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07-11-gaza

On July 23, 2014, the United Nations on Human Rights Council decided to launch an independent inquiry to investigate alleged violations of international humanitarian and human rights laws in the Occupied Palestinian Territory, including East Jerusalem.  In an emergency session, the Council adopted a resolution, which indicated that the investigative team must be sent immediately to the area.  The resolution is accepted by a vote of 29 countries in favor, with 17 abstentions and a sole negative vote by the United States.  Even though the United States voted against the resolution, it strongly condemned Israel for failing to end its prolonged occupation of the area. In the resolution, the Council asked for an immediate action by the Israeli authorities to reopen the occupied Gaza Strip and called upon the international community to provide humanitarian assistance and services to the Palestinian people.

According to the Office of the High Commissioner for Human Rights, the Council condemned strongly the “widespread, systematic, and gross violations of international human rights and fundamental freedoms.”  The Council also condemned “all violence against civilians wherever it occurred, including the killing of two Israeli civilians as a result of a rocket fire.”

One of the representatives on UN High Commissioner for Human Rights, Navi Pillay emphasized that children, women, the elderly, and person with disabilities suffer the most.  Assistant Secretary-General for Humanitarian Affairs and UN Deputy Emergency Relief Coordinator, Kyung-Wha Kang added that since the Israeli military began the operation, over 600 Palestinians have been killed in the Gaza Strip and another 3,504 were injured in addition 28 Israelis.  Ms. Kang further emphasized that one third of civilians killed so far are only children, and one child is killed each hour in Gaza during this period.  Both officials focused on how many Palestinian children have lived their entire life under siege.

Ms. Pillay urged Israel, Hamas and all Palestinian armed groups to strictly abide by applicable norms of international humanitarian law and international human rights law.  She further pointed out that if these principles are not abided, actions taken from either side may amount to war crimes and crimes against humanity.  Finally, she called for a credible and proper research of allegations of war crimes and crimes against humanity since there have not been one so far.  Ms. Pillay further detailed all the actions taken or will be taken by the UN on Human Rights Council in light of this ongoing conflict.

These days, the world witnesses yet another bombardment by the Israeli authorities into places where civilians suffer the most. It is a fact that civilians in Gaza have no safe place to go, and they are unable to receive sufficient humanitarian aid.  Because medical facilities and health clinics have been hit by airstrikes, injured people are also unable to receive the necessary medical treatment.  In light of this newly adopted resolution, do you think it will, in any event, deter Israel from continuing the operation?  How effective do you think the resolution will be?  What else could be done for Palestinians, and especially for Palestinian children?

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  • UN News Centre (two children stand in front of a house that police said was destroyed in an Israeli air strike in Maghazi refugee camp in Center Gaza Strip).

torture

The United States’ Central Intelligence Agency (CIA) runs a global apprehension and incarceration operation of suspected terrorists, known as “extraordinary rendition”, which developed after the 9/11 attacks. Rendered persons were reported to have undergone torture by the receiving countries.  Yesterday, Thursday, July 24, 2014, marks the first time a court has condemned a European state for its role in the rendition program.

The European Court of Human Rights ruled that Poland had violated the rights of two suspected terrorists from Saudi Arabia, Abd Al Rahim Hussayn Muhammad Al Nashiri and Zayn Al-Abidin Muhammad Husayn, by allowing their transfer to a secret detention center in Poland, where the two men were coerced and tortured. The existence of a C.I.A. “black site” prison in Poland has been widely reported for years, but the United States government considers the list of countries that hosted the prisons to be highly classified.

“The C.I.A. has never formally revealed the locations of its secret overseas prisons, but intelligence officials, aviation records, and news reports have placed them in Afghanistan, Jordan, Romania and Thailand, as well as Poland and other countries. Out of fewer than 100 prisoners held there, roughly 30 were subjected to what the C.I.A. called “enhanced” interrogation techniques, according to agency officials.”

Both suspects are now being held at the American detention center in Guantánamo Bay, Cuba. Nashiri and Husayn fell into the category of “High-Value Detainees” (HVD), since they were terrorist suspects likely to be able to provide information about current terrorist threats against the United States due to their involvement in Al Qaeda. The suspects in their respective cases alleged that Poland was in violation of the following Articles of the Convention: Article 3 (prohibition of torture and inhuman or degrading treatment) ;  Article 5 (right to liberty and security); Article 8 (right to respect for private and family life); Article 13 (right to an effective remedy); and Article 6 § 1 (right to a fair trial).

Gen. Michael  V. Hayden, a former director of the C.I.A., “has confirmed that the harsh interrogation technique known as waterboarding, which simulates drowning, was used on Abu Zubaydah, Mr. Nashiri and Khalid Shaikh Mohammed, the self-described architect of the Sept. 11 attacks.”

The panel of judges presiding over the European Court of Human Rights, ordered Poland to pay 230,000 euros (which translated to $310,000 American dollars) in damages to the two men, who successfully argued that Poland violated prohibitions on torture and inhuman or degrading treatment and had undermined their right to a fair trial. The Court also sought assurances from US authorities that the death penalty would not be imposed on these two suspects. The judgment of the court is not final, and Poland has three months to appeal if the country wishes to do so for the sake of it’s reputation. What do you think about rendition in general? How do you think prisoners like these two men who plotted and killed thousands of people around the world, including many Americans should be treated?

Source: HUDOC; NYTIMES

Picture: AmericanEvangelical

Jason KilbornToday, Pace International Law Review presents Professor Jason Kilborn as their guest blogger and a featured author in PILR’s Winter Commercial Edition. Jason Kilborn is a Professor of Law at John Marshall Law School in Chicago and is serving his second four-year term as the Van der Grinten Chair in International and Comparative Insolvency Law at the Radboud University in Nijmegen, The Netherlands.  In Fall 2011, he was the Robert M. Zinman Scholar in Residence at the American Bankruptcy Institute.  Professor Kilborn has concentrated over a decade of academic research on a comparison of bankruptcy and insolvency in the U.S. with similar systems in Europe and elsewhere in the world.  He has written numerous articles and a book on comparative bankruptcy for individuals (including an analysis of Islamic law, shari’a).  Professor Kilborn chaired the drafting group for the World Bank report described in this paper, and he has advised several national governments on their development of personal insolvency laws.  His current article will be featured in the 3 issue of the 26 volume of Pace International Law Review:

In global law reform, indirect persuasion can be equally as effective—with far less criticism and pain—as direct intervention through “conditionalities” tied to aid.  The IMF and World Bank have faced widespread criticism for what some have challenged as heavy handed requirements for direct financial assistance.  They have commonly imposed on client developing countries austerity measures and “modernization” of legal and financial systems, creating a not surprising measure of resentment among both politicians and the public at large.

A recent law reform project led by the World Bank demonstrates a softer and more cooperative approach, with an impressive record of early success.  The IMF and World Bank have long been concerned about structural impediments to financial development.  The global financial crisis thrust into the spotlight one particular legal impediment:  The lack of an effective legal regime for treating the many ills of excessive debt, not only among businesses, but among individuals, or “natural persons.”  The absence or ineffectiveness of systems for treating the ills of personal insolvency (what we in the US would call “consumer bankruptcy”) produce a wide variety of negative effects for financial development.  That became particularly clear as the aftershocks from the global recession disrupted the lives of the millions of individual people on whom national economic activity and growth depends.

In response, the World Bank initiated in January 2011 its first-ever examination of the policies and characteristics of effective insolvency systems for individuals (natural persons).  It convened a large group of experts from around the world to produce a report reflecting the state of the art in world personal insolvency regimes.  Focusing on the issues most salient in personal, as opposed to business, insolvency, the group set out to identify the range of approaches pursued by various countries to date and to suggest which approaches seemed to have produced the most positive, and the most negative, results.  Avoiding guidelines and direct recommendations entirely, instead the final report of this expert group simply describes the many advantages of producing an effective personal insolvency system and the objectively most and least successful provisions and approaches of such laws.

Three major themes emerge from the Report that might be cast as soft recommendations and can be tracked in legislation adopted following its publication:  (1) adopt a legal system for discharging the debts of hopelessly overindebted individuals (as many countries still have not), (2) encourage out-of-court debt settlements among debtors and their creditors, but provide institutional support for such negotiations, and (3) if a rehabilitation payment plan is to be imposed on debtors in exchange for the discharge relief, carefully moderate the demands imposed by such plans, as individual capacity for withstanding extreme austerity is limited, especially as the demands extend over long periods of time.  In any event, do not rely on judicial discretion in crafting such payment plans; rather, make a legislative policy decision as to the appropriate demands of such plans that are transparent, predictable, and uniform

Three countries adopted personal insolvency systems shortly after the publication of the World Bank’s report, and so the three themes can be tracked in the legislative history and the resulting provisions of these three new laws.  The new Colombian law offers direct evidence of the influence of the World Bank project, especially in the notion of offering a discharge of hopeless indebtedness.  The new Italian law reflects the World Bank report’s emphasis on introducing a discharge of debt, as well.  The idea of encouraging negotiated solutions is less clearly reflected here, however, especially in the rather poorly developed infrastructure for supporting such negotiations.  The Italian law also expects debtors to earn their fresh start by completing a payment plan, but the demands of such plans are not formulated with the care and sensitivity that the World Bank report had favored.  Finally, the new Irish law makes an existing theoretical discharge truly effective for the first time, and it leverages an impressive institutional structure for supporting debt settlement negotiations.  As for payment plans, the Irish approach is a mixed bag.  On the negative side, the Irish law adopts the unfavorable method of vesting the court with discretion to impose and formulate payment plans.  On the positive side, the Irish law suggests guidelines for court-imposed plans, and these guidelines were developed in an extraordinarily impressive way.

Discharging legitimate debt is and will continue to be a divisive topic.  The World Bank expressly accepted that world legislation in this area would likely continue to diverge.  The Bank’s indirect approach of encouraging policymakers to consider the strengths and weaknesses of existing laws, however, seems to have already begun to produce significant convergence.

Please read the entirety of Professor Kilborn’s article in this year’s Pace International Law Review Winter Commercial Edition

The European Court of Human Rights, in its Chamber judgment, held unanimously in Rouiller v. Switzerland that there was no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. The case concerned the removal of two children from France to Switzerland by their mother.

The Court ruled that because of the short distance between France to Switzerland there was no real “international abduction” for the purposes of the Hague Convention. Despite one of the child’s desire to live in Switzerland, the Court, like the Cantonal and Federal Courts, found that the children’s removal was a “wrongful removal” and that the Hague Convention did not grant a child the freedom to choose where he or she wished to live. The wish to continue to live in Switzerland did not satisfy the Hague Convention exceptions to return the child.

The parents of the children, Rejane Rouiller (a Swiss national) and their father (a French national) lived in Saint-Louis, France, near the Swiss border.  They had two children, F. and M, born in 1993 and 1999.  The parents divorced in 2000 and share what we, in America, would call joint custody. Thus, each parent has authority to make decisions with respect to the children.  On the other hand, the mother would have what we would call physical or residential custody and the father would have the right to access or visitation.

In May 2007, the father applied to the court for the return of his children to France, invoking the Hague Convention.  In June 2007, the Arlesheim District Court in Switzerland dismissed the application for their return to France. The court ruled that this was not a child abduction under the Hague Convention. The father appealed to the Cantonal Court of Basle-Rural in September 2007. The court ordered the return of the children to France. Ms. Rouiller appealed to the Federal Court and argued that it was in the children’s best interest for them to remain in Switzerland.  The Court dismissed the appeal and ordered the children’s return to France. Ms. Rouiller lived in Saint-Louis until July 2009 following the judgment of the Mulhouse tribunal de grande instance, which decided the children should go to school in Switzerland.

The applicant complained that the return of her children to France, as ordered by the Swiss courts, constituted a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. Her children had lived with her in Switzerland for almost two years and she claimed that the Swiss courts had been wrong to apply the Hague Convention on the Civil Aspects of International Child Abduction in ordering their return to France. She added that the children’s opinion had not been sufficiently taken into account.

The Court found, like the Cantonal and Federal Courts, that the children’s removal by their mother to Switzerland was indeed an “wrongful removal” and that the Hague Convention did not grant a child the freedom to choose where he or she wished to live. The Chamber held there was no violation of Article 8 of the Convention.

Do you feel that parents should be able to relocate with their children at all? What about in a situation like this case where the two cities are so close? Should children have a right to determine where they live and which parent they live with? What about in cases of domestic violence?  Could custody be used as a tactic to maintain control over the abused parent?

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ECHR

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Pace International Law Review is honored to feature articles from its Spring 2013 symposium on Comparative Sex Regimes and Corporate Governance. Today we share Norway’s Companies Act: A 10-Year Look at Gender Equality by Kristen Carroll. Kristen Carroll graduated cum laude with an International Certificate from Pace University School of Law. During her 2L year she competed on the International Criminal Court Moot Team and helped place first overall in the International Criminal Court Moot Team competition. During her 3L year she was a member of th eWillem C. Vis International Commercial Arbitration team, and competed in Veinna, Austria. She also was Editor-in-Chief of Pace International Law Review and is intending to take the New York Bar Examination this coming summer. Her article discusses the amendment to the Norway’s Companies Act, which mandated female representation on corporate boards 10 years back:

This analysis assesses the amendment to Norway’s Companies Act, in light of the 10-year anniversary of the mandate of female representation on corporate boards. First, I discuss the implementation of the quota, Section 6-11a. Second, I compare three statistical studies that analyze the effects of the quota on corporate profitability, overall firm performance, and the changing dynamics of the managerial positions. Finally, I evaluate the various avenues to fully achieving diversity, such as the successes and failures of a quota-type system and possible initiatives that governments and companies can enact to achieve gender-balance in the workplace. While some hypothesize that the quota negatively affects overall firm capability and value, the statistical data on the effects of the legislation is not dispositive. Ultimately, it is in the best interest of corporations to learn from Norway’s example in implementing mandatory female representation, and to explore other avenues to achieving diversity.

Enjoy reading the rest of the article, Norway’s Companies Act: A 10-Year Look at Gender Equality. Please also take a look at all of Pace International Law Review Spring 2013 symposium articles on  Comparative Sex Regimes and Corporate Governance.

As many of you may already be aware, this past Thursday, July 17, 2014, Malaysia Airlines flight MH17 was shot down over eastern Ukraine by a surface-to-air missile, resulting in the deaths of all 298 people on board. This is a tragedy that has brought the international community in solidarity and cooperation to ensure that the families of the victims are able to give the respect that their dead deserve. The United Nations Security Council bowed to ensure the proper investigation is conducted and today they have issued a resolution.

The Security Council today, in their resolution, called for an international investigation into last week’s downing of a Malaysia Airlines passenger flight in eastern Ukraine, and demanded that armed groups allow unfettered access to the crash site and ensure that its integrity is maintained by not tampering with the existing accident scene.

The 15-member body condemned “in the strongest terms” the downing of flight MH17 in Ukraine, by promptly declaring a unanimously decided resolution by the entire council.

The UN resolution supported efforts to establish “a full, thorough and independent international investigation” into the incident in accordance with international civil aviation guidelines. Council members also insisted on the “dignified, respectful and professional” treatment and recovery of the bodies of the victims. It also demanded that all military activities, including by armed groups, be immediately ceased in the immediate area surrounding the crash site to allow for security and safety of the international investigation. The Council also demanded that those responsible for this incident to be held to account and that all States cooperate fully with efforts to establish accountability.

Last week Under-Secretary-General for Political Affairs Jeffrey Feltman told the Council that while the UN had no independent verification of the circumstances regarding the crash, Secretary General Ban Ki-moon was alarmed at “credible, numerous reports” suggesting that a sophisticated surface-to-air missile was used. The apparent deliberate downing of the flight over eastern Ukraine, he added, highlighted the need for an urgent resumption of a ceasefire and a serious effort to end the ongoing crisis in that country. “This horrifying incident serves as the starkest reminder of how dire the situation in eastern Ukraine has become – and how it affects countries and families well beyond Ukraine’s borders,” he said in a briefing to the Council.

 

Picture: MSN

Source: UnitedNationsNewsCentre

Horatia_MUIR-WATT-2Pace International Law Review is honored to feature articles from its Spring 2013 symposium on Comparative Sex Regimes and Corporate Governance. Today we share Corporate Governance Sex Regimes: Peripheral Thoughts from Across the Atlantic by Horatia Muir Watt. Horatia Muir Watt is a Professor at Sciences-Po Paris, where she is the Co-Director of the Global Governance Studies. Ms. Watt received a PhD in private international law from the University of Pantheon-Assas Paris 2, she taught at the University of Tours, at the University of Paris XI, and at the University of Paris| Pantheon-Sorbone between 1996 and 2009 and she was appointed to Science Po in 2009. Ms. Watt’s current article discusses the issues facing compulsory quotas for women in corporate boards, in light of the new French Law mandating its institution, as well as some of the tensions and contradictions within French contemporary thought that these issues elicit:

The very recent and highly mediatized “Declaration of the 343 Salauds”, where 343 (male) signatures in support of prostitution in a form designed to echo the highly significant declaration of as many women in 1971 in favor of the legalization of abortion, sheds particularly interesting light upon debate about sex regimes in connection with French law. France has recently introduced compulsory quotas for women in corporate boards after imposing la parité for public appointments. A comparative perspective, confronting this recent legislative development from across the Atlantic with policy views on affirmative action and philosophical conceptions of diversity in the United States, highlights the importance of the social, political or economic environment in which the issue of sex regimes arises as well as other forms of enforced diversity. Moreover, the way in which the issues are framed (how are the stakes for women presented? what about other minorities?) and the salience they have in the public space (who reacts? with what political support?) reveals a variety of cultural idiosyncrasies or paradoxes on each side. This short paper will start by sketching out some of these issues in the form of a general approach (I). It will then look more closely at some of the tensions and contradictions within contemporary French feminist thought: first through Bourdieu’s specific brand of social theory in La Domination Masculine (II), then in the writings of Elisabeth Badinter on X Y Identité Masculine (III).

Enjoy reading the entire article, Corporate Governance Sex Regimes: Peripheral Thoughts from Across the Atlantic.

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The European Court of Human Rights (ECHR) was recently presented a case out of Finland where an individual who was born male, had gender reassignment surgery, which affected her marital status with her wife. The allegations claimed that the plaintiff’s right to respect for private and family life and right to marry were violated. The Court disagreed; furthermore, they found there was no discrimination in the case either.

Heil Hämäläinen, born male, married a woman, had a child, and in 2009, had gender reassignment surgery. After successfully changing her name, she wished to indicate through her identity number that she was now female, legally changing her gender. However, the registry office prohibited her from doing so unless she divorced her wife or changed her marital status to a civil partnership. Citing religious reasons for refusing a divorce and the fact that her family would not receive the same benefits as a married family would, she refused to comply with the requirements and brought suit in Finland. On appeal, the court cited Finnish law, which allows only a man and a woman to marry, and stated that a transsexual’s changed gender should not be permitted as an exception to that rule.

Hämäläinen argued to the ECHR that her rights under Article 8, 12, and 14 were violated: right to respect for private and family life, right to marry, and prohibition of discrimination, respectively. In November of 2012, the Court found there were no violations, citing the balance between the country’s right to uphold traditional marriage laws and the transsexual’s right to obtain a new gender identity. They also cited the fact that civil partnership rights in Finland are almost identical to the rights of those who are married. After the ruling, Amnesty International and Transgender Europe stepped in to advocate for the cause and the case was referred to the ECHR’s Grand Chamber.

The Grand Chamber’s ruling on July 16, 2014 upheld the Chamber judgment, finding that in no way did this situation involve a forced divorce, since two individuals already in a legal marital union now do not fit the definition of a traditional married couple. In many other jurisdictions, forced divorce is common for married individuals who undergo gender reassignment surgery. Furthermore, the Court stated, Hämäläinen still had full parental rights to her child and would have continued legal rights to her daughter if she chose to register her union as a civil partnership in order to obtain legal recognition of her gender. The court cited that it had no obligation to force Finland to allow same-sex marriage or accommodations for exceptional circumstances such as this one.

Do you agree with the ECHR’s ruling? Do you think if this case was brought in America that the result would be the same? On the federal level? On the state level?

 

Source:

[Human Rights Comment]

alstott_annePace International Law Review is honored to feature articles from its Spring 2013 symposium on Comparative Sex Regimes and Corporate Governance. Today we share Gender Quotas for Corporate Boards: Options for Legal Design in the United States by Professor Anne L. Alstott. Professor Alstott is the Jacquin D. Bierman Professor in Taxation at Yale Law School. Professor Alstott hold and A.B in economics from Georgetown University and a J.D. from Yale Law School. She is an expert in taxation and social policy, served as a deputy dean in 2002 and 2004 and won the Yale Law Women teaching award three times. Before coming to Yale, she served as an attorney-advisor in the Treasury Department’s Office of Tax Legislative Counsel and taught at Columbia law. Her article discuses the implementation of gender quotas in corporate boards and the impact that they have had on European countries, some of which have instituted mandatory quotas:

Recently, U.S. activists, scholars, and policy makers have turned their attention to one notable effort to address the gender gap in management: gender quotas for corporate boards of directors. Twelve European countries have pioneered quotas in this context. France, Italy, the Netherlands, Norway, and Belgium now have mandatory quotas ranging from 30%-40%. Spain, Germany, Denmark, Finland, Greece, Austria, and Slovenia have voluntary quotas, and Germany and the EU are considering legislation to mandate quotas. Gender quotas for corporate boards represent an intriguing option, even if the case for quotas is not airtight. The argument for gender quotas rests on a number of empirical propositions, all of which remain contested. Scholars cannot yet show definitively whether gender quotas shatter the glass ceiling or improve board decision making or business performance. Indeed, critics worry that quotas could produce a backlash, if female appointees are tokens or if female directors are untrained or inexperienced, but these claims, too, await further empirical investigation.

Enjoy reading her full article, Gender Quotas for Corporate Boards: Options for Legal Design in the United States.

UAS drone

Unmanned aerial vehicles (UAV) have made their media debut in the negative light that military drones have cast. This controversial new military tactic has welcomed controversial debates, as most recently they are being used in the Hamas/Israel conflict. But, drones vary greatly by types, uses, and potential abilities. The commercial possibilities of UAVs are becoming a hot topic and source of investment, and inevitably bring a need for new laws and regulations.

“The Federal Aviation Administration’s current policy is based on whether the unmanned aircraft is used as a public aircraft, civil aircraft or as a model aircraft.” They include government uses, commercial uses, and recreational uses. Under present United States Federal Aviation Administration rules, “you can legally fly drones for recreational purposes, as long as you comply with certain basic guidelines — such as keeping well clear of airports.” But commercial uses are greatly restricted and are only allowed per rare special permits.

Potential uses for future UAVs include flying over fields to alert farmers to water crops, offering more accurate forecasts on twisters, tracking endangered species, spotting wildfires and scanning large stretches of land for missing children. The Federal Aviation Administration’s website lists potential public services like, “surveillance, collection of air samples to determine levels of pollution, or rescue and recovery missions in crisis situations.”

“The FAA is developing regulations to permit the widespread commercial use of drones while protecting privacy and preventing interference with larger aircraft. As part of this process, the FAA in December selected six test sites around the country where research on drones will be conducted in a variety of environments.” There is always possibilities of drones malfunctioning and falling to the ground, which is an obvious potential risk. Hopefully research and testing can help eliminate most dangers.

In China, a bakery was using UAVs to deliver cakes to customers. Authorities recently put a stop to the deliveries due to fears that the UAVs could put the public in danger. However, the company plans to pursue clearance from the civil aviation authority and local police, and continue their innovative delivery services.

Sources:

FAA.gov

apnews

uasvision.com

Picture:

spatialsource.com

 

 

 

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