during which France has been accused of offering comfortable exile to génocidaires. In addition to the story of one man on trial for his life, this trial will also serve as a mirror of French-Rwandan relations.

2justicesEight Justices of the U.S. Supreme Court today cut short an effort to use a state long-arm statute to hold a multinational corporation accountable for human rights abuses.

The judgment in Daimler AG v. Bauman thus freed the defendant, a corporation whose subsidiary, Mercedes-Benz USA, “is the largest supplier of luxury vehicles to the California market,” from a 2004 lawsuit brought by 22 Argentinians. As Justice Ruth Bader Ginsburg (above right) explained in her opinion for the Court,  plaintiffs alleged that Mercedes’ Argentina subsidiary had

collaborated with Argentinian state security forces to kidnap, detain, torture, and kill plaintiffs and their relatives during the military dictatorship in place there from 1976 through 1982, a period known as Argentina’s “Dirty War.”

The multi-count suit was on shaky footing even before the Court heard argument last October. The Court’s application of a presumption against extraterritorial jurisdiction in Kiobel v. Royal Dutch Petroleum Co. (2013) impaired counts based on the Alien Tort Statute; similarly, the Court’s ruling in Mohamad v. Palestinian Authority (2012) that only human beings may be held liable under the Torture Victim Protection Act gutted counts based on that statute. Left were counts that looked to California’s long-arm statute, which permits a court to exercise personal jurisdiction provided that the state and federal constitutions so permit. It was this proviso that ended the case: Ginsburg wrote at footnote 20 that whether a court enjoyed general jurisdiction over a corporate defendant depended not only

‘on the magnitude of the defendant’s in-state contacts,’

but also on

a corporation’s activities in their entirety, nationwide and worldwide.

Applying this reasoning, the Court concluded that the named defendant lacked sufficient contacts with California, so that the Due Process Clause of the 14th Amendment to the U.S. Constitution forbade the exercise of “general” or “all-purpose” jurisdiction.

Ginsburg’s opinion for the Court further placed the holding within “the transnational context”: quoting a 2001 article by Friedrich K. Juenger (a since-departed and much-missed Cal-Davis colleague of mine), Ginsburg wrote that the Court’s withholding of jurisdiction jibed with practice in the European Union, and thus avoided “risks to international comity.”

The Court’s reasoning drew sharp criticism from Justice Sonia Sotomayor (above left). In a separate opinion sure to provoke much discussion among civil procedure profs, Sotomayor complained that

the Court decides this case on a ground that was neither argued nor passed on below,

and in so doing

unduly curtails the States’ sovereign authority to adjudicate disputes against corporate defendants who have engaged in continuous and substantial business operations within their boundaries,

with the result of

shift[ing] the risk of loss from multinational corporates to the individuals harmed by their actions.

Notwithstanding her stated concern for the interests of individuals, even Sotomayor ruled against the plaintiffs in this case. She advanced a “far simpler ground,” which bore echo with the Court’s 2013 decision in Kiobel: “exercise of jurisdiction would be unreasonable given that the case involves foreign plaintiffs suing a foreign defendant based on foreign conduct,” she wrote, adding, in an apparent reference to the courts of Argentina, “that a more appropriate forum is available.”

Sotomayor’s concurrence in the judgment thus underscores the Court’s current reluctance to provide a human rights accountability forum like that sought by these plaintiffs.