tag:blogger.com,1999:blog-63607478689276441882024-02-20T01:37:01.212-08:00ILA 2010 Conference, The HagueThe 74th Conference of the International Law Association, hosted by the Netherlands Society of International Law, takes place in The Hague from 15-20 August 2010. This blog is dedicated to the conference.Amaka Okanyhttp://www.blogger.com/profile/17837126554657297537noreply@blogger.comBlogger15125tag:blogger.com,1999:blog-6360747868927644188.post-90316898562368964612010-09-22T07:53:00.000-07:002010-09-27T03:09:32.150-07:00Conference SummaryA summary of the academic and social events of the conference is now available on the website of the ILA headquarters : <a href="http://www.ila-hq.org/">http://www.ila-hq.org/</a>Amaka Okanyhttp://www.blogger.com/profile/17837126554657297537noreply@blogger.com0tag:blogger.com,1999:blog-6360747868927644188.post-68482334205134348592010-09-21T19:54:00.000-07:002010-11-03T06:27:33.574-07:00Justice Manohar (Retd.) on Islamic Finance and the Influence of Religion on Law<span style="color: #660000;">Sujata Manohar (Former Judge of the Supreme Court of India) has sent in a copy of her presentation at the panel on Islamic Finance and the Influence of Religion on Law. An issue she discusses is whether the need for ethical business practices demonstrated by the events of the recent financial crisis could - should - be addressed by incorporating religious norms into national laws :</span> <br />
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<div align="center" class="MsoNormal" style="margin: 0cm 0cm 10pt; text-align: center;"><b style="mso-bidi-font-weight: normal;"><u><span lang="EN-US" style="font-family: Arial;">Islamic Finance & Influence of Religion on Law</span></u></b></div><div class="MsoNormal" style="margin: 0cm 0cm 10pt;"><span lang="EN-US" style="font-family: Arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><b style="mso-bidi-font-weight: normal;">Mrs. (Justice) Sujata Manohar (retd.).</b></span></div><div class="MsoNormal" style="margin: 0cm 0cm 10pt;"><b style="mso-bidi-font-weight: normal;"><span lang="EN-US" style="font-family: Arial;"><span style="mso-spacerun: yes;"> </span></span></b><span lang="EN-US" style="font-family: Arial;">Former Judge, Supreme Court of India<b style="mso-bidi-font-weight: normal;">.</b></span></div><div class="MsoNormal" style="margin: 0cm 0cm 10pt;"><br />
</div><div class="MsoNormal" style="line-height: 150%; margin: 0cm 0cm 10pt; text-align: justify;"><span lang="EN-US" style="font-family: Arial;"><span style="mso-tab-count: 1;"> </span>Movement of people across the globe in the first decade of this century coupled with globalization of trade and finance has generated a renewed interest in spiritual or moral values that influence diverse groups of people living together. Globalization has also brought with it conflicts between differing sets of such values, and raised anew the question, “How far should religion or religious norms influence the law?” It is clear that this increased interest in the fundamentals of religion & spiritual traditions has generated a tendency to incorporate religious concepts in a new field-laws governing Finance and Banking or laws regulating business activities. At the same time, the recent financial crisis has exposed corporate malpractices, and the urgent need for value driven business practices being incorporated in laws that govern business organizations and their interaction with the public. There is an obvious need for ethical business practices which can be ensured by appropriate laws. Can this need for value driven business activities be filled by incorporating religious concepts pertaining to business in national laws? </span><br />
<a name='more'></a></div><div class="MsoNormal" style="line-height: 150%; margin: 0cm 0cm 10pt; text-align: justify;"><span lang="EN-US" style="font-family: Arial;"><span style="mso-spacerun: yes;"> </span>Corporate social responsibility is now a much enunciated concept. In this context, if resort to religion for shaping business practices adds any generally accepted social & economic values to business laws and practices, or prevents anti-social business behavior, its association with law is welcome. Grameen Bank is an example of evolving new value- based business systems relevant to our current needs. But often religions shaped in the past centuries take care of the then prevailing malpractices. They may, but perhaps do not always, bring with them archaic notions or practices long discarded or not capable of easy adaptation to modern times or they do not address or cure present day ills. And this has generated problems & conflicts within those legal systems that seek to combine religion and law for the current century.</span></div><div class="MsoNormal" style="line-height: 150%; margin: 0cm 0cm 10pt; text-align: justify;"><span lang="EN-US" style="font-family: Arial;"><span style="mso-tab-count: 1;"> </span>Religion has been the underpinning behind law from ancient times. To the question “Why should I obey the Law?” the most irrefutable traditional answer has been, ‘Because it is so ordained by God, or because the law is laid down in my religion.” However law has travelled far beyond religion. Countries that are secular or multi- religious may, and do <span style="mso-spacerun: yes;"> </span>justify laws as reasonable or just or as protective of fundamental rights or freedoms of their people, or as creating the appropriate framework for the nation’s manifold activities; prescribing conduct which is prohibited or which is a crime, laying down punishments etc. This is a simplistic description of the role of law in a modern society. But the current civilizational values depend on the Rule of Law- of laws that are just and fair. Legal philosophers – John Austin & other legal positivists call the law a command of the sovereign power to obey behavioral codes with a penalty for transgressing them. The sanction behind the law is the command of the sovereign. In a democracy the sanction may be the collective wisdom or the will of the people. The behavioral code prescribed by law may be secular or religious, depending on those who exercise sovereign power. A state with a single official religion may prescribe a behavioral code based on that religion. Thomas Aquinas in the Middle Ages, and others have described law somewhat differently as derived from universal principles of morality rooted in religion. The problem is, there are several religions with differing codes of morality and socio-economic behaviour. It is necessary that the civil society debates and decides on the values it would like to adopt to create a fair and just socio-economic and political order.</span></div><div class="MsoNormal" style="line-height: 150%; margin: 0cm 0cm 10pt; text-align: justify;"><span lang="EN-US" style="font-family: Arial;"><span style="mso-tab-count: 1;"> </span>This Conference is looking at International Law as promoting peace and justice. I put justice first. Without justice there can be no peace. I like to think of human rights as embodied in the Universal Declaration of Human Rights and further developed in international treaties such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as a universal code of morality or principles that a State must adhere to in framing and enforcing laws. These human rights that must be enjoyed by people in a just society are being incorporated in more and more national constitutions in the form of a Bill of Rights. For a secular nation – one where no religion is an official or a preferred religion; or a multi – religious community, it is difficult to incorporate religious edicts of one particular religion in the law and it is undesirable to do so. </span></div><div class="MsoNormal" style="line-height: 150%; margin: 0cm 0cm 10pt; text-align: justify;"><span lang="EN-US" style="font-family: Arial;"><span style="mso-spacerun: yes;"> </span>Incorporating or enforcing Islamic business or finance rules may be possible in Islamic countries. Such countries will however, have to consider whether isolating themselves in this fashion from the legal mainstream may do more harm than good. But incorporating Islamic concepts in the business laws or practices of non-Islamic or multi–religious countries creates disharmony where there was none, and complicates business dealings both locally and internationally. Globalization of trade and commerce has happened because international institutions – WTO, IMF, World Bank, etc. apply uniform codes and business law principles. Economic progress should be in the direction of unification of business and finance laws; and their simplification to facilitate global trading & finance, not making such laws more and more complicated or diverse. The improvement in the standard of living of the poor of this world depends on the economic progress that globalization can generate. </span></div><div class="MsoNormal" style="line-height: 150%; margin: 0cm 0cm 10pt; text-align: justify; text-indent: 36pt;"><span lang="EN-US" style="font-family: Arial;">If it is possible to isolate an Islamic financial community that uses Islamic financial principles for its internal dealings, it may use Islamic doctrines for its internal transactions. The early 1970s saw the emergence of such institutions. The first International Conference on Islamic Economics in <city w:st="on">Mecca</city> in 1976 and in <place w:st="on"><city w:st="on">London</city></place> in 1977 are instances of this kind. The Islamic Development Bank established in 1975 was a result of this process. Whether it is desirable or advantageous to have such institutions, I leave it to that group to decide. But the adverse effects of over- emphasizing differences are apparent in several fields. </span></div><div class="MsoNormal" style="line-height: 150%; margin: 0cm 0cm 10pt; text-align: justify; text-indent: 36pt;"><span lang="EN-US" style="font-family: Arial;">In this context one may look at various fields where the existence of a religious law or even a religious practice has generated conflicts. The Committee on Feminism & International Law is currently examining women’s migration and has also looked at migrations in the context of cultural practices among the migrants such as a dress code for women prescribed by their “religion” which requires them to cover their face. When such women migrate to a different value- based country, a diversity in dress code of this particular type, which many look upon as symbolic of women’s unequal status, does not<span style="mso-spacerun: yes;"> </span>help. To what extent should the cultural identity of a migrant be protected and to what extent should migrants “assimilate” or accept behavioral norms or values of their adopted nation? This is currently the subject of an important on- going debate in <place w:st="on">Europe</place> and elsewhere.</span></div><div class="MsoNormal" style="line-height: 150%; margin: 0cm 0cm 10pt; text-align: justify;"><span lang="EN-US" style="font-family: Arial;"><span style="mso-tab-count: 1;"> </span>In this context I would also like to deal generally with problems of incorporating religion- based laws in the laws of a nation. I would like to briefly refer to the Indian experience in dealing with “religious” laws. <country-region w:st="on"><place w:st="on">India</place></country-region> is a secular democracy which protects minorities. During the British Rule, the law in the “public” or general law domain –contracts, torts, banking, finance, corporations or criminal law- was shaped by common law and it still is, though most of this law is statutory. The “private” law domain i.e. personal laws relating to marriage and divorce, inheritance, succession, adoption, maintenance, custody of children etc. was governed by a religious group’s own religion -based laws. And that is still the position; with an optional civil or secular law in some areas of personal law (e.g. Special Marriage Act) which the parties may chose instead of their personal law. Thus there is Hindu Law for Hindus, Mahomedan law as applied in <country-region w:st="on">India</country-region> for Muslims, Parsee Law for Parsees, Christian law as applied in <country-region w:st="on"><place w:st="on">India</place></country-region> for Christians, Jewish Law for Jews etc. The rights and obligations of persons governed by these personal laws are dissimilar. After the constitution was adopted in 1950, many of these laws have been amended to make them conform to constitutional values when the religious group concerned accepted the change. But not all religious communities, or the more vocal among them, have so agreed.</span></div><div class="MsoNormal" style="line-height: 150%; margin: 0cm 0cm 10pt; text-align: justify;"><span lang="EN-US" style="font-family: Arial;"><span style="mso-tab-count: 1;"> </span>As a result there is a tremendous sense of injustice, especially among women, <span style="mso-spacerun: yes;"> </span>who are the worst affected by religious dicta.<span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>As a lawyer 50 years ago in the early years of the Constitution I was asked questions to which I had no answers. A woman wanted a divorce on account of her husband’s cruel behaviour towards her. She had to be told that she could not do so unless she also proved adultery. (She was a Christian.) She said, ‘ My neighbor could get a divorce on account of her husband’s cruelty. Why can’t I?’ The law has now changed. A Hindu couple wanted to adopt twin girls. They could adopt only one because Hindu Law did not permit adoption of more than one child of the same sex. The law is now amended. Another woman asked, ‘How can my husband divorce me by pronouncing <i style="mso-bidi-font-style: normal;">Talak</i> thrice without giving any reason and without even going to Court? Others have to approach a Court of Law and give reasons for a divorce.’ Different rights for different sets of people in similar situations create a sense of injustice. It is also not easy to apply secular law to override deficiencies or injustices caused by religious laws. We had a poignant case of a Muslim woman Shah Banu who was denied maintenance beyond the <i style="mso-bidi-font-style: normal;">Iddat</i> period of three months on divorce. The Supreme Court of India resorted to a secular law to give her maintenance. The agitated Muslims pressurized the government to enact a law for denying such a right to a Muslim woman who was divorced.* These are illustrations of how applying such different norms to people in the same situation in the same country creates a sense of inequality and lack of fair play. Can minorities be allowed their institutions or their practices at the cost of their human rights?</span></div><div class="MsoNormal" style="line-height: 150%; margin: 0cm 0cm 10pt; text-align: justify;"><span lang="EN-US" style="font-family: Arial;"><span style="mso-tab-count: 1;"> </span>At the highest, religion- based law may be workable in a closed community. Even so one needs to look ahead rather than behind if one hopes to make a contribution to progress or to do justice. World should not step backwards and make Commercial Law or Criminal Law unequal or divisive in its application to international commerce, finance or transnational crimes. Law can be enriched through incorporating within it values which are now internationally accepted. And this is slowly happening in laws relating to contracts, corporations, banking, finance etc. It is happening with private international law – especially divorce, custody of children or transnational adoptions, surrogacy, etc. Interesting transnational dialogue has taken place relating to the nature of punishment, death penalty, punishment in the form of compensatory work or community service by convicts, rights of victims, jurisdiction of national courts dealing with inter-state criminal activities, crimes by the mentally challenged, crimes by children and so on.<span style="mso-spacerun: yes;"> </span></span></div><div class="MsoNormal" style="line-height: 150%; margin: 0cm 0cm 10pt; text-align: justify;"><span lang="EN-US" style="font-family: Arial;"><span style="mso-tab-count: 1;"> </span>I hope that our generation will break fresh ground in the field of law as a result of its global perspective on legal challenges that the new century poses. In the words of Dr. Radhakrishnan, a distinguished philosopher and former Vice President of <country-region w:st="on"><place w:st="on">India</place></country-region>, from the altar of the past let us take the living fire and not the dead ashes. With this let us shape anew the world.</span></div><div align="center" class="MsoNormal" style="line-height: 150%; margin: 0cm 0cm 10pt; text-align: center;"><span lang="EN-US" style="font-family: Arial;"></span><br />
<hr align="center" size="2" width="100%" /></div><div class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 10pt; text-align: justify;"><span lang="EN-US" style="font-family: Arial;">*<i style="mso-bidi-font-style: normal;"> Muslim Women(Protection of Rights on Divorce)Act 1986. The Supreme Court has since interpreted the relevant provision in this Act as giving a lump sum maintenance for life to the divorced woman.</i></span></div>Amaka Okanyhttp://www.blogger.com/profile/17837126554657297537noreply@blogger.com0tag:blogger.com,1999:blog-6360747868927644188.post-26374109496392265162010-08-31T07:58:00.001-07:002012-03-03T15:56:37.326-08:00Martijn Keeman on the Piracy PanelIn this blog post, Martijn Keeman (University of Amsterdam) looks at the panel discussions on the legal grounds for the fight against piracy as well as the argument (<a href="http://news.bbc.co.uk/2/hi/africa/8010061.stm">see link) </a>that Somali pirates are eco warriors/freedom fighters:<br />
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<strong> Too high a Wave? Legal Grounds for the Fight against Piracy</strong><br />
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The recent fight against the ‘17th century crime’ of piracy has set much in motion. It has united the United Nations P5 in operations for the first time since WWII, brought China's warships outside the Pacific for the first time in 600 years, and led to the establishment of the EU’s first naval operation, Atalanta. Next to these military operations, a string of UNSC Resolutions such as 1816 (2008) have been drafted providing Chapter VII power for combating piracy. In such a climate of co-operation and common grounds, it must be doable to reach a consensus on the legal grounds for the fight against piracy.<br />
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The ILA 2010 conference panel on the topic was composed of an interesting mix of academics and practitioners. Dr van Ginkel first set out the political and legal framework. She noted that in general, a lot of the modern Somali pirates are well-organized and well-equipped. Mr Kioko then made some interesting remarks on the view of the African Union (AU) on the problem. <br />
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On the question of where these pirates belonged in terms of prosecution, the AU had no problem with them being tried outside the continent. Although there have been memoranda of understanding signed by Western nations with countries such as Kenya and the Seychelles, for the transfer of pirates to the latter countries for prosecution, and there is interest on the part of countries such as Tanzania in entering into such agreements, the AU takes a pragmatic stance on the actual place of prosecution.<br />
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<a name='more'></a>In the course of the panel discussions, reference was made to the options of prosecution of pirates by national court chambers modelled after the Lockerbie tribunal or before a special regional or international tribunal (options currently being investigated pursuant to UNSC Res. 1918 (2010). The discussions highlighted the fact that the problem of a legal framework for dealing with piracy seems more a matter of expanding operational capacity than a need for more legal grounds for prosecution. Existing legal grounds for prosecution include the United Nations Convention on the Law of the Sea (UNCLOS) and the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (the SUA Convention) which already provide for jurisdiction over acts committed on the open sea. Additionally, the Transitional Federal Government of Somalia (TFG) has consented in many bilateral treaties to intervention in her coastal waters. Other legal grounds come from the UN Security Council acting under Chapter VII, which has authorised the taking of necessary measures in Somalia’s territorial waters (UNSC Res 1816, 2008) and on land (UNSC Res 1851, 2008), although these measures are to be taken pursuant to requests from the TFG.<br />
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Mr Kioko had additionally expressed regret over the payment of ransom money as without it, piracy (in its present form) would not exist or at least not be so widespread. The problem of profitable ransom protracting the situation was, he noted, an issue that was going to be discussed by the UN Monitoring Group on Somalia. It does not seem likely though that States would want to limit themselves or their private sectors in a legally binding way in their discretion to use any means for the protection of their citizens or assets.An MoU on ‘best practices’ to refrain from ransom seems, therefore, the highest attainable objective.<br />
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The final question in the session’s programme was “And how about their [the pirates'] arguments as freedom fighters?” None of the panellists took this question up. The only ones to come close to shedding light on it were, not surprisingly, the defence lawyers for the first Somali pirates tried in the Netherlands. The pirates had been tried under an old and dusty provision in Dutch law criminalising robbery on the open seas (this being one of the few international crimes for which the Netherlands has established universal jurisdiction without the requirement of a link with the Netherlands, such as the suspect being present on Dutch territory). Neither Mr Ausma nor Mr De Jong had used the term 'freedom fighter' to qualify their respective clients. Rather, they both submitted that their clients had acted out of despair. The cause of this despair was the prevailing situation of hunger and poverty in a failed state, exacerbated by toxic waste dumping and illegal overfishing done by foreign trawlers in Somali waters. <br />
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An appeal against conviction made on those grounds, if successful, would either excuse the perpetrator, or justify his act, with the same result of the perpetrator escaping punishment. The argument that the accused acted under <em>force majeure</em> was, however, basically dismissed by the Dutch court as it believed there were alternative means available to the accused for dealing with their situation (the Court, though, did not bother to specify what the alternatives were in Somalia). The Court found that the social condition of the pirates was no justification for their actions. It merely took those conditions into account when deciding on their punishment - as mitigating circumstances.<br />
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Now, regardless of whether or not a pirate is a poor fisherman trying to keep his head above water, one could argue that some other, less controversial personal defence that exculpates him from the crime might well be possible. However, the Dutch court’s dismissal of the defence of <em>force majeure</em> on factual grounds raises the question whether, as a matter of law, a <em>ius cogens</em> crime like piracy allows for a defence that justifies such an act in the first place, given the absolute character of the legal norm it seeks to protect. One can argue that in principle and in analogy to the impossibility of a State raising a defence, such as duress, to a <em>ius cogens</em> crime, a legal justification for piracy could never arise. Moreover, since a state can obviously never be held directly accountable for acts of piracy or robbery at sea given the private element of the crime, allowing justifications for this <em>ius cogens</em> crime would render the special protection it has been given under international law meaningless. More specifically, one could argue that the legal requirements for a successful plea of necessity, such as subsidiarity and proportionality, can never be satisfied; that consequently one cannot reasonably resort to piracy because it was ‘the lesser evil’.<br />
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Concerning the argument that Somali pirates are freedom fighters, the qualification of freedom fighter under international humanitarian law (IHL), whereby one can gain legitimacy for certain acts of violence, is evidently very different. However, taking hostages is explicitly excluded from the acts considered legitimate under IHL and is considered a war crime, also for freedom fighters and on the high seas. Let alone a random taking of hostages which does not occur in the context of an armed conflict and thus falls outside the terms of ‘parties to a conflict’ in IHL. Therefore even if Somali pirates could obtain a status as freedom fighters, <em>arguendo</em>, they still have to change their method of warfare or face trial. Nevertheless it is clear that labelling the Somali pirates as freedom fighters is a bridge too far for lots of obvious reasons. In that respect they stand a better chance trying to argue that they belong to Somalia’s naval forces, with all the legal and practical difficulties that entails.<br />
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In the end, Mr Ausma and Mr de Jong were quite sceptical about the so-called ‘victory’ the prosecution of Somali pirates is considered to be. In their view, if the situation does not change on the ground in Somalia, prosecution would not change it either. It is true that if the underlying root cause of anarchy is not cured, fighting its symptom of piracy would be as ineffective as the Dutch proverb of carrying buckets of water to the sea. And yet international investment in good governance and security in Somalia - whether directly or through the African Union Mission in Somalia (AMISOM) - is alarmingly dwarfed by the expenses put into the anti-piracy missions. Anti-piracy missions might provide a sense of purpose for states who were wondering what to do with their navies in the 21st century, but this is inadequate for an effective holistic approach and will lead to pyrrhic legal victories.Amaka Okanyhttp://www.blogger.com/profile/17837126554657297537noreply@blogger.com0tag:blogger.com,1999:blog-6360747868927644188.post-5646820614413540422010-08-30T07:41:00.001-07:002018-07-12T04:30:37.937-07:00ILA 2010 IN PICTURES<div class="separator" style="clear: both; text-align: center;">
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<tr><td class="tr-caption" style="text-align: center;">Chair of the 2010 Conference, Outgoing President of the Netherlands Branch and New President of the ILA, Prof. Nico Schrijver</td></tr>
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<tr><td style="text-align: center;"> <a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjnWIhclmBJoU_PHs97id59mV0rRPEo8aVwnf9JMy_5roSOAp-Ys3V5g9IRcB6_MftQ2_QpUjriROE7u82xnqH0A65wsLUykHWQsiOYL80nXG9EfDCMxSZHD6lXcSt1K3NxfE7DwHs1IOH7/s1600/ILA2010-0314_dng.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="265" px="true" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjnWIhclmBJoU_PHs97id59mV0rRPEo8aVwnf9JMy_5roSOAp-Ys3V5g9IRcB6_MftQ2_QpUjriROE7u82xnqH0A65wsLUykHWQsiOYL80nXG9EfDCMxSZHD6lXcSt1K3NxfE7DwHs1IOH7/s400/ILA2010-0314_dng.jpg" width="400" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;"> Prof. Ernst Hirsch Ballin, Minister of Justice of the Netherlands</td></tr>
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<tr><td class="tr-caption" style="text-align: center;">General Opening Session of the Conference</td></tr>
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<tr><td class="tr-caption" style="text-align: center;">Dr. Sarah Nouwen delivering the contribution of the Programme Chairs</td></tr>
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<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEieJE-caKnFId3syk6rAvCUmD6w8_G9Iobq87-WKT8TISfONeap0cKFVbnVnfnU2whAphRqjUC_onhT7tIxNXxdUwoH4nN_0I-ehCZONFuyqnvFKj0gRa6zISobXtm5e__NBkK10y0k_Rop/s1600/ILA2010-1141_dng.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="265" ox="true" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEieJE-caKnFId3syk6rAvCUmD6w8_G9Iobq87-WKT8TISfONeap0cKFVbnVnfnU2whAphRqjUC_onhT7tIxNXxdUwoH4nN_0I-ehCZONFuyqnvFKj0gRa6zISobXtm5e__NBkK10y0k_Rop/s400/ILA2010-1141_dng.jpg" width="400" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Conference dinner at the Ridderzaal (Hall of Knights)<br />
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhpGo7fyhccZBY0epDoGi8Abd6O1esI16STq2lqu92A2Nfv_hwci4iLdbkKKBE1TsVdQCJUPpn7PxIHCGIW0F88KtuFaWcgwmMqLkSAP41ZPYzxvKls-P8SN5qnn09xtQDFIgCkbZ2CFaiT/s1600/ILA2010-1740_dng.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="206" data-original-width="137" height="400" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhpGo7fyhccZBY0epDoGi8Abd6O1esI16STq2lqu92A2Nfv_hwci4iLdbkKKBE1TsVdQCJUPpn7PxIHCGIW0F88KtuFaWcgwmMqLkSAP41ZPYzxvKls-P8SN5qnn09xtQDFIgCkbZ2CFaiT/s400/ILA2010-1740_dng.jpg" width="266" /></a></div>
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<span style="font-size: 12.8px;">Harp performance by Remy van Kesteren</span></div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg2N66AR0-boBaXiYfBrwgVBln-yX1mVYn1sroJBpu7n0nnwKh3rFXxHQPnqU3YFbMqBhXCb2Vz2L8K6ziLqplH3m8f2zyZ9jtEzDD2_PlOCYI2V4tqGiAVTDWSURuDa-lL7TD0yoeJQJvu/s1600/ILA2010-0994+dng.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="399" data-original-width="600" height="424" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg2N66AR0-boBaXiYfBrwgVBln-yX1mVYn1sroJBpu7n0nnwKh3rFXxHQPnqU3YFbMqBhXCb2Vz2L8K6ziLqplH3m8f2zyZ9jtEzDD2_PlOCYI2V4tqGiAVTDWSURuDa-lL7TD0yoeJQJvu/s640/ILA2010-0994+dng.jpg" width="640" /></a></div>
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<span style="font-size: 12.8px; text-align: center;"> The Rt Hon Lord Mance, Chairman of the ILA
Executive Council</span><br />
<span style="font-size: 12.8px; text-align: center;"> Conference dinner at the Ridderzaal (Hall of Knights)</span><br />
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<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiRz1HfLkn7zkSPMrqlHl19x0C4dvGc5H-VaOu45FbKyUsz6Q-xI2Yv-iHZ9FfaGFjmLbVmTZD1_ySnpmdDO4SU0JKecs7Ufayv3YD8j0uR54N6MvbWToRylyHs5Dxp0AkZHS0T41HgZAm4/s1600/10ILA2010-0543.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="424" ox="true" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiRz1HfLkn7zkSPMrqlHl19x0C4dvGc5H-VaOu45FbKyUsz6Q-xI2Yv-iHZ9FfaGFjmLbVmTZD1_ySnpmdDO4SU0JKecs7Ufayv3YD8j0uR54N6MvbWToRylyHs5Dxp0AkZHS0T41HgZAm4/s640/10ILA2010-0543.jpg" width="640" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Leaders of regional international law organizations</td></tr>
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<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjZHJV35uTpvwRiXCM-uczCCJ3t-SjvRwz7_EboZuW7Qyl4G8nCUdN8kRZ8S_g1_2uLqNXTiFUDNCI0oF2DkZNvBltUtOlmB3_93_8tyQRTN0Sld1eFkFrZ8CY3t1MDICEM1rqmm8WbRuyz/s1600/ILA2010-0811_dng.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="425" px="true" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjZHJV35uTpvwRiXCM-uczCCJ3t-SjvRwz7_EboZuW7Qyl4G8nCUdN8kRZ8S_g1_2uLqNXTiFUDNCI0oF2DkZNvBltUtOlmB3_93_8tyQRTN0Sld1eFkFrZ8CY3t1MDICEM1rqmm8WbRuyz/s640/ILA2010-0811_dng.jpg" width="640" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Delegates at the Conference</td></tr>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiKWibyY7TkjqrPiD7U1u_hNqTPQwxYj9rhPoCu9mtlKEovBQ5BM0rxuqrlSwq_Jz0fkGH1YG_RLLn_jnYiU2l7Po8uiWNxdMQn4YGAHQ7QNsyF0nlu6gkWWnZefLdZwyOtvopiiP2aoIxO/s1600/ILA2010-0063_dng.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="265" px="true" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiKWibyY7TkjqrPiD7U1u_hNqTPQwxYj9rhPoCu9mtlKEovBQ5BM0rxuqrlSwq_Jz0fkGH1YG_RLLn_jnYiU2l7Po8uiWNxdMQn4YGAHQ7QNsyF0nlu6gkWWnZefLdZwyOtvopiiP2aoIxO/s400/ILA2010-0063_dng.jpg" width="400" /></a> </div>
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<span style="font-size: 12.8px; text-align: center;">Delegates at the Conference</span> <br />
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<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj4yEBDPelhkSTsT729MgtQAzDClhnA33G_gO8pA6M7S4E_vKxEZnYr6Mm7vuJKij6ktiekeEsTsso4XzkxKzHWny1IpAOzb7Sj_GZkMg61lwFE0k3YjjUipKx2QXFx1s70hz1lrPuIaMfT/s1600/ILA2010-1563_dng.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="426" ox="true" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj4yEBDPelhkSTsT729MgtQAzDClhnA33G_gO8pA6M7S4E_vKxEZnYr6Mm7vuJKij6ktiekeEsTsso4XzkxKzHWny1IpAOzb7Sj_GZkMg61lwFE0k3YjjUipKx2QXFx1s70hz1lrPuIaMfT/s640/ILA2010-1563_dng.jpg" width="640" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">A panel session in progress</td></tr>
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<tr><td style="text-align: center;"> <a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgZTQWGfaGeJnajEkkWbOoiSN45NwgmvzUdOu-PfOJQH6MZyQDWDQ6ZyzL4ZkVUCQdi2eWH3e33qs7VFn7_bI0wprwzeISUc17LS97rWU8NJUQFZJz9tgQNarF-sEGDAvyPNvq28sjmU2n0/s1600/ILA2010-0241_dng.jpg" imageanchor="1" style="clear: right; cssfloat: right; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" height="424" ox="true" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgZTQWGfaGeJnajEkkWbOoiSN45NwgmvzUdOu-PfOJQH6MZyQDWDQ6ZyzL4ZkVUCQdi2eWH3e33qs7VFn7_bI0wprwzeISUc17LS97rWU8NJUQFZJz9tgQNarF-sEGDAvyPNvq28sjmU2n0/s640/ILA2010-0241_dng.jpg" width="640" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;"> A plenary session</td></tr>
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<tr><td style="text-align: center;"> <a href="http://3.bp.blogspot.com/_-25aHXBOZnI/TKHcVX1519I/AAAAAAAAAdU/IdxOq_kr8Ms/s1600/ILA2010-0196_dng.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" px="true" src="https://3.bp.blogspot.com/_-25aHXBOZnI/TKHcVX1519I/AAAAAAAAAdU/IdxOq_kr8Ms/s1600/ILA2010-0196_dng.jpg" /></a> </td></tr>
<tr><td class="tr-caption" style="text-align: center;">Prof. Eduardo Grebler, Outgoing President ILA<br />
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh3jFxtiwjwcY2Rn2tw5qMcqD-ZDm8jwDB0PUzHqa46C6b3t4oMiXZklrcuYQIw0uVDVveSsw66DIzzyylwihO3seUNXgXgCXYqvLl68RkA1BHpejIEELmeLjRI0mjOtx0wpzLVdsDtthOC/s1600/p.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="399" data-original-width="600" height="265" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh3jFxtiwjwcY2Rn2tw5qMcqD-ZDm8jwDB0PUzHqa46C6b3t4oMiXZklrcuYQIw0uVDVveSsw66DIzzyylwihO3seUNXgXgCXYqvLl68RkA1BHpejIEELmeLjRI0mjOtx0wpzLVdsDtthOC/s400/p.jpg" width="400" /></a></div>
Dr. Peter van Krieken, Treasurer, Netherlands Branch of the ILA </td></tr>
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<tr><td style="text-align: center;"> <a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi-J0qw2msGmAfSSCWxGnKQGJRom7hGXWxGfOG2EWsyFI5kyexY_UonCBDCWx0qyiS6f_PyQaC2gCoaLgUSdPJB3l94gjU9rOUBxC5IESwEYrutNqyixygL1LjYx-z4LCWd_0k-BfR69iWo/s1600/ILA2010-0338_dng.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="424" px="true" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi-J0qw2msGmAfSSCWxGnKQGJRom7hGXWxGfOG2EWsyFI5kyexY_UonCBDCWx0qyiS6f_PyQaC2gCoaLgUSdPJB3l94gjU9rOUBxC5IESwEYrutNqyixygL1LjYx-z4LCWd_0k-BfR69iWo/s640/ILA2010-0338_dng.jpg" width="640" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;"> Prof. Christine Chinkin, Director of Studies ILA</td></tr>
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<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg-Pcx_nrWkg7r2-ZyHip6FZ4Rp13fkIRonZQZdkWIYuoUpfn_2Ye8tCW3n_bnR9O-ccwGi5l5wdaoNt-0_Gdc3xlVFPKyBUDo6p8JTDCBBvAu3T_iqva_CQMUIgeGTW6p-_2xAEoiH7ybG/s1600/mw26131_dng.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="420" ox="true" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg-Pcx_nrWkg7r2-ZyHip6FZ4Rp13fkIRonZQZdkWIYuoUpfn_2Ye8tCW3n_bnR9O-ccwGi5l5wdaoNt-0_Gdc3xlVFPKyBUDo6p8JTDCBBvAu3T_iqva_CQMUIgeGTW6p-_2xAEoiH7ybG/s640/mw26131_dng.jpg" width="640" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Poster Session Presenters at the Conference</td></tr>
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<tr><td class="tr-caption" style="text-align: center;">Closing Reception at the Peace Palace ('Het Vredespaleis')</td></tr>
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Amaka Okanyhttp://www.blogger.com/profile/17837126554657297537noreply@blogger.com3tag:blogger.com,1999:blog-6360747868927644188.post-68963035024117629552010-08-30T07:31:00.000-07:002018-07-07T05:22:09.382-07:00Martijn Keeman Reports on the Climate Change PanelMartijn Keeman (University of Amsterdam) has sent in the following report in which he analyses the panel debate and dwells on the complementary role of both the public and private sectors in solving the climate change dilemma. His emphasis on private sector initiatives mirrors the stress placed by some participants at the world financial crisis panel on the role of the private sector in averting another crisis. <br />
<br />
<br />
<strong>Report by Martijn Keeman</strong><br />
<br />
<br />
<span style="background-color: white; color: #38761d;">The thread of this session was whether international law could steer a favourable outcome for the next conference in Mexico or even drive the effort to mitigate harmful climate change, as the outcome of Copenhagen is still crystallizing at best. When political leadership seems to be failing, can international law take the lead and promote or enforce policy changes?</span><br />
<br />
<span style="color: #38761d;">Cancun (the next and 16th UN conference of parties to the Climate Change Convention scheduled for November and December 2010) was, of course, never intended to be the final stop on the road to tackling climate change, but the panellists shared the view that there was unfortunately little prospect of a global agreement on emission reduction emerging from the conference. Professor Murase already wished to look beyond Cancun for policy changes to come, and Professor Gupta concurred in that the momentum seemed to have halted after the Copenhagen conference. </span><br />
<span style="color: #38761d;"></span><br />
<br />
<span style="color: #38761d;">The reality is that in states' parlance as of now, ‘E’ is for economy and not for environment. </span><br />
<a name='more'></a><br />
<span style="color: #38761d;">It therefore seems a sad but realistic expectation that the 16th Conference of the Parties (COP 16) would become another COP out on commitments. The question remains as to how international law can shift the focus back to this global and urgent problem. As mentioned in Professor Rajamani’s blog contribution, Murase and Gupta disagreed on whether to take a flexible bottom-up approach starting from the market sector or a rigidly enforceable policy imposed top-down from governments.</span><br />
<br />
<span style="color: #38761d;">These differences in approaching the problem can be traced back to where one puts one’s confidence. Murase's free market mechanism envisages a situation in which companies would decide for themselves what a realistic and/or desirable norm should be, and would themselves set the corresponding targets. These targets would then be internationalised through negotiations via the WTO model. Gupta, on the other hand, feared that leaving it up to the markets and individual countries would result in the process ending up being held hostage to their willingness. However, Gupta’s view strikes a different tone from that which the companies themselves adopted at Copenhagen last year. They had claimed to be willing and ready to further the process and that it was up to the political leadership to provide them with the clarity of political decisions. </span><br />
<br />
<span style="color: #38761d;">The general view of Copenhagen is of a situation in which governments attempted to find solidarity and common grounds, but ultimately failed because they were unable to transcend their own, particular interests. Globally operating companies have a point when they claim to be able to overcome such obstacles in an efficient way, albeit that they have their own interests, and grassroots solutions are known to stimulate more sense of ownership of problem and solution alike, which in turn stimulates participation. One of the risks is that companies might move production to less demanding states. The more developing states want to stress 'differentiated' over and above 'common' responsibilities, the more pertinent this risk will become. Moreover, flexible mechanisms such as emission trading and the Clean Development Mechanism (CDM) have their own dynamics in which misuse and abuse can take place, that governments would need to keep in check. For instance, the financial reward for destroying gasses through the CDM can be so high that factories are tempted to start producing more gasses than their actual original product. The amount of gasses destroyed this way would be an obvious false positive. Besides, after the credit crunch, not many people still believe in an open market absolutely free from government intervention. In other words, the panellists' debate on bottom-up or top-down approach seems just as obsolete and irrelevant as the debate on nature vs nurture, as the two should complement each other. </span><br />
<br />
<span style="color: #38761d;">It would have been great if the debate at the panel had gotten more linked to the overarching theme of the conference programme, in particular the integration of human rights in civil cases. Corporations as well as governments can be held accountable not just among themselves, but also by the people. International human rights such as the right to life could be invoked in the context of the climate change debate where for example, water is insufficiently provided or diseases are rampant due to the pollution of the living environment. The quality of life could also become an easier factor to measure in terms of the impact of climate change. Dr Salomon had much to contribute to the session on these topics. A very interesting idea of hers was to give more weight to the situation of indigenous peoples, who often feel enormously connected to and responsible for a certain area to a literally existential point, that they could do much more as stewards of that area. Whether that would make a watershed difference is questionable, but it would certainly be a great start and even a great example of how the private sector can contribute to solving the problem of climate change.</span><br />
<span style="color: #38761d;"><br />
</span><br />
<span style="color: #38761d;">Turning the attention to (groups of) people this way, the shift in dimension from international law as law between sovereign states, to a system in which corporations become actors, and in which we most directly serve the interest of human dignity, would be completed. The problem of states staving off change in order to protect particular interests would solve itself in the same way the problem of (non) recognition of states would solve itself when we truly arrive at a ius humanitatis. In the words of the Dutch Minister of Justice Ballin during his opening speech, we would then get the guarantee that people are right to put their confidence in international law.</span>Amaka Okanyhttp://www.blogger.com/profile/17837126554657297537noreply@blogger.com0tag:blogger.com,1999:blog-6360747868927644188.post-55829191506745188432010-08-27T10:07:00.000-07:002010-09-28T06:03:10.355-07:00Panel on Climate Change : Report by Prof. Lavanya RajamaniLavanya Rajamani (Professor at the International Law Centre for Policy Research, New Delhi and Chair of the ILA 2010 conference panel on Climate Change) has sent in this report of the panel discussions with an emphasis on the role of governments in addressing climate change:<br />
<br />
<br />
<br />
<strong>An Afternoon Debating the Future of the Climate Change Regime and the Influence of Human Rights Approaches</strong><br />
<br />
An afternoon of conversations on climate change kicked off with a panel discussion featuring Professor Shinya Murase, Sophia University, Professor Joyeeta Gupta, Vrije University and Dr Margot Salomon, LSE. And, continued in the Open Working Session of the ILA Committee on the Legal Principles Relating to Climate Change. <br />
<br />
<br />
Although climate change is at the top of the international agenda, and tremendous political capital has been expended on it in the recent past, a solution to this vexing problem is far from sight. The United Nations Framework Convention on Climate Change (FCCC), 1992, and its Kyoto Protocol, 1997, contain emissions reduction commitments that are both inadequate and inadequately implemented. Negotiations scheduled to arrive at an “agreed outcome” at Copenhagen in December, 2009, are still ongoing. The non-binding Copenhagen Accord arrived at in December 2009 among heads of states of 28 Parties to the FCCC, takes but a limited step forward. <br />
<a name='more'></a>The Accord agreed to limit temperature increase to 2ºC, but did not prescribe what states would need to do to achieve this goal, or how the burden of achieving this goal is to be shared between states. It allowed states, developed and developing alike, to record their self-selected targets and actions in appendices to the Accord. 138 states have since associated with the Accord and inscribed their targets and actions in its appendices. Early analyses suggest, however, that the pledges countries have inscribed set the world on a 3 ºC or more warming trend. Meanwhile the impacts of climate change continue to prejudicially affect the poor and disadvantaged across the globe. Professors Murase and Gupta provided insights into the ongoing climate negotiations, and Dr Salomon discussed the linkages between human rights and climate change.<br />
<br />
<br />
Professor Murase laid out three essential criteria for the design of the future climate regime: all major emitters, whether developed or developing, should be included; a flexible, bottom-up approach to commitments tailored to national circumstances should be adopted; and, the base year should be changed from 1990 to 2005 or 2010. Professor Murase proposed exporting the WTO model combining bilateralism and multilateralism into the climate regime. In this model, each sector within a country, for instance Japan, would choose its target. The accumulated sector-based targets would constitute Japan’s provisional national target. Japan would then negotiate with another country, for instance the US, on a “request and offer” basis with a view to agreeing on both their targets. Both States would conduct similar negotiations, in good faith, with other countries, until the chosen global target is reached. Intriguing as this proposal is, it is questionable if reciprocity based models such as the WTO one can be used to resolve a complex problem relating to protection of the global commons, especially the climate change problem which calls on countries to act above and beyond their national interest. <br />
<br />
<br />
Professor Gupta, for her part, argued for leadership from developed countries, thus far in limited evidence. She drew attention to the limited finances available for climate action, and stressed the need to mainstream climate change in aid, and to bring human rights, and in particular the “right to emit” to bear in the design of the post-2012 climate regime. Professor Gupta ended by calling for a legally binding instrument that prescribes ambitious targets for developed countries. The tensions between the views offered by Professors Murase and Gupta - the former stressing flexible bottom up approaches and the latter legally binding top down approaches - are mirrored in the climate negotiations. As are the differences in their perspectives on the nature and extent of differential treatment offered to developing countries.<br />
<br />
<br />
These two presentations on the nuts and bolts of the climate change negotiations were complemented by Dr Salomon’s broader perspective on the role and relevance of human rights approaches to climate change. She offered a spirited argument for greater attention to the human rights implications of climate change impacts and for greater ambition in the climate regime so as to ensure that the progressive realization of the core protected human rights can proceed unhindered. <br />
These three provocative presentations and the discussion that followed between the panellists and the audience highlighted the many questions that remain to be answered in this area. Among them:<br />
<br />
• the future (or lack thereof) of the Kyoto Protocol <br />
<br />
• the legal form and architecture of the future climate regime <br />
<br />
• the nature and extent of differential treatment between developed and developing countries<br />
<br />
• the role that human rights approaches and thinking can usefully play in the climate regime, and<br />
<br />
• the fora, process and procedure most likely to yield results<br />
<br />
<br />
These questions, among others were raised in the First Report submitted by the ILA Committee on Legal Principles Relating to Climate Change (available at <a href="http://www.ila-hq.org/en/committees/index.cfm/cid/1029">http://www.ila-hq.org/en/committees/index.cfm/cid/1029</a>) and discussed in the open working session of the Committee that followed the Panel discussion. <br />
<br />
<br />
Lavanya Rajamani<br />
<br />
Professor, International Law Centre for Policy Research<br />
New DelhiAmaka Okanyhttp://www.blogger.com/profile/17837126554657297537noreply@blogger.com0tag:blogger.com,1999:blog-6360747868927644188.post-4890791442375990962010-08-20T22:00:00.001-07:002018-10-15T05:32:55.954-07:00Panel on the Responsibility of the International Lawyer for Legal Advice that Leads A Government to Violate International Law <div class="separator" style="clear: both; text-align: center;">
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<b>From the Editor</b></div>
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<span lang="EN-US" style="color: #222222; font-family: "arial" , "sans-serif"; font-size: 10.0pt;">In
the build up to NATO’s military intervention in the Balkans, as NATO countries
sought to justify their plans for a military intervention in the Former Yugoslavia without
Security Council approval, Madeleine Albright (<st1:country-region w:st="on"><st1:place w:st="on">US</st1:place></st1:country-region> Secretary of State under the
Clinton Administration) is famously alleged to have replied as follows, when her British
counterpart complained of problems getting UK government lawyers to sign off on the intervention: “get new lawyers”.<br />
<br />
Whether or not NATO’s bombing of the Former Yugoslavia was legal remains a
subject of debate in academic and political circles. Regardless, the Albright
anecdote aptly underscores the role of the government legal advisor in
justifying governmental action which might constitute a breach of international
law. <o:p></o:p></span></div>
<span lang="EN-US" style="color: #222222; font-family: "arial" , "sans-serif"; font-size: 10.0pt;"><br />
It is this role that formed the subject of the ILA 2010 panel on the responsibility
of the international lawyer for advice that leads his/her government to violate
international law. As the decision of a government to prosecute an illegal war,
torture prisoners, violate an investment treaty or act in any other manner that is in breach of international
law may be based on the advice of a legal advisor, the question arises as to
what responsibility should be borne by the legal advisor for such advice.</span><br />
<br />
<div class="MsoNormal" style="background: white;">
<span lang="EN-US" style="color: #222222; font-family: "arial" , "sans-serif"; font-size: 10.0pt;">As
a preliminary point, it is worth noting that there are two senses in which the
term “responsibility” may be understood here: first in terms of a duty of conduct
that attaches to the role of legal advisor; and second, in the - more
controversial - sense of (civil or criminal) accountability of the legal
advisor for advice that contributes to a government’s violation of
international law. Though there had been some discussion (and spirited
exchanges) at the conference on responsibility, understood in the second sense
(see below), the panel had focused mainly on responsibility in the first sense
– in the sense of a duty of conduct (a duty of care) that attaches to the role of legal advisor. <br />
<br />
<br />
Both Daniel Bethelehem (Legal Advisor, Foreign and Commonwealth Office of the
UK) and Liesbeth Lijnzaad (Legal Advisor, Ministry of Foreign Affairs, The
Netherlands) had referred to the responsibility of the government legal advisor
to advice with candour, confidence and courage and to be prepared to tell
government officials things they may not be willing to hear. They had also
stressed the importance of “pre-emptive” advice: the need for the legal advisor
to be involved in the shaping of policies from the onset. Such “pre-emptive”
participation would enable a legal advisor to alert the relevant authorities on
time as to the legal implications of their proposed policies. Both panelists
also acknowledged that the extent to which a legal advisor is able to fulfil
these roles is dependent on how much access (s)he has to the key decision
makers and the process of decision making. As Lijnzaad pointed out, what
happens in some cases is that the advisor is presented with the end product of
policy deliberations. <st1:city w:st="on"><st1:place w:st="on">Bethlehem</st1:place></st1:city>
had additionally noted that access also
means the conditions must be such that the advisor is able to advice in an
unrestricted and frank manner. Besides personal access, the advisor has to have
the trust and confidence of her or his principal. <br />
<br />
There was some discussion on whether it was better for controversial legal
advice to be contracted out to private lawyers, who because of their
independence from the government may be better positioned to give honest and
objective legal opinions. Howard Morrison (Chair of the panel and Judge of the
International Criminal Tribunal for the Former Yugoslavia), however, pointed
out that private lawyers are not necessarily free from the same constraints
that may plague government lawyers. It was not unknown, he said, for
a private lawyer to bend over to give a client advice (s)he believes the client
would like. In other words, the "get a new lawyer” problem (the problem of
a government retaining a legal advisor whose advice is tailored solely to what
the government wants to hear) may not be
exclusive to government lawyers. <br /><br />
<br />
Both panelists had also pointed to a rather important distinction between
legality and wisdom as it concerns legal advice. The fact that a given course
of action is lawful does not necessarily mean that it is wise and vice versa.
As <st1:city w:st="on"><st1:place w:st="on">Bethlehem</st1:place></st1:city>
noted, law and legal opinion has been known to be used to shut down discussion
on issues meriting further consideration. The same point was emphasized and
elaborated on by the Koji Tsuruoka (Director General, Legal Department Ministry
of Foreign Affairs, <st1:country-region w:st="on"><st1:place w:st="on">Japan</st1:place></st1:country-region>).
In an incisive presentation in which he had fully addressed responsibility in
the two senses of a duty of conduct and of legal accountability, Tsuruoka had
identified two approaches that can be adopted by the legal advisor in carrying
out his duties. There is, first, the conservative approach, in which what the
advisor looks at is not the legal permissibility of a given course of action,
but whether it is flawless or beyond questioning from the perspective of
international law. Then, there is the creative approach, which looks at how law
can be shaped to serve humanity. The creative approach was in his view an approach
called for in the 21st century, a period in which international law and the
structures of the international legal system are in a process of rapid change
and evolution. Since law is by nature conservative, it can, he pointed out,
constitute an obstacle to policies which while they may make the world a better
place, may nonetheless be considered illegal. It is at such moments of fluidity
that an international lawyer should be creative in his/her advice and find ways
of legitimising actions which serve the ultimate goals of the international
order. <br /><br />
As it concerns the issue of accountability of the legal advisor, Daniel
Bethlehem had referred the audience to the extensive treatment of the question
in the <st1:country-region w:st="on"><st1:place w:st="on">United States</st1:place></st1:country-region>.
(In the U.S, two government lawyers had been found guilty of professional
misconduct for advice to the Bush administration which justified waterboarding
and other treatment of Al Qaeda prisoners found to amount to torture. </span><span style="color: #222222; font-family: "arial" , "sans-serif"; font-size: 10.0pt;"><a href="http://www.nytimes.com/2010/02/20/us/politics/20justice.html?_r=1."><span lang="EN-US">(See New York Times Report)</span></a></span><span lang="EN-US" style="color: #222222; font-family: "arial" , "sans-serif"; font-size: 10.0pt;">. Lijnzaard, on the other hand, emphasizing the need
for a clear distinction between an advisor’s advice and how that advice is
used, had concluded that a legal advisor could not be responsible for policies
taken based on his advice. She had, in particular, noted that a declaration by
a politician that his policies are supported by the law does not necessarily
mean this is the conclusion to be drawn from the legal advice provided by the
legal advisor. <br /><br />
It is worth bearing in mind that Lijnzaard’s views seemed focused on the
responsibility of the legal advisor for policies developed relying on his
advice. Assuming one agreed there should be no responsibility in that context
(since as <st1:city w:st="on"><st1:place w:st="on">Bethlehem</st1:place></st1:city>
rightly pointed out, the sole role of the advisor is to advice, (s)he does not
make policy) such agreement still leaves unanswered the question whether the
legal advisor should be responsible for the advice itself, as opposed to
policies based thereon. <br /><br />
It is this issue that was squarely addressed by Tsuruoka. He had addressed it
mainly from the perspective of international legal responsibility (as opposed
to political responsibility and responsibility for breach of professional codes
of conduct which the other panelists had mainly focused on). Though he
considered such responsibility to be theoretically possible before the
International Criminal Court (ICC) and even human rights courts, he expressed
doubts as to whether legal advisor responsibility was envisaged in international
law, and in particular by the ICC Statute. This view, he noted, was without
prejudice to the position that a legal advisor is, as a servant of the
government, in any case accountable to his masters, and based on international
law which is what he is called to serve. <br />
<br />
Tsuruoka had also discussed the appropriateness or otherwise of holding a legal
advisor responsible for his legal advice. He noted that such responsibility
might be questioned on the basis that in rendering legal advice, a legal advisor
is acting as an officer of the State, and is not - can be presumed not to be -
giving his/her personal opinions. Several conference participants, however,
disagreed with this idea of the legal advisor disappearing behind the
impersonal inscrutable face of the State. They felt the buck of responsibility
should not stop at the feet of the political leaders who rely on legal
advice to violate international law. <br /><br />
Whether or not the legal advisor should be responsible in international law is
certainly an interesting question because though the general international law
rules on responsibility could be said to provide for responsibility for conduct
of government advisors (regardless of whether or not their actions are tainted
by private motives), those general rules are concerned solely with the
responsibility of the State itself. They were not intended to govern the
separate question whether an advisor is personally responsible for his advice,
alongside the State itself. This is a question to be determined by
international criminal law (and any other specialised field that might evolve
to provide for individual as opposed to State responsibility). With respect to
international criminal law, one can speculate that the conduct of a legal
advisor could well be covered by Art 25 of the ICC Statute. That provision
provides for the responsibility of persons who induce, aid, abet or otherwise
assist in the commission of a crime governed by the Statute. <o:p></o:p></span></div>
Amaka Okanyhttp://www.blogger.com/profile/17837126554657297537noreply@blogger.com1tag:blogger.com,1999:blog-6360747868927644188.post-14258855786801594152010-08-20T19:36:00.001-07:002018-07-07T06:09:40.526-07:00REGIONAL ORGANIZATIONS AT THE CONFERENCE<div class="separator" style="clear: both; text-align: center;">
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ILA 2010’s general opening session was unique as it was the first time six regional and sub regional organizations were all represented at the conference. The panel at that session was made up of leading officials of African, American, Asian, European and Latin American regional associations of international law, as well as the president of the French Society of International Law. The session was also an occasion to discover that the African Foundation of International Law had been unseated as the youngest regional society of international law by…the Latin-American Society of International Law. The Latin-American Society of International Law will be holding its first congress from 8 -9 September 2010.<br />
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In honour of the bicentennial of the independence of several Latin American countries from Spain, one of the subjects for discussion at the congress is the contribution of Latin America to the development of international law. Marcelo Kohen, the General Secretary of the society had in this connection noted that many existing of international law – such as uti possidetis, as well as the rules on water ways, diplomatic protection, the prohibition of conquest and forced disappearance - drew inspiration from pre-existing Latin-American regional rules.<br />
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The chair of the panel had called on its members to comment on the list of topics selected for discussion at the conference. Xue Hanqin (Asian Society of International Law) was of the opinion that the majority of the issues listed were inextricably linked to the problem of development – of satisfying essential or basic human needs. For example, the negotiations on climate change are concerned with what constitutes the right principle of sustainable development. The list, in her view, demonstrated that development was in the final analysis, the most urgent issue to be solved by international society; that development is important for achieving peace and justice. A similar point was made by Ruiz-Fabri of the European Society. She had noted that structural poverty cannot be considered in isolation from the problem of access to natural resources, and drew attention to the integrated approach of the European Union in dealing with societal problems.<br />
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The regional association leaders also identified issues that could have been addressed by the conference as important for achieving international peace and justice. For example, Kwakwa of the African Foundation cited issues such as the problem of refugees, territorial delimitation, economic, social and cultural rights; and the perception of many that the International Criminal Court is only going after African leaders. Kohen of the Latin American Society felt the conference could have addressed the problem of (in)equitable trade as well as a certain tendency and belief - since the Cold War – to use military force as a means of solving problems. He felt more attention should be devoted to developing peaceful means of solving international problems, including the problem of gross violations of human rights abroad. <br />
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Caron of the American Society of International Law had considered in more general terms, ways in which the international legal system can be improved so as to better safeguard peace and justice. In this connection, he had commented on the tendency of lawyers to look to past precedents for guidance in solving present problems. He pointed out that some of the issues we face today - such as climate change and biotechnology - are new challenges which may require completely new approaches or new laws. We cannot always extend to the past to solve present problems, he noted. Jean-Pierre Cot, on the other hand, referred to the need for fast decision making by international courts. He considered slow decision making, especially on urgent issues, to be a factor that affects the ability of an international court to adequately contribute to international peace and security. Urgent procedures, he asserted, are just as important at the international level as they are at the national level.Amaka Okanyhttp://www.blogger.com/profile/17837126554657297537noreply@blogger.com0tag:blogger.com,1999:blog-6360747868927644188.post-45264371290233498762010-08-19T18:13:00.000-07:002018-07-07T05:18:16.316-07:00Séverine Menétrey Reports on the Panel on Forum State Limitations to Choice of Law in International ContractsSéverine Menétrey (Université de Nice) has sent in the following report on the Commercial Arbitration panel at the Conference:<br />
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<strong><span style="color: #674ea7; font-size: medium;">Enhancing Party Autonomy and the Limits thereto: Choice of Forum and Choice of Law in International Contracts</span></strong><br />
<span style="color: #741b47;">Chair: Karl-Heinz Böckstiegel</span><br />
<span style="color: #741b47;">Panelists: Alex Mills and Jiri Valdhans</span><br />
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<span style="color: #741b47;">The aim of the panel was to identify the extent and possible limitations of the freedom of parties to an international contract to select the law governing their transaction. How do choice of forum agreements interact with the choice of applicable law?</span><br />
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<span style="color: #741b47;">Alex Mill (Lecturer in International Law, University of Cambridge) addressed the question of choice of law and its limits in a transnational context. The justification for party autonomy is individual freedom, but freedom is not the same when parties chose arbitration within a given national jurisdiction. While the freedom of choice of law is progressively won in international commercial relations, in some jurisdictions limitations to party autonomy or freedom persist. The parties may under certain conditions choose the law governing their contract, but the law has to be the law of a state. In that case, party autonomy is a limited choice: no law beyond the state even if there is a (r)evolution with European contract law. </span><br />
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<span style="color: #741b47;">The choice of a non-state forum for arbitration remains very important since in such arbitration, party autonomy is upheld (except sometimes when the public interest is at stake). </span><span style="color: #741b47;">Escaping state law is possible through arbitration where the choice of non-state regulation (example, lex mercatoria and the UNIDROIT principles) is permitted. Private regulations and private mechanisms of dispute resolution co-exist with national laws and jurisdictions.</span><br />
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<span style="color: #741b47;">As it concerns the issue of enforcement, we know that arbitral awards based on UNIDROIT principles or on lex mercatoria are recognised all around the world by national jurisdictions. Though courts refuse to apply non-state regulation, they recognise awards based on private regulations. According to Alex Mill, this makes sense for political reasons and it is a first step in the direction of the recognition of a legal pluralism beyond the state. </span><br />
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<span style="color: #741b47;">Jiri Valdhans (Assistant Professor of Law, Masaryk University Brno, Czech Republic) addressed the same question of choice of law and its limits from the perspective of national law. He raised the question whether the international element is a legal ground for choice of law by the parties. Looking at Czech law, he noted that there is no definition of the international element. This situation has lead to a clash between two theories pertaining to the law chosen by the parties:</span><br />
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<span style="color: #741b47;">- party reference</span><br />
<span style="color: #741b47;">- incorporation : chosen law is of contractual character.</span><br />
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<span style="color: #741b47;">This constitutes a problem because a Czech judge might have to apply foreign law <em>ex officio</em> and might have to find out the content of foreign law <em>ex officio</em>. Concerning the international element, he noted that the parties’ choice of foreign law only creates an artificial international element, as parties cannot in the first place chose any foreign law if there is no international element. He felt, therefore, that a presumption of conflict of laws is necessary for a choice of law by the parties. </span><br />
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<span style="color: #741b47;">Karl-Heinz Böckstiegel (Former President, Iran/US Claims Tribunal and the London Court of International Arbitration) brought a different perspective to the debate by referring to the facilities provided by arbitration. He referred to Article 4 of the ICSID Convention, Article 28 of the UNCITRAL Model Law, Article 35 of the UNCITRAL Arbitration Rules (new version released July 2010) and Article 17 of the ICC Arbitration Rules. All these provisions use the terms “rules of law designated by the parties”, that is to say not only national laws. He added that in arbitration, from a practical perspective, the issue of applicable law is not really a question, or is a question that remains relevant only in very limited respects (for example as it relates to prescription). He concluded that forum selection is very important for the parties: the extent and scope as to the choice of law depending on the forum chosen by the parties.</span><br />
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<span style="color: #741b47;">Séverine Menétrey</span>Amaka Okanyhttp://www.blogger.com/profile/17837126554657297537noreply@blogger.com0tag:blogger.com,1999:blog-6360747868927644188.post-86308024327308619302010-08-19T07:30:00.000-07:002018-07-07T04:31:47.701-07:00Open Working Session of the Working Group on Feminism and International Law<b><br /></b>
<b>From the Editor</b><br />
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The Working Group on Feminism and International Law was one of the working groups of the ILA to hold an open working session at the conference. Annette Lansink (Rapporteur of the Working Group and Dean of the School of Law at the University of Venda, South Africa) had begun the session by introducing the purposes of the working group. The working group, while it acknowledges the insights of various feminist theories, is not concerned with the study of feminist theories and their influence in international law. Rather, its aim is to give women a voice within the law (taking into account the social and economic context), and to work towards transforming the law so that it can ensure substantive equality of women. <br />
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Unlike formal equality, which is concerned with the status of persons as equal bearers of rights, substantive equality - which forms the focus of the working group’s activities - requires the law to ensure “equality of outcome” in the treatment of men and women. Generally speaking, the work of the working group addresses the reality that international law is not a gender neutral system : that the lens though which the law is viewed is affected by the viewer’s preferences and prejudices, including gender (as well as national, geo-political, racial, ethnic and class) prejudices.<br />
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The main focus of the open session of the working group was the presentation and adoption of its final report on Women and Immigration. (<a href="http://www.ila-hq.org/en/committees/draft-committee-reports-the-hague-2010.cfm">See report on the ILA 2010 website</a>). <br />
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Like its previous reports on women and immigration, the report highlighted the discrimination and other human rights violations facing women immigrants. In the course of the presentation, the panelists had recommended a number of changes in the treatment of immigrants. One of them is that irregular immigration should be dealt with administratively and not as a criminal offence. As the rapporteur of the working group observed, the point here is not to make irregular immigration lawful, but to change the manner in which it is handled. The working group had also recommended a better focus on the rights of immigrant women, such as property rights, medical care and - in the case of trafficked women - rights as a witness testifying against alleged traffickers. She also recommended that efforts at ensuring gender equality should take into account the opinions of feminist scholars embedded within their cultures, and not just the views of women estranged from their religious or cultural groups.Amaka Okanyhttp://www.blogger.com/profile/17837126554657297537noreply@blogger.com0tag:blogger.com,1999:blog-6360747868927644188.post-51518927172863942562010-08-18T18:41:00.000-07:002018-07-07T04:29:34.124-07:00Panel on The World Financial Crisis<b>From the Editor</b><br />
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The main focus of this highly insightful panel was identifying the nature and structure of regulatory frameworks that would be effective for averting or dealing with a financial crisis. Also discussed was an issue of specific relevance to lawyers: the complicity of the legal profession in the events leading up to the recent financial crisis and the role lawyers can play in averting a future crisis.<br />
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As a contextual background to this summary of the panel discussions, it is worthwhile to recall some basic facts of the financial crisis and the role played by complex financial instruments in the crisis. The crisis, which originated in the burst of the U.S. housing market bubble, had spread across the globe due to the purchase of U.S. securities by financial institutions outside the U.S. Subprime mortgage loans (a type of loan granted in the U.S. to individuals with poor credit history) had been bundled into a variety of financial instruments and sold to European banks and other financial institutions across the world. When subprime borrowers started defaulting on their mortgages, banks and investors that had purchased instruments backed by those mortgages lost a lot of money. Many of the affected buyers were unaware of the systemic risks involved in their purchase because of the complexity of the instruments involved. A significant proportion of the risky instruments had been sold by U.S. financial groups through subsidiaries located abroad. <br />
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The fact that institutions whose activities had precipitated the financial crisis also operated through subsidiaries located abroad meant that any system set up to regulate their activities (so as to prevent another crisis) would not be effective unless it applied across national borders. Also, the transnational dimensions of the crisis had led to a situation in which a variety of national authorities had to take action to contain its effects. This latter fact carried the risk of conflict between the measures taken by different national authorities to regulate the activities of cross-border institutions. It was in this connection that Sean Hagan (General Counsel and Director of the Legal Department at the IMF) had in his presentation identified a lack of coordination of national responses as a factor leading to failures in effectively resolving the crisis. He therefore proposed the establishment of a framework for coordinating the regulation of cross- border banks.<br />
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The nature of this coordination framework, and the possible role of international law in its design, was one of the issues he dealt with in his presentation. He had identified as a possible role for international law, the establishment of an international treaty that would require countries to defer to the crisis resolution decisions of the country in whose territory the affected financial institution has its main activities. This idea, he had however discarded as not being feasible in the near future because it would demand a level of sacrifice of national sovereignty which States may not be willing to accept at present. He, therefore, proposed as a better alternative, “a pragmatic framework for enhanced coordination” which would be subscribed to by countries in a position to satisfy its elements. The proposed framework, which he considered to represent a significant step forward, would be evidenced by a non-binding understanding among participating national authorities. One of its elements is that subscribing countries would modify their laws so as to require their national authorities to coordinate their resolution efforts with their foreign counterparts (to the maximum extent consistent with the interests of creditors and domestic financial stability). Another element is that participating countries would agree to coordination procedures designed to ensure that resolution measures in the context of a crisis are taken as quickly as possible and can have cross border effect. <br />
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René Maatman (Financial Markets Authority of the Netherlands) had in his presentation dealt with the question of the most appropriate structure for financial regulation at both national and international levels. In this connection, he drew attention to the growing popularity of the “twin peaks model” <a href="http://jimhamiltonblog.blogspot.com/2008/11/volcker-report-on-financial-regulation.html">(see Volcker report)</a> used in the Netherlands and Australia. In contrast to the single universal regulator approach used in the UK, the twin peaks model requires a separation between the conduct of business supervisor and the credentials supervisor (the latter being, in the case of the Netherlands, the Dutch Central Bank). <br />
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The double role of lawyers as enablers and preventers of a financial crisis was discussed by Lee Buchheit (Cleary Gottleib Steen & Hamiliton LLP, New York). He had pointed out that one of the factors that precipitated the crisis was that because of the complexities of the financial instruments involved, many concerned parties lacked a full appreciation of the risks involved. For example, buyers did not know what they were buying, financial regulators could not warn of the dangers because they did not fully understand the products they were regulating, and even the people that created the products did not fully understand what they had created. In his view, lawyers bore some blame for this state of affairs because those complex financial instruments and the contracts for their sale had been drafted with the assistance of lawyers. He went on to identify several roles transactional lawyers can play in averting a future financial crisis. One is to serve as a common sense sounding board and critic for corporate clients in the process of designing financial instruments. Also lawyers charged with drafting contracts, disclosure statements and other documents relating to the sale of financial instruments should ensure that those documents are drafted with candour and in terms that can be clearly understood by the relevant parties.<br />
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Some members of the audience were of the view that more attention should have been paid to the role of the private sector – and not just governmental bodies - in maintaining a safe economic environment. As the crisis was, after all, the result of bad investment and risk-management practices of financial institutions, self-regulation by those institutions was, in their opinion, vital for preventing another crisis. <br />
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The panel agreed with this viewpoint. However Buchheit identified one factor that made self-regulation problematic today. Banks, he pointed out, would attach premium importance to self regulation, only if they knew serious consequences awaited them if they got things wrong. The motivation for self regulation, he noted, has been affected by the now prevalent understanding that some banks have to be bailed out if they get into trouble. <br />
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Many in the audience found this understanding to be problematic. As one of the conference participants emotively asserted, the international community has to get rid of the mindset that certain institutions are too big and too systemically important to fail. The participant was also of the view that the systemic problems of the crisis were being exacerbated by the policy of propping up failing banks, thus tampering with the normal operation of the market system. In his opinion, there would be no more systemic implications if badly performing banks were simply allowed to die off, leaving the healthy banks to continue operation.Amaka Okanyhttp://www.blogger.com/profile/17837126554657297537noreply@blogger.com0tag:blogger.com,1999:blog-6360747868927644188.post-85444672651235899382010-08-17T18:39:00.000-07:002018-07-07T04:21:54.355-07:00Panels on Intergrating Human Rights in Civil Cases<b>From the Editor</b><br />
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The two panels on integrating human rights in civil cases had examined the use of human rights norms in both national and international courts.<br />
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Piers Gardner (Monkton Chambers, London) had discussed the human rights of companies in the context of commercial disputes brought before the European Court of Human Rights (ECHR). Among the cases he looked at was the case brought by Yukos, the defunct Russian oil company, against the Russian Government before the ECHR.<br />
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Timothy Nelson (Counsel, Skadden Arps, New York) had focused on the use of human rights standards in international investment litigation. He had discussed cases brought before tribunals of the International Centre for the Settlement of Investment Disputes (ICSID) and the Southern African Development Community Tribunal, by Zimbabwean farmers deprived of their lands under the Zimbabwean Land Acquisition Act. <br />
<a name='more'></a>The cases before the ICSID had been brought by farmers who possessed Dutch citizenship, relying on the Netherlands-Zimbabwe Bilateral Investment Treaty. Nelson identified as one problem facing claimants, that of enforcement of the judgements rendered against Zimbabwe. Zimbabwe has so far refused to recognise and satisfy those judgments, although a number of them have been enforced by the South African Courts <a href="http://kluwerarbitrationblog.com/blog/2010/08/20/zimbabwes-hitting-the-arbitration-headlines/">(See Kluwer Arbitration blog)</a>. <br />
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Maria Kostyska (Attorney, Winston & Strawn LLP, Washington D.C) had looked at the invocation of human rights standards and precedents not expressly provided for in an investment treaty, in investment arbitration. She had identified as a possible risk of applying such human rights standards in investment arbitration, the annulment of an arbitral award for failure of the arbitrators to apply the appropriate law. Such application by a tribunal could be challenged as a manifest exceeding of powers, based on Art 42 of the ICSID Convention. According to the choice of law rules contained in Art 42 of the ICSID Convention, human rights law would be applicable if the law of the contracting State party to the dispute (including its conflict of law rules) provides for its application, if the parties to the dispute agree to its application (an unlikely scenario according to Kostyska) or if the tribunal considers human rights law to be an applicable rule of international law within the meaning of Art. 42 (though the latter scenario seems to give a tribunal a lot of discretion, Kostyska had noted that human rights law would usually be applicable if it coincides with general international law).<br />
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Kostyska had also discussed the different approaches of States and tribunals to the application of human rights law in investment arbitration. For example, in the <em>TECHMED</em> case, an ICSID tribunal had invoked ECHR and Inter-American Court of Human Rights cases to establish the appropriate standard of expropriation. It had referred to those cases as sources of law within the meaning of Art. 38 of the ICJ Statute. Whereas in the <em>Glamis Gold</em> case, an ICSID tribunal declined to address human rights issues raised by the parties. In the pending NAFTA/UNCITRAL <em>Grand Water Enterprises</em> case, the United States has argued that human rights law has not risen to the level of customary international law and is thus irrelevant to the interpretation of Art. 1105 NAFTA. Also, in the <em>Compañía de Aguas del Aconquija S.A.</em> case, an ICSID tribunal had in response to Argentina’s argument that its obligation to safeguard the right of its citizens to water trumped its obligations to a foreign investor, found that human rights obligations do not trump investment obligations, that both obligations can co-exist. <br />
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Beth Stephens (Professor, Rutgers School of Law, the United States) had discussed claims brought under the U.S Alien Torts Claims Act. She shared her views on where trials for violations of international law under the Act fit within the global accountability movement. She considered them to play an important role in filling the accountability gap resulting from the fact that the system of corporate accountability worldwide is broken : no treaties, no accountability mechanism for people who have suffered displacement from their lands or other human rights violations by corporations, e.t.c. Accountability mechanisms were lacking because host or home states of transnational corporations are often unwilling or unable to prosecute them and the companies themselves could challenge the jurisdiction of the host countries. <br />
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The US cases were therefore among the first attempts at remedying this situation. They could importantly lead to international agreement and the development of procedures on how transnational corporations can be held accountable. Stephens mentioned as one problem such international agreement and procedures could address, the problem of the relationship between parent and subsidiary companies and the danger of an injured party being left with a shell company from which (s)he cannot recover damages because its assets have been transferred to the parent company. Also a problem that could be addressed by international procedures was that of the right forum for trying corporate offences (home state, host state?). Lastly, such international agreement would resolve the anomalous situation that only corporations doing business in the US potentially face the costs of litigation for human rights abuses, a situation those companies consider unfair.Amaka Okanyhttp://www.blogger.com/profile/17837126554657297537noreply@blogger.com0tag:blogger.com,1999:blog-6360747868927644188.post-50839173693025641082010-08-17T13:55:00.000-07:002018-07-07T04:25:43.131-07:00The International Criminal Court Panels<span style="background-color: white;"><strong>Is the ICC truly a court of last resort? Can peace and justice be simultaneously achieved at the ICC?</strong></span><br />
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<b>From the Editor</b><br />
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The first of the two conference panels on the ICC dealt with whether the ICC in practice (and as intended by the drafters of the Rome Statute) operates as a court of last resort - a court which complements rather than usurps the primary responsibility of States to prosecute international crimes. <br />
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John Dugard (Professor of Public International Law, Leiden University) had identified bases on which one could conclude that the Court is not operating in accordance with the complementarity principle. First, the existence of the ICC, he pointed out, had not had the effect envisaged by the drafters. Instead of being an incentive for States to prosecute cases or risk having them taken over by the ICC, the tendency was that states were unwilling or unable to prosecute. The result was that the ICC has been left with no choice but to prosecute cases that should be handled by domestic courts. Second, the Court in a bid to justify its existence - inorder to “survive” - had assumed jurisdiction over situations which may not have been envisaged by the drafters. An example of this, he noted, was the recent electoral violence in Kenya, which the Court had assumed jurisdiction over by giving an expansive interpretation to the term “crimes against humanity” in the ICC Statute.<br />
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Dugard was also of the view that the Court had jettisoned the principle of complementarily by giving a flexible interpretation to Art 17 of the ICC Statute, so as to cover cases where a State had itself announced its unwillingness to prosecute. He wondered in this connection whether the drafters of the Statute had envisaged the Court’s jurisdiction being extended to cover cases of referral by a State of its opposition leaders to the Court (<a href="http://www.hirondellenews.com/content/view/11094/288/">See report on the ICC's arrest of a Congolese opposition leader). </a><br />
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The idea that the generality of States were unwilling and unable to prosecute was, however, contested by several members of the audience. One conference participant had pointed out that compared to 1945, the willingness of States to prosecute was high. Another suggested that judgment was being passed too soon on the Court considering the relatively short period it has been actively seized of cases, and the ongoing efforts in national jurisdictions to establish a proper framework for prosecuting international crimes. Pointing to the case of Uganda, which is in the process of setting up a war crimes chamber, she noted that setting up the appropriate structures at the domestic level may take time. In her view, this factor made it perhaps premature to conclude now that States are unwilling to prosecute.<br />
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A related issue discussed at the session was whether the ICC prosecutor’s decisions on what cases to prosecute were political. As William Schabas (Director, Irish Centre for Human Rights, National University of Ireland) had pointed out, the fact that complementarity was a legal rule – was specifically provided for in the ICC Statute - was supposed to have the effect of making the prosecutor’s decision on whether to prosecute a legal determination (based on objective facts), rather than a political/subjective decision. In that respect, the ICC was to be contrasted with the Nuremberg tribunal, the Tokyo tribunal and the ad hoc tribunals for Yugoslavia and Rwanda, where the prosecutor had unfettered discretion as to what to prosecute. It was to be seen as representing a new vision of international justice in which political considerations had been eliminated from the process of selecting situations meriting prosecution. <br />
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Many, however, agreed with Mirjam Blaak's (Deputy Head of Mission, Uganda Embassy in Brussels) view that the idea of a non-political court was utopia. Reference was made in this connection to the Court’s apparent lack of enthusiasm for trying non-African forces and its tendency to focus on “soft target States (African States). One example given of a political decision not to prosecute – a complaint concerning British soldiers in Iraq – was however countered by a participant who argued that the ICC may have declined prosecution because the UK had court marshalled the soldiers in question. This, he argued was a sign that the Court was respecting the principle of complementarity.<br />
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There was also some discussion of differences that existed between ICC and national ideas or standards on prosecution, some of which were relevant to the determination of whether a State is unwilling or unable to prosecute. For example, Mirjam Blaak noted that Uganda had no provisions on victim participation. This raised the question whether States had to mimic the ICC's procedures. She considered this a question that had to be decided at the Assembly of State Parties to the ICC Statute. Dr. Luca Biong (Minister of Cabinet Affairs, Government of Sudan) on the other hand drew attention to some tension that existed between the ICC's emphasis on prosecution and the focus in the traditional African system on peace before justice. The perception of peace as the core issue in international justice and the question of double standards in selection of cases for prosecution were, he noted, two issues which had been raised by African States concerning the operation of the ICC.<br />
The conference organisers had taken the innovative approach of putting the panel question to vote among the participants after arguments for and against the proposition had been discussed at the session. The results: 70 (for) : 60 (against)<br />
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PEACE VS. JUSTICE : FRIENDS OR FOES?<br />
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Though the participants in this debate did not state this expressly, it was apparent from their statements that the debate was being conducted on two levels: first, a theoretical level where the question was whether peace and criminal justice should be pursued simultaneously; and second, a “practical” level where the questions were: does criminal justice as a matter of empirical fact endanger or promote peace processes? If there is evidence that criminal justice might endanger peace, should peace take priority over justice? <br />
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It was also apparent from the discussions that the term peace was being used by the discussants in two senses: first, as referring to an end to armed hostilities (see 'barrel of the gun' reference below), and second, as referring to peace in the broader sense of reconciliation.<br />
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On the theoretical level, there seemed to be a general agreement among the discussants that justice and peace should be pursued simultaneously; that the one should not be sacrificed for the other. In this connection, Fatou Bensouda (Deputy Prosecutor at the ICC) had stated that a choice between peace and justice was a false choice. This was because both were not alternative ways of achieving a goal. but rather elements of a comprehensive and integrated solution to a problem. Where the real disagreements appeared at the panel was where the questions were whether justice as a matter of empirical fact endangers or promotes peace, and whether peace should take priority over criminal justice if there is evidence that justice might endanger a peace process (the practical questions so to speak). <br />
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The rather differing views of the discussants on the first of these two questions suggests that whether justice in fact endangers peace (whether justice and peace can be pursued simultaneously) is not a question to be answered <em>in abstracto - </em>that the question may best be answered in the light of the particular circumstances of the case concerned. For example, Sarah Nouwen (Cambridge University, United Kingdom) felt there was rather weak empirical evidence that ICC trials promoted peace, and considerable evidence to the contrary (one example being the refusal of an indicted rebel leader to participate in peace talks for fear of being arrested at the talks and brought before the ICC). She had also noted that criminal trials tended to impede reconciliation and peace as they entrench the parties in their respective positions as victim accuser and accused. While another participant who had participated in peace talks on behalf of his government pointed out that fear of indictment by the ICC had led a certain rebel leader to agree to peace talks.<br />
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Concerning the second practical question, Fatou Bensouda seemed to disagree with the idea that peace could be achieved without justice. She had cited with approval the view of the UN Secretary General Ban Ki-Moon that a situation in which victims are asked to give up criminal justice in exchange for peace amounted to peace being secured through the barrel of the gun - to victims being asked to settle for “peace” that infringed on their dignity. The point here would seem to be that such peace is not true peace. Sarah Nouwen, on the other hand, had pointed to the case of South Africa where Mandela’s decision to follow the path of reconciliation instead of criminal justice for apartheid crimes has been credited for post-apartheid peace in that country. She found it contradictory that what some may insist should not be done is exactly what Mandela has been praised by the international community for doing : trading justice for peace.Amaka Okanyhttp://www.blogger.com/profile/17837126554657297537noreply@blogger.com0tag:blogger.com,1999:blog-6360747868927644188.post-33729735126781820332010-08-16T21:48:00.000-07:002018-07-07T04:23:39.026-07:00ILA 2010 OPENS ON AN INSPIRATIONAL NOTE From the Editor<br />
The ILA 2010 conference has started off on an inspirational tone. The speakers at the formal opening panel had set out to emphasize the broader social context in which the conference is taking place and how this should shape one’s understanding of the goals of the conference.<br />
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As Eduardo Grebler, the outgoing president of the ILA pointed out, the meaning of the theme of the conference: De Iure Humanitatis (The Law of Humanity): Peace, Justice and International Law had to be understood against the background of the present state of international affairs, which he considered to have - frankly speaking - worsened since the last ILA conference in Rio in 2008. <br />
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The evidence, he stated, was there for all to see: economic turbulence that has damaged the economy of many countries leading to rising unemployment, currency devaluations and insolvency in the governmental and private sectors; the growth of regional tensions in the Middle and Far East, the looming threat of armed conflict even in some parts of the world where peace had previously reigned, a spread of intolerance rooted in cultural differences and religion, e.t.c. <br />
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All this, he pointed out, meant that more had to be done by international lawyers to advance the view that the values of civilization have to be respected as the law of humanity - as international law. <br />
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And how exactly the conference was going to help in this process was eloquently elaborated on by Ernst Hirsch Ballin, the Minister for Justice of the Netherlands. It was, he pointed out, naïve to assume that books and conferences alone can guarantee the rule of law. The value of ILA 2010 therefore, he considered, lay not only in advancing an understanding of how international law can advance peace and justice, but also increasing our commitment to promote its humanitarian values.<br />
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Because if international lawyers truly believe in the values of the international system, they should actively promote them. They should be able to monitor the relevant developments in their jurisdictions and explain, for example, why international law does not allow us to treat others differently because they are different from us, that democracy and justice go hand in hand, that freedom of expression and religion are cornerstones of democracy and that upholding human rights is not an obstacle to political goals, but rather a goal to which we have committed ourselves with total conviction. International lawyers, he went on, need to counter the view that international law is simply something imposed from outside – they need to point out that its values are values that are also enshrined in national constitutions. They should in particular prevent a gulf existing between the academic and political development of international law. <br />
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Minister Hirsch Ballin also considered the conference to be an opportunity for fostering dialogue between actors from all over the world on international law’s humanitarian values, and for supporting the efforts of state ministers who have to implement those values and who must not be left to fight alone. The need for such dialogue, he noted, was made even more cogent considering that political and economic governance would need to be adjusted in line with the shifting balance of power from the West to the East. He also shared his conviction that the future of international law lay in developing the law of States towards serving humanity; that how far international law achieves this aim will be the yardstick for determining whether the world’s citizens can place their confidence on international law. <br />
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Both Minister Hirsch Ballin and Nico Schrijver, President of the Netherland Society of International Law and Chair of the ILA 2010 had also noted that standing up for international law was a moral as well as legal obligation for the Netherlands, since the Dutch Constitution places a duty on the Dutch government and its armed forces to promote the development of the international legal order.Amaka Okanyhttp://www.blogger.com/profile/17837126554657297537noreply@blogger.com0tag:blogger.com,1999:blog-6360747868927644188.post-45330412685264579412010-08-13T06:45:00.000-07:002018-07-10T15:14:21.495-07:00From “Law of Nations” to Law for Humanity? : International Law, Peace and Justice for All<strong>Introduction by the Blog Editor</strong><br />
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International law is in a process of transformation which no one can ignore. Since its origins as law governing relations between sovereigns, international law has within the past few decades transformed itself into law governing relations between a wide variety of actors. Today, not only States but also individuals, corporations, inter-governmental organizations and non-governmental organizations are holders of rights and obligations under international law.<br />
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The various manifestations of this development, the problems it raises and most importantly, the opportunities it provides for promoting peace and justice <em>within</em> – and not just between - States form the subject of this year’s ILA Conference aptly titled De Iure Humanitatis: Peace, Justice and International law.<br />
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The conference brings together over 600 international lawyers (as well as policy makers and academics from other disciplines) to discuss the role of international law in addressing common problems facing humanity. <br />
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The wide range of subjects to be discussed at the conference evidence the far reach of international law to matters formerly within the exclusive jurisdiction of nation States. They also highlight attending questions concerning the nature of international law and its relations (and conflicts) with national law. <br />
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Among the many issues to be discussed at the conference is the role of international law in financial supervision following the recent world financial crisis. The widespread effects of the crisis on individuals, States and corporations alike had led to calls in certain quarters for the establishment of a World Financial Court to try persons accused of financial crimes. So far the crisis had led to varying national responses which were frantically coordinated by bodies such as the IMF, G20 and EU. It has also led to the adoption of international norms whose legal status is still a subject of contention. It will be interesting to hear the views of the conference on the role of international and comparative law in implementing lessons learnt from the financial crisis. <br />
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Also a hot button issue to be discussed at the conference is the impact of the work of the International Criminal Court (ICC) on peace negotiations. The potential tension between peace and justice before the Court has been illustrated by recent criticisms that the Court's charges against Sudanese President Al-Bashir and Ugandan rebel leaders have impeded peace processes in their countries. At the conference, the Court’s Deputy Prosecutor, Mrs Fatou Bensouda, will exchange views with experts from Africa on the seeming conflict between peace/ reconciliation and international criminal justice. <br />
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Other subjects to be discussed by the conference panels include the use of international law in human rights, bankruptcy, contract and other types of litigation before domestic courts (plaintiffs and defendant's perspectives); the international accountability of government lawyers for advice that leads their governments to violate international law, the International Court of Justice Advisory Opinion in the Kosovo Case and its impact on self-determination struggles across the globe, current international law on piracy and the argument that Somali pirates are freedom fighters, the enforceability or otherwise of the Millennium Development Goals and the role of international law in realizing those goals, access to justice at the domestic level and the tension between local and international ideas of justice, the necessity or otherwise of an Organisation for the Prohibition of Biological Weapons (OPBW), the Sudan Abyei Arbitration as an example of international law arbitration as conflict prevention, Islamic finance and in general the role of religion in the making and practicing of law, domestic law limitations to parties’ freedom of choice of applicable law in arbitration and a-national or transnational law as a possible solution thereto, and the newly emerged doctrine of the Responsibility to Protect, its relationship with international law on the use of force and whether the doctrine is yet another tool for western intervention in so-called fragile or failed states. <br />
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The conference will also feature Open Working Sessions of the Committees and Study Groups of the ILA on subjects such as Feminism and International Law, Islamic Law and International Law, Space Law, Reparation for Victims of Armed Conflict, International Securities Regulation, International Law on Sustainable Development, Rights of Indigenous People, Legal Principles Relating to Climate Change, the Teaching of International Law, International Civil Litigation and the interests of the public, Cultural Heritage Law, International Commercial Arbitration, International Criminal Court, International Family Law, International Human Rights Law, International Law on Biotechnology, International Protection of Consumers, International Trade Law, Outer Continental Shelf, and Responsibility of International Organizations.<br />
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The 2010 ILA conference therefore carries the promise of stimulating and fruitful debates on a wide variety of issues confronting international society today. <br />
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This blog gives you the opportunity to follow some of the panel sessions and take part by discussing or commenting on the blog posts. For conference participants who have to chose between different conference sessions holding at the same time, it would be a means of following discussions at sessions you were unable to attend.Amaka Okanyhttp://www.blogger.com/profile/17837126554657297537noreply@blogger.com0